[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2021 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
          
          Title 26

Internal Revenue


________________________

Parts 50 to 299

                         Revised as of April 1, 2021

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2021
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

          Legal Status and Use of Seals and Logos
          
          
          The seal of the National Archives and Records Administration 
              (NARA) authenticates the Code of Federal Regulations (CFR) as 
              the official codification of Federal regulations established 
              under the Federal Register Act. Under the provisions of 44 
              U.S.C. 1507, the contents of the CFR, a special edition of the 
              Federal Register, shall be judicially noticed. The CFR is 
              prima facie evidence of the original documents published in 
              the Federal Register (44 U.S.C. 1510).

          It is prohibited to use NARA's official seal and the stylized Code 
              of Federal Regulations logo on any republication of this 
              material without the express, written permission of the 
              Archivist of the United States or the Archivist's designee. 
              Any person using NARA's official seals and logos in a manner 
              inconsistent with the provisions of 36 CFR part 1200 is 
              subject to the penalties specified in 18 U.S.C. 506, 701, and 
              1017.

          Use of ISBN Prefix

          This is the Official U.S. Government edition of this publication 
              and is herein identified to certify its authenticity. Use of 
              the 0-16 ISBN prefix is for U.S. Government Publishing Office 
              Official Editions only. The Superintendent of Documents of the 
              U.S. Government Publishing Office requests that any reprinted 
              edition clearly be labeled as a copy of the authentic work 
              with a new ISBN.

              
              
          U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E

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

          U.S. Superintendent of Documents  Washington, DC 
              20402-0001

          http://bookstore.gpo.gov

          Phone: toll-free (866) 512-1800; DC area (202) 512-1800

[[Page iii]]




                            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........................     711
      Alphabetical List of Agencies Appearing in the CFR......     731
      Table of OMB Control Numbers............................     741
      List of CFR Sections Affected...........................     759

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 26 CFR 50.1 refers 
                       to title 26, part 50, 
                       section 1.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    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, 2021), 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 dropped in error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
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.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
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.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

    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

    There are no restrictions on the republication of material appearing 
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 
20740-6001 or e-mail [email protected].

SALES

    The Government Publishing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll-free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2104, 24 hours a day. For payment by check, 
write to: US Government Publishing Office - New Orders, P.O. Box 979050, 
St. Louis, MO 63197-9000.

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 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.govinfo.gov. For 
more information, contact the GPO Customer Contact Center, U.S. 
Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-
free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) website for public 
law numbers, Federal Register finding aids, and related information. 
Connect to NARA's website at www.archives.gov/federal-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 Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    April 1, 2021







[[Page ix]]



                               THIS TITLE

    Title 26--Internal Revenue is composed of twenty-two volumes. The 
contents of these volumes represent all current regulations codified 
under this title by the Internal Revenue Service, Department of the 
Treasury, as of April 1, 2021. The first fifteen volumes comprise part 1 
(Subchapter A--Income Tax) and are arranged by sections as follows: 
Sec. Sec.  1.0-1.60; Sec. Sec.  1.61-1.139; Sec. Sec.  1.140-1.169; 
Sec. Sec.  1.170-1.300; Sec. Sec.  1.301-1.400; Sec. Sec.  1.401-1.409; 
Sec. Sec.  1.410-1.440; 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 sixteenth 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, Gabrielle E. Burns was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




                  (This book contains parts 50 to 299)

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

chapter i--Internal Revenue Service, Department of the 
  Treasury (Continued)......................................          50

[[Page 3]]



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




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


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

          SUBCHAPTER D--MISCELLANEOUS EXCISE TAXES (CONTINUED)
Part                                                                Page
50              Regulations relating to the tax imposed with 
                    respect to certain hydraulic mining.....           5
51              Branded prescription drug fee...............           7
52              Environmental taxes.........................          18
53              Foundation and similar excise taxes.........          52
54              Pension excise taxes........................         324
55              Excise tax on real estate investment trusts 
                    and regulated investment companies......         629
56              Public charity excise taxes.................         634
57              Health insurance providers fee..............         674
141             Temporary excise tax regulations under the 
                    Employee Retirement Income Security Act 
                    of 1974.................................         684
143             Temporary excise tax regulations under the 
                    Tax Reform Act of 1969..................         684
145             Temporary excise tax regulations under the 
                    Highway Revenue Act of 1982 (Pub. L. 97-
                    424)....................................         686
151-155

[Reserved]

156             Excise tax on greenmail.....................         696
157             Excise tax on structured settlement 
                    factoring transactions..................         701
158-169

[Reserved]

                         SUBCHAPTER E [RESERVED]
170-299

[Reserved].Q??

Supplementary Publications: Internal Revenue Service Looseleaf 
  Regulations System.

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

[[Page 5]]



           SUBCHAPTER D_MISCELLANEOUS EXCISE TAXES (CONTINUED)





PART 50_REGULATIONS RELATING TO THE TAX IMPOSED WITH RESPECT TO 
CERTAIN HYDRAULIC MINING--Table of Contents



Sec.
50.1 Introduction.
50.2 Scope of regulations.
50.3 General definitions and use of terms.
50.4 Rates of tax.
50.5 Liability for the tax.
50.6 Ascertainment of quantity mined.
50.7 Returns.
50.8 Due date and place for filing returns and paying tax.

    Authority: Sec. 23, 27, Stat. 510, as amended; 33 U.S.C. 683.

    Source: T.D. 6419, 24 FR 8546, Oct. 22, 1959, unless otherwise 
noted.



Sec.  50.1  Introduction.

    The Act entitled ``An Act to create the California Debris Commission 
and regulate hydraulic mining in the State of California'', approved 
March 1, 1893, as amended, 27 Stat. 507; 34 Stat. 1001; 48 Stat. 1118; 
52 Stat. 1040; 61 Stat. 501; 33 U.S.C. 661-687, provides in part as 
follows:

    That a commission is hereby created, to be known as the California 
Debris Commission, consisting of three members. * * *
    Sec. 3. That the jurisdiction of said commission, insofar as the 
same affects mining carried on by the hydraulic process, shall extend to 
all such mining in the territory drained by the Sacramento and San 
Joaquin river systems in the State of California. * * *
    Sec. 8. That for the purposes of this act ``hydraulic mining'' and 
``mining by the hydraulic process,'' are hereby declared to have the 
meaning and application given to said terms in said State.
    Sec. 9. That the individual proprietor or proprietors, or in the 
case of a corporation its manager or agent appointed for that purpose, 
owning mining ground in the territory in the State of California 
mentioned in section three hereof, which it is desired to work by the 
hydraulic process, must file with said commission a verified petition, 
setting forth such facts as will comply with law and the rules 
prescribed by said commission.

                                * * * * *

    Sec. 13. That in case a majority of the members of said Commission, 
within thirty days after the time so fixed, concur in the decision in 
favor of the petitioner or petitioners, the said Commission shall 
thereupon make an order directing the methods and specifying in detail 
the manner in which operations shall proceed in such mine or mines; * * 
*
    Sec. 23. Upon the construction by the said commission of dams or 
other works for the detention of debris from hydraulic mines and the 
issuing of the order provided for by this Act to any individual, 
company, or corporation to work any mine or mines by hydraulic process, 
the individual, company, or corporation operating thereunder working any 
mine or mines by hydraulic process, the debris from which flows into or 
is in whole or in part restrained by such dams or other works erected by 
said commission, shall pay for each cubic yard mined from the natural 
bank a tax equal to the total capital cost of the dam, reservoir, and 
rights of way divided by the total capacity of the reservoir for the 
restraint of debris, as determined in each case by the California Debris 
Commission, which tax shall be paid annually on a date fixed by said 
commission and in accordance with regulations to be adopted by the 
Secretary of the Treasury, and the Treasurer of the United States is 
hereby authorized to receive the same. * * * The Secretary of the Army 
is authorized to enter into contracts to supply storage for water and 
use of outlet facilities from debris storage reservoirs, for domestic 
and irrigation purposes and power development upon such conditions of 
delivery, use, and payment as he may approve: Provided, That the moneys 
received from such contracts shall be deposited to the credit of the 
reservoir project from which the water is supplied, and the total 
capital cost of said reservoir, which is to be repaid by tax on mining 
operations as herein provided, shall be reduced in the amount so 
received.



Sec.  50.2  Scope of regulations.

    (a) In general. The regulations in this part relate to the tax 
imposed with respect to hydraulic mining, the debris from which flows 
into or is in whole or in part restrained by dams or other works erected 
for the detention of debris by the California Debris Commission in the 
area drained by the Sacramento and San Joaquin river systems in the 
State of California. The regulations have application to taxable years 
beginning after August 31, 1959.

[[Page 6]]

For definition of the term taxable year, see Sec.  50.3(g).
    (b) Extent to which the regulations in this part supersede prior 
regulations. The regulations in this part, with respect to the subject 
matter within the scope thereof, supersede Treasury Decision 4952 (26 
CFR (1939) part 317).



Sec.  50.3  General definitions and use of terms.

    As used in the regulations in this part:
    (a) The term Act means ``An Act to create the California Debris 
Commission and regulate hydraulic mining in the State of California'' 
approved March 1, 1893, as amended, 27 Stat. 507; 34 Stat. 1001; 48 
Stat. 1118; 52 Stat. 1040; 61 Stat. 501; 33 U.S.C. 661-687.
    (b) The term person means an individual, a trust, estate, 
partnership, company, or corporation.
    (c) The term Secretary means the Secretary of the Treasury.
    (d) The term Commissioner means the Commissioner of Internal 
Revenue.
    (e) The term district director means the district director of 
internal revenue.
    (f) The terms hydraulic mining and mining by the hydraulic process 
shall have the meaning and application given said terms in the State of 
California.
    (g) The term taxable year means the twelve-month period ending on 
August 31 of each year for which the tax imposed by the Act is payable.



Sec.  50.4  Rates of tax.

    (a) Determination of rate. Under the Act the California Debris 
Commission will determine and prescribe with respect to each debris dam 
or other works the rate of tax payable in the area served by the 
particular debris dam or works. The Secretary of the Army will notify 
the Secretary of the Treasury of the rate of tax fixed with respect to 
each debris dam or works as such rate becomes known.
    (b) Measure of tax. The tax is payable annually on the basis of the 
number of cubic yards mined from the natural bank by the hydraulic 
process during the taxable year.



Sec.  50.5  Liability for the tax.

    Liability for tax attaches to any person engaged at any time during 
the taxable year in hydraulic mining in the area identified in paragraph 
(a) of Sec.  50.2, if the debris from such mining operations is in whole 
or in part restrained by any of the debris dams or works constructed by 
the California Debris Commission.



Sec.  50.6  Ascertainment of quantity mined.

    Each person engaged in hydraulic mining operations within the scope 
of the tax shall make or cause to be made appropriate surveys of the 
premises on which such hydraulic mining operations are conducted for the 
purpose of determining the cubic yardage mined from the natural bank. 
Such surveys shall be made at the beginning and end of hydraulic mining 
operations in each taxable year by a licensed engineer or other 
qualified agency having prior approval of the California Debris 
Commission, and shall conform to requirements prescribed by the 
California Debris Commission.



Sec.  50.7  Returns.

    (a) Form of return. Every person liable for tax for any taxable year 
shall prepare for such year a return on Form 1 (California Debris) in 
accordance with the instructions thereon and in accordance with the 
regulations in this part.
    (b) Content of return. The return shall show:
    (1) The identity of the particular dam or other works restraining 
debris from the mine;
    (2) The name and location of the mine;
    (3) The name and address of the person to whom the California Debris 
Commission has issued a license to operate the mine;
    (4) The number and date of the license;
    (5) The name and address of the owner of the mine;
    (6) The dates on which hydraulic mining operations began and ended 
during the taxable year for which the return is made;
    (7) The number of cubic yards mined by the hydraulic process at the 
mine during the taxable year;

[[Page 7]]

    (8) The rate of tax per cubic yard determined by the California 
Debris Commission applicable to the particular mine; and
    (9) The amount of tax due and payable (cubic yards mined multiplied 
by the rate of tax per cubic yard).
    (c) Supporting statement. With each return there must be submitted a 
supporting statement of the person who made the surveys at the mine for 
the mining season covered by the return (see Sec.  50.6), stating that 
such surveys were made in accordance with requirements prescribed by the 
California Debris Commission.
    (d) Verification of return and supporting statement. The return and 
the supporting statement shall be verified by written declarations that 
they are made under the penalties of perjury.



Sec.  50.8  Due date and place for filing returns and paying tax.

    The return for a taxable year shall be filed with, and the tax shall 
be paid to, the district director at San Francisco, California, on or 
before September 30 of the calendar year in which the taxable year ends. 
The tax is due and payable on such date without assessment by, or notice 
from, the district director.



PART 51_BRANDED PRESCRIPTION DRUG FEE--Table of Contents



Sec.
51.1 Overview.
51.2 Explanation of terms.
51.3 Information requested from covered entities.
51.4 Information provided by the agencies.
51.5 Fee calculation.
51.6 Notice of preliminary fee calculation.
51.7 Dispute resolution process.
51.8 Notification and payment of fee.
51.9 Tax treatment of fee.
51.10 Refund claims.
51.11 Applicability date.
51.6302-1 Method of paying the branded prescription drug fee.

    Authority: 26 U.S.C. 7805; sec. 9008, Pub. L. 111-148, 124 Stat. 
119.
    Section 51.8 also issued under 26 U.S.C. 6302(a).
    Section 51.6302-1 also issued under 26 U.S.C. 6302(a).

    Source: T.D. 9544, 76 FR 51249, Aug. 18, 2011, unless otherwise 
noted.



Sec.  51.1  Overview.

    (a) The regulations in this part 51 are designated ``Branded 
Prescription Drug Fee Regulations.''
    (b) The regulations in this part 51 provide guidance on the annual 
fee imposed on covered entities engaged in the business of manufacturing 
or importing branded prescription drugs by section 9008 of the Patient 
Protection and Affordable Care Act (ACA), Public Law 111-148 (124 Stat. 
119 (2010)), as amended by section 1404 of the Health Care and Education 
Reconciliation Act of 2010 (HCERA), Public Law 111-152 (124 Stat. 1029 
(2010)). All references in these regulations to section 9008 are 
references to section 9008 of the ACA, as amended by section 1404 of 
HCERA. Unless otherwise indicated, all other section references are to 
sections in the Internal Revenue Code. All references to ``fee'' in 
these regulations are references to the fee imposed by section 9008.
    (c) Section 9008(b)(4) sets an applicable fee amount for each year, 
beginning with 2011, that will be apportioned among covered entities 
with aggregate branded prescription drug sales of over $5 million to 
government programs or pursuant to coverage under such programs. 
Generally, each covered entity is liable for a fee in each fee year that 
is based on its sales of branded prescription drugs in the sales year 
that corresponds to the fee year in an amount determined by the Internal 
Revenue Service (IRS) under the rules of this part.

[T.D. 9684, 79 FR 43639, July 28, 2014]



Sec.  51.2  Explanation of terms.

    (a) In general. This section explains the terms used in this part 
for purposes of the fee imposed by section 9008 on branded prescription 
drugs.
    (b) Agencies. The term Agencies means--
    (1) The Centers for Medicare and Medicaid Services of the Department 
of Health and Human Services (CMS);
    (2) The Department of Veterans Affairs (VA); and
    (3) The Department of Defense (DOD).
    (c) Branded prescription drug--(1) In general. The term branded 
prescription drug means--

[[Page 8]]

    (i) Any prescription drug the application for which was submitted 
under section 505(b) of the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 355(b)) (FFDCA); or
    (ii) Any biological product the license for which was submitted 
under section 351(a) of the Public Health Service Act (42 U.S.C. 
262(a)).
    (2) Prescription drug. The term prescription drug means any drug 
that is subject to section 503(b) of the FFDCA.
    (d) Branded prescription drug sales. The term branded prescription 
drug sales means sales of branded prescription drugs to any government 
program or pursuant to coverage under any such government program. 
However, the term does not include sales of orphan drugs.
    (e) Covered entity--(1) In general. The term covered entity means 
any manufacturer or importer with gross receipts from branded 
prescription drug sales including--
    (i) A single-person covered entity; or
    (ii) A controlled group.
    (2) Single-person covered entity. The term single-person covered 
entity means a covered entity that is not affiliated with a controlled 
group.
    (3) Controlled group. The term controlled group means a group of two 
or more persons, including at least one person that is a covered entity, 
that is treated as a single employer under section 52(a), 52(b), 414(m), 
or 414(o).
    (4) Special rules for controlled groups. For purposes of paragraph 
(e)(3) of this section (related to controlled groups)--
    (i) A foreign entity subject to tax under section 881 is included 
within a group under section 52(a) or 52(b); and
    (ii) A person is treated as being a member of a controlled group if 
it is a member of the group on the end of the day on December 31st of 
the sales year.
    (5) Covered entity status--(i) Rule. An entity's status as a covered 
entity begins in the first fee year in which the entity has branded 
prescription drug sales and continues each subsequent fee year until 
there are no remaining branded prescription drug sales for that entity 
to be taken into account as described in Sec.  51.5(c) or used to 
calculate the adjustment amount described in Sec.  51.5(e).
    (ii) Example. The following example illustrates the rule of 
paragraph (e)(5)(i) of this section:
    (A) Facts. Entity A is a manufacturer with gross receipts of more 
than $5 million from branded prescription drugs sales in 2011. Entity A 
does not have any gross receipts from branded prescription drug sales 
before or after 2011.
    (B) Analysis. Entity A is a covered entity beginning in 2011 because 
it had gross receipts from branded prescription drug sales in 2011. For 
the 2011 fee year, Entity A does not owe a fee because the 2011 fee is 
based on sales data from the 2009 sales year. For the 2012 fee year, 
Entity A does not owe a fee because the 2012 fee is based on sales data 
from the 2010 sales year. Entity A continues to be a covered entity for 
the 2012 fee year because its branded prescription drug sales from the 
2011 sales year have not yet been taken into account as described in 
Sec.  51.5(c) and used to calculate the adjustment amount described in 
Sec.  51.5(e). For the 2013 fee year, Entity A continues to be a covered 
entity because a portion of its branded prescription drug sales from the 
2011 sales year are taken into account as described in Sec.  51.5(c) for 
purposes of computing the 2013 fee. For the 2013 fee year, Entity A is 
also liable for the adjustment amount described in Sec.  51.5(e) for the 
difference between its 2012 fee computed using sales data from the 2010 
sales year, which is $0, and what the 2012 fee would have been using 
sales data from the 2011 sales year. For the 2014 fee year, Entity A 
continues to be a covered entity because a portion of its branded 
prescription drug sales for the 2011 sales year are used to calculate 
the adjustment amount described in Sec.  51.5(e). Therefore, for the 
2014 fee year, Entity A will receive an adjustment amount for the 
difference between its 2013 fee computed using sales data from the 2011 
sales year, and what the 2013 fee would have been using sales data from 
the 2012 sales year, which is $0. After the 2014 fee year, there are no 
remaining branded prescription drug sales to be taken into account as 
described in Sec.  51.5(c) or used to calculate the adjustment amount 
described in Sec.  51.5(e) for Entity A. Accordingly, Entity A is not a 
covered entity after the 2014 fee year.

[[Page 9]]

    (f) Designated entity--(1) In general. The term designated entity 
means the person within a controlled group that is designated to act for 
the controlled group regarding the fee by--
    (i) Filing Form 8947, ``Report of Branded Prescription Drug 
Information'';
    (ii) Receiving IRS communications about the fee for the group;
    (iii) Filing an error report for the group, if applicable, as 
described in Sec.  51.7; and
    (iv) Paying the fee to the government.
    (2) Selection of designated entity--(i) Controlled group selection 
of a designated entity. Except as provided in paragraph (f)(2)(ii) of 
this section, the controlled group may select a person as the designated 
entity by filing Form 8947 in accordance with the form instructions. The 
designated entity must state under penalties of perjury that all members 
of the controlled group have consented to the selection of the 
designated entity. The designated entity must maintain a record of all 
member consents. Each member of a controlled group must maintain a 
record of its consent to the controlled group's selection of the 
designated entity.
    (ii) Requirement for affiliated groups; agent for the group. If the 
controlled group, without regard to foreign corporations included under 
section 9008(d)(2)(B), is also an affiliated group whose common parent 
files a consolidated return for federal income tax purposes, the 
designated entity is the agent for the group (within the meaning of 
Sec.  1.1502-77 of this title).
    (iii) IRS selection of a designated entity. Except as provided in 
paragraph (f)(2)(ii) of this section, if a controlled group does not 
select a designated entity as provided in paragraph (f)(2)(i) of this 
section, the IRS will select a member of the controlled group as the 
designated entity for the controlled group. If the IRS selects the 
designated entity, then all members of that controlled group will be 
deemed to have consented to the IRS's selection of the designated 
entity.
    (g) Fee year. The term fee year means the calendar year in which the 
fee for a particular sales year must be paid to the government.
    (h) Government programs. The term government programs (collectively 
``Programs''), means--
    (1) The Medicare Part B program;
    (2) The Medicare Part D program;
    (3) The Medicaid program;
    (4) Any program under which branded prescription drugs are procured 
by the Department of Veterans Affairs;
    (5) Any program under which branded prescription drugs are procured 
by the Department of Defense; and
    (6) The TRICARE retail pharmacy program.
    (i) Manufacturer or importer. The term manufacturer or importer 
means the person identified in the Labeler Code of the National Drug 
Code (NDC) for a branded prescription drug.
    (j) NDC. The term NDC means the National Drug Code. The NDC is a 
unique identifier that is assigned to all drug products approved by the 
Food and Drug Administration (FDA), including a branded prescription 
drug. The Labeler Code is the first five numeric characters of the NDC 
or the first six numeric characters when the available five-character 
code combinations are exhausted.
    (k) Orphan drugs--(1) In general. Except as provided in paragraph 
(k)(2) of this section, the term orphan drug means any branded 
prescription drug for which any person claimed a section 45C credit and 
that credit was allowed for any taxable year.
    (2) Exclusions. The term orphan drug does not include--
    (i) Any drug for which there has been a final assessment or court 
order disallowing the full section 45C credit taken for the drug; or
    (ii) Any drug for any sales year after the calendar year in which 
the FDA approved the drug for marketing for any indication other than 
the treatment of a rare disease or condition for which a section 45C 
credit was allowed, regardless of whether a section 45C credit was 
allowed for the drug before, in the same year as, or after this FDA 
designation.
    (3) FDA marketing approval for treatment of another rare disease or 
condition. If a drug has prior FDA marketing approval for the treatment 
of a rare disease or condition for which a section 45C credit was 
allowed, and the FDA

[[Page 10]]

subsequently gives the drug marketing approval for the treatment of 
another rare disease or condition for which another section 45C credit 
was also allowed, the drug retains its status as an orphan drug provided 
the FDA has never approved the drug for marketing for any indication 
other than the treatment of a rare disease or condition for which a 
section 45C credit was allowed.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (k):

    Example 1: Allowance of section 45C credit and later FDA marketing 
approval of drug for an indication other than the treatment of a rare 
disease or condition. (i) Facts. Drug A is a branded prescription drug 
that was not on the market before 2011. In 2011, a covered entity 
claimed a section 45C credit for its qualified clinical testing expenses 
related to Drug A. There was no final IRS assessment or court order that 
disallowed the full credit for Drug A. In 2012, the FDA approved Drug A 
for marketing for an indication other than the treatment of the rare 
disease or condition for which the section 45C credit was allowed and 
this indication was not for another rare disease or condition for which 
a section 45C was allowed.
    (ii) Analysis. In 2011 and 2012, Drug A is an orphan drug because: 
first, it was a branded prescription drug for which a person claimed a 
section 45C credit and for which that credit was allowed for a taxable 
year; second, there was not a final assessment or court order 
disallowing the full credit taken for the drug; and third, before 2012, 
the FDA did not approve the drug for marketing for any indication other 
than the treatment of a rare disease or condition for which a section 
45C credit was allowed. However, Drug A is not an orphan drug for the 
2013 sales year or later sales years because in 2012 the FDA approved 
Drug A for marketing for an indication other than the treatment of the 
rare disease or condition for which the section 45C credit was allowed 
and this indication was not for treatment of another rare disease or 
condition for which a section 45C credit was allowed.
    Example 2: FDA marketing approval of drug for an indication other 
than the treatment of a rare disease or condition and later allowance of 
section 45C credit. (i) Facts. Drug B is a branded prescription drug 
that was not on the market before 2011. In 2011, FDA approved Drug B for 
marketing for the treatment of a rare disease or condition and also 
approved Drug B for marketing for an indication other than the treatment 
of a rare disease or condition. In 2012, a covered entity claimed a 
section 45C credit for its qualified clinical testing expenses related 
to Drug B. There was no final IRS assessment or court order that 
disallowed the full credit for Drug B.
    (ii) Analysis. In 2011, Drug B is not an orphan drug because no 
section 45C credit was allowed and because the FDA approved Drug B for 
an indication other than the treatment of a rare disease or condition. 
In 2012, although the covered entity was allowed a section 45C credit 
for its qualified clinical testing expenses related to Drug B and there 
was no final IRS assessment or court order that disallowed the full 
credit, Drug B still is not an orphan drug because the FDA had approved 
the drug in 2011 for marketing for an indication other than the 
treatment of a rare disease or condition for which a section 45C credit 
was allowed in 2012. Thus, Drug B is not an orphan drug for the 2012 
sales year or later sales years.
    Example 3: Allowance of section 45C credit and subsequent allowance 
of section 45C credit with no intervening FDA marketing approval of drug 
for an indication other than the treatment of a rare disease or 
condition for which a section 45C credit was allowed. (i) Facts. Drug C 
is a branded prescription drug that was not on the market before 2010. 
In 2010, a covered entity claimed a section 45C credit for its qualified 
clinical testing expenses related to Drug C. In 2012, a covered entity 
claimed an additional section 45C credit for its qualified clinical 
testing expenses related to Drug C for marketing for the treatment of a 
rare disease or condition different than the one for which the section 
45C credit was claimed in 2010. There was no final IRS assessment or 
court order that disallowed the full credit for Drug C in 2010 or 2012. 
The FDA has not approved Drug C for an indication other than the 
treatment of a rare disease or condition for which a section 45C was 
allowed.
    (ii) Analysis. In 2010 and 2011, Drug C is an orphan drug because: 
first, it was a branded prescription drug for which a person claimed a 
section 45C credit and for which that credit was allowed for a taxable 
year; second, there was not a final assessment or court order 
disallowing the full credit taken for the drug; and third, FDA had not 
approved the drug for marketing for any indication other than the 
treatment of a rare disease or condition for which a section 45C credit 
was allowed. In 2012, Drug C retains its orphan drug status because 
another section 45C credit was allowed and the FDA did not approve Drug 
C for marketing for any indication other than the treatment of another 
rare disease or condition for which a section 45C credit was allowed. 
Thus, Drug C is an orphan drug for the 2013 sales year.

    (l) Sales taken into account. The term sales taken into account 
means branded prescription drug sales after application of the 
percentage adjustment table in section 9008(b)(2) (relating to

[[Page 11]]

annual sales less than $400,000,001). See Sec.  51.5(a)(3).
    (m) Sales year. The term sales year means the second calendar year 
preceding the fee year. Thus, for example, for the fee year of 2014, the 
sales year is 2012.

[T.D. 9684, 79 FR 43639, July 28, 2014, as amended by T.D. 9823, 82 FR 
34612, July 26, 2017]



Sec.  51.3  Information requested from covered entities.

    (a) In general. Annually, each covered entity may submit a completed 
Form 8947, ``Report of Branded Prescription Drug Information,'' in 
accordance with the instructions for the form. Generally, the form 
solicits information from covered entities on NDCs, orphan drugs, 
designated entities, rebates, and other information specified by the 
form or its instructions.
    (b) Due date. Form 8947 must be filed by the date prescribed in 
guidance in the Internal Revenue Bulletin.

[T.D. 9684, 79 FR 43641, July 28, 2014]



Sec.  51.4  Information provided by the agencies.

    (a) In general. For each sales year, the IRS will compile a list of 
branded prescription drugs by NDC using the data submitted on Forms 8947 
and in error reports submitted as part of the dispute resolution process 
(described in Sec.  51.7) and, after applying appropriate due diligence, 
will provide this list to the Agencies. The Agencies will provide data 
to the IRS on branded prescription drug sales that occurred during the 
sales year by Program and NDC. The Agencies will provide data for use in 
preparing the preliminary fee calculation (described in Sec. Sec.  51.5 
and 51.6) and may revise or supplement that data following review of 
error reports submitted as part of the dispute resolution process. The 
calculation methodology for calculating the sales amounts for each 
Program, including any reasonable estimation techniques and assumptions 
that the Agencies expect to use, is described in this section.
    (b) Medicare Part D--(1) In general. CMS will determine branded 
prescription drug sales under Medicare Part D by aggregating the 
ingredient cost reported in the ``Ingredient Cost Paid'' field on the 
Prescription Drug Event (PDE) records at the NDC level, reduced by 
discounts, rebates, and other price concessions provided by the covered 
entity, for each sales year. CMS will only include PDE data that Part D 
sponsors have submitted by the PDE submission deadline (within 6 months 
after the end of the sales year) and that CMS has approved for inclusion 
in the Part D payment reconciliation.
    (2) Discounts, rebates, and other price concessions--(i) In general. 
For purposes of paragraph (b)(1) of this section, the term discounts, 
rebates, and other price concessions means:
    (A) Any direct and indirect remuneration (DIR) (within the meaning 
of paragraph (b)(2)(ii) of this section), which includes any DIR 
reported on the PDE records at the point of sale and any DIR reported on 
a Detailed DIR Report (within the meaning of a paragraph (b)(2)(iii) of 
this section); and
    (B) Any coverage gap discount amount (within the meaning of 
paragraph (b)(2)(iv) of this section).
    (ii) Direct and indirect remuneration. For purposes of paragraph 
(b)(2)(i)(A) of this section, the term direct and indirect remuneration 
(DIR) has the same meaning as found in the definition of actually paid 
in 42 CFR 423.308.
    (iii) Detailed DIR Report. For purposes of paragraph (b)(2)(i)(A) of 
this section, the term Detailed DIR Report means the report containing 
any DIR (within the meaning of paragraph (b)(2)(ii) of this section) 
that is collected yearly from Part D sponsors at the NDC level.
    (iv) Coverage gap discount amount. For purposes of paragraph 
(b)(2)(i)(B) of this section, the term coverage gap discount amount 
means a 50-percent manufactured-paid discount on certain drugs under the 
Coverage Gap Discount Program described in section 1860D-14A of the 
Social Security Act.
    (c) Medicare Part B--(1) In general. CMS will determine branded 
prescription drug sales under Medicare Part B using the following two 
data sources:
    (i) CMS will use data reported by manufacturers pursuant to section 
1847A(c) of the Social Security Act to calculate the annual weighted 
average sales price (ASP) for each Healthcare

[[Page 12]]

Common Procedure Coding System (HCPCS) code for the sales year.
    (ii) CMS will use the Medicare Part B National Summary Data File 
located at http://www.cms.gov/NonIdentifiableDataFiles/
03_PartBNationalSummaryDataFile.asp to obtain the number of allowed 
billing units per HCPCS code for claims incurred during the sales year.
    (2) Calculation--(i) In general. Using the data described in 
paragraph (c)(1) of this section, CMS will determine branded 
prescription drugs sales under Medicare Part B as described in 
paragraphs (c)(3), (4), and (5) of this section. CMS reports sales 
amounts per HCPCS billing code, not per NDC. Therefore, a covered 
entity's total Part B sales amounts for all NDCs in a given HCPCS 
billing code appears under only one NDC in each HCPCS billing code and 
the covered entity's remaining NDCs in the HCPCS billing code are listed 
with a sales amount of zero.
    (ii) Example of a Part B sales report:

------------------------------------------------------------------------
                                                                Part B
                   HCPCS                           NDC          amount
------------------------------------------------------------------------
J9876......................................    12345-6789-01    $789,000
                                               12345-6789-02           0
                                               12345-6789-03           0
                                               12345-6800-80           0
                                               12345-6800-90           0
------------------------------------------------------------------------

    (3) HCPCS code; single entity. For each HCPCS code consisting solely 
and exclusively of branded prescription drugs (as identified by their 
respective NDCs) manufactured by a single entity, CMS will multiply the 
annual weighted ASP by the total number of allowed billing units paid 
during the sales year to determine the total sales for all NDCs 
associated with the HCPCS code attributed to Medicare Part B.
    (4) HCPCS code; multiple manufacturers and/or multiple drugs--(i) 
Step one. For each HCPCS code consisting of a mixture of branded 
prescription drugs made by different manufacturers and/or a mixture of 
branded prescription and generic drugs, CMS will determine--
    (A) The annual weighted ASP for the HCPCS code;
    (B) The total number of allowed billing units paid by Medicare Part 
B for each HCPCS code during the sales year;
    (C) The names of the entities engaged in manufacturing each NDC 
assigned to the HCPCS code; and
    (D) Those entities (if any) identified in paragraph (c)(4)(i)(C) of 
this section that are manufacturing branded prescription drugs assigned 
to the HCPCS code.
    (ii) Step two. Using the information from paragraph (c)(4)(i) of 
this section, CMS will then do the following:
    (A) Calculate the proportion of sales, expressed as a percentage, 
attributed to each NDC assigned to the HCPCS code by determining the 
percentage of total sales reported to CMS by each manufacturer of NDC(s) 
that are assigned to the HCPCS code. For example, if HCPCS code JXXXX 
contains three drugs with a total of $310,000 sales reported by 
manufacturers to CMS for the sales year, and $100,000 was reported for 
Drug A, $200,000 was reported for Drug B, and $10,000 was reported for 
Drug C, the proportion of sales attributed to each NDC will be 32.26 
percent for Drug A, 64.52 percent for Drug B, and 3.22 percent for Drug 
C; and
    (B) For each NDC, multiply the product of the annual weighted ASP 
and the total allowed billing units paid by Medicare Part B for the 
HCPCS code by the proportion of sales calculated in paragraph 
(c)(4)(ii)(A) of this section to determine the sales reportable to the 
IRS (that is, percentage x (annual weighted ASP x allowed units) = total 
sales reported to IRS for the NDC). The sales for each manufacturer's 
NDCs assigned to a HCPCS code are summed and the total sales for each 
manufacturer's NDCs in a HCPCS code will be reported to the IRS.
    (5) HCPCS code; unable to establish a reliable proportion of sales. 
If CMS is unable to establish a reliable proportion of sales 
attributable to each NDC assigned to the HCPCS code using the method 
described in paragraph (c)(4)(ii)(A) of this section, CMS will use 
Medicare Part D utilization percentages in lieu of the proportion of 
sales determined under paragraph (c)(4)(ii)(A) of this section to 
perform the calculation described in paragraph (c)(4)(ii)(B) of this 
section.
    (d) Medicaid. (1) CMS will determine the branded prescription drug 
sales for

[[Page 13]]

Medicaid as the per-unit Average Manufacturer Price (AMP) less the Unit 
Rebate Amounts (URA) that CMS calculates based on manufacturer-reported 
pricing data multiplied by the number of units reported billed by states 
to manufacturers. This data will be based on the data reported to CMS 
for the sales year by covered entities and the states for drugs paid for 
by the states in the Medicaid Drug Rebate Program for the sales year. 
The data will include all branded prescription drug units for which the 
states bill rebates to covered entities under the Medicaid Drug Rebate 
Program. This program includes, but is not limited to, units paid for 
under various health care plans such as fee for service, managed care 
organizations, and drugs administered in a non-retail setting such as 
drugs administered in a physician's office, clinic, hospital or other 
setting. The Medicaid Drug Rebate Program's calculated branded 
prescription drug fee does not include state-only pharmaceutical program 
sales or rebates.
    (2) For any covered entity identified in the first five (or six) 
digits of an NDC during any of the four quarters of a sales year, CMS 
will use the following methodology to derive the sales figures that 
account for third-party payers, such as Medicare Part B:
    (i) Report total dollars per NDC for AMP minus URA multiplied by the 
units reported by a state or states.
    (ii) Determine the percentage of the total amount reimbursed that is 
the Medicaid amount of that reimbursement. For example, if the total 
amount reimbursed is $100,000, and the Medicaid amount reimbursed is 
$20,000, then the percentage is 20 percent.
    (iii) Multiply the percentage of the Medicaid amount of that 
reimbursement (in the example in paragraph (d)(2)(ii) of this section, 
20 percent) by the dollar figure derived from paragraph (d)(2)(i) of 
this section (AMP minus URA multiplied by units) to get the new adjusted 
sales dollar totals.
    (e) Department of Veterans Affairs. VA will determine branded 
prescription drug sales to VA by providing, by NDC, the total amount 
paid (net of refunds and rebates, when they are associated with a 
specific NDC) for each branded prescription drug procured by VA for its 
beneficiaries during the sales year. For this purpose, a drug is 
procured on the invoice (billing) date. The basis of this information 
will be national procurement data reported during the sales year by VA's 
Pharmaceutical Prime Vendor to the VA Pharmacy Benefits Management 
Service and National Acquisition Center. VA sales data includes the 
Industrial Funding Fee and the Cost Recovery Fee because these amounts 
are part of the price VA pays to its Pharmaceutical Prime Vendor to 
procure a drug.
    (f) Department of Defense. DOD will determine branded prescription 
drug sales to DOD (for DOD programs other than the TRICARE retail 
pharmacy program) by providing, by Labeler Code, the manufacturer's 
name, the NDC, brand name, and the amount paid (net of rebates and or 
refunds) for each branded prescription drug procured by DOD (for DOD 
programs other than the TRICARE retail pharmacy program) during the 
sales year. For DOD programs other than the TRICARE retail pharmacy 
program, a drug is procured based upon the date it was ordered. DOD 
includes the Industrial Funding Fee and the Cost Recovery Fee in its 
drug sales data because these amounts are part of the price DOD pays to 
procure a drug.
    (g) TRICARE. DOD will determine branded prescription drug sales to 
DOD for the TRICARE retail pharmacy program by providing, by Labeler 
Code, the manufacturer's name, the NDC, brand name, and the amount paid 
(net of rebates or refunds) for each branded prescription drug procured 
by DOD through the TRICARE retail pharmacy program during the sales 
year. For the TRICARE retail pharmacy program, a drug is procured based 
upon the date it was dispensed. The amount paid is based on the 
submitted ingredient cost paid, aggregated by NDC, for eligible TRICARE 
retail pharmacy claims submitted during the program year, minus any 
refunds or rebates for the corresponding claims.

[T.D. 9684, 79 FR 43641, July 28, 2014; 79 FR 57784, Sept. 26, 2014]



Sec.  51.5  Fee calculation.

    (a) Fee components--(1) In general. For every fee year, the IRS will 
calculate a

[[Page 14]]

covered entity's total fee as described in this section. The IRS will 
determine a covered entity's total fee by applying, if applicable, the 
adjustment amount described in paragraph (e) of this section to the 
entity's allocated fee described in paragraph (d) of this section.
    (2) Calculation of branded prescription drug sales. Each covered 
entity's allocated fee for any fee year is equal to an amount that bears 
the same ratio to the applicable amount as the covered entity's branded 
prescription drug sales taken into account during the sales year bears 
to the aggregate branded prescription drug sales of all covered entities 
taken into account during the sales year.
    (3) Applicable amount. The applicable amounts for fee years are--

------------------------------------------------------------------------
                      Fee year                         Applicable amount
------------------------------------------------------------------------
2011................................................      $2,500,000,000
2012................................................       2,800,000,000
2013................................................       2,800,000,000
2014................................................       3,000,000,000
2015................................................       3,000,000,000
2016................................................       3,000,000,000
2017................................................       4,000,000,000
2018................................................       4,100,000,000
2019 and thereafter.................................       2,800,000,000
------------------------------------------------------------------------

    (4) Sales taken into account. A covered entity's branded 
prescription drug sales taken into account during any calendar year are 
as follows:

------------------------------------------------------------------------
                                                           Percentage of
                                                              branded
 Covered entity's branded prescription drug sales during   prescription
               the calendar year that are:                  drug sales
                                                            taken into
                                                            account is:
------------------------------------------------------------------------
Not more than $5,000,000................................               0
More than $5,000,000 but not more than $125,000,000.....              10
More than $125,000,000 but not more than $225,000,000...              40
More than $225,000,000 but not more than $400,000,000...              75
More than $400,000,000..................................             100
------------------------------------------------------------------------

    (b) Determination of branded prescription drug sales. The IRS will 
compile each covered entity's branded prescription drug sales for each 
Program by NDC. Each NDC will be attributed to the covered entity 
identified in the Labeler Code as of the end of the day on December 31st 
of the sales year. For a covered entity that is a controlled group, this 
includes all NDCs in which a member of the covered entity is identified. 
For this purpose, the IRS may revise the list of NDCs as a result of 
information received in the dispute resolution process, and the data the 
IRS uses to produce the final fee calculation will include any revisions 
provided by the Agencies at the completion of the dispute resolution 
process. Each covered entity's branded prescription drug sales will be 
reduced by its Medicaid state supplemental rebate amounts in the 
following manner. If CMS has Medicaid state supplemental rebate 
information for a sales year, CMS will report to the IRS branded 
prescription drug sales for Medicaid net of Medicaid state supplemental 
rebates. If CMS does not have complete Medicaid state supplemental 
rebate information for a sales year, the IRS will reduce the branded 
prescription drug sales that CMS reported for Medicaid by Medicaid state 
supplemental rebates reported by the covered entities on Form 8947.
    (c) Determination of sales taken into account. (1) For each sales 
year and for each covered entity, the IRS will calculate sales taken 
into account. The resulting number is the numerator of the ratio 
described in paragraph (d)(1) of this section.
    (2) For each sales year, the IRS will calculate the aggregate 
branded prescription drug sales taken into account for all covered 
entities. The resulting number is the denominator of the ratio described 
in paragraph (d)(2) of this section.
    (d) Allocated fee calculation. For each covered entity for each fee 
year, the IRS will calculate the entity's allocated fee by multiplying 
the applicable amount from paragraph (a)(2) of this section by a 
fraction--
    (1) The numerator of which is the covered entity's branded 
prescription drug sales taken into account during the sales year 
(described in paragraph (c)(1) of this section); and
    (2) The denominator of which is the aggregate branded prescription 
drug sales taken into account for all covered entities during the same 
year (described in paragraph (c)(2) of this section).

[[Page 15]]

    (e) Adjustment amount--(1) In general. In addition to the allocated 
fee computed under paragraph (d) of this section, the IRS will also 
automatically calculate for each covered entity an adjustment amount. An 
adjustment amount reflects the difference between the allocated fee 
determined for the covered entity in the immediately preceding fee year, 
using data from the second calendar year preceding that fee year, and 
what the allocated fee would have been for that entity for the 
immediately preceding fee year using data from the calendar year 
immediately preceding that fee year. For example, for 2014, the 
adjustment amount for a covered entity will be the difference between 
the entity's 2013 allocated fee, using 2011 data, and what the 2013 
allocated fee would have been using 2012 data. Although the adjustment 
reflects a revision of the prior year's fee based on data from the year 
immediately preceding the prior fee year, the adjustment is only taken 
into account by adding it to or subtracting it from the allocated fee 
computed under paragraph (d) of this section for the current fee year to 
arrive at the total fee for the current fee year. An adjustment amount 
is treated as a component of the current year's fee. For purposes of 
section 6601, any increase in the allocated fee computed under paragraph 
(d) of this section for the current fee year resulting from any 
adjustment amount, along with the remainder of the fee, is treated as a 
fee liability due on the due date for the current year's fee. For 
purposes of sections 6511 and 6611, any adjustment amount that decreases 
the allocated fee computed under paragraph (d) of this section for the 
current fee year is treated as a payment towards the current fee 
liability made on the due date of the current fee year.
    (2) Amounts paid to a covered entity because of an adjustment 
amount. If a covered entity's adjustment amount reduces the fee computed 
under paragraph (d) of this section below zero and results in an amount 
due to the covered entity for the fee year, the IRS will pay this amount 
due to the covered entity. A covered entity does not file Form 843, 
Claim for Refund and Request for Abatement, to receive this amount owed 
to a covered entity.

[T.D. 9684, 79 FR 43643, July 28, 2014]



Sec.  51.6  Notice of preliminary fee calculation.

    (a) Content of notice. For each sales year, the IRS will make a 
preliminary calculation of the fee for each covered entity as described 
in Sec.  51.5. The IRS will notify each covered entity of its 
preliminary fee calculation for that sales year. The notification to a 
covered entity of its preliminary fee calculation will include--
    (1) The covered entity's allocated fee;
    (2) The covered entity's branded prescription drug sales, by NDC, by 
Program;
    (3) The covered entity's branded prescription drug sales taken into 
account after application of Sec.  51.5(a)(4);
    (4) The aggregate branded prescription drug sales taken into account 
for all covered entities;
    (5) The covered entity's adjustment amount calculated as described 
in Sec.  51.5(e); and
    (6) A reference to the fee dispute resolution procedures set forth 
in guidance published in the Internal Revenue Bulletin.
    (b) Time of notice. The IRS will send each covered entity notice of 
its preliminary fee calculation by the date prescribed in guidance 
published in the Internal Revenue Bulletin.

[T.D. 9684, 79 FR 43644, July 28, 2014]



Sec.  51.7  Dispute resolution process.

    (a) In general. Upon receipt of its preliminary fee calculation, 
each covered entity will have an opportunity to dispute this calculation 
by submitting to the IRS an error report as described in this section. 
The IRS will provide its final determination with respect to error 
reports no later than the time the IRS provides a covered entity with a 
final fee calculation.
    (b) Error report information. To assert that there have been one or 
more errors in the drug sales data reported by a Program, the 
mathematical calculation of the fee, the rebate data, the listing of an 
NDC for an orphan drug, or any other error, a covered entity must submit 
an error report with each

[[Page 16]]

asserted error reported on a separate line. The report must include the 
following information--
    (1) Entity name, address, and Employer Identification Number (EIN) 
as previously reported on the Form 8947;
    (2) The name, telephone number, fax number, and email address (if 
available) of one or more employees or representatives of the entity 
with whom the IRS may discuss the claimed errors. If the representative 
is not an employee of the covered entity who is authorized under section 
6103 or designated on Form 8947 to discuss the information reported on 
Form 8947 with the IRS, a Form 2848, ``Power of Attorney and Declaration 
of Representative,'' must be filed with the error report;
    (3) For an error in the drug sales data reported by a Program, the 
name of the Program that reported the data, the NDC, the specific amount 
of sales data disputed, the proposed corrected amount, an explanation of 
why the Agency should use the proposed corrected data instead, and 
documentation of any Program drug sales data or other information used 
to establish the existence of any errors.
    (4) For a mathematical calculation error, the specific calculation 
element(s) that the entity disputes and its proposed corrected 
calculation;
    (5) For a rebate data error, the NDC for the drug to which it 
relates; a discussion of whether the data used in the preliminary fee 
calculation matches previously reported Form 8947 data on rebates; and, 
if the data used in the preliminary fee calculation does match the Form 
8947 data, an explanation of why the Form 8947 data was erroneous and 
why the IRS should use the proposed corrected data instead;
    (6) For the listing of an NDC for an orphan drug, the name and NDC 
of the orphan drug; a discussion of whether the data used in the 
preliminary fee calculation matches previously reported Form 8947 data 
on orphan drugs; and, if the data used in the preliminary fee 
calculation does match the Form 8947 data, an explanation of why the 
Form 8947 data was erroneous and why the IRS should use the proposed 
corrected data instead;
    (7) For any other asserted error, an explanation of the nature of 
the error, how the error affects the fee calculation, an explanation of 
how the entity established that an error occurred, the proposed 
correction to the error, and an explanation of why the IRS or Agency 
should use the proposed corrected data instead;
    (8) If an entity is using data to establish the existence of an 
error and that data was not reported on Form 8947 or contained in the 
notification of the preliminary fee calculation, a description of what 
the data is, how the entity acquired the data, and who maintains it; and
    (9) Documentation of any rebate and orphan drug data, or other 
information used to establish the existence of any errors.
    (c) Form, manner, and timing of submission. Each covered entity must 
submit its error report(s) in the form and manner that is prescribed in 
guidance published in the Internal Revenue Bulletin. This guidance will 
also prescribe the date by which each covered entity must submit its 
report(s).
    (d) Finality. A covered entity must assert any basis for contesting 
its preliminary fee calculation during the dispute resolution period. In 
the interest of providing finality to the fee calculation process, the 
IRS will not accept an error report after the end of the dispute 
resolution period or alter the final fee calculation on the basis of 
information provided after the end of the dispute resolution period.

[T.D. 9684, 79 FR 43644, July 28, 2014]



Sec.  51.8  Notification and payment of fee.

    (a) Notification of final fee calculation. No later than August 31st 
of each fee year, the IRS will send each covered entity its final fee 
calculation for that year. In any fee year, the IRS will base its final 
fee calculation on data provided to it by the Agencies as adjusted 
pursuant to the dispute resolution process. The notification to a 
covered entity of its final fee calculation will include--
    (1) The covered entity's allocated fee;
    (2) The covered entity's adjustment amount calculated as described 
in Sec.  51.5;

[[Page 17]]

    (3) The covered entity's branded prescription drug sales, by NDC, by 
Program;
    (4) The covered entity's branded prescription drug sales taken into 
account after application of Sec.  51.5(a)(4);
    (5) The aggregate branded prescription drug sales taken into account 
for all covered entities; and
    (6) The final determination with respect to error reports.
    (b) Differences in preliminary fee calculation and final fee 
calculation. A covered entity's final fee calculation may differ from 
the covered entity's preliminary fee calculation because of changes made 
pursuant to the dispute resolution process described in Sec.  51.7. Even 
if a covered entity did not file an error report described in Sec.  
51.7, a covered entity's final fee may differ from a covered entity's 
preliminary fee because of a change in data reported by the Agencies 
after resolution of error reports, including a change in the aggregate 
prescription drug sales figure. A change in aggregate prescription drug 
sales data can affect each covered entity's fee because each covered 
entity's fee is a fraction of the aggregate fee collected from all 
covered entities. A covered entity's final fee may also differ from its 
preliminary fee calculation because the data used in the preliminary fee 
calculation may have contained inaccurate branded prescription drug 
sales information that was corrected or updated at the conclusion of the 
dispute resolution process.
    (c) Payment of final fee. Each covered entity must pay its final fee 
by September 30th of the fee year. For a controlled group, the payment 
must be made using the designated entity's EIN as reported on Form 8947. 
The fee must be paid by electronic funds transfer as required by Sec.  
51.6302-1. There is no tax return to be filed for the fee.
    (d) Joint and several liability. In the case of a controlled group 
that is liable for the fee, all members of the controlled group are 
jointly and severally liable for the fee. Accordingly, if a controlled 
group's fee is not paid, the IRS will separately assess each member of 
the group for the full amount of the controlled group's fee.

[T.D. 9684, 79 FR 43644, July 28, 2014]



Sec.  51.9  Tax treatment of fee.

    (a) Treatment as an excise tax. The fee imposed by section 9008 is 
treated as an excise tax for purposes of subtitle F of the Internal 
Revenue Code (Code) (sections 6001-7874). Thus, references in subtitle F 
to ``taxes imposed by this title,'' ``internal revenue tax,'' and 
similar references, are also references to the fee imposed by section 
9008. For example, the fee imposed by section 9008 is assessed (section 
6201), collected (sections 6301, 6321, and 6331), enforced (section 7402 
and 7403), subject to examination and summons (section 7602), and 
subject to confidentiality rules (section 6103) in the same manner as 
taxes imposed by the Code.
    (b) Deficiency procedures. The deficiency procedures of sections 
6211-6216 do not apply to the fee imposed by section 9008.
    (c) Limitation on assessment. The IRS must assess the amount of the 
fee for any fee year within three years of September 30th of that fee 
year.
    (d) Application of section 275. The fee is treated as a tax 
described in section 275(a)(6) (relating to taxes for which no deduction 
is allowed).

[T.D. 9684, 79 FR 43645, July 28, 2014]



Sec.  51.10  Refund claims.

    Any claim for a refund of the fee must be made by the person that 
paid the fee to the government and must be made on Form 843, ``Claim for 
Refund and Request for Abatement,'' in accordance with the instructions 
for that form.

[T.D. 9684, 79 FR 43645, July 28, 2014]



Sec.  51.11  Applicability date.

    (a) Except as otherwise provided in this section, Sec. Sec.  51.1 
through 51.10 apply on and after July 28, 2014.
    (b) Section 51.2(e)(3) applies on and after July 24, 2017.

[T.D. 9684, 79 FR 43645, July 28, 2014, as amended by T.D. 9823, 82 FR 
34612, July 26, 2017]



Sec.  51.6302-1  Method of paying the branded prescription drug fee.

    (a) Fee to be paid by electronic funds transfer. Under the authority 
of section

[[Page 18]]

6302(a), the fee imposed on branded prescription drug sales by section 
9008 and Sec.  51.5 must be paid by electronic funds transfer as defined 
in Sec.  31.6302-1(h)(4)(i) of this title, as if the fee were a 
depository tax. For the time for paying the fee, see Sec.  51.8.
    (b) Effective/applicability date. This section applies on and after 
July 28, 2014.

[T.D. 9684, 79 FR 43645, July 28, 2014]



PART 52_ENVIRONMENTAL TAXES--Table of Contents



Sec.
52.0-1 Introduction.
52.4681-1 Taxes imposed with respect to ozone-depleting chemicals.
52.4682-1 Ozone-depleting chemicals.
52.4682-2 Qualifying sales.
52.4682-3 Imported taxable products.
52.4682-4 Floor stocks tax.
52.4682-5 Exports.

    Authority: 26 U.S.C. 7805.
    Section 52.4682-3 also issued under 26 U.S.C. 4682(c)(2);
    Section 52.4682-5 also issued under 26 U.S.C. 4662(e)(4).



Sec.  52.0-1  Introduction.

    The regulations in this part 52 are designated ``Environmental Tax 
Regulations.'' The regulations relate to the environmental taxes imposed 
by chapter 38 of the Internal Revenue Code. See part 40 of this chapter 
for regulations relating to returns, payments, and deposits of taxes 
imposed by chapter 38.

[T.D. 8442, 57 FR 48186, Oct. 22, 1992]



Sec.  52.4681-1  Taxes imposed with respect to ozone-depleting chemicals.

    (a) Taxes imposed. Sections 4681 and 4682 impose the following taxes 
with respect to ozone-depleting chemicals (ODCs):
    (1) Tax on ODCs. Section 4681(a)(1) imposes a tax on ODCs that are 
sold or used by the manufacturer or importer thereof. Except as 
otherwise provided in Sec.  52.4682-1 (relating to the tax on ODCs), the 
amount of the tax is equal to the product of--
    (i) The weight (in pounds) of the ODC;
    (ii) The base tax amount (determined under section 4681(b)(1) (B) or 
(C)) for the calendar year in which the sale or use occurs; and
    (iii) The ozone-depletion factor (determined under section 4682(b)) 
for the ODC.
    (2) Tax on imported taxable products. Section 4681(a)(2) imposes a 
tax on imported taxable products that are sold or used by the importer 
thereof. Except as otherwise provided in Sec.  52.4682-3 (relating to 
the tax on imported taxable products), the tax is computed by reference 
to the weight of the ODCs used as materials in the manufacture of the 
product. The amount of tax is equal to the tax that would have been 
imposed on the ODCs under section 4681(a)(1) if the ODCs had been sold 
in the United States on the date of the sale or use of the imported 
product. The weight of such ODCs is determined under Sec.  52.4682-3.
    (3) Floor stocks tax--(i) Imposition of tax. Section 4682(h) imposes 
a floor stocks tax on ODCs that--
    (A) Are held by any person other than the manufacturer or importer 
of the ODC on a date specified in paragraph (a)(3)(ii) of this section; 
and
    (B) Are held on such date for sale or for use in further 
manufacture.
    (ii) Dates on which tax imposed. The floor stocks tax is imposed on 
January 1 of each calendar year after 1989.
    (iii) Amount of tax. Except as otherwise provided in Sec.  52.4682-4 
(relating to the floor stocks tax), the amount of the floor stocks tax 
is equal to the excess of--
    (A) The tax that would be imposed on the ODC under section 
4681(a)(1) if a sale or use of the ODC by its manufacturer or importer 
occurred on the date the floor stocks tax is imposed (the tentative tax 
amount), over
    (B) The sum of the taxes previously imposed (if any) on the ODC 
under sections 4681 and 4682.
    (b) Cross-references--(1) Tax on ODCs. Additional rules relating to 
the tax on ODCs are contained in Sec. Sec.  52.4682-1 and 52.4682-2.
    (2) Tax on imported taxable products. Additional rules relating to 
the tax on imported taxable products are contained in Sec.  52.4682-3.
    (3) Floor stocks tax. Additional rules relating to the floor stocks 
tax are contained in Sec.  52.4682-4.

[[Page 19]]

    (4) Returns, payments, and deposits of tax. Rules requiring returns 
reporting the taxes imposed by sections 4681 and 4682 are contained in 
part 40 of this chapter. Part 40 of this chapter also provides rules 
relating to the use of Government depositaries and to the time for 
filing returns and making payments of tax.
    (c) Definitions of general application. The following definitions 
set forth the meaning of certain terms for purposes of the regulations 
under sections 4681 and 4682:
    (1) Ozone-depleting chemical. The term ``ozone-depleting chemical'' 
(ODC) means any chemical listed in section 4682(a)(2).
    (2) United States. The term ``United States'' has the meaning given 
such term by section 4612(a)(4). Under section 4612(a)(4)--
    (i) The term ``United States'' means the 50 States, the District of 
Columbia, the Commonwealth of Puerto Rico, any possession of the United 
States, the Commonwealth of the Northern Mariana Islands, and the Trust 
Territory of the Pacific Islands; and
    (ii) The term includes--
    (A) Submarine seabed and subsoil that would be treated as part of 
the United States (as defined in paragraph (c)(2)(i) of this section) 
under the principles of section 638 relating to continental shelf areas; 
and
    (B) Foreign trade zones of the United States.
    (3) Manufacture; manufacturer. The term ``manufacture'' when used 
with respect to any ODC or imported product includes its production, and 
the term ``manufacturer'' includes a producer.
    (4) Entry into United States for consumption, use, or warehousing--
(i) In general. Except as otherwise provided in this paragraph (c)(4), 
the term ``entered into the United States for consumption, use, or 
warehousing'' when used with respect to any goods means--
    (A) Brought into the customs territory of the United States (the 
customs territory) if applicable customs law requires that the goods be 
entered into the customs territory for consumption, use, or warehousing;
    (B) Admitted into a foreign trade zone for any purpose if like goods 
brought into the customs territory for such purpose would be entered 
into the customs territory for consumption, use, or warehousing; or
    (C) Imported into any other part of the United States (as defined in 
paragraph (c)(2) of this section) for any purpose if like goods brought 
into the customs territory for such purpose would be entered into the 
customs territory for consumption, use, or warehousing.
    (ii) Entry for transportation and exportation. Goods entered into 
the customs territory for transportation and exportation are not goods 
entered for consumption, use, or warehousing.
    (iii) Entries described in two or more provisions. In the case of 
any goods with respect to which entries are described in two or more 
provisions of paragraph (c)(4)(i) of this section, only the first such 
entry is taken into account. Thus, if the admission of goods into a 
foreign trade zone is an entry into the United States for consumption, 
use, or warehousing, the subsequent entry of such goods into the customs 
territory will not be treated as an entry into the United States for 
consumption, use, or warehousing.
    (iv) Certain imported products not entered for consumption, use, or 
warehousing. Imported products that are entered into the United States 
for consumption, use, or warehousing do not include any imported 
products that--
    (A) Are entered into the customs territory under Harmonized Tariff 
Schedule (HTS) heading 9801, 9802, 9803, or 9813;
    (B) Would, if entered into the customs territory, be entered under 
any such heading; or
    (C) Are brought into the United States by an individual if the 
product is brought in for use by the individual and is not expected to 
be used in a trade or business other than a trade or business of 
performing services as an employee.
    (5) Importer. The term ``importer'' means the person that first 
sells or uses goods after their entry into the United States for 
consumption, use, or warehousing (within the meaning of paragraph (c)(4) 
of this section).

[[Page 20]]

    (6) Sale. The term ``sale'' means the transfer of title or of 
substantial incidents of ownership (whether or not delivery to, or 
payment by, the buyer has been made) for consideration which may include 
money, services, or property. The determination as to the time a sale 
occurs shall be made under applicable local law.
    (7) Use--(i) In general. Except as otherwise provided in regulations 
under sections 4681 and 4682, ODCs and imported taxable products are 
used when they are--
    (A) Used as a material in the manufacture of an article, whether by 
incorporation into such article, chemical transformation, release into 
the atmosphere, or otherwise; or
    (B) Put into service in a trade or business or for production of 
income.
    (ii) Loss, destruction, packaging, warehousing, and repair. The 
loss, destruction, packaging (including repackaging), warehousing, or 
repair of ODCs and imported taxable products is not a use of the ODC or 
product lost, destroyed, packaged, warehoused, or repaired.
    (iii) Cross-references to exceptions. For exceptions to the rule 
contained in paragraph (c)(7)(i) of this section, see--
    (A) Section 52.4682-1(b)(2)(iii) (relating to mixture elections), 
Sec.  52.4682-1(b)(2)(iv) (relating to mixtures for export), and Sec.  
52.4682-1(b)(2)(v) (relating to mixtures for use as a feedstock);
    (B) Section 52.4682-3(c)(2) (relating to the election to treat entry 
of an imported taxable product as use); and
    (C) Section 52.4682-3(c)(3) (relating to treating sale of an article 
incorporating an imported taxable product as the first sale or use of 
the product).
    (8) Pound. The term ``pound'' means a unit of weight that is equal 
to 16 avoirdupois ounces.
    (9) Post-1990 ODC; post-1989 ODC. The term ``post-1990 ODC'' means 
any ODC that is listed below Halon-2402 in the table contained in 
section 4682(a)(2). The term ``post-1989 ODC'' means any ODC other than 
a post-1990 ODC.
    (d) Effective date. Sections 52.4681-0, 52.4681-1, 52.4682-1, 
52.4682-2, 52.4682-3, and 52.4682-4 are effective as of January 1, 1990, 
and apply to--
    (1) Post-1989 ODCs that the manufacturer or importer thereof first 
sells or uses after December 31, 1989, and post-1990 ODCs that the 
manufacturer or importer thereof first sells or uses after December 31, 
1990;
    (2) Imported taxable products that the importer thereof first sells 
or uses after December 31, 1989 (but, in the case of products first sold 
or used before January 1, 1991, by taking into account only the post-
1989 ODCs used as materials in their manufacture); and
    (3) Post-1989 ODCs held for sale or for use in further manufacture 
by any person other than the manufacturer or importer thereof on January 
1, 1990, and post-1989 and post-1990 ODCs that are so held on January 1 
of each calendar year after 1990.

[T.D. 8370, 56 FR 56305, Nov. 4, 1991, as amended by T.D. 8442, 57 FR 
48186, Oct. 22, 1992; T.D. 8622, 60 FR 52849, Oct. 11, 1995]



Sec.  52.4682-1  Ozone-depleting chemicals.

    (a) Overview. This section provides rules relating to the tax 
imposed on ozone-depleting chemicals (ODCs) under section 4681, 
including rules for identifying taxable ODCs and determining when the 
tax is imposed, and rules prescribing special treatment for certain 
ODCs. See Sec.  52.4681-1(a)(1) and (c) for general rules and 
definitions relating to the tax on ODCs.
    (b) Taxable ODCs; taxable event--(1) Taxable ODCs--(i) In general. 
Except as provided in paragraphs (c) through (g) of this section, an ODC 
is taxable if--
    (A) It is listed in section 4682(a)(2) on the date it is sold or 
used by its manufacturer or importer; and
    (B) It is manufactured in the United States or entered into the 
United States for consumption, use, or warehousing.
    (ii) Storage containers. An ODC described in paragraph (b)(1)(i) of 
this section is taxable without regard to the type or size of storage 
container in which the ODC is held.
    (iii) Example. The application of this paragraph (b)(1) may be 
illustrated by the following example:

    Example. A brings CFC-12, an ODC listed in section 4682(a)(2), into 
the customs territory and enters the CFC-12 for transportation and 
exportation. The ODC is not taxable because it is not entered for 
consumption, use, or warehousing. The ODC also would not be taxable if 
it were admitted to a foreign trade

[[Page 21]]

zone (rather than brought into the customs territory) for transportation 
and exportation.

    (2) Taxable event--(i) In general--(A) General rule. The tax on an 
ODC is imposed when the ODC is first sold or used (as defined in Sec.  
52.4681-1(c)(6) and (7)) by its manufacturer or importer.
    (B) Example. The application of this paragraph (b)(2)(i) may be 
illustrated by the following example:

    Example. A enters CFC-113, an ODC listed in section 4682(a)(2), into 
the United States for consumption, use, or warehousing. A warehouses the 
CFC-113 and then decides to ship the ODC to its factory outside the 
United States (as defined in Sec.  52.4681-1 (c)(2)). The CFC-113 is a 
taxable ODC because the requirements of paragraph (b)(1)(i) of this 
section have been met. However, tax is not imposed on the ODC because 
there is no taxable event. A did not sell the ODC and, under Sec.  
52.4681-1(c)(7), warehousing is not a use.

    (ii) Mixtures. Except as provided in paragraphs (b)(2)(iii), (iv), 
and (v) of this section, the creation of a mixture containing two or 
more ingredients is treated as a taxable use of the ODCs contained in 
the mixture. For this purpose, a mixture cannot be represented by a 
chemical formula, and an ODC is contained in a mixture only if the 
chemical identity of the ODC is not changed. Thus, except as provided in 
paragraphs (b)(2)(iii), (iv), and (v) of this section--
    (A) The tax on the post-1989 ODCs (as defined in Sec.  52.4681-
1(c)(9)) contained in mixtures created after December 31, 1989, or on 
the post-1990 ODCs (as defined in Sec.  52.4681-1(c)(9)) contained in 
mixtures created after December 31, 1990, is imposed when the mixture is 
created and not on any subsequent sale or use of the mixture; and
    (B) No tax is imposed under section 4681 on the post-1989 ODCs 
contained in mixtures created before January 1, 1990, or on the post-
1990 ODCs contained in mixtures created before January 1, 1991.
    (iii) Mixture elections--(A) Permitted elections. The only elections 
permitted under this paragraph (b)(2)(iii) are--
    (1) An election for the first calendar quarter beginning after 
December 31, 1989, and all subsequent periods (the 1990 election); and
    (2) An election for the first calendar quarter beginning after 
December 31, 1990, and all subsequent periods (the 1991 election).
    (B) In general. A manufacturer or importer may elect to treat the 
sale or use of mixtures containing ODCs as the first sale or use of the 
ODCs contained in the mixtures. If a 1990 election is made under this 
paragraph (b)(2)(iii), the tax on post-1989 ODCs contained in a mixture 
sold or used after December 31, 1989 (including any such mixture created 
before January 1, 1990) is imposed on the date of such sale or use. 
Similarly, if a 1991 election is made under this paragraph (b)(2)(iii), 
the tax on post-1990 ODCs contained in a mixture sold or used after 
December 31, 1990 (including any such mixture created before January 1, 
1991) is imposed on the date of such sale or use.
    (C) Applicability of elections. An election under this paragraph 
(b)(2)(iii) applies--
    (1) In the case of a 1990 election, to all post-1989 ODCs contained 
in mixtures sold or used by the manufacturer or importer after December 
31, 1989 (including any such mixture created before January 1, 1990); 
and
    (2) In the case of a 1991 election, to all post-1990 ODCs contained 
in mixtures sold or used by the manufacturer or importer after December 
31, 1990 (including any such mixture created before January 1, 1991).
    (D) Making the election; revocation. An election under this 
paragraph (b)(2)(iii) shall be made in accordance with the instructions 
for the return on which the manufacturer or importer reports liability 
for tax under section 4681. After October 9, 1990, the election may be 
revoked only with the consent of the Commissioner.
    (iv) Special rule for exports. The creation of a mixture for export 
is not a taxable use of the ODCs contained in the mixture. If a 
manufacturer or importer sells a mixture for export, Sec.  52.4682-5 
applies to the ODCs contained in the mixture. See Sec.  52.4682-5(e) for 
rules relating to liability of a purchaser for tax if the mixture is not 
exported.
    (v) Special rule for use as a feedstock. The creation of a mixture 
for use as a

[[Page 22]]

feedstock (within the meaning of paragraph (c) of this section) is not a 
taxable use of the ODCs contained in the mixture.
    (c) ODCs used as a feedstock--(1) Exemption from tax. No tax is 
imposed on an ODC if the manufacturer or importer of the ODC--
    (i) Uses the ODC as a feedstock in the manufacture of another 
chemical; or
    (ii) Sells the ODC in a qualifying sale (within the meaning of 
paragraph (c)(4) of this section) for use as a feedstock.
    (2) Excess payments--(i) In general. Under section 4682(d)(2)(B), a 
credit or refund is allowed to a person if--
    (A) The person uses an ODC as a feedstock; and
    (B) The amount of any tax paid with respect to the ODC under section 
4681 or 4682 was not determined under section 4682(d)(2)(A).
    (ii) Procedural rules. See section 6402 and the regulations 
thereunder for rules relating to claiming a credit or refund of tax paid 
with respect to ODCs that are used as a feedstock. A credit against the 
income tax is not allowed for the amount determined under section 
4682(d)(2)(B).
    (3) Definition. An ODC is used as a feedstock only if the ODC is 
entirely consumed (except for trace amounts) in the manufacture of 
another chemical. Thus, the transformation of an ODC into one or more 
new compounds (such as the transformation of CFC-113 into 
chlorotrifluoroethylene (CTFE or 1113), of CFC-113 into CFC-115 and CFC-
116, or of carbon tetrachloride into hydrochloric acid during petroleum 
refining or incineration) is treated as use as a feedstock. On the other 
hand, the ODCs used in a mixture (including an azeotrope such as R-500 
or R-502) are not used as a feedstock.
    (4) Qualifying sale. A sale of ODCs for use as a feedstock is a 
qualifying sale if the requirements of Sec.  52.4682-2(b)(1) are 
satisfied with respect to such sale.
    (d) ODCs used in the manufacture of rigid foam insulation--(1) 
Phase-in of tax--(i) In general. The amount of tax imposed on an ODC is 
determined under section 4682(g) if the manufacturer or importer of the 
ODC--
    (A) Uses the ODC during 1990, 1991, 1992, or 1993 in the manufacture 
of rigid foam insulation; or
    (B) Sells the ODC in a qualifying sale (within the meaning of 
paragraph (d)(5) of this section) during 1990, 1991, 1992, or 1993.
    (ii) Amount of tax. Under section 4682(g), ODCs described in 
paragraph (d)(1)(i) of this section are not taxed if sold or used during 
1990 and are taxed at a reduced rate if sold or used during 1991, 1992, 
or 1993.
    (2) Excess payments--(i) In general. Under section 4682(g)(3), a 
credit against income tax or a refund is allowed to a person if--
    (A) The person uses an ODC during 1990, 1991, 1992, or 1993 in the 
manufacture of rigid foam insulation; and
    (B) The amount of any tax paid with respect to the ODC under section 
4681 or 4682 was not determined under section 4682(g).
    (ii) Procedural rules--(A) The amount determined under section 
4682(g)(3) shall be treated as a credit described in section 34(a) 
(relating to credits for gasoline and special fuels) unless a claim for 
refund has been filed.
    (B) See section 6402 and the regulations thereunder for rules 
relating to claiming a credit or refund of the tax paid with respect to 
ODCs that are used in the manufacture of rigid foam insulation.
    (3) Definition--(i) Rigid foam insulation. The term ``rigid foam 
insulation'' means any rigid foam that is designed for use as thermal 
insulation in buildings, equipment, appliances, tanks, railcars, trucks, 
or vessels, or on pipes, including any such rigid foam actually used for 
purposes other than insulation. Information such as test reports on R-
values and advertising material reflecting R-value claims for a 
particular rigid foam may be used to show that such rigid foam is 
designed for use as thermal insulation.
    (ii) Rigid foam--(A) In general. The term ``rigid foam'' means any 
closed cell polymeric foam (whether or not rigid) in which 
chlorofluorocarbons are used to fill voids within the polymer.
    (B) Examples of rigid foam products. Rigid foam includes extruded 
polystyrene foam, polyisocyanurate foam, spray and pour-in-place 
polyurethane foam, polyethylene foam, phenolic foam, and any other 
product that the Commissioner identifies as rigid foam

[[Page 23]]

in a pronouncement of general applicability. The form of a product 
identified under this paragraph (d)(3)(ii)(B) does not affect its 
character as rigid foam. Thus, such products are rigid foam whether in 
the form of a board, sheet, backer rod, or wrapping, or in a form 
applied by spraying, pouring, or frothing.
    (4) Use in manufacture. An ODC is used in the manufacture of rigid 
foam insulation if it is incorporated into such product or is expended 
as a propellant or otherwise in the manufacture or application of such 
product.
    (5) Qualifying sale. A sale of an ODC for use in the manufacture of 
rigid foam insulation is a qualifying sale if the requirements of Sec.  
52.4682-2(b)(2) are satisfied with respect to such sale.
    (e) Halons; phase-in of tax. The amount of tax imposed on Halon-
1211, Halon-1301, or Halon-2402 (Halons) is determined under section 
4682(g) if the manufacturer or importer of Halons sells or uses Halons 
during 1990, 1991, 1992, or 1993. Under section 4682(g), Halons are not 
taxed if sold or used during 1990 and are taxed at a reduced rate if 
sold or used during 1991, 1992, or 1993.
    (f) Methyl chloroform; reduced rate of tax in 1993. The amount of 
tax imposed on methyl chloroform is determined under section 4682(g)(5) 
if the manufacturer or importer of the methyl chloroform sells or uses 
it during 1993.
    (g) ODCs used as medical sterilants--(1) Phase-in of tax. The amount 
of tax imposed on an ODC is determined under section 4682(g)(4) if the 
manufacturer or importer of the ODC--
    (i) Uses the ODC during 1993 as a medical sterilant; or
    (ii) Sells the ODC in a qualifying sale (within the meaning of 
paragraph (g)(4) of this section) during 1993.
    (2) Excess payments--(i) In general. Under section 4682(g)(4)(B), a 
credit against income tax (without interest) or a refund of tax (without 
interest) is allowed to a person if--
    (A) The person uses an ODC during 1993 as a medical sterilant; and
    (B) The amount of any tax paid with respect to the ODC under section 
4681 or 4682 exceeds the amount that would have been determined under 
section 4682(g)(4).
    (ii) Amount of credit or refund. The amount of credit or refund of 
tax is equal to the excess of--
    (A) The tax that was paid with respect to the ODCs under sections 
4681 and 4682; over
    (B) The tax that would have been imposed under section 4682(g)(4).
    (iii) Procedural rules. (A) The amount determined under section 
4682(g)(4)(B) and paragraph (g)(2)(ii) of this section is treated as a 
credit described in section 34(a) (relating to credits for gasoline and 
special fuels) unless a claim for refund has been filed.
    (B) See section 6402 and the regulations under that section for 
procedural rules relating to claiming a credit or refund of tax.
    (3) Definition of use as a medical sterilant. An ODC is used as a 
medical sterilant if it is used in the manufacture of sterilant gas.
    (4) Qualifying sale. A sale of an ODC for use as a medical sterilant 
is a qualifying sale if the requirements of Sec.  52.4682-2(b)(3) are 
satisfied with respect to the sale.
    (h) ODCs used as propellants in metered-dose inhalers--(1) Reduced 
rate of tax. The amount of tax imposed on an ODC is determined under 
section 4682(g)(4) if the manufacturer or importer of the ODC--
    (i) Uses the ODC after 1992 as a propellant in a metered-dose 
inhaler; or
    (ii) Sells the ODC in a qualifying sale (within the meaning of 
paragraph (h)(4) of this section) after 1992.
    (2) Excess payments--(i) In general. Under section 4682(g)(4)(B), a 
credit against income tax (without interest) or a refund of tax (without 
interest) is allowed to a person if--
    (A) The person uses an ODC after 1992 as a propellant in a metered-
dose inhaler; and
    (B) The amount of any tax paid with respect to the ODC under section 
4681 or 4682 exceeds the amount that would have been determined under 
section 4682(g)(4).
    (ii) Amount of credit or refund. The amount of credit or refund of 
tax is equal to the excess of--
    (A) The tax that was paid with respect to the ODCs under sections 
4681 and 4682; over

[[Page 24]]

    (B) The tax that would have been imposed under section 4682(g)(4).
    (iii) Procedural rules--(A) The amount determined under section 
4682(g)(4)(B) and paragraph (h)(2)(ii) of this section is treated as a 
credit described in section 34(a) (relating to credits for gasoline and 
special fuels) unless a claim for refund has been filed.
    (B) See section 6402 and the regulations under that section for 
procedural rules relating to claiming a credit or refund of tax.
    (3) Definition of metered-dose inhaler. A metered-dose inhaler is an 
aerosol device that delivers a precisely-measured dose of a therapeutic 
drug.
    (4) Qualifying sale. A sale of an ODC for use as a propellant for a 
metered-dose inhaler is a qualifying sale if the requirements of Sec.  
52.4682-2(b)(4) are satisfied with respect to the sale.
    (i) [Reserved]
    (j) Exports; cross-reference. For the treatment of exports of ODCs, 
see Sec.  52.4682-5.
    (k) Recycling. [Reserved]

[T.D. 8370, 56 FR 56307, Nov. 4, 1991, as amended by T.D. 8622, 60 FR 
52849, Oct. 11, 1995]



Sec.  52.4682-2  Qualifying sales.

    (a) In general--(1) Special rules applicable to certain sales. 
Special rules apply to sales of ODCs in the following cases:
    (i) Under section 4682(d)(2), Sec.  52.4682-1(c), and Sec.  52.4682-
4(b)(2)(v) (relating to ODCs used as a feedstock), ODCs sold in 
qualifying sales are not taxed.
    (ii) Under section 4682(g), Sec.  52.4682-1(d), and Sec.  52.4682-
4(d)(2) (relating to ODCs used in the manufacture of rigid foam 
insulation), ODCs sold in qualifying sales are not taxed in 1990 and are 
taxed at a reduced rate in 1991, 1992, and 1993.
    (iii) Under section 4682(g)(4) and Sec.  52.4682-1(g) (relating to 
ODCs used as medical sterilants), ODCs sold in qualifying sales are 
taxed at a reduced rate in 1993.
    (iv) Under section 4682(g)(4) and Sec.  52.4682-1(h) (relating to 
ODCs used as propellants in metered-dose inhalers), ODCs sold in 
qualifying sales are taxed at a reduced rate in years after 1992.
    (2) Qualifying sales. A sale of ODCs is not a qualifying sale unless 
the requirements of this section are satisfied. Although registration 
with the Internal Revenue Service is not required to establish that a 
sale of ODCs is a qualifying sale, the certificates required by this 
section shall be made available for inspection by internal revenue 
agents and officers.
    (b) Requirements for qualification--(1) Use as a feedstock. A sale 
of ODCs is a qualifying sale for purposes of Sec. Sec.  52.4682-1(c) and 
52.4682-4(b)(2)(v) if the manufacturer or importer of the ODCs--
    (i) Obtains a certificate in substantially the form set forth in 
paragraph (d)(2) of this section from the purchaser of the ODCs; and
    (ii) Relies on the certificate in good faith.
    (2) Use in the manufacture of rigid foam insulation. A sale of ODCs 
is a qualifying sale for purposes of Sec. Sec.  52.4682-1(d) and 
52.4682-4(d)(2) if the manufacturer or importer of the ODCs--
    (i) Obtains a certificate in substantially the form set forth in 
paragraph (d)(3) of this section from the purchaser of the ODCs; and
    (ii) Relies on the certificate in good faith.
    (3) Use as medical sterilants. A sale of ODCs is a qualifying sale 
for purposes of Sec.  52.4682-1(g) if the manufacturer or importer of 
the ODCs--
    (i) Obtains a certificate in substantially the form set forth in 
paragraph (d)(4) of this section from the purchaser of the ODCs; and
    (ii) Relies on the certificate in good faith.
    (4) Use as propellants in metered-dose inhalers. A sale of ODCs is a 
qualifying sale for purposes of Sec. Sec.  52.4682-1(h) and 52.4682-
4(b)(2)(vii) if the manufacturer or importer of the ODCs--
    (i) Obtains a certificate in substantially the form set forth in 
paragraph (d)(5) of this section from the purchaser of the ODCs; and
    (ii) Relies on the certificate in good faith.
    (c) Good faith reliance--(1) In general. The requirements of 
paragraph (b) of this section are not satisfied with respect to a sale 
of ODCs and the sale is not a qualifying sale if at the time of the 
sale--
    (i) The manufacturer or importer has reason to believe that the 
purchaser

[[Page 25]]

will use the ODCs other than for the purpose set forth in the 
certificate; or
    (ii) The Internal Revenue Service has notified the manufacturer or 
importer that the purchaser's right to provide a certificate has been 
withdrawn.
    (2) Withdrawal of right to provide a certificate. The Internal 
Revenue Service may withdraw the right of a purchaser to provide a 
certificate to its supplier if such purchaser uses the ODCs to which its 
certificate applies other than for the purpose set forth in such 
certificate, or otherwise fails to comply with the terms of the 
certificate. The Internal Revenue Service may notify the supplier to 
whom the purchaser provided the certificate that the purchaser's right 
to provide a certificate has been withdrawn.
    (d) Certificate--(1) In general--(i) Rules relating to all 
certificates. This paragraph (d) sets forth certificates that satisfy 
the requirements of paragraphs (b)(1) through (4) of this section. The 
certificate shall consist of a statement executed and signed under 
penalties of perjury by a person with authority to bind the purchaser. A 
certificate provided under paragraph (d)(2) or (5) of this section may 
apply to a single purchase or to multiple purchases and need not specify 
an expiration date. A certificate provided under paragraph (d)(3) or (4) 
of this section may apply to a single purchase or multiple purchases, 
and will expire as of December 31, 1993, unless an earlier expiration 
date is specified in the certificate. A new certificate must be given to 
the supplier if any information on the current certificate changes. The 
certificate may be included as part of any business records normally 
used to document a sale.
    (ii) Special rule relating to certificates executed before January 
1, 1992. Certificates provided under this paragraph (d)(2) and executed 
before January 1, 1992, satisfy the requirements of paragraph (b) of 
this section if they are in substantially the same form as certificates 
set forth in Sec.  52.4682-2T.
    (2) Certificate relating to ODCs used as a feedstock--(i) ODCs that 
will be resold for use by the second purchaser as a feedstock. If the 
purchaser will resell the ODCs to a second purchaser for use by such 
second purchaser as a feedstock, the certificate provided by the 
purchaser must be in substantially the following form:

Certificate of Purchaser of Chemicals That Will Be Resold for Use by the 
                     Second Purchaser as a Feedstock

(To support tax-free sales under section 4682(d)(2) of the Internal 
Revenue Code.)

Date____________________________________________________________________
    The undersigned purchaser (``Purchaser'') hereby certifies the 
following under penalties of perjury:
    The following percentage of ozone-depleting chemicals purchased from

________________________________________________________________________
(name and address of seller)

will be resold by Purchaser to persons (Second Purchasers) that certify 
to Purchaser that they are purchasing the ozone-depleting chemicals for 
use as a feedstock (as defined in Sec.  52.4682-1(c)(3) of the 
Environmental Tax Regulations).

------------------------------------------------------------------------
                  Product                             Percentage
------------------------------------------------------------------------
CFC-11.....................................
CFC-12.....................................
CFC-113....................................
CFC-114....................................
CFC-115....................................
Carbon tetrachloride.......................
Methyl chloroform..........................
Other (specify)............................
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

___ All shipments to Purchaser at the following location(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ All shipments to Purchaser under the following Purchaser account 
number(s):
________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ All shipments to Purchaser under the following purchase order(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ One or more shipments to Purchaser identified as follows:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
    Purchaser will not claim a credit or refund under section 
4682(d)(2)(B) of the Internal Revenue Code for any ozone-depleting 
chemicals covered by this certificate.
    Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals

[[Page 26]]

to which this certificate applies other than for the purpose set forth 
in this certificate may result in the withdrawal by the Internal Revenue 
Service of Purchaser's right to provide a certificate.
    Purchaser will retain the business records needed to document the 
sales covered by this certificate and will make such records available 
for inspection by Government officers. Purchaser also will retain and 
make available for inspection by Government officers the certificates of 
its Second Purchasers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn. In addition, the 
Internal Revenue Service has not notified Purchaser that the right to 
provide a certificate has been withdrawn from any Second Purchaser who 
will purchase ozone-depleting chemicals to which this certificate 
applies.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.
________________________________________________________________________
Signature

________________________________________________________________________
Printed or typed name of person signing

________________________________________________________________________
Title of person signing

________________________________________________________________________
Name of Purchaser

________________________________________________________________________
Address

________________________________________________________________________

________________________________________________________________________

Taxpayer Identifying Number

    (ii) ODCs that will be used by the purchaser as a feedstock. If the 
purchaser will use the ODCs as a feedstock, the certificate provided by 
the purchaser must be in substantially the following form:

Certificate of Purchaser of Chemicals That Will Be Used by the Purchaser 
                             as a Feedstock

(To support tax-free sales under section 4682(d)(2) of the Internal 
Revenue Code.)

Date____________________________________________________________________
    The undersigned purchaser (``Purchaser'') hereby certifies the 
following under penalties of perjury:
    The following percentage of ozone-depleting chemicals purchased from
________________________________________________________________________
(name and address of seller)

will be used by Purchaser as a feedstock (as defined in Sec.  52.4682-
1(c)(3) of the Environmental Tax Regulations).

------------------------------------------------------------------------
                                                        Kilograms to be
             Product                   Percentage         transformed
------------------------------------------------------------------------
CFC-11...........................
CFC-12...........................
CFC-113..........................
CFC-114..........................
CFC-115..........................
Carbon tetrachloride.............
Methyl chloroform................
Other (specify)..................
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):
___ All shipments to Purchaser at the following location(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ All shipments to Purchaser under the following Purchaser account 
number(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ All shipments to Purchaser under the following purchase order(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ One or more shipments to Purchaser identified as follows:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
    Purchaser will not claim a credit or refund under section 
4682(d)(2)(B) of the Internal Revenue Code for any ozone-depleting 
chemicals covered by this certificate.
    Purchaser understands that any use of the ozone-depleting chemicals 
to which this certificate applies other than as a feedstock may result 
in the withdrawal by the Internal Revenue Service of Purchaser's right 
to provide a certificate.
    Purchaser will retain the business records needed to document the 
use as a feedstock of the ozone-depleting chemicals to which this 
certificate applies and will make such records available for inspection 
by Government officers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.

________________________________________________________________________
Signature

________________________________________________________________________
Printed or typed name of person signing


[[Page 27]]


________________________________________________________________________
Title of person signing

________________________________________________________________________
Name of Purchaser

________________________________________________________________________
Address

________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number

    (3) Certificate relating to ODCs used in the manufacture of rigid 
foam insulation--(i) ODCs that will be resold to a second purchaser for 
use by the second purchaser in the manufacture of rigid foam insulation. 
If the purchaser will resell the ODCs to a second purchaser for use by 
such second purchaser in the manufacture of rigid foam insulation, the 
certificate provided by the purchaser must be in substantially the 
following form:

Certificate of Purchaser of Chemicals That Will Be Resold for Use by the 
      Second Purchaser in the Manufacture of Rigid Foam Insulation

(To support tax-free or tax-reduced sales under section 4682(g) of the 
Internal Revenue Code.)

Effective Date__________________________________________________________
Expiration Date_________________________________________________________
(not after 12/31/93)

    The undersigned purchaser (``Purchaser'') hereby certifies the 
following under penalties of perjury:
    The following percentage of ozone-depleting chemicals purchased from

________________________________________________________________________
(name and address of seller)

will be resold by Purchaser to persons (Second Purchasers) that certify 
to Purchaser that they are purchasing the ozone-depleting chemicals for 
use in the manufacture of rigid foam insulation (as defined in Sec.  
52.4682-1(d)(3) and (4) of the Environmental Tax Regulations).

------------------------------------------------------------------------
                  Product                             Percentage
------------------------------------------------------------------------
CFC-11.....................................
CFC-12.....................................
CFC-113....................................
CFC-114....................................
CFC-115....................................
Carbon tetrachloride.......................
Methyl chloroform..........................
Other (specify)............................
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

___ All shipments to Purchaser at the following location(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

 ___ All shipments to Purchaser under the following Purchaser account 
number(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ All shipments to Purchaser under the following purchase order(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ One or more shipments to Purchaser identified as follows:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
    Purchaser will not claim a credit or refund under section 4682(g)(3) 
of the Internal Revenue Code for any ozone-depleting chemicals covered 
by this certificate.
    Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than for the 
purpose set forth in this certificate may result in the withdrawal by 
the Internal Revenue Service of Purchaser's right to provide a 
certificate.
    Purchaser will retain the business records needed to document the 
sales covered by this certificate and will make such records available 
for inspection by Government officers. Purchaser also will retain and 
make available for inspection by Government officers the certificates of 
its Second Purchasers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn. In addition, the 
Internal Revenue Service has not notified Purchaser that the right to 
provide a certificate has been withdrawn from any Second Purchaser who 
will purchase ozone-depleting chemicals to which this certificate 
applies.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.

________________________________________________________________________
Signature

________________________________________________________________________
Printed or typed name of person signing

________________________________________________________________________
Title of person signing

________________________________________________________________________
Name of Purchaser

________________________________________________________________________
Address

________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number


[[Page 28]]


    (ii) ODCs that will be used by the purchaser in the manufacture of 
rigid foam insulation. If the purchaser will use the ODCs in the 
manufacture of rigid foam insulation, the certificate provided by the 
purchaser must be in substantially the following form:

Certificate of Purchaser of Chemicals That Will Be Used by the Purchaser 
               in the Manufacture of Rigid Foam Insulation

(To support tax-free or tax-reduced sales under section 4682(g) of the 
Internal Revenue Code.)

Effective Date__________________________________________________________
Expiration Date_________________________________________________________
(not after 12/31/93)

    The undersigned purchaser (``Purchaser'') hereby certifies the 
following under penalties of perjury:
    The following percentage of ozone-depleting chemicals purchased from

________________________________________________________________________
(name and address of seller)

will be used by Purchaser in the manufacture of rigid foam insulation 
(as defined in Sec.  52.4682-1(d) (3) and (4) of the Environmental Tax 
Regulations).

------------------------------------------------------------------------
                  Product                             Percentage
------------------------------------------------------------------------
CFC-11.....................................
CFC-12.....................................
CFC-113....................................
CFC-114....................................
CFC-115....................................
Carbon tetrachloride.......................
Methyl chloroform..........................
Other (specify)............................
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

___ All shipments to Purchaser at the following location(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ All shipments to Purchaser under the following Purchaser account 
number(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ All shipments to Purchaser under the following purchase order(s):

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

___ One or more shipments to Purchaser identified as follows:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
    Purchaser will not claim a credit or refund under section 4682(g)(3) 
of the Internal Revenue Code for any ozone-depleting chemicals covered 
by this certificate.
    Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than in the 
manufacture of rigid foam insulation may result in the withdrawal by the 
Internal Revenue Service of Purchaser's right to provide a certificate.
    Purchaser will retain the business records needed to document the 
use in the manufacture of rigid foam insulation of the ozone-depleting 
chemicals to which this certificate applies and will make such records 
available for inspection by Government officers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.

________________________________________________________________________
Signature

________________________________________________________________________
Printed or typed name of person signing

________________________________________________________________________
Title of person signing
________________________________________________________________________
Name of Purchaser

________________________________________________________________________
Address

________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number

    (4) Certificate relating to ODCs used as medical sterilants--(i) 
ODCs that will be resold for use by the second purchaser as medical 
sterilants. If the purchaser will resell the ODCs to a second purchaser 
for use by such second purchaser as medical sterilants, the certificate 
provided by the purchaser must be in substantially the following form:

CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE RESOLD FOR USE BY THE 
                 SECOND PURCHASER AS MEDICAL STERILANTS

 (To support tax-reduced sales under section 4682(g)(4) of the Internal 
                             Revenue Code.)

Effective Date__________________________________________________________
Expiration Date_________________________________________________________
 (not after 12/31/93)
    The undersigned purchaser (Purchaser) certifies the following under 
penalties of perjury:

[[Page 29]]

    The following percentage of ozone-depleting chemicals purchased 
from:

________________________________________________________________________
(Name of seller)
________________________________________________________________________
(Address of seller)

will be resold by Purchaser to persons (Second Purchasers) that certify 
to Purchaser that they are purchasing the ozone-depleting chemicals for 
use as medical sterilants (as defined in Sec.  52.4682-1(g)(3) of the 
Environmental Tax Regulations).

------------------------------------------------------------------------
                          Product                             Percentage
------------------------------------------------------------------------
CFC-12.....................................................        _____
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

___ All shipments to Purchaser at the following location(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ All shipments to Purchaser under the following Purchaser account 
          number(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ All shipments to Purchaser under the following purchase order(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ One or more shipments to Purchaser identified as follows:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Purchaser will not claim a credit or refund under section 4682(g)(4) 
of the Internal Revenue Code for any ozone-depleting chemicals covered 
by this certificate.
    Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than for the 
purpose set forth in this certificate may result in the withdrawal by 
the Internal Revenue Service of Purchaser's right to provide a 
certificate.
    Purchaser will retain the business records needed to document the 
sales covered by this certificate and will make such records available 
for inspection by Government officers. Purchaser also will retain and 
make available for inspection by Government officers the certificates of 
its Second Purchasers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn. In addition, the 
Internal Revenue Service has not notified Purchaser that the right to 
provide a certificate has been withdrawn from any Second Purchaser who 
will purchase ozone-depleting chemicals to which this certificate 
applies.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.
________________________________________________________________________
Name of Purchaser
________________________________________________________________________
Address of Purchaser
________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number of Purchaser
________________________________________________________________________
Title of person signing
________________________________________________________________________
Printed or typed name of person signing
________________________________________________________________________
Signature

    (ii) ODCs that will be used by the purchaser as medical sterilants. 
If the purchaser will use the ODCs as medical sterilants, the 
certificate provided by the purchaser must be in substantially the 
following form:

CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE USED BY THE PURCHASER 
                          AS MEDICAL STERILANTS

 (To support tax-reduced sales under section 4682(g)(4) of the Internal 
                             Revenue Code.)

Effective Date__________________________________________________________
Expiration Date_________________________________________________________
 (not after 12/31/93)
    The undersigned purchaser (Purchaser) certifies the following under 
penalties of perjury:
    The following percentage of ozone-depleting chemicals purchased 
from:
________________________________________________________________________
(Name of seller)
________________________________________________________________________
(Address of seller)

will be used by Purchaser as medical sterilants (as defined in Sec.  
52.4682-1(g)(3) of the Environmental Tax Regulations).

------------------------------------------------------------------------
                          Product                             Percentage
------------------------------------------------------------------------
CFC-12.....................................................        _____
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

___ All shipments to Purchaser at the following location(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ All shipments to Purchaser under the following Purchaser account 
          number(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

[[Page 30]]

___ All shipments to Purchaser under the following purchase order(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ One or more shipments to Purchaser identified as follows:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Purchaser will not claim a credit or refund under section 4682(g)(4) 
of the Internal Revenue Code for any ozone-depleting chemicals covered 
by this certificate.
    Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than as 
medical sterilants may result in the withdrawal by the Internal Revenue 
Service of Purchaser's right to provide a certificate.
    Purchaser will retain the business records needed to document the 
use as medical sterilants of the ozone-depleting chemicals to which this 
certificate applies and will make such records available for inspection 
by Government officers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.
________________________________________________________________________
Name of Purchaser
________________________________________________________________________
Address of Purchaser
________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number of Purchaser
________________________________________________________________________
Title of person signing
________________________________________________________________________
Printed or typed name of person signing
________________________________________________________________________
Signature

    (5) Certificate relating to ODCs used as propellants in metered-dose 
inhalers--(i) ODCs that will be resold for use by the second purchaser 
as propellants in metered-dose inhalers. If the purchaser will resell 
the ODCs to a second purchaser for use by such second purchaser as 
propellants in metered-dose inhalers, the certificate provided by the 
purchaser must be in substantially the following form:

CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE RESOLD FOR USE BY THE 
        SECOND PURCHASER AS PROPELLANTS IN METERED-DOSE INHALERS

 (To support tax-reduced sales under section 4682(g)(4) of the Internal 
                             Revenue Code.)

Date____________________________________________________________________
    The undersigned purchaser (Purchaser) certifies the following under 
penalties of perjury:
    The following percentage of ozone-depleting chemicals purchased 
from:
________________________________________________________________________
(Name of seller)
________________________________________________________________________
(Address of seller)

will be resold by Purchaser to persons (Second Purchasers) that certify 
to Purchaser that they are purchasing the ozone-depleting chemicals for 
use as propellants in metered-dose inhalers (as defined in Sec.  
52.4682-1(h)(3) of the Environmental Tax Regulations).

------------------------------------------------------------------------
                          Product                             Percentage
------------------------------------------------------------------------
CFC-11.....................................................         ____
CFC-12.....................................................         ____
CFC-114....................................................         ____
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

____ All shipments to Purchaser at the following location(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
____ All shipments to Purchaser under the following Purchaser account 
          number(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
____ All shipments to Purchaser under the following purchase order(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
____ One or more shipments to Purchaser identified as follows:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Purchaser will not claim a credit or refund under section 4682(g)(4) 
of the Internal Revenue Code for any ozone-depleting chemicals covered 
by this certificate.
    Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than for the 
purpose set forth in this certificate may result in the withdrawal by 
the Internal Revenue Service of Purchaser's right to provide a 
certificate.
    Purchaser will retain the business records needed to document the 
sales covered by this

[[Page 31]]

certificate and will make such records available for inspection by 
Government officers. Purchaser also will retain and make available for 
inspection by Government officers the certificates of its Second 
Purchasers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn. In addition, the 
Internal Revenue Service has not notified Purchaser that the right to 
provide a certificate has been withdrawn from any Second Purchaser who 
will purchase ozone-depleting chemicals to which this certificate 
applies.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.
________________________________________________________________________
Name of Purchaser
________________________________________________________________________
Address of Purchaser
________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number of Purchaser
________________________________________________________________________
Title of person signing
________________________________________________________________________
Printed or typed name of person signing
________________________________________________________________________
Signature

    (ii) ODCs that will be used by the purchaser as propellants in 
metered-dose inhalers. If the purchaser will use the ODCs as propellants 
in metered-dose inhalers, the certificate provided by the purchaser must 
be in substantially the following form:

CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE USED BY THE PURCHASER 
                 AS PROPELLANTS IN METERED-DOSE INHALERS

 (To support tax-reduced sales under section 4682(g)(4) of the Internal 
                             Revenue Code.)

Date____________________________________________________________________
    The undersigned purchaser (Purchaser) certifies the following under 
penalties of perjury:
    The following percentage of ozone-depleting chemicals purchased 
from:
________________________________________________________________________
(Name of seller)
________________________________________________________________________
(Address of seller)

will be used by Purchaser as propellants in metered-dose inhalers (as 
defined in Sec.  52.4682-1(h)(3) of the Environmental Tax Regulations).

------------------------------------------------------------------------
                          Product                             Percentage
------------------------------------------------------------------------
CFC-11.....................................................         ____
CFC-12.....................................................         ____
CFC-114....................................................         ____
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

____ All shipments to Purchaser at the following location(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
____ All shipments to Purchaser under the following Purchaser account 
          number(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
____ All shipments to Purchaser under the following purchase order(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
____ One or more shipments to Purchaser identified as follows:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Purchaser will not claim a credit or refund under section 4682(g)(4) 
of the Internal Revenue Code for any ozone-depleting chemicals covered 
by this certificate.
    Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than as 
propellants in metered-dose inhalers may result in the withdrawal by the 
Internal Revenue Service of Purchaser's right to provide a certificate.
    Purchaser will retain the business records needed to document the 
use as propellants in metered-dose inhalers of the ozone-depleting 
chemicals to which this certificate applies and will make such records 
available for inspection by Government officers.
    Purchaser has not been notified by the Internal Revenue Service that 
its right to provide a certificate has been withdrawn.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.
________________________________________________________________________
Name of Purchaser
________________________________________________________________________
Address of Purchaser
________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number of Purchaser
________________________________________________________________________
Title of person signing
________________________________________________________________________
Printed or typed name of person signing
________________________________________________________________________

[[Page 32]]

Signature

[T.D. 8370, 56 FR 56308, Nov. 4, 1991, as amended by T.D. 8622, 60 FR 
52850, Oct. 11, 1995]



Sec.  52.4682-3  Imported taxable products.

    (a) Overview; references to Tables; special rule for 1990--(1) 
Overview. This section provides rules relating to the tax imposed on 
imported taxable products under section 4681, including rules for 
identifying imported taxable products, determining the weight of the 
ozone-depleting chemicals (ODCs) used as materials in the manufacture of 
such products, and computing the amount of tax on such products. See 
Sec.  52.4681-1(a)(2) and (c) for general rules and definitions relating 
to the tax on imported taxable products.
    (2) References to Tables. When used in this section--
    (i) The term Imported Products Table (Table) refers to the Table set 
forth in paragraph (f)(6) of this section; and
    (ii) The term current Imported Products Table (current Table) used 
with respect to a product refers to the Table in effect on the date such 
product is first sold or used by the importer thereof.
    (3) Special rule for 1990. In the case of products first sold or 
used before January 1, 1991, post-1990 ODCs (as defined in Sec.  
52.4681-1(c)(9)) shall not be taken into account in applying the rules 
of this section.
    (b) Imported taxable products--(1) In general--(i) Rule. Except as 
provided in paragraph (b)(2) of this section, the term ``imported 
taxable product'' means any product that--
    (A) Is entered into the United States for consumption, use, or 
warehousing; and
    (B) Is listed in the current Table.
    (ii) Example. The application of this paragraph (b)(1) may be 
illustrated by the following example:

    Example. A brings a light truck with a Harmonized Tariff Schedule 
classification of 8704 into the customs territory and enters the truck 
for transportation and exportation. Although the truck is listed in the 
current Table, it is not an imported taxable product because it is not 
entered for consumption, use, or warehousing. The truck also would not 
be an imported taxable product if it were admitted to a foreign trade 
zone (rather than brought into the customs territory) for transportation 
and exportation.

    (2) Exceptions--(i) In general. A product is not treated as an 
imported taxable product if--
    (A) The product is listed in Part I of the current Table and the 
adjusted tax with respect to the product is de minimis (within the 
meaning of paragraph (b)(2)(ii) of this section); or
    (B) The product is listed in Part II of the current Table, the 
adjusted tax with respect to the product is de minimis (within the 
meaning of paragraph (b)(2)(ii) of this section), and the ODCs (other 
than methyl chloroform) used as materials in the manufacture of the 
product were not used for purposes of refrigeration or air conditioning, 
creating an aerosol or foam, or manufacturing electronic components.
    (ii) De minimis adjusted tax. The adjusted tax with respect to a 
product is de minimis if such tax is less than one/tenth of one percent 
of the importer's cost of acquiring such product. The term adjusted tax 
means the tax that would be imposed under section 468l on the ODCs used 
as materials in the manufacture of such product if such ODCs were sold 
in the United States and the base tax amount were $1.00.
    (c) Taxable event--(1) In general. Except as otherwise provided in 
paragraphs (c) (2) and (3) of this section, the tax on an imported 
taxable product is imposed when the product is first sold or used (as 
defined in Sec.  52.4681-1(c) (6) and (7)) by its importer. Thus, for 
example, imported taxable products that are warehoused or repackaged 
after entry and then exported without being sold or used in the United 
States are not subject to tax.
    (2) Election to treat importation as use--(i) In general. An 
importer may elect to treat the entry of products into the United States 
as the use of such products. In the case of imported taxable products to 
which an election under this paragraph (c)(2) applies--
    (A) Tax is imposed on the products on the date of entry (as 
determined under paragraph (c)(2)(ii) of this section) if the products 
are entered into the United States after the election becomes effective;
    (B) Tax is imposed on the products on the date the election becomes 
effective if the products were entered into the United States after 
December 3l, 1989,

[[Page 33]]

and before the election becomes effective; and
    (C) No tax is imposed if the products were entered into the United 
States before January 1, 1990.
    (ii) Date of entry. The date of entry is determined by reference to 
customs law. If the actual date is unknown, the importer may use any 
reasonable and consistent method to determine the date of entry, 
provided that such date is within 10 business days of arrival of 
products in the United States.
    (iii) Applicability of election. An election under this paragraph 
(c)(2) applies to all imported taxable products that are owned (and have 
not been used) by the importer at the time the election becomes 
effective and all imported taxable products that are entered into the 
United States by the importer after the election becomes effective. An 
election under this paragraph (c)(2) becomes effective at the beginning 
of the first calendar quarter to which the election applies. After 
October 9, 1990, the election may be revoked only with the consent of 
the Commissioner.
    (iv) Making the election. An election under this paragraph (c)(2) 
shall be made in accordance with the instructions for the return on 
which the importer is required to report liability for tax under section 
4681.
    (3) Treating the sale of an article incorporating an imported 
taxable product as the first sale or use of such product--(i) In 
general. In the case of articles to be sold, an importer may treat the 
sale of an article manufactured or assembled in the United States as the 
first sale or use of an imported taxable product incorporated in such 
article, but only if the importer--
    (A) Has consistently treated the sale of similar articles as the 
first sale or use of similar imported taxable products; and
    (B) Has not made an election under paragraph (c)(2) of this section.
    (ii) Similar articles and imported taxable products. An importer may 
establish any reasonable criteria for determining whether articles or 
imported taxable products are similar for purposes of this paragraph 
(c)(3).
    (iii) Establishment of consistent treatment. An importer has 
consistently treated the sale of similar articles as the first sale or 
use of similar imported taxable products only if such treatment is 
reflected in the computation of tax on the importer's returns for all 
prior calendar quarters in which such treatment would affect tax 
liability.
    (iv) Example. The application of this paragraph (c)(3) may be 
illustrated by the following example:

    Example. (a) An importer of printed circuits and other electronic 
components uses those products in assembling television receivers in the 
United States and also uses the printed circuits in assembling VCRs in 
the United States. Under the importer's criteria for determining 
similarity, printed circuits are similar to other printed circuits, but 
not to the other electronic components. In addition, television 
receivers are similar to other television receivers, but not to VCRs. 
The importer has not made an election under paragraph (c)(2) of this 
section.
    (b) Under this paragraph (c)(3), the importer may treat the sale of 
the television receivers as the first sale or use of the imported 
printed circuits incorporated into the television receivers. In that 
case, the tax on the printed circuits would be imposed when the 
television receivers are sold rather than when the printed circuits are 
used in assembling the television receivers.
    (c) The importer may treat the sale of the television receivers as 
the first sale or use of the printed circuits incorporated into the 
television receivers even if the sale of the television receivers is not 
treated as the first sale or use of the other electronic components 
incorporated into the television receivers and even if the sale of VCRs 
is not treated as the first sale or use of the printed circuits 
incorporated into the VCRs. Under paragraph (c)(3)(i)(A) of this 
section, however, the importer must have consistently treated the sale 
of television receivers as the first sale or use of printed circuits 
incorporated into the receivers. Thus, in the case of television 
receivers that were assembled before January 1, 1990, and sold after 
December 31, 1989, the importer must have treated the sale of the 
television receivers as the first sale or use of the printed circuits 
incorporated into the television receivers when reporting tax under 
section 4681 with respect to such printed circuits.

    (d) ODCs used as materials in the manufacture of imported taxable 
products--(1) ODC weight. The tax imposed on an imported taxable product 
under section 4681 is computed by reference to the weight of the ODCs 
used as materials in the manufacture of the product (ODC weight). The 
ODC weight of a product includes the weight of ODCs

[[Page 34]]

used as materials in the manufacture of any components of the product.
    (2) ODCs used as materials in the manufacture of a product. Except 
as provided in paragraph (d)(3) of this section, an ODC is used as a 
material in the manufacture of a product if the ODC is--
    (i) Incorporated into the product;
    (ii) Released into the atmosphere in the process of manufacturing 
the product; or
    (iii) Otherwise used in the manufacture of the product (but only to 
the extent the cost of the ODC is properly allocable to the product).
    (3) Protective packaging. ODCs used in the manufacture of the 
protective material in which a product is packaged are not treated as 
ODCs used as materials in the manufacture of such product.
    (4) Examples. The provisions of this paragraph (d) may be 
illustrated by the following examples:

    Example 1. A, a manufacturer located outside the United States, uses 
ODCs as a solvent to clean the printed circuits it manufactures and as a 
coolant in the air-conditioning system of the factory in which the 
printed circuits are manufactured. The ODCs used as a solvent are 
released into the atmosphere, and, under paragraph (d)(2)(ii) of this 
section, are used as materials in the manufacture of the printed 
circuits. The ODCs used as a coolant in the air-conditioning system are 
also used in the manufacture of the printed circuits. Under paragraph 
(d)(2)(iii) of this section, these ODCs are used as materials in the 
manufacture of the printed circuits only to the extent the cost of the 
ODCs is properly allocable to the printed circuits.
    Example 2. B manufactures television receivers outside the United 
States and wraps them for shipping in a protective packing material 
manufactured with ODCs. Under paragraph (d)(3) of this section, the ODCs 
used in the manufacture of the protective packing material are not 
treated as ODCs used as a material in the manufacture of the television 
receivers.

    (e) Methods of determining ODC weight; computation of tax--(1) In 
general. This paragraph (e) sets forth the methods to be used for 
determining the ODC weight of an imported taxable product and a method 
to be used in computing the tax when the ODC weight cannot be 
determined. The amount of tax is computed separately for each imported 
taxable product and the method to be used in determining the ODC weight 
or otherwise computing the tax is separately determined for each such 
product. Thus, an importer may use one method in computing the tax on 
some imported taxable products and different methods in computing the 
tax on other products. For example, an importer of telephone sets may 
compute the tax using the exact method described in paragraph (e)(2) of 
this section for determining the ODC weight of telephone sets supplied 
by one manufacturer and using the Table method described in paragraph 
(e)(3) of this section for telephone sets supplied by other 
manufacturers that have not provided sufficient information to allow the 
importer to use the exact method.
    (2) Exact method. If the importer determines the weight of each ODC 
used as a material in the manufacture of an imported taxable product and 
supports that determination with sufficient and reliable information, 
the ODC weight of the product is the weight so determined. Under this 
method, the ODC weight of a mixture is equal to the weight of the ODCs 
contained in the mixture. Representations by the manufacturer of the 
product to the importer as to the weight of the ODCs used as materials 
in the manufacture of the product may be sufficient and reliable 
information for this purpose. Thus, a letter to the importer signed by 
the manufacturer may constitute sufficient and reliable information if 
the letter adequately identifies the product and states the weight of 
each ODC used as a material in the product's manufacture.
    (3) Table method--(i) In general. If the ODC weight of an imported 
taxable product is not determined using the exact method described in 
paragraph (e)(2) of this section and the current Table specifies an ODC 
weight for the product, the ODC weight of the product is the Table ODC 
weight, regardless of what ODCs were used in the manufacture of the 
product. In computing the amount of tax, the Table ODC weight shall not 
be rounded.
    (ii) Special rules--(A) Articles assembled in the United States. An 
importer that assembles finished articles in the United States may 
compute the

[[Page 35]]

amount of tax imposed on the imported taxable products incorporated into 
the finished article by using the Table ODC weight specified for the 
article instead of the Table ODC weights specified for the components. 
In order to compute the tax under this special rule, the importer must 
determine the actual number of articles manufactured. For example, if an 
importer manufactures 100 camcorders using imported subassemblies, the 
importer may compute the amount of tax on the subassemblies by using the 
Table ODC weight specified for camcorders. Thus, the tax imposed on the 
subassemblies is equal to the tax that would be imposed on 100 
camcorders.
    (B) Combination method. This paragraph (e)(3)(ii)(B) applies to an 
imported taxable product if the current Table specifies weights for two 
or more ODCs with respect to the product and the importer of the product 
can determine the weight of any such ODC (and of any ODC used as a 
substitute for such ODC) and can support such determination with 
sufficient and reliable information. In determining the ODC weight of 
any such product, the importer may replace the weight specified in the 
Table for such ODC with the weight (as determined by the importer) of 
such ODC and its substitutes. For example, if an importer has sufficient 
and reliable information to determine the amount of CFC-12 included in a 
product as a coolant (and to determine that no ODCs have been used as 
substitutes for CFC-12) but cannot determine the amount of CFC-113 used 
in manufacturing the product's electronic components, the importer may 
use the weight specified in the Table for CFC-113 and the actual weight 
determined by the importer for CFC-12 in determining the ODC weight of 
the product.
    (C) ODCs used in the manufacture of rigid foam insulation. In 
computing the tax using the method described in this paragraph (e)(3), 
any ODC for which the Table specifies a weight followed by an asterisk 
(*) shall be treated as an ODC used in the manufacture of rigid foam 
insulation (as defined in Sec.  52.4682-1(d) (3) and (4)).
    (4) Value method--(i) General rule. If the importer cannot determine 
the ODC weight of an imported taxable product under the exact method 
described in paragraph (e)(2) of this section and the Table ODC weight 
of the product is not specified, the tax imposed on the product under 
section 4681 is one percent of the entry value of the product.
    (ii) Special rule for mixtures. If, in the case of an imported 
taxable product that is a mixture, the tax was determined under the 
method described in this paragraph (e)(4), the Commissioner may 
redetermine the tax based on the ODC weight of the mixture.
    (5) Adjustment for prior taxes--(i) In general. If any manufacture 
with respect to an imported taxable product occurred in the United 
States or the product incorporates a taxed component or a taxed chemical 
was used in its manufacture, the product's ODC weight (or value) 
attributable to manufacture within the United States or to taxed 
components or taxed chemicals shall be disregarded in computing the tax 
on such product using a method described in paragraph (e) (2), (3), or 
(4) of this section.
    (ii) Taxed component. The term ``taxed component'' means any 
component that previously was subject to tax as an imported taxable 
product or that would have been so taxed if section 4681 had been in 
effect for periods before January 1, 1990.
    (iii) Taxed chemical. The term ``taxed chemical'' means any ODC that 
previously was subject to tax.
    (6) Examples. The application of this paragraph (e) may be 
illustrated by the following examples:

    Example 1. A is an importer (as defined in Sec.  52.4681-1(c)(5)) of 
VCRs. The HTS classification for the VCRs is 8528.10.40. VCRs classified 
under HTS heading 8528.10.40 are imported taxable products because they 
are listed in the Table (contained in paragraph (f)(6) of this section) 
by name and HTS heading (as described in paragraph (f)(3)(i) of this 
section). Each VCR is wrapped in protective packing material 
manufactured with ODCs. A imports and sells 100 VCRs during the first 
calendar quarter of 1991. A may determine the ODC weight for the VCRs by 
reference to the Table. The Table ODC weight specified for VCRs 
classified under HTS heading 8528.10.40 is 0.0586 pound of CFC-113. This 
weight does not take protective packaging into account. The amount of 
tax for the first quarter of 1991 is $6.42 (0.0586 (the ODC weight) x 
100 (the number of VCRs sold in the

[[Page 36]]

quarter) x $1.37 (the base tax amount for CFC-113 in 1991) x 0.8 (the 
ozone-depletion factor for CFC-113)). If A uses the exact method (as 
described in paragraph (e)(2) of this section) to determine the ODC 
weight for the VCRs, A does not take into account the ODCs used in the 
manufacture of the protective packaging. (Imported protective packaging 
containing foams made with ODCs other than foams defined in Sec.  
52.4682-1(d)(3) is subject to tax, however, if the packaging is sold as 
packaging or first used as packaging in the United States.)
    Example 2. The facts are the same as in Example 1, except that A's 
VCRs are manufactured using methyl chloroform as the solvent instead of 
CFC-113. If A does not use the exact method to determine the weight of 
the methyl chloroform used in the manufacture of the VCRs, A must, under 
paragraphs (e)(3)(i) and (e)(4)(i) of this section, determine the ODC 
weight by reference to the Table. If A uses the Table ODC weight, the 
computation of tax is the same as in Example 1, using the base tax 
amount and ozone-depletion factor for CFC-113. A does not substitute the 
base tax amount and ozone-depletion factor of methyl chloroform for 
those of CFC-113.
    Example 3. B imports and sells mixtures of ethylene oxide and CFC-
12. The mixture is 88 percent CFC-12 by weight. B also imports and sells 
R-502. The R-502 is 51 percent CFC-115 by weight. In the first calendar 
quarter of 1991 B sells 100 pounds of imported ethylene oxide/CFC-12 
mixture and 10,000 pounds of imported R-502. The ethylene/CFC-12 mixture 
and the R-502 are imported taxable products because they are listed in 
Part I of the Table (contained in paragraph (f)(6) of this section). 
Under the exact method described in paragraph (e)(2) of this section, B 
computes the tax based on 88 pounds of CFC-12, the amount of ODCs 
contained in the imported ethylene oxide mixture, and based on 5100 
pounds of CFC-115, the amount of ODCs in the imported R-502.

    (f) Imported Products Table--(1) In general. This paragraph (f) 
contains rules relating to the Imported Products Table (Table) and sets 
forth the Table. The Table lists all the products that are subject to 
the tax on imported taxable products and specifies the Table ODC weight 
of each product for which such a weight has been determined.
    (2) Applicability of Table--(i) In general. Except as provided in 
paragraph (f)(2)(ii) of this section, the Table contained in paragraph 
(f)(6) of this section is effective on January 1, 1990.
    (ii) Treatment of certain products--(A) Products included in a 
listing that is preceded by a double asterisk (**) in the Table shall 
not be treated as imported taxable products until October 1, 1990.
    (B) Products included in a listing that is preceded by a triple 
asterisk (***) in the Table shall not be treated as imported taxable 
products until January l, 1992.
    (3) Identification of products--(i) In general. Each listing in the 
Table identifies a product by name and includes only products that are 
described by that name. Most listings (other than listings for mixtures) 
identify a product by both name and HTS heading. In such cases, a 
product is included in that listing only if the product is described by 
that name and the rate of duty on the product is determined by reference 
to that HTS heading. However, the product is included in that listing 
even if it is manufactured with or contains a different ODC than the ODC 
specified in the Table.
    (ii) Electronic items not listed by specific name--(A) In general. 
Part II of the Table contains listings for electronic items that are not 
included within any other listing in the Table. An imported product is 
included in these listings only if such imported product--
    (1) Is an electronic component listed in chapters 84, 85, or 90 of 
the Harmonized Tariff Schedule; or
    (2) Contains components described in paragraph (f)(3)(ii)(A)(1) of 
this section and more than 15 percent of the cost of the imported 
product is attributable to such components.
    (B) Electronic component. For purposes of this paragraph (f)(3)(ii), 
an electronic component is a component whose operation involves the use 
of nonmechanical amplification or switching devices such as tubes, 
transistors, and integrated circuits. Such components do not include 
passive electrical devices such as resistors and capacitors.
    (C) Certain items not included. Items such as screws, nuts, bolts, 
plastic parts, and similar specially fabricated parts that may be used 
to construct an electronic item are not themselves included in the 
listing for electronic items not otherwise listed in the Table.
    (iii) Examples. The application of this paragraph (f)(3) may be 
illustrated by the following examples:


[[Page 37]]


    Example 1. The Table lists ``electronic integrated circuits and 
microassemblies; HTS heading 8542.'' A bipolar transistor under HTS 
heading 8542.11.00.05 is included in this listing because a bipolar 
transistor is a type of electronic integrated circuit and HTS heading 
8542.11.00.05 is included within HTS heading 8542.
    Example 2. The Table lists ``radios; HTS heading 8527.19,'' ``radio 
combinations; HTS heading 8527.11'' and ``radio combinations; HTS 
heading 8527.31.'' A radio classified under HTS heading 8527.19 is not 
included within either listing for radio combinations. However, a radio 
classified under HTS heading 8527.19.00.20 is included within the 
listing for radios; HTS heading 8527.19. A radio combination classified 
under HTS heading 8527.11.20 is included within the listing for radio 
combinations; HTS heading 8527.11 but not the listing for radio 
combinations; HTS heading 8527.31. Any radio or radio combination not 
classified under the HTS heading for any other listing is included in 
the listing for electronic items not otherwise listed.

    (4) Rules for listing products. Products are listed in the Table in 
accordance with the following rules:
    (i) Listing in part I. A product is listed in part I of the Table if 
it is a mixture containing ODCs. In addition, a product other than a 
mixture containing ODCs will be listed in part I of a revised Table if 
the Commissioner has determined that--
    (A) The ODC weight of the product is not de minimis when the product 
is produced using the predominant method of manufacturing the product; 
and
    (B) None of the ODCs used as materials in the manufacture of the 
product under the predominant method are used for purposes of 
refrigeration or air conditioning, creating an aerosol or foam, or 
manufacturing electronic components.
    (ii) Listing in part II. A product is listed in part II of the Table 
if the Commissioner has determined that the ODCs used as materials in 
the manufacture of the product under the predominant method are used for 
purposes of refrigeration or air conditioning, creating an aerosol or 
foam, or manufacturing electronic components.
    (iii) Listing in part III. A product is listed in part III of the 
Table if the Commissioner has determined that the product is not an 
imported taxable product and the product would otherwise be included 
within a listing in part II of the Table. For example, floppy disk drive 
units are listed in part III because they are not imported taxable 
products and they would, but for their listing in part III, be included 
within the part II listing for electronic items not specifically 
identified.
    (5) Table ODC weight. The Table ODC weight of a product is the 
weight, determined by the Commissioner, of the ODCs that are used as 
materials in the manufacture of the product under the predominant method 
of manufacturing. The Table ODC weight is given in pounds per single 
unit of product unless otherwise specified.
    (6) Table. The Table is set forth below:

                                             Imported Products Table
----------------------------------------------------------------------------------------------------------------
                                                                    Harmonized
                                                                      tariff
                          Product name                               schedule           ODC         ODC weight
                                                                      heading
----------------------------------------------------------------------------------------------------------------
Part I--Products that are mixtures containing ODCs:
Mixtures containing ODCs, including but not limited to:
    --anti-static sprays........................................
    --automotive products such as ``carburetor cleaner,'' ``stop
     leak,'' and ``oil charge''.................................
    --cleaning solvents.........................................
    --contact cleaners..........................................
    --degreasers................................................
    --dusting sprays............................................
    --electronic circuit board coolants.........................
    --electronic solvents.......................................
    --ethylene oxide/CFC-12.....................................
    --fire extinguisher preparations and charges................
    --flux removers for electronics.............................
    --insect and wasp sprays....................................
    --mixtures of ODCs..........................................
    --propellants...............................................
    --refrigerants..............................................  ..............  ..............  ..............
----------------------------------------------------------------------------------------------------------------


[[Page 38]]


----------------------------------------------------------------------------------------------------------------
                                           Harmonized
                                             tariff
              Product name                  schedule                ODC                      ODC weight
                                             heading
----------------------------------------------------------------------------------------------------------------
Part II--Products in which ODCs are
 used for purposes of refrigeration or
 air conditioning, creating an aerosol
 or form or manufacturing electronic
 components:
    Rigid foam insulation defined in     ..............  .........................  ............................
     Sec.   52.4682-1(d)(3).
    Foams made with ODCs, other than     ..............  .........................  ............................
     foams defined in Sec.   52.4682-
     1(d)(3).
    Scrap flexible foams made with ODCs  ..............  .........................  ............................
    Medical products containing ODCs:
        Surgical staplers..............  ..............  .........................  ............................
        Cryogenic medical instruments..  ..............  .........................  ............................
        Drug delivery systems..........  ..............  .........................  ............................
        Inhalants......................  ..............  .........................  ............................
    Dehumidifiers, household...........   8415.82.00.50  CFC-12...................  0.344
    Chillers:..........................   8415.82.00.65  .........................  ............................
        Charged with CFC-12............  ..............  CFC-12...................  1600.
        Charged with CFC-114...........  ..............  CFC-114..................  1250.
        Charged with R-500.............  ..............  CFC-12...................  1920.
    Refrigerator-freezers, household:
        Not 184 liters......   8418.10.00.10  CFC-11...................  \1\1.08
                                                         CFC-12...................  0.13
        184 liters but not     8418.10.00.20  CFC-11...................  \1\1.32
         269 liters.                          CFC-12...................  0.26
        269 liters but not     8418.10.00.30  CFC-11...................  \1\1.54
         382 liters.                          CFC-12...................  0.35
        382 liters..........   8418.10.00.40  CFC-11...................  \1\1.87
                                                         CFC-12...................  0.35
    Refrigerators, household:
        Not 184 liters......   8418.21.00.10  CFC-11...................  \1\1.08
                                                         CFC-12...................  0.13
        184 liters but not     8418.21.00.20  CFC-11...................  \1\1.32
         269 liters.                          CFC-12...................  0.26
        269 liters but not     8418.21.00.30  CFC-11...................  \1\1.54
         382 liters.                          CFC-12...................  0.35
        382 liters..........   8418.21.00.90  CFC-11...................  \1\1.87
                                                         CFC-12...................  0.35
    Freezers, household................         8418.30  CFC-11...................  \1\ 2.0
                                                         CFC-12...................  0.4
    Freezers, household................         8418.40  CFC-11...................  \1\2.0
                                                         CFC-12...................  0.4
    Refrigerating display counters not          8418.50  CFC-11...................  \1\ 50.0
     227 kg.                                  CFC-12...................  260.0
    Icemaking machines.................         8418.69  .........................  ............................
        Charged with CFC-12............  ..............  CFC-12...................  1.4
        Charged with R-502.............  ..............  CFC-115..................  3.39
    Drinking water coolers.............         8418.69  .........................  ............................
        Charged with CFC-12............  ..............  CFC-12...................  0.21
        Charged with R-500.............  ..............  CFC-12...................  0.22
    Centrifugal chillers, hermetic.....         8418.69  .........................  ............................
        Charged with CFC-12............  ..............  CFC-12...................  1600.
        Charged with CFC-114...........  ..............  CFC-114..................  1250.
        Charged with R-500.............  ..............  CFC-12...................  1920.
    Reciprocating chillers.............         8418.69  .........................  ............................
        Charged with CFC-12............  ..............  CFC-12...................  200.
    Mobile refrigeration systems.......         8418.99  .........................  ............................
        Containers.....................  ..............  CFC-12...................  15.
        Trucks.........................  ..............  CFC-12...................  11.
        Trailers.......................  ..............  CFC-12...................  20.
    Refrigeration condensing units:
        not 746W............   8418.99.00.05  CFC-12...................  0.3
        746W but not 2.2KW.
        2.2KW but not 7.5KW.
        7.5KW but not 22.3KW.
        22.3 KW.............   8418.99.00.25  CFC-12...................  17.0
    Fire extinguishers, charged w/ODCs.            8424  .........................  ............................
    Electronic typewriters and word                8469  CFC-113..................  0.2049
     processors.
    Electronic calculators.............         8470.10  CFC-113..................  0.0035
    Electronic calculators w/printing           8470.21  CFC-113..................  0.0057
     device.
    Electronic calculators.............         8470.29  CFC-113..................  0.0035
    Account machines...................         8470.40  CFC-113..................  0.1913
    Cash registers.....................         8470.50  CFC-113..................  0.1913
    Digital automatic data processing           8471.20  CFC-113..................  0.3663
     machines w/cathode ray tube, not
     included in subheading
     8471.20.00.90.

[[Page 39]]

 
    Laptops, notebooks, and pocket        8471.20.00.90  CFC-113..................  0.03567
     computers.
    Digital processing units w/entry
     value:
        Not $100K...........         8471.91  CFC-113..................  0.4980
        $100K...............         8471.91  CFC-113..................  27.6667
    Combined input/output units                 8471.92  CFC-113..................  0.3600
     (terminals).
    Keyboards..........................         8471.92  CFC-113..................  0.0742
    Display units......................         8471.92  CFC-113..................  0.0386
    Printer units......................         8471.92  CFC-113..................  0.1558
    lnput or output units..............         8471.92  CFC-113..................  0.1370
    Hard magnetic disk drive units not
     included in subheading 8471.93.10
     for a disk of a diameter:
        Not 9 cm (3\1/2\             8471.93  CFC-113..................  0.2829
         inches).
        9 cm (3\1/2\ inches)         8471.93  CFC-113..................  1.1671
         but not 21 cm (8\1/
         4\ inches).
    Nonmagnetic storage units w/ entry          8471.93  CFC-113..................  2.7758
     value $1,000.
    Magnetic disk drive units for a          8471.93.10  CFC-113..................  4.0067
     disk of a diameter over 21 cm (8\1/
     4\ inches).
    Power supplies.....................      8471.99.30  CFC-113..................  0.0655
    Electronic office machines.........            8472  CFC-113..................  0.001
    Populated cards for digital
     processing units in subheading
     8471.91 w/value:
        Not $100K...........         8473.30  CFC-113..................  0.1408
        $100K...............         8473.30  CFC-113..................  4.82
    Automatic goods-vending machines            8476.11  CFC-12...................  0.45
     with refrigerating device.
    Microwave ovens with electronic             8516.50  .........................  ............................
     controls, with capacity of.
        0.99 cu. ft. or less...........  ..............  CFC-113..................  0.0300
        1.0 through 1.3 cu. ft.........  ..............  CFC-113..................  0.0441
        1.31 cu. ft. or greater........  ..............  CFC-113..................  0.0485
    Microwave oven combinations with      8516.60.40.60  CFC-113..................  0.0595
     electronic controls.
    Telephone sets w/entry value:
        Not $11.00..........         8517.10  CFC-113..................  0.0225
        $11.00..............         8517.10  CFC-113..................  0.1
    Teleprinters and teletypewriters...         8517.20  CFC-113..................  0.1
    Switching equipment not included in         8517.30  CFC-113..................  0.1267
     subheading 8517.30.20.
    Private branch exchange switching        8517.30.20  CFC-113..................  0.0753
     equipment.
    Modems.............................         8517.40  CFC-113..................  0.0225
    Intercoms..........................         8517.81  CFC-113..................  0.0225
    Facsimile machines.................         85l7.82  CFC-113..................  0.0225
    Loudspeakers, microphones,                     8518  CFC-113..................  0.0022
     headphones, and electric sound
     amplifier sets, not included in
     subheading 8518.30.10.
    Telephone handsets.................      8518.30.10  CFC-113..................  0.042
    Turntables, record players,                    8519  CFC-113..................  0.0022
     cassette players, and other sound
     reproducing apparatus.
    Magnetic tape recorders and other              8520  CFC-113..................  0.0022
     sound recording apparatus, not
     included in subheading 8520.20.
    Telephone answering machines.......         8520.20  CFC-113..................  0.1
    Color video recording/reproducing     8521.10.00.20  CFC-113..................  0.0586
     apparatus.
    Videodisc players..................         8521.90  CFC-113..................  0.0106
    Cordless handset telephones........      8525.20.50  CFC-113..................  0.1
    Cellular communication equipment...      8525.20.60  CFC-113..................  0.4446
    TV cameras.........................         8525.30  CFC-113..................  1.423
    Camcorders.........................         8525.30  CFC-113..................  0.0586
    Radio combinations.................         8527.11  CFC-113..................  0.0022
    Radios.............................         8527.19  CFC-113..................  0.0014
    Motor Vehicle radios with or w/o            8527.21  CFC-113..................  0.0021
     tape player.
    Radio combinations.................         8527.31  CFC-113..................  0.0022
    Radios.............................         8527.32  CFC-113..................  0.0014
    Tuners w/o speaker.................   8527.39.00.20  CFC-113..................  0.0022
    Television receivers...............            8528  CFC-113..................  0.0386
    VCRs...............................      8528.10.40  CFC-113..................  0.0586
    Home satellite earth stations......   8528.10.80.55  CFC-113..................  0.0106
    Electronic assemblies for HTS               8529.90  CFC-113..................  0.0816
     headings 8525, 8527, & 8528.
    Indicator panels incorporating              8531.20  CFC-113..................  0.0146
     liquid crystal devices or light
     emitting diodes.
    Printed circuits...................            8534  CFC-113..................  0.001
    Computerized numerical controls....   8537.10.00.30  CFC-113..................  0.1306
    Diodes, crystals, transistors and              8541  CFC-113..................  0.0001
     other similar discrete
     semiconductor devices.
    Electronic integrated circuits and             8542  CFC-113..................  0.0002
     microassemblies.
    Signal generators..................         8543.20  CFC-113..................  0.6518
    Avionics...........................      8543.90.40  CFC-113..................  0.915
    Signal generators subassemblies....      8543.90.80  CFC-113..................  0.1265
    Insulated or refrigerated railway              8606  CFC-11...................  \1\100.
     freight cars.

[[Page 40]]

 
    Passenger automobiles..............            8703  .........................  ............................
        Foams (interior)...............  ..............  CFC-11...................  0.8
        Foams (exterior)...............  ..............  CFC-11...................  0.7
        With charged a/c...............  ..............  CFC-12...................  2.0
        Without charged a/c............  ..............  CFC-12...................  0.2
        Electronics....................  ..............  CFC-113..................  0.5
    Light trucks.......................            8704  .........................  ............................
        Foams (interior)...............  ..............  CFC-11...................  0.6
        Foams (exterior)...............  ..............  CFC-11...................  0.1
        With charged a/c...............  ..............  CFC-12...................  2.0
        Without charged a/c............  ..............  CFC-12...................  0.2
        Electronics....................  ..............  CFC-113..................  0.4
    Heavy trucks and tractors, GVW                 8704  .........................  ............................
     33,001 lbs or more: \2\.
        Foams (interior)...............  ..............  CFC-11...................  0.6
        Foams (exterior)...............  ..............  CFC-11...................  0.1
        With charged a/c...............  ..............  CFC-12...................  3.0
        Without charged a/c............  ..............  CFC-12...................  0.2
        Electronics....................  ..............  CFC-113..................  0.4
    Motorcycles with seat foamed with              8711  CFC-11...................  0.04
     ODCs.
    Bicycles with seat foamed with ODCs            8712  CFC-11...................  0.04
    Seats foamed with ODCs.............         8714.95  CFC-11...................  0.04
    Aircraft...........................            8802  CFC-12...................  0.25 lb/1000 lbs Operating
                                                                                     Empty Weight (OEW).
                                         ..............  CFC-113..................  30.0 lbs./1000 lbs.OEW
    Optical fibers.....................            9001  CFC-12...................  0.005 lb/thousand feet.
    Electronic cameras.................            9006  CFC-113..................  0.01
    Photocopiers.......................            9009  CFC-113..................  0.0426
    Avionics...........................         9014.20  CFC-113..................  0.915
    Electronic drafting machines.......            9017  CFC-113..................  0.12
    Complete patient monitoring systems      9018.19.80  CFC-12...................  0.94
                                                         CFC-113..................  3.4163
    Complete patient monitoring           9018.19.80.60  CFC-113..................  1.9320
     systems; subassemblies thereof.
    Physical or chemical analysis                  9027  CFC-12...................  0.0003
     instruments.                                        CFC-113..................  0.0271
    Oscilloscopes......................            9030  CFC-11...................  0.49
                                                         CFC-12...................  0.5943
                                                         CFC-113..................  0.2613
    Foam chairs........................            9401  CFC-11...................  0.30
    Foam sofas.........................            9401  CFC-11...................  0.75
    Foam mattresses....................         9404.21  CFC-11...................  1.60
    Electronic games and electronic                9504  CFC-113..................  ............................
     components thereof.
Electronic items not otherwise listed
 in the Table:
    Included in HTS chapters 84, 85, 90  ..............  CFC-113..................  0.0004 pound/$1.00 of entry
                                                                                     value.
    Not included in HTS chapters 84,     ..............  CFC-113..................  0.0004 pound/$1.00 of entry
     85, 90 \3\.                                                                     value.
 
PART III--Products that are not
 Imported Taxable Products:
    Room air conditioners..............   8415.10.00.60  .........................  ............................
    Dishwashers........................         8422.11  .........................  ............................
    Clothes washers....................         8450.11  .........................  ............................
    Clothes dryers.....................         8451.21  .........................  ............................
    Floppy disk drive units............         8471.93  .........................  ............................
    Transformers and inductors.........            8504  .........................  ............................
    Toasters...........................         8516.72  .........................  ............................
    Unrecorded media...................            8523  .........................  ............................
    Recorded media.....................            8524  .........................  ............................
    Capacitors.........................            8532  .........................  ............................
    Resistors..........................            8533  .........................  ............................
    Switching apparatus................            8536  .........................  ............................
    Cathode tubes......................            8540  .........................  ............................
----------------------------------------------------------------------------------------------------------------
\1\ See paragraph (e)(3)(ii)(C) of this section. Denotes an ODC used in the manufacture of rigid foam
  insulation.
\2\ See paragraph (f)(2)(ii)(A) of this section. Denotes product for which the effective date is October 1,
  1990.
\3\ See paragraph (f)(2)(ii)(B) of this section. Denotes products for which the effective date is January 1,
  1992.

    (g) Requests for modification of Table--(1) In general. Any 
manufacturer or importer of a product may request that

[[Page 41]]

the Secretary modify the Table in any of the following respects:
    (i) Adding a product to the Table and specifying its Table ODC 
weight.
    (ii) Removing a product from the Table.
    (iii) Changing or specifying the Table ODC weight of a product.
    (2) Form of request. The Secretary will consider a request for 
modification that includes the following:
    (i) The name, address, taxpayer identifying number, and principal 
place of business of the requester.
    (ii) For each product with respect to which a modification is 
requested:
    (A) The name of the product;
    (B) The HTS heading or subheading;
    (C) The type of modification requested;
    (D) The Table ODC weight that should be specified for the product if 
the request relates to adding a product or changing or specifying its 
Table ODC weight; and
    (E) The data supporting the request.
    (3) Address. The address for submission of requests under this 
paragraph (g) is: Internal Revenue Service, P.O. Box 7604, Ben Franklin 
Station, Attn: CC:CORP:T:R (Imported Products Table), room 5228, 
Washington, DC 20044.
    (4) Public inspection and copying. Requests submitted under this 
paragraph (g) will be available in the Internal Revenue Service Freedom 
of Information Reading Room for public inspection and copying.

[T.D. 8370, 56 FR 56311, Nov. 4, 1991, as amended by T.D. 8370, 58 FR 
14518, Mar. 18, 1993]



Sec.  52.4682-4  Floor stocks tax.

    (a) Overview. This section provides rules for identifying ozone-
depleting chemicals (ODCs) that are subject to the floor stocks tax 
imposed by section 4682(h)(1), determining the person that is liable for 
the tax, and computing the amount of the tax. See Sec.  52.4681-1(a)(3) 
and (c) for general rules and definitions relating to the floor stocks 
tax.
    (b) Identifying rules--(1) ODCs subject to floor stocks tax; ODCs 
held for sale or for use in further manufacture--(i) In general. The 
floor stocks tax is imposed only on an ODC that is held for sale or for 
use in further manufacture on the date the tax is imposed. This 
paragraph (b)(1) provides rules for identifying ODCs held for sale or 
for use in further manufacture.
    (ii) Held for sale--(A) In general. For purposes of determining 
whether an ODC is held for sale, the term sale shall have the meaning 
set forth in Sec.  52.4681-1(c)(6). ODCs held for sale include ODCs that 
will be sold in connection with the provision of services or in 
connection with the sale of a manufactured article and, in such cases, 
include ODCs that will be sold without the statement of a separate 
charge for those ODCs.
    (B) ODCs held by a government. An ODC that is held by a government 
for its own use is not held for sale even if the ODC will be transferred 
between agencies or other subdivisions that have or are required to have 
different employer identification numbers.
    (iii) Held for use in further manufacture. Except as otherwise 
provided in paragraph (b)(2)(v) of this section, an ODC is held for use 
in further manufacture if--
    (A) The ODC will be used as a material (within the meaning of 
paragraph (b)(1)(iv) of this section) in the manufacture of an article; 
and
    (B) Such article will be held for sale.
    (iv) Use as material--(A) In general. Except as provided in 
paragraph (b)(1)(iv)(B) of this section, an ODC will be used as a 
material in the manufacture of an article if the ODC will be--
    (1) Incorporated into the article; or
    (2) Released into the atmosphere in the process of manufacturing the 
article.
    (B) ODCs used in equipment. For purposes of the floor stocks tax, an 
ODC is not used as a material in the manufacture of an article if the 
ODC is (or will be) contained in equipment used in such manufacture and 
the ODC will be used for its intended purpose without being released 
from such equipment. Thus, ODCs that are (or will be) used as coolants 
in a factory's air-conditioning system are not used as materials in the 
manufacture of articles produced in the factory.
    (v) Storage containers. The floor stocks tax is imposed on an ODC 
without regard to the type or size of the storage container in which the 
ODC is held. Thus, the tax may apply to an

[[Page 42]]

ODC whether it is in a 14-ounce can or a 30-pound tank.
    (vi) Examples. The provisions of this paragraph (b)(1) may be 
illustrated by the following examples:

    Example 1. A, a manufacturer of air conditioners, holds an ODC for 
use in air conditioners that it will manufacture and sell. A holds the 
ODC for use in further manufacture.
    Example 2. B, a manufacturer of electronic components, holds an ODC 
for use as a solvent to clean printed circuits that it will sell to 
computer manufacturers. B holds the ODC for use in further manufacture.
    Example 3. C, an automobile dealer, holds an ODC for use in charging 
air conditioners installed in automobiles that it sells to retail 
customers. C does not hold the ODC for use in further manufacture. C 
does, however, hold the ODC for sale, even if the customers are not 
separately charged for ODCs used in the automobile air conditioners.
    Example 4. D operates an air-conditioning repair service and holds 
an ODC for use in repairing air conditioners for its customers. D holds 
the ODC for sale even if the customers are not separately charged for 
ODCs used in the repairs.
    Example 5. E, a grocery-store chain, holds an ODC for use in its 
refrigeration units. E does not hold the ODC for sale or for use in 
further manufacture.
    Example 6. F, a bank, holds an ODC for use in its fire extinguishers 
to protect the computer system. F does not hold the ODC for sale or for 
use in further manufacture.
    Example 7. G, a government agency, holds an ODC for use in the 
refrigeration equipment of its various units. The units have separate 
employer identification numbers. The ODC is stored in a central 
warehouse until needed by a unit and then transferred to the unit upon 
request. G does not hold the ODC for sale or for use in further 
manufacture.

    (2)(i) Mixtures--(A) Tax imposed on January 1, 1990. In the case of 
the floor stocks tax imposed on January l, 1990, the tax is not imposed 
on an ODC that has been mixed with any other ingredients.
    (B) Taxes imposed after 1990--(1) In general. In the case of the 
floor stocks tax imposed on January 1 of a calendar year after 1990, the 
tax is not imposed on an ODC that has been mixed with any other 
ingredients, but only if it is established that such ingredients 
contribute to the accomplishment of the purpose for which the mixture 
will be used. A mixture is not exempt from tax under this paragraph 
(b)(2)(i)(B), however, if it contains only an ODC and an inert 
ingredient that does not contribute to the accomplishment of the purpose 
for which the mixture will be used.
    (2) Exception. In the case of a floor stocks tax imposed on or after 
January 1, 1992, a mixture is not exempt from floor stocks tax under 
this paragraph (b)(2)(i)(B) if it contains only ODCs and one or more 
stabilizers. For this purpose, the term stabilizer means an ingredient 
needed to maintain the chemical integrity of the ODC.
    (C) Examples. The provisions of this paragraph (b)(2)(i) may be 
illustrated by the following examples:

    Example 1. The floor stocks tax is not imposed on the ODCs contained 
in refrigerants such as R-500 and R-502 because such products are 
mixtures of ODCs and other chemicals that contribute to the 
accomplishment of the purpose for which the mixture will be used.
    Example 2. The floor stocks tax is not imposed on the ODCs contained 
in automotive products used for checking for leaks because such products 
are a mixture of ODCs and small amounts of dyes and oils that contribute 
to the accomplishment of the purpose for which the mixture will be used.
    Example 3. The floor stocks tax is not imposed on Halon 1301 
pressurized with nitrogen. Although nitrogen is an inert ingredient, it 
contributes to the accomplishment of the purpose for which the mixture 
will be used.
    Example 4. On January 1, 1993, the floor stocks tax is imposed on 
methyl chloroform that is stabilized to prevent hydrolization or 
chemical reaction during transportation or use, unless the stabilized 
methyl chloroform has also been mixed with other ingredients that 
contribute to the accomplishment of the purpose for which the mixture 
will be used.

    (ii) Manufactured articles. The floor stocks tax is not imposed on 
an ODC that is contained in a manufactured article in which the ODC will 
be used for its intended purpose without being released from such 
article. For example, the tax is not imposed on the ODCs contained in 
the cooling coils of a refrigerator even if the refrigerator is held for 
sale. However, the tax is imposed on a can of ODC used to recharge an 
air conditioning unit because the ODC must be expelled from the can in 
order to be used. Similarly, beginning in 1991, the tax is imposed on 
Halons

[[Page 43]]

contained in a fire extinguisher held for sale because such ODCs must be 
expelled from the fire extinguisher in order to be used.
    (iii) Recycled ODCs. The floor stocks tax is not imposed on ODCs 
that have been reclaimed or recycled. For example, the tax is not 
imposed on an ODC that is held for use in further manufacture after 
being used as a solvent and recycled.
    (iv) ODCs held by the manufacturer or importer. The floor stocks tax 
is not imposed on ODCs held by their manufacturer or importer.
    (v) ODCs used as a feedstock--(A) In general. The floor stocks tax 
is not imposed on any ODC that was sold in a qualifying sale for use as 
a feedstock (as defined in Sec.  52.4682-1(c)).
    (B) Post-1989 ODCs sold before January 1, 1990; post-1990 ODCs sold 
before January 1, 1991. A post-1989 ODC that was sold by its 
manufacturer or importer before January 1, 1990, or a post-1990 ODC that 
was sold by its manufacturer or importer before January 1, 1991, shall 
be treated, for purposes of this paragraph (b)(2)(v), as an ODC that was 
sold in a qualifying sale for purposes of Sec.  52.4682-1(c) if the ODC 
will be used as a feedstock (within the meaning of Sec.  52.4682-
2(c)(3)).
    (vi) ODCs to be exported--(A) In general. The floor stocks tax is 
not imposed on any ODC that was sold in a qualifying sale for export (as 
defined in Sec.  52.4682-5(d)(1)).
    (B) ODCs sold before January 1, 1993. An ODC that was sold by its 
manufacturer or importer before January 1, 1993, is treated, for 
purposes of this paragraph (b)(2)(vi), as an ODC that was sold in a 
qualifying sale for export for purposes of Sec.  52.4682-5(d)(1) if the 
ODC will be exported.
    (vii) ODCs used as propellants in metered-dose inhalers; years after 
1992--(A) In general. The floor stocks tax is not imposed on January 1 
of calendar years after 1992 on any ODC that was sold in a qualifying 
sale for use as a propellant in a metered-dose inhaler (as defined in 
Sec.  52.4682-1(h)).
    (B) ODCs sold before January 1, 1993. An ODC that was sold by its 
manufacturer or importer before January 1, 1993, is treated, for 
purposes of this paragraph (b)(2)(vii), as an ODC that was sold in a 
qualifying sale for purposes of Sec.  52.4682-1(h) if the ODC will be 
used as a propellant in a metered-dose inhaler (within the meaning of 
Sec.  52.4682-1(h)).
    (viii) ODCs used as medical sterilants; 1993. The floor stocks tax 
is not imposed in 1993 on any ODC held for use as a medical sterilant 
(as defined in Sec.  52.4682-1(g)).
    (c) Person liable for tax--(1) In general. The person liable for the 
floor stocks tax on an ODC is the person that holds the ODC on a date on 
which the tax is imposed. The person who holds the ODC is the person who 
has title to the ODC (whether or not delivery to such person has been 
made) as of the first moment of such date. The person who has title at 
such time is determined under applicable local law.
    (2) Special rule. Each business unit that has, or is required to 
have, its own employer identification number is treated as a separate 
person for purposes of the floor stocks tax. For example, a chain of 
automotive parts stores that has one employer identification number is 
one person for purposes of the floor stocks tax, and a parent 
corporation and subsidiary corporation that each have a different 
employer identification number are two persons for purposes of the floor 
stocks tax.
    (d) Computation of tax; tentative tax amount--(1) In general--(i) 
Generally applicable rules. This paragraph (d) provides rules for 
determining the tentative tax amount and the amount of the floor stocks 
tax. Section 52.4681-1(a)(3) provides that the amount of the floor 
stocks tax on an ODC is determined by reference to a tentative tax 
amount. The tentative tax amount is the amount of tax that would be 
imposed on the ODC under section 4681(a)(1) if a sale of the ODC by the 
manufacturer or importer had occurred on the date the floor stocks tax 
is imposed. The amount of the floor stocks tax imposed on the ODCs 
contained in a nonexempt mixture is computed on the basis of the weight 
of the ODCs in that mixture.
    (ii) Floor stocks tax imposed on post-1989 ODCs on January 1, 1990. 
The floor stocks tax imposed on post-1989 ODCs (as defined in Sec.  
52.4681-1(c)(9)) on January 1, 1990, is equal to the tentative tax

[[Page 44]]

amount. See paragraph (d)(2) of this section for rules relating to the 
floor stocks tax imposed on ODCs used in the manufacture of rigid foam 
insulation. See paragraph (d)(3) of this section for rules relating to 
the floor stocks tax imposed on Halons.
    (iii) Floor stocks tax imposed on post-1990 ODCs on January 1, 1991. 
The floor stocks tax imposed on post-1990 ODCs (as defined in Sec.  
52.4681-1(c)(9)) on January 1, 1991, is equal to the tentative tax 
amount.
    (iv) Other floor stocks taxes--(A) In general. The following rules 
apply for floor stocks taxes imposed on post-1989 ODCs after January 1, 
1990, and on post-1990 ODCs after January 1, 1991:
    (1) The tentative tax amount is determined, except as provided in 
paragraph (d)(2), (3), or (4) of this section, by reference to the rate 
of tax prescribed in section 4681(b)(1)(B) and the ozone-depletion 
factors prescribed in section 4682(b).
    (2) The amount of the floor stocks tax on an ODC is equal to the 
amount by which the tentative tax amount exceeds the amount of taxes 
previously imposed on the ODC.
    (B) Example. The application of this paragraph (d)(1)(iv) may be 
illustrated by the following example:

    Example. The floor stocks tax imposed on one pound of CFC-12 held 
for sale on January 1, 1992, is $0.30 (the amount by which $1.67, the 
tentative tax, exceeds $1.37, the tax previously imposed on CFC-12).

    (2) ODCs used in the manufacture of rigid foam insulation; 1990, 
1991, 1992, and 1993--(i) In general. In the case of an ODC that was 
sold in a qualifying sale for purposes of Sec.  52.4682-1(d) (relating 
to use in the manufacture of rigid foam insulation) the tentative tax 
amount is determined under section 4682(g) for purposes of computing the 
floor stocks tax imposed on the ODC on January 1, 1990, 1991, 1992 or 
1993. For purposes of computing the floor stocks tax imposed on the ODC 
on January 1, 1990, the tentative tax amount is zero. The floor stocks 
tax is not imposed on ODCs for use in the manufacture of rigid foam 
insulation in 1992 and 1993.
    (ii) Post-1989 ODCs sold before January 1, 1990; post-1990 ODCs sold 
before January 1, 1991. A post-1989 ODC that was sold by its 
manufacturer or importer before January 1, 1990, or a post-1990 ODC that 
was sold by its manufacturer or importer before January 1, 1991, shall 
be treated, for purposes of paragraphs (d)(2) and (e) of this section, 
as an ODC that was sold in a qualifying sale for purposes of Sec.  
52.4682-1(d) if the ODC wi11 be used in the manufacture of rigid foam 
insulation (within the meaning of Sec. Sec.  52.4682-1(d) (3) and (4)).
    (3) Halons; 1990, 1991, 1992, and 1993. In the case of Halon-1211, 
Halon-1301, or Halon-2402 (Halons), the tentative tax amount is 
determined under section 4682(g) for purposes of computing the floor 
stocks tax imposed on Halons on January 1, 1990, 1991, 1992, or 1993. 
For purposes of computing the floor stocks tax imposed on Halons on 
January 1, 1990, the tentative tax amount is zero. The floor stocks tax 
is not imposed on Halons in 1992 and 1993.
    (4) Methyl chloroform; 1993. In the case of methyl chloroform, the 
tentative tax amount is determined under section 4682(g)(5) for purposes 
of computing the floor stocks tax imposed on January 1, 1993.
    (e) De minimis exception--(1) 1990 and 1992. In the case of the 
floor stocks tax imposed on January 1, 1990 or 1992, a person is liable 
for the tax only if, on the date the tax is imposed, the person holds at 
least 400 pounds of post-1989 ODCs that are not described in paragraph 
(d) (2) or (3) of this section and are otherwise subject to tax.
    (2) 1991. In the case of the floor stocks tax imposed on January 1, 
1991, a person is liable for the tax only if, on such date, the person 
holds at least 400 pounds of ODCs subject to the 1991 floor stocks tax. 
For this purpose, ODCs subject to the 1991 floor stocks tax are--
    (i) Post-1990 ODCs that are subject to tax; and
    (ii) Post-1989 ODCs that are described in paragraph (d) (2) or (3) 
of this section and are otherwise subject to tax.
    (3) 1993. In the case of the floor stocks tax imposed on January 1, 
1993, a person is liable for the tax only if, on such date, the person 
holds at least 400 pounds of ODCs that are not described in paragraph 
(d) (2) or (3) of this section and are otherwise subject to tax.
    (4) 1994. In the case of the floor stocks tax imposed on January 1, 
1994,

[[Page 45]]

a person is liable for the tax only if, on such date, the person holds--
    (i) At least 400 pounds of ODCs that are not described in paragraph 
(d)(2) or (d)(3) of this section and are otherwise subject to tax;
    (ii) At least 200 pounds of ODCs that are described in paragraph 
(d)(2) of this section and are otherwise subject to tax; or
    (iii) At least 20 pounds of ODCs that are described in paragraph 
(d)(3) of this section and are otherwise subject to tax.
    (5) Calendar years after 1994. In the case of the floor stocks tax 
imposed on January 1 of 1995 and each following calendar year, a person 
is liable for the tax only if, on such date, the person holds--
    (i) At least 400 pounds of ODCs that are not described in paragraph 
(d)(3) or (d)(4) of this section and are otherwise subject to tax;
    (ii) At least 50 pounds of ODCs that are described in paragraph 
(d)(3) of this section and are otherwise subject to tax; or
    (iii) At least 1000 pounds of ODCs that are described in paragraph 
(d)(4) of this section and are otherwise subject to tax.
    (6) Examples. The rules of this paragraph (e) may be illustrated by 
the following examples:

    Example 1. On January 1, 1990, A holds for sale 300 pounds of CFC-12 
(a post-1989 ODC not described in paragraph (d)(2) or (d)(3) of this 
section)) and 500 pounds of R-500 (a mixture). A does not hold at least 
400 pounds of ODCs that are taken into account under paragraph (e)(1) of 
this section and, under paragraph (b)(2)(i) of this section, mixtures 
are not subject to the floor stocks tax. Thus, A is not liable for the 
floor stocks tax imposed on January 1, 1990.
    Example 2. On January 1, 1990, B holds for sale 250 pounds of CFC-12 
and 250 pounds of CFC-113 (post-1989 ODCs not described in paragraph (d) 
(2) or (3) of this section). B holds 500 pounds of ODCs that are taken 
into account under paragraph (e)(1) of this section. Thus, B is liable 
for the floor stocks tax imposed on January 1, 1990, because B holds at 
least 400 pounds of ODCs for sale.
    Example 3. On January 1, 1990, C holds 200 pounds of post-1990 ODCs 
and 500 pounds of post-1989 ODCs for use in further manufacture. C will 
use 300 pounds of the post-1989 ODCs in the manufacture of rigid foam 
insulation (as defined in Sec.  52.4682-1(d) (3) and (4)). The remainder 
of the ODCs are not described in paragraph (d) (2) or (3) of this 
section. Under paragraph (e)(1) of this section, post-1990 ODCs and ODCs 
that will be used in the manufacture of rigid foam insulation are 
disregarded in determining whether the de minimis exception is 
applicable in 1990. Thus, C holds only 200 pounds of ODCs that are taken 
into account under paragraph (e)(1) of this section and is not liable 
for the floor stocks tax imposed on January 1, 1990.
    Example 4. (a) The facts are the same as in Example 3, except that 
the ODCs are held on January 1, 1991. Under paragraph (e)(2) of this 
section, the 200 pounds of post-1990 ODCs and the 300 pounds of post-
1989 ODCs that will be used in the manufacture of rigid foam insulation 
are taken into account in determining whether the de minimis exception 
is applicable in 1991. Under paragraph (b)(2) of this section, the 
remaining 200 pounds of post-1989 ODCs are not taken into account 
because the base tax amount applicable to post-1989 ODCs does not 
increase in 1991. Thus, C holds 500 pounds of ODCs that are taken into 
account under paragraph (e)(2) of this section and is liable for the 
floor stocks tax imposed on January 1, 1991.
    (b) The amount of the floor stocks tax imposed on the 200 pounds of 
post-1990 ODCs and the 300 pounds of post-1989 ODCs that will be used in 
the manufacture of rigid foam insulation is equal to the tentative tax 
amount because those ODCs were not previously subject to tax.
    Example 5. (a) On January 1, 1994, D holds for sale 300 pounds of 
CFC-113 (an ODC not described in paragraph (d)(2) or (d)(3) of this 
section) and 25 pounds of Halon-1301 (an ODC described in paragraph 
(d)(3) of this section). D is liable for the floor stocks tax imposed on 
January 1, 1994, because 25 pounds of Halon-1301 exceeds the de minimis 
amount specified in paragraph (e)(4)(iii) of this section. The 300 
pounds of CFC-113 is less than the amount specified in paragraph 
(e)(4)(i) of this section. Nevertheless, tax is imposed on both the 25 
pounds of Halon-1301 and the 300 pounds of CFC-113.
    (b) The amount of the floor stocks tax is determined separately for 
the 300 pounds of CFC-113 and the 25 pounds of Halon-1301 and is equal 
to the difference between the tentative tax amount and the amount of tax 
previously imposed on those ODCs. For Halon-1301, for example, the tax 
is determined as follows. The tentative tax amount is $1,087.50 ($4.35 
(the base tax amount in 1994) x 10 (the ozone-depletion factor for 
Halon-1301) x 25 (the number of pounds held)). The tax previously 
imposed on the Halon-1301 is $6.28 ($3.35 (the base tax amount in 1993) 
x 10 (the ozone-depletion factor for Halon-1301) x 0.75 percent (the 
applicable percentage determined under section 4682(g)(2)(A)) x 25 (the 
number of pounds held)). Thus, the floor stocks tax imposed on the 25 
pounds of Halon-1301 in 1994 is

[[Page 46]]

$1,081.22, the difference between $1,087.50 (the tentative tax amount) 
and $6.28 (the tax previously imposed).

    (f) Inventory--(1) In general. If, on the date on which the floor 
stocks tax is imposed, a person holds ODCs for sale or for use in 
further manufacture and the ODCs were not manufactured or imported by 
such person, the following rules apply:
    (i) The person shall prepare an inventory of all such ODCs that the 
person holds on the date on which the tax is imposed.
    (ii) The inventory shall be taken as of the first moment of the date 
on which the tax is imposed, but work-back or work-forward inventories 
will be acceptable if supported by adequate commercial records of 
receipt, use, and disposition of ODCs held for sale or for use in 
further manufacture.
    (iii) The person must maintain records of the inventory and make 
such records available for inspection and copying by internal revenue 
agents and officers. Records of the inventory are not to be filed with 
the Internal Revenue Service.
    (2) Circumstances in which an inventory is not required. The 
inventory requirement of paragraph (f)(1) of this section does not apply 
to any person holding, on a date on which floor stocks tax is imposed, 
only ODCs that are not subject to tax by reason of a statutory exemption 
(e.g., use as a feedstock) or regulatory exclusion other than the de 
minimis exception provided by paragraph (e) of this section (e.g., 
mixtures). In addition, any person that holds ODCs subject to the floor 
stocks tax and also holds ODCs that are nontaxable under the provisions 
of paragraph (b)(2) of this section, is not required to inventory the 
nontaxable ODCs. However, any person that holds any ODCs that either are 
subject to the floor stocks tax or would be subject to the floor stocks 
tax but for the de minimis exception must inventory those ODCs.
    (3) Examples. The rules of this paragraph (f) may be illustrated by 
the following examples:

    Example 1. On January 1, 1990, A holds for sale 300 pounds of CFC-12 
(a post-1989 ODC not described in paragraph (d)(2) or (d)(3) of this 
section) and 500 pounds of R-500 (a mixture). As required by paragraph 
(f)(1) of this section, A must prepare an inventory of the CFC-12 A 
holds for sale on that date even though, under paragraph (e)(1) of this 
section, the 300 pounds of CFC-12 is not taken into account because it 
is de minimis. However, as provided in paragraph (f)(2) of this section, 
A is not required to inventory the R-500 because, under paragraph (b)(2) 
of this section, mixtures are not subject to the floor stocks tax.
    Example 2. On January 1, 1991, B holds for sale 1,000 pounds of CFC-
12 (a post-1989 ODC not described in paragraph (d)(2) or (d)(3) of this 
section). As provided under paragraph (f)(2) of this section, B is not 
required to prepare an inventory because CFC-12 is not subject to the 
floor stocks tax in 1991.

    (g) Time for paying tax. The floor stocks tax imposed under section 
4682(h) shall be paid without assessment or notice. In the case of the 
floor stocks tax imposed on January 1, 1990, the tax shall be paid by 
April 1, 1990. In the case of floor stocks taxes imposed after January 
1, 1990, the tax shall be paid by June 30 of the year in which the tax 
is imposed.

[T.D. 8370, 56 FR 56317, Nov. 4, 1991, as amended by T.D. 8622, 60 FR 
52852, Oct. 11, 1995]



Sec.  52.4682-5  Exports.

    (a) Overview. This section provides rules relating to the tax 
imposed under section 4681 on ozone-depleting chemicals (ODCs) that are 
exported. In general, tax is not imposed on ODCs that a manufacturer or 
importer sells for export, or for resale by the purchaser to a second 
purchaser for export, if the procedural requirements set forth in 
paragraph (d) of this section are met. The tax benefit of this exemption 
is limited, however, to the manufacturer's or importer's exemption 
amount. Thus, if the tax that would otherwise be imposed under section 
4681 on ODCs that a manufacturer or importer sells for export exceeds 
this exemption amount, a tax equal to the excess is imposed on the ODCs. 
The exemption amount, which is determined separately for post-1989 ODCs 
and post-1990 ODCs, is calculated for each calendar year in accordance 
with the rules of paragraph (c) of this section. This section also 
provides rules under which a tax imposed under section 4681 on exported 
ODCs may be credited or refunded, subject to the same limit on

[[Page 47]]

tax benefits, if the procedural requirements set forth in paragraph (f) 
of this section are met. See Sec.  52.4681-1(c) for definitions relating 
to the tax on ODCs.
    (b) Exemption or partial exemption from tax--(1) In general. Except 
as provided in paragraph (b)(2) of this section, no tax is imposed on an 
ODC if the manufacturer or importer of the ODC sells the ODC in a 
qualifying sale for export (within the meaning of paragraph (d)(1) of 
this section).
    (2) Tax imposed if exemption amount exceeded--(i) Post-1989 ODCs. 
The tax imposed on post-1989 ODCs that a manufacturer or importer sells 
in qualifying sales for export during a calendar year is equal to the 
excess (if any) of--
    (A) The tax that would be imposed on the ODCs but for section 
4682(d)(3) and this section; over
    (B) The post-1989 ODC exemption amount for the calendar year 
determined under paragraph (c)(1) of this section.
    (ii) Post-1990 ODCs. The tax imposed on post-1990 ODCs that a 
manufacturer or importer sells in qualifying sales for export during a 
calendar year is equal to the excess (if any) of--
    (A) The tax that would be imposed on the ODCs but for section 
4682(d)(3) and this section; over
    (B) The post-1990 ODC exemption amount for the calendar year 
determined under paragraph (c)(2) of this section.
    (iii) Allocation of tax--(A) Post-1989 ODCs. The tax (if any) 
determined under paragraph (b)(2)(i) of this section may be allocated 
among the post-1989 ODCs on which it is imposed in any manner, provided 
that the amount allocated to any post-1989 ODC does not exceed the tax 
that would be imposed on such ODC but for section 4682(d)(3) and this 
section.
    (B) Post-1990 ODCs. The tax (if any) determined under paragraph 
(b)(2)(ii) of this section may be allocated among the post-1990 ODCs on 
which it is imposed in any manner, provided that the amount allocated to 
any post-1990 ODC does not exceed the tax that would be imposed on such 
ODC but for section 4682(d)(3) and this section.
    (c) Exemption amount--(1) Post-1989 ODC exemption amount. A 
manufacturer's or importer's post-1989 ODC exemption amount for a 
calendar year is the sum of the following amounts:
    (i) The 1986 export percentage of the aggregate tax that would (but 
for section 4682(d), section 4682(g), and this section) be imposed under 
section 4681 on the maximum quantity, determined without regard to 
additional production allowances, of post-1989 ODCs that the person is 
permitted to manufacture during the calendar year under rules prescribed 
by the Environmental Protection Agency (40 CFR part 82).
    (ii) The aggregate tax that would (but for section 4682(d), section 
4682(g), and this section) be imposed under section 4681 on post-1989 
ODCs that the person manufactures during the calendar year under any 
additional production allowance granted by the Environmental Protection 
Agency.
    (iii) The aggregate tax that would (but for section 4682(d), section 
4682(g), and this section) be imposed under section 4681 on post-1989 
ODCs imported by the person during the calendar year.
    (2) Post-1990 ODC exemption amount. A manufacturer's or importer's 
post-1990 ODC exemption amount for a calendar year is the sum of the 
following amounts:
    (i) The 1989 export percentage of the aggregate tax that would (but 
for section 4682(d), section 4682(g), and this section) be imposed under 
section 4681 on the maximum quantity, determined without regard to 
additional production allowances, of post-1990 ODCs the person is 
permitted to manufacture during the calendar year under rules prescribed 
by the Environmental Protection Agency.
    (ii) The aggregate tax that would (but for section 4682(d), section 
4682(g), and this section) be imposed under section 4681 on post-1990 
ODCs that the person manufactures during the calendar year under any 
additional production allowance granted by the Environmental Protection 
Agency.
    (iii) The aggregate tax that would (but for section 4682(d), section 
4682(g), and this section) be imposed under section 4681 on post-1990 
ODCs imported by the person during the calendar year.
    (3) Definitions--(i) 1986 export percentage. See section 
4682(d)(3)(B)(ii) for the meaning of the term 1986 export percentage.

[[Page 48]]

    (ii) 1989 export percentage. See section 4682(d)(3)(C) for the 
meaning of the term 1989 export percentage.
    (d) Procedural requirements relating to tax-free sales for export--
(1) Qualifying sales--(i) In general. A sale of ODCs is a qualifying 
sale for export if--
    (A) The seller is the manufacturer or importer of the ODCs and the 
purchaser is a purchaser for export or for resale to a second purchaser 
for export;
    (B) At the time of the sale, the seller and the purchaser are 
registered with the Internal Revenue Service; and
    (C) At the time of the sale, the seller--
    (1) Has an unexpired certificate in substantially the form set forth 
in paragraph (d)(3)(ii) of this section from the purchaser; and
    (2) Relies on the certificate in good faith.
    (ii) Qualifying resale. A sale of ODCs is a qualifying resale for 
export if--
    (A) The seller acquired the ODCs in a qualifying sale for export and 
the purchaser is a second purchaser for export;
    (B) At the time of the sale, the seller and the purchaser are 
registered with the Internal Revenue Service; and
    (C) At the time of the sale, the seller--
    (1) Has an unexpired certificate in substantially the form set forth 
in paragraph (d)(3)(ii)(A) of this section from the purchaser of the 
ODCs; and
    (2) Relies on the certificate in good faith.
    (iii) Special rule relating to sales made before July 1, 1993. If a 
sale for export made before July 1, 1993, satisfies all the requirements 
of paragraph (d)(1)(i) or (ii) of this section other than those relating 
to registration, the sale will be treated as a qualifying sale (or 
resale) for export. Thus, a sale made before July 1, 1993, may be a 
qualifying sale (or resale) even if the parties to the sale are not 
registered and the required certificate does not contain statements 
regarding registration.
    (iv) Registration. Application for registration is made on Form 637 
(or any other form designated for the same use by the Commissioner) 
according to the instructions applicable to the form. A person is 
registered only if the district director has issued that person a letter 
of registration and it has not been revoked or suspended. The effective 
date of the registration must be no earlier than the date on which the 
district director signs the letter of registration. Each business unit 
that has, or is required to have, a separate employer identification 
number is treated as a separate person.
    (2) Good faith reliance. The requirements of paragraph (d)(1) of 
this section are not satisfied with respect to a sale of ODCs and the 
sale is not a qualifying sale (or resale) if, at the time of the sale--
    (i) The seller has reason to believe that the ODCs are not purchased 
for export; or
    (ii) The Internal Revenue Service has notified the seller that the 
purchaser's registration has been revoked or suspended.
    (3) Certificate--(i) In general. The certificate required under 
paragraph (d)(1) of this section consists of a statement executed and 
signed under penalties of perjury by a person with authority to bind the 
purchaser, in substantially the same form as model certificates provided 
in paragraph (d)(3)(ii) of this section, and containing all information 
necessary to complete such model certificate. A new certificate must be 
given if any information in the current certificate changes. The 
certificate may be included as part of any business records normally 
used to document a sale. The certificate expires on the earliest of the 
following dates--
    (A) The date one year after the effective date of the certificate;
    (B) The date the purchaser provides a new certificate to the seller; 
or
    (C) The date the seller is notified by the Internal Revenue Service 
or the purchaser that the purchaser's registration has been revoked or 
suspended.
    (ii) Model certificates--(A) ODCs sold for export by the purchaser. 
If the purchaser will export the ODCs, the certificate must be in 
substantially the following form:

    CERTIFICATE OF PURCHASER OF CHEMICALS FOR EXPORT BY THE PURCHASER

  (To support tax-free sales under section 4682(d)(3) of the Internal 
                             Revenue Code.)

Effective Date__________________________________________________________

[[Page 49]]

Expiration Date_________________________________________________________
 (not more than one year
 after effective date)
    The undersigned purchaser (Purchaser) certifies the following under 
penalties of perjury:
    Purchaser is registered with the Internal Revenue Service as a 
purchaser of ozone-depleting chemicals for export under registration 
number _____. Purchaser's registration has not been suspended or revoked 
by the Internal Revenue Service.
    The following percentage of ozone-depleting chemicals purchased 
from:
________________________________________________________________________
(Name of seller)
________________________________________________________________________
(Address of seller)
________________________________________________________________________
(Taxpayer identifying number of seller)

are purchased for export by Purchaser.

------------------------------------------------------------------------
                          Product                             Percentage
------------------------------------------------------------------------
CFC-11.....................................................        _____
CFC-12.....................................................        _____
CFC-113....................................................        _____
CFC-114....................................................        _____
CFC-115....................................................        _____
Halon-1211.................................................        _____
Halon-1301.................................................        _____
Halon-2402.................................................        _____
Carbon tetrachloride.......................................        _____
Methyl chloroform..........................................        _____
 Other (specify)
 _______...................................................        _____
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

___ All shipments to Purchaser at the following location(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ All shipments to Purchaser under the following Purchaser account 
          number(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ All shipments to Purchaser under the following purchase order(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ One or more shipments to Purchaser identified as follows:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Purchaser understands that Purchaser will be liable for tax imposed 
under section 4681 if Purchaser does not export the ODCs to which this 
certificate applies.

    Purchaser understands that any use of the ODCs to which this 
certificate applies other than for export may result in the revocation 
of Purchaser's registration.

    Purchaser will retain the business records needed to document the 
export of the ozone-depleting chemicals to which this certificate 
applies and will make such records available for inspection by 
Government officers.

    Purchaser has not been notified by the Internal Revenue Service that 
its registration has been revoked or suspended.

    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.

________________________________________________________________________
Name of Purchaser
________________________________________________________________________
Address of Purchaser
________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number of Purchaser
________________________________________________________________________
Title of person signing
________________________________________________________________________
Printed or typed name of person signing
________________________________________________________________________
Signature

    (B) ODCs sold by the purchaser for resale for export by the second 
purchaser. If the purchaser will resell the ODCs to a second purchaser 
for export by the second purchaser, the certificate must be in 
substantially the following form:

   CERTIFICATE OF PURCHASER OF CHEMICALS FOR RESALE FOR EXPORT BY THE 
                            SECOND PURCHASER

  (To support tax-free sales under section 4682(d)(3) of the Internal 
                             Revenue Code.)

Effective Date__________________________________________________________
Expiration Date_________________________________________________________
 (not more than one year
 after effective date)
    The undersigned purchaser (Purchaser) certifies the following under 
penalties of perjury:
    Purchaser is registered with the Internal Revenue Service as a 
purchaser of ozone-depleting chemicals for export under registration 
number _____. Purchaser's registration has not been suspended or revoked 
by the Internal Revenue Service.
    The following percentage of ozone-depleting chemicals purchased 
from:
________________________________________________________________________
(Name of seller)
________________________________________________________________________
(Address of seller)
________________________________________________________________________
(Taxpayer identifying number of seller)

will be resold by Purchaser to persons (Second Purchasers) that certify 
to Purchaser

[[Page 50]]

that they are (1) registered with the Internal Revenue Service as 
purchasers of ozone-depleting chemicals for export and (2) purchasing 
the ozone-depleting chemicals for export.

------------------------------------------------------------------------
                          Product                             Percentage
------------------------------------------------------------------------
CFC-11.....................................................        _____
CFC-12.....................................................        _____
CFC-113....................................................        _____
CFC-114....................................................        _____
CFC-115....................................................        _____
Halon-1211.................................................        _____
Halon-1301.................................................        _____
Halon-2402.................................................        _____
Carbon tetrachloride.......................................        _____
Methyl chloroform..........................................        _____
 Other (specify)
_______....................................................        _____
------------------------------------------------------------------------

    This certificate applies to (check and complete as applicable):

___ All shipments to Purchaser at the following location(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ All shipments to Purchaser under the following Purchaser account 
          number(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ All shipments to Purchaser under the following purchase order(s):
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
___ One or more shipments to Purchaser identified as follows:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Purchaser understands that Purchaser will be liable for tax imposed 
under section 4681 if Purchaser does not resell the ODCs to which this 
certificate applies to a Second Purchaser for export or export those 
ODCs.
    Purchaser understands that any use of the ODCs to which this 
certificate applies other than for resale to Second Purchasers for 
export may result in the revocation of Purchaser's registration.
    Purchaser will retain the business records needed to document the 
sales to Second Purchasers for export covered by this certificate and 
will make such records available for inspection by Government officers. 
Purchaser also will retain and make available for inspection by 
Government officers the certificates of its Second Purchasers.
    Purchaser has not been notified by the Internal Revenue Service that 
its registration has been revoked or suspended. In addition, the 
Internal Revenue Service has not notified Purchaser of the revocation or 
suspension of the registration of any Second Purchaser who will purchase 
ozone-depleting chemicals to which this certificate applies.
    Purchaser understands that the fraudulent use of this certificate 
may subject Purchaser and all parties making such fraudulent use of this 
certificate to a fine or imprisonment, or both, together with the costs 
of prosecution.
________________________________________________________________________
Name of Purchaser
________________________________________________________________________
Address of Purchaser
________________________________________________________________________
________________________________________________________________________
Taxpayer Identifying Number of Purchaser
________________________________________________________________________
Title of person signing
________________________________________________________________________
Printed or typed name of person signing
________________________________________________________________________
Signature

    (4) Documentation of export--(i) After December 31, 1992. After 
December 31, 1992, to document the exportation of any ODCs, a person 
must have the evidence required by the Environmental Protection Agency 
as proof that the ODCs were exported.
    (ii) Before January 1, 1993. Before January 1, 1993, to document the 
exportation of any ODCs, a person must have evidence substantially 
similar to that required by the Environmental Protection Agency as proof 
that the ODCs were exported.
    (e) Purchaser liable for tax--(1) Purchaser in qualifying sale. The 
purchaser of ODCs in a qualifying sale for export is treated as the 
manufacturer of the ODC and is liable for any tax imposed under section 
4681 (determined without regard to exemptions for qualifying sales under 
this section or Sec.  52.4682-1) when it sells or uses the ODCs if that 
purchaser does not-
    (i) Export the ODCs and document the exportation of the ODCs in 
accordance with paragraph (d)(4) of this section; or
    (ii) Sell the ODCs in a qualifying resale for export.
    (2) Purchaser in qualifying resale. The purchaser of ODCs in a 
qualifying resale for export is treated as the manufacturer of the ODC 
and is liable for any tax imposed under section 4681 (determined without 
regard to exemptions for qualifying sales under this section or Sec.  
52.4682-1) when it sells or uses the ODCs if that purchaser does not 
export the ODCs and document the exportation of the ODCs in accordance 
with paragraph (d)(4) of this section.

[[Page 51]]

    (f) Credit or refund--(1) In general. Except as provided in 
paragraph (f)(2) of this section, a manufacturer or importer that meets 
the conditions of paragraph (f)(3) of this section is allowed a credit 
or refund (without interest) of the tax it paid to the government under 
section 4681 on ODCs that are exported. Persons other than manufacturers 
and importers of ODCs cannot file claims for credit or refund of tax 
imposed under section 4681 on ODCs that are exported.
    (2) Limitation. The amount of credits or refunds of tax under this 
paragraph (f) is limited--
    (i) In the case of tax paid on post-1989 ODCs sold during a calendar 
year, to the amount (if any) by which the post-1989 exemption amount for 
the year exceeds the tax benefit provided to such post-1989 ODCs under 
paragraph (b) of this section; and
    (ii) In the case of tax paid on post-1990 ODCs sold during a 
calendar year, to the amount (if any) by which the post-1990 exemption 
amount for the year exceeds the tax benefit provided to such post-1990 
ODCs under paragraph (b) of this section.
    (3) Conditions to allowance of credit or refund. The conditions of 
this paragraph (f)(3) are met if the manufacturer or importer--
    (i) Documents the exportation of the ODCs in accordance with 
paragraph (d)(4) of this section; and
    (ii) Establishes that it has--
    (A) Repaid or agreed to repay the amount of the tax to the person 
that exported the ODC; or
    (B) Obtained the written consent of the exporter to the allowance of 
the credit or the making of the refund.
    (4) Procedural rules. See section 6402 and the regulations under 
that section for procedural rules relating to filing a claim for credit 
or refund of tax.
    (g) Examples. The following examples illustrate the provisions of 
this section. In each example, the sales are qualifying sales for export 
(within the meaning of paragraph (d)(1) of this section), all 
registration, certification, and documentation requirements of this 
section are met, and the ODCs sold for export are exported:

    Example 1. (i) Facts. D, a corporation, manufactures CFC-11, a post-
1989 ODC, and does not manufacture or import any other ODCs. In 1993, D 
manufactures 100,000 pounds of CFC-11, the maximum quantity D is allowed 
to manufacture in 1993 under EPA regulations. D has no additional 
production allowance from EPA for 1993. In 1993, the tax on CFC-11 is 
$3.35 per pound. D's 1986 export percentage for post-1989 ODCs is 50%. 
In 1993, D sells 80,000 pounds of CFC-11 in qualifying sales for export. 
The remainder of D's production is not exported.
    (ii) Components of limit on tax benefit. Under paragraph (c)(1) of 
this section, D's exemption amount for 1993 is equal to the sum of--
    (A) D's 1986 export percentage multiplied by the aggregate tax that 
would (but for section 4682(d), section 4682(g), and Sec.  52.4682-5) be 
imposed under section 4681 on the maximum quantity of post-1989 ODCs D 
is permitted to manufacture during 1993;
    (B) The aggregate tax that would (but for section 4682(d), section 
4682(g), and Sec.  52.4682-5) be imposed under section 4681 on post-1989 
ODCs that D manufactures during 1993 under an additional production 
allowance; and
    (C) The aggregate tax that would (but for section 4682(d), section 
4682(g), and Sec.  52.4682-5) be imposed under section 4681 on post-1989 
ODCs imported by D during 1993.
    (iii) Limit on tax benefit. The amounts described in paragraphs 
(ii)(B) and (C) of this Example 1 are equal to zero. Thus, D's 1993 
exemption amount is $167,500 (50% of $335,000 (the tax that would 
otherwise be imposed on 100,000 pounds of CFC-11 in 1993)).
    (iv) Application of limit on tax benefit. Under paragraph (b)(2) of 
this section, the tax imposed on the CFC-11 D sells for export is equal 
to the excess of the tax that would have been imposed on those ODCs but 
for section 4682(d) and Sec.  52.4682-5, over D's 1993 exemption amount. 
But for Sec.  52.4682-5, $268,000 ($3.35 x 80,000) of tax would have 
been imposed on the CFC-11 sold for export. Thus, $100,500 ($268,000 - 
$167,500) of tax is imposed on the CFC-11 sold for export.
    Example 2. (i) Facts. E, a corporation, manufactures CFC-11, a post-
1989 ODC, and does not manufacture or import any other ODCs. In 1993, E 
manufactures 100,000 pounds of CFC-11, the maximum quantity E is allowed 
to manufacture in 1993 under EPA regulations. E has no additional 
production allowance from EPA for 1993. In 1993, the tax on CFC-11 is 
$3.35 per pound. E's 1986 export percentage for post-1989 ODCs is 50%. 
In 1993, E sells 45,000 pounds of CFC-11 tax free in qualifying sales 
for export and pays tax under section 4681 on an additional 35,000 
pounds of exported CFC-11. The remainder of E's production is not 
exported.
    (ii) Limit on tax benefit. E's 1993 exemption amount is $167,500, 
(50% of $335,000 (the tax that would otherwise be imposed on 100,000 
pounds of CFC-11 in 1993)). The credit or refund allowed to E under 
paragraph (f) of this section is limited under paragraph (f)(2) of

[[Page 52]]

this section to the amount by which E's 1993 exemption amount exceeds 
E's 1993 tax benefit under paragraph (b) of this section.
    (iii) Application of limit on tax benefit. Because E sold 45,000 
pounds of CFC-11 tax free in qualifying sales for export in 1993, E's 
1993 tax benefit under paragraph (b) of this section is $150,750 ($3.35 
x 45,000). Thus, the credit or refund allowed to E under paragraph (f) 
of this section is limited to $16,750 ($167,500-$150,750).
    Example 3. (i) Facts. F, a corporation, manufactures CFC-11, a post-
1989 ODC, and does not manufacture any other ODCs. F also imports CFC-
11. In 1993, F manufactures 60,000 pounds of CFC-11 (100,000 pounds is 
the maximum quantity F is allowed to manufacture in 1993 under EPA 
regulations) and imports 40,000 pounds. F has no additional production 
allowance from EPA for 1993. In 1993, the tax on CFC-11 is $3.35 per 
pound. F's 1986 export percentage for post-1989 ODCs is 50%. In 1993, F 
sells 45,000 pounds of CFC-11 tax free in qualifying sales for export 
and pays tax under section 4681 on an additional 35,000 pounds of 
exported CFC-11. The remainder of F's production is not exported.
    (ii) Limit on tax benefit. F's 1993 exemption amount is $301,500, 
($167,500 (50% of $335,000 (the tax that would otherwise be imposed on 
100,000 pounds of CFC-11 in 1993) plus $134,000 (the tax that would 
otherwise be imposed on the 40,000 pounds imported)). The credit or 
refund allowed to F under paragraph (f) of this section is limited under 
paragraph (f)(2) of this section to the amount by which F's 1993 
exemption amount exceeds F's 1993 tax benefit under paragraph (b) of 
this section.
    (iii) Application of limit on tax benefit. Because F sold 45,000 
pounds of CFC-11 tax free in qualifying sales for export in 1993, F's 
1993 tax benefit under paragraph (b) of this section is $150,750 ($3.35 
x 45,000). Thus, the credit or refund allowed to F under paragraph (f) 
of this section is limited to $150,750 ($301,500-$150,750). The 
limitation does not affect F's credit or refund because the tax F paid 
on exported ODCs is only $117,250 ($3.35 x 35,000).

    (h) Effective date. This section is effective January 1, 1993.

[T.D. 8622, 60 FR 52853, Oct. 11, 1995]



PART 53_FOUNDATION AND SIMILAR EXCISE TAXES--Table of Contents



                  Subpart A_Taxes on Investment Income

Sec.
53.4940-1 Excise tax on net investment income.

                     Subpart B_Taxes on Self-Dealing

53.4941(a)-1 Imposition of initial taxes.
53.4941(b)-1 Imposition of additional taxes.
53.4941(c)-1 Special rules.
53.4941(d)-1 Definition of self-dealing.
53.4941(d)-2 Specific acts of self-dealing.
53.4941(d)-3 Exceptions to self-dealing.
53.4941(d)-4 Transitional rules.
53.4941(e)-1 Definitions.
53.4941(f)-1 Effective dates.

             Subpart C_Taxes on Failure To Distribute Income

53.4942(a)-1 Taxes for failure to distribute income.
53.4942(a)-2 Computation of undistributed income.
53.4942(a)-3 Qualifying distributions defined.
53.4942(b)-1 Operating foundations.
53.4942(b)-2 Alternative tests.
53.4942(b)-3 Determination of compliance with operating foundation 
          tests.

               Subpart D_Taxes on Excess Business Holdings

53.4943-1 General rule; purpose.
53.4943-2 Imposition of tax on excess business holdings of private 
          foundations.
53.4943-3 Determination of excess business holdings.
53.4943-4 Present holdings.
53.4943-5 Present holdings acquired by trust or a will.
53.4943-6 Five-year period to dispose of gifts, bequests, etc.
53.4943-7 Special rules for readjustments involving grandfathered 
          holdings.
53.4943-8 Business holdings; constructive ownership.
53.4943-9 Business holdings; certain periods.
53.4943-10 Business enterprise; definition.
53.4943-11 Effective/applicability date.

   Subpart E_Taxes on Investments Which Jeopardize Charitable Purpose

53.4944-1 Initial taxes.
53.4944-2 Additional taxes.
53.4944-3 Exception for program-related investments.
53.4944-4 Special rules.
53.4944-5 Definitions.
53.4944-6 Special rules for investments made prior to January 1, 1970.

                 Subpart F_Taxes on Taxable Expenditures

53.4945-1 Taxes on taxable expenditures.
53.4945-2 Propaganda influencing legislation.
53.4945-3 Influencing elections and carrying on voter registration 
          drives.
53.4945-4 Grants to individuals.
53.4945-5 Grants to organizations.
53.4945-6 Expenditures for noncharitable purposes.

[[Page 53]]

                 Subpart G_Definitions and Special Rules

53.4946-1 Definitions and special rules.

            Subpart H_Application to Certain Nonexempt Trusts

53.4947-1 Application of tax.
53.4947-2 Special rules.

Subpart I_Tax on Investment Income of and Denial of Exemption to Certain 
                          Foreign Organizations

53.4948-1 Application of taxes and denial of exemption with respect to 
          certain foreign organizations.

             Subpart J_Black Lung Benefit Trust Excise Taxes

53.4951-1 Black lung trusts--taxes on self-dealing.
53.4952-1 Black lung trusts--taxes on taxable expenditures.

                   Subpart K_Second Tier Excise Taxes

53.4955-1 Tax on political expenditures.
53.4958-0 Table of contents.
53.4958-1 Taxes on excess benefit transactions.
53.4958-2 Definition of applicable tax-exempt organization.
53.4958-3 Definition of disqualified person.
53.4958-4 Excess benefit transaction.
53.4958-5 Transaction in which the amount of the economic benefit is 
          determined in whole or in part by the revenues of one or more 
          activities of the organization. [Reserved]
53.4958-6 Rebuttable presumption that a transaction is not an excess 
          benefit transaction.
53.4958-7 Correction.
53.4958-8 Special rules.
53.4959-1 Taxes on failures by hospital organizations to meet section 
          501(r)(3).
53.4960-0 Table of contents.
53.4960-1 Scope and definitions.
53.4960-2 Determination of remuneration paid for a taxable year.
53.4960-3 Determination of whether there is a parachute payment.
53.4960-4 Liability for tax on excess remuneration and excess parachute 
          payments.
53.4960-5 [Reserved].
53.4960-6 Applicability date.
53.4961-1 Abatement of second tier taxes for correction within 
          correction period.
53.4961-2 Court proceedings to determine liability for second tier tax.
53.4963-1 Definitions.
53.4965-1 Overview.
53.4965-2 Covered tax-exempt entities.
53.4965-3 Prohibited tax shelter transactions.
53.4965-4 Definition of tax-exempt party to a prohibited tax shelter 
          transaction.
53.4965-5 Entity managers and related definitions.
53.4965-6 Meaning of ``knows or has reason to know''.
53.4965-7 Taxes on prohibited tax shelter transactions.
53.4965-8 Definition of net income and proceeds and standard for 
          allocating net income or proceeds to various periods.
53.4965-9 Effective/applicability dates.
53.4968-1 Excise tax based on investment income of certain private 
          colleges and universities.
53.4968-2 Net investment income.
53.4968-3 Related organizations.
53.4968-4 Applicability date.

                 Subpart L_Procedure and Administration

53.6001-1 Notice or regulations requiring records, statements, and 
          special returns.
53.6011-1 General requirement of return, statement or list.
53.6011-4 Requirement of statement disclosing participation in certain 
          transactions by taxpayers.
53.6060-1 Reporting requirements for tax return preparers.
53.6061-1 Signing of returns and other documents.
53.6065-1 Verification of returns.
53.6071-1 Time for filing returns.
53.6081-1 Automatic extension of time for filing the return to report 
          taxes due under section 4951 for self-dealing with a nuclear 
          decommissioning fund.
53.6091-1 Place for filing chapter 42 tax returns.
53.6091-2 Exceptional cases.
53.6107-1 Tax return preparer must furnish copy of return or claim for 
          refund to taxpayer and must retain a copy or record.
53.6109-1 Tax return preparers furnishing identifying numbers for 
          returns or claims for refund filed.
53.6151-1 Time and place for paying tax shown on returns.
53.6161-1 Extension of time for paying tax or deficiency.
53.6165-1 Bonds where time to pay tax or deficiency has been extended.
53.6601-1 Interest on underpayment, nonpayment, or extensions of time 
          for payment, of tax.
53.6651-1 Failure to file tax return or to pay tax.
53.6694-1 Section 6694 penalties applicable to tax return preparer.
53.6694-2 Penalties for understatement due to an unreasonable position.
53.6694-3 Penalty for understatement due to willful, reckless, or 
          intentional conduct.
53.6694-4 Extension of period of collection when tax return preparer 
          pays 15 percent

[[Page 54]]

          of a penalty for understatement of taxpayer's liability and 
          certain other procedural matters.
53.6695-1 Other assessable penalties with respect to the preparation of 
          tax returns or claims for refund for other persons.
53.6696-1 Claims for credit or refund by tax return preparers.
53.7101-1 Form of bonds.
53.7701-1 Tax return preparer.

    Authority: 26 U.S.C. 7805; 4960.
    Section 53.6060-1 also issued under 26 U.S.C. 6060(a);
    Section 53.6081-1 also issued under 26 U.S.C. 6081(a);
    Section 53.6109-1 also issued under 26 U.S.C. 6109(a);
    Section 53.6109-2 also issued under 26 U.S.C. 6109(a);
    Section 53.6695-1 also issued under 26 U.S.C. 6695(b).



                  Subpart A_Taxes on Investment Income



Sec.  53.4940-1  Excise tax on net investment income.

    (a) In general. For taxable years beginning after September 30, 
1977, section 4940 imposes an excise tax of 2 percent of the net 
investment income (as defined in section 4940(c) and paragraph (c) of 
this section) of a tax-exempt private foundation (as defined in section 
509). For taxable years beginning after December 31, 1969, and before 
October 1, 1977, the tax imposed by section 4940 is 4 percent of the net 
investment income. This tax will be reported on the form the foundation 
is required to file under section 6033 for the taxable year and will be 
paid annually at the time prescribed for filing such annual return 
(determined without regard to any extension of time for filing). In 
addition, an excise tax is imposed in the manner prescribed in paragraph 
(b) of this section on certain non-exempt private foundations (including 
certain non-exempt charitable trusts). Except as provided in the 
succeeding sentence, this tax is to be reported by means of a schedule 
attached to the organization's income tax return. For taxable years 
ending on or after December 31, 1975, the tax imposed by section 4940(b) 
and paragraph (b) of this section on a trust described in section 
4947(a)(1) which is a private foundation shall be reported on Form 5227. 
The tax imposed by section 4940(b) and this section is to be paid 
annually at the time the organization is required to pay its income 
taxes imposed under subtitle A. Except as otherwise provided herein, no 
exclusions or deductions from gross investment income or credits against 
tax are allowable under this section.
    (b) Taxable foundations. (1) The excise tax imposed under section 
4940 on private foundations which are not exempt from taxation under 
section 501(a) is equal to:
    (i) The amount (if any) by which the sum of
    (A) The tax on net investment income imposed under section 4940(a), 
computed as if such private foundation were exempt from taxation under 
section 501(a) and described in section 501(c)(3) for the taxable year, 
plus
    (B) The amount of the tax which would have been imposed under 
section 511 for such taxable year if such private foundation had been 
exempt from taxation under section 501(a), exceeds.
    (ii) The tax imposed under subtitle A on such private foundation for 
the taxable year.
    (2) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. Assume that the tax liability under subtitle A for 
private foundation X, which is not exempt from taxation under section 
501(a) for 1970, is $10,000. Had X been exempt under section 501(a) for 
1970, the tax imposed under section 4940(a) would have been $4,000 and 
the tax imposed under section 511 would have been $7,000. The excess of 
the sum of the taxes which would have been imposed under sections 
4940(a) and 511 ($11,000) over the tax that was imposed under subtitle A 
($10,000) is $1,000, the amount of the tax imposed on such organization 
under section 4940(b).
    Example 2. Assume the facts stated in Example (1), except that the 
tax liability under subtitle A is $15,000 rather than $10,000. Because 
the sum of the taxes which would have been imposed under sections 
4940(a) and 511 ($11,000) does not exceed the tax that was imposed under 
subtitle A ($15,000), there is no tax imposed under section 4940(b) with 
respect to such foundation.

    (c) Net investment income defined--(1) In general. For purposes of 
section 4940(a), net investment income of a private foundation is the 
amount by which:
    (i) The sum of the gross investment income (as defined in section 
4940(c)(2)

[[Page 55]]

and paragraph (d) of this section) and the capital gain net income (net 
capital gain for taxable years beginning before January 1, 1977) (within 
the meaning of section 4940(c)(4) and paragraph (f) of this section) 
exceeds
    (ii) The deductions allowed by section 4940(c)(3) and paragraph (e) 
of this section.

Except to the extent inconsistent with the provisions of this section, 
net investment income shall be determined under the principles of 
Subtitle A.
    (2) Tax-exempt income. For purposes of computing net investment 
income under section 4940, the provisions of section 103 (relating to 
interest on certain governmental obligations) and section 265 (relating 
to expenses and interest relating to tax-exempt income) and the 
regulations thereunder shall apply.
    (d) Gross investment income--(1) In general. For purposes of 
paragraph (c) of this section, ``gross investment income'' means the 
gross amounts of income from interest, dividends, rents, and royalties 
(including overriding royalties) received by a private foundation from 
all sources, but does not include such income to the extent included in 
computing the tax imposed by section 511. Under this definition, 
interest, dividends, rents, and royalties derived from assets devoted to 
charitable activities are includible in gross investment income. 
Therefore, for example, interest received on a student loan would be 
includible in the gross investment income of a private foundation making 
such loan. For purposes of paragraph (c) of this section, gross 
investment income also includes the items of investment income described 
in Sec.  1.512(b)-1(a).
    (2) Certain estate and trust disbursements. In the case of a 
distribution from an estate or a trust described in section 4947(a) (1) 
or (2), such distribution shall not retain its character in the hands of 
the distributee for purposes of computing the tax under section 4940; 
except that, in the case of a distribution from a trust described in 
section 4947(a)(2), the income of such trust attributable to transfers 
in trust after May 26, 1969, shall retain its character in the hands of 
a distributee private foundation for purposes of section 4940 (unless 
such income is taken into account because of the application of section 
671).
    (3) Treatment of certain distributions in redemption of stock. For 
purposes of applying section 302(b)(1), any distribution made to a 
private foundation by a disqualified person (as defined in section 
4946(a)), in redemption of stock held by such private foundation in a 
business enterprise shall be treated as not essentially equivalent to a 
dividend if all of the following conditions are satisfied: (i) Such 
redemption is of stock which was owned by a private foundation on May 
26, 1969 (or which is acquired by a private foundation under the terms 
of a trust which was irrevocable on May 26, 1969, or under the terms of 
a will executed on or before such date, which is in effect on such date 
and at all times thereafter, or would have passed under such a will but 
before that time actually passes under a trust which would have met the 
test of this subdivision but for the fact that the trust was revocable 
(but was not in fact revoked)); (ii) such foundation is required to 
dispose of such property in order not to be liable for tax under section 
4943 (relating to taxes on excess business holdings); and (iii) such 
foundation receives in return an amount which equals or exceeds the fair 
market value of such property at the time of such disposition or at the 
time a contract for such disposition was previously executed in a 
transaction which would not constitute a prohibited transaction (within 
the meaning of section 503(b) or the corresponding provisions of prior 
law). In the case of a disposition before January 1, 1975, section 4943 
shall be applied without taking section 4943(c) (4) into account. A 
distribution which otherwise qualifies under section 302 as a 
distribution in part or full payment in exchange for stock shall not be 
treated as essentially equivalent to a dividend because it does not meet 
the requirements of this subparagraph.
    (e) Deductions--(1) In general. (i) For purposes of computing net 
investment income, there shall be allowed as a deduction from gross 
investment income all the ordinary and necessary expenses paid or 
incurred for the production or collection of gross investment income

[[Page 56]]

or for the management, conservation, or maintenance of property held for 
the production of such income, determined with the modifications set 
forth in subparagraph (2) of this paragraph. Such expenses include that 
portion of a private foundation's operating expenses which is paid or 
incurred for the production or collection of gross investment income. 
Taxes paid or incurred under this section are not paid or incurred for 
the production or collection of gross investment income. A private 
foundation's operating expenses include compensation of officers, other 
salaries and wages of employees, outside professional fees, interest, 
and rent and taxes upon property used in the foundation's operations. 
Where a private foundation's officers or employees engage in activities 
on behalf of the foundation for both investment purposes and for exempt 
purposes, compensation and salaries paid to such officers or employees 
must be allocated between the investment activities and the exempt 
activities. To the extent a private foundation's expenses are taken into 
account in computing the tax imposed by section 511, they shall not be 
deductible for purposes of computing the tax imposed by section 4940.
    (ii) Where only a portion of property produces, or is held for the 
production of, income subject to the section 4940 excise tax, and the 
remainder of the property is used for exempt purposes, the deductions 
allowed by section 4940(c)(3) shall be apportioned between the exempt 
and non-exempt uses.
    (iii) No amount is allowable as a deduction under this section to 
the extent it is paid or incurred for purposes other than those 
described in subdivision (i) of this subparagraph. Thus, for example, 
the deductions prescribed by the following sections are not allowable: 
(1) The charitable deduction prescribed under section 170 and 642(c); 
(2) the net operating loss deduction prescribed under section 172; and 
(3) the special deductions prescribed under Part VIII, Subchapter B, 
Chapter 1.
    (2) Deduction modifications. The following modifications shall be 
made in determining deductions otherwise allowable under this paragraph:
    (i) The depreciation deduction shall be allowed, but only on the 
basis of the straight line method provided in section 167(b)(1).
    (ii) The depletion deduction shall be allowed, but such deduction 
shall be determined without regard to section 613, relating to 
percentage depletion.
    (iii) The basis to be used for purposes of the deduction allowed for 
depreciation or depletion shall be the basis determined under the rules 
of Part II of Subchapter O of Chapter 1, subject to the provisions of 
section 4940(c)(3)(B), and without regard to section 4940(c)(4)(B), 
relating to the basis for determining gain, or section 362(c). Thus, a 
private foundation must reduce the cost or other substituted or 
transferred basis by an amount equal to the straight line depreciation 
or cost depletion, without regard to whether the foundation deducted 
such depreciation or depletion during the period prior to its first 
taxable year beginning after December 31, 1969. However, where a private 
foundation has previously taken depreciation or depletion deductions in 
excess of the amount which would have been taken had the straight line 
or cost method been employed, such excess depreciation or depletion also 
shall be taken into account to reduce basis. If the facts necessary to 
determine the basis of property in the hands of the donor or the last 
preceding owner by whom it was not acquired by gift are unknown to a 
donee private foundation, then the original basis to such foundation of 
such property shall be determined under the rules of Sec.  1.1015-
1(a)(3).
    (iv) The deduction for expenses paid or incurred in any taxable year 
for the production of gross investment income earned as an incident to a 
charitable function shall be no greater than the income earned from such 
function which is includible as gross investment income for such year. 
For example, where rental income is incidentally realized in 1971 from 
historic buildings held open to the public, deductions for amounts paid 
or incurred in 1971 for the production of such income shall be limited 
to the amount of rental income includible as gross investment income for 
1971.
    (f) Capital gain and losses--(1) General rule. In determining 
capital gain net income (net capital gain for taxable

[[Page 57]]

years beginning before January 1, 1977) for purposes of the tax imposed 
by section 4940, there shall be taken into account only capital gains 
and losses from the sale or other disposition of property held by a 
private foundation for investment purposes (other than program-related 
investments, as defined in section 4944(c)), and property used for the 
production of income included in computing the tax imposed by section 
511 except to the extent gain or loss from the sale or other disposition 
of such property is taken into account for purposes of such tax. For 
taxable years beginning after December 31, 1972, property shall be 
treated as held for investment purposes even though such property is 
disposed of by the foundation immediately upon its receipt, if it is 
property of a type which generally produces interest, dividends, rents, 
royalties, or capital gains through appreciation (for example, rental 
real estate, stock, bonds, mineral interests, mortgages, and 
securities). Under this subparagraph, gains and losses from the sale or 
other disposition of property used for the exempt purposes of the 
private foundation are excluded. For example, gain or loss on the sale 
of the buildings used for the exempt activities of a private foundation 
would not be subject to the section 4940 tax. Where the foundation uses 
property for its exempt purposes, but also incidentally derives income 
from such property which is subject to the tax imposed by section 
4940(a), any gain or loss resulting from the sale or other disposition 
of such property is not subject to the tax imposed by section 4940(a). 
For example, if a tax-exempt private foundation maintains buildings of a 
historical nature and keeps them open for public inspection, but 
requires a number of its employees to live in these buildings and 
charges the employees rent, the rent would be subject to the tax imposed 
by section 4940(a), but any gain or loss resulting from the sale of such 
property would not be subject to such tax. However, where the foundation 
uses property for both exempt purposes and (other than incidentally) for 
investment purposes (for example, a building in which the foundation's 
charitable and investment activities are carried on), that portion of 
any gain or loss from the sale or other disposition of such property 
which is allocable to the investment use of such property must be taken 
into account in computing capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) for such taxable year. 
For purposes of this paragraph, a distribution of property for purposes 
described in section 170(c) (1) or (2)(B) which is a qualifying 
distribution under section 4942 shall not be treated as a sale or other 
disposition of property.
    (2) Basis. (i) The basis for purposes of determining gain from the 
sale or other disposition of property shall be the greater of:
    (A) Fair market value on December 31, 1969, plus or minus all 
adjustments after December 31, 1969, and before the date of disposition 
under the rules of Part II of Subchapter O of Chapter 1, provided that 
the property was held by the private foundation on December 31, 1969, 
and continuously thereafter to the date of disposition, or
    (B) Basis as determined under the rules of Part II of Subchapter O 
of Chapter 1,

subject to the provisions of section 4940(c)(3)(B) (and without regard 
to section 362(c)).
    (ii) For purposes of determining loss from the sale or other 
disposition of property, basis as determined in subdivision (i)(B) of 
this subparagraph shall apply.
    (3) Losses. Where the sale or other disposition of property referred 
to in section 4940(c)(4)(A) results in a capital loss, such loss may be 
subtracted from capital gains from the sale or other disposition of 
other such property during the same taxable year, but only to the extent 
of such gains. Should losses from the sale or other disposition of such 
property exceed gains from the sale or other disposition of such 
property during the same taxable year, such excess may not be deducted 
from gross investment income under section 4940(c)(3) in any taxable 
year, nor may such excess by used to reduce gains in either prior or 
future taxable years, regardless of whether the foundation is a 
corporation or a trust.

[[Page 58]]

    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A private foundation holds certain depreciable real 
property on December 31, 1969, having a basis of $102,000. The fair 
market value of such property on that date was $100,000. For its taxable 
year 1970 the foundation was allowed depreciation for such property of 
$5,100 on the straight line method, the allowable amount computed on the 
$102,000 basis. The property was sold on January 1, 1971, for $100,000. 
Because fair market value on December 31, 1969, less straight line 
depreciation of $5,100 ($94,900) is less than basis as determined by 
Part II of Subchapter O of Chapter 1, $96,900 ($102,000 less $5,100), a 
gain of $3,100 is recognized (i.e., sales price of $100,000 less the 
greater of the two possible bases).
    Example 2. Assume the same facts in example 1, except that the sale 
price was $95,000. Because the sale price was $1,900 less than the basis 
for loss ($96,900 as determined by the application of subparagraph 
(2)(ii) of this paragraph), there is a capital loss of $1,900 which may 
be deducted against capital gains for 1971 (if any) in determining net 
capital gain (capital gain net income for taxable years beginning after 
December 31, 1976).
    Example 3. A private foundation holds certain depreciable real 
property on December 31, 1969, having a basis of $102,000. The fair 
market value of such property on that date was $110,000. For its taxable 
year 1970 the foundation was allowed depreciation for such property of 
$5,100 on the straight line method, the allowable amount computed on the 
$102,000 basis. The property was sold on January 1, 1971, for $100,000. 
Fair market value on December 31, 1969, less straight line depreciation 
of $5,100 ($104,900) exceeds basis as determined by Part II of 
Subchapter O of Chapter 1, $96,900 ($102,000 less $5,100), and will be 
used for purposes of determining gain. Because basis for purposes of 
determining gain exceeds sale price, there is no gain. There is no loss 
because basis for purposes of determining loss ($96,900) is less than 
sale price.

[T.D. 7250, 38 FR 868, Jan. 5, 1973; 38 FR 7549, Mar. 23, 1973, as 
amended by T.D. 7407, 41 FR 9321, Mar. 4, 1976; T.D. 7606, 44 FR 18971, 
Mar. 30, 1979; T.D. 7728, 45 FR 72651, Nov. 3, 1980; T.D. 8423, 57 FR 
33444, July 29, 1992]



                     Subpart B_Taxes on Self-Dealing

    Source: T.D. 7270, 38 FR 9493, Apr. 17, 1973, unless otherwise 
noted.



Sec.  53.4941(a)-1  Imposition of initial taxes.

    (a) Tax on self-dealer--(1) In general. Section 4941(a)(1) of the 
code imposes an excise tax on each act of self-dealing between a 
disqualified person (as defined in section 4946(a)) and a private 
foundation. Except as provided in subparagraph (2) of this paragraph, 
this tax shall be imposed on a disqualified person even though he had no 
knowledge at the time of the act that such act constituted self-dealing. 
Notwithstanding the preceding two sentences, however, a transaction 
between a disqualified person and a private foundation will not 
constitute an act of self-dealing if:
    (i) The transaction is a purchase or sale of securities by a private 
foundation through a stockbroker where normal trading procedures on a 
stock exchange or recognized over-the-counter market are followed;
    (ii) Neither the buyer nor the seller of the securities nor the 
agent of either knows the identity of the other party involved; and
    (iii) The sale is made in the ordinary course of business, and does 
not involve a block of securities larger than the average daily trading 
volume of that stock over the previous 4 weeks.

However, the preceding sentence shall not apply to a transaction 
involving a dealer who is a disqualified person acting as a principal or 
to a transaction which is an act of self-dealing pursuant to section 
4941(d)(1)(B) and Sec.  53.4941(d)-2 (c)(1). The tax imposed by section 
4941(a)(1) is at the rate of 5 percent of the amount involved (as 
defined in section 4941(e)(2) and Sec.  53.4941(e)-1(b)) with respect to 
the act of self-dealing for each year or partial year in the taxable 
period (as defined in section 4941(e)(1)) and shall be paid by any 
disqualified person (other than a foundation manager acting only in the 
capacity of a foundation manager) who participates in the act of self-
dealing. However, if a foundation manager is also acting as a self-
dealer, he may be liable for both the tax imposed by section 4941(a)(1) 
and the tax imposed by section 4941(a)(2).
    (2) Government officials. In the case of a government official (as 
defined in sec. 4946(a)), the tax shall be imposed upon such government 
official who participates in an act of self-dealing, only if he knows 
that such act is an act of

[[Page 59]]

self-dealing. See paragraph (b)(3) of this section for a definition of 
knowing.
    (3) Participation. For purposes of this paragraph, a disqualified 
person shall be treated as participating in an act of self-dealing in 
any case in which he engages or takes part in the transaction by himself 
or with others, or directs any person to do so.
    (b) Tax on foundation manager--(1) In general. Section 4941(a)(2) of 
the code imposes an excise tax on the participation of any foundation 
manager in an act of self-dealing between a disqualified person and a 
private foundation. This tax is imposed only in cases in which the 
following circumstances are present:
    (i) A tax is imposed by section 4941(a)(1),
    (ii) Such participating foundation manager knows that the act is an 
act of self-dealing, and
    (iii) The participation by the foundation manager is willful and is 
not due to reasonable cause.

The tax imposed by section 4941(a)(2) is at the rate of 2\1/2\ percent 
of the amount involved with respect to the act of self-dealing for each 
year or partial year in the taxable period and shall be paid by any 
foundation manager described in subdivisions (ii) and (iii) of this 
subparagraph.
    (2) Participation. The term ``participation'' shall include silence 
or inaction on the part of a foundation manager where he is under a duty 
to speak or act, as well as any affirmative action by such manager. 
However, a foundation manager will not be considered to have 
participated in an act of self-dealing where he has opposed such act in 
a manner consistent with the fulfillment of his responsibilities to the 
private foundation.
    (3) Knowing. For purposes of section 4941, a person shall be 
considered to have participated in a transaction ``knowing'' that it is 
an act of self-dealing only if:
    (i) He has actual knowledge of sufficient facts so that, based 
solely upon such facts, such transaction would be an act of self-
dealing,
    (ii) He is aware that such an act under these circumstances may 
violate the provisions of Federal tax law governing self-dealing, and
    (iii) He negligently fails to make reasonable attempts to ascertain 
whether the transaction is an act of self-dealing, or he is in fact 
aware that it is such an act.

For purposes of this part and Chapter 42, the term ``knowing'' does not 
mean ``having reason to know''. However, evidence tending to show that a 
person has reason to know of a particular fact or particular rule is 
relevant in determining whether he had actual knowledge of such fact or 
rule. Thus, for example, evidence tending to show that a person has 
reason to know of sufficient facts so that, based solely upon such 
facts, a transaction would be an act of self-dealing is relevant in 
determining whether he has actual knowledge of such facts.
    (4) Willful. Participation by a foundation manager shall be deemed 
willful if it is voluntary, conscious, and intentional. No motive to 
avoid the restrictions of the law or the incurrence of any tax is 
necessary to make the participation willful. However, participation by a 
foundation manager is not willful if he does not know that the 
transaction in which he is participating is an act of self-dealing.
    (5) Due to reasonable cause. A foundation manager's participation is 
due to reasonable cause if he has exercised his responsibility on behalf 
of the foundation with ordinary business care and prudence.
    (6) Advice of counsel. If a person, after full disclosure of the 
factual situation to legal counsel (including house counsel), relies on 
the advice of such counsel expressed in a reasoned written legal opinion 
that an act is not an act of self-dealing under section 4941, although 
such act is subsequently held to be an act of self-dealing, the person's 
participation in such act will ordinarily not be considered ``knowing'' 
or ``willful'' and will ordinarily be considered ``due to reasonable 
cause'' within the meaning of section 4941(a)(2). For purposes of this 
subparagraph, a written legal opinion will be considered ``reasoned'' 
even if it reaches a conclusion which is subsequently determined to be 
incorrect so long as such opinion addresses itself to the facts and 
applicable law. However, a written legal

[[Page 60]]

opinion will not be considered ``reasoned'' if it does nothing more than 
recite the facts and express a conclusion. However, the absence of 
advice of counsel with respect to an act shall not, by itself, give rise 
to any inference that a person participated in such act knowingly, 
willfully, or without reasonable cause.
    (c) Burden of proof. For provisions relating to the burden of proof 
in cases involving the issue whether a foundation manager or a 
government official has knowingly participated in an act of self-
dealing, see section 7454(b).

[T.D. 7270, 38 FR 9493, Apr. 17, 1973, as amended by T.D. 7299, 38 FR 
35304, Dec. 27, 1973]



Sec.  53.4941(b)-1  Imposition of additional taxes.

    (a) Tax on self-dealer. Section 4941(b)(1) of the Code imposes an 
excise tax in any case in which an initial tax is imposed by section 
4941(a)(1) on an act of self-dealing by a disqualified person with a 
private foundation and the act is not corrected within the taxable 
period (as defined in Sec.  53.4941(e)-1(a)). The tax imposed by section 
4941(b)(1) is at the rate of 200 percent of the amount involved and 
shall be paid by any disqualified person (other than a foundation 
manager action only in the capacity of a foundation manager) who 
participated in the act of self-dealing.
    (b) Tax on foundation manager. Section 4941(b)(2) of the Code 
imposes an excise tax to be paid by a foundation manager in any case in 
which a tax is imposed by section 4941(b)(1) and the foundation manager 
refused to agree to part or all of the correction of the self-dealing 
act. The tax imposed by section 4941(b)(2) is at the rate of 50 percent 
of the amount involved and shall be paid by any foundation manager who 
refused to agree to part or all of the correction of the self-dealing 
act. For the limitations on liability of a foundation manager, see Sec.  
53.4941(c)-1(b).

[T.D. 7270, 38 FR 9493, Apr. 17, 1973, as amended by T.D. 8084, 51 FR 
16301, May 2, 1986]



Sec.  53.4941(c)-1  Special rules.

    (a) Joint and several liability. (1) In any case where more than one 
person is liable for the tax imposed by any paragraph of section 4941 
(a) or (b), all such persons shall be jointly and severally liable for 
the taxes imposed under such paragraph with respect to such act of self-
dealing.
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example. A and B, who are managers of private foundation X, lend one 
of the foundation's paintings to G, a disqualified person, for display 
in G's office, in a transaction which gives rise to liability for tax 
under section 4941(a)(2) (relating to tax on foundation managers). An 
initial tax is imposed on both A and B with respect to the act of 
lending the foundation's painting to G. A and B are jointly and 
severally liable for the tax.

    (b) Limits on liability for management. (1) The maximum aggregate 
amount of tax collectible under section 4941(a)(2) from all foundation 
managers with respect to any one act of self-dealing shall be $10,000, 
and the maximum aggregate amount of tax collectible under section 
4941(b)(2) from all foundation managers with respect to any one act of 
self-dealing shall be $10,000.
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example. A, a disqualified person with respect to private foundation 
Y, sells certain real estate having a fair market value of $500,000 to Y 
for $500,000 in cash. B, C, and D, all the managers of foundation Y, 
authorized the purchase on Y's behalf knowing that such purchase was an 
act of self-dealing. The actions of B, C, and D in approving the 
purchase were willful and not due to reasonable cause. Initial taxes are 
imposed upon the foundation managers under subsections (a)(2) and (c)(2) 
of section 4941. The tax to be paid by the foundation managers is 
$10,000 (the lesser of $10,000 or 2\1/2\ percent of the amount 
involved). The managers are jointly and severally liable for this 
$10,000, and this sum may be collected by the Internal Revenue Service 
from any one of them.



Sec.  53.4941(d)-1  Definition of self-dealing.

    (a) In general. For purposes of section 4941, the term self-dealing 
means any direct or indirect transaction described in Sec.  53.4941(d)-
2. For purposes of this section, it is immaterial whether the 
transaction results in a benefit or a detriment to the private 
foundation. The term ``self-dealing'' does not, however, include a 
transaction between a private foundation and a disqualified

[[Page 61]]

person where the disqualified person status arises only as a result of 
such transaction. For example, the bargain sale of property to a private 
foundation is not a direct act of self-dealing if the seller becomes a 
disqualified person only by reason of his becoming a substantial 
contributor as a result of the bargain element of the sale. For the 
effect of sections 4942, 4943, 4944, and 4945 upon an act of self-
dealing which also results in the imposition of tax under one or more of 
such sections, see the regulations under those sections.
    (b) Indirect self-dealing--(1) Certain business transactions. The 
term ``indirect self-dealing'' shall not include any transaction 
described in Sec.  53.4941(d)-2 between a disqualified person and an 
organization controlled by a private foundation (within the meaning of 
paragraph (6)(5) of this section) if:
    (i) The transaction results from a business relationship which was 
established before such transaction constituted an act of self-dealing 
(without regard to this paragraph),
    (ii) The transaction was at least as favorable to the organization 
controlled by the foundation as an arm's-length transaction with an 
unrelated person, and
    (iii) Either:
    (a) The organization controlled by the foundation could have engaged 
in the transaction with someone other than a disqualified person only at 
a severe economic hardship to such organization, or
    (b) Because of the unique nature of the product or services provided 
by the organization controlled by the foundation, the disqualified 
person could not have engaged in the transaction with anyone else, or 
could have done so only by incurring severe economic hardship. See 
example (2) of subparagraph (8) of this paragraph.
    (2) Grants to intermediaries. The term ``indirect self-dealing'' 
shall not include a transaction engaged in with a government official by 
an intermediary organization which is a recipient of a grant from a 
private foundation and which is not controlled by such foundation 
(within the meaning of paragraph (6) (5) of this section) if the private 
foundation does not earmark the use of the grant for any named 
government official and there does not exist an agreement, oral or 
written, whereby the grantor foundation may cause the selection of the 
government official by the intermediary organization. A grant by a 
private foundation is earmarked if such grant is made pursuant to an 
agreement, either oral or written, that the grant will be used by any 
named individual. Thus, a grant by a private foundation shall not 
constitute an indirect act of self-dealing even though such foundation 
had reason to believe that certain government officials would derive 
benefits from such grant so long as the intermediary organization 
exercises control, in fact, over the selection process and actually 
makes the selection completely independently of the private foundation. 
See example (3) of subparagraph (8) of this paragraph.
    (3) Transactions during the administration of an estate or revocable 
trust. The term ``indirect self-dealing'' shall not include a 
transaction with respect to a private foundation's interest or 
expectancy in property (whether or not encumbered) held by an estate (or 
revocable trust, including a trust which has become irrevocable on a 
grantor's death), regardless of when title to the property vests under 
local law, if:
    (i) The administrator or executor of an estate or trustee of a 
revocable trust either:
    (a) Possesses a power of sale with respect to the property,
    (b) Has the power to reallocate the property to another beneficiary, 
or
    (c) Is required to sell the property under the terms of any option 
subject to which the property was acquired by the estate (or revocable 
trust);
    (ii) Such transaction is approved by the probate court having 
jurisdiction over the estate (or by another court having jurisdiction 
over the estate (or trust) or over the private foundation);
    (iii) Such transaction occurs before the estate is considered 
terminated for Federal income tax purposes pursuant to paragraph (a) of 
Sec.  1.641(b)-3 of this chapter (or in the case of a revocable trust, 
before it is considered subject to sec. 4947);
    (iv) The estate (or trust) receives an amount which equals or 
exceeds the fair market value of the foundation's

[[Page 62]]

interest or expectancy in such property at the time of the transaction, 
taking into account the terms of any option subject to which the 
property was acquired by the estate (or trust); and
    (v) With respect to transactions occurring after April 16, 1973, the 
transaction either:
    (a) Results in the foundation receiving an interest or expectancy at 
least as liquid as the one it gave up,
    (b) Results in the foundation receiving an asset related to the 
active carrying out of its exempt purposes, or
    (c) Is required under the terms of any option which is binding on 
the estate (or trust).
    (4) Transactions with certain organizations. A transaction between a 
private foundation and an organization which is not controlled by the 
foundation (within the meaning of subparagraph (5) of this paragraph), 
and which is not described in section 4946(a)(1) (E), (F), or (G) 
because persons described in section 4946(a)(1) (A), (B), (C), or (D) 
own no more than 35 percent of the total combined voting power or 
profits or beneficial interest of such organization, shall not be 
treated as an indirect act of self-dealing between the foundation and 
such disqualified persons solely because of the ownership interest of 
such persons in such organization.
    (5) Control. For purposes of this paragraph, an organization is 
controlled by a private foundation if the foundation or one or more of 
its foundation managers (acting only in such capacity) may, only by 
aggregating their votes or positions of authority, require the 
organization to engage in a transaction which if engaged in with the 
private foundation would constitute self-dealing. Similarly, for 
purposes of this paragraph, an organization is controlled by a private 
foundation in the case of such a transaction between the organization 
and a disqualified person, if such disqualified person, together with 
one or more persons who are disqualified persons by reason of such a 
person's relationship (within the meaning of section 4946(a)(1) (C) 
through (G)) to such disqualified person, may, only by aggregating their 
votes or positions of authority with that of the foundation, require the 
organization to engage in such a transaction. The ``controlled'' 
organization need not be a private foundation; for example, it may be 
any type of exempt or nonexempt organization including a school, 
hospital, operating foundation, or social welfare organization. For 
purposes of this paragraph, an organization will be considered to be 
controlled by a private foundation or by a private foundation and 
disqualified persons referred to in the second sentence of this 
subparagraph if such persons are able, in fact, to control the 
organization (even if their aggregate voting power is less than 50 
percent of the total voting power of the organization's governing body) 
or if one or more of such persons has the right to exercise veto power 
over the actions of such organization relevant to any potential acts of 
self-dealing. A private foundation shall not be regarded as having 
control over an organization merely because it exercises expenditure 
responsibility (as defined in section 4945 (d)(4) and (h)) with respect 
to contributions to such organization. See example (6) of subparagraph 
(8) of this paragraph.
    (6) Certain transactions involving limited amounts. The term 
``indirect self-dealing'' shall not include any transaction between a 
disqualified person and an organization controlled by a private 
foundation (within the meaning of subparagraph (5) of this paragraph) or 
between two disqualified persons where the foundation's assets may be 
affected by the transaction if:
    (i) The transaction arises in the normal and customary course of a 
retail business engaged in with the general public,
    (ii) In the case of a transaction between a disqualified person and 
an organization controlled by a private foundation, the transaction is 
at least as favorable to the organization controlled by the foundation 
as an arm's-length transaction with an unrelated person, and
    (iii) The total of the amounts involved in such transactions with 
respect to any one such disqualified person in any one taxable year does 
not exceed $5,000.

See example (7) of subparagraph (8) of this paragraph.

[[Page 63]]

    (7) Applicability of statutory exceptions to indirect self-dealing. 
The term ``indirect self-dealing'' shall not include a transaction 
involving one or more disqualified persons to which a private foundation 
is not a party, in any case in which the private foundation, by reason 
of section 4941(d)(2), could itself engage in such a transaction. Thus, 
for example, even if a private foundation has control (within the 
meaning of subparagraph (5) of this paragraph) of a corporation, the 
corporation may pay to a disqualified person, except a government 
official, reasonable compensation for personal services.
    (8) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Private foundation P owns the controlling interest of the 
voting stock of corporation X, and as a result of such interest, elects 
a majority of the board of directors of X. Two of the foundation 
managers, A and B, who are also directors of corporation X, form 
corporation Y for the purpose of building and managing a country club. A 
and B receive a total of 40 percent of Y's stock, making Y a 
disqualified person with respect to P under section 4946(a)(1)(E). In 
order to finance the construction and operation of the country club, Y 
requested and received a loan in the amount of $4 million from X. The 
making of the loan by X to Y shall constitute an indirect act of self-
dealing between P and Y.
    Example 2. Private foundation W owns the controlling interest of the 
voting stock of corporation X, a manufacturer of certain electronic 
computers. Corporation Y, a disqualified person with respect to W, owns 
the patent for, and manufactures, one of the essential component parts 
used in the computers. X has been making regular purchases of the 
patented component from Y since 1965, subject to the same terms as all 
other purchasers of such component parts. X could not buy similar 
components from another source. Consequently, X would suffer severe 
economic hardship if it could not continue to purchase these components 
from Y, since it would then be forced to develop a computer which could 
be constructed with other components. Under these circumstances, the 
continued purchase by X from Y of these components shall not be an 
indirect act of self-dealing between W and Y.
    Example 3. Private foundation Y made a grant to M University, an 
organization described in section 170(b)(1)(A)(ii), for the purpose of 
conducting a seminar to study methods for improving the administration 
of the judicial system. M is not controlled by Y within the meaning of 
subparagraph (5) of this paragraph. In conducting the seminar, M made 
payments to certain government officials. By the nature of the grant, Y 
had reason to believe that government officials would be compensated for 
participation in the seminar. M, however, had completely independent 
control over the selection of such participants. Thus, such grant by Y 
shall not constitute an indirect act of self-dealing with respect to the 
government officials.
    Example 4. A, a substantial contributor to P, a private foundation, 
bequeathed one-half of his estate to his spouse and one-half of his 
estate to P. Included in A's estate is a one-third interest in AB, a 
partnership. The other two-thirds interest in AB is owned by B, a 
disqualified person with respect to P. The one-third interest in AB was 
subject to an option agreement when it was acquired by the estate. The 
executor of A's estate sells the one-third interest in AB to B pursuant 
to such option agreement at the price fixed in such option agreement in 
a sale which meets the requirements of subparagraph (3) of this 
paragraph. Under these circumstances, the sale does not constitute an 
indirect act of self-dealing between B and P.
    Example 5. A bequeathed $100,000 to his wife and a piece of 
unimproved real estate of equivalent value to private foundation Z, of 
which A was the creator and a foundation manager. Under the laws of 
State Y, to which the estate is subject, title to the real estate vests 
in the foundation upon A's death. However, the executor has the power 
under State law to reallocate the property to another beneficiary. 
During a reasonable period for administration of the estate, the 
executor exercises this power and distributes the $100,000 cash to the 
foundation and the real estate to A's wife. The probate court having 
jurisdiction over the estate approves the executor's action. Under these 
circumstances, the executor's action does not constitute an indirect act 
of self-dealing between the foundation and A's wife.
    Example 6. Private foundation P owns 20 percent of the voting stock 
of corporation W. A, a substantial contributor with respect to P, owns 
16 percent of the voting stock of corporation W. B, A's son, owns 15 
percent of the voting stock of corporation W. The terms of the voting 
stock are such that P, A, and B could vote their stock in a block to 
elect a majority of the board of directors of W. W is treated as 
controlled by P (within the meaning of subparagraph (5) of this 
paragraph) for purposes of this example A and B also own 50 percent of 
the stock of corporation Y, making Y a disqualified person with respect 
to P under section 4946(a)(1)(E). W makes a loan to Y of $1 million. The 
making of this loan by W to Y shall constitute an indirect act of self-
dealing between P and Y.
    Example 7. A, a disqualified person with respect to private 
foundation P, enters into a

[[Page 64]]

contract with corporation M, which is also a disqualified person with 
respect to P. P owns 20 percent of M's stock, and controls M within the 
meaning of subparagraph (5) of this paragraph. M is in the retail 
department store business. Purchases by A of goods sold by M in the 
normal and customary course of business at retail or higher prices are 
not indirect acts of self-dealing so long as the total of the amounts 
involved in all of such purchases by A in any one year does not exceed 
$5,000.

[T.D. 7270, 38 FR 9493, Apr. 17, 1973, as amended at 38 FR 12604, May 
14, 1973]



Sec.  53.4941(d)-2  Specific acts of self-dealing.

    Except as provided in Sec.  53.4941(d)-3 or Sec.  53.4941(d)-4:
    (a) Sale or exchange of property--(1) In general. The sale or 
exchange of property between a private foundation and a disqualified 
person shall constitute an act of self-dealing. For example, the sale of 
incidental supplies by a disqualified person to a private foundation 
shall be an act of self-dealing regardless of the amount paid to the 
disqualified person for the incidental supplies. Similarly, the sale of 
stock or other securities by a disqualified person to a private 
foundation in a ``bargain sale'' shall be an act of self-dealing 
regardless of the amount paid for such stock or other securities. An 
installment sale may be subject to the provisions of both section 
4941(d)(1)(A) and section 4941(d)(1)(B).
    (2) Mortgaged property. For purposes of subparagraph (1) of this 
paragraph, the transfer of real or personal property by a disqualified 
person to a private foundation shall be treated as a sale or exchange if 
the foundation assumes a mortgage or similar lien which was placed on 
the property prior to the transfer, or takes subject to a mortgage or 
similar lien which a disqualified person placed on the property within 
the 10-year period ending on the date of transfer. For purposes of this 
subparagraph, the term ``similar lien'' shall include, but is not 
limited to, deeds of trust and vendors' liens, but shall not include any 
other lien if such lien is insignificant in relation to the fair market 
value of the property transferred.
    (b) Leases--(1) In general. Except as provided in subparagraphs (2) 
and (3) of this paragraph, the leasing of property between a 
disqualified person and a private foundation shall constitute an act of 
self-dealing.
    (2) Certain leases without charge. The leasing of property by a 
disqualified person to a private foundation shall not be an act of self-
dealing if the lease is without charge. For purposes of this 
subparagraph, a lease shall be considered to be without charge even 
though the private foundation pays for janitorial services, utilities, 
or other maintenance costs it incurs for the use of the property, so 
long as the payment is not made directly or indirectly to a disqualified 
person.
    (3) Certain leases of office space. For taxable years beginning 
after December 31, 1979, the leasing of office space by a disqualified 
person to a private foundation shall not be an act of self-dealing if:
    (i) The leased space is in a building in which there are other 
tenants who are not disqualified persons,
    (ii) The lease is pursuant to a binding lease which was in effect on 
October 9, 1969, or pursuant to renewals of such a lease,
    (iii) The execution of the lease was not a prohibited transaction 
(within the meaning of section 503(b) or the corresponding provisions of 
prior law) at the time of such execution, and
    (iv) The terms of the lease (or any renewal) reflect an arm's length 
transaction.

A lease or renewal of such lease is described in this subparagraph (3) 
only if it satisfies the requirements of Sec.  53.4941(d)-4(c) (1) and 
(2), applied without regard to the December 31, 1979 deadline described 
therein.
    (c) Loans--(1) In general. Except as provided in subparagraphs (2), 
(3), and (4) of this paragraph, the lending of money or other extension 
of credit between a private foundation and a disqualified person shall 
constitute an act of self-dealing. Thus, for example, an act of self-
dealing occurs where a third party purchases property and assumes a 
mortgage, the mortgagee of which is a private foundation, and 
subsequently the third party transfers the property to a disqualified 
person who either assumes liability under the mortgage or

[[Page 65]]

takes the property subject to the mortgage. Similarly, except in the 
case of the receipt and holding of a note pursuant to a transaction 
described in Sec.  53.4941(d)-1(b)(3), an act of self-dealing occurs 
where a note, the obligor of which is a disqualified person, is 
transferred by a third party to a private foundation which becomes the 
creditor under the note.
    (2) Loans without interest. Subparagraph (1) of this paragraph shall 
not apply to the lending of money or other extension of credit by a 
disqualified person to a private foundation if the loan or other 
extension of credit is without interest or other charge.
    (3) Certain evidences of future gifts. The making of a promise, 
pledge, or similar arrangement to a private foundation by a disqualified 
person, whether evidenced by an oral or written agreement, a promissory 
note, or other instrument of indebtedness, to the extent motivated by 
charitable intent and unsupported by consideration, is not an extension 
of credit (within the meaning of this paragraph) before the date of 
maturity.
    (4) General banking functions. Under section 4941(d)(2)(E) the 
performance by a bank or trust company which is a disqualified person of 
trust functions and certain general banking services for a private 
foundation is not an act of self-dealing, where the banking services are 
reasonable and necessary to carrying out the exempt purposes of the 
private foundation, if the compensation paid to the bank or trust 
company, taking into account the fair interest rate for the use of the 
funds by the bank or trust company, for such services is not excessive. 
The general banking services allowed by this subparagraph are:
    (i) Checking accounts, as long as the bank does not charge interest 
on any overwithdrawals,
    (ii) Savings accounts, as long as the foundation may withdraw its 
funds on no more than 30-days notice without subjecting itself to a loss 
of interest on its money for the time during which the money was on 
deposit, and
    (iii) Safekeeping activities.

See example (3) Sec.  53.4941(d)-3(c)(2).
    (d) Furnishing goods, services, or facilities--(1) In general. 
Except as provided in subparagraph (2) or (3) of this paragraph (or 
Sec.  53.4941(d)-3(b)), the furnishing of goods, services, or facilities 
between a private foundation and a disqualified person shall constitute 
an act of self-dealing. This subparagraph shall apply, for example, to 
the furnishing of goods, services, or facilities such as office space, 
automobiles, auditoriums, secretarial help, meals, libraries, 
publications, laboratories, or parking lots. Thus, for example, if a 
foundation furnishes personal living quarters to a disqualified person 
(other than a foundation manager or employee) without charge, such 
furnishing shall be an act of self-dealing.
    (2) Furnishing of goods, services, or facilities to foundation 
managers and employees. The furnishing of goods, services, or facilities 
such as those described in subparagraph (1) of this paragraph to a 
foundation manager in recognition of his services as a foundation 
manager, or to another employee (including an individual who would be an 
employee but for the fact that he receives no compensation for his 
services) in recognition of his services in such capacity, is not an act 
of self-dealing if the value of such furnishing (whether or not 
includible as compensation in his gross income) is reasonable and 
necessary to the performance of his tasks in carrying out the exempt 
purposes of the foundation and, taken in conjunction with any other 
payment of compensation or payment or reimbursement of expenses to him 
by the foundation, is not excessive. For example, if a foundation 
furnishes meals and lodging which are reasonable and necessary (but not 
excessive) to a foundation manager by reason of his being a foundation 
manager, then, without regard to whether such meals and lodging are 
excludable from gross income under section 119 as furnished for the 
convenience of the employer, such furnishing is not an act of self-
dealing. For the effect of section 4945(d)(5) upon an expenditure for 
unreasonable administrative expenses, see Sec.  53.4945-6(b)(2).
    (3) Furnishing of goods, services, or facilities by a disqualified 
person without charge. The furnishing of goods, services, or facilities 
by a disqualified person to a private foundation shall not be

[[Page 66]]

an act of self-dealing if they are furnished without charge. Thus, for 
example, the furnishing of goods such as pencils, stationery, or other 
incidental supplies, or the furnishing of facilities such as a building, 
by a disqualified person to a foundation shall be allowed if such 
supplies or facilities are furnished without charge. Similarly, the 
furnishing of services (even though such services are not personal in 
nature) shall be permitted if such furnishing is without charge. For 
purposes of this subparagraph, a furnishing of goods shall be considered 
without charge even though the private foundation pays for 
transportation, insurance, or maintenance costs it incurs in obtaining 
or using the property, so long as the payment is not made directly or 
indirectly to the disqualified person.
    (e) Payment of compensation. The payment of compensation (or payment 
or reimbursement of expenses) by a private foundation to a disqualified 
person shall constitute an act of self-dealing. See, however, Sec.  
53.4941(d)-3(c) for the exception for the payment of compensation by a 
foundation to a disqualified person for personal services which are 
reasonable and necessary to carry out the exempt purposes of the 
foundation.
    (f) Transfer or use of the income or assets of a private 
foundation--(1) In general. The transfer to, or use by or for the 
benefit of, a disqualified person of the income or assets of a private 
foundation shall constitute an act of self-dealing. For purposes of the 
preceding sentence, the purchase or sale of stock or other securities by 
a private foundation shall be an act of self-dealing if such purchase or 
sale is made in an attempt to manipulate the price of the stock or other 
securities to the advantage of a disqualified person. Similarly, the 
indemnification (of a lender) or guarantee (of repayment) by a private 
foundation with respect to a loan to a disqualified person shall be 
treated as a use for the benefit of a disqualified person of the income 
or assets of the foundation (within the meaning of this subparagraph). 
In addition, if a private foundation makes a grant or other payment 
which satisfies the legal obligation of a disqualified person, such 
grant or payment shall ordinarily constitute an act of self-dealing to 
which this subparagraph applies. However, if a private foundation makes 
a grant or payment which satisfies a pledge, enforceable under local 
law, to an organization described in section 501(c)(3), which pledge is 
made on or before April 16, 1973, such grant or payment shall not 
constitute an act of self-dealing to which this subparagraph applies so 
long as the disqualified person obtains no substantial benefit, other 
than the satisfaction of his obligation, from such grant or payment.
    (2) Certain incidental benefits. The fact that a disqualified person 
receives an incidental or tenuous benefit from the use by a foundation 
of its income or assets will not, by itself, make such use an act of 
self-dealing. Thus, the public recognition a person may receive, arising 
from the charitable activities of a private foundation to which such 
person is a substantial contributor, does not in itself result in an act 
of self-dealing since generally the benefit is incidental and tenuous. 
For example, a grant by a private foundation to a section 509(a) (1), 
(2), or (3) organization will not be an act of self-dealing merely 
because such organization is located in the same area as a corporation 
which is a substantial contributor to the foundation, or merely because 
one of the section 509(a) (1), (2), or (3) organization's officers, 
directors, or trustees is also a manager of or a substantial contributor 
to the foundation. Similarly, a scholarship or a fellowship grant to a 
person other than a disqualified person, which is paid or incurred by a 
private foundation in accordance with a program which is consistent 
with:
    (i) The requirements of the foundation's exempt status under section 
501(c)(3),
    (ii) The requirements for the allowance of deductions under section 
170 for contributions made to the foundation, and
    (iii) The requirements of section 4945(g)(1),

will not be an act of self-dealing under section 4941(d)(1) merely 
because a disqualified person indirectly receives an incidental benefit 
from such grant. Thus, a scholarship or a fellowship

[[Page 67]]

grant made by a private foundation in accordance with a program to award 
scholarships or fellowship grants to the children of employees of a 
substantial contributor shall not constitute an act of self-dealing if 
the requirements of the preceding sentence are satisfied. For an example 
of the kind of scholarship program with an employment nexus that meets 
the above requirements, see Sec.  53.4945-4(b)(5) (example 1).
    (3) Non-compensatory indemnification of foundation managers against 
liability for defense in civil proceedings. (i) Except as provided in 
Sec.  53.4941(d)-3(c), section 4941(d)(1) shall not apply to the 
indemnification by a private foundation of a foundation manager, with 
respect to the manager's defense in any civil judicial or civil 
administrative proceeding arising out of the manager's performance of 
services (or failure to perform services) on behalf of the foundation, 
against all expenses (other than taxes, including taxes imposed by 
chapter 42, penalties, or expenses of correction) including attorneys' 
fees, judgments and settlement expenditures if--
    (A) Such expenses are reasonably incurred by the manager in 
connection with such proceeding; and
    (B) The manager has not acted willfully and without reasonable cause 
with respect to the act or failure to act which led to such proceeding 
or to liability for tax under chapter 42.
    (ii) Similarly, except as provided in Sec.  53.4941(d)-3(c), section 
4941(d)(1) shall not apply to premiums for insurance to make or to 
reimburse a foundation for an indemnification payment allowed pursuant 
to this paragraph (f)(3). Neither shall an indemnification or payment of 
insurance allowed pursuant to this paragraph (f)(3) be treated as part 
of the compensation paid to such manager for purposes of determining 
whether the compensation is reasonable under chapter 42.
    (4) Compensatory indemnification of foundation managers against 
liability for defense in civil proceedings. (i) The indemnification by a 
private foundation of a foundation manager for compensatory expenses 
shall be an act of self-dealing under this paragraph unless when such 
payment is added to other compensation paid to such manager the total 
compensation is reasonable under chapter 42. A compensatory expense for 
purposes of this paragraph (f) is--
    (A) Any penalty, tax (including a tax imposed by chapter 42), or 
expense of correction that is owed by the foundation manager;
    (B) Any expense not reasonably incurred by the manager in connection 
with a civil judicial or civil administrative proceeding arising out of 
the manager's performance of services on behalf of the foundation; or
    (C) Any expense resulting from an act or failure to act with respect 
to which the manager has acted willfully and without reasonable cause.
    (ii) Similarly, the payment by a private foundation of the premiums 
for an insurance policy providing liability insurance to a foundation 
manager for expenses described in this paragraph (f)(4) shall be an act 
of self-dealing under this paragraph (f) unless when such premiums are 
added to other compensation paid to such manager the total compensation 
is reasonable under chapter 42.
    (5) Insurance allocation. A private foundation shall not be engaged 
in an act of self-dealing if the foundation purchases a single insurance 
policy to provide its managers both the noncompensatory and the 
compensatory coverage discussed in this paragraph (f), provided that the 
total insurance premium is allocated and that each manager's portion of 
the premium attributable to the compensatory coverage is included in 
that manager's compensation for purposes of determining reasonable 
compensation under chapter 42.
    (6) Indemnification. For purposes of this paragraph (f), the term 
indemnification shall include not only reimbursement by the foundation 
for expenses that the foundation manager has already incurred or 
anticipates incurring but also direct payment by the foundation of such 
expenses as the expenses arise.
    (7) Taxable income. The determination of whether any amount of 
indemnification or insurance premium discussed in this paragraph (f) is 
included in the manager's gross income for individual income tax 
purposes is made on the basis of the provisions of chapter 1 and

[[Page 68]]

without regard to the treatment of such amount for purposes of 
determining whether the manager's compensation is reasonable under 
chapter 42.
    (8) De minimis items. Any property or service that is excluded from 
income under section 132(a)(4) may be disregarded for purposes of 
determining whether the recipient's compensation is reasonable under 
chapter 42.
    (9) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. M, a private foundation, makes a grant of $50,000 to the 
governing body of N City for the purpose of alleviating the slum 
conditions which exist in a particular neighborhood of N. Corporation P, 
a substantial contributor to M, is located in the same area in which the 
grant is to be used. Although the general improvement of the area may 
constitute an incidental and tenuous benefit to P, such benefit by 
itself will not constitute an act of self-dealing.
    Example 2. Private foundation X established a program to award 
scholarship grants to the children of employees of corporation M, a 
substantial contributor to X. After disclosure of the method of carrying 
out such program, X received a determination letter from the Internal 
Revenue Service stating that X is exempt from taxation under section 
501(c)(3), that contributions to X are deductible under section 170, and 
that X's scholarship program qualifies under section 4945(g)(1). A 
scholarship grant to a person not a disqualified person with respect to 
X paid or incurred by X in accordance with such program shall not be an 
indirect act of self-dealing between X and M.
    Example 3. Private foundation Y owns voting stock in corporation Z, 
the management of which includes certain disqualified persons with 
respect to Y. Prior to Z's annual stockholder meeting, the management 
solicits and receives the foundation's proxies. The transfer of such 
proxies in and of itself shall not be an act of self-dealing.
    Example 4. A, a disqualified person with respect to private 
foundation S, contributes certain real estate to S for the purpose of 
building a neighborhood recreation center in a particular 
underprivileged area. As a condition of the gift, S agrees to name the 
recreation center after A. Since the benefit to A is only incidental and 
tenuous, the naming of the recreation center, by itself, will not be an 
act of self-dealing.

    (g) Payment to a government official. Except as provided in section 
4941(d)(2)(G) or Sec.  53.4941(d)-3(e), the agreement by a private 
foundation to make any payment of money or other property to a 
government official, as defined in section 4946(c), shall constitute an 
act of self-dealing. For purposes of this paragraph, an individual who 
is otherwise described in section 4946(c) shall be treated as a 
government official while on leave of absence from the government 
without pay.

[T.D. 7270, 38 FR 9493, Apr. 17, 1973, as amended by T.D. 7938, 49 FR 
3848, Jan. 31, 1984; T.D. 8639, 60 FR 65568, Dec. 20, 1995]



Sec.  53.4941(d)-3  Exceptions to self-dealing.

    (a) General rule. In general, a transaction described in section 
4941(d)(2) (B), (C), (D), (E), (F), (G), or (H) is not an act of self-
dealing. Section 4941(d)(2) (B), (C), and (H) provide limited exceptions 
to certain specific transactions, as described in paragraphs (b)(2), 
(b)(3), (c)(2), and (d)(3) of Sec.  53.4941(d)-2. Section 4941(d)(2) 
(D), (E), (F), and (G) and paragraphs (b) through (e) of this section 
described certain transactions which are not acts of self-dealing.
    (b) Furnishing of goods, services, or facilities to a disqualified 
person--(1) In general. Under section 4941(d)(2)(D), the furnishing of 
goods, services, or facilities by a private foundation to a disqualified 
person shall not be an act of self-dealing if such goods, services, or 
facilities are made available to the general public on at least as 
favorable a basis as they are made available to the disqualified person. 
This subparagraph shall not apply, however, in the case of goods, 
services, or facilities furnished later than May 16, 1973, unless such 
goods, services, or facilities are functionally related, within the 
meaning of section 4942(j)(5), to the exercise or performance by a 
private foundation of its charitable, educational, or other purpose or 
function constituting the basis for its exemption under section 
501(c)(3).
    (2) General public. For purposes of this paragraph, the term 
``general public'' shall include those persons who, because of the 
particular nature of the activities of the private foundation, would be 
reasonably expected to utilize such goods, services, or facilities. This 
paragraph shall not apply, however, unless there is a substantial number 
of persons other than disqualified persons

[[Page 69]]

who are actually utilizing such goods, services, or facilities. Thus, a 
private foundation which furnishes recreational or park facilities to 
the general public may furnish such facilities to a disqualified person 
provided they are furnished to him on a basis which is not more 
favorable than that on which they are furnished to the general public. 
Similarly, the sale of a book or magazine by a private foundation to 
disqualified persons shall not be an act of self-dealing if the 
publication of such book or magazine is functionally related to a 
charitable or educational activity of the foundation and the book or 
magazine is made available to the disqualified persons and the general 
public at the same price. In addition, if the terms of the sale require, 
for example, payment within 60 days from the date of delivery of the 
book or magazine, such terms are consistent with normal commercial 
practices, and payment is made within the 60-day period, the transaction 
shall not be treated as a loan or other extension of credit under Sec.  
53.4941(d)-2(c)(1).
    (c) Payment of compensation for certain personal services--(1) In 
general. Under section 4941(d)(2)(E), except in the case of a Government 
official (as defined in section 4946(c)), the payment of compensation 
(and the payment or reimbursement of expenses, including reasonable 
advances for expenses anticipated in the immediate future) by a private 
foundation to a disqualified person for the performance of personal 
services which are reasonable and necessary to carry out the exempt 
purpose of the private foundation shall not be an act of self-dealing if 
such compensation (or payment or reimbursement) is not excessive. For 
purposes of this subparagraph the term ``personal services'' includes 
the services of a broker serving as agent for the private foundation, 
but not the services of a dealer who buys from the private foundation as 
principal and resells to third parties. For the determination whether 
compensation is excessive, see Sec.  1.162-7 of this chapter (Income Tax 
Regulations). This paragraph applies without regard to whether the 
person who receives the compensation (or payment or reimbursement) is an 
individual. The portion of any payment which represents payment for 
property shall not be treated as payment of compensation (or payment or 
reimbursement of expenses) for the performance of personal services for 
purposes of this paragraph. For rules with respect to the performance of 
general banking services, see Sec.  53.4941(d)-2(c)(4). Further, the 
making of a cash advance to a foundation manager or employee for 
expenses on behalf of the foundation is not an act of self-dealing, so 
long as the amount of the advance is reasonable in relation to the 
duties and expense requirements of the foundation manager. Except where 
reasonably allowable pursuant to subdivision (iii) of this subparagraph, 
such advances shall not ordinarily exceed $500. For example, if a 
foundation makes an advance to a foundation manager to cover anticipated 
out-of-pocket current expenses for a reasonable period (such as a month) 
and the manager accounts to the foundation under a periodic 
reimbursement program for actual expenses incurred, the foundation will 
not be regarded as having engaged in an act of self-dealing:
    (i) When it makes the advance,
    (ii) When it replenishes the funds upon receipt of supporting 
vouchers from the foundation manager, or
    (iii) If it temporarily adds to the advance to cover extraordinary 
expenses anticipated to be incurred in fulfillment of a special 
assignment (such as long distance travel).
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. M, a partnership, is a firm of 10 lawyers engaged in the 
practice of law. A and B, partners in M, serve as trustees to private 
foundation W and, therefore, are disqualified persons. In addition, A 
and B own more than 35 percent of the profits interest in M, thereby 
making M a disqualified person. M performs various legal services for W 
from time to time as such services are requested. The payment of 
compensation by W to M shall not constitute an act of self-dealing if 
the services performed are reasonable and necessary for the carrying out 
of W's exempt purposes and the amount paid by W for such services is not 
excessive.
    Example 2. C, a manager of private foundation X, owns an investment 
counseling business. Acting in his capacity as an investment counselor, 
C manages X's investment portfolio for which he receives an amount which

[[Page 70]]

is determined to be not excessive. The payment of such compensation to C 
shall not constitute an act of self-dealing.
    Example 3. M, a commercial bank, serves as a trustee for private 
foundation Y. In addition to M's duties as trustee, M maintains Y's 
checking and savings accounts and rents a safety deposit box to Y. The 
use of the funds by M and the payment of compensation by Y to M for such 
general banking services shall be treated as the payment of compensation 
for the performance of personal services which are reasonable and 
necessary to carry out the exempt purposes of Y if such compensation is 
not excessive.
    Example 4. D, a substantial contributor to private foundation Z, 
owns a factory which manufactures microscopes. D contracts with Z to 
manufacture 100 microscopes for Z. Any payment to D under the contract 
shall constitute an act of self-dealing, since such payment does not 
constitute the payment of compensation for the performance of personal 
services.

    (d) Certain transactions between a foundation and a corporation--(1) 
In general. Under section 4941(d)(2)(F), any transaction between a 
private foundation and a corporation which is a disqualified person will 
not be an act of self-dealing if such transaction is engaged in pursuant 
to a liquidation, merger, redemption, recapitalization, or other 
corporate adjustment, organization, or reorganization, so long as all 
the securities of the same class as that held (prior to such 
transaction) by the foundation are subject to the same terms and such 
terms provide for receipt by the foundation of no less than fair market 
value. For purposes of this paragraph, all of the securities are not 
``subject to the same terms unless, pursuant to such transaction,'' The 
corporation makes a bona fide offer on a uniform basis to the foundation 
and every other person who holds such securities. The fact that a 
private foundation receives property, such as debentures, while all 
other persons holding securities of the same class receive cash for 
their interests, will be evidence that such offer was not made on a 
uniform basis. This paragraph may apply even if no other person holds 
any securities of the class held by the foundation. In such event, 
however, the consideration received by holders of other classes of 
securities, or the interests retained by holders of such other classes, 
when considered in relation to the consideration received by the 
foundation, must indicate that the foundation received at least as 
favorable treatment in relation to its interests as the holders of any 
other class of securities. In addition, the foundation must receive no 
less than the fair market value of its interests.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Private foundation X owns 50 percent of the class A 
preferred stock of corporation M, which is a disqualified person with 
respect to X. The terms of such securities provide that the stock may be 
called for redemption at any time by M at 105 percent of the face amount 
of the stock. M exercises this right and calls all the class A preferred 
stock by paying 105 percent of the face amount in cash. At the time of 
the redemption of the class A preferred stock, it is determined that the 
fair market value of the preferred stock is equal to its face amount. In 
such case, the redemption by M of the preferred stock of X is not an act 
of self-dealing.
    Example 2. Private foundation Y, which is on a calendar year basis, 
acquires 60 percent of the class A preferred stock of corporation N by 
will on January 10, 1970. N, which is also on a calendar year basis, is 
a disqualified person with respect to Y. In 1971, N offers to redeem all 
of the class A preferred stock for a consideration equal to 100 percent 
of the face amount of such stock by the issuance of debentures. The 
offer expires January 2, 1972. Both Y and all other holders of the class 
A preferred stock accept the offer and enter into the transaction on 
January 2, 1972, at which time it is determined that the fair market 
value of the debentures is no less than the fair market value of the 
preferred stock. The transaction on January 2, 1972, shall not be 
treated as an act of self-dealing for 1972. However, because under Sec.  
53.4941 (e)-1 (e)(1)(i) an act of self dealing occurs on the first day 
of each taxable year or portion of a taxable year that an extension of 
credit from a foundation to a disqualified person goes uncorrected, if 
such debentures are held by Y after December 31, 1972, except as 
provided in Sec.  53.4941(d)-4(c)(4), such extension of credit shall not 
be excepted from the definition of an act of self dealing by reason of 
the January 2, 1972, transaction. See Sec.  53.4941(d)-4(c)(4) for rules 
indicating that under certain circumstances such debentures could be 
held by Y until December 31, 1979.

    (e) Certain payments to government officials. Under section 
4941(d)(2)(G), in the case of a government official, in addition to the 
exceptions provided in

[[Page 71]]

section 4941(d)(2) (B), (C), and (D), section 4941(d)(1) shall not apply 
to:
    (1) A prize or award which is not includible in gross income under 
section 74(b), if the government official receiving such prize or award 
is selected from the general public;
    (2) A scholarship or a fellowship grant which is excludable from 
gross income under section 117(a) and which is to be utilized for study 
at an educational institution described in section 151(e)(4);
    (3) Any annuity or other payment (forming part of a stock-bonus, 
pension, or profit sharing plan) by a trust which constitutes a 
qualified trust under section 401;
    (4) Any annuity or other payment under a plan which meets the 
requirements of section 404(a)(2);
    (5) Any contribution or gift (other than a contribution or gift of 
money) to, or services or facilities made available to, any government 
official, if the aggregate value of such contributions, gifts, services, 
and facilities does not exceed $25 during any calendar year;
    (6) Any payment made under 5 U.S.C. Chapter 41 (relating to 
government employees' training programs);
    (7) Any payment or reimbursement of traveling expenses (including 
amounts expended for meals and lodging, regardless of whether the 
government official is away from home within the meaning of section 
162(a)(2), and including reasonable advances for such expenses 
anticipated in the immediate future) for travel solely from one point in 
the United States to another in connection with one or more purposes 
described in section 170(c) (1) or (2)(B), but only if such payment or 
reimbursement does not exceed the actual cost of the transportation 
involved plus an amount for all other traveling expenses not in excess 
of 125 percent of the maximum amount payable under 5 U.S.C. 5702(a) for 
like travel by employees of the United States;
    (8) Any agreement to employ or make a grant to a government official 
for any period after the termination of his government service if such 
agreement is entered into within 90 days prior to such termination;
    (9) If a government official attends or participates in a conference 
sponsored by a private foundation, the allocable portion of the cost of 
such conference and other nonmonetary benefits (for example, benefits of 
a professional, intellectual, or psychological nature, or benefits 
resulting from the publication or the distribution to participants of a 
record of the conference), as well as the payment or reimbursement of 
expenses (including reasonable advances for expenses anticipated in 
connection with such a conference in the near future), received by such 
government official as a result of such attendance or participation 
shall not be subject to section 4941(d)(1), so long as the conference is 
in furtherance of the exempt purposes of the foundation; or
    (10) In the case of any government official who was on leave of 
absence without pay on December 31, 1969, pursuant to a commitment 
entered into on or before such date for the purpose of engaging in 
certain activities for which such individual was to be paid by one or 
more private foundations, any payment of compensation (or payment or 
reimbursement of expenses, including reasonable advances for expenses 
anticipated in the immediate future) by such private foundations to such 
individual for any continuous period after December 31, 1969, and prior 
to January 1, 1971, during which such individual remains on leave of 
absence to engage in such activities. A commitment is considered entered 
into on or before December 31, 1969, if on or before such date, the 
amount and nature of the payments to be made and the name of the 
individual receiving such payments were entered on the records of the 
payor, or were otherwise adequately evidenced, or the notice of the 
payment to be received was communicated to the payee orally or in 
writing.

[T.D. 7270, 38 FR 9493, Apr. 17, 1973, as amended by T.D. 7938, 49 FR 
3848, Jan. 31, 1984]



Sec.  53.4941(d)-4  Transitional rules.

    (a) Certain transactions involving securities acquired by a 
foundation before May 27, 1969--(1) In general. Under section 
101(l)(2)(A) of the Tax Reform Act of 1969 (83 Stat. 533), any 
transaction between a private foundation and a corporation which is a 
disqualified person shall not be an act of self-dealing if such 
transaction is pursuant to the

[[Page 72]]

terms of securities of such corporation, if such terms were in existence 
at the time such securities were acquired by the foundation, and if such 
securities were acquired by the foundation before May 27, 1969.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. Private foundation X purchased preferred stock of 
corporation M, a disqualified person with respect to X, on March 15, 
1969. The terms of such securities on such date provided that the stock 
could be called by M at any time if M paid the outstanding shareholders 
cash equal to 105 percent of the face amount of the stock. If M 
exercises this right and calls the stock owned by X on February 15, 
1970, such call shall not constitute an act of self-dealing even if such 
price is not equivalent to fair market value on such date and even if 
not all of the securities of that class are called.

    (b) Disposition of certain business holdings--(1) In general. Under 
section 101(l)(2)(B) of the Tax Reform Act of 1969 (83 Stat. 533), the 
sale, exchange, or other disposition of property which is owned by a 
private foundation on May 26, 1969, to a disqualified person shall not 
be an act of self-dealing if the foundation is required to dispose of 
such property in order not to be liable for tax under section 4943 
(determined without regard to section 4943(c)(2)(C) and as if every 
disposition by the foundation were made to disqualified persons) and if 
such disposition satisfies the requirements of subparagraph (2) of this 
paragraph. For purposes of applying this paragraph in the case of a 
disposition completed before January 1, 1975, or after October 4, 1976, 
and before January 1, 1977, the amount of excess business holdings is 
determined under section 4943(c) without taking subsection (c)(4) into 
account.
    (2) Terms of the disposition. Subparagraph (1) of this paragraph 
shall not apply unless:
    (i) The private foundation receives an amount which equals or 
exceeds the fair market value of the business holdings at the time of 
disposition or at the time a contract for such disposition was 
previously executed; and
    (ii) At the time with respect to which subdivision (i) of this 
subparagraph is applied, the transaction would not have constituted a 
prohibited transaction within the meaning of section 503(b) or the 
corresponding provisions of prior law if such provisions had been 
applied at such time.
    (3) Property received under a trust or will. For purposes of this 
paragraph, property shall be considered as owned by a private foundation 
on May 26, 1969, if such property is acquired by such foundation under 
the terms of a will executed on or before such date, under the terms of 
a trust which was irrevocable on such date, or under the terms of a 
revocable trust executed on or before such date if the property would 
have passed under a will which would have met the requirements of this 
subparagraph but for the fact that a grantor dies without having revoked 
the trust. An amendment or republication of a will which was executed on 
or before May 26, 1969, does not prevent any interest in a business 
enterprise which was to pass under the terms of such will (which terms 
were in effect on May 26, 1969, and at all times thereafter) from being 
treated as owned by a private foundation on or before May 26, 1969, 
solely because:
    (i) There is a reduction in the interest in the business enterprise 
which the foundation was to receive under the terms of the will (for 
example, if the foundation is to receive the residuary estate and one 
class of stock is disposed of by the decedent during his lifetime or by 
a subsequent codicil),
    (ii) Such amendment or republication is necessary in order to comply 
with section 508(e) and the regulations thereunder,
    (iii) There is a change in the executor of the will, or
    (iv) There is any other change which does not otherwise change the 
rights of the foundation with respect to such interest in the business 
enterprise.

However, if under such amendment or republication there is an increase 
of the interest in the business enterprise which the foundation was to 
receive under the terms of the will in effect on May 26, 1969, such 
increase shall not be treated as owned by the private foundation on or 
before May 26, 1969, but under such circumstances the interest which 
would have been acquired before such increase shall be treated as owned

[[Page 73]]

by the private foundation on or before May 26, 1969.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On May 26, 1969, private foundation X owns 10 percent of 
corporation Y's voting stock, which is traded on the New York Stock 
Exchange. Disqualified persons with respect to X own an additional 40 
percent of such voting stock. X is on a calendar year basis. Prior to 
January 1, 1975, X privately sold its entire 10 percent for cash to B, a 
disqualified person, at the price quoted on the stock exchange at the 
close of the day less commissions. Since the 10 percent owned by X would 
constitute excess business holdings without the application of section 
4943(c) (2)(C) or (4), the disposition will not constitute an act of 
self-dealing.
    Example 2. Assume the facts as stated in example (1), except that 
the only stock of corporation Y which X owns is 1.5 percent of Y's 
voting stock. Since the 1.5 percent owned by X would constitute excess 
business holdings without the application of section 4943(c) (2)(C) or 
(4), the disposition of the stock to B for cash will not constitute an 
act of self-dealing.
    Example 3. Assume the facts as stated in example (1), except that B, 
instead of paying cash as consideration for the stock, issued a 10-year 
secured promissory note as consideration for the stock. The issuance of 
such promissory note will not be treated as an act of self-dealing until 
taxable years beginning after December 31, 1979, unless such issuance 
would have been a prohibited transaction under section 503(b), or unless 
the transaction does not remain throughout its life at least as 
favorable as an arm's-length contract negotiated currently. See 
paragraph (c) of this section.

    (c) Existing leases and loans--(1) In general. Under section 
101(1)(2)(C) of the Tax Reform Act of 1969 (83 Stat. 533), the leasing 
of property or the lending of money (or other extension of credit) 
between a disqualified person and a private foundation pursuant to a 
binding contract which was in effect on October 9, 1969 (or pursuant to 
a renewal or modification of such a contract, as described in 
subparagraph (2) of this paragraph), shall not be an act of self-dealing 
until taxable years beginning after December 31, 1979, if:
    (i) At the time the contract was executed, such contract was not a 
prohibited transaction (within the meaning of section 503(b) or the 
corresponding provisions of prior law), and
    (ii) The leasing or lending of money (or other extension of credit) 
remains throughout the term of the lease or extension of credit at least 
as favorable as a current arm's-length transaction with an unrelated 
person.
    (2) Renewal or modification of existing contracts. A renewal or a 
modification of an existing contract is referred to in subparagraph (1) 
of this paragraph only if any modifications of the terms of such 
contract are not substantial and the relative advantages of the modified 
contract compared with contracts entered into at arm's-length with an 
unrelated person at the time of the renewal or modification are at least 
as favorable to the private foundation as the relative advantages of the 
original contract compared with contracts entered into at arm's-length 
with an unrelated person at the time of execution of the original 
contract. Such renewal or modification need not be provided for in the 
original contract; it may take place before or after the expiration of 
the original contract and at any time before the first day of the first 
taxable year of the private foundation beginning after December 31, 
1979. Where, in a normal commercial setting, an unrelated party in the 
position of a private foundation could be expected to insist upon a 
renegotiation or termination of a binding contract, the private 
foundation must so act. Thus, for example, if a disqualified person 
leases office space from a private foundation on a month-to-month basis, 
and a party in the position of the private foundation could be expected 
to renegotiate the rent required in such contract because of a rise in 
the fair market value of such office space, the private foundation must 
so act in order to avoid participation in an act of self-dealing. Where 
the private foundation has no right to insist upon renegotiation, an act 
of self-dealing shall occur if the terms of the contract become less 
favorable to the foundation than an arm's-length contract negotiated 
currently, unless:
    (i) The variation from current fair market value is de minimis, or
    (ii) The contract is renegotiated by the foundation and the 
disqualified person so that the foundation will receive no less than 
fair market value.

[[Page 74]]

For purposes of subdivision (i) of this subparagraph de minimis 
ordinarily shall be no more than one-half of 1 percent in the rate of 
return in the case of a loan, or 10 percent of the rent in the case of a 
lease.
    (3) Example. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following example.

    Example. Under a binding contract entered into on January 1, 1964, 
X, a private foundation, leases a building for 10 years from Z, a 
disqualified person. At the time the contract was executed, the lease 
was not a ``prohibited transaction'' within the meaning of section 
503(b), since the rent charged X was only 50 percent of the rent which 
would have been charged in an arm's-length transaction with an unrelated 
person. On January 1, 1974, X renewed the lease for 5 additional years. 
The terms of the renewal agreement provided for a 20 percent increase in 
the amount of rent charged X. However, at the time of such renewal, the 
rent which would have been charged in an arm's-length transaction had 
also increased by 20 percent from that of 1964. The renewal agreement 
shall not be treated as an act of self-dealing.

    (4) Certain exchanges of stock or securities for bonds, debentures 
or other indebtedness. (i) In the case of a transaction described in 
paragraph (a) or (b) of this section or paragraph (d) of Sec.  
53.4941(d)-3, where a bond, debenture, or other indebtedness of a 
disqualified person is acquired by a private foundation in exchange for 
stock or securities which it held on October 9, 1969, and at all times 
thereafter, such indebtedness shall be treated as an extension of credit 
pursuant to a binding contract in effect on October 9, 1969, to which 
this paragraph applies. Thus, so long as the extension of credit remains 
at least as favorable as an arm's-length transaction with an unrelated 
person and neither the acquisition of the securities which were 
exchanged for the indebtedness nor the exchange of such securities for 
the indebtedness was a prohibited transaction within the meaning of 
section 503(b) (or the corresponding provisions of prior law) at the 
time of such acquisition, such extension of credit shall not be an act 
of self-dealing until taxable years beginning after December 31, 1979.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Assume the facts as stated in example (2) of Sec.  
53.4941 (d)-3 (d)(2), except that the preferred stock was held by Y on 
October 9, 1969, and at all times thereafter until the redemption 
occurred on January 2, 1972. In addition, assume that the acquisition of 
the preferred stock was not a prohibited transaction within the meaning 
of section 503(b) at the time of such acquisition and the exchange of 
the preferred stock for the debentures would not have been a prohibited 
transaction within the meaning of section 503(b). For 1973 through 1979, 
the extension of credit arising from the holding of the debentures is 
not an act of self-dealing so long as the extension of credit remains at 
least as favorable as an arm's-length transaction with an unrelated 
person. See, however, example (3) of Sec.  53.4941 (e)-1 (e)(1)(ii).
    Example 2. Assume the same facts as stated in example (1) of Sec.  
53.4941 (d)-4 (b)(4), except that private foundation X sold its entire 
10 percent of corporation Y's voting stock in exchange for Y's secured 
notes which mature on December 31, 1985. For taxable years beginning 
before January 1, 1980, the extension of credit arising from the holding 
of such notes by X is not an act of self-dealing so long as the 
extension of credit remains at least as favorable as an arm's-length 
transaction with an unrelated person and neither the acquisition of the 
securities which were exchanged for the indebtedness nor the exchange of 
such securities for the indebtedness was a prohibited transaction within 
the meaning of section 503(b) (or the corresponding provisions of prior 
law). Under Sec.  53.4941(e)-1, a new extension of credit occurs on the 
first day of each taxable year in which an indebtedness is outstanding; 
therefore, if the secured notes are held by X after December 31, 1979, a 
new extension of credit not excepted from the definition of an act of 
self-dealing will occur on the first day of the first taxable year 
beginning after December 31, 1979, and on the first day of each 
succeeding taxable year in which X holds such secured notes.

    (d) Sharing of goods, services, or facilities before January 1, 
1980. (1) Under section 101(1)(2)(D) of the Tax Reform Act of 1969 (83 
Stat. 533), the use (other than leasing) of goods, services, or 
facilities which are shared by a private foundation and a disqualified 
person shall not be an act of self-dealing until taxable years beginning 
after December 31, 1979, if:
    (i) The use is pursuant to an arrangement in effect before October 
9, 1969, and at all times thereafter;

[[Page 75]]

    (ii) The arrangement was not a prohibited transaction (within the 
meaning of sec. 503(b) or the corresponding provisions of prior law) at 
the time it was made; and
    (iii) The arrangement would not be a prohibited transaction if 
section 503(b) continued to apply.

For purposes of this paragraph, such arrangement need not be a binding 
contract.
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example. In 1964 X, a private foundation, and B, a disqualified 
person, arranged for the sharing of computer time in B's son's company 
for a 10-year period commencing January 1, 1965. B's son has the 
unilateral right to terminate the arrangement at any time. X uses the 
computer facilities in connection with an analysis of its grant-making 
activities, while B's use is related to his business affairs. Both X and 
B make reasonable fixed payments to the computer company based on the 
number of hours of computer use and comparable to fees charged in arm's-
length transactions with unrelated parties. The company imposes a 
maximum limit per month on the sum of the number of hours for which X 
and B use the computer facilities. Under these circumstances, the 
sharing of computer time is not an act of self-dealing.

    (e) Use of certain property acquired before October 9, 1969. (1) 
Under section 101(1)(2)(E) of the Tax Reform Act of 1969 (83 Stat. 533), 
the use of property in which a private foundation and a disqualified 
person have a joint or common interest will not be an act of self-
dealing if the interests of both in such property were acquired before 
October 9, 1969.
    (2) The provisions of this paragraph may be illustrated by the 
following example:

    Example. Prior to October 9, 1969, C, a disqualified person, gave 
beachfront property to private foundation X for use as a recreational 
facility for underprivileged, inner-city children during the summer 
months. However, C retained the right to use such property for his life. 
The use of such property by C or X is not an act of self-dealing.

    (f) Disposition of leased property--(1) In general. Under section 
101(l)(2)(F) of the Tax Reform Act of 1969, as amended by the Tax Reform 
Act of 1976 (90 Stat. 1713), the sale, exchange or other disposition 
(other than by lease) to a disqualified person of property being leased 
to the disqualified person by a private foundation is not an act of 
self-dealing if:
    (i) The private foundation is leasing substantially all of the 
property to the disqualified person under a lease to which paragraph (c) 
of this section applies;
    (ii) The disposition occurs after October 4, 1976, and before 
January 1, 1978; and
    (iii) The disposition satisfies the requirements of paragraph (f)(2) 
of this section.
    (2) Terms of disposition. Paragraph (f)(1) of this section applies 
only if:
    (i) The private foundation receives an amount that equals or exceeds 
the fair market value of the property either at the time of the 
disposition or at the time (after June 30, 1976) the contract for such 
disposition was executed;
    (ii) In computing the fair market value of the property, no 
diminution of that value results from the fact that the property is 
subject to any lease to disqualified persons; and
    (iii) At the time with respect to which paragraph (f)(2)(i) of this 
section is applied, the transaction would not have constituted a 
prohibited transaction within the meaning of section 503(b) or the 
corresponding provisions of prior law if those provisions had been 
applied at the time of the transaction.

[T.D. 7270, 38 FR 9493, Apr. 17, 1973, as amended by T.D. 7678, 45 FR 
12416, Feb. 26, 1980]



Sec.  53.4941(e)-1  Definitions.

    (a) Taxable period--(1) In general. For purposes of any act of self-
dealing, the term ``taxable period'' means the period beginning with the 
date on which the act of self-dealing occurs and ending on the earliest 
of:
    (i) The date of mailing of a notice of deficiency under section 6212 
with respect to the tax imposed by section 4941(a)(1),
    (ii) The date on which correction of the act of self-dealing is 
completed, or
    (iii) The date on which the tax imposed by section 4941(a)(1) is 
assessed.
    (2) Date of occurrence. An act of self-dealing occurs on the date on 
which all the terms and conditions of the transaction and the 
liabilities of the parties

[[Page 76]]

have been fixed. Thus, for example, if a private foundation gives a 
disqualified person a binding option on June 15, 1971, to purchase 
property owned by the foundation at any time before June 15, 1972, the 
act of self-dealing has occurred on June 15, 1971. Similarly, in the 
case of a conditional sales contract, the act of self-dealing shall be 
considered as occurring on the date the property is transferred subject 
only to the condition that the buyer make payment for receipt of such 
property.
    (3) Special rule. Where a notice of deficiency referred to in 
subparagraph (1)(i) of this paragraph is not mailed because a waiver of 
the restrictions on assessment and collection of a deficiency has been 
accepted, or because the deficiency is paid, the date of filing of the 
waiver or the date of such payment, respectively, shall be treated as 
the end of the taxable period.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. On July 16, 1970, F, a manager of private foundation X 
acting on behalf of the foundation, knowing his act to be one of self-
dealing, willfully and without reasonable cause engaged in an act of 
self-dealing by selling certain real estate to A, a disqualified person. 
On March 25, 1973, the Internal Revenue Service mailed a notice of 
deficiency to A with respect to the tax imposed on the sale under 
section 4941(a)(1). The taxable period with respect to the act of self-
dealing for both A and F is July 16, 1970, through March 25, 1973.
    Example 2. Assume the facts as stated in example (1), except that 
the act of self-dealing is corrected by A on March 17, 1971. The taxable 
period with respect to the act of self-dealing for both A and F is July 
16, 1970, through March 17, 1971.
    Example 3. Assume the facts as stated in example (1), except that on 
August 20, 1972, A files a waiver of the restrictions on assessment and 
collection of the tax imposed on the sale under section 4941(a)(1) which 
is accepted. The taxable period with respect to the act of self-dealing 
for both A and F is July 16, 1970, through August 20, 1972.

    (b) Amount involved--(1) In general. Except as provided in 
subparagraph (2) of this paragraph, for purposes of any act of self-
dealing, the term ``amount involved'' means the greater of the amount of 
money and the fair market value of the other property given or the 
amount of money and the fair market value of the other property 
received.
    (2) Exceptions. (i) In the case of the payment of compensation for 
personal services to persons other than Government officials, the amount 
involved shall be only the excess compensation paid by the private 
foundation.
    (ii) Where the use of money or other property is involved, the 
amount involved shall be the greater of the amount paid for such use or 
the fair market value of such use for the period for which the money or 
other property is used. Thus, for example, in the case of a lease of a 
building by a private foundation to a disqualified person, the amount 
involved is the greater of the amount of rent received by the private 
foundation from the disqualified person or the fair rental value of the 
building for the period such building is used by the disqualified 
person.
    (iii) In cases in which a transaction would not have been an act of 
self-dealing had the private foundation received fair market value, the 
amount involved is the excess of the fair market value of the property 
transferred by the private foundation over the amount which the private 
foundation receives, but only if the parties have made a good faith 
effort to determine fair market value. For purposes of this subdivision 
a good faith effort to determine fair market value shall ordinarily have 
been made where:
    (a) The person making the valuation is not a disqualified person 
with respect to the foundation and is both competent to make the 
valuation and not in a position, whether by stock ownership or 
otherwise, to derive an economic benefit from the value utilized, and
    (b) The method utilized in making the valuation is a generally 
accepted method for valuing comparable property, stock, or securities 
for purposes of arm's-length business transactions where valuation is a 
significant factor.


See section 4941(d)(2)(F) and Sec. Sec.  53.4941(d)-1(b)(3), 53.4941(d)-
3 (d)(1) and 53.4941(d)-4(b). Thus, for example, if a corporation which 
is a disqualified person with respect to a private foundation 
recapitalizes in a transaction which would be described in section 
4941(d)(2)(F) but for the fact that the

[[Page 77]]

private foundation receives new stock worth only $95,000 in exchange for 
the stock which it previously held in the corporation and which has a 
fair market value of $100,000 at the time of the recapitalization, the 
amount involved would be $5,000 ($100,000--$95,000) if there had been a 
good faith attempt to value the stock. Similarly, if an estate enters 
into a transaction with a disqualified person with respect to a 
foundation and such transaction would be described in Sec.  53.4941(d)-
1(b)(3) but for the fact that the estate receives less than fair market 
value for the property exchanged, the amount involved is the excess of 
the fair market value of the property the estate transfers to the 
disqualified person over the money and the fair market value of the 
property received by the estate.
    (3) Time for determining fair market value. The fair market value of 
the property or the use thereof, as the case may be, shall be determined 
as of the date on which the act of self-dealing occurred in the case of 
the initial taxes imposed by section 4941(a) and shall be the highest 
fair market value during the taxable period in the case of the 
additional taxes imposed by section 4941(b).
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A, a disqualified person with respect to private 
foundation M, uses an airplane owned by M on June 15 and June 16, 1970, 
for a 2-day trip to New York City on personal business and pays M $500 
for the use of such airplane. The fair rental value for the use of the 
airplane for those 2 days is $3,000. For purposes of section 4941(a), 
the amount involved with respect to the act of self-dealing is $3,000.
    Example 2. On April 10, 1970, B, a manager of private foundation P, 
borrows $100,000 from P at 6 percent interest per annum. Both principal 
and interest are to be paid 1 year from the date of the loan. The fair 
market value of the use of the money on April 10, 1970, is 10 percent 
per annum. Six months later, B and P terminate the loan, and B repays 
the $100,000 principal plus $3,000 ($100,000 x 6 percent for one-half 
year) interest. For purposes of section 4941(a), the amount involved 
with respect to the act of self-dealing is $5,000 ($100,000 x 10 percent 
for one-half year) for each year or partial year in the taxable period.
    Example 3. C, a substantial contributor to private foundation S, 
leases office space in a building owned by S for $3,600 for 1 year 
beginning on January 1, 1971. The fair rental value of the building for 
a 1-year lease on January 1, 1971, is $5,600. On December 31, 1971, the 
lease is terminated. For purposes of section 4941(a), the amount 
involved with respect to the act of self-dealing is $5,600 for each year 
or partial year in the taxable period.
    Example 4. D, a disqualified person with respect to private 
foundation T, purchases 100 shares of stock from T for $5,000 on June 
15, 1982. The fair market value of the 100 shares of stock on that date 
is $4,800. D sells the 100 shares of stock on December 20, 1983, for 
$6,000. On December 27, 1983, a notice of deficiency with respect to the 
taxes imposed under subsections (a) and (b) of section 4941 is mailed to 
D and the taxable period ends. D fails to correct during the taxable 
period. Between June 15, 1982, and the end of the taxable period, the 
stock was quoted on the New York Stock Exchange at a high of $67 per 
share. The amount involved with respect to the tax imposed under 
subsection (a) is $5,000, and the amount involved with respect to the 
tax imposed under subsection (b) for failure to correct is $6,700 (100 
shares at $67 per share), the highest fair market value during the 
taxable period.
    Example 5. Corporation M, a disqualified person with respect to 
private foundation V, redeems all of its Class B common stock, some of 
which is held by V. The redemption of V's stock would be described in 
section 4941(d)(2)(F) but for the fact that V receives only $95,000 in 
exchange for stock which has a fair market value of $100,000 at the time 
of the transaction. The $95,000 value of V's stock, which is not 
publicly traded, was determined by investment bankers in accordance with 
accepted methods of valuation that would be utilized if the M stock held 
by V were to be offered for sale to the public. Therefore, the amount 
involved with respect to the transaction will ordinarily be limited to 
$5,000 ($100,000--$95,000).

    (c) Correction--(1) In general. Correction shall be accomplished by 
undoing the transaction which constituted the act of self-dealing to the 
extent possible, but in no case shall the resulting financial position 
of the private foundation be worse than that which it would be if the 
disqualified person were dealing under the highest fiduciary standards. 
For example, where a disqualified person sells property to a private 
foundation for cash, correction may be accomplished by recasting the 
transaction in the form of a gift by returning the cash to the 
foundation. Subparagraphs (2) through (6) of this paragraph illustrate 
the minimum

[[Page 78]]

standards of correction in the case of certain specific acts of self-
dealing. Principles similar to the principles contained in such 
subparagraphs shall be applied with respect to other acts of self-
dealing. Any correction pursuant to this paragraph and section 4941 
shall not be an act of self-dealing.
    (2) Sales by foundation. (i) In the case of a sale of property by a 
private foundation to a disqualified person for cash, undoing the 
transaction includes, but is not limited to, requiring recission of the 
sale where possible. However, in order to avoid placing the foundation 
in a position worse than that in which it would be if rescission were 
not required, the amount returned to the disqualified person pursuant to 
the rescission shall not exceed the lesser of the cash received by the 
private foundation or the fair market value of the property received by 
the disqualified person. For purposes of the preceding sentence, fair 
market value shall be the lesser of the fair market value at the time of 
the act of self-dealing or the fair market value at the time of 
rescission. In addition to rescission, the disqualified person is 
required to pay over to the private foundation any net profits he 
realized after the original sale with respect to the property he 
received from the sale. Thus, for example, the disqualified person must 
pay over to the foundation any income derived by him from the property 
he received from the original sale to the extent such income during the 
correction period exceeds the income derived by the foundation during 
the correction period from the cash which the disqualified person 
originally paid to the foundation.
    (ii) If, prior to the end of the correction period, the disqualified 
person resells the property in an arm's-length transaction to a bona 
fide purchaser who is not the foundation or another disqualified person, 
no rescission is required. In such case, the disqualified person must 
pay over to the foundation the excess (if any) of the greater of the 
fair market value of such property on the date on which correction of 
the act of self-dealing occurs or the amount realized by the 
disqualified person from such arm's length resale over the amount which 
would have been returned to the disqualified person pursuant to 
subdivision (i) of this subparagraph if rescission had been required. In 
addition, the disqualified person is required to pay over to the 
foundation any net profits he realized, as described in subdivision (i) 
of this subparagraph.
    (iii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. On July 1, 1970, private foundation M sold a painting to 
A, a disqualified person, for $5,000, in a transaction not within any of 
the exceptions to self-dealing. The fair market value of the painting on 
such date was $6,000. On March 25, 1971, the painting is still owned by 
A and has a fair market value of $7,200. A did not derive any income as 
a result of purchasing the painting. In order to correct the act of 
self-dealing under this subparagraph on March 25, 1971, the sale must be 
rescinded by the return of the painting to M. However, pursuant to such 
rescission, M must not pay A more than $5,000, the original 
consideration received by M.
    Example 2. Assume the facts as stated in Example (1), except that A 
sold the painting on December 15, 1970, in an arm's-length transaction 
to C, a bona fide purchaser who is not a disqualified person, for 
$6,100. In addition, assume that the fair market value of the painting 
on March 25, 1971, is $7,600. In order to correct the act of self-
dealing under this subparagraph on March 25, 1971, A must pay M $2,600 
($7,600, the fair market value at the time of correction, less $5,000, 
the amount which would have been returned to A if rescission had been 
required). Since the painting was sold to C in an arm's-length 
transaction prior to correction, no rescission is required.

    (3) Sales to foundation. (i) In the case of a sale of property to a 
private foundation by a disqualified person for cash, undoing the 
transaction includes, but is not limited to, requiring rescission of the 
sale where possible. However, in order to avoid placing the foundation 
in a position worse than that in which it would be if rescission were 
not required, the amount received from the disqualified person pursuant 
to the rescission shall be the greatest of the cash paid to the 
disqualified person, the fair market value of the property at the time 
of the original sale, or the fair market value of the property at the 
time of rescission. In addition to rescission, the disqualified person 
is required to pay over to the private foundation any net profits he 
realized after the original sale with respect to the

[[Page 79]]

consideration he received from the sale. Thus, for example, the 
disqualified person must pay over to the foundation any income derived 
by him from the cash he received from the original sale to the extent 
such income during the correction period exceeds the income derived by 
the foundation during the correction period from the property which the 
disqualified person originally transferred to the foundation.
    (ii) If, prior to the end of the correction period, the foundation 
resells the property in an arm's-length transaction to a bona fide 
purchaser who is not a disqualified person, no rescission is required. 
In such case, the disqualified person must pay over to the foundation 
the excess (if any) of the amount which would have been received from 
the disqualified person pursuant to subdivision (i) of this 
subparagraph, if recission had been required over the amount realized by 
the foundation upon resale of the property. In addition, the 
disqualified person is required to pay over to the foundation any net 
profits he realized, as described in subdivision (i) of this 
subparagraph.
    (iii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. On February 10, 1972, D, a disqualified person with 
respect to private foundation P, sells 100 shares of X stock to P for 
$2,500 in a transaction which does not fall within any of the exceptions 
to selfdealing. The fair market value of the 100 shares of X stock on 
February 10, 1972, is $3,200. On June 1, 1973, the 100 shares of X stock 
have a fair market value of $2,900. From February 10, 1972, through June 
1, 1973, P has received dividends of $90 from the stock, and D has 
received interest of $300 from the $2,500 which D received as 
consideration for the stock. In order to correct the act of self-dealing 
under this subparagraph on June 1, 1973, the sale must be rescinded by 
the return of the stock to D. However, pursuant to such rescission, D 
must pay P $3,200, the fair market value of the stock on the date of 
sale. In addition, D must pay P $210, the amount of income derived by D 
during the correction period from the $2,500 received from P ($300) 
minus the income derived by P during the correction period from the 
stock sold to P ($90).
    Example 2. Assume the facts as stated in Example (1), except that on 
September 1, 1972, P sells the 100 shares of X stock to E, a bona fide 
purchaser who is not a disqualified person, in an arm's-length 
transaction for $2,750. Assume further that P has not received any 
dividends from the stock prior to the sale to E, but that P receives 
interest of $260 from the $2,750 received as consideration for the stock 
for the period from September 1, 1972, to June 1, 1973. In order to 
correct the act of self-dealing under this subparagraph on June 1, 1973, 
D must pay P $450 ($3,200, the amount which would have been received 
from D if rescission had been required, less $2,750, the amount realized 
by P from the sale to E). In addition, D must pay P $40, the amount of 
income derived by D during the correction period from the $2,500 
received from P ($300) minus the income derived by P during the 
correction period from the stock sold to P ($260 from the $2,750 
received as consideration for the stock). Since the stock was sold to E 
in an arm's-length transaction prior to correction, no rescission is 
required.

    (4) Use of property by a disqualified person. (i) In the case of the 
use by a disqualified person of property owned by a private foundation, 
undoing the transaction includes, but is not limited to, terminating the 
use of such property. In addition to termination, the disqualified 
person must pay the foundation:
    (a) The excess (if any) of the fair market value of the use of the 
property over the amount paid by the disqualified person for such use 
until such termination, and
    (b) The excess (if any) of the amount which would have been paid by 
the disqualified person for the use of the property on or after the date 
of such termination, for the period such disqualified person would have 
used the property (without regard to any further extensions or renewals 
of such period) if such termination had not occurred, over the fair 
market value of such use for such period.

In applying (a) of this subdivision the fair market value of the use of 
property shall be the higher of the rate (that is, fair rental value per 
period in the case of use of property other than money or fair interest 
rate in the case of use of money) at the time of the act of self-dealing 
(within the meaning of paragraph (e)(1) of this section) or such rate at 
the time of correction of such act of self-dealing. In applying (b) of 
this subdivision the fair market value of the use of property shall be 
the rate at the time of correction.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:


[[Page 80]]


    Example 1. On January 1, 1972, private foundation S rented the third 
story of its office building to A, a disqualified person, for 1 year at 
an annual rent of $10,000, in a transaction not within any of the 
exceptions to self-dealing. Both S and A are on the calendar year basis. 
The fair rental value of such office space for a 1-year period on 
January 1, 1972, is $12,000. On June 30, 1972, the fair rental value of 
such office space for a 1-year period is $13,000. In order to correct 
the act of self-dealing under this subparagraph on June 30, 1972, A must 
terminate his use of the property. In addition, A must pay S $1,500, the 
excess of $6,500 (the fair rental value for 6 months as of June 30, 
1972) over $5,000 (the amount paid to S from Jan. 1, 1972, to June 30, 
1972).
    Example 2. On January 1, 1972, private foundation R rented the 
fourth story of its office building to B, a disqualified person, for 1 
year at an annual rent of $10,000, in a transaction not included in any 
of the exceptions to self-dealing. Both R and B are on the calendar year 
basis. On January 1, 1973, B continues to rent the office space as a 
periodic tenant paying his rent monthly at an annual rate of $10,000. 
The fair rental value of such office space for a 1-year period on 
January 1, 1972, is $12,000, and as of January 1, 1973, is $1,250 per 
month. As of December 31, 1973, the fair rental value of such office 
space is $14,000 for a 1-year period and $1,200 on a monthly basis. In 
order to correct his acts of self-dealing (within the meaning of 
paragraph (e)(1) of this section) under this subparagraph on December 
31, 1973, B must terminate his use of the property. In addition, B must 
pay R $9,000, $4,000 for his use of the property for 1972 (the excess of 
$14,000, the fair rental value for 1 year as of Dec. 31, 1973, over 
$10,000, the amount B paid R for his use of the property for 1972) and 
$5,000 for his use of the property for 1973 (the excess of $15,000, the 
fair rental value for 12 months as of Jan. 1, 1973, over $10,000, the 
amount B paid R for his use of the property for 1973).
    Example 3. B, a substantial contributor to private foundation T, 
leases office space in a building owned by T for $5,000 for 1 year 
beginning on November 10, 1972, in a transaction not included in any of 
the exceptions to self-dealing. The fair rental value of the building 
for a 1-year period on November 10, 1972, is $4,000. On May 10, 1973, 
the fair rental value of the building for the remaining period of the 
lease is $2,200. In order to correct the acts of self-dealing under this 
subparagraph on May 10, 1973, B and T must terminate the lease. In 
addition, B must pay T $300 (the excess of $2,500, the amount which 
would have been paid by B for the remaining period of the lease if it 
had not been terminated, over $2,200, the fair rental value at the time 
of correction for the remaining period of the lease).

    (5) Use of property by a private foundation. (i) In the case of the 
use by a private foundation of property owned by a disqualified person, 
undoing the transaction includes, but is not limited to, terminating the 
use of such property. In addition to termination, the disqualified 
person must pay the foundation:
    (a) The excess (if any) of the amount paid to the disqualified 
person for such use until such termination over the fair market value of 
the use of the property, and
    (b) The excess (if any) of the fair market value of the use of the 
property, for the period the foundation would have used the property 
(without regard to any further extensions or renewals of such period) if 
such termination had not occurred, over the amount which would have been 
paid to the disqualified person on or after the date of such termination 
for such use for such period.

In applying (a) of this subdivision the fair market value of the use of 
property shall be the lesser of the rate (that is, fair rental value per 
period in the case of use of property other than money or fair interest 
rate in the case of use of money) at the time of the act of self-dealing 
(within the meaning of paragraph (e)(1) of this section) or such rate at 
the time of correction of such act of self-dealing. In applying (b) of 
this subdivision the fair market value of the use of property shall be 
the rate at the time of correction.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. On July 1, 1972, private foundation X leases office space 
in a building owned by C, a disqualified person, for 1 year at an annual 
rent of $6,000. Both X and C are on the calendar year basis. The fair 
rental value of such office space for a 1-year period as of July 1, 
1972, is $4,200. As of January 1, 1973, the fair rental value of such 
office space for a 1-year period is $5,400, and as of June 30, 1973, the 
fair rental value of such office space for a 1-year period is $4,800. In 
order to correct his acts of self-dealing (within the meaning of 
paragraph (e)(1) of this section) under this subparagraph on June 30, 
1973, C must terminate X's use of the property. In addition, C must pay 
X $1,500, $900 (the excess of $3,000, the amount paid to C from July 1, 
1972, through December 31, 1972, over

[[Page 81]]

$2,100, the fair rental value for 6 months as of July 1, 1972) plus $600 
(the excess of $3,000, the amount paid to C from January 1, 1973, 
through June 30, 1973, over $2,400, the fair rental value for 6 months 
as of June 30, 1973).
    Example 2. On April 1, 1973, D, a disqualified person with respect 
to private foundation Y, loans $100,000 to Y at 6 percent interest per 
annum. Both principal and interest are to be paid on April 1, 1978. The 
fair market value of the use of the money on April 1, 1973, is 9 percent 
per annum. On April 1, 1974, D and Y terminate the loan. On such date, 
the fair market value of the use of $100,000 is 10 percent per annum. In 
order to correct the act of self-dealing on April 1, 1974, in addition 
to the termination of the loan from D to Y, D must pay Y $16,000, the 
excess of $40,000 ($100,000 x 10 percent, the fair market value of the 
use determined at the time of correction, from April 1, 1974, to April 
1, 1978) over $24,000 (the amount of interest Y would have paid to D 
from April 1, 1974, to April 1, 1978, if the loan from D to Y had not 
been terminated).

    (6) Payment of compensation to a disqualified person. In the case of 
the payment of compensation by a private foundation to a disqualified 
person for the performance of personal services which are reasonable and 
necessary to carry out the exempt purpose of such foundation, undoing 
the transaction requires that the disqualified person pay to the 
foundation any amount which is excessive. However, termination of the 
employment or independent contractor relationship is not required.
    (7) Special rule for correction of valuation errors. (i) In the case 
of a transaction described in paragraph (b)(2)(iii) of this section, a 
``correction'' of the act of self-dealing shall ordinarily be deemed to 
occur if the foundation is paid an amount of money equal to the amount 
involved (as defined in paragraph (b)(2)(iii) of this section) plus such 
additional amounts as are necessary to compensate it for the loss of the 
use of the money or other property during the period commencing on the 
date of the act of self-dealing and ending on the date the transaction 
is corrected pursuant to this subparagraph.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. Assume the same facts as in example (5) of paragraph (b)(4) 
of this section. Such transaction shall be considered as corrected by a 
payment of $5,000 by M to V, together with an additional payment to V of 
an amount equal to the interest which V could have obtained on $5,000 
for the period commencing on the date of the redemption and ending on 
the date the act is corrected.

    (d) Cross reference. For rules relating to taxable events that are 
corrected within the correction period, defined in section 4963 (e), see 
section 4961 (a), and the regulations thereunder.
    (e) Act of self-dealing--(1) Number of acts; use of money or 
property--(i) In general. If a transaction between a private foundation 
and a disqualified person is determined to be self-dealing (as defined 
in section 4941(d)), for purposes of section 4941 there is generally one 
act of self-dealing. For the date on which such act is treated as 
occurring, see paragraph (a)(2) of this section. If, however, such 
transaction relates to the leasing of property, the lending of money or 
other extension of credit, other use of money or property, or payment of 
compensation, the transaction will generally be treated (for purposes of 
section 4941 but not section 507 or section 6684) as giving rise to an 
act of self-dealing on the day the transaction occurs plus an act of 
self-dealing on the first day of each taxable year or portion of a 
taxable year which is within the taxable period and which begins after 
the taxable year in which the transaction occurs.
    (ii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. On August 31, 1970, X, a private foundation, sells a 
building to A, a disqualified person with respect to X. A is on the 
calendar year basis. Under these circumstances, the transaction between 
A and X is one act of self-dealing which is treated for purposes of 
section 4941 as occurring on August 31, 1970.
    Example 2. Assume the facts as stated in example (1), except that, 
instead of selling the building to A, X leases the building to A for a 
term of 4 years beginning July 31, 1970, at an annual rental of $12,000. 
The fair rental value of the building is also $12,000 per annum as of 
July 31, 1970, and throughout the next 4 years. This transaction is 
corrected on September 30, 1973, in accordance with paragraph (c)(4) of 
this section. Under these circumstances, the transaction between A and X 
constitutes four separate acts of self-dealing, which are treated for 
purposes of section 4941 as occurring on July 31, 1970, January 1, 1971, 
January 1, 1972, and January 1, 1973. Consequently, there are four

[[Page 82]]

taxable periods. The first taxable period is from July 31, 1970, to 
September 30, 1973; the second is from January 1, 1971, to September 30, 
1973; the third is from January 1, 1972, to September 30, 1973; and the 
fourth is from January 1, 1973, to September 30, 1973. For purposes of 
the initial taxes in section 4941(a), the amount involved is $5,000 for 
the first taxable period, $12,000 for the second, $12,000 for the third, 
and $9,000 for the fourth. The initial taxes to be paid by A are thus 
$1,000 ($5,000 x 5% x 4 taxable years or partial taxable years in the 
taxable period) for the first act; $1,800 ($12,000 x 5% x 3) for the 
second act; $1,200 ($12,000 x 5% x 2) for the third act; and $450 
($9,000 x 5% x 1) for the fourth act.
    Example 3. Assume the facts as stated in example (1) of Sec.  
53.4941(d)-4(c)(4)(ii). If the debentures are held by Y after December 
31, 1979, the extension of credit will not be excepted from the 
definition of an act of self-dealing, because an act of self-dealing 
will be treated (for purposes of section 4941) as occurring on January 
1, 1980.

    (2) Number of acts; joint participation by disqualified persons--(i) 
In general. If joint participation in a transaction by two or more 
disqualified persons constitutes self-dealing (such as a joint sale of 
property to a private foundation or joint use of its money or property), 
such transaction shall generally be treated as a separate act of self-
dealing with respect to each disqualified person for purposes of section 
4941. For purposes of section 507 and, in the case of a foundation 
manager, section 6684, however, such transaction shall be treated as 
only one act of self-dealing. For purposes of this subparagraph, an 
individual and one or more members of his family (within the meaning of 
section 4946(d)) shall be treated as one person, regardless of whether a 
member of the family is a disqualified person not only by reason of 
section 4946(a)(1)(D) but also by reason of another subparagraph of 
section 4946(a)(1). However, the liability imposed on a disqualified 
person and one or more members of his family for joint participation in 
an act of self-dealing shall be joint and several in accordance with 
section 4941(c)(1) and Sec.  53.4941(c)-1(a).
    (ii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. Private foundation X permits A, a substantial contributor 
to X, and her spouse, H, to use an automobile owned by X and normally 
used in its foundation activities to travel from State Z to State Y for 
a vacation on December 1, 1971. The automobile is then returned to X 
until December 21, 1971, when X again permits them to use the automobile 
to return to their home in State Z. Under these circumstances, there is 
one act of self-dealing on December 1, 1971, and a second act of self-
dealing on December 21, 1971.
    Example 2. Assume the facts as stated in example (1), except that B 
joined A and H on their vacation and traveled with them both to and from 
State Y. B is a disqualified person with respect to X, but he is not 
related by blood or marriage to A or H. Assume also that X is not paid 
for the use of its automobile, but that the fair rental value during the 
taxable period is $300 (or $100 per person) for a one-way trip between 
State Y and State Z. Under these circumstances, there are four acts of 
self-dealing, two with respect to A and H and two with respect to B. The 
amount involved with respect to A and H is $200 for each act, and the 
amount involved with respect to B is $100 for each act.

    (f) Fair market value. For purposes of Sec. Sec.  53.4941(a)-1 
through 53.4941 (f)-1, fair market value shall be determined pursuant to 
the provisions of Sec.  53.4942(a)-2 (c)(4).

[T.D. 7270, 38 FR 9493, Apr. 17, 1973, as amended by T.D. 8084, 51 FR 
16301, May 2, 1986]



Sec.  53.4941(f)-1  Effective dates.

    (a) In general. Except as provided in paragraph (b) of this section, 
Sec. Sec.  53.4941(a)-1 through 53.4941(e)-1 shall apply to all acts of 
self-dealing engaged in after December 31, 1969.
    (b) Transitional rules--(1) Commitments made prior to January 1, 
1970, between private foundations and government officials. Section 4941 
shall not apply to a payment for one or more purposes described in 
section 170(c) (1) or (2)(B) made on or after January 1, 1970, by a 
private foundation to a government official, if such payment is made 
pursuant to a commitment entered into prior to such date, but only if 
such commitment was made in accordance with the foundation's usual 
practices and is reasonable in amount in light of the purposes of the 
payment. For purposes of this subparagraph, a commitment will be 
considered entered into prior to January 1, 1970, if prior to such date, 
the amount and nature of the payments to be made and the name of the 
payee were entered on the records

[[Page 83]]

of the payor, or were otherwise adequately evidenced, or the notice of 
the payment to be received was communicated to the payee in writing.
    (2) Special transitional rule. In the case of an act of self-dealing 
engaged in prior to July 5, 1971, section 4941(a) (1) shall not apply 
if:
    (i) The participation (as defined in Sec.  53.4941(a)-1(a)(3)) by 
the disqualified person in such act is not willful and is due to 
reasonable cause (as defined in Sec.  53.4941(a)-1(b) (4) and (5)),
    (ii) The transaction would not be a prohibited transaction if 
section 503(b) applied, and
    (iii) The act is corrected (within the meaning of Sec.  53.4941(e)-
1(c)) within a period ending [insert 90 days after date on which final 
regulations under section 4941 are filed by the Federal Register], 
extended (prior to the expiration of the original period) by any period 
which the Commissioner determines is reasonable and necessary (within 
the meaning of Sec.  53.4941(e)-1(d)) to bring about correction of the 
act of self-dealing.



             Subpart C_Taxes on Failure To Distribute Income

    Source: T.D. 7249, 38 FR 768, Jan. 4, 1973, unless otherwise noted.



Sec.  53.4942(a)-1  Taxes for failure to distribute income.

    (a) Imposition of tax--(1) Initial tax. Except as provided in 
paragraph (b) of this section, section 4942(a) imposes an excise tax of 
15 percent on the undistributed income (as defined in paragraph (a) of 
Sec.  53.4942(a)-2) of a private foundation for any taxable year which 
has not been distributed before the first day of the second (or any 
succeeding) taxable year following such taxable year (if such first day 
falls within the taxable period as defined in paragraph (c)(1) of this 
section). For purposes of section 4942 and this section, the term 
distributed means distributed as qualifying distributions under section 
4942(g). See paragraph (d)(2) of Sec.  53.4942(a)-3 with respect to 
correction of deficient distributions for prior taxable years.
    (2) Additional tax. In any case in which an initial excise tax is 
imposed by section 4942(a) on the undistributed income of a private 
foundation for any taxable year, section 4942(b) imposes an additional 
excise tax on any portion of such income remaining undistributed at the 
close of the correction period (as defined in paragraph (c)(1) of this 
section). The tax imposed by section 4942(b) is equal to 100 percent of 
the amount remaining undistributed at the close of the taxable period.
    (3) Payment of tax. Payment of the excise taxes imposed by section 
4942 (a) or (b) is in addition to, and not in lieu of, making the 
distribution of such undistributed income as required by section 4942. 
See section 507(a)(2) and the regulations thereunder.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1 M, a private foundation which uses the calendar year as 
its taxable year, has at the end of 1981, $50,000 of undistributed 
income (as defined in paragraph (a) of Sec.  53.4942 (a)-2) for 1981. As 
of January 1, 1983, $40,000 is still undistributed. On August 15, 1983, 
a notice of deficiency with respect to the excise taxes imposed by 
section 4942 (a) and (b) is mailed to M under section 6212 (a) and the 
taxable period ends. Thus, under these facts, an initial excise tax of 
$6,000 (15 percent of $40,000) is imposed upon M. An additional excise 
tax of $40,000 (100 percent of $40,000) is imposed by section 4942(b). 
Under section 4961(a), however, if the undistributed income is reduced 
to zero during the correction period, this latter tax will not be 
assessed, and if assessed, it will be abated, and if collected, it will 
be credited or refunded as an overpayment.
    Example 2. Assume the facts as stated in example (1), except that 
the notice of deficiency is mailed to M on September 7, 1984, and as of 
January 1, 1984, only $10,000 of the $50,000 of undistributed income 
with respect to 1981 is undistributed. Therefore, initial excise taxes 
of $6,000 (15 percent of $40,000, M's undistributed income from 1981, as 
of January 1, 1983) and $1,500 (15 percent of $10,000, M's undistributed 
income from 1981 as of January 1, 1984) are imposed by section 4942(a). 
If the $10,000 remains undistributed as of September 7, 1984, the end of 
the taxable period, an additional excise tax of $10,000 (100 percent of 
$10,000, M's undistributed income from 1981, as of September 7, 1984) is 
imposed by section 4942(b).

    (b) Exceptions--(1) In general. The initial excise tax imposed by 
section 4942(a) shall not apply to the undistributed income of a private 
foundation:

[[Page 84]]

    (i) For any taxable year for which it is an operating foundation (as 
defined in section 4942(j)(3) and the regulations thereunder), or
    (ii) To the extent that the foundation failed to distribute any 
amount solely because of incorrect valuation of assets under paragraph 
(c)(4) of Sec.  53.4942(a)-2, if:
    (a) The failure to value the assets properly was not willful and was 
due to reasonable cause,
    (b) Such amount is distributed as qualifying distributions (within 
the meaning of paragraph (a) of Sec.  53.4942 (a)-3) by the foundation 
during the allowable distribution period (as defined in paragraph (c)(2) 
of this section),
    (c) The foundation notifies the Commissioner that such amount has 
been distributed (within the meaning of subdivision (ii)(b) of this 
subparagraph) to correct such failure, and
    (d) Such distribution is treated under paragraph (d)(2) of Sec.  
53.4942(a)-3 as made out of the undistributed income for the taxable 
year for which a tax would (except for this subdivision) have been 
imposed by section 4942(a).
    (2) Improper valuation. For purposes of subparagraph (1)(ii) of this 
paragraph, failure to value an asset properly shall be regarded as ``not 
willful'' and ``due to reasonable cause'' whenever, under all the facts 
and circumstances, the foundation can show that it has made all 
reasonable efforts in good faith to value such an asset in accordance 
with the provisions of paragraph (c)(4) of Sec.  53.4942(a)-2. If a 
foundation, after full disclosure of the factual situation, obtains a 
bona fide appraisal of the fair market value of an asset by a person 
qualified to make such an appraisal (whether or not such a person is a 
disqualified person with respect to the foundation), and such foundation 
relies upon such appraisal, then failure to value the asset properly 
shall ordinarily be regarded as ``not willful'' and ``due to reasonable 
cause''. Notwithstanding the preceding sentence, the failure to obtain 
such a bona fide appraisal shall not, by itself, give rise to any 
inference that a foundation's failure to value an asset properly was 
willful or not due to reasonable cause.
    (3) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. In 1976 M, a private foundation which was established in 
1975 and which uses the calendar year as the taxable year, incorrectly 
values its assets under paragraph (c)(4) of Sec.  53.4942(a)-2 in a 
manner which is not willful and is due to reasonable cause. As a result 
of the incorrect valuation of assets, $20,000 which should be 
distributed with respect to 1976 is not distributed, and as of January 
1, 1978, such amount is still undistributed. On March 29, 1978, a notice 
of deficiency with respect to the excise taxes imposed by section 4942 
(a) and (b) is mailed to M under section 6212(a). On May 5, 1978 (within 
the allowable distribution period), M makes a qualifying distribution of 
$20,000 which is treated under paragraph (d)(2) of Sec.  53.4942(a)-3 as 
made out of M's undistributed income for 1976. M notifies the 
Commissioner of its action. Under the stated facts, an initial excise 
tax of $3,000 (15 percent of $20,000) would (except for the exception 
contained in subparagraph (1)(ii) of this paragraph) have been imposed 
by section 4942(a), but since all of the requirements of such 
subparagraph are satisfied no tax is imposed by section 4942(a).

    (c) Certain periods. For purposes of this section--
    (1) Taxable period. (i) The term ``taxable period'' means, with 
respect to the undistributed income of a private foundation for any 
taxable year, the period beginning with the first day of the taxable 
year and ending on the earlier of:
    (A) The date of mailing of a notice of deficiency under section 
6212(a) with respect to the initial excise tax imposed under section 
4942(a), or
    (B) The date on which the initial excise tax imposed under section 
4942(a) is assessed.

For example, assume M, a private foundation which uses the calendar year 
as the taxable year, has $15,000 of undistributed income for 1981. A 
notice of deficiency is mailed to M under section 6212(a) on June 1, 
1983. With respect to the undistributed income of M for 1981, the 
taxable period began on January 1, 1981, and ended on June 1, 1983.
    (ii) Where a notice of deficiency referred to in subdivision (i) of 
this subparagraph is not mailed because there is a waiver of the 
restrictions on assessment and collection of a deficiency, or because 
the deficiency is paid, the date of filing of the waiver or the date

[[Page 85]]

of such payment, respectively, shall be treated as the end of the 
taxable period.
    (2) Allowable distribution period. (i) The term ``allowable 
distribution period'' means the period beginning with the first day of 
the first taxable year following the taxable year in which the incorrect 
valuation of foundation assets (described in paragraph (b)(1)(ii) of 
this section) occurred and ending 90 days after the date of mailing of a 
notice of deficiency under section 6212(a) with respect to the initial 
excise tax imposed by section 4942(a). This period shall be extended by 
any period in which a deficiency cannot be assessed under section 
6213(a), and any other period which the Commissioner determines is 
reasonable and necessary to permit a distribution of undistributed 
income under section 4942.
    (ii) Where a notice of deficiency referred to in subdivision (i) of 
this subparagraph is not mailed because there is a waiver of the 
restrictions on assessment and collection of a deficiency, or because 
the deficiency is paid, the date of filing of the waiver or the date of 
such payment, respectively, shall be treated as the end of the allowable 
distribution period.
    (3) Cross reference. For rules relating to taxable events that are 
corrected within the correction period, defined in section 4963(e), see 
section 4961 (a) and the regulations thereunder.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. In 1975 M, a private foundation which uses the calendar 
year as the taxable year, made an error in valuing its assets which was 
not willful and was due to reasonable cause. The error caused M not to 
distribute $25,000 that should have been distributed with respect to 
1975. On March 1, 1978, a notice of deficiency with respect to the 
excise taxes imposed by section 4942 (a) and (b) was mailed to M under 
section 6212(a). With respect to the undistributed income for 1975, the 
taxable period is the period from January 1, 1975, through March 1, 
1978, and the allowable distribution period is the period from January 
1, 1976, through May 30, 1978 (90 days after the mailing of the notice 
of deficiency).
    Example 2. Assume the facts as stated in example (1), except that 
the Commissioner determines that it is reasonable and necessary to 
extend the period for distribution through June 15, 1978. Thus, the 
allowable distribution period is from January 1, 1976, through June 15, 
1978.

    (d) Effective date. Except as otherwise specifically provided, 
section 4942 and the regulations thereunder shall only apply with 
respect to taxable years beginning after December 31, 1969.

[T.D. 7256, 38 FR 3317, Feb. 7, 1973, as amended by T.D. 8084, 51 FR 
16302, May 2, 1986]



Sec.  53.4942(a)-2  Computation of undistributed income.

    (a) Undistributed income. For purposes of section 4942, the term 
``undistributed income'' means, with respect to any private foundation 
for any taxable year as of any time, the amount by which:
    (1) The distributable amount (as defined in paragraph (b) of this 
section) for such taxable year, exceeds
    (2) The qualifying distributions (as defined in Sec.  53.4942(a)-3) 
made before such time out of such distributable amount.
    (b) Distributable amount--(1) In general. For purposes of paragraph 
(a) of this section, the term ``distributable amount'' means:
    (i) For taxable years beginning before January 1, 1982, an amount 
equal to the greater of the minimum investment return (as defined in 
paragraph (c) of this section) or the adjusted net income (as defined in 
paragraph (d) of this section); and
    (ii) For taxable years beginning after December 31, 1981, an amount 
equal to the minimum investment return (as defined in paragraph (c) of 
this section), reduced by the sum of the taxes imposed on such private 
foundation for such taxable year under subtitle A of the Code and 
section 4940, and increased by the amounts received from trusts 
described in subparagraph (2) of this paragraph.
    (2) Certain trust amounts--(i) In general. The distributable amount 
shall be increased by the income portion (as defined in subdivision (ii) 
of this subparagraph) of distributions from trusts described in section 
4947(a)(2) with respect to amounts placed in trust after May 26, 1969. 
If such distributions are made with respect to amounts placed in trust 
both on or before and after May 26, 1969, such distributions shall be

[[Page 86]]

allocated between such amounts to determine the extent to which such 
distributions shall be included in the foundation's distributable 
amount. For rules relating to the segregation of amounts placed in trust 
on or before May 26, 1969, from amounts placed in trust after such date 
and to the allocation of income derived from such amounts, see paragraph 
(c) (5) of Sec.  53.4947-1.
    (ii) Income portion of distributions to private foundations. For 
purposes of subdivision (i) of this subparagraph, the income portion of 
a distribution from a section 4947(a)(2) trust to a private foundation 
in a particular taxable year of such foundation shall be the greater of:
    (a) The amount of such distribution which is treated as income 
(within the meaning of section 643(b)) of the trust, or
    (b) The guaranteed annuity, or fixed percentage of the fair market 
value of the trust property (determined annually), which the private 
foundation is entitled to receive for such year, regardless of whether 
such amount is actually received in such year or in any prior or 
subsequent year.
    (iii) Limitation. Notwithstanding subdivisions (i) and (ii) of this 
subparagraph, a private foundation shall not be required to distribute a 
greater amount for any taxable year than would have been required 
(without regard to this subparagraph) for such year had the corpus of 
the section 4947(a) (2) trust to which the distribution described in 
subdivision (ii) of this subparagraph is attributable been taken into 
account by such foundation as an asset described in paragraph (c) (1) 
(i) of this section.
    (c) Minimum investment return--(1) In general. For purposes of 
paragraph (b) of this section, the ``minimum investment return'' for any 
private foundation for any taxable year is the amount determined by 
multiplying:
    (i) The excess of the aggregate fair market value of all assets of 
the foundation, other than those described in subparagraph (2) or (3) of 
this paragraph, over the amount of the acquisition indebtedness with 
respect to such assets (determined under section 514(c)(1), but without 
regard to the taxable year in which the indebtedness was incurred), by
    (ii) The applicable percentage (as defined in subparagraph (5) of 
this paragraph) for such year.

For purposes of subdivision (i) of this subparagraph, the aggregate fair 
market value of all assets of the foundation shall include the average 
of the fair market values on a monthly basis of securities for which 
market quotations are readily available (within the meaning of 
subparagraph (4)(i)(a) of this paragraph), the average of the 
foundation's cash balances on a monthly basis (less the cash balances 
excluded from the computation of the minimum investment return by 
operation of subparagraph (3)(iv) of this paragraph), and the fair 
market value of all other assets (except those assets described in 
subparagraph (2) or (3) of this paragraph) for the period of time during 
the taxable year for which such assets are held by the foundation. Any 
determination of the fair market value of an asset required pursuant to 
the provisions of this subparagraph shall be made in accordance with the 
rules of subparagraph (4) of this paragraph.
    (2) Certain assets excluded. For purposes of this paragraph, the 
assets taken into account in determining minimum investment return shall 
not include the following:
    (i) Any future interest (such as a vested or contingent remainder, 
whether legal or equitable) of a foundation in the income or corpus of 
any real or personal property, other than a future interest created by 
the private foundation after December 31, 1969, until all intervening 
interests in, and rights to the actual possession or enjoyment of, such 
property have expired, or, although not actually reduced to the 
foundation's possession, until such future interest has been 
constructively received by the foundation, as where it has been credited 
to the foundation's account, set apart for the foundation, or otherwise 
made available so that the foundation may acquire it at any time or 
could have acquired it if notice of intention to acquire had been given;
    (ii) The assets of an estate until such time as such assets are 
distributed to the foundation or, due to a prolonged period of 
administration, such estate is

[[Page 87]]

considered terminated for Federal income tax purposes by operation of 
paragraph (a) of Sec.  1.641(b)-3 of this chapter (Income Tax 
Regulations);
    (iii) Any present interest of a foundation in any trust created and 
funded by another person (see, however, paragraph (b) (2) of this 
section with respect to amounts received from certain trusts described 
in section 4947(a) (2));
    (iv) Any pledge to the foundation of money or property (whether or 
not the pledge may be legally enforced); and
    (v) Any assets used (or held for use) directly in carrying out the 
foundation's exempt purpose.
    (3) Assets used (or held for use) in carrying out the exempt 
purpose--(i) In general. For purposes of subparagraph (2)(v) of this 
paragraph, an asset is ``used (or held for use) directly in carrying out 
the foundation's exempt purpose'' only if the asset is actually used by 
the foundation in the carrying out of the charitable, educational, or 
other similar purpose which gives rise to the exempt status of the 
foundation, or if the foundation owns the asset and establishes to the 
satisfaction of the Commissioner that its immediate use for such exempt 
purpose is not practical (based on the facts and circumstances of the 
particular case) and that definite plans exist to commence such use 
within a reasonable period of time. Consequently, assets which are held 
for the production of income or for investment (for example, stocks, 
bonds, interest-bearing notes, endowment funds, or, generally, leased 
real estate) are not being used (or held for use) directly in carrying 
out the foundation's exempt purpose, even though the income from such 
assets is used to carry out such exempt purpose. Whether an asset is 
held for the production of income or for investment rather than used (or 
held for use) directly by the foundation to carry out its exempt purpose 
is a question of fact. For example, an office building used for the 
purpose of providing offices for employees engaged in the management of 
endowment funds of the foundation is not being used (or held for use) 
directly by the foundation to carry out its charitable, educational, or 
other similar exempt purpose. However, where property is used both for 
charitable, educational, or other similar exempt purposes and for other 
purposes, if such exempt use represents 95 percent or more of the total 
use, such property shall be considered to be used exclusively for a 
charitable, educational, or other similar exempt purpose. If such exempt 
use of such property represents less than 95 percent of the total use, 
reasonable allocation between such exempt and nonexempt use must be made 
for purposes of this paragraph. Property acquired by the foundation to 
be used in carrying out its charitable, educational, or other similar 
exempt purpose may be considered as used (or held for use) directly to 
carry out such exempt purpose even though the property, in whole or in 
part, is leased for a limited period of time during which arrangements 
are made for its conversion to the use for which it was acquired, 
provided such income-producing use of the property does not exceed a 
reasonable period of time. Generally, 1 year shall be deemed to be a 
reasonable period of time for purposes of the immediately preceding 
sentence. For treatment of the income derived from such income-producing 
use, see paragraph (d)(2)(viii) of this section. Where the income-
producing use continues beyond a reasonable period of time, the property 
shall not be deemed to be used by the foundation to carry out its 
charitable, educational, or other similar exempt purpose, but, instead, 
as of the time the income-producing use becomes unreasonable, such 
property shall be treated as disposed of within the meaning of paragraph 
(d)(2)(iii)(b) of this section to the extent that the acquisition of the 
property was taken into account as a qualifying distribution (within the 
meaning of paragraph (a)(2) of Sec.  53.4942(a-3) for any taxable year. 
If, subsequently, the property is used by the foundation directly in 
carrying out its charitable, educational, or other similar exempt 
purpose, a qualifying distribution in the amount of its then fair market 
value, determined in accordance with the rules contained in subparagraph 
(4) of this paragraph, shall be deemed to have been made as of the time 
such exempt use begins.

[[Page 88]]

    (ii) Illustrations. Examples of assets which are ``used (or held for 
use) directly in carrying out the foundation's exempt purpose'' include, 
but are not limited to, the following:
    (a) Administrative assets, such as office equipment and supplies 
which are used by employees or consultants of the foundation, to the 
extent such assets are devoted to and used directly in the 
administration of the foundation's charitable, educational or other 
similar exempt activities;
    (b) Real estate or the portion of a building used by the foundation 
directly in its charitable, educational, or other similar exempt 
activities;
    (c) Physical facilities used in such activities, such as paintings 
or other works of art owned by the foundation which are on public 
display, fixtures and equipment in classrooms, research facilities and 
related equipment which under the facts and circumstances serve a useful 
purpose in the conduct of such activities;
    (d) Any interest in a functionally related business (as defined in 
subdivision (iii) of this subparagraph) or in a program-related 
investment (as defined in section 4944(c));
    (e) The reasonable cash balances (as described in subdivision (iv) 
of this subparagraph) necessary to cover current administrative expenses 
and other normal and current disbursements directly connected with the 
foundation's charitable, educational, or other similar exempt 
activities; and
    (f) Any property leased by a foundation in carrying out its 
charitable, educational, or other similar exempt purpose at no cost (or 
at a nominal rent) to the lessee or for a program-related purpose 
(within the meaning of section 4944(c)), such as the leasing of 
renovated apartments to low-income tenants at a low rental as part of 
the lessor foundation's program for rehabilitating a blighted portion of 
a community. For treatment of the income derived from such use, see 
paragraph (d) (2) (viii) of this section.
    (iii) Functionally related business--(a) In general. The term 
``functionally related business'' means:
    (1) A trade or business which is not an unrelated trade or business 
(as defined in section 513), or
    (2) An activity which is carried on within a larger aggregate of 
similar activities or within a larger complex of other endeavors which 
is related (aside from the need of the organization for income or funds 
or the use it makes of the profits derived) to the charitable, 
educational, or other similar exempt purpose of the organization.
    (b) Examples. The provisions of this subdivision may be illustrated 
by the following examples:

    Example 1. X, a private foundation, maintains a community of 
historic value which is open to the general public. For the convenience 
of the public, X, through a wholly owned, separately incorporated, 
taxable entity, maintains a restaurant and hotel in such community. Such 
facilities are within the larger aggregate of activities which makes 
available for public enjoyment the various buildings of historic 
interest and which is related to X's exempt purpose. Thus, the operation 
of the restaurant and hotel under such circumstances constitutes a 
functionally related business.
    Example 2. Y, a private foundation, as part of its medical research 
program under section 501(c) (3), publishes a medical journal in 
carrying out its exempt purpose. Space in the journal is sold for 
commercial advertising. Notwithstanding the fact that the advertising 
activity may be subject to the tax imposed by section 511, such activity 
is within a larger complex of endeavors which makes available to the 
scientific community and the general public developments with respect to 
medical research and is therefore a functionally related business.

    (iv) Cash held for charitable, etc. activities. For purposes of 
subdivision (ii)(e) of this subparagraph, the reasonable cash balances 
which a private foundation needs to have on hand to cover expenses and 
disbursements described in such subdivision will generally be deemed to 
be an amount, computed on an annual basis, equal to one and one-half 
percent of the fair market value of all assets described in subparagraph 
(1)(i) of this paragraph, without regard to subdivision (ii)(e) of this 
subparagraph. However, if the Commissioner is satisfied that under the 
facts and circumstances an amount in addition to such one and one-half 
percent is necessary for payment of such expenses and disbursements, 
then such additional amount may also be excluded from the amount of 
assets described in subparagraph (1)(i) of this paragraph.

[[Page 89]]

All remaining cash balances, including amounts necessary to pay any tax 
imposed by section 511 or any section of chapter 42 of the Code except 
section 4940, are to be included in the assets described in subparagraph 
(1)(i) of this paragraph.
    (4) Valuation of assets--(i) Certain securities. (a) For purposes of 
subparagraph (1)(i) of this paragraph, a private foundation may use any 
reasonable method to determine the fair market value on a monthly basis 
of securities for which market quotations are readily available, as long 
as such method is consistently used. For purposes of this subparagraph, 
market quotations are readily available if a security is:
    (1) Listed on the New York Stock Exchange, the American Stock 
Exchange, or any city or regional exchange in which quotations appear on 
a daily basis, including foreign securities listed on a recognized 
foreign national or regional exchange;
    (2) Regularly traded in the national or regional over-the-counter 
market, for which published quotations are available; or
    (3) Locally traded, for which quotations can readily be obtained 
from established brokerage firms.
    (b) For purposes of this subdivision, commonly accepted methods of 
valuation must be used in making an appraisal. Valuations made in 
accordance with the principles stated in the regulations under section 
2031 constitute acceptable methods of valuation. This paragraph 
(c)(4)(i)(b) applies only for taxable years beginning before January 1, 
1976. See section 4942(e)(2)(B) and paragraph (c)(4)(i)(c) of this 
section for special valuation rules that apply for subsequent taxable 
years.
    (c) For purposes of this subdivision (i) and with respect to taxable 
years beginning after December 31, 1975, if the private foundation can 
show that the value of securities determined on the basis of market 
quotations as provided by subdivision (i)(a) does not reflect the fair 
market value thereof because:
    (1) The securities constitute a block of securities so large in 
relation to the volume of actual sales on the existing market that it 
could not be liquidated in a reasonable time without depressing the 
market.
    (2) The securities are securities in a closely held corporation and 
sales are few or of a sporadic nature, and, or
    (3) The sale of the securities would result in a forced or distress 
sale because the securities could not be offered to the public for sale 
without first being registered under the Securities Act of 1933 or 
because of other factors,

then the price at which the securities could be sold as such outside the 
usual market, as through an underwriter, may be a more accurate 
indication of value than market quotations. On the other hand, if the 
securities to be valued represents a controlling interest, either actual 
or effective, in a going business, the price at which other lots change 
hands may have little relation to the true value of the securities. No 
decrease in the fair market value of any given class of securities 
determined on the basis of market quotations as provided by subdivision 
(i)(a) shall be allowed except as authorized by this subdivision, and no 
such decrease shall in the aggregate exceed 10 percent of the fair 
market value of such class of securities so determined on the basis of 
market quotations and without regard to this subdivision.
    (d) In the case of securities described in subdivision (i)(a) of 
this subparagraph, which are held in trust for, or on behalf of, a 
foundation by a bank or other financial institution which values such 
securities periodically by use of a computer, a foundation may determine 
the correct value of such securities by use of such computer pricing 
system, provided the Commissioner has accepted such computer pricing 
system as a valid method for valuing securities for Federal estate tax 
purposes.
    (e) This subdivision may be illustrated by the following examples:

    Example 1. U, a private foundation, owns 1,000 shares of the stock 
of M Corporation. M stock is regularly traded on the New York Stock 
Exchange. U consistently follows a practice of valuing its 1,000 shares 
of M stock on the last trading day of each month based upon the quoted 
closing price for M stock. U's method of valuing its M Corporation stock 
is permissible under the rules contained in subdivision (i)(a) of this 
subparagraph.

[[Page 90]]

    Example 2. Assume the facts as stated in example (1), except that U 
consistently follows a practice of valuing its 1,000 shares of M stock 
by taking the mean of the closing prices for M stock on the first and 
last trading days of each month and the trading day nearest the 15th day 
of each month. U's method of valuing its M stock is permissible under 
the rules contained in subdivision (i)(a) of this subparagraph.
    Example 3. Assume the facts as stated in example (1), except that U 
consistently follows a practice of valuing its M stock by taking the 
mean of the highest and lowest quoted prices for the stock on the last 
trading day of each month. U's method of valuing its M stock is 
permissible under the rules contained in subdivision (1)(a) of this 
subparagraph.
    Example 4. V, a private foundation, owns 1,000 shares of the stock 
of N Corporation. N stock is regularly traded in the national over-the-
counter market and published quotations of the bid and asked prices for 
the stock are available. V consistently follows a practice of valuing 
its 1,000 shares of N stock on the first trading day of each month by 
taking the mean of the bid and asked prices on that day. V's method of 
valuing its N Corporation stock is permissible under the rules contained 
in subdivision (i)(a) of this subparagraph.
    Example 5. W, a private foundation, owns 1,000 shares of the stock 
of O Corporation. O stock is locally traded and quotations can readily 
be obtained from established brokerage firms. W consistently follows a 
practice of valuing its O stock on the 15th day of each month by 
obtaining a bona fide quotation of bid and asked prices for the stock 
from an established brokerage firm and taking the mean of such prices on 
that day. If a quotation is unavailable on the regular valuation date, W 
values its O stock based upon a bona fide quotation on the first day 
thereafter on which such a quotation is available. W's method of valuing 
its O Corporation stock is permissible under the rules contained in 
subdivision (i)(a) of this subparagraph.

    (ii) Cash. In order to determine the amount of a foundation's cash 
balances, the foundation shall value its cash on a monthly basis by 
averaging the amount of cash on hand as of the first day of each month 
and as of the last day of each month.
    (iii) Common trust funds. If a private foundation owns a 
participating interest in a common trust fund (as defined in section 
584) established and administered under a plan providing for the 
periodic valuation of participating interests during the fund's taxable 
year and the reporting of such valuations to participants, the value of 
the foundation's interest in the common trust fund based upon the 
average of the valuations reported to the foundation during its taxable 
year will ordinarily constitute an acceptable method of valuation.
    (iv) Other assets. (a) Except as otherwise provided in subdivision 
(iv)(b) of this subparagraph, the fair market value of assets other than 
those described in subdivisions (i) through (iii) of this subparagraph 
shall be determined annually. Thus, the fair market value of securities 
other than those described in subdivision (i) of this subparagraph shall 
be determined in accordance with this subdivision (a). If, however, a 
private foundation owns voting stock of an issuer of unlisted securities 
and has, or together with disqualified persons or another private 
foundation has, effective control of the issuer (within the meaning of 
Sec.  53.4943-3(b)(3)(ii), then to the extent that the issuer's assets 
consist of shares of listed securities issues, such assets shall be 
valued monthly on the basis of market quotations or in accordance with 
section 4942(e)(2)(B), if applicable. Thus, for example, if a private 
foundation and a disqualified person together own all of the unlisted 
voting stock of a holding company which in turn holds a portfolio of 
securities of issues which are listed on the New York Stock Exchange, in 
determining the net worth of the holding company, the underlying 
portfolio securities are to be valued monthly by reference to market 
quotations for their issues unless a decrease in such value is 
authorized in accordance with section 4942(e)(2)(b). Such determination 
may be made by employees of the private foundation or by any other 
person, without regard to whether such person is a disqualified person 
with respect to the foundation. A valuation made pursuant to the 
provisions of this subdivision, if accepted by the Commissioner, shall 
be valid only for the taxable year for which it is made. A new valuation 
made in accordance with these provisions is required for the succeeding 
taxable year.
    (b) If the requirements of this subdivision are met, the fair market 
value

[[Page 91]]

of any interest in real property, including any improvements thereon, 
may be determined on a 5-year basis. Such value must be determined by 
means of a certified, independent appraisal made in writing by a 
qualified person who is neither a disqualified person with respect to, 
nor an employee of, the private foundation. The appraisal is certified 
only if it contains a statement at the end thereof to the effect that, 
in the opinion of the appraiser, the values placed on the assets 
appraised were determined in accordance with valuation principles 
regularly employed in making appraisals of such property using all 
reasonable valuation methods. The foundation shall retain a copy of the 
independent appraisal for its records. If a valuation made pursuant to 
the provisions of this subdivision in fact falls within the range of 
reasonable values for the appraised property, such valuation may be used 
by the foundation for the taxable year for which the valuation is made 
and for each of the succeeding 4 taxable years. Any valuation made 
pursuant to the provisions of this subdivision may be replaced during 
the 5-year period by a subsequent 5-year valuation made in accordance 
with the rules set forth in this subdivision, or with an annual 
valuation made in accordance with subdivision (iv)(a) of this 
subparagraph, and the most recent such valuation of such assets shall be 
used in computing the foundation's minimum investment return. In the 
case of a foundation organized before May 27, 1969, a valuation made in 
accordance with this subdivision applicable to the foundation's first 
taxable year beginning after December 31, 1972, and the 4 succeeding 
taxable years must be made no later than the last day of such first 
taxable year. In the case of a foundation organized after May 26, 1969, 
a valuation made in accordance with this subdivision applicable to the 
foundation's first taxable year beginning after February 5, 1973 and the 
succeeding 4 taxable years must be made no later than the last day of 
such first taxable year. Any subsequent valuation made in accordance 
with this subdivision must be made no later than the last day of the 
first taxable year for which such new valuation is applicable. A 
valuation, if properly made in accordance with the rules set forth in 
this subdivision, will not be disturbed by the Commissioner during the 
5-year period for which it applies even if the actual fair market value 
of such property changes during such period.
    (c) For purposes of this subdivision, commonly accepted methods of 
valuation must be used in making an appraisal. Valuations made in 
accordance with the principles stated in the regulations under section 
2031 constitute acceptable methods of valuation. The term appraisal, as 
used in this subdivision, means a determination of fair market value and 
is not to be construed in a technical sense peculiar to particular 
property or interests therein, such as, for example, mineral interests 
in real property.
    (v) Definition of ``securities''. For purposes of this subparagraph, 
the term ``securities'' includes, but is not limited to, common and 
preferred stocks, bonds, and mutual fund shares.
    (vi) Valuation date. (a) In the case of an asset which is required 
to be valued on an annual basis as provided in subdivision (iv)(a) of 
this subparagraph, such asset may be valued as of any day in the private 
foundation's taxable year to which such valuation applies, provided the 
foundation follows a consistent practice of valuing such asset as of 
such date in all taxable years.
    (b) A valuation described in subdivision (iv)(b) of this 
subparagraph may be made as of any day in the first taxable year of the 
private foundation to which such valuation is to be applied.
    (vii) Assets held for less than a taxable year. For purposes of this 
paragraph, any asset described in subparagraph (1)(i) of this paragraph 
which is held by a foundation for only part of a taxable year shall be 
taken into account for purposes of determining the foundation's minimum 
investment return for such taxable year by multiplying the fair market 
value of such asset (as determined pursuant to this subparagraph) by a 
fraction, the numerator of which is the number of days in such taxable 
year that the foundation held such asset and the denominator of which is 
the number of days in such taxable year.

[[Page 92]]

    (5) Applicable percentage--(i) In general. For purposes of paragraph 
(c)(1)(ii) of this section, except as provided in paragraph (c)(5)(ii) 
or (iii) of this section, the applicable percentage is:
    (a) Six percent for a taxable year beginning in 1970 or 1971;
    (b) Five and a half percent for a taxable year beginning in 1972;
    (c) Five and one-quarter percent for a taxable year beginning in 
1973;
    (d) Six percent for a taxable year beginning in 1974 or 1975; and
    (e) Five percent for taxable years beginning after Dec. 31, 1975.
    (ii) Transitional rule. In the case of organizations organized 
before May 27, 1969 (including organizations deemed to be so organized 
by virtue of the provisions of paragraph (e)(2) of this section), 
section 4942 shall, for all purposes other than the determination of the 
minimum investment return under section 4942(j)(3)(B)(ii), for taxable 
years:
    (a) Beginning before January 1, 1972, apply without regard to 
section 4942(e).
    (b) Beginning in 1972, apply with an applicable percentage of 4\1/8\ 
percent,
    (c) Beginning in 1973, apply with an applicable percentage of 4\3/8\ 
percent and
    (d) Beginning in 1974, apply with an applicable percentage of 5\1/2\ 
percent.
    (iii) Short taxable periods. In any case in which a taxable year 
referred to in this subparagraph is a period less than 12 months, the 
applicable percentage to be applied to the amount determined under the 
provisions of subparagraph (1) of this paragraph shall be equal to the 
applicable percentage for the calendar year in which the short taxable 
period began multiplied by a fraction, the numerator of which is the 
number of days in such short taxable period and the denominator of which 
is 365.
    (d) Adjusted net income--(1) Definition. For purposes of paragraph 
(b) of this section, the term ``adjusted net income'' means the excess 
(if any) of:
    (i) The gross income for the taxable year (including gross income 
from any unrelated trade or business) determined with the income 
modifications provided by subparagraph (2) of this paragraph, over
    (ii) The sum of the deductions (including deductions directly 
connected with the carrying on of any unrelated trade or business), 
determined with the deduction modifications provided by subparagraph (4) 
of this paragraph, which would be allowed to a corporation subject to 
the tax imposed by section 11 for the taxable year.

In computing the income includible under this paragraph as gross income 
and the deductions allowable under this paragraph from such income, the 
principles of subtitle A of the Code shall apply except to the extent 
such principles conflict with section 4942 and the regulations 
thereunder (without regard to this sentence). Except as otherwise 
provided in this paragraph, no exclusions or deductions from gross 
income or credits against tax are allowable under this paragraph. For 
purposes of subdivision (i) of this subparagraph, the term ``gross 
income'' does not include gifts, grants, or contributions received by 
the private foundation but does include income from a functionally 
related business (as defined in paragraph (c)(3)(iii) of this section).
    (2) Income modifications. The income modifications referred to in 
subparagraph (1)(i) of this paragraph are as follows:
    (i) Section 103 (relating to interest on certain governmental 
obligations) shall not apply. Hence, interest which would have been 
excluded from gross income by section 103 shall be included in gross 
income.
    (ii) Capital gains and losses from the sale or other disposition of 
property shall be taken into account only in an amount equal to any net 
short-term capital gain (as defined in section 1222(5)) for the taxable 
year. Long-term capital gain or loss is not included in the computation 
of adjusted net income. Similarly, net section 1231 gains shall be 
excluded from the computation of adjusted net income. However, net 
section 1231 losses shall be included in the computation of adjusted net 
income, if such losses are otherwise described in subparagraph (1)(ii) 
of this paragraph. Any net short-term capital loss for a given taxable 
year shall not be taken into account in computing adjusted net income 
for such year or in computing net short-term capital gain for purposes 
of determining adjusted

[[Page 93]]

net income for prior or future taxable years regardless of whether the 
foundation is a corporation or a trust.
    (iii) The following amounts shall be included in gross income for 
the taxable year:
    (a) Amounts received or accrued as repayments of amounts which were 
taken into account as a qualifying distribution within the meaning of 
paragraph (a)(2)(i) of Sec.  53.4942(a)-3 for any taxable year;
    (b) Notwithstanding subdivision (ii) of this subparagraph, gross 
amounts received or accrued from the sale or other disposition of 
property to the extent that the acquisition of such property was taken 
into account as a qualifying distribution (within the meaning of 
paragraph (a)(2)(ii) of Sec.  53.4942(a)-3) for any taxable year; and
    (c) Any amount set aside under paragraph (b) of Sec.  53.4942(a)-3 
to the extent it is determined that such amount is not necessary for the 
purposes for which it was set aside.
    (iv) Any distribution received by a private foundation from a 
disqualified person in redemption of stock held by such private 
foundation in a business enterprise shall be treated as not essentially 
equivalent to a dividend under section 302(b)(1) if all of the following 
conditions are satisfied:
    (a) Such redemption is of stock which was owned by a private 
foundation on May 26, 1969 (or which is acquired by a private foundation 
under the terms of a trust which was irrevocable on May 26, 1969, or 
under the terms of a will executed on or before such date which are in 
effect on such date and at all times thereafter);
    (b) Such foundation is required to dispose of such property in order 
not to be liable for tax under section 4943 (relating to taxes on excess 
business holdings) applied, in the case of a disposition before January 
1, 1975, without taking section 4943(c)(4) into account; and
    (c) Such foundation receives in return an amount which equals or 
exceeds the fair market value of such property at the time of such 
disposition or at the time a contract for such disposition was 
previously executed in a transaction which would not constitute a 
prohibited transaction (within the meaning of section 503(b) or the 
corresponding provisions of prior law).
    (v) If, as of the date of distribution of property for purposes 
described in section 170(c) (1) or (2)(B), the fair market value of such 
property exceeds its adjusted basis, such excess shall not be deemed an 
amount includible in gross income.
    (vi) The income received by a private foundation from an estate 
during the period of administration of such estate shall not be included 
in such foundation's gross income, unless, due to a prolonged period of 
administration, such estate is considered terminated for Federal income 
tax purposes by operation of paragraph (a) of Sec.  1.641(b)-3 of this 
chapter (Income Tax Regulations).
    (vii) Distributions received by a private foundation from a trust 
created and funded by another person shall not be included in the 
foundation's gross income. However, with respect to distributions from 
certain trusts described in section 4947(a)(2), see paragraph (b)(2) of 
this section.
    (viii) Gross income shall include all amounts derived from, or in 
connection with, property held by the foundation, even though the fair 
market value of such property may not be included in such foundation's 
assets for purposes of determining minimum investment return by 
operation of paragraph (c)(3) of this section.
    (ix) Gross income shall include amounts treated in a preceding 
taxable year as a ``qualifying distribution'' by operation of paragraph 
(c) of Sec.  53.4942(a)-3 where such amounts are not redistributed by 
the close of the donee organization's succeeding taxable year in 
accordance with the rules prescribed in such paragraph (c). In such 
cases, such amounts shall be included in the donor foundation's gross 
income for such foundation's first taxable year beginning after the 
close of the donee organization's first taxable year following the donee 
organization's taxable year of receipt.
    (x) For taxable years ending after October 4, 1976, section 
4942(f)(2)(D) states that section 483 (relating to imputed interest on 
deferred payments) does not apply to payments made pursuant to a binding 
contract entered into in a taxable year beginning before January

[[Page 94]]

1, 1970. Amounts that are not treated as imputed interest because of 
section 4942(f)(2)(D) and this subdivision will represent gain or loss 
from the sale of property. If the gain or loss is long term capital gain 
or loss, section 4942(f)(2)(B) excludes the gain or loss from the 
computation of the foundation's gross income. If, in a taxable year 
beginning after December 31, 1969, there is a substantial change in the 
terms of a contract entered into in a taxable year beginning before 
January 1, 1970, then any payment made pursuant to the changed contract 
is not considered a payment made pursuant to a contract entered into in 
a taxable year beginning before January 1, 1970. Whether or not a change 
in the terms of a contract (for example, a change relating to time of 
payment, sales price, or obligations under the contract) is a 
substantial change is determined by applying the rules under section 483 
and Sec.  1.483-1(b)(4). As used in this subdivision, a binding contract 
includes an irrevocable written option.
    (3) Adjusted basis--(i) In general. For purposes of subparagraph 
(2)(ii) of this paragraph, the adjusted basis for purposes of 
determining gain from the sale or other disposition of property shall be 
determined in accordance with the rules set forth in subdivision (ii) of 
this subparagraph and the adjusted basis for purposes of determining 
loss from such disposition shall be determined in accordance with the 
rules set forth in subdivision (iii) of this subparagraph. Further, the 
provisions of this subparagraph do not apply for any purpose other than 
for purposes of subparagraph (2)(ii) of this paragraph. For example, the 
determination of gain pursuant to the provisions of section 341 is 
determined without regard to this subparagraph.
    (ii) Gain from sale or other disposition. The adjusted basis for 
purposes of determining gain from the sale or other disposition of 
property shall be the greater of:
    (a) The fair market value of such property on December 31, 1969, 
plus or minus all adjustments after December 31, 1969, and before the 
date of sale or other disposition under the rules of Part II, Subchapter 
O, Chapter 1 of the Code, provided that the property was held by the 
private foundation on December 31, 1969, and continuously thereafter to 
such date of sale or other disposition; or
    (b) The adjusted basis as determined under the rules of Part II, 
Subchapter O, Chapter 1 of the Code, subject to the provisions of 
section 4940(c)(3)(B) and the regulations thereunder (and without regard 
to section 362(c)). With respect to assets acquired prior to December 
31, 1969, which were subject to depreciation or depletion, for purposes 
of determining the adjustments to be made to basis between the date of 
acquisition and December 31, 1969, and amount equal to straight-line 
depreciation or cost depletion shall be taken into account. In addition, 
in determining such adjustments to basis, if any other adjustments would 
have been made during such period (such as a change in useful life based 
upon additional data or a change in facts), such adjustments shall also 
be taken into account.
    (iii) Loss from sale or other disposition. For purposes of 
determining loss from the sale or other disposition of property, 
adjusted basis as determined in subdivision (ii)(b) of this subparagraph 
shall apply.
    (iv) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. A private foundation, which uses the cash receipts and 
disbursements method of accounting, purchased certain depreciable real 
property on December 1, 1969. On December 31, 1969, the fair market 
value of such property was $100,000 and its adjusted basis (determined 
under the provisions of this subparagraph) was $102,000. The property 
was sold on January 2, 1970, for $105,000. Because fair market value on 
December 31, 1969, $100,000, is less than the adjusted basis as 
determined by Part II, Subchapter O, Chapter 1 of the Code, $102,000, a 
short-term gain of $3,000 is recognized (i.e., sale price of $105,000 
less the greater of the two possible bases) for purposes of subparagraph 
(2)(ii) of this paragraph.
    Example 2. Assume the facts as stated in example (1), except that 
the sale price was $95,000. Because the sale price was $7,000 less than 
the adjusted basis for loss ($102,000 as determined by the application 
of subdivision (iii) of this subparagraph), there is a capital loss of 
$7,000 which may be deducted against short-term capital gains for 1970 
(if any) in determining net short-term capital gain.

[[Page 95]]

    Example 3. A private foundation, which uses the cash receipts and 
disbursements method of accounting, purchased unimproved land on 
December 1, 1969. On December 31, 1969, the fair market value of such 
property was $110,000 and its adjusted basis (determined under the 
provisions of this subparagraph) was $102,000. The property was sold on 
January 2, 1970, for $105,000. Since the fair market value on December 
31, 1969, $110,000, exceeds the adjusted basis as determined by Part II, 
Subchapter O, Chapter 1 of the Code, $102,000, such fair market value 
will be used for purposes of determining gain. However, because the 
adjusted basis for purposes of determining gain exceeds the sale price, 
there is no gain. Furthermore, because the adjusted basis for purposes 
of determining loss, $102,000, is less than sale price, there is no 
loss.

    (4) Deduction modifications--(i) In general. For purposes of 
computing adjusted net income under subparagraph (1) of this paragraph, 
no deduction shall be allowed other than all the ordinary and necessary 
expenses paid or incurred for the production or collection of gross 
income or for the management, conservation, or maintenance of property 
held for the production of such income, except as provided in 
subdivision (ii) of this subparagraph. Such expenses include that 
portion of a private foundation's operating expenses which is paid or 
incurred for the production or collection of gross income. Operating 
expenses include compensation of officers, other salaries and wages of 
employees, interest, rent, and taxes. Where only a portion of the 
property produces (or is held for the production of) income subject to 
the provisions of section 4942, and the remainder of the property is 
used for charitable, educational, or other similar exempt purposes, the 
deductions allowed by this subparagraph shall be apportioned between the 
exempt and nonexempt uses. Similarly, where the deductions with respect 
to property used for a charitable, educational, or other similar exempt 
purpose exceed the income derived from such property, such excess shall 
not be allowed as a deduction, but may be treated as a qualifying 
distribution described in paragraph (a)(2)(ii) of Sec.  53.4942(a)-3. 
Furthermore, this subdivision does not allow deductions which are not 
paid or incurred for the purposes herein prescribed. Thus, for example, 
the deductions prescribed by the following sections are not allowable: 
(a) The charitable contributions deduction prescribed under sections 170 
and 642(c); (b) the net operating loss deduction prescribed under 
section 172; and (c) the special deductions prescribed under Part VIII, 
Subchapter B, Chapter 1 of the Code.
    (ii) Special rules. For purposes of computing adjusted net income 
under subparagraph (1) of this paragraph: (a) The allowances for 
depreciation and depletion as determined under section 4940(c)(3)(B) and 
the regulations thereunder shall be taken into account, and (b) section 
265 (relating to expenses and interest relating to tax-exempt interest) 
shall not apply.
    (e) Certain transitional rules--(1) In general. In the case of 
organizations organized before May 27, 1969, section 4942 shall:
    (i) Not apply to an organization to the extent its income is 
required to be accumulated pursuant to the mandatory terms (as in effect 
on May 26, 1969, and at all times thereafter) of an instrument executed 
before May 27, 1969, with respect to the transfer of income producing 
property to such organization, except that section 4942 shall apply to 
such organization if the organization would have been denied exemption 
had section 504(a) not been repealed, or would have had its deductions 
under section 642(c) limited had section 681(c) not been repealed. In 
applying the preceding sentence, in addition to the limitations 
contained in section 504(a) or 681(c) before its repeal, section 
504(a)(1) or 681(c)(1) shall be treated as not applying to an 
organization to the extent its income is required to be accumulated 
pursuant to the mandatory terms (as in effect on January 1, 1951, and at 
all times thereafter) of an instrument executed before January 1, 1951, 
with respect to the transfer of income producing property to such 
organization before such date, if such transfer was irrevocable on such 
date; and
    (ii) Not apply to an organization which is prohibited by its 
governing instrument or other instrument from distributing capital or 
corpus to the extent the requirements of section 4942

[[Page 96]]

are inconsistent with such prohibitions.
    (2) Certain existing organizations. For purposes of this section, an 
organization will be deemed to be organized prior to May 26, 1969, if it 
is either a testamentary trust created under the will of an individual 
who died prior to such date or an inter visos trust which was in 
existence and irrevocable prior to such date, even though it is not 
funded until after May 26, 1969. Similarly, a split-interest trust, as 
described in section 4947(a)(2) (without regard to section 
4947(a)(2)(C)), which became irrevocable prior to May 27, 1969, and 
which is treated as a private foundation under section 4947(a)(1) 
subsequent to such date, likewise shall be treated as an organization 
organized prior to such date. See section 507(b)(2) and the regulations 
thereunder with respect to the applicability of transitional rules where 
there has been a merger of two or more private foundations or a 
reorganization of a private foundation.
    (3) Limitation. With respect to taxable years beginning after 
December 31, 1971, subparagraph (1) (i) and (ii) of this paragraph shall 
apply only for taxable years during which there is pending any judicial 
proceeding by the private foundation which is necessary to reform, or to 
excuse such foundation from compliance with, its governing instrument or 
any other instrument (as in effect on May 26, 1969) in order to comply 
with the provisions of section 4942, and in the case of subparagraph 
(1)(i) of this paragraph for all taxable years following the taxable 
year in which such judicial proceeding is terminated during which the 
governing instrument or any other instrument does not permit compliance 
with such provisions. Thus, the exception described in subparagraph 
(1)(ii) of this paragraph applies after 1971 only for taxable years 
during which such judicial proceeding is pending. Accordingly, beginning 
with the first taxable year following the taxable year in which such 
judicial proceeding is terminated, such foundation will be required to 
meet the requirements of section 4942 and the regulations thereunder 
(and be subject to the taxes provided upon failure to do so) except to 
the extent such foundation is required to accumulate income as described 
in subparagraph (1)(i) of this paragraph, even if the governing 
instrument continues to prohibit invasion of capital or corpus. In any 
case where a foundation's governing instrument or any other instrument 
requires accumulation of income as described in subparagraph (1)(i) of 
this paragraph beginning with the first taxable year following the 
taxable year in which such judicial proceeding is terminated, the 
distributable amount (as defined in paragraph (b) of this section) for 
such foundation shall be reduced by the amount of the income required to 
be accumulated. Therefore, if the foundation's adjusted net income for 
any taxable year equals or exceeds its minimum investment return for 
such year, the accumulation provisions will be given full effect. 
However, if the minimum investment return exceeds the adjusted net 
income for any taxable year, the foundation will be required to 
distribute such excess for such year. For purposes of this paragraph, a 
judicial proceeding will be treated as pending only if the foundation is 
diligently pursuing its judicial remedies and there is no unreasonable 
delay in such proceeding for which the private foundation is 
responsible.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. X, a private foundation organized in 1930, is required by 
the mandatory terms of its governing instrument to accumulated 25 
percent of its adjusted net income and to add such accumulations to 
corpus. The instrument also prohibits distribution of corpus for any 
purpose. On July 13, 1971, X instituted an action in the appropriate 
State court to reform the instrument by deleting the accumulation and 
corpus provisions described above. If the court's final order reforms 
the accumulation provisions to allow distributions of income sufficient 
to avoid the imposition of a tax under section 4942, then section 4942 
applies to X, regardless of the court's action with respect to the 
corpus provisions. However, if the court rules that the accumulation 
provision may not be reformed, section 4942 applies to X only to the 
extent provided for in subparagraph (3) of this paragraph, regardless of 
the court's action with respect to the corpus provision.
    Example 2. Private foundation Y was created by the will of A who 
died in 1940. Y's

[[Page 97]]

governing instrument requires that 40 percent of Y's adjusted net income 
be added to corpus each year. In an action commenced prior to December 
31, 1971, a court of competent jurisdiction rules that this accumulation 
provisions must be complied with. In Y's succeeding taxable year its 
adjusted net income is $120,000, and its minimum investment return is 
$140,000. Thus, Y is required to accumulated $48,000 (40 percent of 
$120,000) and shall be allowed to do so. Therefore, Y's distributable 
amount for such taxable year shall be the greater of its adjusted net 
income ($120,000) or its minimum investment return ($140,000), reduced 
by the amount of the income required to be accumulated ($48,000) and the 
taxes imposed by Subtitle A of the Code and section 4940 and increased 
by any trust distributions described in paragraph (b)(2) of this 
section. Accordingly, Y's distributable amount for such taxable year is 
$92,000 ($140,000 reduced by $48,000), before other adjustments. If Y's 
minimum investment return had been $120,000 instead of $140,000, its 
distributable amount for such taxable year would have been $72,000 
($120,000 reduced by $48,000), before other adjustments. Similarly, if 
Y's minimum investment return had been $100,000 instead of $140,000, its 
distributable amount for such taxable year would also have been $72,000, 
before other adjustments.

[T.D. 7256, 38 FR 3317, Feb. 5, 1973; 38 FR 4577, Feb. 16, 1973, as 
amended by T.D. 7486, 42 FR 24265, May 13, 1977; T.D. 7594, 44 FR 7138, 
Feb. 6, 1979; T.D. 7610, 44 FR 21644, Apr. 11, 1979; T.D. 7715, 45 FR 
56803, Aug. 26, 1980; T.D. 7849, 47 FR 50857, Nov. 10, 1982; T.D. 7878, 
48 FR 11943, Mar. 22, 1983]



Sec.  53.4942(a)-3  Qualifying distributions defined.

    (a) In general--(1) Distributions generally. For purposes of section 
4942 and the regulations thereunder, the amount of a qualifying 
distribution of property (as defined in subparagraph (2) of this 
paragraph) is the fair market value of such property as of the date such 
qualifying distribution is made. The amount of an organization's 
qualifying distributions will be determined solely on the cash receipts 
and disbursements method of accounting described in section 446(c)(1).
    (2) Definition. The term ``qualifying distribution'' means:
    (i) Any amount (including program related investments, as defined in 
section 4944(c), and reasonable and necessary administrative expenses) 
paid to accomplish one or more purposes described in section 170(c)(1) 
or (2)(B), other than any contribution to:
    (a) A private foundation which is not an operating foundation (as 
defined in section 4942(j)(3)), except as provided in paragraph (c) of 
this section;
    (b) An organization controlled (directly or indirectly) by the 
contributing private foundation or one or more disqualified persons with 
respect to such foundation, except as provided in paragraph (c) of this 
section; or
    (c) An organization described in section 4942(g)(4)(A)(i) or (ii), 
if paid by a private foundation that is not an operating foundation;
    (ii) Any amount paid to acquire an asset used (or held for use) 
directly in carrying out one or more purposes described in section 
170(c) (1) or (2)(B). See paragraph (c)(3) of Sec.  53.4942(a)-2 for the 
definition of used (or held for use); or
    (iii) Any amount set aside within the meaning of paragraph (b) of 
this section.
    (3) Control. For purposes of subparagraph (2)(i)(b) of this 
paragraph, an organization is ``controlled'' by a foundation or one or 
more disqualified persons with respect to the foundation if any of such 
persons may, by aggregating their votes or positions of authority, 
require the donee organization to make an expenditure, or prevent the 
donee organization from making an expenditure, regardless of the method 
by which the control is exercised or exercisable. ``Control'' of a donee 
organization is determined without regard to any conditions imposed upon 
the donee as part of the distribution or any other restrictions 
accompanying the distribution as to the manner in which the distribution 
is to be used, unless such conditions or restrictions are described in 
paragraph (a)(8) of Sec.  1.507-2 of this chapter (Income Tax 
Regulations). In general, it is the donee, not the distribution, which 
must be ``controlled'' by the distributing private foundation for the 
provisions of subparagraph (2)(i)(b) of this paragraph to apply. Thus, 
the furnishing of support to an organization and the consequent 
imposition of budgetary procedures upon that organization with respect 
to such support shall not in itself be treated as

[[Page 98]]

subjecting that organization to the distributing foundation's control 
within the meaning of this subparagraph. Such ``budgetary procedures'' 
include expenditure responsibility requirements under section 
4945(d)(4). The ``controlled'' organization need not be a private 
foundation; it may be any type of exempt or nonexempt organization 
including a school, hospital, operating foundation, or social welfare 
organization.
    (4) Borrowed funds--(i) In general. For purposes of this paragraph, 
if a private foundation borrows money in a particular taxable year to 
make expenditures for a specific charitable educational, or other 
similar purpose, a qualifying distribution out of such borrowed funds 
will, except as otherwise provided in subdivision (ii) of this 
subparagraph, be deemed to have been made only at the time that such 
borrowed funds are actually distributed for such exempt purpose.
    (ii) Funds borrowed before 1970. (a) If a private foundation has 
borrowed money in a taxable year beginning before January 1, 1970, or 
subsequently borrows money pursuant to a written commitment which was 
binding as of the last day of such taxable year, to make expenditures 
for a specific charitable, educational, or other similar exempt purpose, 
if such borrowed funds are in fact expended for such purpose in any 
taxable year, and if such loan is thereafter repaid, in whole or in 
part, in a taxable year beginning after December 31, 1969, then, at the 
election of the foundation as provided in subdivision (ii)(b) of this 
subparagraph, a qualifying distribution will be deemed to have been made 
at such time or times that such loan principal is so repaid rather than 
at the earlier time that the borrowed funds were actually distributed 
for such exempt purpose.
    (b) The election described in subdivision (ii)(a) of this 
subparagraph is to be made by attaching a statement to the form the 
private foundation is required to file under section 6033 for the first 
taxable year beginning after December 31, 1969, in which a repayment of 
loan principal is made. Such statement shall be made a part of such form 
and shall be attached to such form in each succeeding taxable year in 
which any repayment of loan principal is made. The statement shall set 
forth the name and address of the lender, the amount borrowed, the 
specific use made of such borrowed funds, and the private foundation's 
election to treat repayments of loan principal as qualifying 
distributions.
    (iii) Interest. Any payment of interest with respect to a loan 
described in subdivision (i) or (ii) of this subparagraph shall be 
treated as a deduction under paragraph (d)(1)(ii) of Sec.  53.4942(a)-2 
in the taxable year in which it is made.
    (5) Changes in use of an asset. If an asset not used (or held for 
use) directly in carrying out one or more purposes described in section 
170(c) (1) or (2)(B) is subsequently converted to such a use, the 
foundation may treat such conversion as a qualifying distribution. The 
amount of such qualifying distribution shall be the fair market value of 
the converted asset as of the date of its conversion. For purposes of 
the preceding sentence, fair market value shall be determined by making 
a valuation of the converted asset as of the date of its conversion in 
accordance with the rules set forth in paragraph (c)(4) of Sec.  
53.4942(a)-2.
    (6) Certain foreign organizations--(i) In general. A distribution 
for purposes described in section 170(c)(2)(B) to a foreign 
organization, which has not received a ruling or determination letter 
that it is an organization described in section 509(a)(1), (a)(2), or 
(a)(3) or in section 4942 (j)(3), will be treated as a distribution made 
to an organization described in section 509(a)(1), (a)(2), or (a)(3) 
(other than an organization described in section 4942(g)(4)(A)(i) or 
(ii)) or in section 4942(j)(3) if the distributing foundation has made a 
good faith determination that the donee organization is an organization 
described in section 509(a)(1), (a)(2), or (a)(3) (other than an 
organization described in section 4942(g)(4)(A)(i) or (ii)) or in 
section 4942(j)(3). A determination ordinarily will be considered a good 
faith determination if the determination is based on current written 
advice received from a qualified tax practitioner concluding that the 
donee is an organization described in section 509(a)(1), (a)(2), or 
(a)(3) (other than an organization described in section 4942(g)(4)(A)(i)

[[Page 99]]

or (ii)) or in section 4942(j)(3), and if the foundation reasonably 
relied in good faith on the written advice in accordance with the 
requirements of Sec.  1.6664-4(c)(1) of this chapter. The written advice 
must set forth sufficient facts concerning the operations and support of 
the donee organization for the Internal Revenue Service to determine 
that the donee organization would be likely to qualify as an 
organization described in section 509(a)(1), (a)(2), or (a)(3) (other 
than an organization described in section 4942(g)(4)(A)(i) or (ii)) or 
in section 4942(j)(3) as of the date of the written advice. For purposes 
of this section, except as provided in the next sentence, written advice 
will be considered current if, as of the date of distribution, the 
relevant law on which the advice is based has not changed since the date 
of the written advice and the factual information on which the advice is 
based is from the donee's current or prior taxable year (or annual 
accounting period if the donee does not have a taxable year for United 
States federal tax purposes). Written advice that a donee met the public 
support test under section 170(b)(1)(A)(vi) or section 509(a)(2) for a 
test period of five years will be treated as current for purposes of 
distributions to the donee during the two taxable years (or, as 
applicable, annual accounting periods) of the donee immediately 
following the end of the five-year test period.
    (ii) Definitions. For purposes of this paragraph (a)(6)--
    (a) The term ``foreign organization'' means any organization that is 
not described in section 170(c)(2)(A).
    (b) The term ``qualified tax practitioner'' means an attorney, a 
certified public accountant, or an enrolled agent, within the meaning of 
31 CFR 10.2 and 10.3, who is subject to the requirements in 31 CFR part 
10.
    (7) Payment of tax. The payment of any tax imposed under chapter 42 
of the Code shall not be treated as a qualifying distribution.
    (8) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. M, a private foundation which uses the calendar year as 
the taxable year, makes the following payments in 1970: (i) a payment of 
$44,000 to five employees for conducting a foundation program of 
educational grants for research and study; (ii) $20,000 for various 
items of overhead, 10 percent of which is attributable to the activities 
of the employees mentioned in payment (i) of this example and the other 
90 percent of which is attributable to administrative expenses which 
were not paid to accomplish any section 170(c) (1) or (2)(B) purpose; 
and (iii) a $100,000 general purpose grant paid to an educational 
institution described in section 170(b)(1)(A)(ii) which is not 
controlled by M or any disqualified persons with respect to M. Payments 
(i) and (ii) of this example are qualifying distributions to the extent 
of $46,000 ($44,000 of salaries and 10 percent of the overhead, both of 
which are reasonable administrative expenses paid to accomplish section 
170(c) (1) or (2)(B) purposes). Payment (iii) of this example is also a 
qualifying distribution, since it is a contribution for section 
170(c)(2)(B) purposes to an organization which is not described in 
subparagraph (2)(i) (a) or (b) of this paragraph. The other 90 percent 
of payment (ii) of this example may constitute items of deduction under 
paragraph (d)(1)(ii) of Sec.  53.4942(a)-2 if such items otherwise 
qualify under such paragraph.
    Example 2. On February 21, 1972, N, a private foundation which uses 
the calendar year as the taxable year, pays $500,000 for real property 
on which it plans to build hospital facilities to be used for medical 
care and education. The real property produces no income and the 
hospital facilities will not be constructed until 1974 according to the 
setaside plan submitted to and approved by the Commissioner pursuant to 
paragraph (b) of this section. The purchase of the land is a qualifying 
distribution under subparagraph (2)(ii) of this paragraph. If, however, 
the property used were to produce rental income for more than a 
reasonable period of time before construction of the hospital is begun, 
then as of the time such rental use becomes unreasonable (i) such 
purchase would no longer constitute a qualifying distribution under 
subparagraph (2)(ii) of this paragraph, and (ii) the amount of the 
qualifying distribution would be included in N's gross income. See 
paragraphs (c)(3)(i) and (d)(2)(iii)(b) of Sec.  53.4942(a)-2.
    Example 3. In 1971, X, a private foundation engaged in holding 
paintings and exhibiting them to the public, purchases an additional 
building to be used to exhibit the paintings. Such expenditure is a 
qualifying distribution under subparagraph (2)(ii) of this paragraph. In 
1975, X sells the building. Under paragraph (d)(2)(iii)(b) of Sec.  
53.4942(a)-2, all of the proceeds of the sale (less direct costs of the 
sale) are included in X's adjusted net income for 1975.
    Example 4. In January 1969, M, a private foundation which uses the 
calendar year as the taxable year, borrows $10 million to give to N, a 
private college, for the construction

[[Page 100]]

of a science center. M borrowed the money from X, a commercial bank. M 
is to repay X at the rate of $1.1 million per year ($1 million principal 
and $0.1 million interest) for 10 years, beginning in January, 1973. M 
distributed $5 million of the borrowed funds to N in February 1969 and 
the other $5 million in March 1970. M files a statement with the form it 
is required to file under section 6033 for 1973 which contains the 
information required by subparagraph (4)(ii)(b) of this paragraph. 
Pursuant to M's election, each repayment of loan principal constitutes a 
qualifying distribution in the year of repayment. Accordingly, the 
distribution of $5 million to N in March 1970 will not be treated as a 
qualifying distribution. Each payment of interest ($0.1 million 
annually) with respect to M's loan from X is treated as a deduction 
under paragraph (d)(1)(ii) of Sec.  53.4942(a)-2 in the taxable year in 
which it is made.
    Example 5. Private foundation Y engages in providing care for the 
aged. Y makes a distribution of cash to H, a hospital described in 
section 170(b)(1)(A)(iii) which is not controlled by Y or any 
disqualified person with respect to Y. The distribution is made subject 
to the conditions that H will invest the money as a separate fund which 
will bear a name commemorating the creator of Y and will use the income 
from such fund only for H's exempt hospital purposes which relate to 
care for the aged. Under these circumstances, the distribution from Y to 
H is a qualifying distribution pursuant to subparagraph (2)(i) of this 
paragraph.

    (b) Certain set-asides--(1) In general. An amount set aside for a 
specific project that is for one or more of the purposes described in 
section 170(c) (1) or (2)(B) may be treated as a qualifying distribution 
in the year in which set aside (but not in the year in which actually 
paid), if the requirements of section 4942(g)(2) and this paragraph (b) 
are satisfied. The requirements of this paragraph (b) are satisfied if 
the private foundation establishes to the satisfaction of the 
Commissioner that the amount set aside will be paid for the specific 
project within 60 months after it is set aside, and
    (i) The set-aside satisfies the suitability test described in 
subparagraph (2) of this paragraph, or
    (ii) With respect to a set-aside made in a taxable year beginning 
after December 31, 1974, the private foundation satisfies the cash 
distribution test described in subparagraph (3) of this paragraph.

If the suitability test or cash distribution test is otherwise 
satisfied, the 60 month period for paying the amount set aside may, for 
good cause shown, be extended by the Commissioner.
    (2) Suitability test. The suitability test is satisfied if the 
private foundation establishes to the satisfaction of the Commissioner 
that the specific project for which the amount is set aside is one that 
can be better accomplished by the set-aside than by the immediate 
payment of funds. Specific projects that can be better accomplished by 
the use of a set-aside include, but are not limited to, projects in 
which relatively long-term grants or expenditures must be made in order 
to assure the continuity of particular charitable projects or program-
related investments (as defined in section 4944(c)) or where grants are 
made as part of a matching-grant program. Such projects include, for 
example, a plan to erect a building to house the direct charitable, 
educational, or other similar exempt activity of the private foundation 
(such as a museum building in which paintings are to be hung), even 
though the exact location and architectural plans have not been 
finalized; a plan to purchase an additional group of paintings offered 
for sale only as a unit that requires an expenditure of more than one 
year's income; or a plan to fund a specific research program that is of 
such magnitude as to require an accumulation of funds before beginning 
the research, even though not all of the details of the program have 
been finalized.
    (3) Cash distribution test; in general. The cash distribution test 
is satisfied if:
    (i) The specific project for which the amount is set aside will not 
be completed before the end of the taxable year in which the set-aside 
is made,
    (ii) The private foundation actually distributes, in cash or its 
equivalent and for one or more of the purposes described in section 
170(c) (1) or (2)(B), the ``start-up period minimum amount'' described 
in subparagraph (4) of this paragraph during the private foundation's 
start-up period, and
    (iii) The private foundation actually distributes, in cash or its 
equivalent and for one or more of the purposes described in section 
170(c) (1) or (2)(B), the ``full-payment period minimum

[[Page 101]]

amount'' described in subparagraph (5) of this paragraph in each taxable 
year of the private foundation's full-payment period.

For purposes of the cash distribution test, an amount set aside will be 
treated as distributed in the year in which actually paid and not in the 
year in which set aside.
    (4) Minimum distribution required during start-up period--(i) Start-
up period. For private foundations created before January 1, 1972, the 
start-up period is the four taxable years immediately preceding the 
taxable year beginning in calendar year 1976. For private foundations 
created after December 31, 1971 (or for organizations that first become 
private foundations after that date), the start-up period is the four 
taxable years following the taxable year in which the private foundation 
was created (or otherwise became a private foundation). For purposes of 
this subparagraph (4), a private foundation will be considered 
``created'' in the taxable year in which the private foundation's 
distributable amount (as determined under section 4942(d)) first exceeds 
$500.
    (ii) Start-up period minimum amount. The amount that a private 
foundation must actually distribute in cash or its equivalent during the 
private foundation's start-up period is not less than the sum of:
    (a) Twenty percent of the private foundation's distributable amount 
(as determined under section 4942(d)) for the first taxable year of the 
start-up period,
    (b) Forty percent of the private foundation's distributable amount 
for the second taxable year of the start-up period,
    (c) Sixty percent of the private foundation's distributable amount 
for the third taxable year of the start-up period, and
    (d) Eighty percent of the private foundation's distributable amount 
for the fourth taxable year of the start-up period.
    (iii) Timing of distributions. The requirement that a private 
foundation distribute the start-up period minimum amount during the 
start-up period is a requirement that such amount be distributed before 
the end of the start-up period, and is not a requirement that any 
portion of such amount be distributed in any one taxable year of the 
start-up period.
    (iv) Distribution actually made during start-up period. In general, 
only a distribution actually made during the start-up period is taken 
into account in determining whether a private foundation has distributed 
the start-up period minimum amount. However, in the case of a private 
foundation created after December 31, 1971 (or an organization that 
first became a private foundation after that date), a distribution 
actually made during the taxable year in which the foundation was 
created (the year immediately preceding the first taxable year of the 
private foundation's start-up period) may be treated as a distribution 
actually made during the start-up period. In addition, a distribution 
actually made by a private foundation within 5\1/2\ months after the end 
of the start-up period will be treated as a distribution actually made 
during the start-up period if:
    (a) The private foundation was unable to determine the distributable 
amount for the fourth taxable year of the start-up period until after 
the end of such period, and
    (b) The private foundation actually made distributions prior to the 
end of the start-up period based upon a reasonable estimate of the 
private foundation's distributable amount for the fourth taxable year of 
the start-up period.
    (v) Examples. The provisions of this subparagraph (4) may be 
illustrated by the following examples:

    Example 1. F, a private foundation created on January 1, 1975, uses 
the calendar year as its taxable year. The start-up period for F is 
January 1, 1976 through December 31, 1979. F has distributable amounts 
under section 4942(d) for taxable years 1976 through 1979 in the 
following amounts: 1976, $100,000; 1977, $120,000; 1978, $150,000; 1979, 
$200,000. F's start-up period minimum amount is the sum of the following 
amounts: 20% of $100,000 ($20,000); 40% of $120,000 ($48,000); 60% of 
$150,000 ($90,000); and 80% of $200,000 ($160,000); which equals 
$318,000. Thus F is required to actually distribute at least $318,000 in 
cash or its equivalent during the start-up period.
    Example 2. F, a private foundation created in 1969, uses the 
calendar year as its taxable year. F's start-up period is the calendar 
years 1972 through 1975. F makes two cash distributions in 1972. The 
first distribution is

[[Page 102]]

made on account of a set-aside made in 1969. Under section 4942(g), that 
distribution is treated as a qualifying distribution made in 1969. The 
second distribution is treated under section 4942(h) has made out of F's 
undistributed income for 1971. In addition, F makes a cash distribution 
in 1976 that is treated under section 4942(h) as made out of F's 
undistributed income for 1975. In determining whether F has distributed 
its start-up period minimum amount within the start-up period, the 1972 
distributions are both taken into account because they were actually 
made during F's start-up period. The 1976 distribution is not taken into 
account, however, because that distribution was not actually made during 
F's start-up period.

    (5) Minimum distribution required during full-payment period--(i) 
Full-payment period. A private foundation's full-payment period includes 
each taxable year that begins after the end of the private foundation's 
start-up period.
    (ii) Full-payment period minimum amount. The amount that a private 
foundation must actually distribute in cash or its equivalent in a 
taxable year of the private foundation's full-payment period is not less 
than 100 percent of the private foundation's distributable amount 
determined under section 4942(d) (without regard to section 4942(i)) 
with respect to the taxable year.
    (iii) Carryover of distributions in excess of full-payment period 
minimum amount. If, in a taxable year beginning after December 31, 1975, 
a private foundation distributes an amount in excess of the full-payment 
period minimum amount for the taxable year, the excess shall be used to 
reduce the full-payment period minimum amount in the taxable years in 
the adjustment period. The amount of the excess distribution used to 
reduce the full-payment period minimum amount in each successive taxable 
year of the adjustment period shall be equal to the amount of such 
excess less the sum of the full-payment period minimum amounts for all 
prior taxable years in the adjustment period to which the excess was 
previously applied. The taxable years in the adjustment period are the 
five taxable years immediately following the taxable year in which the 
excess distribution is made. Any distribution in excess of the full-
payment period minimum amount made during a taxable year of the 
adjustment period shall not be taken into account under this 
subparagraph (iii) until any earlier excess has been completely applied 
against full-payment period minimum amounts during its adjustment 
period.
    (iv) Distributions actually made during a taxable year. Except as 
described in subdivision (ii) of subparagraph (6), only a distribution 
actually made during a taxable year of the full-payment period is taken 
into account in determining whether a private foundation has distributed 
the full-payment period minimum amount for such year.
    (v) Examples. The provisions of this subparagraph (5) may be 
illustrated by the following examples:

    Example 1. F, a private foundation created on January 1, 1973, uses 
the calendar year as its taxable year. F has a start-up period of 
January 1, 1974, through December 31, 1977, and a full-payment period 
that includes every taxable year beginning after December 31, 1977. F's 
distributable amount (as determined under section 4942(d)) for 1978 is 
$500,000. Thus, F's full-payment period minimum amount for 1978 is 
$500,000. During 1978 F distributes $100,000 in cash to Charity X and 
$400,000 in cash to Charity Y on account of a set-aside made in 1973. F 
has distributed its full-payment period minimum amount for 1978 because 
it has made actual cash distributions during that year which total 
$500,000. However, F has made qualifying distributions (as determined 
under section 4942(g)) with respect to 1978 of only $100,000. In order 
to avoid liability for the tax on undistributed income under section 
4942(a), F must distribute or set aside an additional $400,000 before 
January 1, 1980.
    Example 2. Assume the facts as stated in Example (1) except that in 
1978 F makes cash distributions totaling $600,000. Since the total cash 
distributions made in 1978 ($600,000) exceed the full-payment period 
minimum amount for 1978 ($500,000), there exists a $100,000 excess which 
must be used by F to reduce its full-payment period minimum amounts for 
the years 1979-1983 (the taxable years in the adjustment period with 
respect to the 1978 excess). Therefore, if F's distributable amount (as 
determined under section 4942(d)) for 1979 is $500,000, F's full-payment 
period minimum amount for 1979 is $400,000 ($500,000-$100,000).

    (6) Failure to distribute minimum amounts--(i) In general. If a 
private foundation fails to actually distribute the start-up period 
minimum amount during the start-up period or, except as described in 
subdivision (ii) of this subparagraph (6), if a private foundation

[[Page 103]]

fails to actually distribute the full-payment period minimum amount 
during a taxable year of the full-payment period, then any set-aside 
made by the private foundation during the start-up period (if the 
failure relates to the start-up period) or during the taxable year (if 
the failure relates to the full-payment period) that was not approved by 
the Commissioner under the suitability test described in subparagraph 
(2) of this paragraph will not be treated as a qualifying distribution. 
Further, any set-aside made after the year of such a failure to so 
distribute a minimum amount will be treated as a qualifying distribution 
only if the Commissioner approves the set-aside under the suitability 
test. In any case in which a set-aside ceases to be treated as a 
qualifying distribution as a result of a failure to distribute the full-
payment period minimum amount, a private foundation may be assessed a 
deficiency under section 4942(a) within the period described in section 
6501(n)(3).
    (ii) Correction of certain failures to distribute. If a private 
foundation's failure to distribute the full-payment period minimum 
amount during a taxable year of the full-payment period was not willful 
and was due to reasonable cause, the private foundation may correct the 
failure to so distribute. Correction will be achieved if the private 
foundation distributes within the correction period cash or its 
equivalent in an amount not less than the difference between the full-
payment period minimum amount for the taxable year and the amount 
actually distributed during the taxable year. The correction period is 
the correction period as defined in section 4962(e), determined with 
respect to the earliest occurring taxable event (as defined in section 
4962(e)(2)(A)) that would result if the failure to distribute a full-
payment period minimum amount were not corrected. The additional 
distribution will be treated for purposes of subparagraph (5) of this 
paragraph as made during the taxable year with respect to which the 
failure occurred. If a private foundation fails to distribute the full-
payment period minimum amount during a taxable year of the full-payment 
period because such amount can be determined only after the end of the 
taxable year, no ``willful failure to distribute'' the full-payment 
period minimum amount will occur if the private foundation makes an 
additional distribution within 5\1/2\ months after the end of the 
taxable year.
    (7) Approval and information requirements--(i) Suitability test. If 
an amount is set aside under the suitability test of section 
4942(g)(2)(B)(i) and subparagraph (2) of this paragraph, the private 
foundation must apply for the Commissioner's approval of the set-aside 
before the end of the taxable year in which the amount is set aside. The 
Commissioner will either approve or disapprove the set-aside in writing. 
An otherwise proper set-aside will not be treated as a qualifying 
distribution under this paragraph (b) with respect to a taxable year if 
the Commissioner's approval is not sought before the end of the taxable 
year in which the amount is actually set aside. To obtain approval by 
the Commissioner for a set-aside under the suitability test, the private 
foundation must write to Commissioner of Internal Revenue, Attention: 
OP:E:EO:T, 1111 Constitution Avenue, NW., Washington, DC 20224, and 
include:
    (a) A statement describing the nature and purposes of the specific 
project and the amount of the set-aside for which approval is requested;
    (b) A statement describing the amounts and approximate dates of any 
planned additions to the set-aside after its initial establishment;
    (c) A statement of the reasons why the project can be better 
accomplished by a set-aside than by the immediate payment of funds;
    (d) A detailed description of the project, including estimated 
costs, sources of any future funds expected to be used for completion of 
the project, and the location or locations (general or specific) of any 
physical facilities to be acquired or constructed as part of the 
project; and
    (e) A statement by an appropriate foundation manager (as defined in 
section 4946(b)) that the amounts to be set aside will actually be paid 
for the specific project within a specified period of time that ends not 
more than 60 months after the date of the first set-aside, or a 
statement showing good

[[Page 104]]

cause why the period for paying the amount set aside should be extended 
(including a showing that the proposed project could not be divided into 
two or more projects covering periods of no more than 60 months each) 
and setting forth the extension of time required.
    (ii) Cash distribution test. If an amount is set aside under the 
cash distribution test of section 4942(g)(2)(B)(ii) and subparagraphs 
(3), (4), and (5) of this paragraph, then for taxable years ending after 
April 2, 1984, the private foundation must submit an attachment with the 
return required by section 6033 for the taxable year in which the amount 
is set aside and for certain subsequent taxable years. For the taxable 
year in which the amount is set aside the attachment must include:
    (a) A statement describing the nature and purposes of the specific 
project for which amounts are to be set aside;
    (b) A statement that the amounts set aside for the specific project 
will actually be paid for the specific project within a specified period 
of time that ends not more than 60 months after the date of the set-
aside;
    (c) A statement that the project will not be completed before the 
end of the taxable year of the private foundation in which the set-aside 
is made;
    (d) A statement showing the distributable amounts determined under 
section 4942(d) for any past taxable years in the private foundation's 
start-up and full-payment periods; and
    (e) A statement showing the aggregate amount of actual payments made 
in cash or its equivalent, for purposes described in section 170(c) (1) 
or (2)(B), during each taxable year in the private foundation's start-up 
and full-payment periods. This statement should include a detailed 
description of any payments that are to be treated, pursuant to the 
rules of subparagraphs (4)(iv) and (6)(ii) of this paragraph (b), as 
distributed during a taxable year prior to the taxable year in which 
such payments were actually made and, in addition, should explain the 
circumstances that justify the application of those rules.

For the five taxable years following the taxable year in which the 
amount is set aside (or, if longer, for each taxable year in the 
extended period for paying the amount set aside), the attachment must 
include the statements required by (d) and (e) of this subdivision (ii). 
The submission of the statement required by (b) of this subdivision (ii) 
will satisfy the requirement of section 4942(g)(2)(B) and subparagraph 
(1) of this paragraph (b) that the private foundation establish to the 
satisfaction of the Commissioner that the amount set aside will be paid 
for the specific project within 60 months after it is set aside.
    (8) Evidence of set-aside. A set-aside that is approved by the 
Commissioner or which satisfies the cash distribution test shall be 
evidenced by the entry of a dollar amount on the books and records of a 
private foundation as a pledge or obligation to be paid at a future date 
or dates. Any amount which is set aside shall be taken into account for 
purposes of determining the private foundation's minimum investment 
return under Sec.  53.4942(a)-2 (c)(1), and any income attributable to 
such set-aside shall be taken into account in computing adjusted net 
income under Sec.  53.4942(a)-2(d).
    (9) Contingent set-aside. In the event a private foundation is 
involved in litigation and may not distribute assets or income because 
of a court order, the private foundation may (except as provided in 
Sec.  53.4942(a)-2 (e)(1)(i) or (ii)) seek and obtain a set-aside for a 
purpose described in Sec.  53.4942(a)-3 (a)(2). The amount to be set 
aside shall be equal to that portion of the private foundation's 
distributable amount which is attributable to the assets or income that 
are held pursuant to court order and which, but for the court order 
precluding the distribution of such assets or income, would have been 
distributed. In the event that the litigation encompasses more than one 
taxable year, the private foundation may seek additional contingent set-
asides. Such amounts must actually be distributed by the last day of the 
taxable year following the taxable year in which the litigation is 
terminated. Amounts not distributed by the close of the appropriate 
taxable year shall be treated as described in Sec.  53.4942(a)-2 
(d)(2)(iii)(c) for the succeeding taxable year.
    (c) Certain contributions to section 501(c)(3) organizations--(1) In 
general.

[[Page 105]]

For purposes of this section, the term ``qualifying distribution'' 
includes (in the year in which it is paid) a contribution to an exempt 
organization described in section 501(c)(3) and described in paragraph 
(a)(2)(i) (a) or (b) of this section if:
    (i) Not later than the close of the first taxable year after the 
donee organization's taxable year in which such contribution is 
received, such donee organization makes a distribution equal to the full 
amount of such contribution and such distribution is a qualifying 
distribution (within the meaning of paragraph (a) of this section, 
without regard to this paragraph) which is treated under paragraph (d) 
of this section as a distribution out of corpus (or would be so treated 
if such section 501(c)(3) organization were a private foundation which 
is not an operating foundation); and
    (ii) The private foundation making the contribution obtains adequate 
records or other sufficient evidence from such donee organization (such 
as a statement by an appropriate officer, director, or trustee of such 
donee organization) showing (except as otherwise provided in this 
subparagraph) (a) that the qualifying distribution described in 
subdivision (i) of this subparagraph has been made by such organization, 
(b) the names and addresses of the recipients of such distribution and 
the amount received by each, and (c) that the distribution is treated as 
a distribution out of corpus under paragraph (d) of this section (or 
would be so treated if the donee organization were a private foundation 
which is not an operating foundation). Where a distribution is for an 
administrative expense which is part of a section 170(c) (1) or (2)(B) 
expenditure or is part of another section 170(c) (1) or (2)(B) 
expenditure that cannot reasonably be separately accounted for, the 
provisions of subdivision (ii) of this subparagraph may be satisfied by 
the submission by the donee organization of a statement setting forth 
the general purpose for which such expenditure was made and that the 
amount was distributed as a qualifying distribution described in 
subdivision (ii)(c) of this subparagraph.
    (2) Distribution requirements. (i) In order for a donee organization 
to meet the distribution requirements of subparagraph (1)(i) of this 
paragraph, it must, not later than the close of the first taxable year 
after its taxable year in which any contributions are received, 
distribute (within the meaning of this subparagraph) an amount equal in 
value to the contributions received in such prior taxable year and have 
no remaining undistributed income for such prior taxable year. In the 
event that a donee organization redistributes less than an amount equal 
to the total contributions from donor organizations which are required 
to be redistributed by such donee organization by the close of the first 
taxable year following the taxable year in which such contributions were 
received, amounts treated as redistributions of such contributions shall 
be deemed to have been made pro rata out of all such contributions 
regardless of any earmarking or identification made by such donee 
organization with respect to the source of such distributions. See 
paragraph (d)(2)(ix) of Sec.  53.4942(a)-2 for the treatment of amounts 
deemed not to have been so redistributed. For purposes of this 
paragraph, the term contributions means all contributions, whether of 
cash or property, and the fair market value of contributed property 
determined as of the date of the contribution must be used in 
determining whether an amount equal in value to the contributions 
received has been redistributed.
    (ii) For purposes of this paragraph, the characterization of 
qualifying distributions made during the taxable year (i.e., whether out 
of the prior year's undistributed income, the current year's 
undistributed income, or corpus) is to be made as of the close of the 
taxable year in question, except to the extent that a different 
characterization is effected by means of the election provided for by 
paragraph (d)(2) of this section or by subdivision (iv) of this 
subparagraph. Once it is determined that a qualifying distribution is 
attributable to corpus, such distribution will first be charged to 
distributions which are required to be redistributed under this 
paragraph.
    (iii) All amounts contributed to a specific exempt organization 
described in section 501(c)(3) and in paragraph

[[Page 106]]

(a)(2)(i) (a) or (b) of this section within any one taxable year of such 
organization shall be treated (with respect to the contributing private 
foundation) as one ``contribution''. If subparagraph (1) (i) or (ii) of 
this paragraph is not completely satisfied with respect to such 
contribution within the meaning of such subparagraph, only that portion 
of such contribution which was redistributed (within the meaning of 
subparagraph (1) (i) and (ii) of this paragraph) shall be treated as a 
qualifying distribution.
    (iv) In order to satisfy distribution requirements under section 
170(b) (1)(E)(ii) or this paragraph, a donee organization may elect to 
treat as a current distribution out of corpus any amount distributed in 
a prior taxable year which was treated as a distribution out of corpus 
under paragraph (d)(1)(iii) of this section provided that (a) such 
amount has not been availed of for any other purpose, such as a 
carryover under paragraph (e) of this section or a redistribution under 
this paragraph for a prior year, (b) such corpus distribution occurred 
within the preceding 5 years, and (c) such amount is not later availed 
of for any other purpose. Such election must be made by attaching a 
statement to the return the foundation is required to file under section 
6033 with respect to the taxable year for which such election is to 
apply. Such statement must contain a declaration by an appropriate 
foundation manager (within the meaning of section 4946(b)(1)) that the 
foundation is making an election under this paragraph and it must 
specify that the distribution was treated under paragraph (d)(1)(iii) of 
this section as a distribution out of corpus in a designated prior 
taxable year (or years).
    (3) Examples. The provisions of subparagraphs (1) and (2) of this 
paragraph may be illustrated by the following examples. It is assumed in 
these examples that all private foundations described use the calendar 
as the taxable year.

    Example 1. In 1972 M, a private foundation, makes a contribution out 
of 1971 income to X, another private foundation which is not an 
operating foundation. The contribution is the only one received by X in 
1972. In 1973 X makes a qualifying distribution to an art museum 
maintained by an operating foundation in an amount equal to the amount 
of the contribution received from M. X also distributes all of its 
undistributed income for 1972 and 1973 for other purposes described in 
section 170(c)(2)(B). Under the provisions of paragraph (d) of this 
section, such distribution to the museum is treated as a distribution 
out of corpus. Thus, M's contribution to X is a qualifying distribution 
out of M's 1971 income provided M obtains adequate records or other 
sufficient evidence from X showing the nature and amount of the 
distribution made by X, the identity of the recipient, and the fact that 
the distribution is treated as made out of corpus. If X's qualifying 
distributions during 1973 had been equal only to M's contribution to X 
and X's undistributed income for 1972, X could have made an election 
under paragraph (d)(2) of this section to treat the amount distributed 
in excess of its 1972 undistributed income as a distribution out of 
corpus and in that manner satisfied the requirements of this paragraph.
    Example 2. Assume the facts stated in example (1), except that X is 
a private college described in section 170(b)(1)(A)(ii) which is 
controlled by disqualified persons with respect to M and that the 
records which X furnishes to M show that the distribution would have 
been treated as made out of corpus if X were a private nonoperating 
foundation. Under these circumstances, result is the same as in example 
(1).
    Example 3. Assume the facts stated in example (1), except that X 
makes a distribution to the museum equal only to one-half of the 
contribution from M, that the remainder of such contribution is added to 
X's funds and used to pay charitable administrative expenses, and that 
the records obtained by M from X are not sufficient to show the amounts 
distributed or the identities of the recipients of the distributions. 
The contribution by M to X will be a qualifying distribution only to the 
extent that M can obtain (i) other sufficient evidence (such as 
statements from officers or employees of X or from the museum) showing 
the facts required by subparagraph (1)(ii) (a), (b), and (c) of this 
paragraph and (ii) a statement from X setting forth that the remainder 
of the contribution was used for charitable administrative expenses 
which constituted qualifying distributions described in paragraph 
(a)(2)(i) of this section.
    Example 4. X and Y are private nonoperating foundations. A is an 
exempt organization which is not described in section 501(c)(3) but 
which supervises and conducts a program described in section 
170(c)(2)(B). Y, but not X, controls A within the meaning of paragraph 
(a)(3) of this section. In 1972, X and Y each makes a grant to A of 
$100, specifically designated for use in the operation of A's section 
170(c)(2)(B) program. X has made a qualifying distribution to A because

[[Page 107]]

the distribution is one described in paragraph (a)(2)(i) of this 
section. However, because A is controlled by Y, Y's grant of $100 to A 
does not constitute a qualifying distribution within the meaning of such 
paragraph (a)(2)(i). Furthermore, because A is not an exempt 
organization described in section 501(c)(3), Y's grant to A does not 
constitute a qualifying distribution by operation of the provisions of 
this paragraph.
    Example 5. N, a private nonoperating foundation, had distributable 
amounts of $100 in 1970 and $125 in 1971. In 1970 N received total 
contributions of $540: $150 from Y, a public charity; $70 from Z, a 
private foundation; $140 from Q, a private foundation, subject to the 
requirement that N earmark the amount and distribute it before 
distributing Z's contribution; and, $180 from R, also a private 
foundation. However, R specifically instructed N that such contribution 
did not have to be redistributed because R already had made enough 
qualifying distributions to avoid all section 4942 taxes. N is not 
controlled by Y, Z, Q, or R, and N made no qualifying distributions in 
1970. By the close of 1971, N had made qualifying distributions of $420, 
earmarking $140 as having been a distribution of Q's contribution, but 
had made no election under paragraph (d)(2) of this section to have any 
amount distributed which was in excess of N's 1970 undistributed income 
treated as distributed out of corpus. Therefore, the first $225 of 
qualifying distributions made in 1971 (the sum of $100 and $125, N's 
distributable amounts for 1970 and 1971, respectively) are treated as 
amounts described in paragraph (d)(1) (i) and (ii) of this section. 
Since Y's contribution is a contribution from a public charity and does 
not have to be ``redistributed'' and since R specifically instructed N 
that its contribution need not be ``redistributed'', the remaining $195 
of qualifying distributions will be treated as distributed pro rata from 
Z's and Q's contributions, regardless of N's earmarking. Accordingly, of 
Z's original qualifying distribution of $70 only $65 ($195 multiplied by 
$70, Z's contribution, over $210, the total ($70 plus $140) of Z's and 
Q's contributions) will be treated as redistributed by N. Similarly, of 
Q's original qualifying distribution of $140 only $130 ($195 multiplied 
by $140 over $210) will be treated as redistributed by N. Thus, Z's 
gross income for 1972 will be increased by $5 ($70 less the $65 actually 
redistributed), and Q's gross income for 1972 will be increased by $10 
($140 less the $130 actually redistributed).

    (4) Limitation. A contribution by a private foundation to a donee 
organization which the donee uses to make payments to another 
organization (the secondary donee) shall not be regarded as a 
contribution by the private foundation to the secondary donee if the 
distributing foundation does not earmark the use of the contribution for 
any named secondary donee and does not retain power to cause the 
selection of the secondary donee by the organization to which such 
foundation has made the contribution. For purposes of this subparagraph, 
a contribution described herein shall not be regarded as a contribution 
by the foundation to the secondary donee even though such foundation has 
reason to believe that certain organizations would derive benefits from 
such contribution so long as the original donee organization exercises 
control, in fact, over the selection process and actually makes the 
selection completely independently of such foundation.
    (5) Transitional rule. (i) For purposes of this paragraph, a 
contribution to a private foundation which is not an operating 
foundation and which is not controlled (directly or indirectly) by the 
distributing foundation or one or more disqualified persons with respect 
to the distributing foundation will be treated as a contribution to an 
operating foundation if:
    (a) Such contribution is made pursuant to a written commitment which 
was binding on May 26, 1969, and at all times thereafter.
    (b) Such contribution is made for one or more of the purposes 
described in section 170(c) (1) or (2)(B), and
    (c) Such contribution is to be paid out to the donee private 
foundation on or before December 31, 1974.
    (ii) For purposes of this subparagraph, a written commitment will be 
considered to have been binding prior to May 27, 1969, only if the 
amount and nature of the contribution and the name of the donee 
foundation were entered in the records of the distributing foundation, 
or were otherwise adequately evidenced, prior to May 27, 1969, or notice 
of the contribution was communicated in writing to such donee prior to 
May 27, 1969.
    (d) Treatment of qualifying distributions--(1) In general. Except as 
provided in subparagraph (2) of this paragraph, any qualifying 
distribution made during a taxable year shall be treated as made:

[[Page 108]]

    (i) First out of the undistributed income (as defined in paragraph 
(a) of Sec.  53.4942(a)-2) of the immediately preceding taxable year (if 
the private foundation was subject to the initial excise tax imposed by 
section 4942(a) for such preceding taxable year) to the extent thereof;
    (ii) Second out of the undistributed income for the taxable year to 
the extent thereof; and
    (iii) Then out of corpus.
    (2) Election. In the case of any qualifying distribution which 
(under subparagraph (1) of this paragraph) is not treated as made out of 
the undistributed income of the immediately preceding taxable year, the 
foundation may elect to treat any portion of such distribution as made 
out of the undistributed income of a designated prior taxable year or 
out of corpus. Such election must be made by filing a statement with the 
Commissioner during the taxable year in which such qualifying 
distribution is made or by attaching a statement to the return the 
foundation is required to file under section 6033 with respect to the 
taxable year in which such qualifying distribution was made. Such 
statement must contain a declaration by an appropriate foundation 
manager (within the meaning of section 4946(b)(1)) that the foundation 
is making an election under this subparagraph, and it must specify 
whether the distribution is made out of the undistributed income of a 
designated prior taxable year (or years) or is made out of corpus. In 
any case where the election described in this subparagraph is made 
during the taxable year in which the qualifying distribution is made, 
such election may be revoked in whole or in part by filing a statement 
with the Commissioner during such taxable year revoking such election in 
whole or in part or by attaching a statement to the return the 
foundation is required to file under section 6033 with respect to the 
taxable year in which the qualifying distribution was made revoking such 
election in whole or in part. Such statement must contain a declaration 
by an appropriate foundation manager (within the meaning of section 
4946(b)(1)) that the foundation is revoking an election under this 
subparagraph in whole or in part, and it must specify the election or 
part thereof being revoked.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. M, a private foundation which was created in 1968 and 
which uses the calendar year as the taxable year, has distributable 
amounts and qualifying distributions for 1970 through 1976 as follows:

------------------------------------------------------------------------
                                           1970    1971    1972    1973
------------------------------------------------------------------------
Distributable amount....................    $100    $100    $100    $100
Qualifying distribution.................       0     100     250     100
                                         -------------------------------
                                            1974    1975    1976  ......
                                         -------------------------------
Distributable amount....................    $100    $100    $100  ......
Qualifying distribution.................     100     100     100  ......
------------------------------------------------------------------------

    In 1971 the qualifying distribution of $100 is treated under 
subparagraph (1)(i) of this paragraph as made out of the $100 of 
undistributed income for 1970. The qualifying distribution of $250 in 
1972 is treated as made: (i) $100 out of the undistributed income for 
1971 under subparagraph (1)(i) of this paragraph; (ii) $100 out of the 
undistributed income for 1972 under subparagraph (1)(ii) of this 
paragraph; and (iii) $50 out of corpus in 1972 under subparagraph 
(1)(iii) of this paragraph. The qualifying distribution of $100 in each 
of the years 1973 through 1976 is treated as made out of the 
undistributed income for each of those respective years under 
subparagraph (1)(ii) of this paragraph. See paragraph (e) of this 
section for rules relating to the carryover of qualifying distributions 
out of corpus.
    Example 2 M, a private foundation which uses the calendar year as 
the taxable year, has undistributed income of $300 for 1981, $200 for 
1982, and $400 for 1983. On January 14, 1983, M makes its first 
qualifying distribution in 1983 when it sets aside (within the meaning 
of paragraph (b) of this section) $700 for construction of a hospital. 
On February 24, 1983 a notice of deficiency with respect to the excise 
taxes imposed by section 4942 (a) and (b) in regard to M's undistributed 
income for 1981 is mailed to M under section 6212(a). M notifies the 
Commissioner in writing on March 24, 1983, that it is making an election 
under subparagraph (2) of this paragraph to have its distribution of 
January 14th applied first against its undistributed income for 1982, 
next against its undistributed income for 1981, and last against its 
undistributed income for 1983. Thus, $200 of the $700 qualifying 
distribution is treated as made out of the undistributed income for 
1982; $300, out of undistributed income for 1981; and $200 ($700 less 
the sum of $200 and $300), out of the undistributed income for 1983. 
Thus, an initial excise tax of $45 (15 percent of $300) is imposed under 
section 4942(a).

[[Page 109]]

Since M made the election described above, the $300 (treated as 
distributed out of undistributed income for 1981) corrects (within the 
meaning of section 4963(d)(2)) the taxable act because the undistributed 
income for 1981 is reduced to zero. Furthermore, correction is effected 
within the correction period (as defined in section 4963(e)(1) and Sec.  
53.4963-1(e)). Therefore, under the provisions of section 4961(a), the 
additional tax imposed by section 4942(b) will not be assessed.

    (e) Carryover of excess qualifying distributions--(1) In general. If 
in any taxable year for which an organization is subject to the initial 
excise tax imposed by section 4942(a) there is created an excess of 
qualifying distributions (as determined under subparagraph (2) of this 
paragraph), such excess may be used to reduce distributable amounts in 
any taxable year of the adjustment period (as defined subparagraph (3) 
of this paragraph). For purposes of section 4942, including paragraph 
(d) of this section, the distributable amount for a taxable year in the 
adjustment period shall be reduced to the extent of the lesser of (i) 
the excess of qualifying distributions made in prior taxable years to 
which such adjustment period applies or (ii) the remaining undistributed 
income at the close of such taxable year after applying any qualifying 
distributions made in such taxable year to the distributable amount for 
such taxable year (determined without regard to this paragraph). If 
during any taxable year of the adjustment period there is created 
another excess of qualifying distributions, such excess shall not be 
taken into account until any earlier excess of qualifying distributions 
has been completely applied against distributable amounts during its 
adjustment period.
    (2) Excess qualifying distributions. An excess of qualifying 
distributions is created for any taxable year beginning after December 
31, 1969, if:
    (i) The total qualifying distributions treated (under paragraph (d) 
of this section) as made out of the undistributed income for such 
taxable year or as made out of corpus with respect to such taxable year 
(other than amounts distributed by an organization in satisfaction of 
section 170(b)(1)(E)(ii) or paragraph (c) of this section, or applied to 
a prior taxable year by operation of the elections contained in 
paragraphs (c)(2)(iv) and (d)(2) of this section), exceeds
    (ii) The distributable amount for such taxable year (determined 
without regard to this paragraph).
    (3) Adjustment period. For purposes of this paragraph, the taxable 
years in the adjustment period are the 5 taxable years immediately 
following the taxable year in which the excess of qualifying 
distributions is created. Thus, an excess (within the meaning of 
subparagraph (2) of this paragraph) for any 1 taxable year cannot be 
carried over beyond the succeeding 5 taxable years. However, if during 
any taxable year in the adjustment period an organization ceases to be 
subject to the initial excise tax imposed by section 4942(a), any 
portion of the excess of qualifying distributions, which prior to such 
taxable year has not been applied against distributable amounts, may not 
be carried over to such taxable year or subsequent taxable years in the 
adjustment period, even if during any of such taxable years the 
organization again becomes subject to the initial excise tax imposed by 
section 4942(a).
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. (i) F, a private foundation which was created in 1967 and 
which uses the calendar year as the taxable year, has distributable 
amounts and qualifying distributions for 1970 through 1976 as follows:

------------------------------------------------------------------------
                  Year                     1970    1971    1972    1973
------------------------------------------------------------------------
Distributable amount....................    $100    $100    $100    $100
Qualifying distribution.................       0    $250     $70    $140
------------------------------------------------------------------------


------------------------------------------------------------------------
                  Year                     1974    1975    1976
------------------------------------------------------------------------
Distributable amount....................    $100    $100    $100  ......
Qualifying distribution.................     $60     $75    $105  ......
------------------------------------------------------------------------

    (ii) The qualifying distributions made in 1971 will be treated under 
paragraph (d) of this section as $100 made out of the undistributed 
income for 1970, then as $100 made out of the undistributed income for 
1971, and finally as $50 out of corpus in 1971. Since the total 
qualifying distributions for 1971 ($150) exceed the distributable amount 
for 1971 ($100), there exists a $50 excess of qualifying distributions 
which F may use to reduce its distributable amounts for the years 1972 
through 1976 (the taxable years in the adjustment period with respect to 
the 1971 excess). Therefore, the $100 distributable amount for 1972 is 
reduced by $30 (the lesser of the 1971

[[Page 110]]

excess ($50) and the remaining undistributed income at the close of 1972 
($30), after the qualifying distributions of $70 for 1972 were applied 
to the original distributable amount for 1972 of $100). Since the 
distributable amount for 1972 was reduced to $70, there is no remaining 
undistributed income for 1972. Accordingly, the qualifying distributions 
made in 1973 will be treated as $100 made out of the undistributed 
income for 1973 and as $40 out of corpus in 1973. Since this amount 
($140) exceeds the distributable amount for 1973 ($100), there exists a 
$40 excess which F may use to reduce its distributable amounts for the 
years 1974 through 1978 (the taxable years in the adjustment period with 
respect to the 1973 excess). However, in accordance with subparagraph 
(1) of this paragraph such excess may not be used to reduce F's 
distributable amounts for the years 1974 through 1976 until the excess 
created in 1971 has been completely applied against distributable 
amounts during such years. The distributable amount for 1974 is reduced 
by $40 (the lesser of the unused portion of the 1971 excess ($20) plus 
the 1973 excess ($40) and the remaining undistributed income at the 
close of 1974 ($40), after the qualifying distributions of $60 for 1974 
were applied to the original distributable amount for 1974 of $100). The 
distributable amount for 1975 is reduced by $20 (the lesser of the 
unused portion of the 1973 excess of qualifying distributions ($20) and 
the remaining undistributed income at the close of 1975 ($25), after the 
qualifying distributions of $75 for 1975 were applied to the original 
distributable amount for 1975 of $100). Consequently, qualifying 
distributions made in 1976 will be treated as made first out of the $5 
of remaining undistributed income for 1975 and then as $100 made out of 
the undistributed income for 1976.
    Example 2. Assume the facts as stated in example (1), except that in 
1974 F receives a contribution of $300 from G, a private foundation 
which controls F (within the meaning of paragraph (a)(3) of this 
section), and F distributes such contribution in 1975 in satisfaction of 
paragraph (c) of this section. Under these circumstances, there would be 
no excess of qualifying distributions for 1975 with respect to such 
distribution, since such distribution is excluded from the computation 
of an excess of qualifying distributions by operation of subparagraph 
(2)(i) of this paragraph.
    Example 3. Assume the facts as stated in example (1), except that in 
1972 F is treated as an operating foundation (as such term is defined in 
section 4942(j)(3)). In accordance with subparagraph (3) of this 
paragraph since F is not subject to the initial excise tax imposed by 
section 4942(a) for 1972, the 1971 excess cannot be carried forward to 
1972 or any subsequent year in the adjustment period with respect to the 
1971 excess, even if F is subsequently treated as a private nonoperating 
foundation for any year during the period 1973 through 1976.
    (f) Effective/applicability date and transition relief. Paragraphs 
(a)(2)(i) and (a)(6) of this section are effective on and apply with 
respect to distributions made after September 25, 2015. However, 
foundations may continue to rely on the provisions of paragraph (a)(6) 
of this section as contained in 26 CFR part 53, revised April 1, 2015, 
with respect to distributions made on or before December 24, 2015 
pursuant to a good faith determination made in accordance with such 
provisions. Also, foundations may continue to rely on the provisions of 
paragraph (a)(6) of this section as contained in 26 CFR part 53, revised 
April 1, 2015, with respect to distributions pursuant to a written 
commitment made on or before September 25, 2015 and pursuant to a good 
faith determination made on or before such date in accordance with such 
provisions if the committed amount is distributed within five years of 
such date.

[T.D. 7256, 38 FR 3323, Feb. 5, 1973, as amended by T.D. 7486, 42 FR 
24265, May 13, 1977; T.D. 7849, 47 FR 50857, Nov. 10, 1982; T.D. 7938, 
49 FR 3848, Jan. 31, 1984; T.D. 8084, 51 FR 16302, May 2, 1986; T.D. 
9740, 80 FR 57715, Sept. 25, 2015]



Sec.  53.4942(b)-1  Operating foundations.

    (a) Operating foundation defined--(1) In general. For purposes of 
section 4942 and the regulations thereunder, the term ``operating 
foundation'' means any private foundation which, in addition to 
satisfying the assets test, the endowment test or the support test set 
forth in Sec.  53.4942(b)-2 (a), (b) and (c), makes qualifying 
distributions (within the meaning of Sec.  53.4942(a)-3(a)(2)) directly 
for the active conduct of activities constituting its charitable, 
educational, or other similar exempt purpose equal in value to:
    (i) For taxable years beginning before January 1, 1982, 
substantially all of the foundation's adjusted net income (as defined in 
Sec.  53.4942(a)-2(d)); and
    (ii) For taxable years beginning after December 31, 1981, 
substantially all of the lesser of the foundation's adjusted net income 
(as defined in Sec.  53.4942(a)-2(d)) or minimum investment return (as 
defined in Sec.  53.4942(a)-2(c)). If the

[[Page 111]]

foundation's qualifying distributions exceed its minimum investment 
return (but are less than the foundation's adjusted net income) 
substantially all of such qualifying distributions must be made directly 
for the active conduct of activities constituting its charitable, 
educational or other similar exempt purpose. However, if the 
foundation's minimum investment return is less than its adjusted net 
income and the foundation's qualifying distributions equal or exceed 
such adjusted net income, only that portion of the qualifying 
distributions equal to substantially all of the foundation's adjusted 
net income must be made directly for the active conduct of activities 
constituting its charitable, educational or other similar exempt 
purpose.
    (2) Certain elderly care facilities described in section 
4942(j)(6)--(i) In general. For purposes of the distribution 
requirements of section 4942 (but no other provision of the Internal 
Revenue Code) and for taxable years beginning after December 31, 1969, 
the term ``operating foundation'' includes a private foundation which:
    (A) On or before May 26, 1969, and continuously thereafter to the 
close of the taxable year, operates and maintains, as its principal 
functional purpose, residential facilities for the long-term care, 
comfort, maintenance, or education of permanently and totally disabled 
persons, elderly persons, needy widows, or children, and
    (B) Satisfies the endowment test set forth in Sec.  53.4942(b)-2 
(b).
    (ii) Principal functional purpose. For purposes of section 
4942(j)(6) and this subparagraph (2), an organization's ``principal 
functional purpose'' is operating and maintaining residential facilities 
for the long-term care, comfort, maintenance, or education of 
permanently and totally disabled persons, elderly persons, needy widows, 
or children, if it is organized for the principal purpose of operating 
and maintaining such residential facilities and is primarily engaged 
directly in the operation and maintenance of those facilities. An 
organization will be treated as being primarily engaged directly in the 
operation and maintenance of the described residential facilities if at 
least 50% of the qualifying distributions (as defined in Sec.  
53.4942(a)-3(a)(2)) normally made by the organization are expended for 
the operation and maintenance of the facilities.
    (b) Active conduct of activities constituting the exempt purpose--
(1) In general. For purposes of this section, except as provided in 
subparagraph (2) or (3) of this paragraph, qualifying distributions are 
not made by a foundation ``directly for the active conduct of activities 
constituting its charitable, educational, or other similar exempt 
purpose'' unless such qualifying distributions are used by the 
foundation itself, rather than by or through one or more grantee 
organizations which receive such qualifying distributions directly or 
indirectly from such foundation. Thus, grants made to other 
organizations to assist them in conducting activities which help to 
accomplish their charitable, educational, or other similar exempt 
purpose are considered an indirect, rather than direct, means of 
carrying out activities constituting the charitable, educational, or 
other similar exempt purpose of the grantor foundation, regardless of 
the fact that the exempt activities of the grantee organization may 
assist the grantor foundation in carrying out its own exempt activities. 
However, amounts paid to acquire or maintain assets which are used 
directly in the conduct of the foundation's exempt activities, such as 
the operating assets of a museum, public park, or historic site, are 
considered direct expenditures for the active conduct of the 
foundation's exempt activities. Likewise, administrative expenses (such 
as staff salaries and traveling expenses) and other operating costs 
necessary to conduct the foundation's exempt activities (regardless of 
whether they are ``directly for the active conduct'' of such exempt 
activities) shall be treated as qualifying distributions expended 
directly for the active conduct of such exempt activities if such 
expenses and costs are reasonable in amount. Conversely, administrative 
expenses and operating costs which are not attributable to exempt 
activities, such as expenses in connection with the production of 
investment income, are not treated as such qualifying distributions. 
Expenses attributable to both exempt and nonexempt

[[Page 112]]

activities shall be allocated to each such activity on a reasonable and 
consistently applied basis. Any amount set aside by a foundation for a 
specific project, such as the acquisition and restoration, or 
construction, of additional buildings or facilities which are to be used 
by the foundation directly for the active conduct of the foundation's 
exempt activities, shall be deemed to be qualifying distributions 
expended directly for the active conduct of the foundation's exempt 
activities if the initial setting aside of the funds constitutes a set-
aside within the meaning of paragraph (b) of Sec.  53.4942(a)-3.
    (2) Payments to individual beneficiaries--(i) In general. If a 
foundation makes or awards grants, scholarships, or other payments to 
individual beneficiaries (including program related investments within 
the meaning of section 4944(c) made to individuals or corporate 
enterprises) to support active programs conducted to carry out the 
foundation's charitable, educational, or other similar exempt purpose, 
such grants, scholarships, or other payments will be treated as 
qualifying distributions made directly for the active conduct of exempt 
activities for purposes of paragraph (a) of this section only if the 
foundation, apart from the making or awarding of the grants, 
scholarships, or other payments, otherwise maintains some significant 
involvement (as defined in subdivision (ii) of this subparagraph) in the 
active programs in support of which such grants, scholarships, or other 
payments were made or awarded. Whether the making or awarding of grants, 
scholarships, or other payments constitutes qualifying distributions 
made directly for the active conduct of the foundation's exempt 
activities is to be determined on the basis of the facts and 
circumstances of each particular case. The test applied is a 
qualitative, rather than a strictly quantitative, one. Therefore, if the 
foundation maintains a significant involvement (as defined in 
subdivision (ii) of this subparagraph) it will not fail to meet the 
general rule of subparagraph (1) of this paragraph solely because more 
of its funds are devoted to the making or awarding of grants, 
scholarships, or other payments than to the active programs which such 
grants, scholarships, or other payments support. However, if a 
foundation does no more than select, screen, and investigate applicants 
for grants or scholarships, pursuant to which the recipients perform 
their work or studies alone or exclusively under the direction of some 
other organization, such grants or scholarships will not be treated as 
qualifying distributions made directly for the active conduct of the 
foundation's exempt activities. The administrative expenses of such 
screening and investigation (as opposed to the grants or scholarships 
themselves) may be treated as qualifying distributions made directly for 
the active conduct of the foundation's exempt activities.
    (ii) Definition. For purposes of this subparagraph, a foundation 
will be considered as maintaining a ``significant involvement'' in a 
charitable, educational, or other similar exempt activity in connection 
with which grants, scholarships, or other payments are made or awarded 
if:
    (A) An exempt purpose of the foundation is the relief of poverty or 
human distress, and its exempt activities are designed to ameliorate 
conditions among a poor or distressed class of persons or in an area 
subject to poverty or national disaster (such as providing food or 
clothing to indigents or residents of a disaster area), the making or 
awarding of the grants or other payments to accomplish such exempt 
purpose is direct and without the assistance of an intervening 
organization or agency, and the foundation maintains a salaried or 
voluntary staff of administrators, researchers, or other personnel who 
supervise and direct the activities described in this subdivision (A) on 
a continuing basis; or
    (B) The foundation has developed some specialized skills, expertise, 
or involvement in a particular discipline or substantive area (such as 
scientific or medical research, social work, education, or the social 
sciences), it maintains a salaried staff of administrators, researchers, 
or other personnel who supervise or conduct programs or activities which 
support and advance the foundation's work in its particular area of 
interest, and, as a part of such

[[Page 113]]

programs or activities, the foundation makes or awards grants, 
scholarships, or other payments to individuals to encourage and further 
their involvement in the foundation's particular area of interest and in 
some segment of the programs or activities carried on by the foundation 
(such as grants under which the recipients, in addition to independent 
study, attend classes, seminars, or conferences sponsored or conducted 
by the foundation, or grants to engage in social work or scientific 
research projects which are under the general direction and supervision 
of the foundation).
    (3) Payment of section 4940 tax. For purposes of section 4942(j)(3) 
(A) and (B)(ii), payment of the tax imposed upon a foundation under 
section 4940 shall be considered a qualifying distribution which is made 
directly for the active conduct of activities constituting the 
foundation's charitable, educational, or other similar exempt purpose.
    (c) Substantially all. For purposes of this section, the term 
``substantially all'' shall mean 85 percent or more. Thus, if a 
foundation makes qualifying distributions directly for the active 
conduct of activities constituting its charitable, educational, or other 
similar exempt purpose in an amount equal to at least 85 percent of its 
adjusted net income, it will be considered as satisfying the income test 
described in this section even if it makes grants to organizations or 
engages in other activities with the remainder of its adjusted net 
income and with other funds. In determining whether the amount of 
qualifying distributions made directly for the active conduct of such 
exempt activities equals at least 85 percent of a foundation's adjusted 
net income, a foundation is not required to trace the source of such 
expenditures to determine whether they were derived from income or from 
contributions.
    (d) Examples. The provisions of this section may be illustrated by 
the following examples. It is assumed that none of the organizations 
described in these examples is described in section 509(a) (1), (2), or 
(3).

    Example 1. N, an exempt museum described in section 501(c)(3), was 
founded by the gift of an endowment from a single contributor. N uses 90 
percent of its adjusted net income to operate the museum. If N satisfies 
one of the tests set forth in Sec.  53.4942(b)-2 it may be classified as 
an operating foundation since substantially all of the qualifying 
distributions made by N are used directly for the active conduct of N's 
exempt activities within the meaning of paragraph (b)(1) of this 
section.
    Example 2. M, an exempt organization described in section 501(c)(3), 
was created to improve conditions in a particular urban ghetto. M 
receives its funds primarily from a limited number of wealthy 
contributors interested in helping carry out its exempt purpose. M's 
program consists of making a survey of the problems of the ghetto to 
determine the areas in which its funds may be applied most effectively. 
Approximately 10 percent of M's adjusted net income is used to conduct 
this survey. The balance of its income is used to make grants to other 
nonprofit organizations doing work in the ghetto in those areas 
determined to have the greatest likelihood of resulting in improved 
conditions. Under these circumstances, since only 10 percent of M's 
adjusted net income may be considered as constituting qualifying 
distributions made directly for the active conduct of M's exempt 
activities, M cannot qualify as an operating foundation.
    Example 3. Assume the facts as stated in example (2), except that M 
uses the remaining 90 percent of its adjusted net income for the 
following purposes: (1) M maintains a salaried staff of social workers 
and researchers who analyze its surveys and make recommendations as to 
methods for improving ghetto conditions; (2) M makes grants to 
independent social scientists who assist in these analyses and 
recommendations; (3) M publishes periodic reports indicating the results 
of its surveys and recommendations; (4) M makes grants to social workers 
and others who act as advisers to nonprofit organizations, as well as 
small business enterprises, functioning in the community (these advisers 
acting under the general direction of M attempt to implement M's 
recommendations through their advice and assistance to the nonprofit 
organizations and small business enterprises); and (5) M makes grants to 
other social scientists who study and report on the success of the 
various enterprises which attempt to implement M's recommendations. 
Under these circumstances, M satisfies the requirements of paragraph (b) 
(2) of this section, and the various grants it makes constitute 
qualifying distributions made directly for the active conduct of its 
exempt activities. Thus, if M satisfies one of the tests set forth in 
Sec.  53.4942(b)-2 it may be classified as an operating foundation.
    Example 4. P, an exempt educational organization described in 
section 501(c)(3), was created for the purpose of training teachers for 
institutions of higher education. Each

[[Page 114]]

year P awards a substantial number of fellowships to students for 
graduate study leading toward their M.A. or Ph. D. degrees. The 
applicants for these fellowships are carefully screened by P's staff, 
and only those applicants who indicate a strong interest in teaching in 
colleges or universities are chosen. P publishes and circulates various 
pamphlets encouraging a development of interest in college teaching and 
describing its fellowships. P also conducts annual summer seminars which 
are attended by its fellowship recipients, its staff, consultants, and 
other interested parties. The purpose of these seminars is to foster and 
encourage the development of college teaching. P publishes a report of 
the seminar proceedings along with related studies written by those who 
attended. Despite the fact that a substantial portion of P's adjusted 
net income is devoted to granting fellowships, its commitment to 
encouraging individuals to become teachers at institutions of higher 
learning, its maintenance of a staff and programs designed to further 
this purpose, and the granting of fellowships to encourage involvement 
both in its own seminars and in its exempt purpose indicate a 
significant involvement by P beyond the mere granting of fellowships. 
Thus, the fellowship grants made by P constitute qualifying 
distributions made directly for the active conduct of P's exempt 
activities within the meaning of paragraph (b) (2) of this section.
    Example 5. Q, an exempt organization described in section 501(c) 
(3), is composed of professional organizations interested in different 
branches of one academic discipline. Q trains its own professional 
staff, conducts its own program of research, selects research topics, 
screens and investigates grant recipients, makes grants to those 
selected, and sets up and conducts conferences and seminars for the 
grantees. Q has particular knowledge and skill in the given discipline, 
carries on activities to advance its study of that discipline, and makes 
grants to individuals to enable them to participate in activities which 
it conducts in carrying out its exempt purpose. Under these 
circumstances, Q's grants constitute qualifying distributions made 
directly for the active conduct of Q's exempt activities within the 
meaning of paragraph (b) (2) of this section.
    Example 6. R, an exempt medical research organization described in 
section 501 (c) (3), was created to study and perform research 
concerning heart disease. R has its own research center in which it 
carries on a broad number of research projects in the field of heart 
disease with its own professional staff. Physicians and scientists who 
are interested in special projects in this area present the plans for 
their projects to R. The directors of R study these plans and decide if 
the project is feasible and will further the work being done by R. If it 
is, R makes a grant to the individual to enable him to carry out his 
project, either at R's facilities or elsewhere. Reports of the progress 
of the project are made periodically to R, and R exercises a certain 
amount of supervision over the project. The resulting findings of these 
projects are usually published by R. Under these circumstances, the 
grants made by R constitute qualifying distributions made directly for 
the active conduct of R's exempt activities within the meaning of 
paragraph (b) (2) of this section.
    Example 7. S, an exempt organization described in section 501(c) 
(3), maintains a large library of manuscripts and other historical 
reference material relating to the history and development of the region 
in which the collection is located. S makes a limited number of annual 
grants to enable post-doctoral scholars and doctoral candidates to use 
its library. Sometimes S obtains the right to publish the scholar's 
work, although this is not a prerequisite to the receipt of a grant. The 
primary criterion for selection of grant recipients is the usefulness of 
the library's resources to the applicant's field of study. Under these 
circumstances, the grants made by S constitute qualifying distributions 
made directly for the active conduct of S's exempt activities within the 
meaning of paragraph (b) (2) of this section.
    Example 8. T, an exempt charitable organization described in section 
501(c)(3), was created by the members of one family for the purpose of 
relieving poverty and human suffering. T has a large salaried staff of 
employees who operate offices in various areas throughout the country. 
Its employees make gifts of food and clothing to poor persons in the 
area serviced by each office. On occasion, T also provides temporary 
relief in the form of food and clothing to persons in areas stricken by 
natural disasters. If conditions improve in one poverty area, T 
transfers the resources of the office in that area to another poverty 
area. Under these circumstances, the gifts of food and clothing made by 
T constitute qualifying distributions made directly for the active 
conduct of T's exempt activities within the meaning of paragraph (b) (2) 
of this section.
    Example 9. U, an exempt scientific organization described in section 
501(c) (3), was created for the principal purpose of studying the 
effects of early childhood brain damage. U conducts an active and 
continuous research program in this area through a salaried staff of 
scientists and physicians. As part of its research program, U awards 
scholarships to young people suffering mild brain damage to enable them 
to attend special schools equipped to handle such problems. The 
recipients are periodically tested to determine the effect of such 
schooling upon them. Under these circumstances, the scholarships awarded 
by U constitute qualifying distributions made directly for the active

[[Page 115]]

conduct of U's exempt activities within the meaning of paragraph (b) (2) 
of this section.
    Example 10. O, an exempt charitable organization described in 
section 501(c) (3), was created for the purpose of giving scholarships 
to children of the employees of X Corporation who meet the standards set 
by O. O not only screens and investigates each applicant to make sure 
that he complies with the academic and financial requirements set for 
scholarship recipients, but also administers an examination which each 
applicant must take--90 percent of O's adjusted net income is used in 
awarding these scholarships to the chosen applicants. O does not conduct 
any activities of an educational nature on its own. Under these 
circumstances, O is not using substantially all of its adjusted net 
income directly for the active conduct of its exempt activities within 
the meaning of paragraph (b) of this section. Thus, O is not an 
operating foundation because it fails to satisfy the income test set 
forth in paragraph (a) of this section.

[T.D. 7249, 38 FR 768, Jan. 4, 1973, as amended by T.D. 7718, 45 FR 
58520, Sept. 4, 1980; 46 FR 11254, Feb. 6, 1981; T.D. 7878, 48 FR 11943, 
Mar. 22, 1983]



Sec.  53.4942(b)-2  Alternative tests.

    (a) Assets test--(1) In general. A private foundation will satisfy 
the assets test under the provisions of this paragraph if substantially 
more than half of the foundation's assets:
    (i) Are devoted directly (A) to the active conduct of activities 
constituting the foundation's charitable, educational, or other similar 
exempt purpose, (B) to functionally related businesses (as defined in 
paragraph (c)(3)(iii) of Sec.  53.4942(a)-2), or (C) to any combination 
thereof;
    (ii) Are stock of a corporation which is controlled by the 
foundation (within the meaning of section 368(c)) and substantially all 
the assets of which (within the meaning of paragraph (c) of Sec.  
53.4942(b)-1) are so devoted; or
    (iii) Are in part assets which are described in subdivision (i) of 
this subparagraph and in part stock which is described in subdivision 
(ii) of this subparagraph.
    (2) Qualifying assets--(i) In general. For purposes of subparagraph 
(1) of this paragraph, an asset is ``devoted directly to the active 
conduct of activities constituting the foundation's charitable, 
educational, or other similar exempt purpose'' only if the asset is 
actually used by the foundation directly for the active conduct of 
activities constituting its charitable, educational, or other similar 
exempt purpose. Thus, such assets as real estate, physical facilities or 
objects (such as museum assets, classroom fixtures and equipment, and 
research facilities), and intangible assets (such as patents, 
copyrights, and trademarks) will be considered qualifying assets for 
purposes of this paragraph to the extent they are used directly for the 
active conduct of the foundation's exempt activities. However, assets 
which are held for the production of income, for investment, or for some 
other similar use (for example, stocks, bonds, interest-bearing notes, 
endowment funds, or, generally, leased real estate) are not devoted 
directly to the active conduct of the foundation's exempt activities, 
even though the income derived from such assets is used to carry out 
such exempt activities. Whether an asset is held for the production of 
income, for investment, or for some other similar use rather than being 
used for the active conduct of the foundation's exempt activities is a 
question of fact. For example, an office building used for the purpose 
of providing offices for employees engaged in the management of 
endowment funds of the foundation is not devoted to the active conduct 
of the foundation's exempt activities. However, where property is used 
both for exempt purposes and for other purposes, if such exempt use 
represents 95 percent or more of the total use, such property shall be 
considered to be used exclusively for an exempt purpose. Property 
acquired by a foundation to be used in carrying out the foundation's 
exempt purpose may be considered as devoted directly to the active 
conduct of such purpose even though the property, in whole or in part, 
is leased for a limited period of time during which arrangements are 
made for its conversion to the use for which it was acquired, provided 
such income-producing use of the property does not exceed a reasonable 
period of time. Generally, 1 year shall be deemed to be a reasonable 
period of time for purposes of the immediately preceding sentence. 
Similarly, where property is leased by a foundation in carrying out its 
exempt purpose and where the rental income derived from

[[Page 116]]

such property by the foundation is less than the amount which would be 
required to be charged in order to recover the cost of purchase and 
maintenance of such property (taking into account the deductions 
permitted by paragraph (d)(4) of Sec.  53.4942(a)-2), such property 
shall be considered devoted directly to the active conduct of the 
foundation's exempt activities.
    (ii) Limitations. (A) Assets which are held for the purpose of 
extending credit or making funds available to members of a charitable 
class (including any interest in a program related-investment, except as 
provided in paragraph (b)(2) of Sec.  53.4942(b)-1) are not considered 
assets devoted directly to the active conduct of activities constituting 
the foundation's charitable, educational, or other similar exempt 
purpose. For example, assets which are set aside in special reserve 
accounts to guarantee student loans made by lending institutions will 
not be considered assets devoted directly to the active conduct of the 
foundation's exempt activities.
    (B) Any amount set aside by a foundation within the meaning of 
paragraph (b) (1) of Sec.  53.4942(b)-1 shall not be treated as an asset 
devoted directly to the active conduct of the foundation's exempt 
activities.
    (3) Assets held for less than a taxable year. For purposes of this 
paragraph, any asset which is held by a foundation for part of a taxable 
year shall be taken into account for such taxable year by multiplying 
the fair market value of such asset (as determined pursuant to 
subparagraph (4) of this paragraph) by a fraction, the numerator of 
which is the number of days in such taxable year that the foundation 
held such asset and the denominator of which is the number of days in 
such taxable year.
    (4) Valuation. For purposes of this paragraph, all assets shall be 
valued at their fair market value. Fair market value shall be determined 
in accordance with the rules set forth in paragraph (c)(4) of Sec.  
53.4942(a)-2, except in the case of assets which are devoted directly to 
the active conduct of the foundation's exempt activities and for which 
neither a ready market nor standard valuation methods exist (such as 
historical objects or buildings, certain works of art, and botanical 
gardens). In such cases, the historical cost (unadjusted for 
depreciation) shall be considered equal to fair market value unless the 
foundation demonstrates that fair market value is other than cost. In 
any case in which the foundation so demonstrates that the fair market 
value of an asset is other than historical cost, such substituted 
valuation may be used for the taxable year for which such new valuation 
is demonstrated and for each of the succeeding 4 taxable years if the 
valuation methods and procedures prescribed by paragraph (c)(4)(iv)(B) 
of Sec.  53.4942 (a)-2 are followed.
    (5) Substantially more than half. For purposes of this paragraph, 
the term substantially more than half shall mean 65 percent or more.
    (6) Examples. The provisions of this paragraph may be illustrated by 
the following examples. It is assumed that none of the organizations 
described in these examples is described in section 509(a) (1), (2), or 
(3).

    Example 1. W, an exempt organization described in section 501(c)(3), 
is devoted to the maintenance and operation of a historic area for the 
benefit of the general public. W has acquired and erected facilities for 
lodging and other visitor accommodations in such area, which W operates 
through a wholly owned, separately incorporated, taxable entity. These 
facilities comprise substantially all of the subsidiary's assets. The 
operation of such accommodations constitutes a functionally related 
business within the meaning of paragraph (c)(3)(iii) of Sec.  
53.4942(a)-2. Under these circumstances, the stock of the subsidiary 
will be considered as part of W's assets which may be taken into account 
by W in determining whether it satisfies the assets test described in 
this paragraph.
    Example 2. M, an exempt conservation organization described in 
section 501(c)(3), is devoted to acquiring, preserving, and otherwise 
making available for public use geographically diversified areas of 
natural beauty. M has acquired and erected facilities for lodging and 
other visitor accommodations in national park areas. The operation of 
such accommodations constitutes a functionally related business within 
the meaning of paragraph (c)(3)(iii) of Sec.  53.4942(a)-2. Therefore, 
M's assets which are directly devoted to such visitor accommodations may 
be taken into account by M in determining whether it satisfies the 
assets test described in this paragraph.

[[Page 117]]

    Example 3. P, an exempt organization described in section 501(c)(3), 
is devoted to acquiring and restoring historic houses. To insure that 
the restored houses will be kept in the restored condition, and to make 
the houses more readily available for public display, P rents the houses 
rather than sells them once they have been restored. The rental income 
derived by P is substantially less than the amount which would be 
required to be charged in order to recover the cost of purchase, 
restoration, and maintenance of such houses. Therefore, such houses may 
be taken into account by P in determining whether it satisfies the 
assets test described in this paragraph.
    Example 4. Z, an exempt organization described in section 501(c)(3), 
is devoted to improving the public's understanding of Renaissance art. 
Z's principal assets are a number of paintings of this period which it 
circulates on an active and continuing basis to museums and schools for 
public display. These paintings constitute 80 percent of Z's assets. 
Under these circumstances, although Z does not have a building in which 
it displays these paintings, such paintings are devoted directly to the 
active conduct of activities constituting Z's exempt purpose. Therefore, 
Z has satisfied the assets test described in this paragraph.

    (b) Endowment test--(1) In general. A foundation will satisfy the 
endowment test under the provisions of this paragraph if it normally 
makes qualifying distributions (within the meaning of paragraph (a)(2) 
of Sec.  53.4942(a)-3) directly for the active conduct of activities 
constituting its charitable, educational, or other similar exempt 
purpose in an amount not less than two-thirds of its minimum investment 
return (as defined in paragraph (c) of Sec.  53.4942(a)-2). In 
determining whether the amount of such qualifying distributions is not 
less than an amount equal to two-thirds of the foundation's minimum 
investment return, the foundation is not required to trace the source of 
such expenditures to determine whether they were derived from investment 
income or from contributions.
    (2) Definitions. For purposes of this paragraph, the phrase directly 
for the active conduct of activities constituting the foundation's 
charitable, educational, or other similar exempt purpose shall have the 
same meaning as in paragraph (b) of Sec.  53.4942(b)-1.
    (3) Example. This paragraph may be illustrated by the following 
example:

    Example X, an exempt organization described in section 501(c)(3) and 
not described in section 509(a) (1), (2), or (3), was created on July 
15, 1970. X uses the cash receipts and disbursements method of 
accounting. For 1971, the fair market value of X's assets not described 
in paragraph (c) (2) or (3) of Sec.  53.4942(a)-2 is $400,000. X makes 
qualifying distributions for 1971 directly for the active conduct of its 
exempt activities of $17,000. For 1971 two-thirds of X's minimum 
investment return is $16,000 (6 percent x $400,000 = $24,000; \2/3\ x 
$24,000 = $16,000). Under these circumstances, X has satisfied the 
endowment test described in this paragraph for 1971. However, if X's 
qualifying distributions for 1971 directly for the active conduct of its 
exempt activities were only $15,000, X would not satisfy the endowment 
test for 1971, unless the fair market value of its assets not described 
in paragraph (c) (2) or (3) of Sec.  53.4942(a)-2 were no greater than 
$375,000 (6 percent x $375,000 = $22,500; \2/3\ x $22,500 = $15,000).

    (c) Support test--(1) In general. A foundation will satisfy the 
support test under the provisions of this paragraph if:
    (i) Substantially all of its support (other than gross investment 
income as defined in section 509(e)) is normally received from the 
general public and from five or more exempt organizations which are not 
described in section 4946(a)(1)(H) with respect to each other or the 
recipient foundation;
    (ii) Not more than 25 percent of its support (other than gross 
investment income) is normally received from any one such exempt 
organization; and
    (iii) Not more than half of its support is normally received from 
gross investment income.
    (2) Definitions and special rules. For purposes of this paragraph:
    (i) Support. The term support shall have the same meaning as in 
section 509(d).
    (ii) Substantially all. The term substantially all shall have the 
same meaning as in paragraph (c) of Sec.  53.4942(b)-1.
    (iii) Support from exempt organizations. The support received from 
any one exempt organization may be counted towards satisfaction of the 
support test described in this paragraph only if the foundation receives 
support from no fewer than five exempt organizations. For example, a 
foundation which normally receives 20 percent of its support (other than 
gross investment income)

[[Page 118]]

from each of five exempt organizations may qualify under this paragraph 
even though it receives no support from the general public. However, if 
a foundation normally received 10 percent of its support from each of 
three exempt organizations and the balance of its support from sources 
other than exempt organizations, such support could not be taken into 
account in determining whether the foundation had satisfied the support 
test set forth in this paragraph.
    (iv) Support from the general public. ``Support'' received from an 
individual, or from a trust or corporation (other than an exempt 
organization), shall be taken into account as support from the general 
public only to the extent that the total amount of the support received 
from any such individual, trust, or corporation during the period for 
determining the normal sources of the foundation's support (as set forth 
in Sec.  53.4942 (b)-3) does not exceed 1 percent of the foundation's 
total support (other than gross investment income) for such period. In 
applying this 1-percent limitation, all support received by the 
foundation from any person and from any other person or persons standing 
in a relationship to such person which is described in section 
4946(a)(1) (C) through (G) and the regulations thereunder shall be 
treated as received from one person. For purposes of this paragraph, 
support received from a governmental unit described in section 170(c)(1) 
shall be treated as support received from the general public, but shall 
not be subject to the 1-percent limitation.



Sec.  53.4942(b)-3  Determination of compliance with 
operating foundation tests.

    (a) In general. A foundation may satisfy the income test and either 
the assets, endowment, or support test by satisfying such tests for any 
3 taxable years during a 4-year period consisting of the taxable year in 
question and the three immediately preceding taxable years or on the 
basis of an aggregation of all pertinent amounts of income or assets 
held, received, or distributed during such 4-year period. A foundation 
may not use one method for satisfying the income test described in 
paragraph (a) of Sec.  53.4942(b)-1 and another for satisfying either 
the assets, endowment, or support test described in Sec.  53.4942(b)-2. 
Thus, if a foundation satisfies the income test on the 3-out-of-4-year 
basis for a particular taxable year, it may not use the aggregation 
method for satisfying either the assets, endowment, or support test for 
such particular taxable year. However, the fact that a foundation has 
chosen one method for satisfying the tests under Sec. Sec.  53.4942(b)-1 
and 53.4942(b)-2 for 1 taxable year will not preclude it from satisfying 
such tests for a subsequent taxable year by the alternate method. If a 
foundation fails to satisfy the income test and either the assets, 
endowment, or support test for a particular taxable year under either 
the 3-out-of-4-year method or the aggregation method, it shall be 
treated as a nonoperating foundation for such taxable year and for all 
subsequent taxable years until it satisfies the tests set forth in 
Sec. Sec.  53.4942(b)-1 and 53.4942(b)-2 for a taxable year occurring 
after the taxable year in which it was treated as a nonoperating 
foundation.
    (b) New organizations--(1) In general. Except as provided in 
subparagraph (2) of this paragraph, an organization organized after 
December 31, 1969, will be treated as an operating foundation only if it 
has satisfied the tests set forth in Sec. Sec.  53.4942(b)-1 and 
53.4942(b)-2 for its first taxable year of existence. If an organization 
satisfies such tests for its 1st taxable year, it will be treated as an 
operating foundation from the beginning of such taxable year. If such is 
the case, the organization will be treated as an operating foundation 
for its 2d and 3d taxable years of existence only if it satisfies the 
tests set forth in Sec. Sec.  53.4942(b)-1 and 53.4942(b)-2 by the 
aggregation method for all such taxable years that it has been in 
existence.
    (2) Special rule. An organization organized after December 31, 1969, 
will be treated as an operating foundation prior to the end of its 1st 
taxable year if such organization has made a good faith determination 
that it is likely to satisfy the income test set forth in paragraph (a) 
of Sec.  53.4942(b)-1 and one of the tests set forth in Sec.  
53.4942(b)-2 for such 1st taxable year pursuant to subparagraph (1) of 
this paragraph. Such a

[[Page 119]]

``good faith determination'' ordinarily will be considered as made where 
the determination is based on an affidavit or opinion of counsel of such 
organization that such requirements will be satisfied. Such an affidavit 
or opinion must set forth sufficient facts concerning the operations and 
support of such organization for the Commissioner to be able to 
determine that such organization is likely to satisfy such requirements. 
An organization which, pursuant to this subparagraph, has been treated 
as an operating foundation for its 1st taxable year, but actually fails 
to qualify as an operating foundation under subparagraph (1) of this 
paragraph for such taxable year, will be treated as a private foundation 
which is not an operating foundation as of the 1st day of its 2d taxable 
year for purposes of making any determination under the internal revenue 
laws with respect to such organization. The preceding sentence shall not 
apply if such organization establishes to the satisfaction of the 
Commissioner that it is likely to qualify as an operating foundation on 
the basis of its 2d, 3d, and 4th taxable years. Thus, if such an 
organization fails to qualify as an operating foundation in its 2d, 3d, 
or 4th taxable year after having failed in its 1st taxable year, it will 
be treated as a private foundation which is not an operating foundation 
as of the 1st day of such 2d, 3d, or 4th taxable year in which it fails 
to qualify as an operating foundation, except as otherwise provided by 
paragraph (d) of this section. Such status as a private foundation which 
is not an operating foundation will continue until such time as the 
organization is able to satisfy the tests set forth in Sec. Sec.  
53.4942(b)-1 and 53.4942(b)-2 by either the 3-out-of-4-year method or 
the aggregation method. For the status of grants or contributions made 
to such an organization with respect to sections 170 and 4942, see 
paragraph (d) of this section.
    (c) Transitional rule for existing organizations. An organization 
organized before December 31, 1969 (including organizations deemed to be 
so organized by virtue of the principles of paragraph (e)(2) of Sec.  
53.4942(a)-2), but which is unable to satisfy the tests under Sec. Sec.  
53.4942(b)-1 and 53.4942(b)-2 for its first taxable year beginning after 
December 31, 1969 on the basis of its operations for taxable years prior 
to such taxable year by either the 3-out-of-4-year method or the 
aggregation method, will be treated as a new organization for purposes 
of paragraph (b) of this section only if:
    (1) The organization changes its methods of operation prior to its 
first taxable year beginning after December 31, 1972 to conform to the 
requirements of Sec. Sec.  53.4942(b)-1 and 53.4942 (b)-2;
    (2) The organization has made a good faith determination (within the 
meaning of paragraph (b) (2) of the section) that it is likely to 
satisfy the tests set forth in Sec. Sec.  53.4942(b)-1 and 53.4942(b)-2 
prior to its first taxable year beginning after December 31, 1972 on the 
basis of its income or assets held, received, or distributed during its 
taxable years beginning in 1970 through 1972; and
    (3) Such good faith determination is attached to the return the 
organization is required to file under section 6033 for its taxable year 
beginning in 1972.
    (d) Treatment of contributions--(1) In general. The status of grants 
or contributions made to an operating foundation with respect to 
sections 170 and 4942 will not be affected until notice of change of 
status of such organization is made to the public (such as by 
publication in the Internal Revenue Bulletin), unless the grant or 
contribution was made after:
    (i) The act or failure to act that resulted in the organization's 
inability to satisfy the requirements of Sec. Sec.  53.4942 (b)-1 and 
53.4942(b)-2, and the grantor or contributor was responsible for, or was 
aware of, such act or failure to act, or
    (ii) The grantor or contributor acquired knowledge that the 
Commissioner has given notice to such organization that it would be 
deleted from classification as an operating foundation.
    (2) Exception. For purposes of subparagraph (1) (i) of this 
paragraph, a grantor or contributor will not be considered to be 
responsible for, or aware of, the act or failure to act that resulted in 
the grantee organization's inability to satisfy the requirements of 
Sec. Sec.  53.4942 (b)-1 and 53.4942(b)-2 if such grantor or contributor 
has made his

[[Page 120]]

grant or contribution in reliance upon a written statement by the 
grantee organization that such grant or contribution would not result in 
the inability of such grantee organization to qualify as an operating 
foundation. Such a statement must be signed by a foundation manager (as 
defined in section 4946(b)) of the grantee organization and must set 
forth sufficient facts concerning the operations and support of such 
grantee organization to assure a reasonably prudent man that his grant 
or contribution will not result in the grantee organization's inability 
to qualify as an operating foundation.



               Subpart D_Taxes on Excess Business Holdings

    Authority: Secs. 4943 and 7805, Internal Revenue Code of 1954, 68A 
Stat. 917, 83 Stat. 507; 26 U.S.C. 4943, 7805.

    Source: T.D. 7496, 42 FR 46285, Sept. 15, 1977, unless otherwise 
noted.



Sec.  53.4943-1  General rule; purpose.

    Generally, under section 4943, the combined holdings of a private 
foundation and all disqualified persons (as defined in section 4946(a)) 
in any corporation conducting a business which is not substantially 
related (aside from the need of the foundation for income or funds or 
the use it makes of the profits derived) to the exempt purposes of the 
foundation are limited to 20 percent of the voting stock in such 
corporation. In addition, the combined holdings of a private foundation 
and all disqualified persons in any unincorporated business (other than 
a sole proprietorship) which is not substantially related (aside from 
the need of the foundation for income or funds or the use it makes of 
the profits derived) to the exempt purposes of such foundation are 
limited to 20 percent of the beneficial or profits interest in such 
business. In the case of a sole proprietorship which is not 
substantially related (within the meaning of the preceding sentence), 
section 4943 provides that a private foundation shall have no permitted 
holdings. These general provisions are subject to a number of exceptions 
and special provisions which will be described in following sections.



Sec.  53.4943-2  Imposition of tax on excess business holdings 
of private foundations.

    (a) Imposition of initial tax--(1) In general--(i) Initial tax. 
Section 4943(a)(1) imposes an initial excise tax (the ``initial tax'') 
on the excess business holdings of a private foundation for each taxable 
year of the foundation which ends during the taxable period defined in 
section 4943(d)(2). The amount of such tax is equal to 5 percent of the 
total value of all the private foundation's excess business holdings in 
each of its business enterprises. In determining the value of the excess 
business holdings of the foundation subject to tax under section 4943, 
the rules set forth in Sec. Sec.  20.2031-1 through 20.2031-3 of this 
chapter (Estate Tax Regulations) shall apply.
    (ii) Disposition of certain excess business holdings within ninety 
days. In any case in which a private foundation acquires excess business 
holdings, other than as a result of a purchase by the foundation, the 
foundation shall not be subject to the taxes imposed by section 4943, 
but only if it disposes of an amount of its holdings so that it no 
longer has such excess business holdings within 90 days from the date on 
which it knows, or has reason to know, of the event which caused it to 
have such excess business holdings. Similarly, a private foundation 
shall not be subject to the taxes imposed by section 4943 because of its 
purchase of holdings where it did not know, or have reason to know of 
prior acquisitions by disqualified persons, but only if the foundation 
disposes of its excess holdings within the 90-day period described 
previously, and its purchase would not have created excess business 
holding but for such prior acquisitions by disqualified persons. In 
determining whether for purposes of this (ii) the foundation has 
disposed of such excess business holdings during such 90-day period, any 
disposition of holdings, by a disqualified person during such period 
shall be disregarded.
    (iii) Extension of ninety day period. The period described in 
paragraph (a)(1)(ii) of this section, during which no tax shall be 
imposed under section 4943, shall be extended to include the period 
during which a foundation is

[[Page 121]]

prevented by federal or state securities laws from disposing of such 
excess business holdings.
    (iv) Effect of disposition subject to material restrictions. If a 
private foundation disposes of an interest in a business enterprise but 
imposes any material restrictions or conditions that prevent the 
transferee from freely and effectively using or disposing of the 
transferred interest, then the transferor foundation will be treated as 
owning such interest until all such restrictions or conditions are 
eliminated (regardless of whether the transferee is treated for other 
purposes of the Code as owning such interest from the date of the 
transfer). However, a restriction or condition imposed in compliance 
with federal or state securities laws, or in accordance with the terms 
or conditions of the gift or bequest through which such interest was 
acquired by the foundation, shall not be considered a material 
restriction or condition imposed by a private foundation.
    (v) Foundation knowledge of acquisitions made by disqualified 
persons. (A) For purposes of paragraph (a)(1)(ii) of this section, 
whether a private foundation will be treated as knowing, or having 
reason to know, of the acquisition of holdings by a disqualified person 
will depend on the facts and circumstances of each case. Factors which 
will be considered relevant to a determination that a private foundation 
did not know or had no reason to know of an acquisition are: the fact 
that it did not discover acquisitions made by disqualified persons 
through the use of procedures reasonably calculated to discover such 
holdings; the diversity of foundation holdings; and the existence of 
large numbers of disqualified persons who have little or no contact with 
the foundation or its managers.
    (B) The provisions of paragraph (a)(1)(v)(A) of this section may be 
illustrated by the following example:

    Example. By the fifteenth day of the fifth month after the close of 
each taxable year, the F Foundation sends to each foundation manager, 
substantial contributor, person holding more than a 20% interest (as 
described in section 4946(a)(1)(C) in a substantial contributor, and 
foundation described in section 4946(a)(1)(H), a questionnaire asking 
such persons to list all holdings, actual or constructive, in each 
business enterprise in which F had holdings during the taxable year in 
excess of those permitted by the 2 percent de minimis rule of section 
4943(c)(2)(C). In preparing the list of such enterprises, F takes into 
account its constructive holdings only if, during the taxable year, F 
(along with all related foundations described in section 4946(a)(1)(H)) 
owned over 2% of the voting stock, profits interest or beneficial 
interest in the entity actually owning the holdings constructively held 
by F. The questionnaire asks each such person to list the holdings in 
such enterprises of any persons who, because of their relationship to 
such disqualified person, were themselves disqualified persons (i.e., 
members of the family (as defined in section 4946(d)), and any 
corporations, partnerships, trusts and estates described in section 
4946(a)(1) (E) through (G) in which such person, or members of his 
family, had an interest). The questionnaire asks that constructive 
holdings be listed only if, during the taxable year, the disqualified 
person owned over 2% of the voting stock, profits interest or beneficial 
interest in the entity actually owning the holdings constructively held 
by such person. (Thus a disqualified person owning less than 2% of a 
mutual fund is not required to list his attributed share of all the 
securities in the portfolio of the fund.) If no response to the 
questionnaire is received, the foundation seeks the information 
requested by the questionnaire by mailing a second (but not a third) 
questionnaire. If a questionnaire which is returned to the foundation 
indicates that certain information was unavailable to the person 
completing the questionnaire, the foundation seeks that information 
directly. For example, if a disqualified person indicates that he could 
not find out whether a corporation described in section 4946(a)(1)(E) 
had holdings in the enterprise listed in the questionnaire, the 
foundation seeks to obtain this information directly from the 
corporation by mailing it a questionnaire. In such a case F may be found 
not to have reason to know of the acquisition of holdings by a 
disqualified person.

    (vi) Holdings acquired other than by purchases. See section 
4943(c)(6) and Sec.  53.4943-6 for rules relating to the acquisition of 
certain holdings other than by purchase by the foundation or a 
disqualified person.
    (2) Special rules. In applying subparagraph (1) of this paragraph, 
the tax imposed by section 4943(a)(1):
    (i) Shall be imposed on the last day of the private foundation's 
taxable year, but
    (ii) The amount of such tax and the value of the excess business 
holdings subject to such tax shall be determined

[[Page 122]]

with respect to the foundation's holdings (based upon voting power, 
profits or beneficial interest, or value, whichever is applicable) in 
any business enterprise as of that day during the foundation's taxable 
year when the foundation's excess holdings in such enterprise were the 
greatest.

In applying subdivision (ii) of this subparagraph, if a foundation's 
excess business holdings in a business enterprise which constitute such 
foundation's greatest excess holdings in such enterprise for any taxable 
year are maintained for 2 or more days during such taxable year, the 
value of such excess holdings which is subject to tax under section 
4943(a)(1) shall be the greatest value of such excess holdings in such 
enterprise as of any day on which such greatest excess holdings are 
maintained during such taxable year.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Y is a private foundation reporting on a calendar year 
basis. On January 1, 1973, Y has 20 shares of common stock in 
corporation N, of which five shares constitute excess business holdings. 
On June 1, 1973, Y disposes of such five shares; however, because of 
additional acquisitions of N common stock on such date by disqualified 
persons with respect to Y, the remaining 15 shares of N common stock 
held by Y now constitute excess business holdings. There are no further 
acquisitions or dispositions of N common stock during 1973 by Y or its 
disqualified persons. Although Y's greatest holdings in N during 1973 
are held between January 1, 1973, and May 31, 1973, Y's greatest excess 
holdings in N during 1973 are held between June 1, 1973, and December 
31, 1973. Therefore, the tax specified in section 4943(a)(1) shall be 
computed on the basis of the greatest value of such greatest excess 
holdings as of any day between June 1 and December 31, 1973.
    Example 2. X is a private foundation reporting on a calendar year 
basis. On January 1, 1972, X has 100 shares of common stock in M 
corporation which are excess business holdings. On such date each share 
of M common stock has a fair market value of $100. On February 28, 1972, 
in an effort to dispose of such excess business holdings, X sells 70 
shares of M common stock for $120 per share (the fair market value of 
each share on such date) to A, an individual who is not a disqualified 
person within the meaning of section 4946(a). The value of $120 per 
share is the highest fair market value between January 1 and February 
28, 1972. X disposes of no more stock in M for the reminder of calendar 
year 1972. On December 31, 1972, the fair market value of each share of 
M common stock is $80. X calculates its tax on its excess business 
holdings in M for 1972 as follows:

100 shares of M common stock times $120 fair market value        $12,000
 per share as of Feb. 28, 1972..............................
$12,000 multiplied by rate of tax (percent).................           5
Amount of tax on X foundation's excess business holdings for        $600
 1972.......................................................
 

    Example 3. Assume the same facts as in Example (2) except that the 
sale of X to A occurs on January 7, 1973, when the fair market value of 
each share of M corporation common stock equals $70. A value of $100 per 
share is the highest fair market value of the M common stock between 
January 1 and January 7, 1973. On may 9, 1973, X for the first time has 
excess business holdings in N corporation in the form of 200 shares of N 
common stock. The value per share of N common stock on May 9, 1973, 
equals $200. X makes no disposition of the N common stock during 1973, 
and the value of each share of N common stock as of December 31, 1973 
equals $250 (the highest value of N common stock during 1973). X 
calculates its tax on its excess business holdings in both M and N for 
1973 as follows:

100 shares of M common stock times $100 fair market value        $10,000
 per share..................................................
  $250 fair market value per share..........................     $50,000
    Total...................................................     $60,000
                                                             -----------
    Total...................................................     $60,000
$60,000 multiplied by rate of tax (percent).................           5
Amount of tax on X foundation's excess business holdings for      $3,000
 1973.......................................................
 

    (b) Additional tax. In any case in which the initial tax is imposed 
under section 4943(a) with respect to the holdings of a private 
foundation in any business enterprise, if, at the close of the taxable 
period (as defined in section 4943(d)(2) and Sec.  53.4943-9) with 
respect to such holdings the foundation still has excess business 
holdings in such enterprise, there is imposed a tax under section 
4943(b) equal to 200 percent of the value of such excess holdings as of 
the last day of the taxable period.

[T.D. 7496, 42 FR 46285, Sept. 15, 1977, as amended by T.D. 8084, 51 FR 
16302, May 2, 1986]



Sec.  53.4943-3  Determination of excess business holdings.

    (a) Excess business holdings--(1) In general. For purposes of 
section 4943, the term ``excess business holdings'' means, with respect 
to the holdings of any private foundation in any business enterprise (as 
described in section

[[Page 123]]

4943(d)(4)), the amount of stock or other interest in the enterprise 
which, except as provided in Sec.  53.4943-2(a)(1), the foundation, or a 
disqualified person, would have to dispose of, or cause the disposition 
of, to a person other than a disqualified person (as defined in section 
4946(a)) in order for the remaining holdings of the foundation in such 
enterprise to be permitted holdings (as defined in paragraphs (b) and 
(c) of this section). If a private foundation is required by section 
4943 and the regulations thereunder to dispose of certain shares of a 
class of stock in a particular period of time and other shares of the 
same class of stock in a shorter period of time, any stock disposed of 
shall be charged first against those dispositions which must be made in 
such shorter period.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. Corporation X has outstanding 100 shares of voting stock, 
with each share entitling the holder thereof to one vote. F, a private 
foundation, possesses 20 shares of X voting stock representing 20 
percent of the voting power in X. Assume that the permitted holdings of 
F in X under paragraph (b)(1) of this section are 11 percent of the 
voting stock in X. F, therefore, possesses voting stock in X 
representing a percentage of voting stock in excess of the percentage 
permitted by such paragraph. Such excess percentage is 9 percent of the 
voting stock in X, determined by subtracting the percentage of voting 
stock representing the permitted holdings of F in X (i.e., 11 percent) 
from the percentage of voting stock held by F in X (I.E., 20 percent). 
(20% - 11% = 9%). The excess business holdings of F in X are an amount 
of voting stock representing such excess percentage, or 9 shares of X 
voting stock (9 percent of 100).

    (b) Permitted holdings in an incorporated business enterprise--(1) 
In general--(i) Permitted holdings defined. Except as otherwise provided 
in section 4943(c) (2) and (4), the permitted holdings of any private 
foundation in an incorporated business enterprise (including a real 
estate investment trust, as defined in section 856) are:
    (A) 20 percent of the voting stock in such enterprise reduced (but 
not below zero) by
    (B) The percentage of voting stock in such enterprise actually or 
constructively owned by all disqualified persons.
    (ii) Voting stock. For purposes of this section, the percentage of 
voting stock held by any person in a corporation is normally determined 
by reference to the power of stock to vote for the election of 
directors, with treasury stock and stock which is authorized but 
unissued being disregarded. Thus, for example, if a private foundation 
holds 20 percent of the shares of one class of stock in a corporation, 
which class is entitled to elect three directors, and such foundation 
holds no stock in the other class of stock, which is entitled to elect 
five directors, such foundation shall be treated as holding 7.5 percent 
of the voting stock because the class of stock it holds has 37.5 percent 
of such voting power, by reason of being able to elect three of the 
eight directors, and the foundation holds one-fifth of the shares of 
such class (20 percent of 37.5 percent is 7.5 percent). The fact that 
extraordinary corporate action (e.g., charter or by-law amendments) by a 
corporation may require the favorable vote of more than a majority of 
the directors, or of the outstanding voting stock, of such corporation 
shall not alter the determination of voting power of stock in such 
corporation in accordance with the two preceding sentences.
    (2) Nonvoting stock as permitted holdings--(i) In general. In 
addition to those holdings permitted by paragraph (b)(1) of this 
section, the permitted holdings of a private foundation in an 
incorporated business enterprise shall include any share of nonvoting 
stock in such enterprise held by the foundation in any case in which all 
disqualified persons hold, actually or constructively, no more than 20 
percent (35 percent where third persons have effective control as 
defined in paragraph (b)(3)(ii) of this section) of the voting stock in 
such enterprise. All equity interests which do not have voting power 
attributable to them shall, for purposes of section 4943, the classified 
as nonvoting stock. For this purpose, evidences of indebtedness 
(including convertible indebtedness), and warrants and other options or 
rights to acquire stock shall not be considered equity interests.

[[Page 124]]

    (ii) Stock with contingent voting rights and convertible nonvoting 
stock. Stock carrying voting rights which will vest only when 
conditions, the occurrence of which are indeterminate, have been met, 
such as preferred stock which gains such voting rights only if no 
dividends are paid thereon, will be treated as nonvoting stock until the 
conditions have occurred which cause the voting rights to vest. When 
such rights vest, the stock will be treated as voting stock that was 
acquired other than by purchase, but only if the private foundation or 
disqualified persons had no control over whether the conditions would 
occur. Similarly, nonvoting stock which may be converted into voting 
stock will not be treated as voting stock until such conversion occurs. 
For special rules where stock is acquired other than by purchase, see 
section 4943(c)(6) and the regulations thereunder.
    (iii) Example. The provisions of this pararaph (2) may be 
illustrated by the following example:

    Example. Assume that F, a private foundation, holds 10 percent of 
the single class of voting stock of corporation X, and owns 20 shares of 
nonvoting stock in X. Assume further that A and B, the only disqualified 
persons with respect to F, hold 10 percent of the voting stock of X. 
Under the provisions of paragraph (b)(1) of this section the 10 percent 
of X voting stock held by F will be classified as permitted holdings of 
F in X since 20 percent less the percentage of voting stock held by A 
and B in X is 10 percent. In addition, under the provisions of this (2), 
the 20 shares of X nonvoting stock will qualify as permitted holdings of 
F in X since the percentage of voting stock held by A and B in X is no 
greater than 20 percent.

    (3) Thirty-five-percent rule where third person has effective 
control of enterprise--(i) In general. Except as provided in section 
4943(c)(4), paragraph (b)(1) of this section shall be applied by 
substituting 35 percent for 20 percent if:
    (A) The private foundation and all disqualified persons together do 
not hold, actually or constructively, more than 35 percent of the voting 
stock in the business enterprise, and
    (B) The foundation establishes to the satisfaction of the 
Commissioner that effective control (as defined in paragraph (b)(3)(ii) 
of this section) of the business enterprise is in one or more persons 
(other than the foundation itself) who are not disqualfied persons.
    (ii) ``Effective control'' defined. For purposes of this 
subparagraph, the term ``effective control'' means the possession, 
directly or indirectly, of the power to direct or cause the direction of 
the management and policies of a business enterprise, whether through 
the ownership of voting stock, the use of voting trusts, or contractual 
arrangements, or otherwise. It is the reality of control which is 
decisive and not its form or the means by which it is exercisable. Thus, 
where a minority interest held by individuals who are not disqualified 
persons has historically elected the majority of a corporation's 
directors, effective control is in the hands of those individuals.
    (4) Two percent de minimis rule--(i) In general. Under section 
4943(c)(2)(C), a private foundation is not treated as having excess 
business holdings in any incorporated business enterprise in which it 
(together with all other private foundations (including trusts described 
in section 4947(a)(2)) which are described in section 4946(a)(1)(H)) 
actually or constructively owns not more than 2 percent of the voting 
stock and not more than 2 percent in value of all outstanding shares of 
all classes of stock. If, however, the private foundation, together with 
all other private foundations which are described in section 
4946(a)(1)(H), actually or constructively owns more than 2 percent of 
either the voting stock or the value of the outstanding shares of all 
classes of stock in any incorporated business enterprise, all the stock 
in such business enterprise classified as excess business holding under 
section 4943 is treated as excess business holdings. For purposes of 
this paragraph, any stock owned by a private foundation which is treated 
as held by a disqualified person under section 4943(c)(4)(B), (5), or 
(6) shall be treated as actually owned by the private foundation. See 
paragraph (b)(1) of Sec.  53.4941(d)-4 for the determination of excess 
business holdings without regard to section 4943(c)(2)(C) for purposes 
of applying section 101(C)(2)(B) of the Tax Reform Act of 1969 (83 Stat. 
533).

[[Page 125]]

    (ii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. F, a private foundation, owns 1 percent of the single 
class of voting stock and 1 percent in value of all the outstanding 
shares of all classes of stock in X corporation. No other private 
foundation described in section 4946(a)(1)(H) owns any stock in X. All 
of the stock owned by F in X would be excess business holdings under 
section 4943 (c)(1) if section 4943(c)(2)(C) were inapplicable. F owns 
no no other shares of stock in X. Since F owns more than 2 percent of 
the voting stock and no more than 2 percent in value of all outstanding 
shares of all classes of stock in X, under section 4943(c)(2)(C) none of 
the stock in X owned by F is treated as excess business holdings.
    Example 2. Assume the facts as stated in Example (1), except that F 
and T, a controlled private foundation under section 4946 (a)(1)(H), 
together own 1 percent of all the voting stock and 1 percent in value of 
all the outstanding shares of all classes of stock in X. All of the 
stock in X owned by F and T would be excess business holdings under 
section 4943(c)(1) if section 4943(c)(2)(C) were inapplicable. Since F 
and T together owned no more than 2 percent of the voting stock and no 
more than 2 percent in value of all outstanding shares of all classes of 
stock in X, under section 4943(c)(2)(C) none of the stock in X owned by 
either F or T is treated as excess business holdings.
    Example 3. Assume the facts as stated in Example (1), except that F 
owns 3 percent of the voting stock in X, 2 percent of which is treated 
as held by P, a disqualified person of F, under section 4943(c)(4)(B). 
Under subdivision (i) of this subparagraph, the 2 percent of the stock 
in X owned by F which is treated as held by P under section 
4943(c)(4)(B) is treated as actually owned by F for purposes of section 
4943(c)(2)(C). Consequently, all of the X stock owned by F is treated as 
excess business holdings under section 4943(c)(2)(C). However, only 1 
percent of the stock in X is subject to tax under section 4943(a), since 
the other 2 percent is treated as owned by a disqualified person under 
section 4943(c)(4)(B) for purposes of determining the tax upon F under 
section 4943(a).

    (c) Permitted holdings in an unincorporated business enterprise--(1) 
In general. The permitted holdings of a private foundation in any 
business enterprise which is not incorporated shall, subject to the 
provisions of subparagraphs (2), (3), and (4) of this paragraph, be 
determined under the principles of paragraph (b) of this section.
    (2) Partnership or joint venture. In the case of a partnership 
(including a limited partnership) or joint venture, the terms ``profits 
interest'' and ``capital interest'' shall be substituted for ``voting 
stock'' and ``nonvoting stock,'' respectively, wherever those terms 
appear in paragraph (b) of this section. The interest in profits of such 
foundation (or such disqualified person) shall be determined in the same 
manner as its distributive share of partnership taxable income. See 
section 704(b) (relating to the determination of the distributive share 
by the income or loss ratio) and the regulations thereunder. In the 
absence of a provision in the partnership agreement, the capital 
interest of such foundation (or such disqualified person) in a 
partnership shall be determined on the basis of its interest in the 
assets of the partnership which would be distributable to such 
foundation (or such disqualified person) upon its withdrawal from the 
partnership, or upon liquidation of the partnership, whichever is the 
greater.
    (3) Sole proprietorship. For purposes of section 4943, a private 
foundation shall have no permitted holdings in a sole proprietorship. In 
the case of a transfer by a private foundation of a portion of a sole 
proprietorship, see paragraph (c)(2) of this section (relating to 
permitted holdings in partnerships). For the treatment of a private 
foundation's ownership of a sole proprietorship prior to May 26, 1969, 
see Sec.  53.4943-4.
    (4) Trusts and other unincorporated business enterprises--(i) In 
general. In the case of any unincorporated business enterprise which is 
not described in paragraph (c) (2) or (3) of this section, the term 
``beneficial interest'' shall be substitued for ``voting stock'' 
wherever the term appears in paragraph (b) of this section. Any and all 
references to nonvoting stock in paragraph (b) of this section shall be 
inapplicable with respect to any unincorporated business enterprise 
described in this subparagraph.
    (ii) Trusts. For purposes of section 4943, the beneficial interest 
of a private foundation or any disqualified person in a trust shall be 
the beneficial remainder interest of such foundation or person 
determined as provided in paragraph (b) of Sec.  53.4943-8.
    (iii) Other unincorporated business enterprises. For purposes of 
section 4943,

[[Page 126]]

the beneficial interest of a private foundation or any disqualified 
person in an unincorporated business enterprise (other than a trust or 
an enterprise described in paragraph (c) (2) or (3) of this section) 
includes any right to receive a portion of distributions of profits of 
such enterprise, and, if the portion of distributions is not fixed by an 
agreement among the participants, any right to receive a portion of the 
assets (if any) upon liquidation of the enterprise, except as a creditor 
or employee. For purposes of this subparagraph, a right to receive 
distributions of profits includes a right to receive any amount from 
such profits (other than as a creditor or employee), whether as a sum 
certain or as a portion of profits realized by the enterprise. Where 
there is no agreement fixing the rights of the participants in such 
enterprise, the interest of such foundation (or such disqualified 
person) in such enterprise shall be determined by dividing the amount of 
all equity investments or contributions to the capital of the enterprise 
made or obligated to be made by such foundation (or such disqualified 
person) by the amount of all equity investments or contributions to 
capital made or obligated to be made by all participants in the 
enterprise.
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. Corporation X has outstanding 100 shares of voting stock, 
with each share entitling the holder thereof to one vote. Assume that F, 
a private foundation, possesses 30 shares of X voting stock, and that A 
and B, the only disqualified persons with respect to F, together own 10 
shares of X voting stock. The excess business holdings of F in X are 20 
shares of X voting stock, determined as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(i) Determination of voting stock percentages
(a) Total number of outstanding votes in X..............             100
(b) Total number of votes in X held by F................              30
(c) Total number of votes in X held by A and B..........              10
(d) Percentage of voting stock in X held by F (item (b)               30
 divided by item (a)) (percent).........................
(e) Percentage of voting stock in X held by A and B                   10
 (item (c) divided by item (a)) (percent)...............
 
(ii) Determination of permitted holdings of voting stock
(a) Percentage of voting stock in X held by A and B                   10
 (percent)..............................................
(b) Permitted holdings of voting stock by F in X (20 pct              10
 less item (a)) (percent)...............................
 
(iii) Determination of excess business holdings
(a) Percentage of voting stock in X held by F (percent).              30
(b) Permitted holdings of voting stock by F in X                      10
 (percent)..............................................
(c) Item (a) less item (b) (percent)....................              20
(d) Excess business holdings of F in X (i.e., an amount               20
 of X voting stock representing a percentage of voting
 stock equivalent to that in item (c)) (shares).........
------------------------------------------------------------------------

    Example 2. F, a private foundation, is a partner in P partnership. 
In addition, A and B, the only disqualified persons with respect to F, 
are partners in P. The partnership agreement of P contains no provisions 
regarding the sharing of profits by, and the respective capital 
interests of, the partners.
    (i) assume that, under section 704(b), F's distributive share of P 
taxable income is determined to be 20 percent. In addition, assume that 
under such section, A and B are determined to have a 4-percent 
distributive share each of P taxable income. Accordingly, F holds a 20-
percent profits interest in P, and A and B hold an 8-percent profits 
interest in P. Assuming that the provisions of section 4943(c)(2)(B) do 
not apply, the permitted holdings of F in P are 12 percent of the 
profits interest in P, determined by subtracting the percentage of the 
profits interest held by A and B in P (i.e., 8 percent) from 20 percent. 
(20 percent-8 percent = 12 percent.) F, therefore, holds a percentage of 
the profits interest in P in excess of the percentage permitted by Sec.  
53.4943-3(b)(1). The excess business holdings of F in P are a percentage 
of the profits interest in P equivalent to such excess percentage, or 8 
percent of the profits interest in P, determined by subtracting the 
permitted holdings of F in P (i.e., 12 percent) from the percentage of 
the profit interest held by F in P (i.e., 20 percent) (20 percent-12 
percent = 8 percent.)
    (ii) Assume that, under the partnership agreement, F would be 
entitled to a distribution of 20 percent of P's assets upon F's 
withdrawal from P and to a distribution of 30 percent of P's assets upon 
the liquidation profits interest held by F in P (i.e., 20 percent) (20 
percent - 12 percent = 8 percent), of P. F, therefore, holds a 30-
percent capital percentage of the assets of P distributable to F upon 
F's withdrawal from P, or the percentage of

[[Page 127]]

such assets distributable to F upon the liquidation of P. Since the 
percentage of the profits interest held by A and B in P is less than 20 
percent, such 30-percent capital interest will be included in the 
permitted holdings of F in P.



Sec.  53.4943-4  Present holdings.

    (a) Introduction--(1) Section 4943 (c)(4) in general. (i) Paragraph 
(4) of section 4943(c) prescribes transition rules for a private 
foundation which, but for such paragraph, would have excess business 
holdings on May 26, 1969. Section 4943(c)(4) provides such a foundation 
with protection from the initial tax on excess business holdings in two 
ways. First, the entire interest of such a foundation in any business 
enterprise in which such a foundation, but for section 4943(c)(4), would 
have had excess business holdings on May 26, 1969, is treated under 
section 4943(c)(4)(B) as held by disqualified persons for a certain 
period of time (the ``first phase''). The effect of such treatment is to 
prevent a private foundation from being subject to the initial tax with 
respect to its May 26, 1969, interest during the first phase holding 
period and also to prevent the foundation from purchasing any additional 
business holdings in such business enterprise during such period (unless 
the combined holdings of the foundation and all disqualified persons 
fall below the 20 percent (or 35 percent, if applicable) figure 
prescribed by section 4943(c)(2)). Second, section 4943(c)(4)(A)(i) 
initially increases the percentage of permitted holdings of such a 
foundation to a percentage equal to the difference between:
    (A) The percentage of combined holdings of the foundation and all 
disqualified persons in such business enterprise on May 26, 1969 
(subject to a 50 percent maximum), and
    (B) The percentage of holdings of all disqualified persons.

The percentage referred to in paragraph (a)(1)(i)(A) of this section is 
referred to in this section as the ``substituted level''. This 
``substituted level'' is then reduced by the ``downward ratchet rule'' 
prescribed by section 4943(c)(4)(A)(ii) and paragraph (d)(3) of this 
section for certain dispositions by such foundation or by disqualified 
persons. The primary purpose of the substituted level is to indicate 
what the permitted holdings in such business enterprise will be 
immediately after the expiration of the first phase holding period. 
Thereafter, the permitted holdings of a private foundation itself are 
further limited to a maximum 25 percent interest in such business 
enterprise by section 4943(c)(4)(D) as soon as the combined holdings of 
all disqualified persons in such business enterprise exceed 2 percent 
(of the voting stock). If the combined holdings of all disqualified 
persons at no time exceed 2 percent (of the voting stock) during the 15 
years following the first phase (the ``second phase''), then the 
substituted level is reduced to a 35 percent maximum after the second 
phase.
    (ii) Paragraph (a)(1)(i) of this section may be illustrated by the 
following example:

    Example. On May 26, 1969, private foundation P held a 5 percent 
interest in corporation X (voting stock and value). On such date 
disqualified persons held a 16 percent interest in X (voting stock and 
value). Assume that except for section 4943(c)(4), P would have had a 1 
percent interest in X which would have consitituted excess business 
holdings. Therefore, section 4943(c)(4)(B) applies and P's 5 percent 
interest in X is treated as held by a disqualified person during the 10-
year period beginning May 26, 1969. Since the entire 21 percent held by 
P and disqualified persons is now treated as held by disqualified 
persons, P's substituted level is 21 percent and its permitted holdings 
are zero (21%-21%). However, P has no excess business holdings in X, 
because during the 10-year period P is not treated as holding such 
interest. The only change in the interest in X occurs on January 2, 
1972, when P disposes of 2 percent of its interest in X to A, an 
unrelated person. Since the interest held by P and all disqualified 
persons (21% - 2% = 19%) has decreased below 20 percent, P's substituted 
level is reduced to 20 percent and its permitted holdings are 1 percent 
(20%-19%) on such date. Therefore, if the other interests in X do not 
change, P will not have excess business holdings if P purchases no more 
than an additional 1 percent interest in X.

    (2) Interaction of provisions of section 4943(c) (4), (5), and (6). 
During the first phase, a private foundation may acquire additional 
interests in a business enterprise, other than by purchase, which are 
entitled to be treated as held by disqualified persons for varying 
holding periods under section 4943(c) (5)

[[Page 128]]

or (6) (relating respectively to certain holdings acquired pursuant to 
the terms of a trust or will in effect on May 26, 1969, and to the 5-
year period to dispose of certain gifts, bequests, etc.). In any case 
holdings which the private foundation disposes of shall be charged first 
against those holdings which it must dispose of in the shortest period 
in order to avoid the initial tax thereon. Further, acquisions of a 
private foundation under a pre-May 27, 1969, will or trust described in 
section 4943(3)(5) are treated in a manner similar to the treatment of 
interests actually held by a private foundation on May 26, 1969. See 
Sec. Sec.  53.4943-5 and 53.4943-6.
    (b) Present holdings in general. (1) Section 4943(c)(4)(B) provides 
that any interest in a business enterprise held by a private foundation 
on May 26, 1969, if the foundation on such date has excess business 
holdings (determined without regard to section 4943(c)(4)), shall (while 
held by the foundation) be treated as held by a disqualified person 
during a first phase. Therefore, no interest of a private foundation 
shall be treated as held by a disqualified person under section 
4943(c)(4)(B) and this section unless:
    (i) The private foundation was an entity (not including a revocable 
trust) in existence on May 26, 1969, even though it was not then treated 
as a private foundation under section 509 or section 4947;
    (ii) Such interest was actually or constructively owned by such 
entity on such date; and
    (iii) Without regard to section 4943(c)(4) such entitly had on such 
date an interest (considered in connection with the interests actually 
or constructively owned by all disqualified persons with respect to such 
entity on that date in the same business enterprise, determined as if 
the entity were then a private foundation) which exceeded the permitted 
holdings prescribed by section 4943(c) (2) or (3).

(See, however, section 4943(c)(5) and Sec.  53.4943-5 for similar 
treatment for certain interests acquired by a private foundation under 
the terms of a trust or a will which were in effect on May 26, 1969.) If 
a private foundation owns an interest described by section 
4943(c)(4)(B), then the length of the first phase for such an interest 
is prescribed by paragraph (c) of this section and shall not be affected 
by any interest acquired by the private foundation or any disqualified 
person in such business enterprise after May 26, 1969. In addition, the 
amount of permitted holdings in such business enterprise is prescribed 
by paragraph (d) of this section. An interest constructively held by a 
private foundation (or a disqualified person) on May 26, 1969, shall not 
cease to be an interest to which section 4943(c)(4) applies merely 
because it is later distributed to such foundation (or to such 
disqualified person). Nor shall an interest directly held by a private 
foundation (or to such disqualified person) on May 26, 1969, cease to be 
treated as an interest to which section 4943(c)(4) applies to the extent 
it remains actually or constructively held by such foundation (or such 
disqualified person) upon transfer of such interest, such as upon the 
incorporation of a sole proprietorship.
    (2) The provision of this paragraph may be illustrated by the 
following example:

    Example. A, a nonprofit research organization described in section 
501(c)(3), was organized in 1966. On May 26, 1969, A held 50 percent of 
the stock of corporation B. For its taxable years 1970, 1971, and 1972, 
A is classified as an organization described in section 509(a)(2). 
However, for 1973 and subsequent years, A fails to satisfy the gross 
investment income limitation of section 509(a)(2)(B), and is thus 
classified as a private foundation. In such a case, section 4943(c)(4) 
applies, and a disqualified person shall be treated as holding A's stock 
in B during a first phase that begins on May 26, 1969.

    (c) First Phase holding periods--(1) In general. If, on May 26, 
1969, a private foundation has excess business holdings in any business 
enterprise (determined with regard to the 20 or 35 percent permitted 
holdings of section 4943(c)(2)), then all interest which such foundation 
holds, actually or constructively, in such enterprise on May 26, 1969, 
shall (while held by such foundation) be deemed held by a disqualified 
person during the following periods:
    (i) The 20-year period beginning on May 26, 1969, if the private 
foundation holds, actually or constructively, more than 95 percent of 
the voting stock (or

[[Page 129]]

more than a 95 percent profits or beneficial interest in the case of an 
unincorporated enterprise) in such enterprise on such date;
    (ii) Except as provided in paragraph (c)(1)(i) of this section, the 
15-year period beginning on May 26, 1969, if the private foundation and 
all disqualified persons hold, actually or constructively on such date 
more than 75 percent of the voting stock (or more than a 75 percent 
profits or beneficial interest in the case of any unincorporated 
enterprise) or 75 percent of the value of all outstanding shares of all 
classes of stock in such enterprise (or more than a 75 percent profits 
and capital interest in the case of a partnership or joint venture); or
    (iii) The 10-year period beginning on May 26, 1969, in any case not 
described in paragraph (c)(1) (i) or (ii) of this section.

The 20-year, 15-year, or 10-year period described in this subdivision 
(whichever applies) shall, for purposes of section 4943 and this 
section, be known as the ``first phase.''
    (2) Sole proprietorships. The 20-year period described in paragraph 
(c)(1) of this section shall apply with respect to any interest which a 
private foundation holds in a sole proprietorship on May 26, 1969. See 
paragraph (b) of this section for the effect of converting such an 
enterprise to a corporate, partnership, or other form.
    (3) Suspension of first-phase periods. The 20-year, 15-year, or 10-
year period described in paragraph (c)(1) of this section shall be 
suspended during the dependency of any judicial proceeding which is 
brought and diligently litigated by the private foundation and which is 
necessary to reform, or to excuse the foundation from compliance with, 
its governing instrument or any other instrument (as in effect on May 
26, 1969) in order to allow disposition of any excess business holdings 
held by the foundation on May 26, 1969.
    (4) Election to shorten the period during which certain holdings of 
private foundations are treated as held by disqualified persons. If, on 
May 26, 1969, the combined holdings of a private foundation and all 
disqualified persons in any one business enterprise are such as to make 
applicable the 15-year period referred to in paragraph (c)(1)(ii) of 
this section, and if, on such date, the foundation's holdings do not 
exceed 95 percent of the voting stock in such enterprise, then such 15-
year period is shortened to the 10-year period referred to in paragraph 
(c)(1)(iii), if at any time before January 1, 1971, one or more 
individuals:
    (i) Who are substantial contributors (as described in section 
507(d)(2)), or members of the family within the meaning of section 
4946(d) of one or more substantial contributors, to such private 
foundation, and
    (ii) Who on May 26, 1969, held in the aggregate more than 15 percent 
of the voting stock in the enterprise, made an election in the manner 
described in 26 CFR 143.6 (rev. as of Apr. 1, 1974).
    (5) Examples. The provisions of this paragraph (c) may be 
illustrated by the following examples:

    Example 1. Assume that F, a private foundation, owns, on May 26, 
1969, 50 shares of voting stock in corporation X respresenting 50 
percent of the voting power in X and 25 percent of the value of all 
outstanding shares of all classes of stock in X. Assume further that A 
and B, the only disqualified persons with respect to F, own five shares 
each of voting stock in X on such date. The 10 shares of voting stock in 
X owned by A and B together represent 10 percent of the voting power in 
X and 5 percent of the value of all outstanding shares of all classes of 
stock in X. Under the provisions of Sec.  53.4943-3, the excess business 
holdings of F, in X (determined without regard to section 4943(c)(4)) as 
of such date are, therefore, 40 percent of X voting stock. Accordingly, 
since the combined holdings of F, A, and B in X are, on such date, less 
than 75 percent of the voting stock in X and less than 75 percent of the 
value of all outstanding shares of all classes of stock in X, under the 
provisions of section 4943(c)(4)(B)(iii), all holdings of F in X (i.e., 
50 percent of X voting stock) will be treated as held by a disqualified 
person through May 25, 1979.
    Example 2. Assume the facts as stated in Example (1), except that F, 
on December 15, 1969, purchases an additional 10 shares of voting stock 
in X representing 10 percent of X voting power. Assume, further, that 
there were no other transactions in the stock in X during 1969. While 
the 50 percent of X voting stock held by F on May 26, 1969, will be 
deemed held by a disqualified person through May 25, 1979, the 
additional 10 shares of X voting stock acquired by purchase by F on 
December 15, 1969, will no be deemed to be so held. Accordingly, since, 
under the provisions of Sec.  53.4943-3, such 10 shares represent

[[Page 130]]

excess business holding of F in X, such 10 shares will be subject to the 
imposition of tax under the provisions of section 4943(a).
    Example 3. Assume the facts as stated in Example (1), except that F, 
on December 15, 1971 acquires an additional 10 shares of voting stock in 
X (representing 10 percent of X voting power) under the terms of a will 
which was executed before May 26, 1969, to which section 4943(c)(5) 
applies. While the 50 percent of X voting stock held by F on May 26, 
1969, will be deemed held by a disqualified person through May 25, 1979, 
the additional 10 percent of X voting stock acquired by F on December 
15, 1971, will, under the provisions of section 4943(c)(5), be deemed 
held by a disqualified person through December 14, 1981. See Sec.  
53.4943-5.
    Example 4. Assume that F, a private foundation, owns on May 26, 
1969, 50 shares of voting stock in corporation Y representing 50 percent 
of the voting power in Y. Assume further that C and D, the only 
disqualified persons with respect to F, own on such date 15 shares each 
of Y voting stock and that the 30 shares of Y voting stock owned by C 
and D together represent 30 percent of the voting power in Y. Under the 
provisions of Sec.  53.4943-3 the excess business holdings of F in Y 
(determined without regard to section 4943(c)(4)) as of such date are, 
therefore, 50 percent of Y voting stock. Accordingly, since the combined 
holdings of F, C, and D in Y represent, on such date, more than 75 
percent of the voting stock in Y, under the provisions of section 
4943(c)(4)(B)(ii), all holdings of F in Y (i.e., 50 percent of Y voting 
stock will be treated as held by a disqualified person through May 25, 
1984.
    Example 5. M, a private foundation, owns on May 26, 1969, sole 
proprietorship S. Since, under the provisions of Sec.  53.5954-3, M's 
ownership of S constitutes excess business holdings (determined without 
regard to section 4943(c)(4) as of May 26, 1969, and since M's interest 
in S is greater than 95 percent on such date, under the provisions of 
this paragraph a disqualified person will be treated as the owner of S 
for the 20-year period beginning on such date. If S is later 
incorporated, that percentage of the interest in S retained by M, even 
though less than a 95-percent interest, shall continue to be treated as 
held by a disqualified person through May 25, 1989.
    Example 6. A and B, individuals, together own on May 26, 1969, 40 
shares of voting stock in corporation X representing 40 percent of the 
voting power in X and 20 percent of the value of all outstanding shares 
of all classes of stock in X. A and B are both disqualified persons with 
respect to F, a private foundation, which owns no stock in X on May 26, 
1969. On January 1, 1973, A and B donate the 40 shares of X voting stock 
held by them to F. Since F had no excess business holdings on May 26, 
1969, section 4943(c)(4) does not apply. See however, section 4943(c)(6) 
and Sec.  53.4943-6.
    Example 7. Assume the facts as stated in Example (6), except that F, 
on May 26, 1969, owns 50 shares of voting stock in X, representing 50 
percent of the voting power in X and 25 percent of the value of all 
outstanding shares of all classes of stock in X. Under the provisions of 
this paragraph, the 50 shares of X voting stock held by F on May 26, 
1969 shall be treated in accordance with the provisions of section 
4943(c)(4), while the 40 shares of X voting stock acquired by F on 
January 1, 1973 shall be treated in accordance with the provisions of 
section 4943(c)(6). See Sec.  53.4943-6.

    (d) Permitted holdings under section 4943(c)(4)--(1) In general. The 
permitted holdings of a private foundation to which section 4943 (c)(4) 
applies in a business enterprise shall be as follows:
    (i) The excess of the substituted combined voting level over the 
disqualified person voting level, and separately,
    (ii) The excess of the substituted combined value level over the 
disqualified person value level.
    (2) Definitions. For purposes of paragraph (d) of this section:
    (i) The term disqualified person voting level on any given date 
means the percentage of voting stock held by all disqualified persons 
together on such date (including stock deemed held by such a person by 
reason of section 4943(c)(4), (5), or (6)).
    (ii) The term disqualified person value level on any given date 
means the percentage of the total value of all outstanding shares of all 
classes of stock in a business enterprise held by all disqualified 
persons together on such date (including stock deemed held by such a 
person by reason of section 4943(c)(4), (5), or (6)).
    (iii) The term foundation voting level prior to the second phase is 
equal to zero. After the first phase, such term on any given date means 
the lowest percentage of voting stock held by a private foundation 
(without regard to section 4943(c)(4)(B)) in a business enterprise on 
May 26, 1969, and at all times thereafter up to such date. See section 
4943(c)(5) and Sec.  53.4943-5 for the effect of the interests acquired 
pursuant to the terms of certain wills or trusts in effect on May 26, 
1969.
    (iv) The term foundation value level prior to the second phase is 
equal to zero. After the first phase, such term

[[Page 131]]

on any given date means the lowest percentage of the total value of all 
outstanding shares of all classes of stock held by a private foundation 
(without regard to section 4943(c)(4)(B)) in a business enterprise on 
May 26, 1969, and at all times thereafter up to such date. See section 
4943(c)(5) and Sec.  53.4943-5 for the effect of interests acquired 
pursuant to the terms of certain wills or trusts in effect on May 26, 
1969.
    (v) The term substituted combined voting level means the lowest 
percentage to which the sum of the foundation voting level plus the 
disqualified person voting level has been reduced since May 26, 1969, by 
paragraph (d)(4) of this section to the following modifications (the 
``downward ratchet rule''), subject;
    (A) In no event shall such substituted level exceed 50 percent; and
    (B) Such substituted level shall be increased (but not above 50 
percent) in accordance with section 4943(c)(5) and Sec.  53.4943-5 for 
certain interests acquired by such foundation pursuant to the terms of a 
will or trust in effect on May 26, 1969.
    (vi) The term substituted combined value level means the lowest 
percentage to which the sum of the foundation value level plus the 
disqualified person value level has been reduced since May 26, 1969, by 
paragraph (d)(4) of this section (the ``downward ratchet rule''), 
subject to the following modifications:
    (A) In no event shall such substituted level exceed 50 percent; and
    (B) Such substituted level shall be increased (but not above 50 
percent) in accordance with section 4943(c)(5) and Sec.  53.4943-5 for 
certain interests acquired by such foundation pursuant to the terms of a 
will or trust in effect on May 26, 1969.
    (vii) In the case of an interest in a partnership or joint venture, 
definitions (i) through (iv) of this subparagraph shall be applied by 
substituting ``profit interests'' for ``voting stock'' and ``all 
partnership interests'' for ``all outstanding shares of all classes of 
stock.''
    (viii) In the case of an interest in a business enterprise other 
than a corporation, partnership or joint venture, definitions (i) 
through (iv) of this subparagraph shall be applied by substituting 
``beneficial remainder interests'' for ``voting stock'' and ``all 
beneficial remainder interests'' and ``all outstanding shares of all 
classes of stock.''
    (ix) Each level defined in paragraph (d)(2)(iii), (iv) and (v) and 
(vi) as of any date shall be carried over to the subsequent date subject 
to any adjustments prescribed for such level.
    (3) Permitted holdings--First phase. Since during the first phase 
the substituted combined voting level generally does not exceed the 
disqualified person voting level, and the substituted combined value 
level generally does not exceed the disqualified person value level, the 
permitted holdings during the first phase are generally equal to zero. 
The permitted holdings during the first phase exceed zero only where the 
20 percent (or 35 percent) limitation on the downward ratchet rule 
contained in paragraph (d)(4)(ii)(B) of this section applies.
    (4) Downward ratchet rule--(i) In general. Except as provided in 
paragraph (d)(4)(ii) of this section and section 4943(c)(5):
    (A) Scope of rule. In general, when the percentage of the holdings 
in a business enterprise held by a private foundation and all 
disqualified persons together to which section 4943(c)(4) applies 
decreases, or when the percentage of the holdings of the private 
foundation alone in such business enterprise decreases, such holdings 
may not be increased (except as provided under section 4943(c) (5) or 
(6)). This so-called ``downward ratchet rule'' is designed to prevent 
the private foundation from purchasing additional holdings in the 
business enterprise until the substituted combined voting level reduced 
to the 20-percent (or 35 percent) figure prescribed by section 
4943(c)(2).
    (B) Levels affected. Under the downward ratchet rule any decrease 
after May 26, 1969, in the percentage of holdings comprising either the 
substituted combined voting level, the substituted combined value level, 
the foundation voting level or the foundation value level shall cause 
the respective level to be decreased to such decreased percentage for 
purposes of determining the foundation's permitted holdings.

[[Page 132]]

    (C) Implementation of reductions. Thus, if at any time the sum of 
the foundation voting level and the disqualified peson voting level is 
less than the immediately preceding substituted combined voting level, 
the substituted level shall be decreased so that it equals such sum. For 
example, if on May 26, 1969, a foundation and all disqualified persons 
together have holdings in a business enterprise equal to 50 percent, on 
such date the substituted combined voting level and the disqualified 
person voting level equal 50 percent (since such holdings of the 
foundation are treated as held by a disqualified person). If the private 
foundation or a disqualified person on May 27, 1969, sold 2 percent of 
such holdings to a nondisqualified person, the disqualified person 
voting level would be decreased to 48 percent (50%-2%), causing the 
substituted combined voting level to be decreased to 48 percent. As a 
further example, assume that on May 26, 1969, a foundation and all 
disqualified persons together have holdings in a business enterprise 
equal to 50 percent, and when the first phase expires on May 26, 1979, 
the substituted combined voting level is still 50 percent, the 
foundation voting level is 10 percent, and the disqualified person 
voting level is 40 percent. If a disqualified person there- after sells 
2 percent to a nondisqualified person so that the sum of the 
disqualified person voting level (40% - 2% = 38%) and the foundation 
voting level (10%) equals 48 percent (38% + 10%), then the substituted 
combined voting level is decreased to 48 percent. Similarly, if at any 
time the sum of the foundation value level and the disqualified person 
value level is less than the immediately preceding substituted combined 
value level, the substituted combined value level shall be decreased so 
that it equals such sum.
    (D) Restrictions on increases in levels. In addition, none of the 
four levels referred to in paragraph (d)(4)(i)(B) of this section may be 
adjusted upward to reflect any increase in the holdings comprising such 
level, except as provided in section 4943(c)(5) and Sec.  53.4943-5. As 
a result, any transfer of May 26, 1969, holdings from a disqualified 
person to a private foundation shall not increase the foundation voting 
level or the foundation value level (unless the transfer qualifies under 
section 4943(c)(5)), and thus may reduce the substituted combined value 
level (and where appropriate, the substituted combined voting level). 
Thus, in the last preceding example, if the disqualified person, instead 
of selling the 2 percent interest to a nondisqualified person, had sold 
such interest to the foundation, the substituted combined voting level 
would still be reduced to 48 percent, since the disqualified person 
voting level would be reduced by 2 percent (to 38%) but the foundation 
voting level would not be increased by 2 percent (remaining at 10%). 
However, any transfer of May 26, 1969, holdings from a private 
foundation to a disqualified person under section 101(1)(2)(B) of the 
Tax Reform Act of 1969, shall reduce the foundation value level (and, 
where appropriate, the foundation voting level), but will not reduce the 
substituted combined value level or the subsituted combined voting 
level. The disqualified person voting level and disqualified person 
value level are correspondingly increased, not being limited to interest 
held since May 26, 1969. In addition, a transfer of May 26, 1969, 
holdings from one disqualified person to another, for example, by 
bequest, shall not reduce the substituted combined voting level nor the 
substituted combined value level.
    (ii) Exceptions--(A) One percent de minimis rule. If after May 26, 
1969, there are one or more decreases in the holdings comprising any of 
the four levels referred to in paragraph (d)(4)(i)(B) of this section 
during any taxable year of a private foundation, and if such decreases 
are attributable to issuances of stock (or such issuances coupled with 
redemptions), then, unless the aggregate of such decreases equals or 
exceeds 1 percent, the determination of whether there is a decrease in 
such level for purposes of this paragraph (d)(4) shall be made only at 
the close of such taxable year. If, however, the aggregate of such 
decreases equals or exceeds 1 percent, such level shall be decreased at 
that time as if the previous sentence has never applied.
    (B) Twenty percent (or 35 percent) floor. In no event shall the 
downward rachet rule contained in paragraph (d)(4)(i) of

[[Page 133]]

this section decrease the substituted combined voting level or the 
substituted combined value level below 20 percent, or, for purposes of 
section 4943(c)(2)(B), below 35 percent.
    (iii) Special rules--(A) Change of foundation managers. In the case 
of a foundation manager (as defined in section 4946(b)) who on May 26, 
1969, owns holdings in a business enterprise and who is replaced by 
another foundation manager, the decrease in the substituted combined 
voting or value levels shall be limited to the excess, if any, of the 
departing foundation manager's holdings over his successor's holdings.
    (B) Termination of private foundation status under section 507. If 
an organization gives the notification described in section 
507(b)(1)(B)(ii) of the commencement of a 60-month termination period 
and fails to meet the requirements of section 509(a)(1), (2) or (3) for 
the entire period, then such organization will be treated as a private 
foundation during the entire 60-month period for purposes of this 
paragraph (d)(4) and section 4946(a)(1)(H). For example, X, a private 
foundation gives notification of the commencement of a 60-month 
termination commencing on January 1, 1972. X and Y, another private 
foundation, are effectively controlled by the same persons within the 
meaning of section 4946(a)(1)(H). X and Y hold 25 percent each of the 
voting stock of Z corporation on May 26, 1969, so that the substituted 
combined voting level for X or Y is 50 percent on such date. If X meets 
the requirements of section 509(a) (1), (2), or (3) for the entire 60-
month period, section 4946(a)(1)(H) is inapplicable to X, and, under the 
downward ratchet rule, the substituted combined voting level for Y is 
decreased by 25 percent. On the other hand, if X meets the requirements 
of section 509(a)(2) for its taxable years 1972 and 1973, but fails to 
meet the requirements of section 509(a)(1), (2), or (3) in 1974, 1975, 
and 1976, then solely for purposes of section 4943(c)(4)(A)(ii) and this 
paragraph (d)(4), X will be treated as a disqualified person with 
respect to Y, and Y will be treated as a disqualified person with 
respect to X, for taxable years 1972 through 1976 pursuant to section 
4946(a)(1)(H). Thus, for purposes of section 4943(c)(4)(A)(ii) the 
substituted combined voting level for X or Y will not be decreased by 
reason of the fact that X was attempting to terminate under section 
507(b)(1)(B), and assuming no other transportations, such level; will 
remain at 50 percent.
    (iv) Examples. The provisions of this paragraph (d)(4) may be 
illustrated by the following examples:

    Example 1. F, a private foundation, owns on May 26, 1969, 50 shares 
of voting stock in corporation X representing to 50 percent of the 
voting stock in X and 25 percent of the value of all outstanding shares 
of all classes of stock in X. A and B, the only disqualified persons 
with respect to F, together own, on such date, 2 shares of voting stock 
in X representing 2 percent of the voting shock in X and 1 percent of 
the value of all outstanding shares of all classes of stock in X. In 
addition, on such date, F owns 30 shares of nonvoting stock in X, 
representing 30 percent of the value of all outstanding shares of all 
classes of stock in X, and A and B together own 15 shares of nonvoting 
stock in X representing 15 percent of the value of all outstanding 
shares of classes of stock in X. The provisions of section 
4943(c)(4)(B)(iii) apply and during the 10-year period beginning on May 
26, 1969, a disqualified person is deemed to hold all interests of F in 
X. Assume that on February 1, 1972, F sells to C, unrelated in 
individual, 12 shares of voting stock in X representing 12 percent of 
the voting stock in X and 6 percent of the value of all outstanding 
shares of all classes of stock in X.
    (i) Beginning on May 26, 1969, the disqualified person voting level 
is 52 percent, the foundation voting level is zero, and the substituted 
combined voting level is 50 percent; the disqualified person value level 
is 71 percent, the foundation value level is zero, and the substituted 
combined value level is 50 percent.
    (ii) Beginning on February 1, 1972, the disqualified person voting 
level is 40 percent (52%-12%), the foundation voting level is zero, and 
the substituted combined voting level is 40 percent; the disqualified 
person value level is 65 percent (71%-6%), the foundation value level is 
zero and the substituted combined value level is 50 percent.
    Example 2. F, a private foundation on the calendar year basis, 
holds, on May 26, 1969, 30 percent of the voting stock in corporation Y. 
C and D, the only disqualified persons with respect to F, together hold, 
on such date, 10 percent of the voting stock in Y. The provisions of 
section 4943(c)(4)(B)(iii) apply with respect to F, and disqualified 
persons are deemed to hold all interests of F in Y for the 10-year 
period beginning on May 26, 1969, so that the substituted combined 
voting level as of such date is 40 percent. On February 1,

[[Page 134]]

1973, a stock issuance by Y causes the combined holdings of voting power 
by F, C, and D in Y to decrease by 0.3 percent. on June 1, 1973, another 
such issuance causes such combined holdings to decrease by 0.5 percent. 
In September 1, 1973, an unrelated stock redemption by Y causes such 
combined holdings to increase by 0.4 percent. Under this paragraph the 
determination whether there is a decrease in the substituted combined 
voting level for purposes of the downward ratchet rule shall not be made 
before January 1, 1974, since the aggregate of the decreases occurring 
on February 1 and June 1 of 1973 is less than 1 percent (0.3% + 0.5%). 
Therefore, the substituted combined voting level as of January 1, 1974, 
is 39.6 percent (40%-[(0.3% + 0.5%)-0.4%].)
    Example 3. Assume the facts as stated in Example (2), except that, 
on October 1, 1973, a stock issuance by Y causes the combined holdings 
of voting power by F, C, and D in Y to decrease by 0.3 percent. Since 
the aggregate of the decreases occurring on February 1, June 1, and 
October 1 of 1973 exceeds 1 percent, the determination whether there is 
a decrease in the substituted combined voting level shall be made as of 
October 1, 1973. At that time the substituted combined voting level 
shall be reduced to 39.2 percent (40%-0.3%-0.5%), the lowest actual 
combined holdings during the period that the de minimis rule was in 
effect.

    (5) Permitted holdings--Second phase--(i) In general. For purposes 
of section 4943 and this section, the term ``second phase'' means the 
15-year period immediately following the first phase. Upon the 
expiration of the first phase with respect to an interest to which 
section 4943(c)(4) applies, such interest shall no longer be treated as 
held by a disqualified person under section 4943(c)(4)(B). During the 
second phase, the manner of determining the permitted holdings of a 
private foundation to which section 4943(c)(4) applies shall be the same 
as applicable to the first phase, except that a 25 percent maximum shall 
apply under certain conditions specified in paragraph (d)(5)(ii) of this 
section. For these purposes the substituted combined voting level and 
the substituted combined value level in effect for the foundation at the 
end of the first phase shall be carried over to the second phase. The 
substituted levels are carried over because although there is a decrease 
in the disqualified person levels (since holdings are no longer treated 
as held by disqualified persons under section 4943(c)(4)(B)), a 
corresponding increase in the foundation levels occurs. For example, if 
a private foundation on May 26, 1969, held 10 percent of the voting 
stock in a corporation and disqualified persons held 40 percent of the 
voting stock, both the disqualified person voting level and the 
substituted combined voting level equal 50 percent (10% + 40%). Assuming 
no transactions during the first phase, on May 26, 1979, the 
disqualified person voting level would be decreased to 40 percent (50%-
10%), but the foundation voting level would be increased to 10 percent 
so that the substituted combined voting level would remain at 50 
percent. In addition, the downward ratchet rule of paragraph (d)(4) of 
this section shall continue to apply, to prevent the foundation and 
disqualified persons from purchasing any additional interest in the same 
enterprise until the substituted combined voting level decreases below 
20 percent.
    (ii) 25 percent maximum on foundation holdings. If, or as soon as, 
the disqualified person voting level exceeds 2 percent after the 
expiration of the first phase, the permitted holdings shall not 
thereafter exceed 25 percent of the voting stock or 25 percent of the 
value of all outstanding shares of all classes of stock, even though the 
holdings of the foundation and all disqualified persons combined do not 
exceed the substituted level. Solely for purposes of determining whether 
the 25 percent limitation of this subdivision (ii) applies, the 
disqualified person voting level shall not be treated as exceeding 2 
percent solely as a result of the holdings of a private foundation which 
are treated as held by a disqualified person by reason of section 
4943(c) (5) or (6). For example, where under the constructive ownership 
rules for trusts in Sec.  53.4943-8(b), a private foundation is deemed 
to own more than 2 percent of the voting stock of a business enterprise 
but such stock is treated as held by a disqualified person under section 
4943(c)(5), the determination of the substituted percentage for 
permitted holdings in the second phase will be as if the foundation 
owned the stock held by the trust. Similarly, where a private foundation 
is the only remainder beneficiary of a trust that is a disqualified 
person

[[Page 135]]

under section 4946(a)(1)(H), the disqualified person voting level shall 
not be treated as exceeding 2 percent solely as a result of the holdings 
of such a trust.
    (6) Permitted holdings--Third phase. For purposes of section 4943 
and this section, the term ``third phase'' means the entire period 
following the second phase. During the third phase the manner of 
determining the permitted holdings of a private foundation to which 
section 4943(c)(4) applies shall be the same as applicable to the second 
phase under paragraph (d)(5) of this section (including the carryover of 
levels from the earlier phase). However, if the 25 percent limit of 
paragraph (d)(5)(ii) of this section never applied during the second 
phase, the substituted combined voting level and the substituted 
combined value level each shall not exceed 35 percent during the third 
phase.
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. F, a private foundation, owns on May 26, 1969, 30 shares 
of voting stock in corporation Z representing 30 percent of the voting 
power in Z and 15 percent of the value of all outstanding shares of all 
classes of stock in Z, and owns, on such date, 10 shares of nonvoting 
stock in Z representing 10 percent of the value of all outstanding 
shares of all classes of stock in Z. E and G, the only disqualified 
persons with respect to F, own, on such date, 5 shares each of nonvoting 
stock in Z. The 10 shares of nonvoting stock in Z owned by E and G 
together represent 10 percent of the value of all outstanding shares of 
all classes of stock in Z. Assume further that F cannot meet the 
requirements for the 35 percent test of section 4943(c)(2)(B). For 
purposes of applying section 4943(c)(4)(B) and this paragraph, F has 
excess business holdings in Z (determined without regard to section 
4943(c)(4)), because under section 4943(c)(2)(A) F's permitted holdings 
are 20 percent (20%-0%) of the voting stock since disqualified persons 
have no holdings of voting stock. Therefore, section 4943(c)(4)(B) and 
this paragraph apply, and a disqualified person is treated as holding 
F's shares of both voting and nonvoting stock in Z for the 10-year 
period through May 25, 1979. Thus, since all holdings by F in Z are 
treated as held by a disqualified person during the first phase, F 
cannot be subject to tax under section 4943(a) on its May 26, 1969, 
holdings prior to the termination of the first phase, regardless of 
whether or not disqualified persons purchase additional shares of Z 
during the first phase.
    Example 2. Assume the same facts as in Example (1), and further 
assume that there were no transactions in the stock of Z during the 
first phase (May 26, 1969 through May 25, 1979). During the first phase 
the permitted holdings by F in Z for both the voting stock and the value 
is zero. The disqualified person voting level and the substituted 
combined voting level are each 30 percent, and the disqualified person 
value level and the substituted combined value level are each 35 percent 
(15% + 10% + 10%). The substituted levels are carried over into the 
second phase. The disqualified person voting level on May 26, 1979, the 
beginning of the second phase, is zero, because the voting shares held 
by F are no longer treated as held by a disqualified person. Therefore, 
F's permitted holdings on such date are 30 percent of the voting stock, 
because such percentage is equal to the excess of the substituted 
combined voting level (30%) over the disqualified person voting level 
(0%). The disqualified person value level on May 26, 1979, is 10 
percent, because the voting and nonvoting shares held by F are no longer 
treated as held by a disqualified person. Therefore, F's permitted 
holdings on such date are 25 percent of the value of Z stock, because 
such percentage is equal to the excess of the substituted combined value 
level (35%) over the disqualified person value level (10%) as of such 
date.
    Example 3. Assume the facts as stated in Example (2), except that E 
and G acquire, on February 1, 1970, 10 shares of Z voting stock 
representing 10 percent of the voting power in Z and 5 percent of the 
value of all outstanding shares of all classes of stock in Z. During the 
first phase such permitted holdings remain zero, and prior to May 25, 
1979, the substituted combined voting level and substituted combined 
value level remain 30 and 35 percent, respectively, because such levels 
may not be increased by acquisitions by disqualified persons. However, 
the disqualified person voting level and the disqualified person value 
level are each increased to 40 percent (30% + 10%) and 40 percent (35% + 
5%) respectively. During the first phase the excess of the disqualified 
person voting level over the substituted combined voting level (40%-30%) 
and the excess of the disqualified person value level over the 
substituted combined value level (40%-35%) indicate how much stock F 
must dispose of during the first phase to avoid the initial tax when it 
expires. On May 25, 1979, the last day of the first phase, F disposes of 
12 shares of Z voting stock, representing 12 percent of the voting power 
in Z and 6 percent of the value of all such outstanding shares. The 
disposition by F reduces the interest F owns to 18 percent (30%-12%) of 
the voting power, and 19 percent (25%-6%) of the value of all 
outstanding shares of all classes of stock, in Z. Since the disqualified 
person voting level decreases to 28 percent

[[Page 136]]

(40%-12%), the substituted combined voting level as of May 25, 1979, 
accordingly is decreased to 28 percent under the downward ratchet rule. 
Similarly, the substituted combined value level is decreased to 34 
percent, as the disqualified person value level as of such date is 34 
percent (40%-6%). On May 26, 1979, the disqualified person voting level 
is 10 percent (28%-18%), and the disqualified person value level is 15 
percent (34%-19%), since the shares owned by F are no longer treated as 
held by a disqualified person as of such date. Accordingly, on May 26, 
1979, the permitted holdings by F and Z are 18 percent of the voting 
power in Z, because such percentage is equal to the excess of the 
substituted combined voting level (28%) over the disqualified person 
voting level (10%) as of such date. Similarly, the permitted holdings of 
F in Z by value are 19 percent (34%-15%). If F had not disposed of the 
12 shares, then on May 26, 1979, F's permitted holdings in voting power 
and value would be 20 percent (30%-10%) and 20 percent (35%-15%), 
respectively.
    Example 4. F, a private foundation, owns on May 26, 1969, 35 shares 
of voting stock in corporation Y representing 35 percent of the voting 
stock in Y and 17.5 percent of the value of all classes of stock in Y, 
and owns on such date 45 shares of nonvoting stock representing 22.5 
percent of the value of all outstanding shares of all classes of stock 
in Y. No disqualified person with respect to F owns, on such date, any 
stock in Y. Assume further that Y cannot meet the requirements of the 35 
percent test of section 4943(c)(2)(B). For purposes of applying section 
4943(c)(4)(B) and this paragraph, F has excess business holdings in Y 
(determined without regard to section 4943(c)(4)), because under section 
4943(c)(2)(A) F's permitted holdings are 20 percent (20%-0%) of the 
voting stock since disqualified persons have no holdings of voting 
stock. Therefore, section 4943(c)(4)(B) and this paragraph apply, and a 
disqualified person is treated as holding F's shares of both voting and 
nonvoting stock in Y for the 10-year period through May 25, 1979. During 
the first phase the permitted holdings by F in Y of both the voting 
stock and of value are zero. The disqualified person voting level and 
the substituted combined voting level are each 35 percent, and the 
disqualified person value level and the substituted combined value level 
are each 40 percent (17.5% + 22.5%). The substituted levels are carried 
over into the second phase. The disqualified person voting level and 
value level on May 26, 1979, are both zero, because the shares held by F 
are no longer treated as held by a disqualified person. Therefore, F's 
permitted holdings on such date are 35 percent of the voting power (35%-
0%) and 40 percent of the value (40%-0%). Assume that on February 1, 
1981, A, a disqualified person, acquires 6 percent of the voting stock 
in Y representing 3 percent of the value of all outstanding shares of 
all classes of stock in Y. The permitted holdings by F in Z on February 
1, 1981, are thus reduced to 25 percent of the voting stock (the lesser 
of the separate 25% second phase limitation or 29% (35% substituted 
combined voting level minus 6% disqualified person voting level)) and 25 
percent of the value (the lesser of the separate 25% second phase 
limitation or 37% (40% substituted combined value level minus 3% 
disqualified person value level)). But see paragraph (d)(8) of this 
section for limitations on restrictions with respect to nonvoting stock.
    Example 5. Assume the same facts as in Example (4) except that A 
does not acquire the 6 shares of voting stock until February 1, 1996 (in 
the third phase), rather than on February 1, 1981. Thus, F's permitted 
holdings in Y would remain at 35 percent of the voting stock and 40 
percent of the value during the second phase, which expired on May 25, 
1994. Assume that on May 25, 1994, the last day of the second phase, F 
disposes of 10 shares of nonvoting stock representing 5 percent of the 
value of all outstanding shares in Y to meet the 35 percent third phase 
limit. In accordance with the downward ratchet rule, the substituted 
combined value level and F's permitted holdings in Y would be reduced to 
35 percent of value. On February 1, 1996, F's permitted holdings in Y 
would be reduced to 25 percent of the voting stock (the lesser of the 
separate 25% third phase limitation or 29% (35% substituted combined 
voting level minus 6% disqualified person level)) and 25 percent of the 
value (the lesser of the separate 25% third phase limitation or 32% (35% 
substituted combined value level minus 3% disqualified person value 
level)). But see paragraph (d)(8) of this section for limitations on 
restrictions with respect to nonvoting stock.

    (8) Special rule where all holdings are permitted under section 
4943(c)(2). (i) Since section 4943(c)(4) and this paragraph provide 
transitional rules for foundations which would otherwise have had excess 
business holdings on May 26, 1969, no holdings shall cease to be 
permitted holdings under this paragraph where such holdings would be 
permitted holdings under section 4943(c)(2) and Sec.  53.4943-3. Thus, 
for example, where the substituted combined voting level had been 
reduced to 20 percent, the provisions of Sec.  53.4943-3(b)(2) 
concerning nonvoting stock as permitted holdings generally apply.
    (ii) The provisions of this paragraph (d)(8) may be illustrated by 
the following example:


[[Page 137]]


    Example. (A) F, a private foundation, owns, on May 26, 1969, 40 
shares of voting stock in corporation X representing 40 percent of the 
voting stock in X and 20 percent of the value of all outstanding shares 
of all classes of stock in X, and owns, on such date, 60 shares of 
nonvoting stock in X, representing 30 percent of the value of all 
outstanding shares of all classes of stock in X. A, the only 
disqualified person with respect to F, owns, on such date, 10 shares of 
voting stock in X, representing 10 percent of the voting stock in X and 
5 percent of the value of all outstanding shares of all classes of stock 
in X. Under section 4943(c)(4)(B)(iii), a disqualified person is deemed 
the owner of all holdings by F in X for the 10-year period beginning on 
May 26, 1969.
    (B) Assume that the only transaction in X stock during the first 
phase is the disposition of 30 shares of voting stock by F on May 1, 
1975. The voting stock held by F is permitted holdings under Sec.  
53.4943-3 and under such section since all disqualified persons together 
do not own more than 20 percent of the voting stock in X, all nonvoting 
stock held by F shall also be treated as permitted holdings. Therefore, 
all the stock held by F is permitted holdings.
    (C) Assume that on May 1, 1975, F had disposed of only 15 shares of 
voting stock and also had disposed of 35 shares of nonvoting stock. On 
May 26, 1979, at the beginning of the second phase, this paragraph 
(d)(8) would not apply since F would have excess business holdings under 
Sec.  53.4943-3. Under the provisions of this section, the permitted 
holdings by F in X on such date are 25 percent of the voting stock (35% 
substituted combined voting level minus 10% disqualified person voting 
level) and 25 percent of the value (30% substituted combined value level 
minus 5% disqualified person value level).

    (9) Special rule for certain private foundations. In the case of a 
private foundation:
    (i) Which was incorporated before January 1, 1951.
    (ii) Substantially all of the assets of which on May 26, 1969, 
consisted of more than 90 percent of the stock of an incorporated 
business enterprise which is licensed and regulated, the sales or 
contracts of which are regulated, and the professional representatives 
of which are licensed, by State regulatory agencies in at least 10 
States;
    (iii) Which acquired such stock solely by gift, devise, or bequest;
    (iv) Which does not purchase any stock or other interest in such 
enterprise after May 26, 1969, and does not acquire any stock or other 
interest in any other business enterprise which constitutes excess 
business holdings under Sec.  53.4943-3; and
    (v) Which, in the last 5 taxable years ending on or before December 
31, 1970, expended substantially all of its adjusted net income (as 
defined in section 4942(f)) for the purpose or function for which it is 
organized and operated;

paragraph (d) (1) through (5) of this section (permitted holdings during 
the first and second phase) shall be applied with respect to the 
holdings of such foundation in such incorporated business enterprise by 
substituting ``51 percent'' for ``50 percent,'' and section 
4943(c)(4)(D) (third phase) shall not apply with respect to such 
holdings. For purposes of the preceding sentence, stock of such 
enterprise in a trust created before May 27, 1969, of which the 
foundation is the remainder beneficiary shall be deemed to be held by 
such foundation on May 26, 1969, if such foundation held (without regard 
to such trust) more than 20 percent of the stock of such enterprise on 
May 26, 1969.
    (10) Special rule for changes in the relative values of stock of 
different classes. (i) In the case of a corporation that has more than 
one class of stock outstanding, if the percentage of value held by the 
private foundation, its disqualified persons, or both, increases over a 
period of time solely as a result of changes in the relative values of 
the stock of different classes, then the foundation value level, the 
disqualified person value level, and the substituted combined value 
level, as defined in paragraph (d)(2) of this section, shall be adjusted 
to reflect such increase. An increase in the percentage of value held 
shall not be considered to have occurred solely as a result of changes 
in the relative values of the stock of different classes if:
    (A) There has been any increase during the period in the percentage 
of any class of stock held by the private foundation, its disqualified 
persons, or both, or
    (B) There has been any issuance, redemption, or purchase by the 
issuing corporation of any stock during the period.

See Sec.  53.4943-6(d) for rules relating to increases caused by 
readjustments.

[[Page 138]]

    (ii) Example. The provisions of this paragraph (b)(10) may be 
illustrated by the following example:

    Example. (i) At all times since May 26, 1969, F, a private 
foundation, has held 25% (500,000 shares) of the outstanding class of 
voting stock of X corporation. No disqualified person with respect to F 
holds any voting stock of X. In addition X has had outstanding since May 
26, 1969, a class of non-voting preferred stock, none of which is held 
by F or a disqualified person. X is an active business corporation and 
third parties do not have effective control of X. On May 26, 1969, the 
voting stock (2 million shares outstanding) was trading for $5 a share 
on the New York Stock Exchange. The non-voting preferred stock, not 
publicly traded, was valued at $1 million. The total value of all 
outstanding stock was $11 million ($10 million voting stock plus $1 
million non-voting preferred). On May 26, 1969, F held 22.73% of the 
value of X's outstanding stock ($2.5 million/$11 million).
    (ii) On October 31, 1982, X's voting stock is trading for $20 a 
share and the nonvoting stock is valued at $3 million. At all times 
during the period May 26, 1969, through October 31, 1982, F has held 25 
percent of the voting stock and none of the nonvoting stock of X. No 
stock of X is owned by disqualified persons. No stock of X has been 
issued, redeemed or purchased by X during this period. On October 13, 
1982, the total value of X's outstanding stock (is $43 million ($40 
million voting stock and $3 million nonvoting stock) and F holds 23.26 
percent of the value of X's outstanding stock ($10 million/$43 million). 
F's foundation value level and the substituted combined value level are 
increased from 22.73 percent to 23.26 percent to reflect this change.
    (iii) On November 1, 1982, X corporation distributes the stock of Y 
corporation, a wholly-owned subsidiary, to X's shareholders. Y is a 
business enterprise. Under this paragraph (d)(10), all of F's stock in X 
is permitted holdings under section 4943 (c)(4) even though the 
percentage of value held by F has increased from 22.73 percent on May 
26, 1969, to 23.26 percent on November 1, 1982. F's permitted holdings 
in Y will be determined by reference to F's permitted holdings in X 
under Sec.  53.4943-7. Therefore, assuming no prohibited transaction 
occurs, F's permitted holdings in Y stock equal 25 percent of Y's voting 
stock and, separately, 23.26 percent of the value of all of Y's 
outstanding stock.

[T.D. 7496, 42 FR 46285, Sept. 15, 1977, as amended by T.D. 7944, 49 FR 
6478, Feb. 22, 1984]



Sec.  53.4943-5  Present holdings acquired by trust or a will.

    (a) Interests to which section 4943(c)(5) applies--(1) In general. 
Section 4943(c)(5) provides that section 4943(c)(4) (other than the 20-
year first phase holding period) applies to an interest in a business 
enterprise acquired after May 26, 1969 by a private foundation under the 
terms of a trust which was irrevocable on May 26, 1969, or under the 
terms of a will executed on or before May 26, 1969, which were in effect 
on May 26, 1969, and at all times thereafter, as if such interest were 
held on May 26, 1969. However the first phase holding period prescribed 
by Sec.  53.4943-4(c)(1) (ii) or (iii) shall commence for such an 
interest on the date of distribution to the foundation. Unlike section 
4943(c)(4) and Sec.  53.4943-4, section 4943(c)(5) and this section 
treat only the interest so acquired (and not the entire interest held by 
the foundation in such enterprise on the date of distribution) as held 
by a disqualified person during a first phase holding period. (See, 
however, section 4943(c)(6) and paragraph (b)(2) of Sec.  53.4943-6 for 
the treatment of other holdings of the foundation in the same enterprise 
if an interest to which section 4943(c)(5) applies is acquired from a 
person who was not a disqualified person prior to the acquisition.) In 
addition, section 4943(c)(5) and this section shall not apply if after 
the acquisition of such an interest the foundation would not have excess 
business holdings (determined without regard to section 4943(c) (4), 
(5), or (6)).
    (2) After-acquired interests. Section 4943(c)(5) and this section 
shall not apply to any interest acquired after May 26, 1969, by an 
estate or trust, other than by reason of the death of the decedent. For 
example, where a foundation is a residuary beneficiary under the terms 
of a will executed before May 26, 1969, and the residue of the estate 
consists of cash, then stock subsequently purchased with cash for 
distribution to the foundation will not be treated as an interest 
acquired under the terms of a will executed on or before May 26, 1969.
    (3) Certain revocable trusts. If an interest in a business 
enterprise actually passes to a private foundation under a trust which 
would have met the tests referred to in paragraph (a)(1) of this section 
but for the fact that the trust was revocable (even though it was not in 
fact revoked) and such interest

[[Page 139]]

would have passed to such foundation under a will that meets those tests 
but for the fact that the grantor died without having revoked the trust, 
then for purposes of section 4943(c)(5) and this section, such an 
interest shall be treated as having been acquired by the foundation 
under the will.
    (4) Modification of will--(i) In general. For purposes of section 
4943(c)(5) and this section, an amendment or republication of a will 
which was executed on or before May 26, 1969, does not prevent any 
interest in a business enterprise which was to pass under the terms 
(which were in effect on May 26, 1969, and at all times there- after) of 
such will from being treated as a present holding under section 4943(c) 
(4) or (5):
    (A) Solely because there is a reduction in the interest in the 
business enterprise which the foundation was to receive under the terms 
of the will (for example, if the foundation is to receive the residuary 
estate, and if one class of stock is disposed of by the decedent during 
his lifetime or by a subsequent codicil);
    (B) Solely because such amendment or republication is necessary in 
order to comply with section 508(e) and the regulations thereunder;
    (C) Solely because there is a change in the executor of the will; or
    (D) Solely because of any other change which does not otherwise 
change the rights of the foundation with respect to such interest in the 
business enterprise.

However, if under such amendment or republication there is an increase 
in the interest in the business enterprise which the foundation was to 
receive under the terms of the will in effect on May 26, 1969, such 
increase shall not be treated as present holdings under section 4943(c) 
(4) or (5). Under such circumstances the interest which would have been 
acquired before such increase shall remain present holdings. See section 
4943(c)(6) and Sec.  53.4943-6 with respect to the treatment of such 
increase in holdings of a private foundation.
    (ii) Examples. The provisions of this paragraph (a)(4) may be 
illustrated by the following examples:

    Example 1. On May 9, 1985, A modifies by codicil his will which was 
in effect on May 26, 1969, and was unchanged until such modification. 
The purpose of the codicil was, in the event of A's death, to increase 
the number of shares in X Corporation that would pass to the W 
foundation from 70 percent of all the voting power and value to 80 
percent. Under these facts, if A dies without further modifying the 
terms of the will which apply to W's interest in X, section 4943(c)(5) 
will apply to 70 percent of the X voting power and value and section 
4943(c)(6) will apply to 10 percent of the X voting power and value, 
since 10 percent of the X voting power and value would not pass under a 
provision of the will which was in effect on May 26, 1969, and at all 
times thereafter. Accordingly, if the stock is distributed to W on July 
6, 1988, then, assuming that on May 26, 1969, W and all disqualified 
persons owned less than 75% of the voting stock in X, an amount of such 
stock representing 70 percent of X voting power and value shall be 
treated as held by a disqualified person through July 5, 1998, and an 
amount of such stock representing 10 percent of X voting power and value 
shall be treated as held by a disqualified person through July 5, 1993.
    Example 2. Assume the facts as stated in Example (1), except that 
the sole purpose of the codicil was to change the executor of the will. 
Under paragraph (a)(4)(i) of this section, such codicil will not prevent 
the X voting stock which was bequeathed to W from being treated as held 
by a disqualified person through July 5, 1998.

    (b) Holding periods--(1) In general. An interest to which section 
4943(c)(5) applies shall be entitled to a 15-year holding period 
starting on the date of distribution only if the interests actually or 
constructively owned by a private foundation and all disqualified 
persons on May 26, 1969, in a business enterprise exceed 75 percent of 
the voting stock (or of the profits or beneficial interest) or 75 
percent of the value of all outstanding shares of all classes of stock 
(or of the profits and capital interest) in such enterprise. For 
purposes of the preceding sentence, interests held by the foundation on 
May 26, 1969, shall be deemed to include an interest to which section 
4943(c)(5) applies and which has been acquired (on or before the date of 
distribution for the interest in question) from a person who was not a 
disqualified person on May 26, 1969. Therefore, if under the terms of a 
will in effect on May 26, 1969, and at all times thereafter, a private 
foundation is created on July 1, 1975, and receives 76 percent of the 
voting stock of a business enterprise on that date, such stock

[[Page 140]]

shall be treated as held by a disqualified person until June 30, 1990. 
Any interest to which section 4943(c)(5) applies but which is not 
entitled to a 15-year holding period shall be entitled to a 10-year 
holding period starting on the date of distribution. For purposes of 
this paragraph the date of distribution shall be deemed to occur no 
later than the date on which the trust or estate is considered to be 
terminated under Sec.  1.641(b)-(3) of this chapter (Income Tax 
Regulations).
    (2) Constructive ownership prior to date of distribution. To the 
extent that an interest to which section 4943(c)(5) applies is 
constructively held by a private foundation under section 4943(d)(1) and 
Sec.  53.4943-8 prior to the date of distribution, it shall be treated 
as held by a disqualified person prior to such date by reason of section 
4943(c)(5). In addition, in the case of a foundation's interest in a 
trust which was irrevocable on May 26, 1969, and to which both sections 
4943 (c)(4) and (c)(5) apply, the first phase holding period for such 
interest shall end with whichever such period under section 4943(c) (4) 
or (5) ends later. For example, if under the terms of such a trust, 96 
percent of the voting stock in a business enterprise was constructively 
held by a private foundation on May 26, 1969, and was distributed to 
such foundation on June 30, 1970, such interest is entitled to a 20-year 
holding period beginning on May 26, 1969.
    (c) Permitted holdings--(1) In general. The permitted holdings of a 
private foundation which has an interest in a business enterprise to 
which section 4943(c)(5) applies shall be determined in accordance with 
the rules of paragraph (d) of Sec.  53.4943-4. The levels referred to in 
such paragraph shall be adjusted to take into account the acquisition of 
such an interest as if it were treated as held by a disqualified person 
from May 26, 1969, until the date of acquisition. See also Sec.  
53.4943-6(b)(2) for the special rule for interests held by a private 
foundation at the time it acquires a section 4943(c)(5) interest from a 
nondisqualified person. Thus, for example, if on June 30, 1975, the 
disqualified person voting level and the substituted combined voting 
level in corporation X with respect to foundation F are 45 percent, and 
a nondisqualified person's 10 percent voting interest in X is acquired 
by F on July 1, 1975, in a transaction to which section 4943(c)(5) 
applies, the above-mentioned levels shall be increased to 55 and 50 
percent respectively, on July 1, 1975. However, if such interest had 
been acquired from a person who was a disqualified person on May 26, 
1969, rather than from a nondisqualified person, no adjustments in such 
levels would have taken place on July 1, 1975. In such a case, though, 
at the beginning of the second phase on July 1, 1985, the foundation 
voting level would be increased by 10 percent, and the disqualified 
person voting level decreased by 10 percent (assuming that none of the 
acquired stock had been disposed of prior to such date).
    (2) Separate phases. The phases for each interest to which section 
4943(c)(5) applies start independently from those for any other interest 
of the foundation in the same enterprise to which section 4943(c) (4) or 
(5) applies. Therefore, until an interest enters its own second phase, 
the 25 percent limit described in paragraph (d)(5) of Sec.  53.4943-4 
shall not apply to such interest since such interest (and any 
subsequently acquired section 4943(c)(5) interest in the first phase) is 
still treated as held by a disqualified person for purposes of that 25 
percent limit. In addition, if such an interest enters its second phase 
and at such time all disqualified persons together do not have holdings 
in excess of 2 percent of the voting stock in the same business 
enterprise, then the 25 percent limit of section 4943(c)(4)(D)(i) shall 
not then apply to such interest, even though such limit may have been 
applicable to an interest with an earlier second phase. Moreover, the 35 
percent limit of section 4943(c)(4)(D)(ii) shall cause only interests 
which have entered the third phase to become excess business holdings, 
taking into account, however, interests in prior phases in determining 
the holdings subject to such limit.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples: (After each example is a chart setting forth the 
chronological changes in the various levels referred to in paragraph (d) 
of Sec.  53.4943-4.)


[[Page 141]]


    Example 1. On May 26, 1969, F, a private foundation, owns no stock 
in M Corporation, and A, a disqualified person owns 40 percent of the 
voting stock (voting power and value) in M. A dies on May 1, 1971, 
leaving 30 percent of the voting stock in M to F and leaving the other 
10 percent to a disqualified person. Distribution is made on June 1, 
1972, and assume that section 4943(c)(5) applies. No transactions in the 
stock of M, other than those described in this example, occur. On May 
26, 1969, the substituted combined voting level is 40 percent, the 
disqualified person voting level is deemed to be 40 percent, and the 
permitted holdings by F in M is deemed to be 0 percent (40%-40%). On May 
1, 1971 (the date that F acquired the M stock by reason of its 
constructive ownership of A's estate), the various levels remain 
unchanged. On May 1, 1971, the 30 percent interest is treated as held by 
a disqualified person for a period extending through May 31, 1982. On 
June 1, 1981, F disposes of 6 percent of the voting stock to a 
nondisqualified person. The substituted combined voting level and the 
disqualified person voting level thereby are reduced to 34 percent (40%-
6%) each. On June 1, 1982, at the beginning of the second phase, the 
foundation voting level increases to 24 percent (30%-6%) and the 
disqualified person voting level is reduced to 10 percent (34%-10%). The 
substituted combined voting level as of June 1, 1982, remains at 34 
percent. The permitted holdings as of such date are 24 percent (34%-
10%). If F had not disposed of any holdings prior to June 1, 1982, F's 
permitted holdings would have been 25 percent, the lesser of 25 percent 
(the limitation of section 4943(c)(4)(D)(i)), or 30 percent (40%-10%). 
Since on such date the 30 percent interest would no longer have been 
treated as held by a disqualified person, F would have had excess 
business holdings of 5 percent (30%-25%).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Interest
                                                   treated as                 Foundation  Substituted  Disqualified
                                         F owns      held by    Disqualified    voting      combined      person     Permitted
                 Date                  (percent)  disqualified   persons own     level       voting    voting level   holdings          Comments
                                                     person       (percent)    (percent)     level       (percent)   (percent)
                                                    (percent)                              (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
May 26, 1969.........................          0            0            40            0          40            40           0
May 1, 1971..........................       + 30         + 30           -30   ..........  ...........  ............  .........  A dies.
 Do..................................         30           30            10            0          40            40           0
June 1, 1972.........................         30           30            10            0          40            40           0  Distribution.
June 1, 1981.........................         -6           -6   ............  ..........          -6            -6   .........  F sells 6 pct.
 Do..................................         24           24            10            0          34            34           0
June 1, 1982.........................  .........          -24   ............        + 24  ...........          -24        + 24  2d phase begins.
 Do..................................         24            0            10           24          34            10          24
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 2. (i) On May 26, 1969, F, a private foundation, owns 30 
percent of the voting stock of N Corporation (voting power and value) 
and disqualified persons own 20 percent of the voting stock of N 
Corporation. On May 1, 1971, B, a disqualified person, dies leaving 15 
percent of the voting stock to F. Assume the distribution was made on 
June 1, 1972, and that section 4943(c)(5) applies. On May 26, 1969, the 
substituted combined voting level and the disqualified person voting 
levels are each 50 percent and the permitted holdings are 0 percent 
(50%-50%). On May 1, 1971, and June 1, 1972, these levels remain 
unchanged. On May 1, 1971, the 15 percent interest is treated as held by 
a disqualified person for a period extending through May 31, 1982.
    (ii) On July 1, 1978, F sells 6 percent of the F stock to a 
nondisqualified person, thereby reducing the disqualified person voting 
level and the substituted combined voting level to 44 percent (50%-6%). 
On May 26, 1979, at the beginning of the second phase for F's 1969 
holdings, the foundation voting level is 24 percent (30%-6%), the 
substituted combined voting level is still 44 percent, and the 
disqualified person voting level is 20 percent (44%-24%). The permitted 
holdings are 24 percent (44%-20%). In addition F's 24 percent holdings 
do not exceed the 25 percent limitation of section 4943(c)(4)(D)(i) and 
paragraph (d)(5)(ii) of Sec.  53.4943-4.
    (iii) On August 1, 1981, F sells 16 percent of the N stock to a 
nondisqualified person, thereby reducing the foundation voting level to 
8 percent (24%-16%), and reducing the substituted combined voting level 
to 28 percent (44%-16%). The disqualified person voting level remains at 
20 percent. On June 1, 1982, at the beginning of the second phase for 
F's holdings acquired by will, the substituted combined voting level is 
still 28 percent, the foundation voting level is 23 percent (8% + 15%), 
the disqualified person voting level is 5 percent (20%-15%), and the 
permitted holdings are 23 percent (28%-5%).
    (iv) If F had not disposed of the 6 percent on July 1, 1978, then on 
May 26, 1979, at the beginning of the second phase for F's 1969 
holdings, F's permitted holdings would have been 25 percent, the lesser 
of 25 percent (the limitation of section 4943(c)(4)(D)(i), or 30 percent 
(50%-20%). Since F's 30 percent interest would no longer have been 
treated as

[[Page 142]]

held by a disqualified person on May 26, 1979, F would have had excess 
business holdings of 5 percent (30%-25%). Similarly, if F had not 
disposed of the 16 percent interest on August 1, 1981 (but had disposed 
of the 6 percent interest), on July 1, 1982, at the beginning of the 
second phase for F's holdings acquired by will, F's permitted holdings 
would have been 25 percent, the lesser of 25 percent (under section 
4943(c)(4)(D)(i)), or 39 percent (44%-5%). Since as of such date F's 
entire holdings of 39 percent would no longer have been treated as held 
by a disqualified person, F would have had excess business holdings of 
14 percent (39%-25%).

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Interest
                                                              F's        F's      treated as                 Foundation  Substituted  Disqualified
                                                  F owns    interest   interest     held by    Disqualified    voting      combined      person     Permitted
                     Date                       (percent)     1969       1971    disqualified   persons own     level       voting    voting level   holdings               Comments
                                                           (percent)  (percent)     person       (percent)    (percent)     level       (percent)   (percent)
                                                                                   (percent)                              (percent)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May 26, 1969..................................        30         30   .........          30            20            0          50            50           0
May 1, 1971...................................      + 15   .........      + 15         + 15           -15    ..........  ...........  ............  .........  B dies.
 Do...........................................        45         30         15           45             5            0          50            50           0
June 1, 1972..................................        45         30         15           45             5            0          50            50           0   Distribution.
July 1, 1978..................................        -6         -6   .........          -6    ............  ..........         -6            -6    .........  F sells 6 pct.
 Do...........................................        39         24         15           39             5            0          44            44           0
May 16, 1979..................................  .........  .........  .........         -24    ............       + 24   ...........         -24        + 24   2d phase for 24 pct.
 Do...........................................        39         24         15           15             5           24          44            20          24
Aug. 1, 1981..................................       -16        -16   .........  ............  ............        -16         -16    ............       -16   F sells 16 pct.
 D0...........................................        23          8         15           15             5            8          28            20           8
July 1, 1982..................................  .........  .........  .........         -15    ............       + 15   ...........         -15        + 15   All in 2d phase.
 Do...........................................        23          8         15            0             5           23          28             5          23
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Example. (3). (i) On May 26, 1969, F, a private foundation owns 5 
percent of the voting stock of O Corporation (voting power and value), 
and disqualified persons own 45 percent of the voting stock. C, a 
disqualified person, dies on May 1, 1971, and leaves 41 percent of the 
voting stock of O to F. Assume that distribution is made on June 1, 
1972, and that section 4943(c)(5) applies. On May 26, 1969, the 
substituted combined voting level and the disqualified person voting 
level are 50 percent and the permitted holdings are 0 percent (50%-50%). 
On May 1, 1971, and June 1, 1972, the various levels remain unchanged. 
On May 1, 1971, the 41 percent interest is treated as held by a 
disqualified person for a period extending through May 31, 1982. On May 
26, 1979, at the beginning of the second phase for F's 1969 holdings of 
5 percent, the 5 percent is no longer treated as held by a disqualified 
person, the foundation voting level is 5 percent, the disqualified 
person voting level is reduced to 45 percent (50%-5%), and the 
substituted combined voting level remains at 50 percent. On such date 
F's permitted holdings are 5 percent (50%-45%). Since the 41 percent 
interest is treated as held by a disqualified person, the interest 
treated as held by F (5%) does not exceed the 25 percent limitation of 
section 4943(c)(4)(D)(i).
    (ii) On August 1, 1981, F sells 22 percent of the O stock to a 
nondisqualified person, thereby reducing the foundation voting level to 
0 percent. Since the reductions are first applied to the 1969 holdings 
of 5 percent, 17 percent (22%-5%) applies to the 41 percent interest, 
reducing such interest to 24 percent (41%-17%), and reducing the 
disqualified person voting level to 28 percent (45%-17%). The 
substituted combined voting level is reduced to 28 percent (0% + 28%). 
On June 1, 1982, at the beginning of the second phase for F's holdings 
acquired by will, the substituted combined voting level remains at 28 
percent, the foundation voting level is 24 percent, the disqualified 
person voting level is reduced to 4 percent (28%-4%).
    (iii) If F had not disposed of the 22 percent interest prior to June 
1, 1982, F's permitted holdings would have been 25 percent, the lesser 
of 25 percent, (under section 4943(c)(4)(D)(i)), or 46 percent (50%-4%). 
Since as of such date, F's entire holdings of 46 percent would no longer 
have been treated as held by a disqualified person, F would have had 
excess business holdings of 21 percent (46%-25%).

[[Page 143]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Interest
                                                              F's        F's      treated as                 Foundation  Substituted  Disqualified
                                                  F owns    interest   interest     held by    Disqualified    voting      combined      person     Permitted
                     Date                       (percent)     1969       1971    disqualified   persons own     level       voting    voting level   holdings               Comments
                                                           (percent)  (percent)     person       (percent)    (percent)     level       (percent)   (percent)
                                                                                   (percent)                              (percent)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May 26, 1969..................................         5          5   .........           5            45            0          50            50           0   .................................
May 1, 1971...................................      + 41   .........      + 41         + 41           -41    ..........  ...........  ............  .........  C dies.
 Do...........................................        46          5         41           46             4            0          50            50           0
June 1, 1972..................................        46          5         41           46             4            0          50            50           0   Distribution.
May 26, 1979..................................  .........  .........  .........          -5    ............        + 5   ...........          -5         + 5   2d phase for 5 pct.
 Do...........................................        46          5         41           41             4            5          50            45           5
Aug. 1, 1981..................................       -22         -5        -17          -17    ............         -5         -22           -17          -5   F sells 22 pct.
 Do...........................................        24          0         24           24             4            0          28            28           0
June 1, 1982..................................  .........  .........  .........         -24    ............       + 24   ...........         -24        + 24   2d phase for 24 pct.
 Do...........................................        24          0         24            0             4           24          28             4          24
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 4. (i) On May 26, 1969, F, a private foundation, owns 30 
percent of the voting stock in P Corporation (voting power and value), 
and disqualified persons own 20 percent. On May 1, 1971, D, a 
disqualified person, dies leaving 18 percent of the voting stock to F. 
Assume that distribution was made on June 1, 1972, and that section 4943 
(c)(5) applies. On May 26, 1969, the substituted combined voting level 
and the disqualified person voting level are each 50 percent and the 
permitted holdings are 0 percent (50%-50%). On May 1, 1971, and June 1, 
1972, these levels remain unchanged. On May 1, 1971, the 18 percent 
interest is treated as held by a disqualified person for a period 
extending through May 31, 1982. On May 26, 1979, the foundation voting 
level increases to 30 percent, the disqualified person voting level 
decreases to 20 percent (50%-30%), and the permitted holdings are 30 
percent (50%-20%). On June 1, 1982, the foundation voting level 
increases to 48 percent, the disqualified person voting level decreases 
to 2 percent and the permitted holdings are 48 percent (50%-2%). Since 
at no time during the second phase for F's 1969 holdings did all 
disqualified persons together have holdings in excess of 2 percent of 
the voting stock of P, the 25 percent limitation of section 
4943(c)(4)(D)(i) did not apply to F's 1969 holdings.
    (ii) On July 1, 1993, F disposes of 16 percent of the stock in P, 
thereby reducing the substituted combined voting level to 34 percent 
(50%-16%), and reducing the permitted holdings to 32 percent (34%-2%). 
If F had not disposed of the 16 percent of the stock of P prior to May 
26, 1994, on such date, under section 4943(c)(4)(D)(ii), F's substituted 
combined voting level for its 1969 holdings would have been 35 percent, 
and the permitted holdings would have been 33 percent (35%-2%). Since 
none of F's holdings of 48 percent would have been treated as held by a 
disqualified person on such date (the beginning of the third phase for 
F's 1969 holdings), F would have had excess business holdings of 15 
percent, the lesser of 30 percent (F's 1969 holdings in the third 
phase), of 15 percent (the excess of F's 48 percent holdings over the 
permitted holdings of 33 percent).

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Interest
                                                              F's        F's      treated as                 Foundation  Substituted  Disqualified
                                                  F owns    interest   interest     held by    Disqualified    voting      combined      person     Permitted
                     Date                       (percent)     1969       1971    disqualified   persons own     level       voting    voting level   holdings               Comments
                                                           (percent)  (percent)     person       (percent)    (percent)     level       (percent)   (percent)
                                                                                   (percent)                              (percent)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May 26, 1969..................................        30         30   .........          30            20            0          50            50           0
May 1, 1971...................................      + 18   .........      + 18         + 18           -18    ..........  ...........  ............  .........  D dies.
 Do...........................................        48         30         18           48             2            0          50            50           0
June 1, 1972..................................        48         30         18           48             2            0          50            50           0   Distribution.
May 26, 1979..................................  .........  .........  .........         -30    ............       + 30   ...........         -30        + 30   2d phase for 30 pct.
 Do...........................................        48         30         18           18             2           30          50            20          30

[[Page 144]]

 
June 1, 1982..................................  .........  .........  .........         -18    ............       + 18   ...........         -18        + 18   2d phase for 18 pct.
 Do...........................................        48         30         18            0             2           48          50             2          48
July 1, 1993..................................       -16        -16   .........  ............  ............        -16         -16    ............       -16   F disposes of 16 pct.
 Do...........................................        32         14         18            0             2           32          34             2          32
May 26, 1994..................................        32         14         18            0             2           32          34             2          32   3d phase for 14 pct.
June 1, 1997..................................        32         14         18            0             2           32          34             2          32   3d phase for 18 pct.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 5. (i) On May 26, 1969, F, a private foundation, owns 5 
percent of the voting stock in Q Corporation (voting power and value), 
and disqualified persons own 45 percent. On May 1, 1971, E, a 
disqualified person, dies leaving 43 percent of the voting stock to F. 
Assume that distribution was made on June 2, 1972, and that section 
4943(c)(5) applies. On May 26, 1969, the substituted combined voting 
level and the disqualified person voting level are each 50 percent and 
the permitted holdings are 0 percent (50%-50%). On May 1, 1971, and June 
1, 1972, these levels remain unchanged. On May 1, 1971, the 43 percent 
interest is treated as held by a disqualified person for a period 
extending through May 31, 1982. On May 26, 1979, the foundation voting 
level increases to 5 percent, the disqualified person voting level 
decreases to 45 percent, and the permitted holdings are 5 percent (50%-
45%). On June 1, 1982, the foundation voting level increases to 48 
percent, the disqualified person voting level decreases to 2 percent, 
and the permitted holdings are 48 percent (50%-2%). At no time during 
the second phase for F's 1969 holdings did all disqualified persons 
together have holdings in excess of 2 percent of the voting stock of Q. 
Therefore, the 25 percent limitation of section 4943(c)(4)(D)(i) did not 
apply.
    (ii) On July 1, 1993, F sells 6 percent of the stock in Q to a 
nondisqualified person. This reduces the substituted combined voting 
level to 44 percent and reduces the permitted holdings to 42 percent 
(44%-2%). If F had not disposed of the 6 percent of the stock in 1993, 
on May 26, 1994, at the beginning of the third phase for F's 1969 
holdings, F would have had 5 percent excess business holdings. The 
excess business holdings are 5 percent because although the excess 
business holdings computed for the third phase are 15 percent (the 
excess of F's actual holdings (48%) over the permitted holdings of 33 
percent (35%-2%)), only 5 percent of the holdings are in this phase and 
subject to the 35 percent combined holdings limitation.
    (iii) On July 1, 1995, F sells 10 percent of the stock in Q, thereby 
reducing the substituted combined voting level to 34 percent and 
reducing the permitted holdings to 32 percent (34%-2%). If F had not 
disposed of the 10 percent of the stock, on June 1, 1997, at the 
beginning of the third phase for F's acquired holdings, F would have had 
9 percent excess business holdings (the excess of F's total holdings in 
the third phase (42%) over the permitted holdings of 33 percent (35%-
2%)).

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Interest
                                                              F's        F's      treated as                 Foundation  Substituted  Disqualified
                                                 F's owns   interest   interest     held by    Disqualified    voting      combined      person     Permitted
                     Date                       (percent)     1969       1971    disqualified   persons own     level       voting    voting level   holdings               Comments
                                                           (percent)  (percent)     person       (percent)    (percent)     level       (percent)   (percent)
                                                                                   (percent)                              (percent)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May 26, 1969..................................         5          5   .........           5            45            0          50            50           0
May 1, 1971...................................      + 43   .........      + 43         + 43           -43    ..........  ...........  ............  .........  E dies.
 Do...........................................        48          5         43           48             2            0          50            50           0
June 1, 1972..................................        48          5         43           48             2            0          50            50           0   Distribution.
May 26, 1979..................................  .........  .........  .........          -5    ............        + 5   ...........          -5         + 5   2d phase for 5 pct
 Do...........................................        48          5         43           43             2            5          50            45           5

[[Page 145]]

 
June 1, 1982..................................  .........  .........  .........         -43    ............       + 43   ...........         -43        + 43   2d phase for 43 pct.
 Do...........................................        48          5         43            0             2           48          50             2          43
July 1, 1993..................................        -6         -5         -1   ............  ............         -6          -6    ............        -6   F sells 6 pct.
 Do...........................................        42          0         42            0             2           42          44             2          42
July 1, 1995..................................       -10   .........       -10   ............  ............        -10         -10    ............       -10   F sells 10 pct.
 Do...........................................        32          0         32            0             2           32          34             2          32
June 1, 1997..................................        32          0         32            0             2           32          34             2          32   3d phase for 32 pct.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 6. (i) On May 26, 1969, F, a private foundation, owns 30 
percent of the voting stock in R Corporation (voting power and value), 
and disqualified persons own 20 percent. On August 1, 1978, F disposes 
of 6 percent of the stock to a nondisqualified person. On May 1, 1981, 
G, a disqualified person, dies leaving 15 percent of the voting stock to 
F. Assume that distribution was made on June 1, 1982, and that section 
4943(c)(5) applies. On May 26, 1969, the substituted combined voting 
level and the disqualified person voting level are each 50 percent, and 
the permitted holdings are 0 percent (50%-50%). On August 1, 1978, these 
levels decrease to 44 percent (50%-6%). On May 26, 1979, the foundation 
voting level increases to 24 percent (30%-6%), the disqualified person 
voting level decreases to 20 percent (44%-24%), and the permitted 
holdings are 24 percent (44%-20%). If F had not disposed of the 6 
percent of the stock prior to May 26, 1979, on May 26, 1979, the 
beginning of the second phase for F's 1969 holdings, F's permitted 
holdings would have been 25 percent, the lesser of 25 percent (under 
section 4943(c)(4)(D)(i)) or 30 percent (50%-20%). Since the 30 percent 
interest would no longer have been treated as held by a disqualified 
person on such date, F would have had excess business holdings of 5 
percent (30%-25%).
    (ii) On May 1, 1981, and June 1, 1982 (assuming F had disposed of 
the 6 percent holdings), the foundation voting level, the disqualified 
person voting level, the substituted combined voting level and permitted 
holdings remain respectively 24 percent, 20 percent, 44 percent and 24 
percent. On May 1, 1981, the 15 percent interest is treated as held by a 
disqualified person for a period extending through May 31, 1992. On July 
1, 1991, F sells 16 percent of the voting stock in R to a 
nondisqualified person, thereby reducing the substituted combined voting 
level to 28 percent (44%-16%), and reducing the foundation voting level 
to 8 percent (24%-16%). The disqualified person voting level remains at 
20 percent. On June 1, 1992, at the beginning of the second phase for 
F's holdings acquired by will, the substituted combined voting level 
remains at 28 percent, the foundation voting level increases to 23 
percent (8% + 15%) and the disqualified person voting level decreases to 
5 percent (20%-15%). The permitted holdings on such date are 23 percent 
(28%-5%). If F had not disposed of the 16 percent interest prior to June 
1, 1992, F's permitted holdings would have been 25 percent, the lesser 
of 25 percent (under section 4943 (c)(4)(D)(i)) or 39 percent (44%-5%). 
Since as of such date, F's entire holdings of 39 percent would no longer 
have been treated as held by a disqualified person, F would have had 
excess business holdings of 14 percent (39%-25%).

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Interest
                                                              F's        F's      treated as                 Foundation  Substituted  Disqualified
                                                 F's owns   interest   interest     held by    Disqualified    voting      combined      person     Permitted
                     Date                       (percent)     1969       1981    disqualified   persons own     level       voting    voting level   holdings               Comments
                                                           (percent)  (percent)     person       (percent)    (percent)     level       (percent)   (percent)
                                                                                   (percent)                              (percent)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May 26, 1969..................................        30         30   .........          30            20            0          50            50           0
Aug. 1, 1978..................................        -6         -6   .........          -6    ............  ..........         -6            -6    .........  F disposes of 6 pct.
 Do...........................................        24         24   .........          24            20            0          44            44           0
May 26, 1979..................................  .........  .........  .........         -24    ............       + 24   ...........         -24        + 24   2d phase for 24 pct.
 Do...........................................        24         24   .........           0            20           24          44            20          24
May 1, 1981...................................      + 15   .........      + 15         + 15           -15    ..........  ...........  ............  .........  G dies.

[[Page 146]]

 
 Do...........................................        39         24         15           15             5           24          44            20          24
June 1, 1982..................................        39         24         15           15             5           24          44            20          24   Distribution.
July 1, 1991..................................       -16        -16   .........  ............  ............        -16         -16    ............       -16   F disposes of 16 pct.
 Do...........................................        23          8         15           15             5            8          28            20           8
June 1, 1992..................................  .........  .........  .........         -15    ............       + 15   ...........         -15        + 15   2d phase for 15 pct.
 Do...........................................        23          8         15            0             5           23          28             5          23
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Example 7. (i) On May 26, 1969, F, a private foundation, owns 5 
percent of the voting stock in S Corporation (voting power and value), 
and disqualified persons own 45 percent. On May 1, 1980, H, a 
disqualified person, dies leaving 41 percent of the voting stock to F. 
Assume that distribution is made on June 1, 1981, and that section 
4943(c)(5) applies. On May 26, 1969, the substituted combined voting 
level and disqualified person voting levels are each 50 percent. On May 
26, 1979, the disqualified person voting level decreases to 45 percent, 
the foundation voting level increases to 5 percent, and the permitted 
holdings are 5 percent (50%-45%). On May 1, 1980, and June 1, 1981, the 
levels remain the same. Since the 41 percent holdings are treated as 
held by a disqualified person for the period beginning on May 1, 1980, 
and extending through May 31, 1991, F's remaining holdings of 5 percent 
do not exceed the 25 percent limitation of section 4943(c)(4)(D)(i).
    (ii) On August 1, 1990, F sells 22 percent of the voting stock of S 
to a nondisqualified person, reducing the 5 percent foundation voting 
level to zero, leaving 17 percent (22%-5%) to reduce the disqualified 
person voting level to 28 percent (45%-17%) so that the substituted 
combined voting level equals 28 percent (50%-22%). On June 1, 1991, the 
beginning of the second phase for the remaining 24 percent (41%-17%) of 
F's holdings acquired by will, the foundation voting level increases 
from zero to 24 percent, the disqualified person voting level decreases 
to 4 percent (28%-24%), the substituted combined voting level remains at 
28 percent, and the permitted holdings equal 24 percent (28%-4%).
    (iii) If F had not disposed of the 22 percent holdings prior to June 
1, 1991, F's permitted holdings would have been 25 percent, the lesser 
of 25 percent (under section 4943(c)(4)(D)(i)) or 46 percent (50%-4%). 
Since as of such date, F's entire holdings of 46 percent would no longer 
have been treated as held by a disqualified person, F would have had 
excess business holdings of 21 percent (46%-25%).

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Interest
                                                              F's        F's      treated as                 Foundation  Substituted  Disqualified
                                                  F owns    interest   interest     held by    Disqualified    voting      combined      person     Permitted
                     Date                       (percent)     1969       1980    disqualified   persons own     level       voting    voting level   holdings               Comments
                                                           (percent)  (percent)     person       (percent)    (percent)     level       (percent)    (percent
                                                                                   (percent)                              (percent)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
May 26, 1969..................................         5          5   .........           5            45            0          50            50           0
 Do...........................................  .........  .........  .........          -5    ............        + 5   ...........          -5         + 5   2d phase for 5 pct.
May 26, 1969..................................         5          5   .........           0            45            5          50            45           5
May 1, 1980...................................      + 41   .........      + 41         + 41           -41    ..........  ...........  ............  .........  H dies.
 Do...........................................        46          5         41           41             4            5          50            45           5
June 1, 1981..................................        46          5         41           41             4            5          50            45           5   Distribution.
Aug. 1, 1990..................................       -22         -5        -17          -17    ............         -5         -22           -17          -5   F disposes of 22 pct.
 Do...........................................        24          0         24           24             4            0          28            28           0
June 1, 1991..................................  .........  .........  .........         -24    ............       + 24   ...........         -24        + 24   2d phase for 24 pct.
 Do...........................................        24          0         24            0             4           24          28             4          24
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 147]]



Sec.  53.4943-6  Five-year period to dispose of gifts, bequests, etc.

    (a) In general--(1) Application. (i) Paragraph (6) of section 
4943(c) prescribes transition rules for a private foundation, which, but 
for such paragraph, would have excess business holdings as a result of a 
change in the holdings in a business enterprise after May 26, 1969 
(other than by purchase by such private foundation or by a disqualified 
person) to the extent that section 4943(c)(5) (relating to certain 
holdings acquired under a pre-May 27, 1969, will on trust) does not 
apply.
    (ii) Subparagraph (A) of section 4943(c)(6) applies where, 
immediately prior to a change in holdings described in paragraph 
(a)(1)(i) of this section, the foundation has no excess business 
holdings in such enterprise (determined without regard to section 
4943(c) (4), (5), or (6)). In such a case, the entire interest of the 
foundation in such enterprise (immediately after such change) shall 
(while held by the foundation) be treated as held by a disqualified 
person (rather than by the foundation) during the five-year period 
beginning on the date of such change.
    (iii) Subparagraph (B) of section 4943(c)(6) applies where the 
foundation has excess business holdings in such enterprise (determined 
without regard to section 4943(c) (4), (5), or (6)) immediately prior to 
a change in holdings described in paragraph (a)(1)(i) of this section. 
In such a case, the interest of the foundation in such enterprise 
(immediately after such change) shall (while held by the foundation) be 
treated as held by a disqualified person (rather than the foundation) 
during the five-year period beginning on the date of such change, except 
that if and as soon as any holdings in such enterprise become excess 
business holdings during such period (determined without regard to such 
change (and the resulting application of section 4943(c)(6) to the 
foundation's interest in such enterprise)), such holdings shall no 
longer be treated as held by a disqualified person under this section, 
but shall constitute excess business holdings subject to the initial 
tax. In applying the preceding sentence, if holdings of the foundation 
which (but for such change in holdings (and the resulting application of 
section 4943(c)(6) to the foundation's interest in such enterprise)) 
would be subject to the 25 percent limit prescribed by section 
4943(c)(4)(D) after the expiration of the first phase, such holdings 
shall be treated as subject to such percentage limitation for purposes 
of determining excess business holdings. For example, if a private 
foundation in 1978 has present holdings of 28 percent in a busines 
enterprise to which section 4943(c)(4) applies, and such holdings would 
exceed the 25 percent limit of section 4943(c)(4)(D)(i) on May 26, 1979, 
a gift of 5 percent to the foundation in 1978 of an interest in such 
enterprise shall not prevent the 3 percent (28%-25%) excess over the 25 
percent limit from constituting excess business holdings on May 26, 
1979, if on such date disqualified persons hold more than a 2 percent 
interest in such enterprise (and no other transaction has taken place).
    (2) Acquisitions that are not purchases. Section 4943(c)(6) does not 
apply if a change in holdings in a business enterprise is the result of 
a purchase by the private foundation or a disqualified person. For 
purposes of subparagraph (a) of this paragraph, the term ``purchase'' 
shall not include any acquisition by gift, devise, bequest, legacy, or 
interstate succession. Paragraph (d) of this section provides rules for 
the treatment of increases in holdings received in a readjustment (as 
defined in Sec.  53.4943-7(d)(1)).
    (3) Examples. The provisions of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. On January 4, 1985, A, an individual, makes a 
contribution to F, a private foundation, of 200 shares of X Corporation 
common stock. Assume that F had no X stock before January 4, 1985, and 
under section 4943(c)(1) the receipt of the X stock by F would cause 
some or all of the 200 shares of the X stock to be classified as excess 
business holdings. Under the provisions of section 4943(c)(6)(A) and 
this paragraph (a), since the contribution of the X stock to F is a gift 
and not a purchase, the X stock in F's hands is treated as held by 
disqualified persons and not by F through January 3, 1990.
    Example 2. Assume the facts as stated in Example (1) except that F 
receives the X stock as a bequest pursuant to the terms of A's will 
executed on April 1, 1980. A dies on June 3, 1984, and the stock is 
distributed to F on February 16, 1985. As in Example (1), the

[[Page 148]]

bequest of X to F is not a purchase under this paragraph (a). 
Consequently, the X stock in F's hands is treated as held by 
disqualified persons and not by F through February 15, 1990.
    Example 3. On February 1, 1980, F, a private foundation, owns 15 
percent of the voting stock of X Corporation, and disqualified persons 
own 4 percent of the voting stock of X Corporation. On February 2, 1980, 
B, a nondisqualified person, contributes 8 percent of the voting stock 
of X to F in a transaction to which section 4943(c)(5) does not apply. 
Assuming that the 35 percent limit of section 4943(c)(2)(B) does not 
apply, under the provisions of section 4943(c)(6)(A) and paragraph (a) 
of this section the 23 percent voting stock owned by F on such date is 
treated as held by a disqualified person through February 1, 1985, since 
F would have had excess business holdings of 7 percent as a result of 
the contribution (23% actual holdings less 16% (20%-4%) permitted 
holdings). On March 1, 1984, C, another nondisqualified person, 
contributes 6 percent of the voting stock of X Corporation to F. But for 
this second contribution and the resulting application of section 
4943(c)(6) to F's interest in X, F would have excess business holdings 
of 7 percent (23%-16%) within the five-year period beginning on the date 
of such contribution. Accordingly, under section 4943(c)(6)(B) and 
paragraph (a) of this section, all 29 percent (6% + 23%) of the stock 
held by F on March 1, 1984, will be treated as held by a disqualified 
person until March 1, 1989, except that 7 percent will cease to be so 
treated on February 2, 1985. If prior to February 2, 1985, no further 
transactions occurred in the stock of X, F would have excess business 
holdings of 7 percent subject to the initial tax, since the amount still 
treated as held by disqualified persons (29%-7%) plus the amount 
actually held by disqualified persons (4%) already exceed 20 percent.

    (b) Special rules for acquisitions by will or trust--(1) In general. 
In the case of an acquisition of holdings in a business enterprise by a 
private foundation pursuant to the terms of a will or trust, the five-
year period described in section 4943(c)(6) and in this section shall 
not commence until the date on which the distribution of such holdings 
from the estate or trust to the foundation occurs. See Sec.  53.4943-
5(b)(1) for rules relating to the determination of the date of 
distribution under the terms of a will or trust. For purposes of this 
subparagraph, holdings in a business enterprise will not be treated as 
acquired by a private foundation pursuant to the terms of a will where 
the holdings in the business enterprise were not held by the decedent. 
Thus, in the case of after-acquired property, this subparagraph shall 
not apply, the five-year period described in section 4943(c)(6) and this 
section shall commence on the date of acquisition of such holdings by 
the estate, and such five-year period may expire prior to the date of 
distribution of such holdings from the estate. To the extent that an 
interest to which section 4943(c)(6) and this paragraph (b)(1) apply is 
constructively held by a private foundation under section 4943(d)(1) and 
Sec.  53.4943-8 prior to the date of distribution, it shall be treated 
as held by a disqualified person prior to such date by reason of section 
4943(c)(6). See Sec.  53.4943-8 for rules relating to constructive 
holdings held in an estate or trust for the benefit of the foundation.
    (2) Special rule for section 4943(c)(5) interests acquired from a 
nondisqualified person. (i) In the case of holdings of a private 
foundation in a business enterprise to which section 4943(c)(5) 
(relating to certain holdings acquired under a pre-May 27, 1969, will or 
trust) applies which are acquired from a nondisqualified person, the 
interest of the foundation in such enterprise (immediately after such 
acquisition) shall (while held by the foundation) be treated as held by 
a disqualified person (rather than the foundation) under section 
4943(c)(6)(B) and paragraph (a)(1)(iii) of this section from the date of 
acquisition until the end of the fifth year following the date of 
distribution of such holdings. Thereafter, only the holdings to which 
section 4943(c)(5) and Sec.  53.4943-5(a)(1) apply shall continue to be 
treated as held by a disqualified person until the end of the first 
phase with respect thereto.
    (ii) The provisions of paragraph (b)(2)(i) of this section may be 
illustrated by the following examples:

    Example 1. On May 26, 1969, F, a private foundation, owns 5 percent 
of the voting stock of Corporation X and no disqualified persons own any 
stock in X. On June 30, 1977, a nondisqualified person bequeaths to F 33 
percent of the voting stock in X to which section 4943(c)(5) applies. 
This 33 percent interest is distributed to F on August 17, 1978. Under 
section 4943(c)(6)(A) the entire 38 percent (5% + 33%) of the X voting 
stock shall be treated as held by a disqualified person

[[Page 149]]

from June 30, 1977 (the date the 33 percent interest is contructively 
acquired by F) until August 17, 1983 (five years after the date of 
distribution of the 33 percent interest to F). However, assuming that 
the 35 percent limit of section 4943(c)(2)(B) does not apply, the 
substituted combined voting level on June 30, 1977 is only 33 percent 
because there was no interest to which section 4943(c) (4) or (5) 
applied immediately before that date and thus there was no substituted 
combined voting level at that time. In that case, since the 3-phase 
holding period is only available for the interest acquired by will (33%) 
under section 4943(c)(5), the substituted combined voting level on June 
30, 1977 is only 33 percent, not 38 percent. Assuming that the 
substituted combined voting level remains 33 percent at all relevant 
times, and prior to August 17, 1983, no further transactions occur in 
the stock of X, F on that date would have excess business holdings of 5 
percent subject to the initial tax. The amount treated as held by 
disqualified persons at that time (33%) would equal the substituted 
combined voting level at that time (33%), and thus permitted holdings 
would be zero. Under section 4943(c)(5) the 33 percent interest will 
continue to be treated as held by a disqualified person until August 17, 
1988 (10 years after the date of distribution).
    Example 2. On May 26, 1969, F, a private foundation, owns 29 percent 
of the stock (voting power and value) of Corporation X, and on June 30, 
1977, a nondisqualified person bequeaths to F 23 percent of the stock 
(voting power and value) in X to which section 4943(c)(5) does apply. 
This 23 percent interest is distributed to F on August 17, 1978. 
Disqualified persons hold no stock of X. Although the substituted 
combined voting and value levels cannot exceed 50 percent on May 26, 
1979 (at the start of the second phase with respect to the 29 percent 
interest), under section 4943(c)(6)(B) the entire 52 percent (29% + 23%) 
of the X voting stock shall be treated as held by a disqualified person 
from June 30, 1977 (the date the 23% interest is constructively acquired 
by F) until August 17, 1983 (five years after the date of distribution 
of the 23% interest to F). On June 1, 1980, during such second phase, D, 
a disqualified person, purchases 3 percent of the X stock (voting power 
and value). On such date, but for the acquisition by F of the 23 percent 
interest, F would have had excess business holdings of 4 percent. The 
purchase by D of more than 2 percent of the voting stock of X causes the 
25 percent limit of section 4943(c)(4)(D)(i) to apply to the 29 percent 
interest (29% - 25% = 4%). Thus, on June 1, 1980, 4 percent of the X 
voting stock held by F since May 27, 1969, shall cease to be treated as 
held by a disqualified person under section 4943(c)(6)(B) and become 
excess business holdings subject to the initial tax. See Sec.  53.4943-
2(a)(1)(ii) for the 90-day period in which to dispose of these excess 
business holdings resulting from the purchase by the disqualified 
person.

    (c) Exceptions. (1) Section 4943(c)(6) and this section shall not 
apply to any transfer of holdings in a business enterprise by one 
private foundation to another private foundation which is related to the 
first foundation within the meaning of section 4946(a)(1)(H).
    (2) Section 4943(c)(6) and this section shall not apply to an 
increase in the holdings of a private foundation in a business 
enterprise that is part of a plan whereby disqualified persons will 
purchase additional holdings in the same enterprise during the five-year 
period beginning on the date of such change, e.g., to maintain control 
of such enterprise, since such increase shall be treated as caused in 
part by the purchase of such additional holdings.
    (3) The purchase of holdings by an entity whose holdings are treated 
as constructively owned by a foundation, its disqualified persons, or 
both, under section 4943(d)(1) shall be treated as a purchase by a 
disqualified person if the foundation, its disqualified persons or both 
have effective control of the entity or otherwise can control the 
purchase. For example, if a foundation is the beneficiary of a specific 
bequest of $20,000 and its consent is required for the estate to make a 
purchase using such cash, then a purchase by the estate using such cash 
would be treated as a purchase by a disqualified person. Similarly, if 
an executor of an estate is a disqualified person with respect to a 
private foundation, any purchase by the estate would be treated as a 
purchase by a disqualified person.
    (4) If a private foundation, its disqualified persons, or both, hold 
an interest in specific property under the terms of a will or trust, and 
if the private foundation, its disqualified persons, or both, consent or 
otherwise agree to the substitution of holdings in a business enterprise 
for such specific property, such holdings shall be treated as acquired 
by purchase by a disqualified person. For example, if a private 
foundation is the beneficiary of a

[[Page 150]]

specific bequest of $20,000 and the private foundation agrees to accept 
certain of the estate's holdings in a business enterprise in 
satisfaction of such specific bequest, such holdings will be treated as 
acquired by purchase by a disqualified person even if such holdings were 
held by the decedent.
    (d) Readjustments and distributions--(1) General rule. Except as 
otherwise provided in subparagraph (2) of this paragraph, any increase 
in holdings in a business enterprise that is the result of a 
readjustment (as defined in Sec.  53.4943-7(d)(1)) shall be treated as 
acquired other than by purchase. However, holdings that are attributable 
to holdings owned by the private foundation that would have been excess 
business holdings except for the fact that such holdings were treated as 
held by a disqualified person prior to the readjustment shall in no 
event be treated as held by a disqualified person after the date on 
which the holdings to which the change is attributable would have ceased 
to be treated as held by a disqualified person.
    (2) Exceptions. Any increase in holdings in a business enterprise 
that is the result of a readjustment (as defined in Sec.  53.4943-
7(d)(1)), including any change resulting from application of the rule in 
Sec.  53.4943-8(c)(3), shall be treated as occurring by purchase by a 
disqualified person:
    (i) To the extent the increase is attributable to holdings that were 
excess business holdings prior to the readjustment, and separately
    (ii) To the full extent of the increase if the readjustment includes 
a prohibited transaction, unless the foundation establishes to the 
satisfaction of the Commissoner that effective control of all parties to 
the transaction was, at the time of the transaction, in one or more 
persons (other than the foundation) who are not disqualified persons 
with respect to the foundation. See Sec.  53.4943-7(d)(2) for the 
definition of prohibited transaction.
    (3) Section 4943(c)(6) holdings. If, immediately prior to a 
readjustment (as defined in Sec.  53.4943-7(d)(1)), a private foundation 
has holdings in a business enterprise that are treated under section 
4943(c)(6) as held by a disqualified person, then any holdings in a 
business enterprise that are received in the readjustment in exchange 
for such section 4943(c)(6) holdings shall be treated as the holdings 
surrendered in the exchange to the same extent as provided in Sec.  
53.4943-7 with respect to exchanges involving holdings to which section 
4943(c) (4) or (5) applies. Rules similar to those in Sec.  53.4943-
7(a)(2) shall be applied to determine when holdings are treated as 
surrendered or received in a readjustment for purposes of this 
paragraph.
    (4) Redemption by a corporation that is a disqualified person. If a 
foundation holds an interest in a corporation that is a disqualified 
person, an increase in the holdings of the private foundation, its 
disqualified person, or both, as a result of a redemption or a purchase 
of stock of the disqualified person corporation by such corporation 
shall not be treated as acquired by purchase by a disqualified person 
based solely on the status of the corporation as a disqualified person.
    (5) One percent rule for redemptions. If the holdings of a 
foundation, its disqualified persons, or both, in a business enterprise 
are increased as a result of one or more redemptions during any taxable 
year then, unless the aggregate of such increases equals or exceeds one 
percent of the outstanding voting stock or one percent of the value of 
all outstanding shares of all classes of stock, the determination of 
whether such increases cause the foundation to have excess business 
holdings shall be made only at the close of the private foundation's 
taxable year. The five-year period described in section 4943(c)(6) or 
the 90-day period described in Sec.  53.4943-2(a)(1)(ii), whichever is 
applicable, shall begin on the last day of such taxable year. If, 
however, the aggregate of such increases equals or exceeds one percent 
of the outstanding voting stock or one percent of the value of all 
outstanding shares of all classes of stock, the determination of whether 
such increases cause the foundation to have excess business holdings 
shall be made, and the applicable five-year or 90-day period shall 
begin, as of the date the increases, in the aggregate, equal or exceed 
one percent.

[[Page 151]]

    (6) Examples. The provisions of this paragraph are illustrated in 
Sec.  53.4943-7(f) and by the following examples:

    Example 1. (i) F, a private foundation, holds 20% of the voting 
stock of X corporation, an active business enterprise. No disqualified 
person with respect to F holds any X stock. In 1980, X redeems 10% of 
its outstanding shares, increasing F's holdings to 22% of the X stock. 
Assume the redemption by X is not a prohibited transaction.
    (ii) All of F's holdings before the redemption are permitted 
holdings under section 4943(c)(2). There is no effective control of X by 
third parties so the 35% permitted holdings rule is inapplicable. F's 
holdings after the redemption exceed the permitted holdings under 
section 4943 (c)(2) (20%). Because the increase is attributable to stock 
that was permitted holdings prior to the readjustment, and the 
readjustment does not involve a prohibited transaction, the 2% increase 
in F's holdings of X stock is treated as acquired other than by 
purchase. Therefore, under section 4943(c)(6) and this section, F will 
have 5 years from the date of the redemption to dispose of the 2% 
excess.
    Example 2. (i) Assume the same facts as in Example (1) except that 
the 20% of X stock held by F was donated by X corporation, was worth 
more than $5,000 and represented 20% of the contributions received by 
the foundation through the end of the taxable year in which the gift of 
stock was made.
    (ii) X corporation is a disqualified person with respect to F under 
section 4946(a)(1)(A). Under subparagraph (4), the redemption of X stock 
is not treated as a purchase by a disqualified person merely because X 
is a disqualified person with respect to F. Therefore the rules of this 
paragraph apply as if the redemption were made by a corporation which is 
not a disqualified person. The analysis and result are the same as in 
Example (1).
    Example 3. (i) On May 1, 1990, F, a private foundation, received a 
donation of 40% of the stock of X corporation, a business enterprise. 
Neither F nor any disqualified person with respect to F holds any other 
interest in X. On June 1, 1992, the X corporation redeemed F's 40% 
interest in exchange for 100% of the stock of Y corporation, a wholly-
owned subsidiary of X. Assume the redemption by X is not a prohibited 
transaction.
    (ii) Under section 4943(c)(6), the X stock acquired by gift is 
treated as held by disqualified persons through April 30, 1995. Under 
subparagraph (3) of this paragraph (d), 40% of the 100% interest in Y 
received in exchange for F's 40% interest in X is treated as F's 40% 
interest in X and is therefore treated as held by disqualified persons 
through April 30, 1995. In addition, under subparagraph (1) of this 
paragraph (d), the 60% interest in Y that represents an increase in 
holdings above the 40% held before the readjustment will be treated as 
acquired other than by purchase. However, F's 20% interest in X in 
excess of 20% permitted holdings under 4943(c)(2) would have been excess 
business holdings if such interest had not been treated as held by as 
disqualified person on June 1, 1992. Therefore, to the extent of a 30% 
interest in Y, (i.e. , the portion of the increased holdings in Y 
attributable to F's 20% holdings in X) the increased holdings will be 
treated as held by disqualified person only through April 30, 1995, 
since this is the latest date on which F's original 40% interest in X 
would have been treated as held by disqualified persons. The remaining 
30% interest in Y will be treated as held by disqualified persons for 
five years from the date of the exchange (through May 31, 1997).

    (e) Constructive holdings. Any change in holdings in a business 
enterprise that occurs because a corporation ceases to be actively 
engaged in a trade or business, thus causing its holdings to be 
constructively owned by its shareholders, shall be treated as acquired 
other than by purchase.
    (f) Certain transactions treated as purchases; cross references. For 
the application of section 4943(c)(6) to holdings that were not an 
interest in a business enterprise when acquired but that subsequently 
become holdings in a business enterprise, see Sec.  53.4943-10(d)(2).

[T.D. 7496, 42 FR 46285, Sept. 15, 1977, as amended by T.D. 7944, 49 FR 
6479, Feb. 22, 1984]



Sec.  53.4943-7  Special rules for readjustments 
involving grandfathered holdings.

    (a) General rules--(1) Readjustments. Except to the extent provided 
in paragraph (b) of this section, if a private foundation, its 
disqualified persons, or both together have holdings in a corporation to 
which section 4943(c) (4) or (5) applies, stock of a corporation 
received by the foundation, its disqualified persons, or both together 
in a readjustment (as defined in paragraph (d)(1) of this section) in 
exchange for such holdings to which section 4943 (c) (4) or (5) applies 
shall be treated, for purposes of section 4943 (c) (4) or (5), as the 
stock surrendered in the exchange.
    (2) No exchange necessary. Paragraph (a)(1) of this section shall 
apply to all readjustments even if no exchange occurs. For purposes of 
this section, all stock held (directly or indirectly) before a 
readjustment in any corporation

[[Page 152]]

involved in the readjustment shall be treated as stock surrendered in 
the readjustment and all stock held (directly or indirectly) after the 
readjustment in any corporation involved in the readjustment shall be 
treated as stock received in the readjustment in exchange for the stock 
treated as surrendered.
    (b) Exceptions and limitations--(1) Limitation on increases in 
percentage of voting stock. (i) If the percentage of voting stock in a 
business enterprise owned (directly or indirectly) by a private 
foundation by reason of its ownership of stock received in an exchange 
described in paragraph (a) of this section exceeds the greatest 
percentage of voting stock in any business enterprise owned (directly or 
indirectly) by the private foundation prior to such exchange by reason 
of its ownership of the stock surrendered by it in the exchange, then:
    (A) That portion of the stock received by the private foundation in 
the exchange which represents such excess is to be treated as an 
increase in the holdings of the private foundation in accordance with 
Sec.  53.4943-6 (d), and
    (B) Only the remaining portion of the stock received by the private 
foundation in the exchange shall be treated as the stock surrendered by 
the private foundation in the exchange.
    (ii) If the sum of the percentage of voting stock in a business 
enterprise owned (directly or indirectly) by disqualified persons by 
reason of their ownership of stock received in an exchange described in 
paragraph (a) of this section plus the percentage of voting stock in the 
business enterprise owned (directly or indirectly) by the private 
foundation by reason of its ownership of stock received in the exchange 
and treated as the stock surrendered under paragraph (b) (1) (i) of this 
section exceeds the greatest percentage of voting stock in any business 
enterprise owned (directly or indirectly) by the private foundation and 
its disqualified person in combination by reason of their ownership of 
the stock surrendered by them in the exchange, then:
    (A) That portion of the stock received by the disqualified persons 
in the exchange which represents such excess is to be treated as an 
increase in the holdings of the disqualified persons in accordance with 
Sec.  53.4943-6(d), and
    (B) Only the remaining portion of the stock received by the 
disqualified persons in the exchange is to be treated as the stock 
surrendered by the disqualified persons in the exchange.
    (2) Limitation on increase in percentage of value. (i) If the 
percentage of value of all outstanding shares of all classes of stock in 
a business enterprise owned (directly or indirectly) by a private 
foundation by reason of its ownership of stock received in an exhange 
described in paragraph (a) of this section exceeds the greatest 
percentage of such value in any business enterprise owned (directly or 
indirectly) by the private foundation prior to such exchange by reason 
of its ownership of the stock surrendered by it in the exchange, then:
    (A) That portion of the stock received by the private foundation in 
the exchange which represents such excess is to be treated as an 
increase in the holdings of the private foundation in accordance with 
Sec.  53.4943-6(d), and
    (B) Only the remaining portion of the stock received by the private 
foundation in the exchange shall be treated as the stock surrendered by 
the private foundation in the exchange.
    (ii) If the sum of the percentage of value of all outstanding shares 
of all classes of stock in a business enterprise owned (directly or 
indirectly) by disqualified persons by reason of their ownership of 
stock received in an exchange described in paragraph (a) of this section 
plus the percentage of such value in the business enterprise owned 
(directly or indirectly) by the private foundation by reason of its 
ownership of stock received in the exchange and treated as the stock 
surrendered under paragraph (b)(2)(i) of this section exceeds the 
greatest percentage of such value in any business enterprise owned 
(directly or indirectly) by the private foundation and its disqualified 
persons in combination prior to the exchange by reason of their 
ownership of the stock surrendered by them in the exchange, then:
    (A) That portion of the stock received by the disqualified persons 
in the exchange which represents such excess is to be treated as an 
increase in

[[Page 153]]

the holdings of the disqualified persons in accordance with Sec.  
53.4943-6(d), and
    (B) Only the remaining portion of the stock received by the 
disqualified persons in the exchange is to be treated as the stock 
surrendered by the disqualified persons in the exchange.
    (3) Increases in percentage of both voting stock and value. (i) If, 
as the result of an exchange described in paragraph (a) of this section, 
a private foundation has excesses determined under both paragraphs 
(b)(1)(i) and (b)(2)(i) of this section, then:
    (A) That portion of the stock received by the private foundation in 
the exchange that represents the larger excess is to be treated as an 
increase in the holdings of the private foundation in accordance with 
Sec.  53.4943-6(d), and
    (B) Only the remaining portion of the stock received by the private 
foundation in the exchange is to be treated as the stock surrendered by 
the private foundation in the exchange.
    (ii) If as the result of an exchange described in paragraph (a) of 
this section, disqualified persons have excesses determined under both 
paragraphs (b)(1)(ii) and (b)(2)(ii) of this section, then:
    (A) That portion of the stock received by the disqualified persons 
in the exchange that represents the larger excess is to be treated as an 
increase in the holdings of the disqualified persons in accordance with 
Sec.  53.4943-6(d), and
    (B) Only the remaining portion of the stock received by disqualified 
persons in the exchange is to be treated as the stock surrendered by 
disqualified persons in the exchange.
    (4) Exception for prohibited transactions. If a readjustment 
includes a prohibited transaction, as defined in paragraph (d)(2) of 
this section, then this paragraph shall be applied substituting, for 
purposes of paragraph (b)(1) and (b)(2), the lowest percentage of voting 
power or value owned prior to the exchange in any business enterprise 
involved in the readjustment to which the exchange relates for the 
greatest percentage of voting power or value in any business enterprise 
owned by reason of ownership of the stock surrendered in the exchange.
    (5) Voting and value levels. After an exchange described in 
paragraph (a) of this section, the private foundation voting and value 
levels, and the substituted combined voting and value levels (as defined 
in Sec.  53.4943-4(d)(2)) shall be the lesser of each respective level 
immediately prior to the exchange with respect to the stock surrendered 
in the exchange and each such respective level determined immediately 
after the exchange by taking into account only the stock received in the 
exchange that is treated under this paragraph as the stock surrendered 
in the exchange. If the stock of more than one corporation is 
surrendered in exchange for stock of one corporation, the highest of 
each voting or value level determined immediately prior to the exchange 
with respect to the stock of the corporations surrendered in the 
exchange shall be treated as such level immediately prior to the 
exchange.
    (6) Determination of phases--(i) In general. Stock received in an 
exchange described in paragraph (a) of this section that is treated as 
stock surrendered in the exchange under this paragraph shall be treated 
as subject to the same first, second, and third phases that were 
applicable to the stock surrendered for it. For purposes of determining 
the applicable phases, stock received in an exchange shall be treated as 
received in exchange for particular holdings of stock surrendered based 
on the terms of the exchange. Where only a portion of the stock received 
is treated as the stock surrendered, such portion of the stock received 
shall be treated as exchanged for particular holdings of stock 
surrendered in the same proportions as the total stock received was 
exchanged for particular holdings of stock surrendered. For example, if 
20 shares of X stock owned by a private foundation, subject to a first 
phase beginning on January 1, 1978 and ending on December 31, 1987, are 
exchanged for 20 shares of Y stock, and 40 shares of X stock owned by 
the private foundation, subject to a first phase beginning on June 1, 
1980 and ending on May 31, 1990, are exchanged for 40 shares of Y stock, 
then \1/3\ of the Y stock received by the private foundation is treated 
as received in exchanged for X stock having the January 1, 1978-December 
31, 1987 first phase and \2/3\ of the Y stock received by the private

[[Page 154]]

foundation is treated as received in exchange for the X stock having the 
June 1, 1980-May 31, 1990 first phase. If only 30 shares of the Y stock 
received by the private foundation are treated as the stock surrendered, 
then \1/3\ (10 Y shares) will be subject to the January 1, 1978-December 
31, 1987 first phase and \2/3\ (20 Y shares) will be subject to the June 
1, 1980-May 31, 1990 first phase.
    (ii) Transitional rule. In any case in which holdings subject to 
section 4943(c)(4) or 4943(c)(5) have been consolidated prior to May 22, 
1984, then the longest first phase applicable to any of the holdings 
surrendered in the consolidation shall be applied to the holdings 
received by the foundation in the consolidation that are treated as the 
holdings surrendered in the consolidation. For purposes of this clause, 
a consolidation is any readjustment that results in a reduction in the 
number of entities in which the foundation has direct holdings.
    (c) Plan to dispose of excess business holdings. (1) Notwithstanding 
Sec.  53.4943-4(d)(i)(4)(D) (relating to restrictions on increases in 
levels) and paragraphs (a) and (b) of this section, if a readjustment 
occurs under an approved plan to dispose of stock to which section 
4943(c) (4) or (5) applies, in order to meet the requirements of section 
4943(c)(4) (i.e., to meet the reduced limits that will be applicable 
after the first phase holding period described in Sec.  53.4943-4(c)) or 
to meet the requirements of section 4943(c)(2), all of the stock 
received in the readjustment shall be treated as held by disqualified 
persons through the end of the longest first phase holding period 
applicable to stock surrendered in the readjustment. The foundation and 
substituted combined voting and value levels shall not be increased on 
account of the readjustment.
    (2) For purposes of this paragraph, a plan is an approved plan only 
if it is approved by the Commissioner and may be subject to such 
conditions as the Commissioner determines. A plan must be approved prior 
to any exchange or distribution pursuant to the plan except for a 
showing of good cause such as a business emergency.
    (d) Definitions--(1) Readjustments. For purposes of this section, 
the term ``readjustment'' includes, but is not limited to:
    (i) A merger or consolidation;
    (ii) A recapitalization;
    (iii) An acquisition of stock or assets;
    (iv) A transfer of assets;
    (v) A change in identity, form, or place of organization, however 
effected;
    (vi) A redemption;
    (vii) A distribution of assets or of stock, including a distribution 
to which section 301, 302, 331, or 355 applies or a distribution of 
stock of the distributing corporation.
    (2) Prohibited transaction. A prohibited transaction is any 
transaction involving a private foundation that has holdings in a 
business enterprise which:
    (i) Acquires stock (or similar interest in the case of an 
unincorporated entity) or assets of a business enterprise or redeems its 
own stock (or similar interest in the case of an unincorporated entity) 
using cash or other property transferred to the acquiring business 
enterprise (e.g., as a contribution to capital) by the private 
foundation, its disqualified persons, or both;
    (ii) Acquires stock (or similar interest in the case of an 
unincorporated entity) or assets of a business enterprise or redeems its 
own stock (or similar interest in the case of an unincorporated entity) 
using the proceeds of a loan made to, or guaranteed by, the private 
foundation, its disqualified persons, or both;
    (iii) Acquires 40 percent or more of the voting stock (or similar 
interest in the case of an unincorporated entity), 40 percent or more of 
the value of all outstanding shares of all classes of stock (or similar 
interest in the case of an unincorporated entity), or 40 percent or more 
of the assets of a business enterprise if the acquiring business 
enterprise's net assets used in its trade or business prior to such 
acquisition are insubstantial when compared to the net assets acquired 
or when compared to the net assets of the business enterprise, the stock 
(or similar interest in the case of an unincorporated entity) of which 
was acquired. For this purpose, an insubstantial ratio means a ratio 
that is 15% or less; or
    (iv) Is used as a device to acquire or expand excess business 
holdings. The

[[Page 155]]

determination of whether a business enterprise is used as a device to 
acquire or expand excess business holdings shall be determined based on 
all the facts and circumstances. A business enterprise shall be presumed 
to have been used as a device to acquire or expand excess business 
holdings if it acquires 40 percent or more of the voting stock (or 
similar interest in the case of an unincorporated entity), 40 percent or 
more of the value of all outstanding shares of all classes of stock (or 
similar interest in the case of an unincorporated entity), or 40 percent 
or more of the assets of a business enterprise if the consideration for 
the acquisition consists primarily of nonvoting stock (or similar 
interest in the case of an unincorporated entity) of the acquiring 
business enterprise.
    (3) Corporation involved in a readjustment. A corporation shall be 
treated as involved in a readjustment if, as part of the readjustment, 
any stock of the corporation is issued or redeemed, or any stock or 
assets of the corporation are distributed, exchanged, purchased, sold, 
acquired, or otherwise transferred.
    (e) Application to unincorporated business enterprise. The rules of 
this section shall apply equally to partnerships and other 
unincorporated business enterprises, applying the rules and 
substitutions provided in Sec.  53.4943-3(c)(2), (3), and (4).
    (f) Examples. The provisions of this section and Sec.  53.4943-6(d) 
are illustrated by the following examples, which assume no prohibited 
transactions are involved unless otherwise stated:

    Example 1. (i) F, a private foundation, has owned 80% of the one 
outstanding class of stock of X corporation since 1965. The X is subject 
to section 4943(c)(4) with a first phase ending on May 25, 1984. On 
January 1, 1982, X merges with Y corporation to form Z corporation. X, 
Y, and Z are active business corporations. F owns no Y stock. No 
disqualified person with respect to F owns any stock in Y.Y, or Z. After 
the merger, F owns 25% of the one outstanding class of Z stock. Third 
parties do not control Z so that the 35% permitted holdings rule under 
section 4943(c)(2) is inapplicable
    (ii) F's percentage of voting power and value in Z after the merger 
(25%) are less than F's percentages of voting power and value in X 
before the merger (80%). Therefore, under paragraph (a)(1) of this 
section, all of F's holdings in Z are treated as the X stock 
surrendered. Therefore, the Z stock is treated as subject to section 
4943(c)(4) with a first phase ending on May 25, 1984. Under downward 
ratchet of paragraph (a)(5) of this section, the foundation voting and 
value levels and the substituted combined voting and value levels are 
reduced to 25%.
    Example 2. (i) F, a private foundation, owns 100% of the one 
outstanding class of stock in X corporation and 30% of the one 
outstanding class of stock in Y corporation. F has held this stock 
continuously since 1960, and no disqualified person has even owned any 
stock in X or Y. Under section 4943(c)(4), F's holdings in X are treated 
as held by disqualified persons through the end of the first phase on 
May 25, 1989, and F's holdings in Y are permitted holdings during the 
second phase, which began on May 25, 1989, and F's holdings in Y are 
permitted holdings during the second phase, which began on May 26, 1979. 
On January 1, 1985, X and Y consolidate, forming a new corporation Z. In 
the consolidation, F acquires 50% of the one class of outstanding stock 
of Z, 40% in exchange for F's 100% interest in X and 10% in exchange for 
F's 30% interest in Y. Unrelated parties hold the remaining 50% of Z.
    (ii) F's percentage of voting power and value in Z after the merger 
(50%) are less than F's percentages of voting power and value in X 
before the merger (100%). Thus, under paragraph (a)(1) of this section, 
the 50% interest in Z held by F is treated as the stock surrendered in 
the exchange for purposes of section 4943(c)(4). Under paragraph (b)(6) 
of this section, the 10% interest in Z received for the Y stock is 
subject to the same second phase period as the surrendered Y stock. The 
40% interest first phase period as the surrendered X stock.
    Example 3. (i) F, a private foundation, owns 50% of the one class of 
outstanding stock in X corporation which F has held continuously since 
1935. No disqualified person with respect to F owns any stock in X. 
Neither F nor any disqualified person with respect to F owns any stock 
in Y corporation. On July 1, 1982, X and Y enter into an agreement to 
consolidate their businesses in a reorganization to which section 
368(a)(1)(A) will apply. As a result of the contemplated consolidation, 
F will own 60% of the voting stock in Z, the resulting corporation. In 
addition, parties unrelated to F will own the remaining 40% of the Z 
voting stock and 100% of a new issue of nonvoting preferred stock in Z. 
Assume for purposes of this example, that the 60% of the voting stock to 
be held by F in Z will represent 50% of the fair market value of the 
outstanding Z stock.
    (ii) Under the provisions of paragraph (b)(1) of this section, that 
portion of the Z stock held by F which represents a percentage of voting 
power equivalent to that held by F in X immediately prior to the 
consolidation

[[Page 156]]

(i.e., 50%) will be treated as the X stock held by F on May 26, 1969, 
for purposes of section 4943(c)(4). Therefore, 50% of the Y stock will 
be treated as subject to a second phase ending on May 25, 1994. The 
remaining portion of the Z voting stock held by F (10%) is subject to 
the provisions of Sec.  53.4943-6(d)(1). F will have five years from the 
date of the merger in which to dispose of 10% of the Z stock without 
incurring the tax on excess business holdings.
    Example 4. (i) F, a private foundation, owns 80% of the one class of 
outstanding stock in X corporation, an active business corporation. F 
has held this stock continuously since 1960 and no disqualified person 
with respect to F owns any stock in X. X has two operating divisions, 
one which manufacturers shoes and the other which manufactures 
refrigerators. On January 1, 1978, in a section 351(a) exchange, X 
transferred all of the assets of its shoe manufacturing division to Y, a 
corporation which X has formed for this purpose, and receives 100% of 
the stock of Y so that Y is a wholly-owned subsidiary of X. X then 
transfers all of the Y stock to F in exchange for all of F's holdings of 
X stock in a distribution to which section 355 applies.
    (ii) Under paragraph (b)(1) of this section, 80% of the Y stock is 
treated as the X stock surrendered in the exchange for purposes of 
section 4943(c)(4). The 80% is treated under Sec.  53.4943-4(c) as held 
by disqualified persons through May 25, 1984, which constitutes the 15-
year first phase holding period applicable to the 80% holding in X. The 
80% of the Y stock must be reduced to the permitted holdings allowed 
during the second and third phase as provided by section 4943(c)(4)(D) 
in the same manner as F's holdings of X stock would have had to have 
been reduced.
    (iii) Under Sec.  53.4943-6(d)(1), the remaining 20% of Y stock is 
treated as held by a disqualified person for five years from the date of 
the exchange. F will have five years from the date of the exchange in 
which to dispose of 20% of the Y stock without incurring the tax on 
excess business holdings.
    Example 5. (i) X corporation, an active business corporation, has 
outstanding 1,000 shares of one class of stock, of which 600 shares have 
been held by F1, a private foundation; 100 shares have been held by F2, 
another private foundation; and 100 shares have been held by D, a 
disqualified person with respect to both F1 and F2. Unrelated parties 
hold the remaining 200 shares. F1 and F2 are disqualified persons with 
respect to each other under section 4946(a)(1)(H). Thus, F1 holds 60% of 
the X stock (600/1000); F2 and D each hold 10% (100/1000); and the 
foundation group (F1, F2 and D) holds 80% of X (800/1000). The holdings 
of F1 and F2 were acquired on January 1, 1980 pursuant to a pre-1969 
will and are subject to section 4943(c)(5). There have been no changes 
in holdings since January 1, 1980.
    (ii) On January 1, 1985, pursuant to a plan to dispose of excess 
business holdings approved by the Commissioner under paragraph (c) of 
this section, X redeems for cash the 600 shares held by F1. After the 
redemption, D and F2 each hold 25% of X (100/400). F1 no longer holds 
any X stocks. The foundation group's holdings (F1, F2 and D) have 
decreased from 80% to 50% while holdings of unrelated parties have 
increased from 20% to 50%. At the same time F2's and D's holdings each 
have increased from 10% to 25%.
    (iii) Notwithstanding the increase in F2's and D's holdings, under 
paragraph (c) of this section, all of the X stock held by F2 will be 
treated as held by a disqualified person through the end of the first 
phase (December 31, 1994). However, the foundation voting and value 
levels do not increase. Therefore, after the end of the first phase, 
F2's holdings in X may not exceed 10 percent (if the combined holdings 
of F1, F2 and D exceed the permitted holdings under section 4943(c)(2)).
    Example 6. (i) X corporation, an active business corporation, has 
outstanding 1,000 shares of its one class of stock. Since 1960, 100 
shares (10%) have been held by F, a private foundation and 350 shares 
(35%) have been held by D, a disqualified person with respect to F. All 
of the stock held by F is permitted holdings under section 4943(c)(4) 
and the substituted combined voting and value levels are 45% (10% + 
35%). Because of disagreements concerning management of X between D and 
A, an unrelated party who holds 300 shares (30%) of the X stock, X 
redeems all of A's shares on December 1, 1981.
    (ii) After the redemption, F holds 14.3% (100/700) of the X stock 
and D holds 50% (350/700), for combined holdings of 64.3%. Because the 
combined holdings exceed the substituted combined voting level (45%) by 
more than F's entire holdings, all of the F stock is excess business 
holdings. However, all of F's stock will be treated as acquired other 
than by purchase under Sec.  53.4943-6(d)(1) and therefore will be 
treated under section 4943(c)(6) and this section, as held by a 
disqualified person for five years from the date of the redemption 
(through November 30, 1986). If the combined holdings of F and its 
disqualified person are reduced to 45 percent by the end of the five 
year period, F may retain a portion of its holdings in X (limited to no 
more than the foundation voting and value level of 10 percent).
    Example 7. Assume the same facts as in Example (6), except that D 
loaned the money to X that was used to redeem A's shares. Under these 
facts, the increased holdings result from a prohibited transaction 
described in paragraph (d)(2) of this section. Therefore, all of F's 
stock will be treated as acquired by purchase by a disqualified person 
under Sec.  53.4943-6(d)(2). F will have 90 days after the

[[Page 157]]

redemption in which to dispose of its holdings or to reduce its holdings 
and the combined holdings to the levels held prior to the redemption as 
discussed in Example (6).
    Example 8. (i) F, a private foundation, has held 100% of the 
outstanding stock of X corporation since 1960. F also holds 15% of the 
voting stock of Y corporation. Both X and Y are active business 
corporations. X has $1 million in net assets used in its trade or 
business and Y has $6.7 million used in its trade or business. On June 
1, 1985, Y is merged into X. After the merger F holds 25% of the voting 
stock of X. No person other than F controls X after the merger.
    (ii) Because more than 40% of Y was acquired and the net assets of 
X, the acquiring corporation, used in its trade or business prior to the 
merger represent less than 15% of the net assets of Y used in its trade 
or business, the merger is a prohibited transaction described in 
paragraph (d)(2)(iii). Therefore, only 15% of the stock X is treated, 
pursuant to paragraph (b), as the stock held by F prior to the 
redemption. F's holding of 5% (the excess of F's 25% holdings over the 
20% permitted holdings in X (determined under section 4943(c)(2)) are 
treated as purchased by a disqualified person pursuant to Sec.  53.4943-
6(d)(2). F will have 90 days after June 1, 1985, in which to dispose of 
the 5% excess holdings.

[T.D. 7944, 49 FR 6480, Feb. 22, 1984]



Sec.  53.4943-8  Business holdings; constructive ownership.

    (a) Constructive ownership--(1) In general. For purposes of section 
4943, in computing the holdings in a business enterprise of a private 
foundation, or a disqualified person (as defined in section 4946), any 
stock or other interest owned, directly or indirectly, by or for a 
corporation, partnership, estate or trust shall be considered as being 
owned proportionately by or for its shareholders, partners, or 
beneficiaries except as otherwise provied paragraphs (b), (c) and (d) of 
this section. Any interest in a business enterprise actually or 
constructively owned by a shareholder of a corporation, a partner of a 
partnership, or beneficiary of an estate or trust shall not be 
considered as constructively held by the corporation, partnership, trust 
or estate. Further, if any corporation, partnership, estate or trust has 
a warrant or other option to acquire an interest in a business 
enterprise, such interest is not deemed to be constructively owned by 
such entity until the option is exercised. (See paragraph (b)(2) of 
Sec.  53.4943-3 for rules that options are not stock for purposes of 
determining excess business holdings.)
    (2) Powers of appointment. Any interest in business enterprise over 
which a foundation or a disqualified person has a power of appointment 
exercisable in favor of the foundation or a disqualified person shall be 
considered owned by the foundation or disqualified person holding such 
power of appointment.
    (3) Determination of extent of constructive ownership. If an 
interest in a business enterprise owned by a corporation is 
constructively owned by a shareholder, each shareholder's proportion of 
ownership is generally computed on the basis of the voting stock each 
shareholder has in the corporation. In determining holdings permitted 
under section 4943(c) (4) and (5), each shareholder's proportion of 
ownership in the business enterprise shall also be computed on the basis 
of value, taking into account both voting and nonvoting stock held by 
the shareholder.
    (4) Nonvoting stock. If a private foundation, its disqualified 
persons, or both, own (directly or constructively) nonvoting stock of a 
parent corporation, the holdings of which are treated as constructively 
owned by its shareholders by reason of section 4943(d)(1) and this 
section, such nonvoting stock shall be treated as nonvoting stock of any 
corporation in which the parent corporation holds an interest for 
purposes of the limitation on the holding of nonvoting stock under 
section 4943(c)(2)(A) and Sec.  53.4943-3(b)(2).
    (5) Interests held by certain disqualified persons. In the case of 
an entity that is a disqualified person (other than an entity described 
in section 4946(a)(1)(H)), the holdings of which are treated as 
constructively owned by its shareholders, partners, or beneficiaries, 
for purposes of determining the total holdings of disqualified persons 
the holdings of the entity shall be considered held by a disqualified 
person only to the extent such holdings are treated as constructively 
owned by disqualified persons who are shareholders, partners, or 
beneficiaries of the entity. In the case of an entity described in 
section 4946(a)(1)(H) or an entity, the holdings

[[Page 158]]

of which are not treated as constructively owned by its shareholders, 
partners, or beneficiaries, all holdings of such entity shall be treated 
as held by a disqualified person if and only if the entity itself is a 
disqualified person.
    (b) Estates and trusts--(1) In general. Any interest actually or 
constructively owned by an estate or trust is deemed constructively 
owned, in the case of an estate, by its beneficiaries or, in the case of 
a trust, by its remainder beneficiaries except as provided in paragraphs 
(b) (2), (3) and (4) of this section (relating to certain split-interest 
trusts described in section 4947(a)(2), to trusts of qualified pension, 
profit-sharing, and stock bonus plans described in section 401(a) and to 
revocable trusts). Thus, if a trust owns 100 percent of the stock of a 
corporation A, and if, on an actuarial basis, W's life interest in the 
trust is 15 percent, Y's life interest is 25 percent, and Z's remainder 
interest is 60 percent, under this paragraph (b), Z will be considered 
to be the owner of 100 percent of the stock of corporation A. See Sec.  
53.4943-4, Sec.  53.4943-5 and Sec.  53.4943-6 for rules relating to 
certain actual or constructive holdings of a foundation being treated as 
held by a disqualified person. For the treatment of certain property 
acquired by an estate or trust after May 26, 1969, see paragraph (a)(2) 
of Sec.  53.4943-5.
    (2) Split-interest trusts--(i) Amounts transferred in trust after 
May 26, 1969. In the case of an interest in a business enterprise which 
was transferred to a trust described in section 4947(a)(2) after May 26, 
1969, for the benefit of a private foundation, no portion of such 
interest shall be considered as owned by the private foundation:
    (A) If the foundation holds only an income interest in the trust, or
    (B) If the foundation holds only a remainder interest in the trust 
(unless the foundation can exercise primary investment discretion with 
respect to such interest)

until such trust ceases to be so described. See section 4947(a)(2) and 
(b)(3) and the regulations thereunder for rules relating to such trusts. 
See also sections 4946(a)(1) (G) and (H) and the regulations thereunder 
for rules relating to when a trust described in this paragraph (b)(2) is 
itself a disqualified person.
    (ii) Amounts transferred in trust on or before May 26, 1969. In the 
case of an interest in a business enterprise which was transferred to a 
trust described in section 4947(a)(2) (without regard to section 
4947(a)(2)(C)) on or before May 26, 1969, for the benefit of a private 
foundation, no portion of such interest shall be considered as owned by 
the foundation until it is actually distributed to the foundation or 
until the trust ceases to be so described. See section 4943(c)(5) and 
Sec.  53.4943-5 for rules relating to certain trusts which were 
irrevocable on May 26, 1969.
    (3) Employee benefit trusts. An interest in a business enterprise 
owned by a trust described in section 401(a) (pension and profit-sharing 
plans) shall not be considered as owned by its beneficiaries, unless 
disqualified persons (within the meaning of section 4946) control the 
investment of the trust assets.
    (4) Revocable trusts. An interest in a business enterprise owned by 
a revocable trust shall be treated as owned by the grantor of such 
trust.
    (5) Estates. For purposes of applying section 4943(d)(1) to estates, 
the term ``beneficiary'' includes any person (including a private 
foundation) entitled to receive property of a decedent pursuant to a 
will or pursuant to laws of descent and distribution. However, a person 
shall no longer be considered a beneficiary of an estate when all the 
property to which he is entitled has been received by him, when he no 
longer has a claim against the estate and when there is only a remote 
possibility that it will be necessary for the estate to seek the return 
of property or to seek payment from him by contribution or otherwise to 
satisfy claims against the estate or expenses of administration. When 
pursuant to the preceding sentence, a person (including a private 
foundation) ceases to be a beneficiary, stock or another interest in a 
business enterprise owned by the estate shall not thereafter be 
considered owned by such person. If any person is the constructive owner 
of an interest in a business enterprise actually held by an estate, the 
date of death of the testator or decedent intestate shall

[[Page 159]]

be the first day on which such person shall be considered a constructive 
owner of such interest. See Sec.  53.4943-5 for rules relating to wills 
executed on or before May 26, 1969.
    (c) Corporation actively engaged in a trade or business--(1) In 
general. Except as provided in paragraphs (c)(2) and (3) of this 
section, any interest (whether or not in a separate entity) owned by a 
corporation which is actively engaged in a trade or business shall not 
be deemed to be constructively owned by such corporation's shareholders.
    (2) Actively engaged in a trade or business. For purposes of 
paragraph (c)(1) of this section:
    (i) A corporation shall not be considerd to be actively engaged in a 
trade or business if the corporation is not a business enterprise by 
reason of section 4943(d)(3) (A) or (B) and Sec.  53.4943-10 (b) or (c);
    (ii) In the case of a corporation which owns passive holdings and is 
actively engaged in a trade or business, such corporation shall not be 
considered to be actively engaged in a trade or business if the net 
assets used in such trade or business are insubstantial when compared to 
passive holdings.
    (3) Exceptions. If a corporation has been involved in a prohibited 
transaction, any interest in a business enterprise owned by such 
corporation shall be treated as constructively owned by its 
shareholders, whether or not such corporation is actively engaged in a 
trade or business. For a definition of prohibited transaction, see Sec.  
53.4943-7 (d)(2).
    (4) Affiliated group. In applying this paragraph to the common 
parent in an affiliated group (as defined in Sec.  53.4943-10 
(c)(3)(ii)), the assets and activities of the affiliated group shall be 
treated as the assets and activities of the common parent.
    (d) Partnerships. Any interest in a business enterprise which is 
owned by a partnership shall be deemed to be constructively owned by the 
partners in such partnerships.
    (e) Examples. The provisions of this section are illustrated by the 
following examples.

    Example 1. F, a private foundation, directly owns voting stock of X, 
a holding company described in section 4943(d)(3)(B). That stock 
represents 40% of the voting power in X and 20% of the value of all 
outstanding shares of all classes of stock in X. F also owns nonvoting 
stock in X that represents 10% of the value of all outstanding shares of 
all classes of stock in X. D, a disqualified person, owns voting stock 
of X that represents 40% of the voting power in X and 20% of the value. 
D does not own any nonvoting stock in X. X corporation's only holding is 
stock of Y corporation. The Y voting stock held by X represents 50% of 
the voting power in Y and 25% of the value of all outstanding shares of 
all classes of stock in Y. X also owns nonvoting stock in Y that 
represents 25% of the value of all outstanding shares of all classes of 
stock in Y. Under paragraph (a)(3) of this section, F and D each 
constructively owns 20% of the voting power in Y through their voting 
interest in X (40% of X's 50% of Y). F also constructively owns 15% of 
the value of all outstanding shares of all classes of stock in Y through 
F's interest in X (F's 30% of the value of X multiplied by X's 50% of 
the value of Y), while D constructively owns 10% of the value of Y (D's 
20% of the value of X multiplied by X's 50% of the value of Y).
    Example 2. (i) F, a private foundation, owns 50% of the one class of 
nonvoting stock of X corporation, a corporation described in section 
4943(d)(3)(B) and paragraph (c)(2)(i) above. D, a disqualified person 
with respect to F as described in section 4946(a)(1)(A), owns 40% of the 
one class of voting stock of X. X corporation is a disqualified person 
with respect to F because D owns more than 35% of the voting of X. (See 
section 4946(a)(1)(E)). On January 1, 1980, X purchases for cash 40% of 
the only class of stock of Y corporation, a retail clothing store, from 
unrelated third parties.
    (ii) Under paragraph (a)(4) of this section, F is treated as owning 
nonvoting stock of Y. Although X is a disqualified person, its holdings 
are not treated as held by disqualified persons except as constructive 
holdings. Therefore, the ``deemed'' nonvoting stock in Y is a permitted 
holding because D, a disqualified person with respect to F, 
constructively owns only 16% of the voting stock of Y (less than 20% 
permitted under section 4943(c)(2)).
    Example 3. (i) The facts are the same as in Example (2), except that 
X purchases 100% of this stock of Y corporation. Under paragraph (a)(4) 
of this section, F is treated as owning nonvoting stock of Y. The 
``deemed'' nonvoting stock in Y is not a permitted holdings because D, a 
disqualified person with respect to F, constructively owns 40% of the 
voting stock of Y.
    Example 4. (i) D, a disqualified person with respect to F, owns 40% 
of the one class of stock in X corporation, an active business. X is a 
disqualified person with respect to F. X

[[Page 160]]

acquires 40% of the voting stock in Y corporation. Under paragraph 
(a)(5) of this section, the holdings of X in Y are treated as held by a 
disqualified person. F cannot hold any Y stock, voting or nonvoting.

[T.D. 7496, 42 FR 46285, Sept. 15, 1977, as amended by T.D. 7944, 49 FR 
6484, Feb. 22, 1984]



Sec.  53.4943-9  Business holdings; certain periods.

    (a) Taxable period--(1) In general. For purposes of section 4943, 
the term ``taxable period'' means, with respect to any excess business 
holdings of a private foundation in a business enterprise, the period 
beginning with the first day on which there are such excess business 
holdings and ending on the earliest of:
    (i) The date of mailing of a notice of deficiency under section 6212 
with respect to the tax imposed on the holdings by the section 4943(a);
    (ii) The date on which the excess is eliminated; or
    (iii) The date on which the tax imposed by section 4943(a) is 
assessed.

For example, M, a private foundation, first has excess business holdings 
in X, a corporation, on February 5, 1972. A notice of deficiency is 
mailed under section 6212 to M on June 1, 1974. With respect to M's 
excess business holdings in X, the taxable period begins on February 5, 
1972, and ends on June 1, 1974.
    (2) Special rule. Where a notice of deficiency referred to in 
subparagraph (1)(i) of this paragraph is not mailed because there is a 
waiver of the restrictions on assessment and collection of a deficiency, 
or because the deficiency is paid, the date of filing of the waiver or 
the date of such payment, respectively, shall be treated as the end of 
the taxable period.
    (3) Suspension of taxable period for 90 days. In any case in which a 
private foundation has excess business holdings solely because of the 
acquisition of an interest in a business enterprise to which paragraph 
(a)(1) (ii) or (iii) of Sec.  53.4943-2 applies, the taxable period 
described in paragraph (a) of this section shall be suspended for the 
90-day period (as extended) starting with the date on which the 
foundation knows or has reason to know of the acquisition, provided that 
at the end of such period the foundation has disposed of such excess 
holdings.
    (b) Cross reference. For rules relating to taxable events that are 
corrected within the correction period, defined in section 4863(e), see 
section 4861(a) and the regulations thereunder.
    (c) Correction. For purposes of section 4943, correction shall be 
considered as made when no interest in the enterprise held by the 
foundation is classified as an excess business holdings under section 
4943(c)(1). In any case where the private foundation has excess business 
holdings which are constructively held for it under section 4943(c)(1), 
correction shall be considered made when either a corporation, 
partnership, estate, or trust in which holdings in such enterprise are 
constructively held for the foundation or a disqualified person; the 
foundation itself; or a disqualified person disposes of a sufficient 
interest in the enterprise so that no interest in the enterprise held by 
the foundation is classified as excess business holdings under section 
4943(c)(1).

[T.D. 7496, 42 FR 46285, Sept. 15, 1977, as amended by T.D. 8084, 51 FR 
16302, May 2, 1986]



Sec.  53.4943-10  Business enterprise; definition.

    (a) In general. (1) Except as provided in paragraph (b) or (c) of 
this section under section 4943(d)(4) the term ``business enterprise'' 
includes the active conduct of a trade or business, including any 
activity which is regularly carried on for the production of income from 
the sale of goods or the performance of services and which constitutes 
an unrelated trade or business under section 513. For purposes of the 
preceding sentence, where an activity carried on for profit constitutes 
an unrelated trade or business, no part of such trade or business shall 
be excluded from the classification of a business enterprise merely 
because it does not result in a profit.
    (2) Notwithstanding paragraph (a)(1) of this section, a bond or 
other evidence of indebtedness does not constitute a holding in a 
business enterprise unless such bond or evidence of indebtedness is 
otherwise determined

[[Page 161]]

to be an equitable interest in such enterprise. Similarly, a lease-hold 
interest in real property does not constitute an interest in a business 
enterprise, even though rent payable under such lease is dependent, in 
whole or in part, upon the income or profits derived by another from 
such property, unless such leasehold interest constitutes an interest in 
the income or profits of an unrelated trade or business under section 
513.
    (b) Certain program-related activities. For purposes of section 
4943(d)(4) the term ``business enterprise'' does not include a 
functionally related business as defined in section 4942(j)(5). See 
Sec.  53.4942(a)-2(c)(3)(iii). In addition, business holdings do not 
include program-related investments (such as investments in small 
businesses in central cities or in corporations to assist in 
neighborhood renovation) as defined in section 4944(c) and the 
regulations thereunder.
    (c) Income derived from passive sources--(1) In general. For 
purposes of section 4943(d)(4), the term ``business enterprise'' does 
not include a trade or business at least 95 percent of the gross income 
of which is derived from passive sources; except that if in the taxable 
year in question less than 95 percent of the income of a trade or 
business is from passive sources, the foundation may, in applying this 
95 percent test, substitute for the passive source gross income in such 
taxable year the average gross income from passive sources for the 10 
taxable years immediately preceding the taxable year in question (or for 
such shorter period as the entity has been in existence). Thus, stock in 
a passive holding company is not to be considered a holding in a 
business enterprise even if the company is controlled by the foundation. 
Instead, the foundation is treated as owning its proportionate share of 
any interests in a business enterprise held by such company under 
section 4943(d)(1).
    (2) Gross income from passive sources. Gross income from passive 
sources, for purposes of this paragraph, includes the items excluded by 
section 512(b)(1) (relating to dividends, interest, and annuities), 
512(b)(2) (relating to royalties), 512(b)(3) (relating to rent) and 
512(b)(5) (relating to gains or losses from the disposition of certain 
property). Any income classified as passive under this paragraph does 
not lose its character merely because section 512(b)(4) or 514 (relating 
to unrelated debt-financed income) applies to such income. In addition, 
income from passive sources includes income from the sale of goods 
(including charges or costs passed on at cost to purchasers of such 
goods or income received in settlement of a dispute concerning or in 
lieu of the exercise of the right to sell such goods) if the seller does 
not manufacture, produce, physically receive or deliver, negotiate sales 
of, or maintain inventories in such goods. Thus, for example, where a 
corporation purchases a product under a contract with the manufacturer, 
resells it under contract at a uniform markup in price, and does not 
physically handle the product, the income derived from that markup meets 
the definition of passive income for purposes of this paragraph. On the 
other hand, income from individually negotiated sales, such as those 
made by a broker, would not meet such definition even if the broker did 
not physically handle the goods.
    (3) Affiliated group. (i) For a common parent corporation in an 
affiliated group, substitute ``consolidated gross income'' in 
subparagraph (1) of this paragraph.
    (ii) For purposes of this section, the term affiliated group shall 
have the same meaning as in section 1504(a), without regard to section 
1504 (b) through (e).
    (iii) Section 53.4943-11(d) provides a transitional rule for certain 
parent corporations.
    (d) Application of section 4943(c)(6)--(1) Program related 
activities. If a private foundation holds an interest which is not an 
interest in a business enterprise because of paragraph (b) of this 
section (relating to program related activities), and such interest 
later becomes an interest in a business enterprise solely by reason of 
failing to meet the requirements of such paragraph (b), such interest 
will then be subject to section (regardless of when it was originally 
acquired) and will be treated as having been acquired other than by

[[Page 162]]

purchase for purposes of section 4943(c)(6).
    (2) Passive holdings, etc. (i) Except as provided in subdivision 
(ii), if a private foundation holds an interest that is not an interest 
in a business enterprise, and the interest later becomes an interest in 
a business enterprise (other than by reason of a readjustment as defined 
in Sec.  53.4943-7(d)(1)), the interest will be treated as having been 
acquired by purchase by a disqualified person at the time the interest 
becomes an interest in a business enterprise. The treatment of an 
interest that becomes an interest in a business enterprise by reason of 
a readjustment shall be determined under Sec.  53.4943-6 and Sec.  
53.4943-7.
    (ii) If a private foundation establishes that the events which 
caused an interest not originally a business enterprise to become a 
business enterprise were not effectively controlled by the private 
foundation, then such interest shall be treated as acquired other than 
by purchase from the time of the change for purposes of section 
4943(c)(6).
    (iii) See Sec.  53.4943-3(b)(3)(ii) for the definition of effective 
control.
    (e) Sole proprietorship. For purposes of section 4943 and the 
regulations thereunder, the term ``sole proprietorship'' means any 
business enterprise (as defined in paragraphs (a), (b), and (c) of this 
section:
    (1) Which is actually and directly owned by a private foundation,
    (2) In which the foundation has a 100 percent equity interest, and
    (3) Which is not held by a corporation, trust, or other business 
entity for such foundation.

A foundation may be considered to own a sole proprietorship even though 
the foundation is itself a corporation or a trust. However, a sole 
proprietorship which is owned by a foundation shall cease to be treated 
as a sole proprietorship when the foundation no longer has a 100-percent 
interest in the equity of the business enterprise. Thus, if and when a 
foundation sells a 10-percent interest in a sole proprietorship, such 
business enterprise shall be treated as a partnership under section 4943 
and the regulations thereunder.

[T.D. 7496, 42 FR 46285, Sept. 15, 1977, as amended by T.D. 7944, 49 FR 
6484, Feb. 22, 1984]



Sec.  53.4943-11  Effective/applicability date.

    (a) In general. Section 4943 and Sec. Sec.  53.4943-1 through 
53.4943-11 shall take effect for taxable years beginning after December 
31, 1969, except as otherwise provided by such sections.
    (b) Special transitional rule. In the case of any acquisition of 
excess holdings prior to February 2, 1973, section 4943(a)(1) shall not 
apply if correction occurs (within the meaning of paragraph (c) of Sec.  
53.4943-9) within a period ending 90 days after July 5, 1977 extended 
(prior to the expiration of the original period) by any period which the 
Commissioner determines is reasonable and necessary (within the meaning 
of paragraph (b) of Sec.  53.4943-9) to bring about such correction.
    (c) Special transitional rule for acquisition by will, etc. (1) The 
rule in Sec.  53.4943-6(b)(1) whereby holdings not held by a decedent 
are not treated as acquired under a will shall not apply to acquisitions 
of after-acquired property of a decedent's estate occurring on or before 
May 22, 1984.
    (2) The rule in Sec.  53.4943-6(b)(1) treating a purchase by an 
estate as a purchase by a disqualified person where the executor is a 
disqualified person shall not apply to purchases occurring on or before 
May 22, 1984.
    (d) Special transitional rule for affiliated groups. If on or before 
May 22, 1984 a foundation holds an interest in a common parent 
corporation in an affiliated group, as defined in Sec.  53.4943-
10(c)(3)(ii), the foundation may elect to have both Sec.  53.4943-
8(c)(4) and Sec.  53.4943-10(c)(3) not apply to such common parent 
corporation. No election may be made to have only one section not apply. 
Such election shall be made by the governing body of the private 
foundation at any time prior to February 22, 1985.
    (e) Special transitional rule for changes to a business enterprise. 
Any interest that is not an interest in a business enterprise which 
becomes an interest in a business enterprise under Sec.  53.4943-

[[Page 163]]

10(d)(2) prior to May 22, 1984 will be treated as having been acquired 
other than by purchase for purposes of section 4943(c)(6).
    (f) Special transitional rule for private foundations that qualified 
as Type III supporting organizations before August 17, 2006. The present 
holdings of a private foundation that qualified as a Type III supporting 
organization under section 509(a)(3) immediately before August 17, 2006, 
and that was reclassified as a private foundation under section 509(a) 
on or after August 17, 2006, solely as a result of the rules enacted by 
section 1241 of the Pension Protection Act of 2006, Public Law 109-280 
(120 Stat. 780), will be determined using the same rules that apply to 
Type III supporting organizations under section 4943(f)(7).
    (g) Special transitional rule for Type III supporting organizations 
created as trusts before November 20, 1970. A trust that qualifies as a 
Type III supporting organization under section 509(a)(3) and meets the 
requirements of Sec.  1.509(a)-4(i)(9) of this chapter will be treated 
as a ``functionally integrated Type III supporting organization'' for 
purposes of section 4943(f)(3)(A).

[T.D. 7496, 42 FR 46285, Sept. 15, 1977, as amended by T.D. 7944, 49 FR 
6485, Feb. 22, 1984; T.D. 9605, 77 FR 76400, Dec. 28, 2012]



   Subpart E_Taxes on Investments Which Jeopardize Charitable Purpose

    Source: T.D. 7240, 37 FR 28747, Dec. 27, 1972, unless otherwise 
noted.



Sec.  53.4944-1  Initial taxes.

    (a) On the private foundation--(1) In general. If a private 
foundation (as defined in section 509) invests any amount in such a 
manner as to jeopardize the carrying out of any of its exempt purposes, 
section 4944(a) (1) of the Code imposes an excise tax on the making of 
such investment. This tax is to be paid by the private foundation and is 
at the rate of 5 percent of the amount so invested for each taxable year 
(or part thereof) in the taxable period (as defined in section 4944(e) 
(1)). The tax imposed by section 4944(a)(1) and this paragraph shall 
apply to investments of either income or principal.
    (2) Jeopardizing investments. (i) Except as provided in section 
4944(c), Sec.  53.4944-3, Sec.  53.4944-6(a), and subdivision (ii) of 
this subparagraph, an investment shall be considered to jeopardize the 
carrying out of the exempt purposes of a private foundation if it is 
determined that the foundation managers, in making such investment, have 
failed to exercise ordinary business care and prudence, under the facts 
and circumstances prevailing at the time of making the investment, in 
providing for the long- and short-term financial needs of the foundation 
to carry out its exempt purposes. In the exercise of the requisite 
standard of care and prudence the foundation managers may take into 
account the expected return (including both income and appreciation of 
capital), the risks of rising and falling price levels, and the need for 
diversification within the investment portfolio (for example, with 
respect to type of security, type of industry, maturity of company, 
degree of risk and potential for return). The determination whether the 
investment of a particular amount jeopardizes the carrying out of the 
exempt purposes of a foundation shall be made on an investment by 
investment basis, in each case taking into account the foundation's 
portfolio as a whole. No category of investments shall be treated as a 
per se violation of section 4944. However, the following are examples of 
types or methods of investment which will be closely scrutinized to 
determine whether the foundation managers have met the requisite 
standard of care and prudence: Trading in securities on margin, trading 
in commodity futures, investments in working interests in oil and gas 
wells, the purchase of ``puts,'' ``calls,'' and ``straddles,'' the 
purchase of warrants, and selling short. The determination whether the 
investment of any amount jeopardizes the carrying out of a foundation's 
exempt purposes is to be made as of the time that the foundation makes 
the investment and not subsequently on the basis of hindsight. 
Therefore, once it has been ascertained that an investment does not 
jeopardize the carrying out of a foundation's exempt purposes, the 
investment shall

[[Page 164]]

never be considered to jeopardize the carrying out of such purposes, 
even though, as a result of such investment, the foundation subsequently 
realizes a loss. The provisions of section 4944 and the regulations 
thereunder shall not exempt or relieve any person from compliance with 
any Federal or State law imposing any obligation, duty, responsibility, 
or other standard of conduct with respect to the operation or 
administration of an organization or trust to which section 4944 
applies. Nor shall any State law exempt or relieve any person from any 
obligation, duty, responsibility, or other standard of conduct provided 
in section 4944 and the regulations thereunder.
    (ii)(a) Section 4944 shall not apply to an investment made by any 
person which is later gratuitously transferred to a private foundation. 
If such foundation furnishes any consideration to such person upon the 
transfer, the foundation will be treated as having made an investment 
(within the meaning of section 4944(a)(1)) in the amount of such 
consideration.
    (b) Section 4944 shall not apply to an investment which is acquired 
by a private foundation solely as a result of a corporate reorganization 
within the meaning of section 368(a).
    (iii) For purposes of section 4944, a private foundation which, 
after December 31, 1969, changes the form or terms of an investment 
(regardless of whether subdivision (ii) of this subparagraph applies to 
such investment), will be considered to have entered into a new 
investment on the date of such change, except as provided in subdivision 
(ii)(b) of this subparagraph. Accordingly, a determination, under 
subdivision (i) of this subparagraph, whether such change in the 
investment jeopardizes the carrying out of the foundation's exempt 
purposes shall be made at such time.
    (iv) It is not intended that the taxes imposed under Chapter 42 be 
exclusive. For example, if a foundation purchases a sole proprietorship 
in a business enterprise within the meaning of section 4943(d)(4), in 
addition to tax under section 4943, the foundation may be liable for tax 
under section 4944 if the investment jeopardizes the carrying out of any 
of its exempt purposes.
    (b) On the management--(1) In general. In any case in which a tax is 
imposed by section 4944(a)(1) and paragraph (a) of this section, section 
4944 (a)(2) of the Code imposes on the participation of any foundation 
manager in the making of the investment, knowing that it is jeopardizing 
the carrying out of any of the foundation's exempt purposes, a tax equal 
to 5 percent of the amount so invested for each taxable year of the 
foundation (or part thereof) in the taxable period (as defined in 
section 4944(e)(1)), subject to the provisions of section 4944(d) and 
Sec.  53.4944-4, unless such participation is not willful and is due to 
reasonable cause. The tax imposed under section 4944(a)(2) shall be paid 
by the foundation manager.
    (2) Definitions and special rules--(i) Knowing. For purposes of 
section 4944, a foundation manager shall be considered to have 
participated in the making of an investment ``knowing'' that it is 
jeopardizing the carrying out of any of the foundation's exempt purposes 
only if:
    (a) He has actual knowledge of sufficient facts so that, based 
solely upon such facts, such investment would be a jeopardizing 
investment under paragraph (a)(2) of this section,
    (b) He is aware that such an investment under these circumstances 
may violate the provisions of federal tax law governing jeopardizing 
investments, and
    (c) He negligently fails to make reasonable attempts to ascertain 
whether the investment is a jeopardizing investment, or he is in fact 
aware that it is such an investment.

For purposes of this part and Chapter 42, the term knowing does not mean 
``having reason to know''. However, evidence tending to show that a 
foundation manager has reason to know of a particular fact or particular 
rule is relevant in determining whether he had actual knowledge of such 
fact or rule. Thus, for example, evidence tending to show that a 
foundation manager has reason to know of sufficient facts so that, based 
solely upon such facts, an investment would be a jeopardizing investment 
is relevant in determining whether he has actual knowledge of such 
facts.

[[Page 165]]

    (ii) Willful. A foundation manager's participation in a jeopardizing 
investment is willful if it is voluntary, conscious, and intentional. No 
motive to avoid the restrictions of the law or the incurrence of any tax 
is necessary to make such participation willfull. However, a foundation 
manager's participation in a jeopardizing investment is not willful if 
he does not know that it is a jeopardizing investment under paragraph 
(a)(2) of this section.
    (iii) Due to reasonable cause. A foundation manager's actions are 
due to reasonable cause if he has exercised his responsibility on behalf 
of the foundation with ordinary business care and prudence.
    (iv) Participation. The participation of any foundation manager in 
the making of an investment shall consist of any manifestation of 
approval of the investment.
    (v) Advice of counsel. If a foundation manager, after full 
disclosure of the factual situation to legal counsel (including house 
counsel), relies on the advice of such counsel expressed in a reasoned 
written legal opinion that a particular investment would not jeopardize 
the carrying out of any of the foundation's exempt purposes (because, as 
a matter of law, the investment is excepted from such classification, 
for example, as a program-related investment under section 4944(c)), 
then although such investment is subsequently held to be a jeopardizing 
investment under paragraph (a)(2) of this section, the foundation 
manager's participation in such investment will ordinarily not be 
considered ``knowing'' or ``willfull'' and will ordinarily be considered 
``due to reasonable cause'' within the meaning of section 4944(a) (2). 
In addition, if a foundation manager, after full disclosure of the 
factual situation to qualified investment counsel, relies on the advice 
of such counsel, such advice being derived in a manner consistent with 
generally accepted practices of persons who are such a qualified 
investment counsel and being expressed in writing that a particular 
investment will provide for the long and short term financial needs of 
the foundation under paragraph (a)(2) of this section, then although 
such investment is subsequently held not to provide for such long and 
short term financial needs, the foundation manager's participation in 
failing to provide for such long and short term financial needs will 
ordinarily not be considered ``knowing'' or ``willful'' and will 
ordinarily be considered ``due to reasonable cause'' within the meaning 
of section 4944(a)(2). For purposes of this subdivision, a written legal 
opinion will be considered ``reasoned'' even if it reaches a conclusion 
which is subsequently determined to be incorrect so long as such opinion 
addresses itself to the facts and applicable law. However, a written 
legal opinion will not be considered ``reasoned'' if it does nothing 
more than recite the facts and express a conclusion. However, the 
absence of advice of legal counsel or qualified investment counsel with 
respect to the investment shall not, by itself, give rise to any 
inference that a foundation manager participated in such investment 
knowingly, willfully, or without reasonable cause.
    (vi) Cross reference. For provisions relating to the burden of proof 
in cases involving the issue whether a foundation manager has knowingly 
participated in the making of a jeopardizing investment, see section 
7454(b).
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A is a foundation manager of B, a private foundation with 
assets of $100,000. A approves the following three investments by B 
after taking into account with respect to each of them B's portfolio as 
a whole: (1) An investment of $5,000 in the common stock of corporation 
X; (2) an investment of $10,000 in the common stock of corporation Y; 
and (3) an investment of $8,000 in the common stock of corporation Z. 
Corporation X has been in business a considerable time, its record of 
earnings is good and there is no reason to anticipate a diminution of 
its earnings. Corporation Y has a promising product, has had earnings in 
some years and substantial losses in others, has never paid a dividend, 
and is widely reported in investment advisory services as seriously 
undercapitalized. Corporation Z has been in business a short period of 
time and manufactures a product that is new, is not sold by others, and 
must compete with a well-established alternative product that serves the 
same purpose. Z's stock is classified as a high-risk investment by most 
investment advisory services with the possibility of substantial long-
term appreciation but with little prospect of

[[Page 166]]

a current return. A has studied the records of the three corporations 
and knows the foregoing facts. In each case the price per share of 
common stock purchased by B is favorable to B. Under the standards of 
paragraph (a)(2)(i) of this section, the investment of $10,000 in the 
common stock of Y and the investment of $8,000 in the common stock of Z 
may be classified as jeopardizing investments, while the investment of 
$5,000 in the common stock of X will not be so classified. B would then 
be liable for an initial tax of $500 (i.e., 5 percent of $10,000) for 
each year (or part thereof) in the taxable period for the investment in 
Y, and an initial tax of $400 (i.e., 5 percent of $8,000) for each year 
(or part thereof) in the taxable period for the investment in Z. 
Further, since A had actual knowledge that the investments in the common 
stock of Y and Z were jeopardizing investments, A would then be liable 
for the same amount of initial taxes as B.
    Example 2. Assume the facts as stated in Example (1), except that: 
(1) In the case of corporation Y, B's investment will be made for new 
stock to be issued by Y and there is reason to anticipate that B's 
investment, together with investments required by B to be made 
concurrently with its own, will satisfy the capital needs of corporation 
Y and will thereby overcome the difficulties that have resulted in Y's 
uneven earnings record; and (2) in the case of corporation Z, the 
management has a demonstrated capacity for getting new businesses 
started successfully and Z has received substantial orders for its new 
product. Under the standards of paragraph (a) (2) (i) of this section, 
neither the investment in Y nor the investment in Z will be classified 
as a jeopardizing investment and neither A nor B will be liable for an 
initial tax on either of such investments.
    Example 3. D is a foundation manager of E, a private foundation with 
assets of $200,000. D was hired by E to manage E's investments after a 
careful review of D's training, experience and record in the field of 
investment management and advice indicated to E that D was well 
qualified to provide professional investment advice in the management of 
E's investment assets. D, after careful research into how best to 
diversify E's investments, provide for E's long-term financial needs, 
and protect against the effects of long-term inflation, decides to 
allocate a portion of E's investment assets to unimproved real estate in 
selected areas of the country where population patterns and economic 
factors strongly indicate continuing growth at a rapid rate. D 
determines that the short-term financial needs of E can be met through 
E's other investments. Under the standards of paragraph (a)(2)(i) of 
this section, the investment of a portion of E's investment assets in 
unimproved real estate will not be classified as a jeopardizing 
investment and neither D nor E will be liable for an initial tax on such 
investment.

[T.D. 7240, 37 FR 28747, Dec. 29, 1972, as amended by T.D. 7299, 38 FR 
35304, Dec. 27, 1973]



Sec.  53.4944-2  Additional taxes.

    (a) On the private foundation. Section 4944(b)(1) of the Code 
imposes an excise tax in any case in which an initial tax is imposed by 
section 4944(a)(1) and Sec.  53.4944-1(a) on the making of a 
jeopardizing investment by a private foundation and such investment is 
not removed from jeopardy within the taxable period (as defined in 
section 4944(e)(1)). The tax imposed under section 4944(b)(1) is to be 
paid by the private foundation and is at the rate of 25 percent of the 
amount of the investment. This tax shall be imposed upon the portion of 
the investment which has not been removed from jeopardy within the 
taxable period.
    (b) On the management. Section 4944(b)(2) of the Code imposes an 
excise tax in any case in which an additional tax is imposed by section 
4944 (b)(1) and paragraph (a) of this section and a foundation manager 
has refused to agree to part or all of the removal of the investment 
from jeopardy. The tax imposed under section 4944(b)(2) is at the rate 
of 5 percent of the amount of the investment, subject to the provisions 
of section 4944(d) and Sec.  53.4944-4. This tax is to be paid by any 
foundation manager who has refused to agree to the removal of part or 
all of the investment from jeopardy, and shall be imposed upon the 
portion of the investment which has not been removed from jeopardy 
within the taxable period.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. X is a foundation manager of Y, a private foundation. On 
the advice of X, Y invests $5,000 in the common stock of corporation M. 
Assume that both X and Y are liable for the taxes imposed by section 
4944(a) on the making of the investment. Assume further that no part of 
the investment is removed from jeopardy within the taxable period and 
that X refused to agree to such removal. Y will be liable for an 
additional tax of $1,250 (i.e., $5,000 x 25%). X will be liable for an 
additional tax of $250 (i.e., $5,000 x 5%).

[[Page 167]]

    Example 2. Assume the facts as stated in Example (1), except that X 
is not liable for the tax imposed by section 4944(a)(2) for his 
participation in the making of the investment, because such 
participation was not willful and was due to reasonable cause. X will 
nonetheless be liable for the tax of $250 imposed by section 4944(b)(2) 
since an additional tax has been imposed upon Y and since X refused to 
agree to the removal of the investment from jeopardy.
    Example 3. Assume the facts as stated in Example (1), except that Y 
removes $2,000 of the investment from jeopardy within the taxable 
period, with X refusing to agree to the removal from jeopardy of the 
remaining $3,000 of such investment. Y will be liable for an additional 
tax of $750, imposed upon the portion of the investment which has not 
been removed from jeopardy within the taxable period (i.e., $3,000 x 
25%). Further X will be liable for an additional tax of $150, also 
imposed upon the same portion of the investment (i.e., $3,000 x 5%).

[T.D. 7240, 37 FR 28747, Dec. 27, 1972, as amended by T.D. 8084, 51 FR 
16302, May 2, 1986]



Sec.  53.4944-3  Exception for program-related investments.

    (a) In general. (1) For purposes of section 4944 and Sec. Sec.  
53.4944-1 through 53.4944-6, a ``program-related investment'' shall not 
be classified as an investment which jeopardizes the carrying out of the 
exempt purposes of a private foundation. A program-related investment is 
an investment which possesses the following characteristics:
    (i) The primary purpose of the investment is to accomplish one or 
more of the purposes described in section 170(c)(2)(B);
    (ii) No significant purpose of the investment is the production of 
income or the appreciation of property; and
    (iii) No purpose of the investment is to accomplish one or more of 
the purposes described in section 170(c)(2)(D).
    (2)(i) An investment shall be considered as made primarily to 
accomplish one or more of the purposes described in section 170(c)(2)(B) 
if it significantly furthers the accomplishment of the private 
foundation's exempt activities and if the investment would not have been 
made but for such relationship between the investment and the 
accomplishment of the foundation's exempt activities. For purposes of 
section 4944 and Sec. Sec.  53.4944-1 through 53.4944-6, the term 
purposes described in section 170(c)(2)(B) shall be treated as including 
purposes described in section 170(c)(2)(B) whether or not carried out by 
organizations described in section 170(c).
    (ii) An investment in an activity described in section 4942(j)(4)(B) 
and the regulations thereunder shall be considered, for purposes of this 
paragraph, as made primarily to accomplish one or more of the purposes 
described in section 170(c)(2)(B).
    (iii) In determining whether a significant purpose of an investment 
is the production of income or the appreciation of property, it shall be 
relevant whether investors solely engaged in the investment for profit 
would be likely to make the investment on the same terms as the private 
foundation. However, the fact that an investment produces significant 
income or capital appreciation shall not, in the absence of other 
factors, be conclusive evidence of a significant purpose involving the 
production of income or the appreciation of property.
    (iv) An investment shall not be considered as made to accomplish one 
or more of the purposes described in section 170(c)(2)(D) if the 
recipient of the investment appears before, or communicates to, any 
legislative body with respect to legislation or proposed legislation of 
direct interest to such recipient, provided that the expense of engaging 
in such activities would qualify as a deduction under section 162.
    (3)(i) Once it has been determined that an investment is ``program-
related'' it shall not cease to qualify as a ``program-related 
investment'' provided that changes, if any, in the form or terms of the 
investment are made primarily for exempt purposes and not for any 
significant purpose involving the production of income or the 
appreciation of property. A change made in the form or terms of a 
program-related investment for the prudent protection of the 
foundation's investment shall not ordinarily cause the investment to 
cease to qualify as program-related. Under certain conditions, a 
program-related investment may cease to be program-related because of a 
critical

[[Page 168]]

change in circumstances, as, for example, where it is serving an illegal 
purpose or the private purpose of the foundation or its managers. For 
purposes of the preceding sentence, an investment which ceases to be 
program-related because of a critical change in circumstances shall in 
no event subject the foundation making the investment to the tax imposed 
by section 4944(a)(1) before the 30th day after the date on which such 
foundation (or any of its managers) has actual knowledge of such 
critical change in circumstances.
    (ii) If a private foundation changes the form or terms of an 
investment, and if, as a result of the application of subdivision (i) of 
this subparagraph, such investment no longer qualifies as program-
related, the determination whether the investment jeopardizes the 
carrying out of exempt purposes shall be made pursuant to the provisions 
of Sec.  53.4944-1(a)(2).
    (b) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. X is a small business enterprise located in a 
deteriorated urban area and owned by members of an economically 
disadvantaged minority group. Conventional sources of funds are 
unwilling or unable to provide funds to X on terms it considers 
economically feasible. Y, a private foundation, makes a loan to X 
bearing interest below the market rate for commercial loans of 
comparable risk. Y's primary purpose for making the loan is to encourage 
the economic development of such minority groups. The loan has no 
significant purpose involving the production of income or the 
appreciation of property. The loan significantly furthers the 
accomplishment of Y's exempt activities and would not have been made but 
for such relationship between the loan and Y's exempt activities. 
Accordingly, the loan is a program-related investment even though Y may 
earn income from the investment in an amount comparable to or higher 
than earnings from conventional portfolio investments.
    Example 2. Assume the facts as stated in Example (1), except that 
after the date of execution of the loan Y extends the due date of the 
loan. The extension is granted in order to permit X to achieve greater 
financial stability before it is required to repay the loan. Since the 
change in the terms of the loan is made primarily for exempt purposes 
and not for any significant purpose involving the production of income 
or the appreciation of property, the loan shall continue to qualify as a 
program-related investment.
    Example 3. X is a small business enterprise located in a 
deteriorated urban area and owned by members of an economically 
disadvantaged minority group. Conventional sources of funds are 
unwilling to provide funds to X at reasonable interest rates unless it 
increases the amount of its equity capital. Consequently, Y, a private 
foundation, purchases shares of X's common stock. Y's primary purpose in 
purchasing the stock is to encourage the economic development of such 
minority group, and no significant purpose involves the production of 
income or the appreciation of property. The investment significantly 
furthers the accomplishment of Y's exempt activities and would not have 
been made but for such relationship between the investment and Y's 
exempt activities. Accordingly, the purchase of the common stock is a 
program-related investment, even though Y may realize a profit if X is 
successful and the common stock appreciates in value.
    Example 4. X is a business enterprise which is not owned by low-
income persons or minority group members, but the continued operation of 
X is important to the economic well-being of a deteriorated urban area 
because X employes a substantial number of low-income persons from such 
area. Conventional sources of funds are unwilling or unable to provide 
funds to X at reasonable interest rates. Y, a private foundation, makes 
a loan to X at an interest rate below the market rate for commercial 
loans of comparable risk. The loan is made pursuant to a program run by 
Y to assist low-income persons by providing increased economic 
opportunities and to prevent community deterioration. No significant 
purpose of the loan involves the production of income or the 
appreciation of property. The investment significantly furthers the 
accomplishment of Y's exempt activities and would not have been made but 
for such relationship between the loan and Y's exempt activities. 
Accordingly, the loan is a program-related investment.
    Example 5. X is a business enterprise which is financially secure 
and the stock of which is listed and traded on a national exchange. Y, a 
private foundation, makes a loan to X at an interest rate below the 
market rate in order to induce X to establish a new plant in a 
deteriorated urban area which, because of the high risks involved, X 
would be unwilling to establish absent such inducement. The loan is made 
pursuant to a program run by Y to enhance the economic development of 
the area by, for example, providing employment opportunities for low-
income persons at the new plant, and no significant purpose involves the 
production of income or the appreciation of property. The loan 
significantly furthers the accomplishment of Y's exempt activities and 
would not have been made but for such relationship between the

[[Page 169]]

loan and Y's exempt activities. Accordingly, even though X is large and 
established, the investment is program-related.
    Example 6. X is a business enterprise which is owned by a nonprofit 
community development corporation. When fully operational, X will market 
agricultural products, thereby providing a marketing outlet for low-
income farmers in a depressed rural area. Y, a private foundation, makes 
a loan to X bearing interest at a rate less than the rate charged by 
financial institutions which have agreed to lend funds to X if Y makes 
the loan. The loan is made pursuant to a program run by Y to encourage 
economic redevelopment of depressed areas, and no significant purpose 
involves the production of income or the appreciation of property. The 
loan significantly furthers the accomplishment of Y's exempt activities 
and would not have been made but for such relationship between the loan 
and Y's exempt activities. Accordingly, the loan is a program-related 
investment.
    Example 7. X, a private foundation, invests $100,000 in the common 
stock of corporation M. The dividends received from such investment are 
later applied by X in furtherance of its exempt purposes. Although there 
is a relationship between the return on the investment and the 
accomplishment of X's exempt activities, there is no relationship 
between the investment per se and such accomplishment. Therefore, the 
investment cannot be considered as made primarily to accomplish one or 
more of the purposes described in section 170(c)(2)(B) and cannot 
qualify as program-related.
    Example 8. S, a private foundation, makes an investment in T, a 
business corporation, which qualifies as a program-related investment 
under section 4944(c) at the time that it is made. All of T's voting 
stock is owned by S. T experiences financial and management problems 
which, in the judgment of the foundation, require changes in management, 
in financial structure or in the form of the investment. The following 
three methods of resolving the problems appear feasible to S, but each 
of the three methods would result in reduction of the exempt purposes 
for which the program-related investment was initially made:
    (a) Sale of stock or assets. The foundation sells its stock to an 
unrelated person. Payment is made in part at the time of sale; the 
balance is payable over an extended term of years with interest on the 
amount outstanding. The foundation receives a purchase-money mortgage.
    (b) Lease. The corporation leases its assets for a term of years to 
an unrelated person, with an option in the lessee to buy the assets. If 
the option is exercised, the terms of payment are to be similar to those 
described in (a) of this example.
    (c) Management contract. The corporation enters into a management 
contract which gives broad operating authority to one or more unrelated 
persons for a term of years. The foundation and the unrelated persons 
are obligated to contribute toward working capital requirements. The 
unrelated persons will be compensated by a fixed fee or a share of 
profits, and they will receive an option to buy the stock held by S or 
the assets of the corporation. If the option is exercised, the terms of 
payment are to be similar to those described in (a) of this example.


Each of the three methods involves a change in the form or terms of a 
program-related investment for the prudent protection of the 
foundation's investment. Thus, under Sec.  53.4944-3(a)(3)(i), none of 
the three transactions (nor any debt instruments or other obligations 
held by S as a result of engaging in one of these transactions) would 
cause the investment to cease to qualify as program-related.
    Example 9. X is a socially and economically disadvantaged 
individual. Y, a private foundation, makes an interest-free loan to X 
for the primary purpose of enabling X to attend college. The loan has no 
significant purpose involving the production of income or the 
appreciation of property. The loan significantly furthers the 
accomplishment of Y's exempt activities and would not have been made but 
for such relationship between the loan and Y's exempt activities. 
Accordingly, the loan is a program-related investment.
    Example 10. Y, a private foundation, makes a high-risk investment in 
low-income housing, the indebtedness with respect to which is insured by 
the Federal Housing Administration. Y's primary purpose in making the 
investment is to finance the purchase, rehabilitation, and construction 
of housing for low-income persons. The investment has no significant 
purpose involving the production of income or the appreciation of 
property. The investment significantly furthers the accomplishment of 
Y's exempt activities and would not have been made but for such 
relationship between the investment and Y's exempt activities. 
Accordingly, the investment is program-related.
    Example 11. X is a business enterprise that researches and develops 
new drugs. X's research demonstrates that a vaccine can be developed 
within ten years to prevent a disease that predominantly affects poor 
individuals in developing countries. However, neither X nor other 
commercial enterprises like X will devote their resources to develop the 
vaccine because the potential return on investment is significantly less 
than required by X or other commercial enterprises to undertake a 
project to develop new drugs. Y, a private foundation, enters into an 
investment agreement with X in order to induce X to develop the vaccine. 
Pursuant to the investment agreement, Y purchases shares of

[[Page 170]]

the common stock of S, a subsidiary corporation that X establishes to 
research and develop the vaccine. The agreement requires S to distribute 
the vaccine to poor individuals in developing countries at a price that 
is affordable to the affected population, although, the agreement does 
not preclude S from selling the vaccine to other individuals at a market 
rate. The agreement also requires S to publish the research results, 
disclosing substantially all information about the results that would be 
useful to the interested public. S agrees that the publication of its 
research results will be made as promptly after the completion of the 
research as is reasonably possible without jeopardizing S's right to 
secure patents necessary to protect its ownership or control of the 
results of the research. The expected rate of return on Y's investment 
in S is less than the expected market rate of return for an investment 
of similar risk. Y's primary purpose in making the investment is to fund 
scientific research in the public interest. No significant purpose of 
the investment involves the production of income or the appreciation of 
property. The investment significantly furthers the accomplishment of 
Y's exempt activities and would not have been made but for such 
relationship between the investment and Y's exempt activities. 
Accordingly, Y's purchase of the common stock of S is a program-related 
investment.
    Example 12. Q, a developing country, produces a substantial amount 
of recyclable solid waste materials that are currently disposed of in 
landfills and by incineration, contributing significantly to 
environmental deterioration in Q. X is a new business enterprise located 
in Q. X's only activity will be collecting recyclable solid waste 
materials in Q and delivering those materials to recycling centers that 
are inaccessible to a majority of the population. If successful, the 
recycling collection business would prevent pollution in Q caused by the 
usual disposition of solid waste materials. X has obtained funding from 
only a few commercial investors who are concerned about the 
environmental impact of solid waste disposal. Although X made 
substantial efforts to procure additional funding, X has not been able 
to obtain sufficient funding because the expected rate of return is 
significantly less than the acceptable rate of return on an investment 
of this type. Because X has been unable to attract additional investors 
on the same terms as the initial investors, Y, a private foundation, 
enters into an investment agreement with X to purchase shares of X's 
common stock on the same terms as X's initial investors. Although there 
is a high risk associated with the investment in X, there is also the 
potential for a high rate of return if X is successful in the recycling 
business in Q. Y's primary purpose in making the investment is to combat 
environmental deterioration. No significant purpose of the investment 
involves the production of income or the appreciation of property. The 
investment significantly furthers the accomplishment of Y's exempt 
activities and would not have been made but for such relationship 
between the investment and Y's exempt activities. Accordingly, Y's 
purchase of the X common stock is a program-related investment.
    Example 13. Assume the facts as stated in Example 12, except that X 
offers Y shares of X's common stock in order to induce Y to make a 
below-market rate loan to X. X previously made the same offer to a 
number of commercial investors. These investors were unwilling to 
provide loans to X on such terms because the expected return on the 
combined package of stock and debt was below the expected market return 
for such a package based on the level of risk involved, and they were 
also unwilling to provide loans on other terms X considers economically 
feasible. Y accepts the stock and makes the loan on the same terms that 
X offered to the commercial investors. Y's primary purpose in making the 
investment is to combat environmental deterioration. No significant 
purpose of the investment involves the production of income or the 
appreciation of property. The investment significantly furthers the 
accomplishment of Y's exempt activities and would not have been made but 
for such relationship between the investment and Y's exempt activities. 
Accordingly, the loan accompanied by the acceptance of common stock is a 
program-related investment.
    Example 14. X is a business enterprise located in V, a rural area in 
State Z. X employs a large number of poor individuals in V. A natural 
disaster occurs in V, causing significant damage to the area. The 
business operations of X are harmed because of damage to X's equipment 
and buildings. X has insufficient funds to continue its business 
operations and conventional sources of funds are unwilling or unable to 
provide loans to X on terms it considers economically feasible. In order 
to enable X to continue its business operations, Y, a private 
foundation, makes a loan to X bearing interest below the market rate for 
commercial loans of comparable risk. Y's primary purpose in making the 
loan is to provide relief to the poor and distressed. No significant 
purpose of the loan involves the production of income or the 
appreciation of property. The loan significantly furthers the 
accomplishment of Y's exempt activities and would not have been made but 
for such relationship between the loan and Y's exempt activities. 
Accordingly, the loan is a program-related investment.
    Example 15. Y, a private foundation, makes loans bearing interest 
below the market rate for commercial loans of comparable risk to poor 
individuals who live in W, a developing

[[Page 171]]

country, to enable them to start small businesses such as a roadside 
fruit stand. Conventional sources of funds were unwilling or unable to 
provide such loans on terms they consider economically feasible. Y's 
primary purpose in making the loans is to provide relief to the poor and 
distressed. No significant purpose of the loans involves the production 
of income or the appreciation of property. The loans significantly 
further the accomplishment of Y's exempt activities and would not have 
been made but for such relationship between the loans and Y's exempt 
activities. Accordingly, the loans to the poor individuals who live in W 
are program-related investments.
    Example 16. X is a limited liability company treated as a 
partnership for federal income tax purposes. X purchases coffee from 
poor farmers residing in a developing country, either directly or 
through farmer-owned cooperatives. To fund the provision of efficient 
water management, crop cultivation, pest management, and farm management 
training to the poor farmers by X, Y, a private foundation, makes a loan 
to X bearing interest below the market rate for commercial loans of 
comparable risk. The loan agreement requires X to use the proceeds from 
the loan to provide the training to the poor farmers. X would not 
provide such training to the poor farmers absent the loan. Y's primary 
purpose in making the loan is to educate poor farmers about advanced 
agricultural methods. No significant purpose of the loan involves the 
production of income or the appreciation of property. The loan 
significantly furthers the accomplishment of Y's exempt activities and 
would not have been made but for such relationship between the loan and 
Y's exempt activities. Accordingly, the loan is a program-related 
investment.
    Example 17. X is a social welfare organization that is recognized as 
an organization described in section 501(c)(4). X was formed to develop 
and encourage interest in painting, sculpture, and other art forms by, 
among other things, conducting weekly community art exhibits. X needs to 
purchase a large exhibition space to accommodate the demand for 
exhibition space within the community. Conventional sources of funds are 
unwilling or unable to provide funds to X on terms it considers 
economically feasible. Y, a private foundation, makes a loan to X at an 
interest rate below the market rate for commercial loans of comparable 
risk to fund the purchase of the new space. Y's primary purpose in 
making the loan is to promote the arts. No significant purpose of the 
loan involves the production of income or the appreciation of property. 
The loan significantly furthers the accomplishment of Y's exempt 
activities and would not have been made but for such relationship 
between the loan and Y's exempt activities. Accordingly, the loan is a 
program-related investment.
    Example 18. X is a non-profit corporation that provides child care 
services in a low-income neighborhood, enabling many residents of the 
neighborhood to be gainfully employed. X meets the requirements of 
section 501(k) and is recognized as an organization described in section 
501(c)(3). X's current child care facility has reached capacity and has 
a long waiting list. X has determined that the demand for its services 
warrants the construction of a new child care facility in the same 
neighborhood. X is unable to obtain a loan from conventional sources of 
funds including B, a commercial bank because of X's credit record. 
Pursuant to a deposit agreement, Y, a private foundation, deposits $h in 
B, and B lends an identical amount to X to construct the new child care 
facility. The deposit agreement requires Y to keep $h on deposit with B 
during the term of X's loan and provides that if X defaults on the loan, 
B may deduct the amount of the default from the deposit. To facilitate 
B's access to the funds in the event of default, the agreement requires 
that the funds be invested in instruments that allow B to access them 
readily. The deposit agreement also provides that Y will earn interest 
at a rate of t% on the deposit. The t% rate is substantially less than Y 
could otherwise earn on this sum of money, if Y invested it elsewhere. 
The loan agreement between B and X requires X to use the proceeds from 
the loan to construct the new child care facility. Y's primary purpose 
in making the deposit is to further its educational purposes by enabling 
X to provide child care services within the meaning of section 501(k). 
No significant purpose of the deposit involves the production of income 
or the appreciation of property. The deposit significantly furthers the 
accomplishment of Y's exempt activities and would not have been made but 
for such relationship between the deposit and Y's exempt activities. 
Accordingly, the deposit is a program-related investment.
    Example 19. Assume the same facts as stated in Example 18, except 
that instead of making a deposit of $h into B, Y enters into a guarantee 
agreement with B. The guarantee agreement provides that if X defaults on 
the loan, Y will repay the balance due on the loan to B. B was unwilling 
to make the loan to X in the absence of Y's guarantee. X must use the 
proceeds from the loan to construct the new child care facility. At the 
same time, X and Y enter into a reimbursement agreement whereby X agrees 
to reimburse Y for any and all amounts paid to B under the guarantee 
agreement. The signed guarantee and reimbursement agreements together 
constitute a ``guarantee and reimbursement arrangement.'' Y's primary 
purpose in entering into the guarantee and reimbursement arrangement is 
to further Y's educational

[[Page 172]]

purposes. No significant purpose of the guarantee and reimbursement 
arrangement involves the production of income or the appreciation of 
property. The guarantee and reimbursement arrangement significantly 
furthers the accomplishment of Y's exempt activities and would not have 
been made but for such relationship between the guarantee and 
reimbursement arrangement and Y's exempt activities. Accordingly, the 
guarantee and reimbursement arrangement is a program-related investment.

    (c) Effective/applicability date. Paragraphs (a)(2)(ii) and (b), 
Examples 11 through 19 of this section, apply on or after April 25, 
2016.

[T.D. 7240, 37 FR 28747, Dec. 27, 1972, as amended by T.D. 9762, 81 FR 
24017, Apr. 25, 2016]



Sec.  53.4944-4  Special rules.

    (a) Joint and several liability. In any case where more than one 
foundation manager is liable for the tax imposed under section 4944 
(a)(2) or (b)(2) with respect to any one jeopardizing investment, all 
such foundation managers shall be jointly and severally liable for the 
tax imposed under each such paragraph with respect to such investment.
    (b) Limits on liability for management. With respect to anyone 
jeopardizing investment, the maximum aggregate amount of tax collectible 
under section 4944(a)(2) from all foundation managers shall not exceed 
$5,000, and the maximum aggregate amount of tax collectible under 
section 4944(b)(2) from all foundation managers shall not exceed 
$10,000.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A, B, and C are foundation managers of X, a private 
foundation. Assume that A, B, and C are liable for both initial and 
additional taxes under sections 4944(a)(2) and 4944(b)(2), respectively, 
for the following investments by X: an investment of $5,000 in the 
common stock of corporation M, and an investment of $10,000 in the 
common stock of corporation N. A, B, and C will be jointly and severally 
liable for the following initial taxes under section 4944(a)(2): a tax 
of $250 (i.e., 5 percent of $5,000) for each year (or part thereof) in 
the taxable period (as defined in section 4944(e)(1)) for the investment 
in M, and a tax of $500 (i.e., 5 percent of $10,000) for each year (or 
part thereof) in the taxable period for the investment in N. Further, A, 
B, and C will be jointly and severally liable for the following 
additional taxes under section 4944(b)(2): a tax of $250 (i.e., 5 
percent of $5,000) for the investment in M, and a tax of $500 (i.e., 5 
percent of $10,000) for the investment in N.
    Example 2. Assume the facts as stated in Example (1), except that X 
has invested $500,000 in the common stock of M, and $1 million in the 
common stock of N. A, B, and C will be jointly and severally liable for 
the following initial taxes under section 4944(a)(2): a tax of $5,000 
for the investment in M, and a tax of $5,000 for the investment in N. 
Further, A, B, and C will be jointly and severally liable for the 
following additional taxes under section 4944(b) (2): a tax of $10,000 
for the investment in M, and a tax of $10,000 for the investment in N.



Sec.  53.4944-5  Definitions.

    (a) Taxable period--(1) In general. For purposes of section 4944, 
the term ``taxable period'' means, with respect to any investment which 
jeopardizes the carrying out of a private foundation's exempt purposes, 
the period beginning with the date on which the amount is invested and 
ending on the earliest of:
    (i) The date of mailing of a notice of deficiency under section 6212 
with respect to the tax imposed on the making of the investment by 
section 4944(a)(1);
    (ii) The date on which the amount invested is removed from jeopardy; 
or
    (iii) The date on which the tax imposed by section 4944(a)(1) is 
assessed.
    (2) Special rule. Where a notice of deficiency referred to in 
subparagraph (1) (i) of this paragraph is not mailed because there is a 
waiver of the restrictions on assessment and collection of a deficiency, 
or because the deficiency is paid, the date of filing of the waiver or 
the date of such payment, respectively, shall be treated as the end of 
the taxable period.
    (b) Removal from jeopardy. An investment which jeopardizes the 
carrying out of a private foundation's exempt purposes shall be 
considered to be removed from jeopardy when:
    (1) The foundation sells or otherwise disposes of the investment, 
and
    (2) The proceeds of such sale or other disposition are not 
themselves investments which jeopardize the carrying out of such 
foundation's exempt purposes.

[[Page 173]]


A change by a private foundation in the form or terms of a jeopardizing 
investment shall result in the removal of the investment from jeopardy 
if, after such change, the investment no longer jeopardizes the carrying 
out of such foundation's exempt purposes. For purposes of section 4944, 
the making by a private foundation of one jeopardizing investment and a 
subsequent exchange by the foundation of such investment for another 
jeopardizing investment will be treated as only one jeopardizing 
investment, except as provided in Sec.  53.4944-6 (b) and (c). For the 
treatment of a jeopardizing investment which is removed from jeopardy or 
otherwise transferred by a private foundation by the making of a grant 
or by bargain-sale, see sections 4941 and 4945 and the regulations 
thereunder. A jeopardizing investment cannot be removed from jeopardy by 
a transfer from a private foundation to another private foundation which 
is related to the transferor foundation within the meaning of section 
4946(a) (1)(H) (i) or (ii), unless the investment is a program-related 
investment in the hands of the transferee foundation.
    (c) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. X, a private foundation on the calendar year basis, makes 
a $1,000 jeopardizing investment on January 1, 1970. X thereafter sells 
the investment for $1,000 on January 3, 1971. The taxable period is from 
January 1, 1970, to January 3, 1971. X will be liable for an initial tax 
of $100, that is, a tax of 5 percent of the amount of the investment for 
each year (or part thereof) in the taxable period.
    Example 2. Assume that both C and D are investments which jeopardize 
exempt purposes. X, a private foundation, purchases C in 1971 and later 
exchanges C for D. Such exchange does not constitute a removal of C from 
jeopardy. In addition, no new taxable period will arise with respect to 
D, since, for purposes of section 4944, only one jeopardizing investment 
has been made.
    Example 3. Assume the facts as stated in Example (2), except that X 
sells C for cash and later reinvests such cash in D. Two separate 
investments jeopardizing exempt purposes have resulted. Since the cash 
received in the interim is not of a jeopardizing nature, the amount 
invested in C has been removed from jeopardy and, thus, the taxable 
period with respect to C has been terminated. The subsequent 
reinvestment of such cash in D gives rise to a new taxable period with 
respect to D.

    (d) Cross reference. For rules relating to taxable events that are 
corrected within the correction period, defined in section 4963(e), see 
section 4961(a) and the regulations thereunder.

[T.D. 7240, 37 FR 28747, Dec. 27, 1972, as amended by T.D. 8084, 51 FR 
16303, May 2, 1986]



Sec.  53.4944-6  Special rules for investments made prior to January 1, 1970.

    (a) Except as provided in paragraph (b) or (c) of this section, an 
investment made by a private foundation prior to January 1, 1970, shall 
not be subject to the provisions of section 4944.
    (b) If the form or terms of an investment made by a private 
foundation prior to January 1, 1970, are changed (other than as 
described in paragraph (c) of this section) on or after such date, the 
provisions of Sec.  53.4944-1(a)(2)(iii) shall apply with respect to 
such investment.
    (c) In the case of an investment made by a private foundation prior 
to January 1, 1970, which is exchanged on or after such date for another 
investment, for purposes of section 4944 the foundation will be 
considered to have made a new investment on the date of such exchange, 
unless the post-1969 investment is described in Sec.  53.4944-
1(a)(2)(ii)(b). Accordingly, a determination, under Sec.  53.4944-1(a) 
(2)(i), whether the investment jeopardizes the carrying out of the 
foundation's exempt purposes shall be made at such time.



                 Subpart F_Taxes on Taxable Expenditures

    Source: T.D. 7215, 37 FR 23161, Oct. 31, 1972, unless otherwise 
noted.



Sec.  53.4945-1  Taxes on taxable expenditures.

    (a) Imposition of initial taxes--(1) Tax on private foundation. 
Section 4945(a)(1) of the Code imposes an excise tax on each taxable 
expenditure (as defined in section 4945(d)) of a private foundation. 
This tax is to be paid by the private

[[Page 174]]

foundation and is at the rate of 10 percent of the amount of each 
taxable expenditure.
    (2) Tax on foundation manager--(i) In general. Section 4945(a)(2) of 
the Code imposes, under certain circumstances, an excise tax on the 
agreement of any foundation manager to the making of a taxable 
expenditure by a private foundation. This tax is imposed only in cases 
in which the following circumstances are present:
    (a) A tax is imposed by section 4945(a)(1);
    (b) Such foundation manager knows that the expenditure to which he 
agrees is a taxable expenditure, and
    (c) Such agreement is willfull and is not due to reasonable cause.


However, the tax with respect to any particular expenditure applies only 
to the agreement of those foundation managers who are authorized to 
approve, or to exercise discretion in recommending approval of, the 
making of the expenditure by the foundation and to those foundation 
managers who are members of a group (such as the foundation's board of 
directors or trustees) which is so authorized. For the definition of the 
term foundation manager, see section 4946(b) and the regulations 
thereunder.
    (ii) Agreement. The agreement of any foundation manager to the 
making of a taxable expenditure shall consist of any manifestation of 
approval of the expenditure which is sufficient to constitute an 
exercise of the foundation manager's authority to approve, or to 
exercise discretion in recommending approval of, the making of the 
expenditure by the foundation, whether or not such manifestation of 
approval is the final or decisive approval on behalf of the foundation.
    (iii) Knowing. For purposes of section 4945, a foundation mangager 
shall be considered to have agreed to an expenditure ``knowing'' that it 
is a taxable expenditure only if:
    (a) He has actual knowledge of sufficient facts so that, based 
solely upon such facts, such expenditure would be a taxable expenditure,
    (b) He is aware that such an expenditure under these circumstances 
may violate the provisions of federal tax law governing taxable 
expenditures, and
    (c) He negligently fails to make reasonable attempts to ascertain 
whether the expenditure is a taxable expenditure, or he is in fact aware 
that it is such an expenditure.


For purposes of this part and Chapter 42, the term knowing does not mean 
``having reason to know''. However, evidence tending to show that a 
foundation manager has reason to know of a particular fact or particular 
rule is relevant in determining whether he had actual knowledge of such 
fact or rule. Thus, for example, evidence tending to show that a 
foundation manager has reason to know of sufficient facts so that, based 
solely upon such facts, an expenditure would be a taxable expenditure is 
relevant in determining whether he has actual knowledge of such facts.
    (iv) Willful. A foundation manager's agreement to a taxable 
expenditure is willful if it is voluntary, conscious, and intentional. 
No motive to avoid the restrictions of the law or the incurrence of any 
tax is necessary to make an agreement willful. However, a foundation 
manager's agreement to a taxable expenditure is not willful if he does 
not know that it is a taxable expenditure.
    (v) Due to reasonable cause. A foundation manager's actions are due 
to reasonable cause if he has exercised his responsibility on behalf of 
the foundation with ordinary business care and prudence.
    (vi) Advice of counsel. If a foundation manager, after full 
disclosure of the factual situation to legal counsel (including house 
counsel), relies on the advice of such counsel expressed in a reasoned 
written legal opinion that an expenditure is not a taxable expenditure 
under section 4945 (or that expenditures conforming to certain 
guidelines are not taxable expenditures), although such expenditure is 
subsequently held to be a taxable expenditure (or that certain proposed 
reporting procedures with respect to an expenditure will satisfy the 
tests of section 4945(h), although such procedures are subsequently held 
not to satisfy such section), the foundation manager's agreement to such 
expenditure (or to grants made with provision for such reporting

[[Page 175]]

procedures which are taxable solely because of such inadequate reporting 
procedures) will ordinarily not be considered ``knowing'' or ``willful'' 
and will ordinarily be considered ``due to reasonable cause'' within the 
meaning of section 4945(a)(2). For purposes of the subdivision, a 
written legal opinion will be considered ``reasoned'' even if it reaches 
a conclusion which is subsequently determined to be incorrect so long as 
such opinion addresses itself to the facts and applicable law. However, 
a written legal opinion will not be considered ``reasoned'' if it does 
nothing more than recite the facts and express a conclusion. However, 
the absence of advice of counsel with respect to an expenditure shall 
not, by itself, give rise to any inference that a foundation manager 
agreed to the making of the expenditure knowingly, willfully, or without 
reasonable cause.
    (vii) Rate and incidence of tax. The tax imposed under section 
4945(a)(2) is at the rate of 2\1/2\ percent of the amount of each 
taxable expenditure to which the foundation manager has agreed. This tax 
shall be paid by the foundation manager.
    (viii) Cross reference. For provisions relating to the burden of 
proof in cases involving the issue whether a foundation manager has 
knowingly agreed to the making of a taxable expenditure, see section 
7454(b).
    (b) Imposition of additional taxes--(1) Tax on private foundation. 
Section 4945(b)(1) of the Code imposes an excise tax in any case in 
which an initial tax is imposed under section 4945(a)(1) on a taxable 
expenditure of a private foundation and the expenditure is not corrected 
within the taxable period (as defined in section 4945(i)(2)). The tax 
imposed under section 4945(b)(1) is to be paid by the private foundation 
and is at the rate of 100 percent of the amount of each taxable 
expenditure.
    (2) Tax on foundation manager. Section 4945(b)(2) of the Code 
imposes an excise tax in any case in which a tax is imposed under 
section 4945(b)(1) and a foundation manager has refused to agree to part 
or all of the correction of the taxable expenditure. The tax imposed 
under section 4945(b)(2) is at the rate of 50 percent of the amount of 
the taxable expenditure. This tax is to be paid by any foundation 
manager who has refused to agree to part or all of the correction of the 
taxable expenditure.
    (c) Special rules--(1) Joint and several liability. In any case 
where more than one foundation manager is liable for tax imposed under 
section 4945 (a) (2) or (b)(2) with respect to the making of a taxable 
expenditure, all such foundation managers shall be jointly and severally 
liable for the tax imposed under such paragraph with respect to such 
taxable expenditure.
    (2) Limits on liability for management. The maximum aggregate amount 
of tax collectible under section 4945(a)(2) from all foundation managers 
with respect to any one taxable expenditure shall be $5,000, and the 
maximum aggregate amount of tax collectible under section 4945(b) (2) 
from all foundation managers with respect to any one taxable expenditure 
shall be $10,000.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A, B, and C comprise the board of directors of Foundation 
M. They vote unanimously in favor of a grant of $100,000 to D, a 
business associate of each of the directors. The grant is to be used by 
D for travel and educational purposes and is not made in accordance with 
the requirements of section 4945(g). Each director knows that D was 
selected as the recipient of the grant solely because of his friendship 
with the directors and is aware that some grants made for travel, study, 
or other similar purposes may be taxable expenditures. Also, none of the 
directors makes any attempt to consult counsel, or to otherwise 
determine, whether this grant is a taxable expenditure. Initial taxes 
are imposed under paragraphs (1) and (2) of section 4945(a). The tax to 
be paid by the foundation is $10,000 (10 percent of $100,000). The tax 
to be paid by the board of directors is $2,500 (2\1/2\ percent of 
$100,000). A, B, and C are jointly and severally liable for this $2,500 
and this sum may be collected by the Service from any one of them.
    Example 2. Assume the same facts as in example (1). Further assume 
that within the taxable period A makes a motion to correct the taxable 
expenditure at a meeting of the board of directors. The motion is 
defeated by a two-to-one vote, A voting for the motion and B and C 
voting against it. In these circumstances an additional tax is imposed 
on the private foundation in the amount of $100,000 (100 percent of 
$100,000). The additional tax imposed on B and C is $10,000 (50 percent 
of $100,000 subject to a maximum of

[[Page 176]]

$10,000). B and C are jointly and severally liable for the $10,000, and 
this sum may be collected by the Service from either of them.

    (d) Correction--(1) In general. Except as provided in paragraph (d) 
(2) or (3) of this paragraph, correction of a taxable expenditure shall 
be accomplished by recovering part or all of the expenditure to the 
extent recovery is possible, and, where full recovery cannot be 
accomplished, by any additional corrective action which the Commissioner 
may prescribe. Such additional corrective action is to be determined by 
the circumstances of each particular case and may include the following:
    (i) Requiring that any unpaid funds due the grantee be withheld;
    (ii) Requiring that no further grants be made to the particular 
grantee;
    (iii) In addition to other reports that are required, requiring 
periodic (e.g., quarterly) reports from the foundation with respect to 
all expenditures of the foundation (such reports shall be equivalent in 
detail to the reports required by section 4945(h)(3) and Sec.  53.4945-
5(d));
    (iv) Requiring improved methods of exercising expenditure 
responsibility;
    (v) Requiring improved methods of selecting recipients of individual 
grants; and
    (vi) Requiring such other measures as the Commissioner may prescribe 
in a particular case.

The foundation making the expenditure shall not be under any obligation 
to attempt to recover the expenditure by legal action if such action 
would in all probability not result in the satisfaction of execution on 
a judgment.
    (2) Correction for inadequate reporting. If the expenditure is 
taxable only because of a failure to obtain a full and complete report 
as required by section 4945(h)(2) or because of a failure to make a full 
and detailed report as required by section 4945(h)(3), correction may be 
accomplished by obtaining or making the report in question. In addition, 
if the expenditure is taxable only because of a failure to obtain a full 
and complete report as required by section 4945(h)(2) and an 
investigation indicates that no grant funds have been diverted to any 
use not in furtherance of a purpose specified in the grant, correction 
may be accomplished by exerting all reasonable efforts to obtain the 
report in question and reporting the failure to the Internal Revenue 
Service, even though the report is not finally obtained.
    (3) Correction for failure to obtain advance approval. Where an 
expenditure is taxable under section 4945(d)(3) only because of a 
failure to obtain advance approval of procedures with respect to grants 
as required by section 4945(g), correction may be accomplished by 
obtaining approval of the grant making procedures and establishing to 
the satisfaction of the Commissioner that:
    (i) No grant funds have been diverted to any use not in furtherance 
of a purpose specified in the grant;
    (ii) The grant making procedures instituted would have been approved 
if advance approval of such procedures had been properly requested; and
    (iii) Where advance approval of grant making procedures is 
subsequently required, such approval will be properly requested.
    (e) Certain periods--(1) Taxable period. For purposes of section 
4945, the term ``taxable period'' means, with respect to any taxable 
expenditure, the period beginning with the date on which the taxable 
expenditure occurs and ending on the earlier of:
    (i) The date of mailing of a notice of deficiency under section 6212 
with respect to the tax imposed on taxable expenditures by section 
4945(a)(1); or
    (ii) The date on which the tax imposed by section 4945(a)(1) is 
assessed.
    (2) Cross reference. For rules relating to taxable events that are 
corrected within the correction period, defined in section 4963(e), see 
section 4961(a) and the regulations thereunder.

[T.D. 7215, 37 FR 23161, Oct. 31, 1972, as amended by T.D. 7299, 38 FR 
35305, Dec. 27, 1973; T.D. 7527, 42 FR 64625, Dec. 27, 1977; T.D. 8084, 
51 FR 16303, May 2, 1986]



Sec.  53.4945-2  Propaganda influencing legislation.

    (a) Propaganda influencing legislation, etc.--(1) In general. Under 
section 4945(d)(1) the term ``taxable expenditure'' includes any amount 
paid or incurred by a private foundation to carry on propaganda, or 
otherwise to attempt, to influence legislation. An expenditure is an 
attempt to influence legislation if it is for a direct or grass

[[Page 177]]

roots lobbying communication, as defined in Sec.  56.4911-2 (without 
reference to Sec. Sec.  56.4911-2(b)(3) and 56.4911-2(c)) and Sec.  
56.4911-3. See, however, paragraph (d) of this section for exceptions to 
the general rule of this paragraph (a)(1).
    (2) Expenditures for membership communications. Section 56.4911-5, 
which provides special rules for electing public charities' 
communications with their members, does not apply to private 
foundations. Thus, whether a private foundation's communications with 
its members (assuming it has any) are lobbying communications is 
determined solely under Sec.  56.4911-2 and without reference to Sec.  
56.4911-5. However, where a private foundation makes a grant to an 
electing public charity, Sec.  56.4911-5 applies to the electing public 
charity's communications with its own members. Therefore, in the limited 
context of determining whether a private foundation's grant to an 
electing public charity is a taxable expenditure under section 4945, the 
Sec.  56.4911-5 membership rules apply. For example, if the grant is 
specifically earmarked for a communication from the electing public 
charity to its members and the communication is, because of Sec.  
56.4911-5, a nonlobbying communication, the grant is not a taxable 
expenditure under section 4945.
    (3) Jointly funded projects. A private foundation will not be 
treated as having paid or incurred any amount to attempt to influence 
legislation merely because it makes a grant to another organization upon 
the condition that the recipient obtain a matching support appropriation 
from a governmental body. In addition, a private foundation will not be 
treated as having made taxable expenditures of amounts paid or incurred 
in carrying on discussions with officials of governmental bodies 
provided that:
    (i) The subject of such discussions is a program which is jointly 
funded by the foundation and the Government or is a new program which 
may be jointly funded by the foundation and the Government,
    (ii) The discussions are undertaken for the purpose of exchanging 
data and information on the subject matter of the programs, and
    (iii) Such discussions are not undertaken by foundation managers in 
order to make any direct attempt to persuade governmental officials or 
employees to take particular positions on specific legislative issues 
other than such program.
    (4) Certain expenditures by recipients of program-related 
investments. Any amount paid or incurred by a recipient of a program-
related investment (as defined in Sec.  53.4944-3) in connection with an 
appearance before, or communication with, any legislative body with 
respect to legislation or proposed legislation of direct interest to 
such recipient shall not be attributed to the investing foundation, if:
    (i) The foundation does not earmark its funds to be used for any 
activities described in section 4945(d) (1) and
    (ii) A deduction under section 162 is allowable to the recipient for 
such amount.
    (5) Grants to public organizations--(i) In general. A grant by a 
private foundation to an organization described in section 509(a) (1), 
(2) or (3) does not constitute a taxable expenditure by the foundation 
under section 4945(d), other than under section 4945(d)(1), if the grant 
by the private foundation is not earmarked to be used for any activity 
described in section 4945(d) (2) or (5), is not earmarked to be used in 
a manner which would violate section 4945(d) (3) or (4), and there does 
not exist an agreement, oral or written, whereby the grantor foundation 
may cause the grantee to engage in any such prohibited activity or to 
select the recipient to which the grant is to be devoted. For purposes 
of this paragraph (a)(5)(i), a grant by a private foundation is 
earmarked if the grant is given pursuant to an agreement, oral or 
written, that the grant will be used for specific purposes. For the 
expenditure responsibility requirements with respect to organizations 
other than those described in section 509(a) (1), (2), or (3), see Sec.  
53.4945-5. For rules for determining whether grants to public charities 
are taxable expenditures under section 4945(d)(1), see paragraphs 
(a)(2), (a)(6) and (a)(7) of this section.
    (ii) Certain ``public'' organizations. For purposes of this section, 
an organization shall be considered a section

[[Page 178]]

509(a)(1) organization if it is treated as such under subparagraph (4) 
of Sec.  53.4945-5(a).
    (6) Grants to public organizations that attempt to influence 
legislation--(i) General support grant. A general support grant by a 
private foundation to the organization described in section 509(a) (1), 
(2), or (3) (a ``public charity'' for purposes of paragraphs (a) (6) and 
(7) of this section) does not constitute a taxable expenditure under 
section 4945(d)(1) to the extent that the grant is not earmarked, within 
the meaning of Sec.  53.4945-2(a)(5)(i), to be used in an attempt to 
influence legislation. The preceding sentence applies without regard to 
whether the public charity has made the election under section 501(h).
    (ii) Specific project grant. A grant, by a private foundation to 
fund a specific project of a public charity is not a taxable expenditure 
by the foundation under section 4945(d)(1) to the extent that--
    (A) The grant is not earmarked, within the meaning of Sec.  53.4945-
2(a)(5)(i), to be used in an attempt to influence legislation, and
    (B) The amount of the grant, together with other grants by the same 
private foundation for the same project for the same year, does not 
exceed the amount budgeted, for the year of the grant, by the grantee 
organization for activities of the project that are not attempts to 
influence legislation. If the grant is for more than one year, the 
preceding sentence applies to each year of the grant with the amount of 
the grant measured by the amount actually disbursed by the private 
foundation in each year or divided equally between years, at the option 
of the private foundation. The same method of measuring the annual 
amount must be used in all years of a grant. This paragraph (a)(6)(ii) 
applies without regard to whether the public charity has made the 
election under section 501(h).
    (iii) Reliance upon grantee's budget. For purposes of determining 
the amount budgeted by a prospective grantee for specific project 
activities that are not attempts to influence legislation under 
paragraph (a)(6)(ii) of this section, a private foundation may rely on 
budget documents or other sufficient evidence supplied by the grantee 
organization (such as a signed statement by an authorized officer, 
director or trustee of such grantee organization) showing the proposed 
budget of the specific project, unless the private foundation doubts or, 
in light of all the facts and circumstances, reasonably should doubt the 
accuracy or reliability of the documents.
    (7) Grants to organizations that cease to be described in 
501(c)(3)--(i) Not taxable expenditure; conditions. A grant to a public 
charity (as defined in paragraph (a)(6)(i) of this section) that 
thereafter ceases to be an organization described in section 501(c)(3) 
by reason of its attempts to influence legislation is not a taxable 
expenditure if--
    (A) The grant meets the requirements of paragraph (a)(6) of this 
section,
    (B) The recipient organization had received a ruling or 
determination letter, or an advance ruling or determination letter, that 
it is described in sections 501(c)(3) and 509(a),
    (C) Notice of a change in the recipient organization's status has 
not been made to the public (such as by publication in the Internal 
Revenue Bulletin), and the private foundation has not acquired knowledge 
that the Internal Revenue Service has given notice to the recipient 
organization that it will be deleted from such status; and
    (D) The recipient organization is not controlled directly or 
indirectly by the private foundation. A recipient organization is 
controlled by a private foundation for this purpose if the private 
foundation and disqualified persons (defined in section 4946(a)(1) (A) 
through (H) with reference to the private foundation, by aggregating 
their votes or positions of authority, can cause or prevent action on 
legislative issues by the recipient.
    (ii) Examples. The provisions of paragraphs (a)(6) and (a)(7) of 
this section are illustrated by the following examples:

    Example 1. W, a private foundation, makes a general support grant to 
Z, a public charity described in section 509(a)(1). Z informs W that, as 
an insubstantial portion of its activities, Z attempts to influence the 
State legislature with regard to changes in the mental health laws. The 
use of the grant is not earmarked by W to be used in a manner that would 
violate section 4945(d)(1). Even if

[[Page 179]]

the grant is subsequently devoted by Z to its legislative activities, 
the grant by W is not a taxable expenditure under section 4945(d).
    Example 2. X, a private foundation, makes a specific project grant 
to Y University for the purpose of conducting research on the potential 
environmental effects of certain pesticides. X does not earmark the 
grant for any purpose that would violate section 4945(d)(1) and there is 
no oral or written agreement or understanding whereby X may cause Y to 
engage in any activity described in section 4945(d) (1), (2), or (5), or 
to select any recipient to which the grant may be devoted. Further, X 
determines, based on budget information supplied by Y, that Y's budget 
for the project does not contain any amount for attempts to influence 
legislation. X has no reason to doubt the accuracy or reliability of the 
budget information. Y uses most of the funds for the research project; 
however, Y expends a portion of the grant funds to send a representative 
to testify at Congressional hearings on a specific bill proposing 
certain pesticide control measures. The portion of the grant funds 
expended with respect to the Congressional hearings is not treated as a 
taxable expenditure by X under section 4945(d)(1).
    Example 3. M, a private foundation, makes a specific project grant 
of $150,000 to P, a public charity described in section 509(a)(1). In 
requesting the grant from M, P stated that the total budgeted cost of 
the project is $200,000, and that of this amount $20,000 is allocated to 
attempts to influence legislation related to the project. M relies on 
the budget figures provided by P in determining the amount P will spend 
on influencing legislation and M has no reason to doubt the accuracy or 
reliability of P's budget figures. In making the grant, M did not 
earmark any of the funds from the grant to be used for attempts to 
influence legislation. M's grant of $150,000 to P will not constitute a 
taxable expenditure under section 4945(d)(1) because M did not earmark 
any of the funds for attempts to influence legislation and because the 
amount of its grant ($150,000) does not exceed the amount allocated to 
specific project activities that are not attempts to influence 
legislation ($200,000 - $20,000 = $180,000).
    Example 4. Assume the same facts as in example (3), except that M's 
grant letter to P provides that M has the right to renegotiate the terms 
of the grant if there is a substantial deviation from those terms. This 
additional fact does not make M's grant a taxable expenditure under 
section 4945(d)(1).
    Example 5. Assume the same facts as in example (3), except that M 
made a specific project grant of $200,000 to P. Part of M's grant of 
$200,000 will constitute a taxable expenditure under section 4945(d)(1). 
The amount of the grant ($200,000) exceeds by $20,000 the amount P 
allocated to specific project activities that are not attempts to 
influence legislation ($180,000). M has made a taxable expenditure of 
$20,000.
    Example 6. Assume the same facts as example (3), except that M made 
a specific project grant of $180,000, and received from P an enforceable 
commitment that grant funds would not be used in connection with 
attempts to influence legislation. M's grant is not a taxable 
expenditure under section 4945(d)(1).
    Example 7. Assume the same facts as in example (3) except that M 
directed P to hire A, an individual, to expend $20,000 from the grant to 
engage in direct lobbying (within the meaning of Sec.  56.4911-2(b)) and 
grass roots lobbying (within the meaning of Sec.  56.4911-2(c)). P does 
not expend any other grant funds for lobbying activities. The $20,000 
that is earmarked for direct lobbying and grass roots lobbying is a 
taxable expenditure under section 4945(d)(1).
    Example 8. R, a public charity described in section 509(a)(1), 
requested N, a private foundation, to make a general purpose grant to it 
to aid R in carrying out its exempt purpose. In making this request, R 
notified N that it had elected the expenditure test under section 501(h) 
and that it expected to attempt to influence legislation in areas 
related to its exempt purpose. Since its formation, R generally has had 
exempt purpose expenditures (as defined in Sec.  56.4911-4) in excess of 
$7,000,000 in each of its taxable years, and has budgeted in excess of 
$7,000,000 of exempt purpose expenditures for the year of the grant. N 
made a grant of $200,000 to R. N did not earmark the funds for R's 
attempt to influence legislation. The general purpose grant by N does 
not constitute a taxable expenditure under section 4945(d)(1).
    Example 9. Assume the same facts as in example (8), except that N 
learns that R has had excess lobbying expenditures (within the meaning 
of Sec.  56.4911-1(b)) in some prior years. N also learns that in no 
year has R's lobbying or grass roots expenditures (within the meaning of 
Sec.  56.4911-2 (a) and (c)) exceeded the corresponding ceiling amount 
(within the meaning of Sec.  1.501(h)-3(c) (3) and (6)). N then makes 
the grant to R. After receiving the grant, R spends a large portion of 
its funds on influencing legislation and, as a consequence, is denied 
exemption from tax, as an organization described in section 501(c)(3), 
under section 501(h) and Sec.  1.501(h)-3. No disqualified person with 
respect to N controlled, in whole or in part, R's attempts to influence 
legislation. The general purpose grant will not constitute a taxable 
expenditure under section 4945(d)(1).
    Example 10. X, a private foundation, makes a specific project grant 
to Y, a public charity described in section 509(a). In requesting the 
grant, Y stated that it planned to use the funds to purchase a computer 
for purpose of computerizing its research files and that the

[[Page 180]]

grant will not be used to influence legislation. Two years after X makes 
the grant, X discovers that Y has also used the computer for purposes of 
maintaining and updating the mailing list for Y's lobbying newsletter. 
Because X did not earmark any of the grant funds to be used for attempts 
to influence legislation and because X had no reason to doubt the 
accuracy or reliability of Y's documents representing that the grant 
would not be used to influence legislation, X's grant is not treated as 
a taxable expenditure.
    Example 11. G, a private foundation, makes a specific project grant 
of $300,000 to L, a public charity described in section 509(a)(1) for a 
three-year specific project studying child care problems. L provides 
budget material indicating that the specific project will expend 
$200,000 in each of three years. L's budget materials indicate that 
attempts to influence legislation will amount to $10,000 in the first 
year, $20,000 in the second year and $100,000 in the third year. G 
intends to pay its $300,000 grant over three years as follows: $200,000 
in the first year, $50,000 in the second year and $50,000 in the third 
year. The amount of the grant actually disbursed by G in the first year 
of the grant exceeds the nonlobbying expenditures of L in that year. 
However, because the amount of the grant in each of the three years, 
when divided equally among the three years ($100,000 for each year), is 
not more than the nonlobbying expenditures of L on the specific project 
for any of the three years, none of the grant is treated as a taxable 
expenditure under section 4945(d)(1).
    Example 12. P, a private foundation, makes a $120,000 specific 
project grant to C, a public charity described in section 509(a) for a 
three-year project. P intends to pay its grant to C in three equal 
annual installments of $40,000. C provides budget material indicating 
that the specific project will expend $100,000 in each of three years. 
C's budget materials, which P reasonably does not doubt, indicate that 
the project's attempts to influence legislation will amount to $50,000 
in each of the three years. After P pays the first annual installment to 
C, but before P pays the second installment to C, reliable information 
comes to P's attention that C has spent $90,000 of the project's 
$100,000 first-year budget on attempts to influence legislation. This 
information causes P to doubt the accuracy and reliability of C's budget 
materials. Because of the information, P does not pay the second-year 
installment to C. P's payment of the first installment of $40,000 is not 
a taxable expenditure under section 4945(d)(1) because the grant in the 
first year is not more than the nonlobbying expenditures C projected in 
its budget materials that P reasonably did not doubt.
    Example 13. Assume the same facts as in Example (12), except that P 
pays the second-year installment of $40,000 to C. In the project's 
second year, C once again spends $90,000 of the project's $100,000 
annual budget in attempts to influence legislation. Because P doubts or 
reasonably should doubt the accuracy or reliability of C's budget 
materials when P makes the second-year grant payment, P may not rely 
upon C's budget documents at that time. Accordingly, although none of 
the $40,000 paid in the first installment is a taxable expenditure, only 
$10,000 ($100,000 minus $90,000) of the second-year grant payment is not 
a taxable expenditure. The remaining $30,000 of the second installment 
is a taxable expenditure within the meaning of section 4945(d)(1).
    Example 14. B, a private foundation, makes a specific project grant 
to C, a public charity described in section 509(a), of $40,000 for the 
purpose of conducting a study on the effectiveness of seat belts in 
preventing traffic deaths. B did not earmark any of the grant for 
attempts to influence legislation. In requesting the grant from B, C 
submitted a budget of $100,000 for the project. The budget contained 
expenses for postage and mailing, computer time, advertising, consulting 
services, salaries, printing, advertising, and similar categories of 
expenses. C also submitted to B a statement, signed by an officer of C, 
that 30% of the budgeted funds would be devoted to attempts to influence 
legislation within the meaning of section 4945. B has no reason to doubt 
the accuracy of the budget figures or the statement. B may rely on the 
budget figures and signed statement provided by C in determining the 
amount C will spend on influencing legislation. B's grant to C will not 
constitute a taxable expenditure under section 4945(d)(1), because the 
amount of the grant does not exceed the amount allocated to specific 
project activities that are not attempts to influence legislation.

    (b)-(c) [Reserved]
    (d) Exceptions--(1) Nonpartisan analysis, study, or research--(i) In 
general. A communication is not a lobbying communication, for purposes 
of Sec.  53.4945-2(a)(1), if the communication constitutes engaging in 
nonpartisan analysis, study or research and making available to the 
general public or a segment or members thereof or to governmental 
bodies, officials, or employees the results of such work. Accordingly, 
an expenditure for such a communication does not constitute a taxable 
expenditure under section 4945(d)(1) and Sec.  53.4945-2(a)(1).
    (ii) Nonpartisan analysis, study, or research. For purposes of 
section 4945(e),

[[Page 181]]

``nonpartisan analysis, study, or research'' means an independent and 
objective exposition of a particular subject matter, including any 
activity that is ``educational'' within the meaning of Sec.  
1.501(c)(3)-1(d)(3). Thus, ``nonpartisan analysis, study, or research'' 
may advocate a particular position or viewpoint so long as there is a 
sufficiently full and fair exposition of the pertinent facts to enable 
the public or an individual to form an independent opinion or 
conclusion. On the other hand, the mere presentation of unsupported 
opinion does not qualify as ``nonpartisan analysis, study, or 
research''.
    (iii) Presentation as part of a series. Normally, whether a 
publication or broadcast qualifies as ``nonpartisan analysis, study, or 
research'' will be determined on a presentation-by-presentation basis. 
However, if a publication or broadcast is one of a series prepared or 
supported by a private foundation and the series as a whole meets the 
standards of subdivision (ii) of this subparagraph, then any individual 
publication or broadcast within the series will not result in a taxable 
expenditure even though such individual broadcast or publication does 
not, by itself, meet the standards of subdivision (ii) of this 
subparagraph. Whether a broadcast or publication is considered part of a 
series will ordinarily depend on all the facts and circumstances of each 
particular situation. However, with respect to broadcast activities, all 
broadcasts within any period of 6 consecutive months will ordinarily be 
eligible to be considered as part of a series. If a private foundation 
times or channels a part of a series which is described in this 
subdivision in a manner designed to influence the general public or the 
action of a legislative body with respect to a specific legislative 
proposal in violation of section 4945(d)(1), the expenses of preparing 
and distributing such part of the analysis, study, or research will be a 
taxable expenditure under this section.
    (iv) Making available results of analysis, study, or research. A 
private foundation may choose any suitable means, including oral or 
written presentations, to distribute the results of its nonpartisan 
analysis, study, or research, with or without charge. Such means include 
distribution of reprints of speeches, articles, and reports (including 
the report required under section 6056); presentation of information 
through conferences, meetings, and discussions; and dissemination to the 
news media, including radio, television, and newspapers, and to other 
public forums. For purposes of this paragraph (d)(1)(iv), such 
communications may not be limited to, or be directed toward, persons who 
are interested solely in one side of a particular issue.
    (v) Subsequent lobbying use of certain analysis, study, or 
research--(A) In general. Even though certain analysis, study or 
research is initially within the exception for nonpartisan analysis, 
study, or research, subsequent use of that analysis, study or research 
for grass roots lobbying may cause that analysis, study or research to 
be treated as a grass roots lobbying communication that is not within 
the exception for nonpartisan analysis, study, or research. This 
paragraph (d)(1)(v) of this section does not cause any analysis, study, 
or research to be considered a direct lobbying communication. For rules 
regarding when analysis, study, or research is treated as a grass roots 
lobbying communication that is not within the scope of the exception for 
nonpartisan analysis, study, or research, see Sec.  56.4911-2(b)(2)(v).
    (B) Special rule for grants to public charities. This paragraph 
(d)(1)(v)(B) of this section applies where a public charity uses a 
private foundation grant to finance, in whole or in part, a nonlobbying 
communication that is subsequently used in lobbying, causing the public 
charity's expenditures for the communication to be treated as lobbying 
expenditures under the subsequent use. In such a case, the private 
foundation's grant will ordinarily not be characterized as a lobbying 
expenditure by virtue of the subsequent use rule. The only situations 
where the private foundation's grant will be treated as a lobbying 
expenditure under the subsequent use rule are where the private 
foundation's primary purpose in making the grant to the public charity 
was for lobbying or where, at the time

[[Page 182]]

of making the grant, the private foundation knows (or in light of all 
the facts and circumstances reasonably should know) that the public 
charity's primary purpose in preparing the communication to be funded by 
the grant is for use in lobbying.
    (vi) Directly encouraging action by recipients of a communication. A 
communication that reflects a view on specific legislation is not within 
the nonpartisan analysis, study, or research exception of this Sec.  
53.4945-2(d)(1) if the communication directly encourages the recipient 
to take action with respect to such legislation. For purposes of this 
section, a communication directly encourages the recipient to take 
action with respect to legislation if the communication is described in 
one or more of Sec.  56.4911-2(b)(2)(iii)(A) through (C). As described 
in Sec.  56.4911-2(b)(2)(iv), a communication would encourage the 
recipient to take action with respect to legislation, but not directly 
encourage such action, if the communication does no more than 
specifically identify one or more legislators who will vote on the 
legislation as: opposing the communication's view with respect to the 
legislation; being undecided with respect to the legislation; being the 
recipient's representative in the legislature; or being a member of the 
legislative committee or subcommittee that will consider the 
legislation.
    (vii) Examples. The provisions of this paragraph may be illustrated 
by the following examples:

    Example 1. M, a private foundation, establishes a research project 
to collect information for the purpose of showing the dangers of the use 
of pesticides in raising crops. The information collected includes data 
with respect to proposed legislation, pending before several State 
legislatures, which would ban the use of pesticides. The project takes 
favorable positions on such legislation without producing a sufficiently 
full and fair exposition of the pertinent facts to enable the public or 
an individual to form an independent opinion or conclusion on the pros 
and cons of the use of pesticides. This project is not within the 
exception for nonpartisan analysis, study, or research because it is 
designed to present information merely on one side of the legislative 
controversy.
    Example 2. N, a private foundation, establishes a research project 
to collect information concerning the dangers of the use of pesticides 
in raising crops for the ostensible purpose of examining and reporting 
information as to the pros and cons of the use of pesticides in raising 
crops. The information is collected and distributed in the form of a 
published report which analyzes the effects and costs of the use and 
nonuse of various pesticides under various conditions on humans, 
animals, and crops. The report also presents the advantages, 
disadvantages, and economic cost of allowing the continued use of 
pesticides unabated, of controlling the use of pesticides, and of 
developing alternatives to pesticides. Even if the report sets forth 
conclusions that the disadvantages as a result of using pesticides are 
greater than the advantages of using pesticides and that prompt 
legislative regulation of the use of pesticides is needed, the project 
is within the exception for nonpartisan analysis, study or research 
since it is designed to present information on both sides of the 
legislative controversy and presents a sufficiently full and fair 
exposition of the pertinent facts to enable the public or an individual 
to form an independent opinion or conclusion.
    Example 3. O, a private foundation, establishes a research project 
to collect information on the presence or absence of disease in humans 
from eating food grown with pesticides and the presence or absence of 
disease in humans from eating food not grown with pesticides. As part of 
the research project, O hires a consultant who prepares a ``fact sheet'' 
which calls for the curtailment of the use of pesticides and which 
addresses itself to the merits of several specific legislative proposals 
to curtail the use of pesticides in raising crops which are currently 
pending before State legislatures. The ``fact sheet'' presents reports 
of experimental evidence tending to support its conclusions but omits 
any reference to reports of experimental evidence tending to dispute its 
conclusions. O distributes 10,000 copies to citizens' groups. 
Expenditures by O in connection with this work of the consultant are not 
within the exception for nonpartisan analysis, study, or research.
    Example 4. P publishes a bi-monthly newsletter to collect and report 
all published materials, ongoing research, and new developments with 
regard to the use of pesticides in raising crops. The newsletter also 
includes notices of proposed pesticide legislation with impartial 
summaries of the provisions and debates on such legislation. The 
newsletter does not encourage recipients to take action with respect to 
such legislation, but is designed to present information on both sides 
of the legislative controversy and does present information fully and 
fairly. It is within the exception for nonpartisan analysis, study, or 
research.
    Example 5. X is satisfied that A, a member of the faculty of Y 
University, is exceptionally well qualified to undertake a project 
involving a comprehensive study of the effects of pesticides on crop 
yields. Consequently, X

[[Page 183]]

makes a grant to A to underwrite the cost of the study and of the 
preparation of a book on the effect of pesticides on crop yields. X does 
not take any position on the issues or control the content of A's 
output. A produces a book which concludes that the use of pesticides 
often has a favorable effect on crop yields, and on that basis argues 
against pending bills which would ban the use of pesticides. A's book 
contains a sufficiently full and fair exposition of the pertinent facts, 
including known or potential disadvantages of the use of pesticides, to 
enable the public or an individual to form an independent opinion or 
conclusion as to whether pesticides should be banned as provided in the 
pending bills. The book does not directly encourage readers to take 
action with respect to the pending bills. Consequently, the book is 
within the exception for nonpartisan analysis, study, or research.
    Example 6. Assume the same facts as Example (2), except that, 
instead of issuing a report, X presents within a period of 6 consecutive 
months a two-program television series relating to the pesticide issue. 
The first program contains information, arguments, and conclusions 
favoring legislation to restrict the use of pesticides. The second 
program contains information, arguments, and conclusions opposing 
legislation to restrict the use of pesticides. The programs are 
broadcast within 6 months of each other during commensurate periods of 
prime time. X's programs are within the exception for nonpartisan 
analysis, study, or research. Although neither program individually 
could be regarded as nonpartisan, the series of two programs constitutes 
a balanced presentation.
    Example 7. Assume the same facts as Example (6), except that X 
arranged for televising the program favoring legislation to restrict the 
use of pesticides at 8 p.m. on a Thursday evening and for televising the 
program opposing such legislation at 7 a.m. on a Sunday morning. X's 
presentation is not within the exception for nonpartisan analysis, 
study, or research, since X disseminated its information in a manner 
prejudicial to one side of the legislative controversy.
    Example 8. Organization Z researches, writes, prints and distributes 
a study on the use and effects of pesticide X. A bill is pending in the 
U.S. Senate to ban the use of pesticide X. Z's study leads to the 
conclusion that pesticide X is extremely harmful and that the bill 
pending in the U.S. Senate is an appropriate and much needed remedy to 
solve the problems caused by pesticide X. The study contains a 
sufficiently full and fair exposition of the pertinent facts, including 
known or potential advantages of the use of pesticide X, to enable the 
public or an individual to form an independent opinion or conclusion as 
to whether pesticides should be banned as provided in the pending bills. 
In its analysis of the pending bill, the study names certain undecided 
Senators on the Senate committee considering the bill. Although the 
study meets the three part test for determining whether a communication 
is a grass roots lobbying communication, the study is within the 
exception for nonpartisan analysis, study or research, because it does 
not directly encourage recipients of the communication to urge a 
legislator to oppose the bill.
    Example 9. Assume the same facts as in Example (8), except that, 
after stating support for the pending bill, the study concludes: ``You 
should write to the undecided committee members to support this crucial 
bill.'' The study is not within the exception for nonpartisan analysis, 
study or research because it directly encourages the recipients to urge 
a legislator to support a specific piece of legislation.
    Example 10. Organization X plans to conduct a lobbying campaign with 
respect to illegal drug use in the United States. It incurs $5,000 in 
expenses to conduct research and prepare an extensive report primarily 
for use in the lobbying campaign. Although the detailed report discusses 
specific pending legislation and reaches the conclusion that the 
legislation would reduce illegal drug use, the report contains a 
sufficiently full and fair exposition of the pertinent facts to enable 
the public or an individual to form an independent conclusion regarding 
the effect of the legislation. The report does not encourage readers to 
contact legislators regarding the legislation. Accordingly, the report 
does not, in and of itself, constitute a lobbying communication.
    Copies of the report are available to the public at X's office, but 
X does not actively distribute the report or otherwise seek to make the 
contents of the report available to the general public. Whether or not 
X's distribution is sufficient to meet the requirement in Sec.  53.4945-
2(d)(1)(iv) that a nonpartisan communication be made available, X's 
distribution is not substantial (for purposes of Sec. Sec.  53.4945-
2(D)(1)(v) and 56.4911-2(b)(2)(v)) in light of all of the facts and 
circumstances, including the normal distribution pattern of similar 
nonpartisan reports. X then mails copies of the report, along with a 
letter, to 10,000 individuals on X's mailing list. In the letter, X 
requests that individuals contact legislators urging passage of the 
legislation discussed in the report. Because X's research and report 
were primarily undertaken by X for lobbying purposes and X did not make 
a substantial distribution of the report (without an accompanying 
lobbying message) prior to or contemporaneously with the use of the 
report in lobbying, the report is a grass roots lobbying communication 
that is not within the exception for nonpartisan analysis, study or 
research. Thus, the expenditures for preparing

[[Page 184]]

and mailing both the report and the letter are taxable expenditures 
under section 4945.
    Example 11. Assume the same facts as in Example (10), except that 
before using the report in the lobbying campaign, X sends the research 
and report (without an accompanying lobbying message) to universities 
and newspapers. At the same time, X also advertises the availability of 
the report in its newsletter. This distribution is similar in scope to 
the normal distribution pattern of similar nonpartisan reports. In light 
of all of the facts and circumstances, X's distribution of the report is 
substantial. Because of X's substantial distribution of the report, X's 
primary purpose will be considered to be other than for use in lobbying 
and the report will not be considered a grass roots lobbying 
communication. Accordingly, only the expenditures for copying and 
mailing the report to the 10,000 individuals on X's mailing list, as 
well as for preparing and mailing the letter, are expenditures for grass 
roots lobbying communications, and are thus taxable expenditures under 
section 4945.
    Example 12. Organization M pays for a bumper sticker that reads: 
``STOP ABORTION: Vote NO on Prop. X!'' M also pays for a 30-second 
television advertisement and a billboard that similarly advocate 
opposition to Prop. X. In light of the limited scope of the 
communications, none of the communications is within the exception for 
nonpartisan analysis, study or research. First, none of the 
communications rises to the level of analysis, study or research. 
Second, none of the communications is nonpartisan because none contains 
a sufficiently full and fair exposition of the pertinent facts to enable 
the public or an individual to form an independent opinion or 
conclusion. Thus, each communication is a lobbying communication.

    (2) Technical advice or assistance--(i) In general. Amounts paid or 
incurred in connection with providing technical advice or assistance to 
a governmental body, a governmental committee, or a subdivision of 
either of the foregoing, in response to a written request by such body, 
committee, or subdivision do not constitute taxable expenditures for 
purposes of this section. Under this exception, the request for 
assistance or advice must be made in the name of the requesting 
governmental body, committee or subdivision rather than an individual 
member thereof. Similarly, the response to such request must be 
available to every member of the requesting body, committee or 
subdivision. For example, in the case of a written response to a request 
for technical advice or assistance from a congressional committee, the 
response will be considered available to every member of the requesting 
committee if the response is submitted to the person making such request 
in the name of the committee and it is made clear that the response is 
for the use of all the members of the committee.
    (ii) Nature of technical advice or assistance. ``Technical advice or 
assistance'' may be given as a result of knowledge or skill in a given 
area. Because such assistance or advice may be given only at the express 
request of a governmental body, committee or subdivision, the oral or 
written presentation of such assistance or advice need not qualify as 
nonpartisan analysis, study or research. The offering of opinions or 
recommendations will ordinarily qualify under this exception only if 
such opinions or recommendations are specifically requested by the 
governmental body, committee or subdivision or are directly related to 
the materials so requested.
    (iii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. A congressional committee is studying the feasibility of 
legislation to provide funds for scholarships to U.S. students attending 
schools abroad. X, a private foundation which has engaged in a private 
scholarship program of this type, is asked, in writing, by the committee 
to describe the manner in which it selects candidates for its program. 
X's response disclosing its methods of selection constitutes technical 
advice or assistance.
    Example 2. Assume the same facts as Example (1), except that X's 
response not only includes a description of its own grant-making 
procedures, but also its views regarding the wisdom of adopting such a 
program. Since such views are directly related to the subject matter of 
the request for technical advice or assistance, expenditures paid or 
incurred with respect to the presentation of such views would not 
constitute taxable expenditures. However, expenditures paid or incurred 
with respect to a response which is not directly related to the subject 
matter of the request for technical advice or assistance would 
constitute taxable expenditures unless the presentation can qualify as 
the making available of nonpartisan analysis, study or research.
    Example 3. Assume the same facts as Example (1), except that X is 
requested, in addition, to give any views it considers relevant. A 
response to this request giving opinions

[[Page 185]]

which are relevant to the committee's consideration of the scholarship 
program but which are not necessarily directly related to X's 
scholarship program, such as discussions of alternative scholarships 
programs and their relative merits, would qualify as ``technical advice 
or assistance'', and expenditures paid or incurred with respect to such 
response would not constitute taxable expenditures.
    Example 4. A, an official of the State Department, makes a written 
request in his official capacity for information from foundation Y 
relating to the economic development of country M and for the opinions 
of Y as to the proper position of the United States in pending 
negotiations with M concerning a proposed treaty involving a program of 
economic and technical aid to M. Y's furnishing of such information and 
opinions constitutes technical advice or assistance.
    Example 5. In response to a telephone inquiry from Senator X's 
staff, organization B sends Senator X a report concluding that the 
Senate should not advise and consent to the nomination of Z to serve as 
a Supreme Court Justice. Because the request was not in writing, and 
also because the request was not from the Senate itself or from a 
committee or subcommittee, B's report is not within the scope of the 
exception for responses to requests for technical advice. Accordingly, 
B's report is a lobbying communication unless the report is within the 
scope of the exception for nonpartisan analysis, study or research.
    Example 6. Assume the same facts as in Example (5), except that B's 
report is sent in response to a written request that Senator X sends to 
B. The request from Senator X is a request from the Senator as an 
individual member of the Senate rather than from the Senate itself or 
from a committee or subcommittee. Accordingly, B's report is not within 
the scope of the exception for responses to requests for technical 
advice and is a lobbying conmmunication unless the report is within the 
scope of the exception for nonpartisan analysis, study or research.
    Example 7. Assume the same facts as in Example (6), except that B's 
report is sent in response to a written request from the Senate 
committee that is considering the nomination for an evaluation of the 
nominee's legal writings and a recommendation as to whether the 
candidate is or is not qualified to serve on the Supreme Court. The 
report is within the scope of the exception for responses to requests 
for technical advice and is not a lobbying communication.

    (3) Decisions affecting the powers, duties, etc., of a private 
foundation--(i) In general. Paragraph (c) of this section does not apply 
to any amount paid or incurred in connection with an appearance before, 
or communication with, any legislative body with respect to a possible 
decision of such body which might affect the existence of the private 
foundation, its powers and duties, its tax-exempt status, or the 
deductibility of contributions to such foundation. Under this exception, 
a foundation may communicate with the entire legislative body, 
committees or subcommittees of such legislative body, individual 
congressmen or legislators, members of their staffs, or representatives 
of the executive branch, who are involved in the legislative process, if 
such communication is limited to the prescribed subjects. Similarly, the 
foundation may make expenditures in order to initiate legislation if 
such legislation concerns only matters which might affect the existence 
of the private foundation, its powers and duties, its tax-exempt status, 
or the deductibility of contributions to such foundation.
    (ii) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. A bill is being considered by Congress which would, if 
enacted, restrict the power of a private foundation to engage in 
transactions with certain related persons. Under the proposed bill a 
private foundation would lose its exemption from taxation if it engages 
in such transactions. W, a private foundation, writes to the 
congressional committee considering the bill, arguing that the enactment 
of such a bill would not be advisable, and subsequently appears before 
such committee to make its arguments. In addition, W requests that the 
congressional committee consider modification of the 2 percent de 
minimis rule of section 4943(c) (2) (C). Expenditures paid or incurred 
with respect to such submissions do not constitute taxable expenditures 
since they are made with respect to a possible decision of Congress 
which might affect the existence of the private foundation, its powers 
and duties, its tax-exempt status, or the deduction of contributions to 
such foundation.
    Example 2. A bill being considered in a State legislature is 
designed to implement the requirements of section 508(e) of the Internal 
Revenue Code of 1954. Under such section, a private foundation is 
required to make certain amendments to its governing instrument. X, a 
private foundation, makes a submission to the legislature which proposes 
alternative measures which might be taken in lieu of the proposed bill. 
X also arranges to have its president contact certain State

[[Page 186]]

legislators with regard to this bill. Expenditures paid or incurred in 
making such submission and in contacting the State legislators do not 
constitute taxable expenditures since they are made with respect to a 
possible decision of such State legislature which might affect the 
existence of the private foundation, its powers and duties, its tax-
exempt status, or the deduction of contributions to such foundation.
    Example 3. A bill is being considered by a State legislature under 
which the State would assume certain responsibilities for nursing care 
of the aged. Y, a private foundation which hitherto has engaged in such 
activities, appears before the State legislature and contends that such 
activities can be better performed by privately supported organizations. 
Expenditures paid or incurred with respect to such appearance are not 
made with respect to possible decisions of the State legislature which 
might affect the existence of the private foundation, its powers and 
duties, its tax-exempt status, or the deduction of contributions to such 
foundation, but rather merely affect the scope of the private 
foundation's future activities.
    Example 4. A State legislature is considering the annual 
appropriations bill. Z, a private foundation which had hitherto 
performed contract research for the State, appears before the 
appropriations committee in order to attempt to persuade the committee 
of the advisability of continuing the program. Expenditures paid or 
incurred with respect to such appearance are not made with respect to 
possible decisions of the State legislature which might affect the 
existence of the private foundation, its powers and duties, its tax-
exempt status, or the deduction of contributions to such foundation, but 
rather merely affect the scope of the private foundation's future 
activities.

    (4) Examination and discussions of broad social, economic, and 
similar problems. Examinations and discussions of broad social, 
economic, and similar problems are neither direct lobbying 
communications under Sec.  56.4911-2(b)(1) nor grass roots lobbying 
communications under Sec.  56.4911-2(b)(2) even if the problems are of 
the type with which government would be expected to deal ultimately. 
Thus, under Sec. Sec.  56.4911-2(b) (1) and (2), lobbying communications 
do not include public discussion, or communications with members of 
legislative bodies or governmental employees, the general subject of 
which is also the subject of legislation before a legislative body, so 
long as such discussion does not address itself to the merits of a 
specific legislative proposal and so long as such discussion does not 
directly encourage recipients to take action with respect to 
legislation. For example, this paragraph (d)(4) excludes from grass 
roots lobbying under Sec.  56.4911(b)(2) an organization's discussions 
of problems such as environmental pollution or population growth that 
are being considered by Congress and various State legislatures, but 
only where the discussions are not directly addressed to specific 
legislation being considered, and only where the discussions do not 
directly encourage recipients of the communication to contact a 
legislator, an employee of a legislative body, or a government official 
or employee who may participate in the formulation of legislation.

[T.D. 7215, 37 FR 23161, Oct. 31, 1972; 37 FR 23918, Nov. 11, 1972, as 
amended by T.D. 8308, 55 FR 35594, Aug. 31, 1990]



Sec.  53.4945-3  Influencing elections and carrying 
on voter registration drives.

    (a) Expenditures to influence elections or carry on voter 
registration drives--(1) In general. Under section 4945(d) (2), the term 
``taxable expenditure'' includes any amount paid or incurred by a 
private foundation to influence the outcome of any specific public 
election or to carry on, directly or indirectly, any voter registration 
drive, unless such amount is paid or incurred by an organization 
described in section 4945(f). However, for treatment of nonearmarked 
grants to public organizations, see Sec.  53.4945-2(a) (5) and for 
treatment of certain earmarked grants to organizations described in 
section 4945(f), see paragraph (b) (2) of this section.
    (2) Influencing the outcome of a specific public election. For 
purposes of this section, an organization shall be considered to be 
influencing the outcome of any specific public election if it 
participates or intervenes, directly or indirectly, in any political 
campaign on behalf of or in opposition to any candidate for public 
office. The term candidate for public office means an individual who 
offers himself, or is proposed by others, as a contestant for an 
elective public office, whether such office be national, State or local. 
Activities which constitute participation or intervention in a political 
campaign on

[[Page 187]]

behalf of or in opposition to a candidate include, but are not limited 
to:
    (i) Publishing or distributing written or printed statements or 
making oral statements on behalf of or in opposition to such a 
candidate;
    (ii) Paying salaries or expenses of campaign workers; and
    (iii) Conducting or paying the expenses of conducting a voter-
registration drive limited to the geographic area covered by the 
campaign.
    (b) Nonpartisan activities carried on by certain organizations--(1) 
In general. If an organization meets the requirements described in 
section 4945(f), an amount paid or incurred by such organization shall 
not be considered a taxable expenditure even though the use of such 
amount is otherwise described in section 4945(d) (2). Such requirements 
are:
    (i) The organization is described in section 501(c) (3) and exempt 
from taxation under section 501(a);
    (ii) The activities of the organization are nonpartisan, are not 
confined to one specific election period, and are carried on in five or 
more States;
    (iii) The organization expends at least 85 percent of its income 
directly for the active conduct (within the meaning of section 4942(j) 
(3) and the regulations thereunder) of the activities constituting the 
purpose or function for which it is organized and operated;
    (iv) The organization receives at least 85 percent of its support 
(other than gross investment income as defined in section 509(e)) from 
exempt organizations, the general public, governmental units described 
in section 170(c) (1), or any combination of the foregoing; the 
organization does not receive more than 25 percent of its support (other 
than gross investment income) from any one exempt organization (for this 
purpose treating private foundations which are described in section 
4946(a) (1) (H) with respect to each other as one exempt organization); 
and not more than half of the support of the organization is received 
from gross investment income; and
    (v) Contributions to the organization for voter registration drives 
are not subject to conditions that they may be used only in specified 
States, possessions of the United States, or political subdivisions or 
other areas of any of the foregoing, or the District of Columbia, or 
that they may be used in only one specific election period.
    (2) Grants to section 4945(f) organizations. If a private foundation 
makes a grant to an organization described in section 4945(f) (whether 
or not such grantee is a private foundation as defined in section 
509(a)), such grant will not be treated as a taxable expenditure under 
section 4945(d) (2) or (4). Even if a grant to such an organization is 
earmarked for voter registration purposes generally, such a grant will 
not be treated as a taxable expenditure under section 4945(d) (2) or (4) 
as long as such earmarking does not violate section 4945(f) (5).
    (3) Period for determining support--(i) In general. The 
determination whether an organization meets the support test in section 
4945(f) (4) for any taxable year is to be made by aggregating all 
amounts of support received by the organization during the taxable year 
and the immediately preceding four taxable years. However, the support 
received in any taxable year which begins before January 1, 1970, shall 
be excluded.
    (ii) New organizations and organizations with no preceding taxable 
years beginning after December 31, 1969. Except as provided in 
subparagraph (4) of this paragraph, in the case of a new organization or 
an organization with no taxable years that begin after December 31, 
1969, and immediately precede the taxable year in question, the 
requirements of the support test in section 4945(f)(4) will be 
considered as met for the taxable year if such requirements are met by 
the end of the taxable year.
    (iii) Organization with three or fewer preceding taxable years. In 
the case of an organization which has been in existence for at least 1 
but fewer than 4 preceding taxable years beginning after December 31, 
1969, the determination whether such organization meets the requirements 
of the support test in section 4945(f)(4) for the taxable year is to be 
made by taking into account all the support received by such 
organization during the taxable year and during each preceding taxable 
year beginning after December 31, 1969.

[[Page 188]]

    (4) Advance rulings. An organization will be given an advance ruling 
that it is an organization described in section 4945(f) for its first 
taxable year of operation beginning after October 30, 1972, or for its 
first taxable year of operation beginning after December 31, 1969, if it 
submits evidence establishing that it can reasonably be expected to meet 
the tests under section 4945(f) for such taxable year. An organization 
which, pursuant to this subparagraph, has been treated as an 
organization described in section 4945(f) for a taxable year (without 
withdrawal of such treatment by notification from the Internal Revenue 
Service during such year), but which actually fails to meet the 
requirements of section 4945(f) for such taxable year, will not be 
treated as an organization described in section 4945(f) as of the first 
day of its next taxable year (for purposes of making any determination 
under the internal revenue laws with respect to such organization) and 
until such time as the organization does meet the requirements of 
section 4945(f). For purposes of section 4945, the status of grants or 
contributions with respect to grantors or contributors to such 
organization will not be affected until notice of change of status of 
such organization is made to the public (such as by publication in the 
Internal Revenue Bulletin). The preceding sentence shall not apply, 
however, if the grantor or contributor was responsible for, or was aware 
of, the fact that the organization did not satisfy section 4945(f) at 
the end of the taxable year with respect to which the organization had 
obtained an advance ruling or a determination letter that it was a 
section 4945(f) organization, or acquired knowledge that the Internal 
Revenue Service had given notice to such organization that it would be 
deleted from classification as a section 4945(f) organization.

[T.D. 7215, 37 FR 23161, Oct. 31, 1972; 37 FR 23918, Nov. 11, 1972]



Sec.  53.4945-4  Grants to individuals.

    (a) Grants to individuals--(1) In general. Under section 4945(d) (3) 
the term ``taxable expenditure'' includes any amount paid or incurred by 
a private foundation as a grant to an individual for travel, study, or 
other similar purposes by such individual unless the grant satisfies the 
requirements of section 4945(g). Grants to individuals which are not 
taxable expenditures because made in accordance with the requirements of 
section 4945(g) may result in the imposition of excise taxes under other 
provisions of chapter 42.
    (2) ``Grants'' defined. For purposes of section 4945, the term 
``grants'' shall include, but is not limited to, such expenditures as 
scholarships, fellowships, internships, prizes, and awards. Grants shall 
also include loans for purposes described in section 170(c) (2) (B) and 
``program related investments'' (such as investments in small businesses 
in central cities or in businesses which assist in neighborhood 
renovation). Similarly, ``grants'' include such expenditures as payments 
to exempt organizations to be used in furtherance of such recipient 
organizations' exempt purposes whether or not such payments are 
solicited by such recipient organizations. Conversely, ``grants'' do not 
ordinarily include salaries or other compensation to employees. For 
example, ``grants'' do not ordinarily include educational payments to 
employees which are includible in the employees' incomes pursuant to 
section 61. In addition, ``grants'' do not ordinarily include payments 
(including salaries, consultants' fees and reimbursement for travel 
expenses such as transportation, board, and lodging) to persons 
(regardless of whether such persons are individuals) for personal 
services in assisting a foundation in planning, evaluating or developing 
projects or areas of program activity by consulting, advising, or 
participating in conferences organized by the foundation.
    (3) Requirements for individual grants--(i) Grants for other than 
section 4945(d)(3) purposes. A grant to an individual for purposes other 
than those described in section 4945(d) (3) is not a taxable expenditure 
within the meaning of section 4945(d) (3). For example, if a foundation 
makes grants to indigent individuals to enable them to purchase 
furniture, such grants are not taxable expenditures within the meaning 
of section 4945(d) (3) even if the requirements of section 4945(g) are 
not met.
    (ii) Grants for section 4945(d) (3) purposes. Under section 4945(g), 
a grant to

[[Page 189]]

an individual for travel, study, or other similar purposes is not a 
``taxable expenditure'' only if:
    (a) The grant is awarded on an objective and nondiscriminatory basis 
(within the meaning of paragraph (b) of this section);
    (b) The grant is made pursuant to a procedure approved in advance by 
the Commissioner; and
    (c) It is demonstrated to the satisfaction of the Commissioner that:
    (1) The grant constitutes a scholarship or fellowship grant which is 
excluded from gross income under section 117(a) and is to be utilized 
for study at an educational institution described in section 151(e) (4);
    (2) The grant constitutes a prize or award which is excluded from 
gross income under section 74(b), and the recipient of such prize or 
award is selected from the general public (within the meaning of section 
4941(d) (2) (G) (i) and the regulations thereunder); or
    (3) The purpose of the grant is to achieve a specific objective, 
produce a report or other similar product, or improve or enhance a 
literary, artistic, musical, scientific, teaching, or other similar 
capacity, skill, or talent of the grantee.


If a grant is made to an individual for a purpose described in section 
4945(g) (3) and such grant otherwise meets the requirements of section 
4945(g), such grant shall not be treated as a taxable expenditure even 
if it is a scholarship or a fellowship grant which is not excludable 
from income under section 117 or if it is a prize or award which is 
includible in income under section 74.
    (iii) Renewals. A renewal of a grant which satisfied the 
requirements of subdivision (ii) of this subparagraph shall not be 
treated as a grant to an individual which is subject to the requirements 
of this section, if:
    (a) The grantor has no information indicating that the original 
grant is being used for any purpose other than that for which it was 
made,
    (b) Any reports due at the time of the renewal decision pursuant to 
the terms of the original grant have been furnished, and
    (c) Any additional criteria and procedures for renewal are objective 
and nondiscriminatory.


For purposes of this section, an extension of the period over which a 
grant is to be paid shall not itself be regarded as a grant or a renewal 
of a grant.
    (4) Certain designated grants--(i) In general. A grant by a private 
foundation to another organization, which the grantee organization uses 
to make payments to an individual for purposes described in section 
4945(d)(3), shall not be regarded as a grant by the private foundation 
to the individual grantee if the foundation does not earmark the use of 
the grant for any named individual and there does not exist an 
agreement, oral or written, whereby such grantor foundation may cause 
the selection of the individual grantee by the grantee organization. For 
purposes of this subparagraph, a grant described herein shall not be 
regarded as a grant by the foundation to an individual grantee even 
though such foundation has reason to believe that certain individuals 
would derive benefits from such grant so long as the grantee 
organization exercises control, in fact, over the selection process and 
actually makes the selection completely independently of the private 
foundation.
    (ii) Certain grants to ``public charities''. A grant by a private 
foundation to an organization described in section 509(a) (1), (2), or 
(3), which the grantee organization uses to make payments to an 
individual for purposes described in section 4945(d)(3), shall not be 
regarded as a grant by the private foundation to the individual grantee 
(regardless of the application of subdivision (i) of this subparagraph) 
if the grant is made for a project which is to be undertaken under the 
supervision of the section 509(a) (1), (2), or (3) organization and such 
grantee organization controls the selection of the individual grantee. 
This subdivision shall apply regardless of whether the name of the 
individual grantee was first proposed by the private foundation, but 
only if there is an objective manifestation of the section 509(a), (1), 
(2), or (3) organization's control over the selection process, although 
the selection need not be made completely independently of the private 
foundation. For purposes of this subdivision, an organization shall be

[[Page 190]]

considered a section 509(a)(1) organization if it is treated as such 
under subparagraph (4) of Sec.  53.4945-5(a).
    (iii) Grants to governmental agencies. If a private foundation makes 
a grant to an organization described in section 170(c)(1) (regardless of 
whether it is described in section 501(c)(3)) and such grant is 
earmarked for use by an individual for purposes described in section 
4945(d)(3), such grant is not subject to the requirements of section 
4945(d)(3) and (g) and this section (regardless of the application of 
subdivision (i) of this subparagraph) if the section 170(c)(1) 
organization satisfies the Commissioner in advance that its grant-making 
program:
    (a) Is in furtherance of a purpose described in section 
170(c)(2)(B),
    (b) Requires that the individual grantee submit reports to it which 
would satisfy paragraph (c)(3) of this section, and
    (c) Requires that the organization investigate jeopardized grants in 
a manner substantially similar to that described in paragraph (c)(4) of 
this section.
    (iv) Examples. The provisions of this subparagraph may be 
illustrated by the following examples:

    Example 1. M, a university described in section 170(b)(1)(A)(ii), 
requests that P, a private foundation, grant it $100,000 to enable M to 
obtain the services of a particular scientist for a research project in 
a special field of biochemistry in which he has exceptional 
qualifications and competence. P, after determining that the project 
deserves support, makes the grant to M to enable it to obtain the 
services of this scientist. M is authorized to keep the funds even if it 
is unsuccessful in attempting to employ the scientist. Under these 
circumstances P will not be treated as having made a grant to the 
individual scientist for purposes of section 4945(d)(3) and (g), since 
the requirements of subdivision (i) of this subparagraph have been 
satisfied. Even if M were not authorized to keep the funds if it is 
unsuccessful in attempting to employ the scientist, P would not be 
treated as having made a grant to the individual scientist for purposes 
of section 4945(d)(3) and (g), since it is clear from the facts and 
circumstances that the selection of the particular scientist was made by 
M and thus the requirements of subdivision (ii) of this subparagraph 
would have been satisfied.
    Example 2. Assume the same facts as Example (1), except that there 
are a number of scientists who are qualified to administer the research 
project, P suggests the name of the particular scientist to be employed 
by M, and M is not authorized to keep the funds if it is unsuccessful in 
attempting to employ the particular scientist. For purposes of section 
4945(d)(3) and (g), P will be treated as having made a grant to the 
individual scientist whose name it suggested, since it is clear from the 
facts and circumstances that selection of the particular scientist was 
made by P.
    Example 3. X, a private foundation, is aware of the exceptional 
research facilities at Y University, an organization described in 
section 170(b)(1)(A)(ii). Officials of X approach officials of Y with an 
offer to give Y a grant of $100,000 if Y will engage an adequately 
qualified physicist to conduct a specific research project. Y's 
officials accept this proposal, and it is agreed that Y will administer 
the funds. After examining the qualifications of several research 
physicists, the officials of Y agree that A, whose name was first 
suggested by officials of X and who first suggested the specific 
research project to X, is uniquely qualified to conduct the project. X's 
grant letter provides that X has the right to renegotiate the terms of 
the grant if there is a substantial deviation from such terms, such as 
breakdown of Y's research facilities or termination of the conduct of 
the project by an adequately qualified physicist. Under these 
circumstances, X will not be treated as having made a grant to A for 
purposes of section 4945(d)(3) and (g), since the requirements of 
subdivision (ii) of this subparagraph have been satisfied.
    Example 4. Professor A, a scholar employed by University Y, an 
organization described in section 170(b)(1)(A)(ii), approaches 
Foundation X to determine the availability of grant funds for a 
particular research project supervised or conducted by Professor A 
relevant to the program interests of Foundation X. After learning that 
Foundation X would be willing to consider the project if University Y 
were to submit the project to X, Professor A submits his proposal to the 
appropriate administrator of University Y. After making a determination 
that it should assume responsibility for the project, that Professor A 
is qualified to conduct the project, and that his participation would be 
consistent with his other faculty duties, University Y formally adopts 
the grant proposal and submits it to Foundation X. The grant is made to 
University Y which, under the terms of the grant, is responsible for the 
expenditure of the grant funds and the grant project. In such a case, 
and even if Foundation X retains the right to renegotiate the terms of 
the grant if the project ceases to be conducted by Professor A, the 
grant shall not be regarded as a grant by Foundation X to Professor A 
since University Y has retained control over the selection process 
within the

[[Page 191]]

meaning of subdivision (ii) of this subparagraph.

    (5) Earmarked grants to individuals. A grant by a private foundation 
to an individual, which meets the requirements of section 4945(d)(3) and 
(g), is a taxable expenditure by such foundation under section 4945(d) 
only if:
    (i) The grant is earmarked to be used for any activity described in 
section 4945(d) (1), (2), or (5), or is earmarked to be used in a manner 
which would violate section 4945(d) (3) or (4),
    (ii) There is an agreement, oral or written, whereby such grantor 
foundation may cause the grantee to engage in any such prohibited 
activity and such grant is in fact used in a manner which violates 
section 4945(d), or
    (iii) The grant is made for a purpose other than a purpose described 
in section 170(c)(2)(B).

For purposes of this subparagraph, a grant by a private foundation is 
earmarked if such grant is given pursuant to an agreement, oral or 
written, that the grant will be used for specific purposes.
    (b) Selection of grantees on ``an objective and nondiscriminatory 
basis''--(1) In general. For purposes of this section, in order for a 
foundation to establish that its grants to individuals are made on an 
objective and nondiscriminatory basis, the grants must be awarded in 
accordance with a program which, if it were a substantial part of the 
foundation's activities, would be consistent with:
    (i) The existence of the foundation's exempt status under section 
501(c)(3);
    (ii) The allowance of deductions to individuals under section 170 
for contributions to the granting foundation; and
    (iii) The requirements of subparagraphs (2), (3), and (4) of this 
paragraph.
    (2) Candidates for grants. Ordinarily, selection of grantees on an 
objective and nondiscriminatory basis requires that the group from which 
grantees are selected be chosen on the basis of criteria reasonably 
related to the purposes of the grant. Furthermore, the group must be 
sufficiently broad so that the giving of grants to members of such group 
would be considered to fulfill a purpose described in section 
170(c)(2)(B). Thus, ordinarily the group must be sufficiently large to 
constitute a charitable class. However, selection from a group is not 
necessary where taking into account the purposes of the grant, one or 
several persons are selected because they are exceptionally qualified to 
carry out these purposes or it is otherwise evident that the selection 
is particularly calculated to effectuate the charitable purpose of the 
grant rather than to benefit particular persons or a particular class of 
persons. Therefore, consistent with the requirements of this 
subparagraph, the foundation may impose reasonable restrictions on the 
group of potential grantees. For example, selection of a qualified 
research scientist to work on a particular project does not violate the 
requirements of section 4945(d)(3) merely because the foundation selects 
him from a group of three scientists who are experts in that field.
    (3) Selection from within group of potential grantees. The criteria 
used in selecting grant recipients from the potential grantees should be 
related to the purpose of the grant. Thus, for example, proper criteria 
for selecting scholarship recipients might include (but are not limited 
to) the following: Prior academic performance; performance on tests 
designed to measure ability and aptitude for college work; 
recommendations from instructors; financial need; and the conclusions 
which the selection committee might draw from a personal interview as to 
the individual's motivation, character, ability, and potential.
    (4) Persons making selections. The person or group of persons who 
select recipients of grants should not be in a position to derive a 
private benefit, directly or indirectly, if certain potential grantees 
are selected over others.
    (5) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. X company employs 100,000 people of whom 1,000 are 
classified by the company as executives. The company has organized the X 
company foundation which, as its sole activity, provides 100 4-year 
college scholarships per year for children of the company's employees. 
Children of all employees (other than disqualified persons with respect 
to the foundation) who have worked

[[Page 192]]

for the X company for at least 2 years are eligible to apply for these 
scholarships. In previous years, the number of children eligible to 
apply for such scholarships has averaged 2,000 per year. Selection of 
scholarship recipients from among the applicants is made by three 
prominent educators, who have no connection (other than as members of 
the selection committee) with the company, the foundation or any of the 
employees of the company. The selections are made on the basis of the 
applicants' prior academic performance, performance on certain tests 
designed to measure ability and aptitude for college work, and financial 
need. No disproportionate number of scholarships has been granted to 
relatives of executives of X company. Under these circumstances, the 
operation of the scholarship program by the X company foundation: (1) Is 
consistent with the existence of the foundation's exempt status under 
section 501(c) (3) and with the allowance of deductions under section 
170 for contributions to the foundation; (2) utilizes objective and 
nondiscriminatory criteria in selecting scholarship recipients from 
among the applicants; and (3) utilizes a selection committee which 
appears likely to make objective and nondiscriminatory selections of 
grant recipients.
    Example 2. Assume the same facts as Example (1), except that the 
foundation establishes a program to provide 20 college scholarships per 
year for members of a certain ethnic minority. All members of this 
minority group (other than disqualified persons with respect to the 
foundation) living in State Z are eligible to apply for these 
scholarships. It is estimated that at least 400 persons will be eligible 
to apply for these scholarships each year. Under these circumstances, 
the operation of this scholarship program by the foundation: (1) Is 
consistent with the existence of the foundation's exempt status under 
section 501(c)(3) and with the allowance of deductions under section 170 
for contributions to the foundation; (2) utilizes objective and 
nondiscriminatory criteria in selecting scholarship recipients from 
among the applicants; and (3) utilizes a selection committee which 
appears likely to make objective and nondiscriminatory selections of 
grant recipients.

    (c) Requirements of a proper procedure--(1) In general. Section 
4945(g) requires that grants to individuals must be made pursuant to a 
procedure approved in advance. To secure such approval, a private 
foundation must demonstrate to the satisfaction of the Commissioner 
that:
    (i) Its grant procedure includes an objective and nondiscriminatory 
selection process (as described in paragraph (b) of this section);
    (ii) Such procedure is reasonably calculated to result in 
performance by grantees of the activities that the grants are intended 
to finance; and
    (iii) The foundation plans to obtain reports to determine whether 
the grantees have performed the activities that the grants are intended 
to finance.

No single procedure or set of procedures is required. Procedures may 
vary depending upon such factors as the size of the foundation, the 
amount and purpose of the grants and whether one or more recipients are 
involved.
    (2) Supervision of scholarship and fellowship grants. Except as 
provided in subparagraph (5) of this paragraph, with respect to any 
scholarship or fellowship grants, a private foundation must make 
arrangements to receive a report of the grantee's courses taken (if any) 
and grades received (if any) in each academic period. Such a report must 
be verified by the educational institution attended by the grantee and 
must be obtained at least once a year. In cases of grantees whose study 
at an educational institution does not involve the taking of courses but 
only the preparation of research papers or projects, such as the writing 
of a doctoral thesis, the foundation must receive a brief report on the 
progress of the paper or project at least once a year. Such a report 
must be approved by the faculty member supervising the grantee or by 
another appropriate university official. Upon completion of a grantee's 
study at an educational institution, a final report must also be 
obtained.
    (3) Grants described in section 4945(g)(3). With respect to a grant 
made under section 4945(g)(3), the private foundation shall require 
reports on the use of the funds and the progress made by the grantee 
toward achieving the purposes for which the grant was made. Such reports 
must be made at least once a year. Upon completion of the undertaking 
for which the grant was made, a final report must be made describing the 
grantee's accomplishments with respect to the grant and accounting for 
the funds received under such grant.
    (4) Investigation of jeopardized grants. (i) Where the reports 
submitted under this paragraph or other information

[[Page 193]]

(including the failure to submit such reports) indicates that all or any 
part of a grant is not being used in furtherance of the purposes of such 
grant, the foundation is under a duty to investigate. While conducting 
its investigation, the foundation must withhold further payments to the 
extent possible until any delinquent reports required by this paragraph 
have been submitted and where required by subdivision (ii) or (iii) of 
this subparagraph.
    (ii) In cases in which the grantor foundation determines that any 
part of a grant has been used for improper purposes and the grantee has 
not previously diverted grant funds to any use not in furtherance of a 
purpose specified in the grant, the foundation will not be treated as 
having made a taxable expenditure solely because of the diversion so 
long as the foundation:
    (a) Is taking all reasonable and appropriate steps either to recover 
the grant funds or to insure the restoration of the diverted funds and 
the dedication (consistent with the requirements of (b) (1) and (2) of 
this subdivision) of other grant funds held by the grantee to the 
purposes being financed by the grant, and
    (b) Withholds any further payments to the grantee after the grantor 
becomes aware that a diversion may have taken place (hereinafter 
referred to as ``further payments'') until it has:
    (1) Received the grantee's assurances that future diversions will 
not occur, and
    (2) Required the grantee to take extraordinary precaution to prevent 
future diversions from occurring.


If a foundation is treated as having made a taxable expenditure under 
this subparagraph in a case to which this subdivision applies, then 
unless the foundation meets the requirements of (a) of this subdivision 
the amount of the taxable expenditure shall be the amount of the 
diversion plus the amount of any further payments to the same grantee. 
However, if the foundation complies with the requirements of (a) of this 
subdivision but not the requirements of (b) of this subdivision, the 
amount of the taxable expenditure shall be the amount of such further 
payments.
    (iii) In cases where a grantee has previously diverted funds 
received from a grantor foundation, and the grantor foundation 
determines that any part of a grant has again been used for improper 
purposes, the foundation will not be treated as having made a taxable 
expenditure solely by reason of such diversion so long as the 
foundation:
    (a) Is taking all reasonable and appropriate steps to recover the 
grant funds or to insure the restoration of the funds and the dedication 
(consistent with the requirements of (b) (2) and (3) of this 
subdivision) of other grant funds held by the grantee to the purposes 
being financed by the grant, and
    (b) Withholds further payments until:
    (1) Such funds are in fact so recovered or restored,
    (2) It has received the grantee's assurances that future diversions 
will not occur, and
    (3) It requires the grantee to take extraordinary precautions to 
prevent future diversions from occurring.


If a foundation is treated as having made a taxable expenditure under 
this subparagraph in a case to which this subdivision applies, then 
unless the foundation meets the requirements of (a) of this subdivision, 
the amount of the taxable expenditure shall be the amount of the 
diversion plus the amount of any further payments to the same grantee. 
However, if the foundation complies with the requirements of (a) of this 
subdivision, but fails to withhold further payments until the 
requirements of (b) of this subdivision are met, the amount of the 
taxable expenditure shall be the amount of such further payments.
    (iv) The phrase ``all reasonable and appropriate steps'' in 
subdivisions (ii) and (iii) of this subparagraph includes legal action 
where appropriate but need not include legal action if such action would 
in all probability not result in the satisfaction of execution on a 
judgment.
    (5) Supervision of certain scholarship and fellowship grants. 
Subparagraphs (2) and (4) of this paragraph shall be considered 
satisfied with respect to scholarship or fellowship grants under the 
following circumstances:

[[Page 194]]

    (i) The scholarship or fellowship grants are described in section 
4945(g) (1);
    (ii) The grantor foundation pays the scholarship or fellowship 
grants to an educational institution described in section 151(e) (4); 
and
    (iii) Such educational institution agrees to use the grant funds to 
defray the recipient's expenses or to pay the funds (or a portion 
thereof) to the recipient only if the recipient is enrolled at such 
educational institution and his standing at such educational institution 
is consistent with the purposes and conditions of the grant.
    (6) Retention of records. A private foundation shall retain records 
pertaining to all grants to individuals for purposes described in 
section 4945(d) (3). Such records shall include:
    (i) All information the foundation secures to evaluate the 
qualification of potential grantees;
    (ii) Identification of grantees (including any relationship of any 
grantee to the foundation sufficient to make such grantee a disqualified 
person of the private foundation within the meaning of section 4946(a) 
(1));
    (iii) Specification of the amount and purpose of each grant; and
    (iv) The follow-up information which the foundation obtains in 
complying with subparagraphs (2), (3), and (4) of this paragraph.
    (7) Example. The provisions of paragraphs (b) and (c) of this 
section may be illustrated by the following example:

    Example. The X foundation grants 10 scholarships each year to 
graduates of high schools in its area to permit the recipients to attend 
college. It makes the availability of its scholarships known by oral or 
written communications each year to the principals of three major high 
schools in the area. The foundation obtains information from each high 
school on the academic qualifications, background, and financial need of 
applicants. It requires that each applicant be recommended by two of his 
teachers or by the principal of his high school. All application forms 
are reviewed by the foundation officer responsible for making the awards 
and scholarships are granted on the basis of the academic qualifications 
and financial need of the grantees. The foundation obtains annual 
reports on the academic performance of the scholarship recipient from 
the college or university which he attends. It maintains a file on each 
scholarship awarded, including the original application, 
recommendations, a record of the action taken on the application, and 
the reports on the recipient from the institution which he attends. The 
described procedures of the X foundation for the making of grants to 
individuals qualify for Internal Revenue Service approval under section 
4945(g). Furthermore, if the X foundation's scholarship program meets 
the requirements of subparagraph (5) of this paragraph, X foundation 
will not have to obtain reports on the academic performance of the 
scholarship recipients.

    (d) Submission of grant procedure--(1) Contents of request for 
approval of grant procedures. A request for advance approval of a 
foundation's grant procedures must fully describe the foundation's 
procedures for awarding grants and for ascertaining that such grants are 
used for the proper purposes. The approval procedure does not 
contemplate specific approval of particular grant programs but instead 
one-time approval of a system of standards, procedures, and follow-up 
designed to result in grants which meet the requirements of section 
4945(g). Thus, such approval shall apply to a subsequent grant program 
as long as the procedures under which it is conducted do not differ 
materially from those described in the request to the Commissioner. The 
request must contain the following items:
    (i) A statement describing the selection process. Such statement 
shall be sufficiently detailed for the Commissioner to determine whether 
the grants are made on an objective and nondiscriminatory basis under 
paragraph (b) of this section.
    (ii) A description of the terms and conditions under which the 
foundation ordinarily makes such grants, which is sufficient to enable 
the Commissioner to determine whether the grants awarded under such 
procedures would meet the requirements of paragraph (1), (2), or (3) of 
section 4945(g).
    (iii) A detailed description of the private foundation's procedure 
for exercising supervision over grants, as described in paragraph (c) 
(2) and (3) of this section.
    (iv) A description of the foundation's procedures for review of 
grantee reports, for investigation where diversion

[[Page 195]]

of grant funds from their proper purposes is indicated, and for recovery 
of diverted grant funds, as described in paragraph (c) (4) of this 
section.
    (2) Place of submission. Request for approval of grant procedures 
shall be submitted to the District Director.
    (3) Internal Revenue Service action on request for approval of grant 
procedures. The 45th day after a request for approval of grant 
procedures has been properly submitted to the Internal Revenue Service, 
the organization has not been notified that such procedures are not 
acceptable, such procedures shall be considered as approved from the 
date of submission until receipt of actual notice from the Internal 
Revenue Service that such procedures do not meet the requirements of 
this section. If a grant to an individual for a purpose described in 
section 4945(d) (3) is made after notification to the organization by 
the Internal Revenue Service that the procedures under which the grant 
is made are not acceptable, such grant is a taxable expenditure under 
this section.
    (e) Effective dates--(1) In general. This section shall apply to all 
grants to individuals for travel, study, or other similar purposes which 
are made by private foundations more than 90 days after October 30, 
1972.
    (2) Transitional rules--(i) Grants committed prior to January 1, 
1970. Section 4945(d) (3) and (g) and this section shall not apply to a 
grant for section 170(c) (2) (B) purposes made on or after January 1, 
1970, if the grant was made pursuant to a commitment entered into prior 
to such date, but only if such commitment was made in accordance with 
the foundation's usual practices and is reasonable in amount in light of 
the purposes of the grant. For purposes of this subdivision, a 
commitment will be considered entered into prior to January 1, 1970, if 
prior to such date, the amount and nature of the payments to be made and 
the name of the payee were entered on the records of the payor, or were 
otherwise adequately evidenced, or the notice of the payment to be 
received was communicated to the payee in writing.
    (ii) Grants awarded on or after January 1, 1970. In the case of a 
grant awarded on or after January 1, 1970, but prior to the expiration 
of 90 days after October 30, 1972, and paid within 48 months after the 
award of such grant, the requirements of section 4945(g) that an 
individual grant be awarded on an objective and nondiscriminatory basis 
pursuant to a procedure approved in advance by the Commissioner will be 
deemed satisfied if the grantor utilizes any procedure in good faith in 
awarding a grant to an individual which, in fact, is reasonably 
calculated to provide objectivity and nondiscrimination in the awarding 
of such grant and to result in a grant which complies with the 
conditions of section 4945(g) (1), (2), or (3).



Sec.  53.4945-5  Grants to organizations.

    (a) Grants to nonpublic organizations--(1) In general. Under section 
4945(d)(4) the term ``taxable expenditure'' includes any amount paid or 
incurred by a private foundation as a grant to an organization (other 
than an organization described in section 509(a)(1), (a)(2), or (a)(3) 
(other than an organization described in section 4942(g)(4)(A)(i) or 
(ii)) or in section 4940(d)(2)), unless the private foundation exercises 
expenditure responsibility with respect to such grant in accordance with 
section 4945(h). However, the granting foundation does not have to 
exercise expenditure responsibility with respect to amounts granted to 
organizations described in section 4945(f).
    (2) ``Grants'' described. For a description of the term ``grants'', 
see Sec.  53.4945-4(a)(2).
    (3) Section 509(a) (1), (2), and (3) organizations. See section 
508(b) and the regulations thereunder for rules relating to when a 
grantor may rely on a potential grantee's characterization of its status 
as set forth in the notice described in section 508(b).
    (4) Certain ``public'' organizations. For purposes of this section, 
an organization will be treated as a section 509(a)(1) organization if:
    (i) It qualifies as such under paragraph (a) of Sec.  1.509(a)-2 of 
this chapter;
    (ii) It is an organization described in section 170(c)(1) or 
511(a)(2)(B), even if it is not described in section 501(c)(3); or
    (iii) It is a foreign government, or any agency or instrumentality 
thereof,

[[Page 196]]

or an international organization designated as such by Executive order 
under 22 U.S.C. 288, even if it is not described in section 501(c)(3).

However, any grant to an organization referred to in this subparagraph 
must be made exclusively for charitable purposes as described in section 
170(c)(2)(B).
    (5) Certain foreign organizations--(i) In general. If a private 
foundation makes a grant to a foreign organization, which does not have 
a ruling or determination letter that it is an organization described in 
section 509(a)(1), (a)(2), or (a)(3) or in section 4940(d)(2), the grant 
will nonetheless be treated as a grant made to an organization described 
in section 509(a)(1), (a)(2), or (a)(3) (other than an organization 
described in section 4942(g)(4)(A)(i) or (ii)) or in section 4940(d)(2) 
if the grantor private foundation has made a good faith determination 
that the grantee organization is an organization described in section 
509(a)(1), (a)(2), or (a)(3) (other than an organization described in 
section 4942(g)(4)(A)(i) or (ii)) or in section 4940(d)(2). A 
determination ordinarily will be considered a good faith determination 
if the determination is based on current written advice received from a 
qualified tax practitioner concluding that the grantee is an 
organization described in section 509(a)(1), (a)(2), or (a)(3) (other 
than an organization described in section 4942(g)(4)(A)(i) or (ii)) or 
in section 4940(d)(2), and if the foundation reasonably relied in good 
faith on the written advice in accordance with the requirements of Sec.  
1.6664-4(c)(1) of this chapter. The written advice must set forth 
sufficient facts concerning the operations and support of the grantee 
organization for the Internal Revenue Service to determine that the 
grantee organization would be likely to qualify as an organization 
described in section 509(a)(1), (a)(2), or (a)(3) (other than an 
organization described in section 4942(g)(4)(A)(i) or (ii)) or in 
section 4940(d)(2) as of the date of the written advice. For purposes of 
these rules, except as provided in the next sentence, written advice 
will be considered current if, as of the date of the grant payment, the 
relevant law on which the advice is based has not changed since the date 
of the written advice and the factual information on which the advice is 
based is from the grantee's current or prior taxable year (or annual 
accounting period if the grantee does not have a taxable year for United 
States federal tax purposes). Written advice that a grantee met the 
public support test under section 170(b)(1)(A)(vi) or section 509(a)(2) 
for a test period of five years will be treated as current for purposes 
of grant payments to the grantee during the two taxable years (or, as 
applicable, annual accounting periods) of the grantee immediately 
following the end of the five-year test period. See paragraphs (b)(5) 
and (6) of this section for additional rules relating to foreign 
organizations.
    (ii) Definitions. For purposes of this paragraph (a)(5)--
    (a) The term ``foreign organization'' means any organization that is 
not described in section 170(c)(2)(A).
    (b) The term ``qualified tax practitioner'' means an attorney, a 
certified public accountant, or an enrolled agent, within the meaning of 
31 CFR 10.2 and 10.3, who is subject to the requirements in 31 CFR part 
10.
    (6) Certain earmarked grants--(i) In general. A grant by a private 
foundation to a grantee organization which the grantee organization uses 
to make payments to another organization (the secondary grantee) shall 
not be regarded as a grant by the private foundation to the secondary 
grantee if the foundation does not earmark the use of the grant for any 
named secondary grantee and there does not exist an agreement, oral or 
written, whereby such grantor foundation may cause the selection of the 
secondary grantee by the organization to which it has given the grant. 
For purposes of this subdivision, a grant described herein shall not be 
regarded as a grant by the foundation to the secondary grantee even 
though such foundation has reason to believe that certain organizations 
would derive benefits from such grant so long as the original grantee 
organization exercises control, in fact, over the selection process and 
actually makes the selection completely independently of the private 
foundation.
    (ii) To governmental agencies. If a private foundation makes a grant 
to an

[[Page 197]]

organization described in section 170(c)(1) and such grant is earmarked 
for use by another organization, the granting foundation need not 
exercise expenditure responsibility with respect to such grant if the 
section 170(c)(1) organization satisfies the Commissioner in advance 
that:
    (a) Its grantmaking program is in furtherance of a purpose described 
in section 170(c)(2)(B), and
    (b) The section 170(c)(1) organization exercises ``expenditure 
responsibility'' in a manner that would satisfy this section if it 
applied to such section 170(c)(1) organization. However, with respect to 
such grant, the granting foundation must make the reports required by 
section 4945(h)(3) and paragraph (d) of this section, unless such grant 
is earmarked for use by an organization described in section 509(a)(1), 
(a)(2), or (a)(3) (other than an organization described in section 
4942(g)(4)(A)(i) or (ii)), or in section 4940(d)(2).
    (b) Expenditure responsibility--(1) In general. A private foundation 
is not an insurer of the activity of the organization to which it makes 
a grant. Thus, satisfaction of the requirements of sections 4945(d)(4) 
and (h) and of subparagraph (3) or (4) of this paragraph, will 
ordinarily mean that the grantor foundation will not have violated 
section 4945(d) (1) or (2). A private foundation will be considered to 
be exercising ``expenditure responsibility'' under section 4945(h) as 
long as it exerts all reasonable efforts and establishes adequate 
procedures:
    (i) To see that the grant is spent solely for the purpose for which 
made,
    (ii) To obtain full and complete reports from the grantee on how the 
funds are spent, and
    (iii) To make full and detailed reports with respect to such 
expenditures to the Commissioner.

In cases in which pursuant to paragraph (a)(6) of this section a grant 
is considered made to a secondary grantee rather than the primary 
grantee, the grantor foundation's obligation to obtain reports from the 
grantee pursuant to section 4945(h)(2) and this section will be 
satisfied if appropriate reports are obtained from the secondary 
grantee. For rules relating to expenditure responsibility with respect 
to transfers of assets described in section 507(b)(2), see section 
507(b)(2) and the regulations thereunder.
    (2) Pre-grant inquiry--(i) Before making a grant to an organization 
with respect to which expenditure responsibility must be exercised under 
this section, a private foundation should conduct a limited inquiry 
concerning the potential grantee. Such inquiry should be complete enough 
to give a reasonable man assurance that the grantee will use the grant 
for the proper purposes. The inquiry should concern itself with matters 
such as: (a) The identity, prior history and experience (if any) of the 
grantee organization and its managers; and (b) any knowledge which the 
private foundation has (based on prior experience or otherwise) of, or 
other information which is readily available concerning, the management, 
activities, and practices of the grantee organization. The scope of the 
inquiry might be expected to vary from case to case depending upon the 
size and purpose of the grant, the period over which it is to be paid, 
and the prior experience which the grantor has had with respect to the 
capacity of the grantee to use the grant for the proper purposes. For 
example, if the grantee has made proper use of all prior grants to it by 
the grantor and filed the required reports substantiating such use, no 
further pregrant inquiry will ordinarily be necessary. Similarly, in the 
case of an organization, such as a trust described in section 
4947(a)(2), which is required by the terms of its governing instrument 
to make payments to a specified organization exempt from taxation under 
section 501(a), a less extensive pregrant inquiry is required than in 
the case of a private foundation possessing discretion with respect to 
the distribution of funds.
    (ii) The provisions of this subparagraph may be illustrated by the 
following examples:

    Example 1. Officials of M, a newly established organization which is 
described in section 501(c)(4), request a grant from X foundation to be 
used for a proposed program to combat drug abuse by establishing 
neighborhood clinics in certain ghetto areas of a city. Before making a 
grant to M, X makes an inquiry concerning the identity, prior history 
and experience of the officials of M. X obtains information pertaining 
to the officials

[[Page 198]]

of M from references supplied by these officials. Since one of the 
references indicated that A, an official of M, has an arrest record, 
police records are also checked and A's probation officer is 
interviewed.
    The inquiry also shows M has no previous history of administering 
grants and that the officials of M have had no experience in 
administering programs of this nature. However, in the opinion of X's 
managers, M's officials (including A who appears to be fully 
rehabilitated after having been convicted of a narcotics violation 
several years ago) are well qualified to conduct this program since they 
are members of the communities in which the clinics are to be 
established and are more likely to be trusted by drug users in these 
communities than are outsiders. Under these circumstances X has complied 
with the requirements of this subparagraph and a grant to M for its 
proposed program will not be treated as a taxable expenditure solely 
because of the operation of this subparagraph.
    Example 2. Foundation Y wishes to make a grant to foundation R for 
use in R's scholarship program. Y has made similar grants to R annually 
for the last several years and knows that R's managers have observed the 
terms of the previous grants and have made all requested reports with 
respect to such grants. No changes in R's management have occurred 
during the past several years. Under these circumstances, Y has enough 
information to have such assurance as a reasonable man would require 
that the grant to R will be used for proper purposes. Consequently, Y is 
under no obligation to make any further pregrant inquiry pursuant to 
this subparagraph.
    Example 3. S foundation requests a grant from Z foundation for use 
in S's program of providing medical research fellowships. S has been 
engaged in this program for several years and has received large numbers 
of grants from other foundations. Z's managers know that the reputations 
of S and of S's officials are good. Z's managers also have been advised 
by managers of W foundation that W had recently made a grant to S and 
that W's managers were satisfied that such grant has been used for the 
purposes for which it was made. Under these circumstances Z has enough 
information to have such assurance as a reasonable man would require 
that the grant to S will be used for proper purposes. Consequently, Z is 
under no obligation to make any further pregrant inquiry pursuant to 
this subparagraph.

    (3) Terms of grants. Except as provided in subparagraph (4) of this 
paragraph, in order to meet the expenditure responsibility requirements 
of section 4945(h), a private foundation must require that each grant to 
an organization, with respect to which expenditure responsibility must 
be exercised under this section, be made subject to a written commitment 
signed by an appropriate officer, director, or trustee of the grantee 
organization. Such commitment must include an agreement by the grantee:
    (i) To repay any portion of the amount granted which is not used for 
the purposes of the grant,
    (ii) To submit full and complete annual reports on the manner in 
which the funds are spent and the progress made in accomplishing the 
purposes of the grant, except as provided in paragraph (c)(2) of this 
section,
    (iii) To maintain records of receipts and expenditures and to make 
its books and records available to the grantor at reasonable times, and
    (iv) Not to use any of the funds:
    (a) To carry on propaganda, or otherwise to attempt, to influence 
legislation (within the meaning of section 4945(d)(1)),
    (b) To influence the outcome of any specific public election, or to 
carry on, directly or indirectly, any voter registration drive (within 
the meaning of section 4945(d)(2)),
    (c) To make any grant which does not comply with the requirements of 
section 4945(d) (3) or (4), or
    (d) To undertake any activity for any purpose other than one 
specified in section 170(c)(2)(B).


The agreement must also clearly specify the purposes of the grant. Such 
purposes may include contributing for capital endowment, for the 
purchase of capital equipment, or for general support provided that 
neither the grants nor the income therefrom may be used for purposes 
other than those described in section 170(c)(2)(B).
    (4) Terms of program-related investments. In order to meet the 
expenditure responsibility requirements of section 4945(h), with regard 
to the making of a program-related investment (as defined in section 
4944 and the regulations thereunder), a private foundation must require 
that each such investment with respect to which expenditure 
responsibility must be exercised under section 4945(d)(4) and (h) and 
this section be made subject to a written commitment

[[Page 199]]

signed by an appropriate officer, director, or trustee of the recipient 
organization. Such commitment must specify the purpose of the investment 
and must include an agreement by the organization:
    (i) To use all the funds received from the private foundation (as 
determined under paragraph (c)(3) of this section) only for the purposes 
of the investment and to repay any portion not used for such purposes, 
provided that, with respect to equity investments, such repayment shall 
be made only to the extent permitted by applicable law concerning 
distributions to holders of equity interests,
    (ii) At least once a year during the existence of the program-
related investment, to submit full and complete financial reports of the 
type ordinarily required by commercial investors under similar 
circumstances and a statement that it has complied with the terms of the 
investment,
    (iii) To maintain books and records adequate to provide information 
ordinarily required by commercial investors under similar circumstances 
and to make such books and records available to the private foundation 
at reasonable times, and
    (iv) Not to use any of the funds:
    (a) To carry on propaganda, or otherwise to attempt, to influence 
legislation (within the meaning of section 4945(d)(1)),
    (b) To influence the outcome of any specific public election, or to 
carry on directly or indirectly, and voter registration drive (within 
the meaning of section 4945(d)(2)), or
    (c) With respect to any recipient which is a private foundation (as 
defined in section 509(a)), to make any grant which does not comply with 
the requirements of section 4945 (d) (3) or (4).
    (5) Certain grants to foreign organizations. With respect to a grant 
to a foreign organization (other than an organization described in 
section 509(a)(1), (a)(2), or (a)(3) (other than an organization 
described in section 4942(g)(4)(A)(i) or (ii)) or in section 4940(d)(2) 
or treated as so described pursuant to paragraph (a)(4) or (5) of this 
section), paragraph (b)(3)(iv) or (b)(4)(iv) of this section shall be 
deemed satisfied if the agreement referred to in paragraph (b)(3) or (4) 
of this section imposes restrictions on the use of the grant 
substantially equivalent to the limitations imposed on a domestic 
private foundation under section 4945(d). Such restrictions may be 
phrased in appropriate terms under foreign law or custom and ordinarily 
will be considered sufficient if an affidavit or opinion of counsel (of 
the grantor or grantee) or written advice of a qualified tax 
practitioner is obtained stating that, under foreign law or custom, the 
agreement imposes restrictions on the use of the grant substantially 
equivalent to the restrictions imposed on a domestic private foundation 
under paragraph (b)(3) or (4) of this section.
    (6) Special rules for grants by foreign private foundations. With 
respect to activities in jurisdictions other than those described in 
section 170(c)(2)(A), the failure of a foreign private foundation which 
is described in section 4948(b) to comply with subparagraph (3) or (4) 
of this paragraph with respect to a grant to an organization shall not 
constitute an act or failure to act which is a prohibited transaction 
(within the meaning of section 4948(c)(2)).
    (7) Expenditure responsibility with respect to certain transfers of 
assets described in section 507--(i) Transfers of assets described in 
section 507(b)(2). For rules relating to the extent to which the 
expenditure responsibility rules contained in section 4945 (d)(4) and 
(h) and this section apply to transfers of assets described in section 
507(b)(2), see Sec. Sec.  1.507-3(a)(7), 1.507-3 (a)(8)(ii)(f), and 
1.507-3(a)(9) of this chapter.
    (ii) Certain other transfers of assets. For rules relating to the 
extent to which the expenditure responsibility rules contained in 
section 4945 (d)(4) and (h) and this section apply to certain other 
transfers of assets described in Sec.  1.507-3(b) of this chapter, see 
Sec.  1.507-3(b) of this chapter.
    (8) Restrictions on grants (other than program-related investments) 
to organizations not described in section 501(c)(3). For other 
restrictions on certain grants (other than program-related investments) 
to organizations which are not described in section 501(c)(3), see Sec.  
53.4945-6(c).

[[Page 200]]

    (c) Reports from grantees--(1) In general. In the case of grants 
described in section 4945(d)(4), except as provided in subparagraph (2) 
of this paragraph, the granting private foundation shall require reports 
on the use of the funds, compliance with the terms of the grant, and the 
progress made by the grantee toward achieving the purposes for which the 
grant was made. The grantee shall make such reports as of the end of its 
annual accounting period within which the grant or any portion thereof 
is received and all such subsequent periods until the grant funds are 
expended in full or the period of the grantee for which such reports 
shall be furnished to the grantor within a reasonable period of time 
after the close of the annual accounting period of the grantee for which 
such reports are made. Within a reasonable period of time after the 
close of its annual accounting period during which the use of the grant 
funds is completed, the grantee must make a final report with respect to 
all expenditures made from such funds (including salaries, travel, and 
supplies), and indicating the progress made toward the goals of the 
grant. The grantor need not conduct any independent verification of such 
reports unless it has reason to doubt their accuracy or reliability.
    (2) Capital endowment grants to exempt private foundations. If a 
private foundation makes a grant described in section 4945(d)(4) to a 
private foundation which is exempt from taxation under section 501(a) 
for endowment, for the purchase of capital equipment, or for other 
capital purposes, the grantor foundation shall require reports from the 
grantee on the use of the principal and the income (if any) from the 
grant funds. The grantee shall make such reports annually for its 
taxable year in which the grant was made and the immediately succeeding 
2 taxable years. Only if it is reasonably apparent to the grantor that, 
before the end of such second succeeding taxable year, neither the 
principal, the income from the grant funds, nor the equipment purchased 
with the grant funds has been used for any purpose which would result in 
liability for tax under section 4945(d), the grantor may then allow such 
reports to be discontinued.
    (3) Grantees' accounting and recordkeeping procedures. (i) A private 
foundation grantee exempt from taxation under section 501(a) (or the 
recipient of a program-related investment) need not segregate grant 
funds physically nor separately account for such funds on its books 
unless the grantor requires such treatment of the grant funds. If such a 
grantee neither physically segregates grant funds nor establishes 
separate accounts on its books, grants received within a given taxable 
year beginning after December 31, 1969, shall be deemed, for purposes of 
section 4945, to be expended before grants received in a succeeding 
taxable year. In such case expenditures of grants received within any 
such taxable year shall be prorated among all such grants.

In accounting for grant expenditures, private foundations may make the 
necessary computations on a cumulative annual basis (or, where 
appropriate, as of the date for which the computations are made). The 
rules set forth in the preceding three sentences shall apply to the 
extent they are consistent with the available records of the grantee and 
with the grantee's treatment of qualifying distributions under section 
4942(h) and the regulations thereunder. The records of expenditures, as 
well as copies of the reports submitted to the grantor, must be kept for 
at least 4 years after completion of the use of the grant funds.
    (ii) For rules relating to accounting and recordkeeping requirements 
for grantees other than those described in subdivision (i) of this 
subparagraph, see Sec. Sec.  53.4945-5(b)(8) and 53.4945-6(c).
    (4) Reliance on information supplied by grantee. A private 
foundation exercising expenditure responsibility with respect to its 
grants may rely on adequate records or other sufficient evidence 
supplied by the grantee organization (such as a statement by an 
appropriate officer, director or trustee of such grantee organization) 
showing, to the extent applicable, the information which the grantor 
must report to the Internal Revenue Service in accordance with paragraph 
(d)(2) of this section.
    (d) Reporting to Internal Revenue Service by grantor--(1) In 
general. To satisfy

[[Page 201]]

the reportmaking requirements of section 4945(h)(3), a granting 
foundation must provide the required information on its annual 
information return, required to be filed by section 6033, for each 
taxable year with respect to each grant made during the taxable year 
which is subject to the expenditure responsibility requirements of 
section 4945(h). Such information must also be provided on such return 
with respect to each grant subject to such requirements upon which any 
amount or any report is outstanding at any time during the taxable year. 
However, with respect to any grant made for endowment or other capital 
purposes, the grantor must provide the required information only for any 
taxable year for which the grantor must require a report from the 
grantee under paragraph (c)(2) of this section. The requirements of this 
subparagraph with respect to any grant may be satisfied by submission 
with the foundation's information return of a report received from the 
grantee, if the information required by subparagraph (2) of this 
paragraph is contained in such report.
    (2) Contents of report. The report required by this paragraph shall 
include the following information:
    (i) The name and address of the grantee.
    (ii) The date and amount of the grant.
    (iii) The purpose of the grant.
    (iv) The amounts expended by the grantee (based upon the most recent 
report received from the grantee).
    (v) Whether the grantee has diverted any portion of the funds (or 
the income therefrom in the case of an endowment grant) from the purpose 
of the grant (to the knowledge of the grantor).
    (vi) The dates of any reports received from the grantee.
    (vii) The date and results of any verification of the grantee's 
reports undertaken pursuant to and to the extent required under 
paragraph (c)(1) of this section by the grantor or by others at the 
direction of the grantor.
    (3) Recordkeeping requirements. In addition to the information 
included on the information return, a granting foundation shall make 
available to the Internal Revenue Service at the foundation's principal 
office each of the following items:
    (i) A copy of the agreement covering each ``expenditure 
responsibility'' grant made during the taxable year.
    (ii) A copy of each report received during the taxable year from 
each grantee on any ``expenditure responsibility'' grant, and
    (iii) A copy of each report made by the grantor's personnel or 
independent auditors of any audits or other investigations made during 
the taxable year with respect to any ``expenditure responsibility'' 
grant.
    (4) Reports received after the close of grantor's accounting year. 
Data contained in reports required by this paragraph, which reports are 
received by a private foundation after the close of its accounting year 
but before the due date of its information return for that year, need 
not be reported on such return, but may be reported on the grantor's 
information return for the year in which such reports are received from 
the grantee.
    (e) Violations of expenditure responsibility requirements--(1) 
Diversions by grantee. (i) Any diversion of grant funds (including the 
income therefrom in the case of an endowment grant) by the grantee to 
any use not in furtherance of a purpose specified in the grant may 
result in the diverted portion of such grant being treated as a taxable 
expenditure of the grantor under section 4945(d)(4). However, for 
purposes of this section, the fact that a grantee does not use any 
portion of the grant funds as indicated in the original budget 
projection shall not be treated as a diversion if the use to which the 
funds are committed is consistent with the purpose of the grant as 
stated in the grant agreement and does not result in a violation of the 
terms of such agreement required to be included by paragraph (b)(3) or 
(b)(4) of this section.
    (ii) In any event, a grantor will not be treated as having made a 
taxable expenditure under section 4945(d)(4) solely by reason of a 
diversion by the grantee, if the grantor has complied with subdivision 
(iii) (a) and (b) or (iv) (a) and (b) of this subparagraph, whichever is 
applicable.
    (iii) In cases in which the grantor foundation determines that any 
part of

[[Page 202]]

a grant has been used for improper purposes and the grantee has not 
previously diverted grant funds, the foundation will not be treated as 
having made a taxable expenditure solely by reason of the diversion so 
long as the foundation:
    (a) Is taking all reasonable and appropriate steps either to recover 
the grant funds or to insure the restoration of the diverted funds and 
the dedication (consistent with the requirements of (b) (1) and (2) of 
this subdivision) of the other grant funds held by the grantee to the 
purposes being financed by the grant, and
    (b) Withholds any further payments to the grantee after the grantor 
becomes aware that a diversion may have taken place (hereinafter 
referred to as ``further payments'') until it has:
    (1) Received the grantee's assurances that future diversions will 
not occur, and
    (2) Required the grantee to take extraordinary precautions to 
prevent future diversions from occurring.


If a foundation is treated as having made a taxable expenditure under 
this subparagraph in a case to which this subdivision applies, then 
unless the foundation meets the requirements of (a) of this subdivision 
the amount of the taxable expenditure shall be the amount of the 
diversion (for example, the income diverted in the case of an endowment 
grant, or the rental value of capital equipment for the period of time 
for which diverted) plus the amount of any further payments to the same 
grantee. However, if the foundation complies with the requirements of 
(a) of this subdivision but not the requirements of (b) of this 
subdivision, the amount of the taxable expenditure shall be the amount 
of such further payments.
    (iv) In cases where a grantee has previously diverted funds received 
from a grantor foundation, and the grantor foundation determines that 
any part of a grant has again been used for improper purposes, the 
foundation will not be treated as having made a taxable expenditure 
solely by reason of such diversion so long as the foundation:
    (a) Is taking all reasonable and appropriate steps to recover the 
grant funds or to insure the restoration of the diverted funds and the 
dedication (consistent with the requirements of (b) (2) and (3) of this 
subdivision) of other grant funds held by the grantee to the purposes 
being financed by the grant, except that if, in fact, some or all of the 
diverted funds are not so restored or recovered, then the foundation 
must take all reasonable and appropriate steps to recover all of the 
grant funds, and
    (b) Withholds further payments until:
    (1) Such funds are in fact so recovered or restored,
    (2) It has received the grantee's assurances that future diversions 
will not occur, and
    (3) It requires the grantee to take extraordinary precautions to 
prevent future diversions from occurring.


If a foundation is treated as having made a taxable expenditure under 
this subparagraph in a case to which this subdivision applies, then 
unless the foundation meets the requirements of (a) of this subdivision, 
the amount of the taxable expenditure shall be the amount of the 
diversion plus the amount of any further payments to the same grantee. 
However, if the foundation complies with the requirements of (a) of this 
subdivision, but fails to withhold further payments until the 
requirements of (b) of this subdivision are met, the amount of the 
taxable expenditure shall be the amount of such further payments.
    (v) The phrase ``all reasonable and appropriate steps'' (as used in 
subdivisions (iii) and (iv) of this subparagraph) includes legal action 
where appropriate but need not include legal action if such action would 
in all probability not result in the satisfaction of execution on a 
judgment.
    (2) Grantee's failure to make reports. A failure by the grantee to 
make the reports required by paragraph (c) of this section (or the 
making of inadequate reports) shall result in the grant's being treated 
as a taxable expenditure by the grantor unless the grantor:
    (i) Has made the grant in accordance with paragraph (b) of this 
section,
    (ii) Has complied with the reporting requirements contained in 
paragraph (d) of this section,

[[Page 203]]

    (iii) Makes a reasonable effort to obtain the required report, and
    (iv) Withholds all future payments on this grant and on any other 
grant to the same grantee until such report is furnished.
    (3) Violations by the grantor. In addition to the situations 
described in subparagraphs (1) and (2) of this paragraph, a grant which 
is subject to the expenditure responsibility requirements of section 
4945(h) will be considered a taxable expenditure of the granting 
foundation if the grantor:
    (i) Fails to make a pregrant inquiry as described in paragraph 
(b)(2) of this section,
    (ii) Fails to make the grant in accordance with a procedure 
consistent with the requirements of paragraph (b) (3) or (4) of this 
section, or
    (iii) Fails to report to the Internal Revenue Service as provided in 
paragraph (d) of this section.
    (f) Effective dates--(1) In general. This section shall apply to all 
grants which are subject to the expenditure responsibility requirements 
of section 4945(d)(4) and (h) and which are made by private foundations 
more than 90 days after October 30, 1972.
    (2) Transitional rules--(i) Certain grants awarded prior to May 27, 
1969. Section 4945(d)(4) and (h) and this section shall not apply to a 
grant to a private foundation which is not controlled, directly or 
indirectly, by the grantor foundation or one or more disqualified 
persons (as defined in section 4946) with respect to the grantor 
foundation, provided that such grant:
    (a) Is made pursuant to a written commitment which was binding on 
May 26, 1969, and at all times thereafter,
    (b) Is made for one or more of the purposes described in section 
170(c)(2)(B), and
    (c) Is to be paid out to such grantee foundation on or before 
December 31, 1974.
    (ii) Grants or expenditures committed prior to January 1, 1970. 
Except as provided in paragraph (e)(2)(i) of Sec.  53.4945-4, section 
4945 shall not apply to a grant or an expenditure for section 
170(c)(2)(B) purposes made on or after January 1, 1970, if the grant or 
expenditure was made pursuant to a commitment entered into prior to such 
date, but only if (in the case of a grant or an expenditure other than 
an unlimited general-purpose grant to an organization) such commitment 
is reasonable in amount in light of the purposes of the grant. For 
purposes of this subdivision, a commitment will be considered entered 
into prior to January 1, 1970, if prior to such date, the amount and 
nature of the payments to be made and the name of the payee were entered 
on the records of the payor, or were otherwise adequately evidenced, or 
the notice of the payment to be received was communicated to the payee 
in writing.
    (iii) Grants awarded on or after January 1, 1970. Paragraphs (b), 
(c), and (d) of this section shall not apply to grants awarded on or 
after January 1, 1970, but prior to the expiration of 90 days after 
October 30, 1972, if the grantor has made reasonable efforts, and has 
established adequate procedures such as a prudent man would adopt in 
managing his own property, to see that the grant is spent solely for the 
purpose for which made, to obtain full and complete reports from the 
grantee on how the funds are spent, and to make full and detailed 
reports with respect to such grant to the Commissioner. With respect to 
any return filed with the Internal Revenue Service before the expiration 
of 90 days after October 30, 1972, the grantor may treat reports which 
satisfy the requirements of the statement to be attached to Form 4720 
for the year 1970 under ``Specific Instructions--Question B'' (items (1) 
through (5)) as satisfying the grantor reporting requirements with 
respect to ``expenditure responsibility'' grants. In the case of a 
private foundation required to file an annual return for a taxable year 
ending after January 1, 1970, and before December 31, 1970, the 
reporting requirements imposed by section 4945(h)(3) for such period 
shall be regarded as satisfied if such reports are made on the annual 
return for its first taxable year beginning after December 31, 1969.
    (3) Effective/applicability date of paragraphs (a)(1), (a)(5), 
(a)(6)(ii), and (b)(5) and transition relief. Paragraphs (a)(1), (a)(5), 
(a)(6)(ii), and (b)(5) of this section are effective on and apply with 
respect to grants paid after September

[[Page 204]]

25, 2015. However, foundations may continue to rely on paragraph (a)(5) 
as contained in 26 CFR part 53, revised April 1, 2015, with respect to 
grants paid on or before December 24, 2015 pursuant to a good faith 
determination made in accordance with such provisions. Also, foundations 
may continue to rely on paragraph (a)(5) as contained in 26 CFR part 53, 
revised April 1, 2015, with respect to grants paid pursuant to a written 
commitment made on or before September 25, 2015 and pursuant to a good 
faith determination made on or before such date in accordance with such 
provisions if the committed amount is paid out within five years of such 
date.

[T.D. 7215, 37 FR 23161, Oct. 31, 1972; 37 FR 23918, Nov. 10, 1972, as 
amended by T.D. 7233, 37 FR 28162, Dec. 21, 1972; T.D. 7290, 38 FR 
31834, Nov. 19, 1973; T.D. 9740, 80 FR 57716, Sept. 25, 2015]



Sec.  53.4945-6  Expenditures for noncharitable purposes.

    (a) In general. Under section 4945(d)(5) the term ``taxable 
expenditure'' includes any amount paid or incurred by a private 
foundation for any purpose other than one specified in section 
170(c)(2)(B). Thus, ordinarily only an expenditure for an activity 
which, if it were a substantial part of the organization's total 
activities, would cause loss of tax exemption is a taxable expenditure 
under section 4945(d)(5). For purposes of this section and Sec. Sec.  
53.4945-1 through 53.4945-5, the term ``purposes described in section 
170(c)(2)(B)'' shall be treated as including purposes described in 
section 170(c)(2)(B) whether or not carried out by an organization 
described in section 170(c).
    (b) Particular expenditures. (1) The following types of expenditures 
ordinarily will not be treated as taxable expenditures under section 
4945(d)(5):
    (i) Expenditures to acquire investments entered into for the purpose 
of obtaining income or funds to be used in furtherance of purposes 
described in section 170(c)(2)(B),
    (ii) Reasonable expenses with respect to investments described in 
subdivision (i) of this subparagraph,
    (iii) Payment of taxes,
    (iv) Any expenses which qualify as deductions in the computation of 
unrelated business income tax under section 511,
    (v) Any payment which constitutes a qualifying distribution under 
section 4942(g) or an allowable deduction under section 4940,
    (vi) Reasonable expenditures to evaluate, acquire, modify, and 
dispose of program-related investments, or
    (vii) Business expenditures by the recipient of a program-related 
investment.
    (2) Conversely, any expenditures for unreasonable administrative 
expenses, including compensation, consultant fees, and other fees for 
services rendered, will ordinarily be taxable expenditures under section 
4945(d)(5) unless the foundation can demonstrate that such expenses were 
paid or incurred in the good faith belief that they were reasonable and 
that the payment or incurrence of such expenses in such amounts was 
consistent with ordinary business care and prudence. The determination 
whether an expenditure is unreasonable shall depend upon the facts and 
circumstances of the particular case.
    (c) Grants to ``noncharitable'' organizations--(1) In general. Since 
a private foundation cannot make an expenditure for a purpose other than 
a purpose described in section 170(c)(2)(B), a private foundation may 
not make a grant to an organization other than an organization described 
in section 501(c)(3) unless
    (i) The making of the grant itself constitutes a direct charitable 
act or the making of a program-related investment, or
    (ii) Through compliance with the requirements of subparagraph (2) of 
this paragraph, the grantor is reasonably assured that the grant will be 
used exclusively for purposes described in section 170(c)(2)(B).

For purposes of this paragraph, an organization treated as a section 
509(a)(1) organization under Sec.  53.4945-5(a)(4) shall be treated as 
an organization described in section 501(c)(3).
    (2) Grants other than transfers of assets described in Sec.  1.507-
3(c)(1). (i) If a private foundation makes a grant which is not

[[Page 205]]

a transfer of assets pursuant to any liquidation, merger, redemption, 
recapitalization, or other adjustment, organization or reorganization to 
any organization (other than an organization described in section 
501(c)(3) except an organization described in section 509(a)(4)), the 
grantor is reasonably assured (within the meaning of subparagraph 
(1)(ii) of this paragraph) that the grant will be used exclusively for 
purposes described in section 170(c)(2)(B) only if the grantee 
organization agrees to maintain and, during the period in which any 
portion of such grant funds remain unexpended, does continuously 
maintain the grant funds (or other assets transferred) in a separate 
fund dedicated to one or more purposes described in section 
170(c)(2)(B). The grantor of a grant described in this paragraph must 
also comply with the expenditure responsibility provisions contained in 
sections 4945(d) and (h) and Sec.  53.4945-5.
    (ii) For purposes of this paragraph, a foreign organization which 
does not have a ruling or determination letter that it is an 
organization described in section 501(c)(3) (other than section 
509(a)(4)) will be treated as an organization described in section 
501(c)(3) (other than section 509(a)(4)) if in the reasonable judgment 
of a foundation manager of the transferor private foundation, the 
grantee organization is an organization described in section 501(c)(3) 
(other than section 509(a)(4)). The term ``reasonable judgment'' shall 
be given its generally accepted legal sense within the outlines 
developed by judicial decisions in the law of trusts.
    (3) Transfers of assets described in Sec.  1.507-3(c)(1). If a 
private foundation makes a transfer of assets (other than a transfer 
described in subparagraph (1)(i) of this paragraph) pursuant to any 
liquidation, merger, redemption, recapitalization, or other adjustment, 
organization, or reorganization to any person, the transferred assets 
will not be considered used exclusively for purposes described in 
section 170(c)(2)(B) unless the assets are transferred to a fund or 
organization described in section 501(c)(3) (other than an organization 
described in section 509(a)(4)) or treated as so described under section 
4947(a)(1).

[T.D. 7215, 37 FR 23161, Oct. 31, 1972, as amended by T.D. 7233, 37 FR 
28162, Dec. 21, 1972]



                 Subpart G_Definitions and Special Rules



Sec.  53.4946-1  Definitions and special rules.

    (a) Disqualified person. (1) For purposes of Chapter 42 and the 
regulations thereunder, the following are disqualified persons with 
respect to a private foundation:
    (i) All substantial contributors to the foundation, as defined in 
section 507 (d)(2) and the regulations thereunder.
    (ii) All foundation managers of the foundation as defined in section 
4946 (b)(1) and paragraph (f)(1)(i) of this section,
    (iii) An owner of more than 20 percent of:
    (a) The total combined voting power of a corporation,
    (b) The profits interest of a partnership,
    (c) The beneficial interest of a trust or unincorporated enterprise.

which is (during such ownership) a substantial contributor to the 
foundation, as defined in section 507(d)(2) and the regulations 
thereunder,
    (iv) A member of the family, as defined in section 4946(d) and 
paragraph (h) of this section, of any of the individuals described in 
subdivision (i), (ii), or (iii) of this subparagraph,
    (v) A corporation of which more than 35 percent of the total 
combined voting power is owned by persons described in subdivision (i), 
(ii), (iii), or (iv) of this subparagraph,
    (vi) A partnership of which more than 35 percent of the profits 
interest is owned by persons described in subdivision (i), (ii), (iii), 
or (iv) of this subparagraph, and
    (vii) A trust, estate, or unincorporated enterprise of which more 
than 35 percent of the beneficial interest is owned by persons described 
in subdivision (i), (ii), (iii), or (iv) of this subparagraph.
    (2) For purposes of subparagraphs (1)(iii) (b) and (vi) of this 
paragraph, the profits interest of a partner shall

[[Page 206]]

be equal to his distributive share of income of the partnership, as 
determined under section 707(b)(3) and the regulations thereunder as 
modified by section 4946(a)(4).
    (3) For purposes of subparagraph (1) (iii)(c) and (vii) of this 
paragraph, the beneficial interest in an unincorporated enterprise 
(other than a trust or estate) includes any right to receive a portion 
of distributions from profits of such enterprise, and, if the portion of 
distributions is not fixed by an agreement among the participants, any 
right to receive a portion of the assets (if any) upon liquidation of 
the enterprise, except as a creditor or employee. For purposes of this 
subparagraph, a right to receive distributions of profits includes a 
right to receive any amount from such profits other than as a creditor 
or employee, whether as a sum certain or as a portion of profits 
realized by the enterprise. Where there is no agreement fixing the 
rights of the participants in such enterprise, the fraction of the 
respective interests of each participant in such enterprise shall be 
determined by dividing the amount of all investments or contributions to 
the capital of the enterprise made or obligated to be made by such 
participant by the amount of all investments or contributions to capital 
made or obligated to be made by all of them.
    (4) For purposes of subparagraph (1) (iii) (c) and (vii) of this 
paragraph, a person's beneficial interest in a trust shall be determined 
in proportion to the actuarial interest of such person in the trust.
    (5) For purposes of subparagraph (1) (iii) (a) and (v) of this 
paragraph, the term ``combined voting power'' includes voting power 
represented by holdings of voting stock, actual or constructive (under 
section 4946(a)(3)), but does not include voting rights held only as a 
director or trustee.
    (6) For purposes of subparagraph (1) (iii) (a) and (v) of this 
paragraph, the term ``voting power'' includes outstanding voting power 
and does not include voting power obtainable but not obtained, such as, 
for example, voting power obtainable by converting securities or 
nonvoting stock into voting stock or by exercising warrants or options 
to obtain voting stock, and voting power which will vest in preferred 
stockholders only if and when the corporation has failed to pay 
preferred dividends for a specified period of time or has otherwise 
failed to meet specified requirements. Similarly, for purposes of 
subparagraph (1)(iii) (b) and (c), (vi), and (vii) of this paragraph, 
the terms ``profits interest'' and ``beneficial interest'' include any 
such interest that is outstanding, but do not include any such interest 
that is obtainable but has not been obtained.
    (7) For purposes of sections 170(b) (1)(E)(iii), 507(d)(1), 508(d), 
509(a) (1) and (3), and Chapter 42, the term ``disqualified person'' 
shall not include an organization which is described in section 509(a) 
(1), (2), or (3), or any other organization which is wholly owned by 
such section 509(a) (1), (2), or (3) organization.
    (8) For purposes of section 4941 only, the term ``disqualified 
person'' shall not include any organization which is described in 
section 501(c)(3) (other than an organization described in section 
509(a)(4)).
    (b) Section 4943. (1) For purposes of section 4943 only, the term 
``disqualified person'' includes a private foundation:
    (i) Which is effectively controlled (within the meaning of Sec.  
1.482-1(a)(3) of this chapter), directly or indirectly, by the same 
person or persons (other than a bank, trust company, or similar 
organization acting only as a foundation manager) who control the 
private foundation in question, or
    (ii) Substantially all the contributions to which were made, 
directly or indirectly, by persons described in subdivision (i), (ii), 
(iii), or (iv) of paragraph (a)(1) of this section who made, directly or 
indirectly, substantially all of the contributions to the private 
foundation in question.
    (2) For purposes of subparagraph (1)(ii) of this paragraph, one or 
more persons will be considered to have made substantially all of the 
contributions to a private foundation, if such persons have contributed 
or bequeathed at least 85 percent (and each such person has contributed 
or bequeathed at least 2 percent) of the total contributions and 
bequests (within the meaning of section 507(d)(2) and

[[Page 207]]

the regulations thereunder) which have been received by such private 
foundation during its entire existence.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A, a private foundation, has a board of directors made up 
of X, Y, Z, M, N, and O. Foundation B's board of directors is made up of 
Y, M, N, and O. The board of directors in each case has plenary power to 
determine the manner in which the foundation is operated. For purposes 
of section 4943, foundation A is a disqualified person with respect to 
foundation B, and foundation B, is a disqualified person with respect to 
foundation A.
    Example 2. Private foundation A has received contributions of 
$100,000 throughout its existence: $35,000 from X, $51,000 from Y (who 
is X's father), and $14,000 from Z (an unrelated person). Private 
foundation B has received $100,000 in contributions during its 
existence: $50,000 from X and $50,000 from W, X's wife.


For purposes of section 4943, private foundation A is a disqualified 
person with respect to private foundation B, and private foundation B is 
a disqualified person with respect to private foundation A.

    (c) Section 4941. For purposes of section 4941, a government 
official, as defined in section 4946(c) and paragraph (g) of this 
section, is a disqualified person.
    (d) Attribution of stockholdings. (1) For purposes of paragraph 
(a)(1)(iii) (a) and (v) of this section, indirect stockholdings shall be 
taken into account under section 267(c) and the regulations thereunder. 
However, for purposes of this paragraph:
    (i) Section 267(c)(4) shall be treated as though it provided that 
the members of the family of an individual are the members within the 
meaning of section 4946(d) and paragraph (h) of this section; and
    (ii) Any stockholdings which have been counted once (whether by 
reason of actual or constructive ownership) in applying section 
4946(a)(1)(E) shall not be counted a second time.

For purposes of paragraph (a)(1)(v) or this section, section 267(c) 
shall be applied without regard to section 267(c)(3), and stock 
constructively owned by an individual by reason of the application of 
section 267(c)(2) shall not be treated as owned by him if he is 
described in section 4946(a)(1)(D) but not also in section 4946(a)(1) 
(A), (B), or (C).
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. D is a substantial contributor to private foundation Y. D 
owns 20 percent of the outstanding stock of corporation P. E, D's wife, 
owns none of the outstanding stock of P. F, E's father, owns 10 percent 
of the outstanding stock of P. E is treated under section 507(d)(2) as a 
substantial contributor to Y. E is also treated under section 267(c)(2) 
as owning both D's 20 percent and F's 10 percent of P, but E is treated 
as owning nothing for purposes of section 4946(a)(1)(E) because D's 20 
percent and F's 10 percent have already been taken into account once 
(because of their actual ownership of the stock of P) for such purposes. 
Hence, corporation P is not a disqualified person under section 
4946(a)(1)(E) with respect to private foundation Y because persons 
described in section 4946(a)(1) (A), (B), (C), and (D) own only 30 
percent of the stock of P.
    Example 2. I, a substantial contributor to private foundation X, is 
the son of J. I owns 100 percent of the stock of corporation R, which in 
turn owns 18 percent of the stock of corporation S. J owns 18 percent of 
the stock of S. I constructively owns 36 percent of the stock of S (J's 
18 percent plus R's 18 percent). Both J's actual holdings and R's actual 
holdings are counted in determining I's constructive holdings because 
this does not result in counting either of the holdings more than once 
for purposes of section 4946 (a)(1)(E). Therefore, S is a disqualified 
person with respect to private foundation X, since I, a substantial 
contributor, constructively owns more than 35 percent of S's stock.

    (e) Attribution of profits or beneficial interests. (1) For purposes 
of paragraph (a) (1) (iii) (b), (iii) (c) (vi), and (vii) of this 
section, ownership of profits or beneficial interests shall be taken 
into account as though such ownership related to stockholdings, if such 
stockholdings would be taken into account under section 267(c) and the 
regulations thereunder, except that section 267(c)(3) shall not apply to 
attribute the ownership of one partner to another solely by reason of 
such partner relationship. However, for purposes of this paragraph:
    (i) Section 267(c)(4) shall be treated as though it provided that 
the members of the family of an individual are the members within the 
meaning of

[[Page 208]]

section 4946(d) and paragraph (h) of this section; and
    (ii) Any profits interest or beneficial interest which has been 
counted once (whether by reason of actual or constructive ownership) in 
applying section 4946(a)(1) (F) or (G) shall not be counted a second 
time.

For purposes of paragraph (a)(1) (vi) and (vii) of this section, profits 
or beneficial interests constructively owned by an individual by reason 
of the application of section 267(c)(2) shall not be treated as owned by 
him if he is described in section 4946(a)(1)(D) but not in section 
4946(a)(1)(A), (B) or (C).
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. Partnership S is a substantial contributor to private 
foundation X. Trust T, of which G is sole beneficiary, owns 12 percent 
of the profits interest of S. G's husband, H, owns 10 percent of the 
profits interest of S. H is a disqualified person with respect to X 
(under section 4946(a)(1)(C)) because he is considered to own 22 percent 
of the profits interest of S (10 percent actual ownership, plus G's 12 
percent constructively under section 267(c)(2)). G is a disqualified 
person with respect to X (under section 4946(a)(1)(C) because she is 
considered to own 22 percent of the profits interest of S (12 percent 
constructively by reason of her beneficial interest in trust T, plus 10 
percent constructively under section 267(c)(2) by reason of being a 
member of the family of H).

    (f) Foundation manager. (1) For purposes of Chapter 42 and the 
regulations thereunder, the term ``foundation manager'' means:
    (i) An officer, director, or trustee of a foundation (or a person 
having powers or responsibilities similar to those of officers, 
directors, or trustees of the foundation), and
    (ii) With respect to any act or failure to act, any employee of the 
foundation having final authority or responsibility (either officially 
or effectively) with respect to such act or failure to act.
    (2) For purposes of subparagraph (1)(i) of this paragraph, a person 
shall be considered an officer of a foundation if:
    (i) He is specifically so designated under the certificate of 
incorporation, bylaws, or other constitutive documents of the 
foundation; or
    (ii) He regularly exercises general authority to make administrative 
or policy decisions on behalf of the foundation.

With respect to any act or failure to act, any person described in 
subdivision (ii) of this subparagraph who has authority merely to 
recommend particular administrative or policy decisions, but not to 
implement them without approval of a superior, is not an officer. 
Moreover, such independent contractors as attorneys, accountants, and 
investment managers and advisers, acting in their capacities as such, 
are not officers within the meaning of subparagraph (1)(i) of this 
paragraph.
    (3) For purposes of subparagraph (1)(ii) of this paragraph, an 
individual rendering services to a private foundation shall be 
considered an employee of the foundation only if he is an employee 
within the meaning of section 3121(d)(2).
    (4) Since the definition of the term ``disqualified person'' 
contained in section 4946(a)(1)(B) incorporates only so much of the 
definition of the term ``foundation manager'' as is found in section 
4946(b)(1) and subparagraph (1)(i) of this paragraph, any references, in 
section 4946 and this section, to ``disqualified persons'' do not 
constitute references to persons who are ``foundation managers'' solely 
by reason of the definition of that term contained in section 4946(b)(2) 
and subparagraph (1)(ii) of this paragraph.
    (g) Government official--(1) In general. Except as provided in 
subparagraph (3) of this paragraph, for purposes of section 4941 and 
paragraph (c) of this section, the term ``government official'' means, 
with respect to an act of selfdealing described in section 4941, an 
individual who, at the time of such act, is described in subdivision 
(i), (ii), (iii), (iv), or (v) of this subparagraph (other than a 
``special Government employee'' as defined in 18 U.S.C. 202(a)):
    (i)(a) An individual who holds an elective public office in the 
executive or legislative branch of the Government of the United States.
    (b) An individual who holds an office in the executive or judicial 
branch of the Government of the United States, appointment to which was 
made by the President.

[[Page 209]]

    (ii) An individual who holds a position in the executive, 
legislative or judicial branch of the Government of the United States:
    (a) Which is listed in schedule C of rule VI of the Civil Service 
Rules, or
    (b) The compensation for which is equal to or greater than the 
lowest rate prescribed for GS-16 of the General Schedule under 5 U.S.C. 
5332.
    (iii) An individual who holds a position under the House of 
Representatives or the Senate of the United States, as an employee of 
either of such bodies, who receives gross compensation therefrom at an 
annual rate of $15,000 or more.
    (iv) The holder of an elective or appointive public office in the 
executive, legislative, or judicial branch of the government of a State, 
possession of the United States, or political subdivision or other area 
of any of the foregoing, or of the District of Columbia, for which the 
gross compensation is at an annual rate of $15,000 or more, who is 
described in subparagraph (2) of this paragraph.
    (v) The holder of a position as personal or executive assistant or 
secretary to any individual described in subdivision (i), (ii), (iii), 
or (iv) of this subparagraph.
    (2) Public office--(i) Definition. In defining the term ``public 
office'' for purposes of section 4946(c)(5) and subparagraph (1)(iv) of 
this paragraph, such term must be distinguished from mere public 
employment. Although holding a public office is one form of public 
employment, not every position in the employ of a State or other 
governmental subdivision (as described in section 4946 (c)(5)) 
constitutes a ``public office''. Although a determination whether a 
public employee holds a public office depends on the facts and 
circumstances of the case, the essential element is whether a 
significant part of the activities of a public employee is the 
independent performance of policymaking functions. In applying this 
subparagraph, several factors may be considered as indications that a 
position in the executive, legislative, or judicial branch of the 
government of a State, possession of the United States, or political 
subdivision or other area of any of the foregoing, or of the District of 
Columbia, constitutes a ``public office''. Among such factors to be 
considered in addition to that set forth above, are that the office is 
created by the Congress, a State constitution, or the State legislature, 
or by a municipality or other governmental body pursuant to authority 
conferred by the Congress, State constitution, or State legislature, and 
the powers conferred on the office and the duties to be discharged by 
such office are defined either directly or indirectly by the Congress, 
State constitution, or State legislature, or through legislative 
authority.
    (ii) Illustrations. The following are illustrations of positions of 
public employment which do not involve policymaking functions within the 
meaning of subdivision (i) of this subparagraph and which are thus not a 
``public office'' for purposes of section 4946(c)(5) and subparagraph 
(1)(iv) of this paragraph:
    (a) The chancellor, president, provost, dean, and other officers of 
a State university who are appointed, elected, or otherwise hired by a 
State Board of Regents or equivalent public body and who are subject to 
the direction and supervision of such body;
    (b) Professors, instructors, and other members of the faculty of a 
State educational institution who are appointed, elected, or otherwise 
hired by the officers of the institution or by the State Board of 
Regents or equivalent public body;
    (c) The superintendent of public schools and other public school 
officials who are appointed, elected, or otherwise hired by a Board of 
Education or equivalent public body and who are subject to the direction 
and supervision of such body;
    (d) Public school teachers who are appointed, elected, or otherwise 
hired by the superintendent of public schools or by a Board of Education 
or equivalent public body;
    (e) Physicians, nurses, and other professional persons associated 
with public hospitals and State boards of health who are appointed, 
elected, or otherwise hired by the governing board or officers of such 
hospitals or agencies; and

[[Page 210]]

    (f) Members of police and fire departments, except for those 
department heads who, under the facts and circumstances of the case, 
independently perform policymaking functions as a significant part of 
their activities.
    (3) Certain government officials on leave of absence. For purposes 
of this paragraph, an individual who is otherwise described in section 
4946(c) and this paragraph who was on leave of absence without pay on 
December 31, 1969, from his position or office pursuant to a commitment 
entered into on or before such date to engage in certain activities for 
which he is paid by one or more private foundations, is not to be 
treated as holding such position or office for any continuous period 
after December 31, 1969, and prior to January 1, 1971, during which such 
individual remains on leave of absence to engage in the same activities 
for which he is paid by such foundations. For purposes of this 
subparagraph, a commitment is considered entered into on or before 
December 31, 1969, if on or before such date, the amount and nature of 
the payments to be made and the name of the individual receiving such 
payments were entered on the records of the payor, or were otherwise 
adequately evidenced, or the notice of the payment to be received was 
communicated to the payee orally or in writing.
    (h) Members of the family. For purposes of this section, the members 
of the family of an individual include only:
    (1) His spouse,
    (2) His ancestors,
    (3) His lineal descendants, and
    (4) Spouses of his lineal descendants.

For example, a brother or sister of an individual is not a member of his 
family for purposes of this section. However, for example, the wife of a 
grandchild of an individual is a member of his family for such purposes. 
For purposes of this paragraph, a legally adopted child of an individual 
shall be treated as a child of such individual by blood.

[T.D. 7241, 37 FR 28744, Dec. 29, 1972]



            Subpart H_Application to Certain Nonexempt Trusts



Sec.  53.4947-1  Application of tax.

    (a) In general. Section 4947 subjects trusts which are not exempt 
from taxation under section 501(a), all or part of the unexpired 
interests in which are devoted to one or more of the purposes described 
in section 170(c)(2)(B), and which have amounts in trust for which a 
deduction was allowed under section 170, 545(b)(2), 556(b)(2), 642(c), 
2055, 2106(a)(2), or 2522 to the same requirements and restrictions as 
are imposed on private foundations. The basic purpose of section 4947 is 
to prevent these trusts from being used to avoid the requirements and 
restrictions applicable to private foundations. For purposes of this 
section, a trust shall be presumed (in the absence of proof to the 
contrary) to have amounts under section 170, 545(b)(2), 556(b)(2), 
642(c), 2055, 2106(a)(2), or 2522 if a deduction would have been 
allowable under one of these sections. Also for purposes of this section 
and Sec.  53.4947-2, the term ``purposes described in section 
170(c)(2)(B)'' shall be treated as including purposes described in 
section 170(c)(1).
    (b) Charitable trusts--(1) General rule. (i) For purposes of this 
section and Sec.  53.4947-2, a charitable trust, within the meaning of 
section 4947(a)(1), is a trust which is not exempt from taxation under 
section 501(a), all of the unexpired interests in which are devoted to 
one or more of the purposes described in section 170(c)(2)(B), and for 
which a deduction was allowed under section 170, 545(b)(2), 556(b)(2), 
642(c), 2055, 2106(a)(2), or 2522 (or the corresponding provisions of 
prior law). A trust is one for which a deduction was allowed under 
section 642(c), within the meaning of section 4947(a)(1), once a 
deduction is allowed under section 642(c) to the trust for any amount 
paid or permanently set aside. (See sections 642(c) and Sec.  1.642-4 
for the limitation on such deduction in certain cases.) A charitable 
trust (as defined in this paragraph) shall be treated as an organization 
described in section 501(c)(3) and, if it is determined under section 
509 that the trust is a private foundation, then Part II of Subchapter F 
of chapter 1 of the Code (other than section 508

[[Page 211]]

(a), (b) and (c) and Chapter 42 shall apply to the trust. However, the 
charitable trust is not treated as an organization described in section 
501(c)(3) for purposes of exemption from taxation under section 501(a). 
Thus, the trust is subject to the excise tax on its investment income 
under section 4940(b) rather than the tax imposed by section 4940(a). 
For purposes of satisfying the organizational test described in Sec.  
1.501 (c)(3)-1(b) when a charitable trust seeks an exemption from 
taxation under section 501(a), a charitable trust (as defined in this 
paragraph) shall be considered organized on the day it first becomes 
subject to section 4947(a)(1). However, for purposes of the special and 
transistional rules in section 4940(c)(4)(B), 4942(f)(4), 
4943(c)(4)(A)(i) and (B) and section 101(1)(2)(A), (B), (C), and (D), 
and (1)(3) of the Tax Reform Act of 1969, a charitable trust (as defined 
in this paragraph) shall be considered organized on the first day it has 
amounts in trust for which a deduction was allowed (within the meaning 
of paragraph (a) of this section) under section 170, 545(b)(2), 
556(b)(2), 642(c), 2055, 2106(a)(2), or 2522. Thus, under this rule, a 
trust may be treated as a private foundation in existence on a date 
governing one of the applicable special and transistional rules even 
though the trust did not otherwise become subject to the provisions of 
Chapter 42 until a later date.
    (ii) The provisions of paragraph (b)(1) of this section may be 
illustrated by the following examples:

    Example 1. On January 30, 1970, X creates an inter vivos trust under 
which M receives 50 percent and N receives 50 percent of the trust's 
income for 10 years, and upon the termination of which, at the end of 
the 10-year period, the corpus is to be distributed to O. M, N and O are 
all organizations described in section 501(c)(3) and X is allowed a 
deduction under section 170 for the value of all interests placed in 
trust. The trustees of the trust do not give notice to the Internal 
Revenue Service under the provisions of section 508(a), and the trust 
will therefore not be exempt from taxation under section 501(a). The 
trust is a charitable trust within the meaning of section 4947(a)(1) 
from the date of its creation.
    Example 2. On March 1, 1971, Y creates a charitable remainder 
annuity trust described in section 664(d)(1) under which Z, Y's son, 
receives $10,000 per year for life, remainder to be held in trust for P, 
an organization described in section 501(c)(3). Y is allowed a deduction 
under section 170 for the present value of the remainder interest to P. 
During Z's lifetime, the trust is a split-interest trust described in 
section 4947(a)(2) and paragraph (c) of this section. Upon the death of 
Z, all unexpected interests (consisting of P's remainder interest) will 
be devoted to section 170(c)(2)(B) purposes. Except as provided in Sec.  
53.4947-1(b)(2)(iv) (relating to a reasonable period of settlement) the 
trust will be treated as a charitable trust within the meaning of 
section 4947(a)(1) from the date of the death of Z unless the trustees 
of the trust apply for recognition of section 501(c)(3) status under the 
provisions of section 508(a).

    (2) Scope of application of section 4947(a)(1)--(i) In general. 
Subject to paragraph (b)(2) (ii) through (vii) of this section, section 
4947(a)(1) applies to nonexempt trusts in which all unexpired interests 
are charitable. For purposes of this section, the term charitable when 
used to describe an interest or beneficiary refers to the purposes 
described in section 170(c)(2)(B). An estate from which the executor or 
administrator is required to distribute all of the net assets in trust 
to such beneficiaries will not be considered a charitable trust under 
section 4947(a)(1) during the period of estate administration or 
settlement, except as provided in paragraph (b)(2)(ii) of this section. 
A charitable trust created by will shall be considered a charitable 
trust under section 4947(a)(1) as of the date of death of the decedent-
grantor, except as provided in paragraph (b)(2)(v) of this section 
(relating to trusts which wind up. For the circumstances under which 
segregated amounts are treated as charitable trusts, see Sec.  53.4947-
1(c)(3)(iii).
    (ii) Estates. (A) When an estate from which the executor or 
administrator is required to distribute all of the net assets in trust 
for charitable beneficiaries, or free of trust to such beneficiaries, is 
considered terminated for Federal income tax purposes under Sec.  
1.641(b)-3(a), then the estate will be treated as a charitable trust 
under section 4947(a)(1) between the date on which the estate is 
considered terminated under Sec.  1.641(b)-3(a) and the date final 
distribution of all of the net assets is made to or for the benefit of 
the charitable beneficiaries. This (ii) does not affect the 
determination of the tax

[[Page 212]]

liability under Subtitle A of the beneficiaries of the estates.
    (B) The provisions of this (ii) may be illustrated by the following 
example:

    Example. X bequeaths his entire estate, including 100 percent of the 
stock of a wholly-owned corporation, to M, an organization described in 
section 501(c)(3), under a will which gives his executor authority to 
hold the stock and manage the corporation for a period of up to 10 years 
for the benefit of M prior to its ultimate disposition. A deduction for 
the charitable bequest was allowed to X's estate under section 2055. The 
executor is vested with a full range of powers, including the power of 
sale. Upon the death of X, his executor distributes X's assets to M 
except for the stock of the corporation, which he holds for 5 years 
prior to its disposition. The continued holding of the stock of the 
corporation by the executor after the expiration of a reasonable time 
for performance of all the ordinary duties of administration causes the 
estate to be considered terminated for Federal income tax purposes 
pursuant to Sec.  1.641(b)-3(a) and thereby subjects it to the 
provisions of section 4947(a)(1) from the date of such termination to 
the date of final disposition of the stock of the corporation.

    (iii) Certain split-interest trusts which wind up. A split-interest 
trust (as defined in paragraph (c) of this section) in which all of the 
unexpired interests are charitable remainder interests and in which the 
charitable beneficiaries have become entitled to distributions of corpus 
in trust or free of trust shall continue to be treated as as split-
interest trust under section 4947(a)(2) until the date on which final 
distribution of all the net assets is made. However, if after the 
expiration of any intervening interests the trust is considered 
terminated for Federal income tax purposes under Sec.  1.641(b)-3(b), 
then the trust will be treated as a charitable trust under section 
4947(a)(1), rather than a split interest trust under section 4947(a)(2), 
between the date on which the trust is considered terminated under Sec.  
1.641(b)-3(b) and the date on which such final distribution of all of 
the net assets is made to or for the benefit of the charitable remainder 
beneficiaries. This (iii) does not affect the determination of the tax 
liability under subtitle A of the beneficiaries of the trusts.
    (iv) Split-interest trusts which become charitable trusts. (A) A 
split-interest trust (as defined in paragraph (c) of this section) in 
which all of the unexpired interests are charitable remainder interests 
and in which some or all of the charitable beneficiaries are not 
entitled to distributions of corpus within the meaning of paragraph 
(b)(2)(iii) of this section shall continue to be treated as a split-
interest trust under section 4947(a)(2) rather than a charitable trust 
under section 4947(a)(1) for a reasonable period of settlement after the 
expiration of the noncharitable interest. Thus, a split-interest trust 
which under its terms is to continue to hold assets for charitable 
beneficiaries after the expiration of the noncharitable interest rather 
than distributing them as in paragraph (b)(2)(iii) of this section is 
given a reasonable period of settlement before being treated as a 
charitable trust. For purposes of this paragraph, the term reasonable 
period of settlement means that period reasonably required (or if 
shorter, actually required) by the trustee to perform the ordinary 
duties of administration necessary for the settlement of the trust. 
These duties include, for example, the collection of assets, the payment 
of debts, taxes, and distributions, and the determination of the rights 
of the subsequent beneficiaries.
    (B) This (iv) may be illustrated by the following example:

    Example. On January 15, 1971, A creates a charitable remainder 
annuity trust described in section 661(d)(1) under which the trustees 
are required to distribute $10,000 a year to B, A's wife, for life, 
remainder to be held in trust for the use of M, an organization 
described in section 501(c)(3). A is allowed a deduction under section 
170 for the amount of the charitable interest, and the trust is, 
therefore, treated as a split-interest trust under section 4947(a)(2) 
from the date of its creation. B dies on February 10, 1975. On April 15, 
1975, the trustees complete performance of the ordinary duties of 
administration necessary for the settlement of the trust brought about 
by the death of B. These duties include, for example, an accounting for 
and payment to the estate of B of amounts accrued by B while alive 
during 1975. However, the trustees do not distribute the corpus to M by 
April 15, 1975. The trust shall continue to be treated as a split-
interest trust under section 4947(a)(2) until April 15, 1975. After 
April 15, 1975, the trust shall be treated as a charitable trust under 
section 4947(a)(1).


[[Page 213]]


    (v) Certain revocable and testamentary trusts which wind up. A 
revocable trust that becomes irrevocable upon the death of the decedent-
grantor, or a trust created by will, from which the trustee is required 
to distribute all of the net assets in trust for or free of trust to 
charitable beneficiaries is not considered a charitable trust under 
section 4947(a)(1) for a reasonable period of settlement (within the 
meaning of paragraph (b)(2)(iv) of this section) after becoming 
irrevocable. After that period the trust is considered a charitable 
trust under section 4947(a)(1).
    (vi) Revocable trusts which become charitable trusts. A revocable 
trust that becomes irrevocable upon the death of the decedent-grantor in 
which all of the unexpired interests are charitable and under the terms 
of the governing instrument of which the trustee is required to hold 
some or all of the net assets in trust after becoming irrevocable solely 
for charitable beneficiaries is not considered a trust under section 
4947(a)(1) for a reasonable period of settlement (within the meaning of 
paragraph (b)(2)(iv) of this section) after becoming irrevocable except 
that section 4941 may apply if the requirements of Sec.  53.4941(d)-1 
(b)(3) are not met. After that period, the trust is considered a 
charitable trust under section 4947(a)(1).
    (vii) Trust devoted to 170(c) purposes. (A) A trust all of the 
unexpired interests in which are devoted to section 170 (c) (3) or (5) 
purposes together with section 170(c)(2)(B) purposes shall be considered 
a charitable trust except that payments under the terms of the governing 
instrument to an organization described in section 170(c) (3) or (5) 
shall not be considered a violation of section 4945(d)(5) or any other 
provisions of Chapter 42 and shall be considered qualifying 
distributions under section 4942.
    (B) Example. The application of paragraph (b)(2)(vii) of this 
section may be illustrated by the following example:

    Example. On January 30, 1970, H creates an inter vivos trust under 
the terms of the governing instruments of which M, an organization 
described in section 170(c)(3), and N, an organization described in 
section 501(c)(3), are each to receive 50 percent of the income for a 
period of 10 years. At the end of the 10 year period, the corpus is to 
be distributed to O, an organization also described in section 
501(c)(3). H is allowed a deduction under section 170 for the value of 
all interests placed in trust. The payments to M do not constitute a 
violation of section 4945(d)(5) or any other provision of Chapter 42 and 
constitute qualifying distributions under section 4942. However, except 
as provided in the previous sentence, the trust shall be considered a 
charitable trust.

    (3) Charitable trusts described in section 509(a)(3). For purposes 
of section 509(a)(3)(A), a charitable trust shall be treated as if 
organized on the day on which it first becomes subject to section 
4947(a)(1). However, for purposes of applying Sec. Sec.  1.509(a)-4(d) 
(2)(iv)(a), and 1.509(a)-4(i)(1) (ii) and (iii)(c) the previous 
relationship between the charitable trust and the section 509(a) (1) or 
(2) organizations it benefits or supports may be considered. If the 
charitable trust otherwise meets the requirements of section 509(a)(3), 
it may obtain recognition of its status as a section 509(a)(3) 
organization by requesting a ruling from the Internal Revenue Service. 
For the special rules pertaining to the application of the 
organizational test to organizations terminating their private 
foundation status under the 12-month or 60-month termination period 
provided under section 507(b)(1)(B) by becoming ``public'' under section 
509(a)(3), see the regulations under section 507(b)(1).
    (c) Split-interest trusts--(1) General rule--(i) Definition. For 
purposes of this section and Sec.  53.4947-2, a split-interest trust, 
within the meaning of section 4947(a)(2), is a trust which is not exempt 
from taxation under section 501(a), not all of the unexpired interests 
in which are devoted to one or more of the purposes described in section 
170(c)(2)(B), and which has amounts in trust for which a deduction was 
allowed (within the meaning of paragraph (a) of this section) under 
section 170, 545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522. A 
trust is one which has amounts in trust for which a deduction was 
allowed under section 642(c) within the meaning of section 4947(a)(2) 
once a deduction is allowed under section 642(c) to the trust for any 
amount permanently set aside. This (i) also includes any trust which is 
not treated as a charitable trust by operation of paragraph (b)(2) (iii) 
or (iv) of

[[Page 214]]

this section (relating to split-interest trusts in the process of 
winding up or during a reasonable period of settlement). Section 
4947(a)(1) shall apply to a trust described in this (i) (without regard 
to section 4947(a)(2)(A), (B), or (C)) from the first date upon which 
the provisions of paragraph (b)(2) (iii) or (iv) of this section are 
satisfied. For the circumstances under which a trust all of the 
unexpired interests in which are devoted to section 170(c) (3) or (5) 
purposes together with section 170(c)(2)(B) purposes is considered a 
charitable trust, see Sec.  53.4947-1(b)(2)(vii).
    (ii) Applicability of statutory rules. A split-interest trust is 
subject to the provisions of section 507 (except as provided in 
paragraph (e) of this section), 508(e) (to the extent applicable to a 
split-interest trust), 4941, 4943 (except as provided in section 
4947(b)(3)), 4944 (except as provided in section 4947(b)(3)), and 4945 
in the same manner as if such trust were a private foundation.
    (iii) Special rules. A newly created trust shall, for purposes of 
section 4947(a)(2), be treated as having amounts in trust for which a 
deduction was allowed under section 170, 545(b)(2), 556(b)(2), 642(c), 
2055, 2106(a)(2), or 2522 from the date of its creation, even if a 
deduction was allowed for such amounts only at a later date. For 
purposes of this (iii), the date of creation of a charitable remainder 
trust shall be determined by applying the rules in Sec.  1.664-1(a)(4).
    (2) Exception for amounts payable to income beneficiaries. (i) Under 
section 4947(a)(2)(A), paragraph (c)(1)(ii) of this section does not 
apply to any amounts payable under the terms of a split-interest trust 
to income beneficiaries unless a deduction was allowed under section 
170(f)(2)(B), 2055(e)(2) (B), or 2522(c)(2)(B) with respect to the 
income interest of any such beneficiary. See Sec.  1.170A-6(c), Sec.  
20.2055(e)(2), and Sec.  25.2522(c)-3(c)(2) for rules regarding the 
allowance of these deductions. However, section 4947(a)(2)(A) does not 
apply when the value of all interests in property transferred in trust 
are deductible under section 170, 545(b)(2), 556(b)(2), 642(c), 2055, 
2106(a)(2), or 2522.
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. H creates a charitable remainder unitrust (described in 
section 664(d)(2)) which is required annually to pay W, H's wife, 5 
percent of the net fair market value of the trust assets, valued 
annually, for her life; and to pay the remainder to Y, a section 
501(c)(3) organization. A deduction under section 170(f)(2)(A) was 
allowed with respect to the remainder interest of Y. Under section 
4947(a)(2)(A), each annual amount which becomes payable to W during her 
life is not subject to paragraph (c)(1)(ii) of this section on or after 
the date upon which it becomes so payable and the payment of each amount 
to W is not an act of self-dealing under section 4941(d)(1) and does not 
violate any other provision of chapter 42. However, except as provided 
in the preceding sentence, the trust is subject to paragraph (c)(1)(ii) 
of this section in the same manner as any other split-interest trust.
    Example 2. H bequeaths the residue of his estate in trust for the 
benefit of S, his son, and Y, an organization described in section 
501(c)(3). A guaranteed annuity interest of $10,000 is to be paid to S 
for 20 years. A guaranteed annuity interest of $5,000 which meets the 
requirements contained in Sec.  20.2055-2(e)(2)(v)(a) is also to be paid 
to Y for 20 years. Upon termination of the 20-year term, the corpus is 
to be distributed to Z, another organization described in section 
501(c)(3). The trust is a charitable remainder annuity trust as 
described in section 664(d)(1) and the regulations thereunder, and a 
deduction under section 2055(e)(2)(A) was allowed with respect to the 
remainder interest of Z. A deduction was also allowed under section 
2055(e)(2)(B) with respect to the guaranteed annuity interest of Y. The 
assets in the trust are not segregated under section 4947(a)(2)(B) and 
paragraph (c)(3) of this section. Under section 4947(a)(2)(A), each 
payment of $10,000 to S is not subject to section 4947(a)(2) and 
paragraph (c)(1)(ii) of this section. The payment of each amount to S is 
not an act of self-dealing under section 4941(d)(1) and does not violate 
any other provision of chapter 42. However, except as provided in the 
preceding sentence, the trust is subject to section 4947(a)(2) and 
paragraph (c)(1)(ii) of this section in the same manner as any other 
split-interest trust.
    Example 3. H creates a trust under which the trustees are required 
to pay over an annuity interest of $20,000 to W. H's wife, for her life. 
A guaranteed annuity interest of $10,000 which meets the requirements 
contained in Sec.  25.2522(c)-3(c)(2)(v) is also to be paid X, an 
organization described in section 501(c)(3), for the life of W. Upon the 
death of W, the corpus of the trust, which consists of office buildings 
M and N, is to be distributed

[[Page 215]]

to S. H's son. H received a deduction under section 2522(c)(2)(B) for 
the value of X's income interest in the trust. The assets in the trust 
are not segregated under section 4947(a)(2)(B) and paragraph (c)(3) of 
this section. Under section 4947(a)(2)(A), each payment of $20,000 to W 
is not subject to section 4947(a)(2) and paragraph (c)(1)(ii) of this 
section. The payment of each amount to W is not an act of self-dealing 
under section 4941(d)(1) and does not violate any other provision of 
chapter 42. However, except as provided in the preceding sentence, the 
trust is subject to paragraph (c)(1)(ii) of this section in the same 
manner as any other split-interest trust. See example (1) of paragraph 
(c)(3)(v) of this section for the application of section 4947(a)(2)(B) 
to a similar trust where the trustees segregate the assets of the trust.

    (3) Exception for certain segregated amount--(i) In general. Under 
section 4947(a)(2)(B) paragraph (c)(1)(ii) of this section does not 
apply to assets held in trust (together with the income and capital 
gains derived from the assets), which are segregated from other assets 
held in trust for which a deduction was allowed for an income or 
remainder interest under section 170, 545(b)(2), 556(b)(2), 642(c), 
2055, 2106(a)(2), or 2522.
    (ii) Segregation of amounts. Amounts will generally be considered 
segregated (within the meaning of section 4947(a)(2)(B) if:
    (A) Assets with respect to which no deduction was allowed (for an 
income or remainder interest) under section 170, 545(b)(2), 556(b)(2), 
642(c), 2055, 2106(a)(2), or 2522, are separately accounted for under 
section 4947(a)(3) and paragraph (c)(4) of this section from assets for 
which such a deduction was allowed for any income or remainder interest 
and,
    (B) By reason of the separate accounting the trust can be treated as 
two separate trusts, one of which is devoted exclusively to 
noncharitable income and remainder interests and the other of which is a 
charitable trust described in section 4947(a)(1) or a split-interest 
trust described in section 4947(a)(2).

Under these circumstances, only the ``trust'' which is devoted 
exclusively to noncharitable income and remainder interests will be 
considered a segregated amount which under section 4947(a)(2)(B), is not 
subject to section 4947(a)(2) and paragraph (c)(1)(ii) of this section.
    (iii) Exclusively charitable amounts. If, under section 
4947(a)(2)(B),
    (A) An amount held in trust which is devoted exclusively to 
noncharitable income and remainder interests is segregated from
    (B) An amount held in trust which is devoted exclusively to 
charitable income and remainder interests,

Then for purposes of this section the amount described in paragraph 
(c)(3)(iii)(B) of this section will be treated as a charitable trust 
which is subject to the provisions of section 4947(a)(1).
    (iv) Charitable and noncharitable amounts. If, under section 4947(a) 
(2)(B),
    (A) An amount held in trust which is devoted exclusively to 
noncharitable income and remainder interests is segregated from
    (B) An amount held in trust which is devoted to both charitable 
income or remainder interests and noncharitable income or remainder 
interests,

Then for purposes of this section the amount described in paragraph 
(c)(3)(iv)(B) of this section will be treated as a split-interest trust 
which is subject to the provisions of section 4947(a)(2).
    (v) Examples. The application of paragraph (c)(3) of this section 
may be illustrated by the following examples:

    Example 1. H creates a trust under which the trustees are required 
to pay over annually 5 percent of the net fair market value of M 
building, valued annually, to W, H's wife, for life, remainder to S, H's 
son. The other asset in the trust is N building, with respect to which 
the trustees are required to pay over annually 5 percent of the net fair 
market value of the building, valued annually, to X, a section 501(c)(3) 
organization, for a period of 15 years, remainder to S. Each asset is 
separately accounted for under section 4947(a)(3) and paragraph (c)(4) 
of this section. He received a deduction under section 2522 for the 
value of X's income interest in N building. Under these circumstances, M 
building is considered segregated (within the meaning of section 
4947(a)(2)(B)) from N building and is not subject to section 4947 
(a)(2). The remainder interest of S in N building is not considered 
segregated from the income interest of X in N building, since both are 
interests in the same asset. N building is considered held in a split-
interest trust which is subject to section 4947 (a)(2) and paragraph 
(c)(1)(ii) of this section.

[[Page 216]]

    Example 2. H transfers $50,000 in trust to pay $2,500 per year to Z, 
a section 501(c)(3) organization, for a term of 20 years, remainder to 
S. H's son. H is allowed a deduction under section 2522 for the present 
value of Z's income interest. The income interest of Z in the trust 
asset cannot be segregated (within the meaning of section 4947(a)(2)(B)) 
from the remainder interest of S since both are interests in the same 
asset. Therefore, the entire trust is subject to section 4947(a)(2) and 
paragraph (c)(1)(ii) of this section.

    (4) Accounting for segregated amounts--(i) General rule. Under 
section 4947(a)(2)(B), a trust with respect to which amounts are 
segregated within the meaning of paragraph (c)(3) of this section must 
separately account for the various income, deduction, and other items 
properly attributable to each segregated amount in the books of account 
and separately account to each of the beneficiaries of the trust.
    (ii) Method. Separate accounting shall be made:
    (A) According to the method regularly employed by the trust, if the 
method is reasonable, and
    (B) In all other cases in a manner which, in the opinion of the 
Commissioner, is reasonable.

A method of separate accounting will be considered ``regularly 
employed'' by a trust when the method has been consistently followed in 
prior taxable years or when a trust which has never before maintained 
segregated amounts initiates a reasonable method of separate accounting 
for its segregated amounts and consistently follows such method 
thereafter. The trust shall keep permanent records and other data 
relating to the segregated amounts as are necessary to enable the 
district director to determine the correctness of the application of the 
rules prescribed in paragraph (c) (3) and (4) of this section.
    (5) Amounts transferred in trust before May 27, 1969--(i) General 
rule. Under section 4947(a)(2)(C), paragraph (c)(1)(ii) of this section 
does not apply to any amounts transferred in trust before May 27, 1969. 
For purposes of this (5), an amount shall be considered to be 
transferred in trust only when the transfer is one which meets the 
requirements for the allowance of a deduction under section 170, 
545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522 (or the 
corresponding provisions of prior law). Income and capital gains which 
are derived at any time from amounts transferred in trust before May 27, 
1969, shall also be excluded from the application of paragraph 
(c)(1)(ii) of this section. If an asset which was transferred in trust 
before May 27, 1969, is sold or exchanged after May 26, 1969, any asset 
received by the trust upon the sale or exchange shall be treated as an 
asset which was transferred in trust before May 27, 1969.
    (ii) Requirement for separate accounting for amounts transferred in 
trust before May 27, 1969. If:
    (A) Amounts are transferred in trust after May 26, 1969, and the 
trust to which the amounts are transferred also contains
    (B) Amounts transferred in trust before May 27, 1969,

the general rule of paragraph (c)(5)(i) of this section applicable to 
the amounts described in paragraph (c)(5)(ii)(B) of this section will 
apply only if the amounts described in paragraph (c)(5)(ii)(A) of this 
section (together with all income and capital gains derived therefrom) 
are separately accounted for (within the meaning of paragraph (c)(4) of 
this section) from the amounts described in paragraph (c)(5)(ii)(B) of 
this section, together with all income and capital gains derived 
therefrom. For the application of section 508(e) to a trust with respect 
to which amounts were transferred both before and after May 27, 1969, 
see section 508(e) and the regulations thereunder.
    (iii) Exception for certain testamentary trusts. (A) Amounts 
transferred in trust before May 27, 1969 include amounts transferred in 
trust after May 26, 1969 when the transfer is made under the terms of a 
testamentary trust created by the will of a decedent who died before May 
27, 1969, (regardless of whether the executors or the testamentary 
trustees are required to execute testamentary trusts by court order 
under applicable local law). Amounts transferred in trust before May 27, 
1969, also include amounts transferred to a testamentary trust created 
by the will of a decedent who died after May 26, 1969 if the will was 
executed before May 27, 1969 and no dispositive provision of the

[[Page 217]]

will was amended (within the meaning of Sec.  20.2055-2(e)(4) and (5)) 
by the decedent by codicil or otherwise, after May 26, 1969, and the 
decedent was on May 27, 1969, and at all times thereafter under a mental 
disability (as defined in Sec.  1.642(c)-2(b)(3)(ii)) to amend the will 
by codicil or otherwise.
    (B) The provisions of this (iii) may be illustrated by the following 
example:

    Example. X executed a will in 1960 which provided for the creation 
of a testamentary trust which meets the description of a split-interest 
trust under section 4947(a)(2). X died on April 15, 1969. Under the 
provisions of his will, the probate court permitted certain property in 
X's estate to be transferred to the testamentary trust at fixed 
intervals over a period of two years during the administration of the 
estate. Section 4947(a)(2) does not apply to any amount described in 
this example, including the amounts transferred after May 26, 1969, 
because, for purposes of section 4947(a)(2)(C), each such transfer will 
be treated as an amount transferred in trust before May 27, 1969, within 
the meaning of section 4947(a)(2)(C).

    (6) Scope of application of section 4947(a)(2)--(i) In general. 
Subject to paragraph (c)(6) (ii), (iii), and (iv) of this section, 
section 4947(a)(2) applies to trusts in which some but not all unexpired 
interests are charitable. An estate from which the executor or 
administrator is required to distribute all of the net assets in trust 
or free of trust to both charitable and noncharitable beneficiaries will 
not be considered to be a split-interest trust under section 4947(a)(2) 
during the period of estate administration or settlement, except as 
provided in paragraph (c)(6)(ii) of this section. A split-interest trust 
created by will shall be considered a split-interest trust under section 
4947(a)(2) as of the date of death of the decedent-grantor, except as 
provided in paragraph (c)(6)(iv) of this section.
    (ii) Estates. (A) When an estate from which the executor or 
administrator is required to distribute all of the net assets in trust 
or free of trust to both charitable and noncharitable beneficiaries is 
considered terminated for Federal income tax purposes under Sec.  
1.641(b)-3(a), then the estate will be treated as a split-interest trust 
under section 4947(a)(2) (or a charitable trust under section 
4957(a)(1), if applicable) between the date on which the estate is 
considered terminated under Sec.  1.641(b)-3(a) and the date on which 
final distribution of the net assets to the last remaining charitable 
beneficiary is made. This (ii) does not affect the determination of the 
tax liability under subtitle A of either charitable or noncharitable 
beneficiaries of the estates.
    (B) The provisions of this (ii) may be illustrated by the following 
example:

    Example. X dies on January 15, 1973 and bequeaths $10,000 to M, an 
organization described in section 501(c)(3), and the residue of his 
estate to W, his wife. A deduction for the charitable bequest was 
allowed to X's estate under section 2055. Substantially all of X's 
estate consists of 100 percent of the stock of a wholly owned 
corporation, certain liquid assets such as marketable stocks and 
securities and bank accounts, and X's home, automobile, and other 
personal property. X's will gives his executor a full range of powers, 
including the power to sell the stock of the wholly owned corporation. 
After the death of X, his executor continues to manage the wholly owned 
corporation while attempting to sell the stock of the corporation. 
During this period, the executor makes no distributions to M. On May 24, 
1978, the Internal Revenue Service determines under Sec.  1.641(b)-3(a) 
that the administration of the estate has been unduly prolonged and the 
estate is considered terminated as of that date for Federal income tax 
purposes. X's estate will be treated as a split-interest trust described 
in section 4947(a)(2) between May 24, 1978 and the date on which the 
$10,000 bequest to M is satisfied. X's estate will therefore be subject 
to the applicable private foundation provisions during that period and, 
for example, a sale of the house by the estate to any disqualified 
person (as defined in section 4946) will be an act of self-dealing under 
section 4941.

    (iii) Revocable trusts which become split-interest trusts. A 
revocable trust that becomes irrevocable upon the death of the decedent-
grantor under the terms of the governing instrument of which the trustee 
is required to hold some or all of its net assets in trust after 
becoming irrevocable for both charitable and noncharitable beneficiaries 
is not considered a split-interest trust under section 4947(a)(2) for a 
reasonable period of settlement after becoming irrevocable except that 
section 4941 may apply if the requirements of Sec.  53.4941(d)-1(b)(3) 
are not met.

After that period, the trust is considered a split-interest trust under 
section 4947(a)(2). For purposes of this (iii), the

[[Page 218]]

term reasonable period of settlement means that period reasonably 
required (or if shorter, actually required) by the trustee to perform 
the ordinary duties of administration necessary for the settlement of 
the trust. These duties include, for example, the collection of assets, 
the payment of debts, taxes, and distributions, and the determination of 
rights of the subsequent beneficiaries.
    (iv) Certain revocable and testamentary trusts which wind up. A 
revocable trust that becomes irrevocable upon the death of the decedent-
grantor, or a trust created by will, from which the trustee is required 
to distribute all of the net assets in trust or free of trust to both 
charitable and noncharitable beneficiaries is not considered a split-
interest trust under section 4947(a)(2) for a reasonable period of 
settlement (within the meaning of paragraph (c)(6)(iii) of this section) 
after becoming irrevocable. After that period, the trust is considered a 
split-interest trust under section 4947(a)(2) (or a charitable trust 
under section 4947(a)(1), if applicable).
    (d) Cross references; Governing instrument requirements and 
charitable deduction limitations. For the application of section 
642(c)(6) (relating to section 170 limitations on charitable deductions 
of non-exempt private foundation trusts) to a trust described in section 
4947(a)(1), see Sec.  1.642(c)-4. For the denial of a deduction under 
section 170, 545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522 for 
a gift, a bequest, or an amount paid to (and the denial of a deduction 
under section 642(c) for an amount set aside in) a trust described in 
section 4947(a)(1) or (2) that fails to meet the applicable governing 
instrument requirements of section 508(e) by the end of the taxable year 
of the trust, see section 508(d)(2) and Sec.  1.508-2(b). Since a 
charitable remainder trust (as defined in section 664) is not exempt 
under section 501(a), it is subject to section 4947(a)(2), and thus to 
the governing instrument requirements of section 508(e) to the extent 
they are applicable.
    (e) Application of section 507(a)--(1) General rule. The provisions 
of section 507(a) shall not apply to a trust described in section 
4947(a) (1) or (2) by reason of any payment to a beneficiary that is 
directed by the terms of the governing instrument of the trust and is 
not discretionary with the trustee or, in the case of a discretionary 
payment, by reason of, or following, the expiration of the last 
remaining charitable interest in the trust.
    (2) Examples. The provisions of this (e) may be illustrated by the 
following examples:

    Example 1. H creates a section 4947(a)(1) trust under which the 
income is to be paid for 15 years to R, a section 501(c)(3) 
organization. Upon the expiration of 15 years, the trust is to terminate 
and distribute all of its assets to S, another section 501(c)(3) 
organization. Distribution of the corpus of the trust to S will not be 
considered a termination of the trust's private foundation status within 
the meaning of section 507(a).
    Example 2. H creates a trust under which X, a section 501(c)(3) 
organization, receives $20,000 per year for a period of 20 years, 
remainder to S, H's son. H is allowed a deduction under section 2522 for 
the present value of X's interest.
    When the final payment to X has been made at the end of the 20-year 
period in accordance with the terms of the trust, the provisions of 
section 4947(a)(2) will cease to apply to the trust because the trust no 
longer retains any amounts for which the deduction under section 2522 
was allowed. However, the final payment to X will not be considered a 
termination of the trust's private foundation status within the meaning 
of section 507(a).
    Example 3. J creates a charitable remainder annuity trust described 
in section 664(d)(1) under which S, J's son, receives $10,000 per year 
for life, remainder to be distributed outright to P, an organization 
described in section 501(c)(3). J is allowed a deduction under section 
170 for the value of the remainder interest placed in trust for the 
benefit of P, and the provisions of section 4947(a)(2) apply to the 
trust. At the death of S, the trust will terminate and all assets will 
be distributed to P. However, such final distribution to P will not be 
considered a termination of the trust's private foundation status within 
the meaning of section 507(a).

[T.D. 7431, 41 FR 35515, Aug. 23, 1976]



Sec.  53.4947-2  Special rules.

    (a) Limit to segregated amounts. If any amounts held in trust are 
segregated within the meaning of Sec.  53.4947-1(c)(3), the value of the 
net assets for purposes of section 507(c)(2) and (g) shall be limited to 
the segregated amounts with respect to which a deduction under section 
170, 545(b)(2), 556(b)(2), 642(c), 2055,

[[Page 219]]

2106(a)(2), or 2522 was allowed. See the regulations under section 
507(c)(2) and (g).
    (b) Applicability of section 4943 and 4944 to split-interests 
trusts--(1) General rule. Under section 4947(b)(3), section 4943 and 
4944 do not apply to a split-interest trust described in section 
4947(a)(2) if:
    (i) All the income interest (and none of the remainder interest) of 
the trust is devoted solely to one or more of the purposes described in 
section 170(c)(2)(B) and all amounts in the trust for which a deduction 
was allowed under section 170, 545(b)(2), 556(b)(2), 642(c), 2055, 
2106(a)(2), or 2522 have an aggregate value (at the time for which the 
deduction was allowed) of not more than 60 percent of the aggregate fair 
market value of all amounts in the trust (after the payment of estate 
taxes and all other liabilities), or
    (ii) A deduction was allowed under section 170, 545(b)(2), 
556(b)(2), 642(c), 2055, 2106(a)(2) or 2522 for amounts payable under 
the terms of the trust to every remainder beneficiary, but not to any 
income beneficiary.

This (1) shall apply to a trust described in paragraph (b)(1)(ii) of 
this section only if all amounts payable under the terms of the trust to 
every remainder beneficiary are to be devoted solely to one or more of 
the purposes described in section 170(c)(2)(B). After the expiration of 
all income interests in a trust described in paragraph (b)(1)(ii) of 
this section, the trust shall become subject to section 4947(a)(1) under 
Sec.  53.4947-1(b)(2), and section 4947(b)(3) shall no longer apply to 
the trust. A pooled income fund described in section 642(c)(5) will 
generally meet the requirements of paragraph (b)(1)(ii) of this section, 
as will a charitable remainder trust described in section 664(d)(1), if 
in either case it does not make payments to any income beneficiary 
described in section 170(c).
    (2) Definitions. (i) For purposes of section 4947(b)(3)(A), the term 
``income interest'' shall include an interest in property transferred in 
trust which is in the form of a guaranteed annuity interest or unitrust 
interest as described in Sec.  1.170A-6(c), Sec.  20.2055-2(e)(2) or 
Sec.  25.2522(c)-3(c)(2) and the term ``remainder interest'' shall 
include an interest which succeeds an ``income interest'' within the 
meaning of this (i).
    (ii) For purposes of section 4947(b)(3)(B), the term ``income 
beneficiary'' shall include a recipient of payments described in section 
642(c)(5)(F) from a pooled income fund, payments described in section 
664(d)(1)(A) from a charitable remainder annuity trust, or payments 
described in section 664(d)(2)(A) or (3) from a charitable remainder 
unitrust. The term ``remainder beneficiary'' shall include a beneficiary 
of a remainder interest described in section 642(c)(5) or 664(d)(1)(C) 
or (2)(C).
    (c) Effective date. Except as otherwise provided in Sec. Sec.  
53.4947-1 and 53.4947-2 and the regulations under sections 508 (d) and 
(e), Sec. Sec.  53.4947-1 and 53.4947-2 shall take effect on January 1, 
1970.

(Secs. 4947 and 7805, Internal Revenue Code of 1954 (68A Stat. 917: 26 
U.S.C. 7805))

[T.D. 7431, 41 FR 35515, Aug. 23, 1976]



Subpart I_Tax on Investment Income of and Denial of Exemption to Certain 
                          Foreign Organizations



Sec.  53.4948-1  Application of taxes and denial of exemption 
with respect to certain foreign organizations.

    (a) Tax on income of certain foreign organizations. (1) In lieu of 
the tax imposed by section 4940 and the regulations thereunder, there is 
hereby imposed for each taxable year beginning after December 31, 1969, 
on the gross investment income (within the meaning of section 4940(c)(2) 
and the regulations thereunder) derived from sources within the United 
States (within the meaning of section 861 and the regulations 
thereunder) by every foreign organization which is a private foundation 
(within the meaning of section 509 and the regulations thereunder) and 
exempt from taxation under section 501(a) for the taxable year a tax 
equal to 4 percent of such income, except as provided in subparagraph 
(3) of this paragraph. The tax (if any) will be reported on the form the 
foundation is required to file under section 6033 and will be paid 
annually for the taxable year, at the time prescribed for filing

[[Page 220]]

such annual return (determined without regard to any extension of time 
for filing). For purposes of this section, the term foreign organization 
means any organization which is not described in section 170(o)(2)(A).
    (2) With respect to the deduction and withholding of tax imposed by 
section 4948(a), see section 1443(b) and the regulations thereunder.
    (3) Whenever there exists a tax treaty between the United States and 
a foreign country, and a foreign private foundation subject to section 
4948(a) is a resident of such country or is otherwise entitled to the 
benefits of such treaty (whether or not such benefits are available to 
all residents), if the treaty provides that any item or items (or all 
items with respect to an organization exempt from income taxation) of 
gross investment income (within the meaning of section 4940(c)(2)) shall 
be exempt from income tax, such item or items shall not be taken into 
account by such foundation in computing the tax to be imposed under 
section 4948(a) for any taxable year for which the treaty is effective.
    (b) Certain sections inapplicable. Section 507 (relating to 
termination of private foundation status), section 508 (relating to 
special rules with respect to section 501(c)(3) organizations), and 
Chapter 42 (other than section 4948) of the Code shall not apply to any 
foreign organization which from the date of its creation has received at 
least 85 percent of its support (as defined in section 509(d), other 
than section 509(d)(4)) from sources outside the United States. For 
purposes of this paragraph, gifts, grants, contributions, or membership 
fees directly or indirectly from a United States person (as defined in 
section 7701(a)(30)) are from sources within the United States.
    (c) Denial of exemption to foreign organizations engaged in 
prohibited transactions--(1) In general. A foreign private foundation 
described in section 4948(b) and paragraph (b) of this section shall not 
be exempt from taxation under section 501(a) if it has engaged in a 
prohibited transaction (within the meaning of subparagraph (2) of this 
paragraph) after December 31, 1969.
    (2) Prohibited transactions. (i) For purposes of this section, the 
term ``prohibited transaction'' means any act or failure to act (other 
than with respect to section 4942(e), relating to minimum investment 
return) which would subject a foreign private foundation described in 
paragraph (b) of this section, or a disqualified person (as defined in 
section 4946) with respect thereto, to liability for a penalty under 
section 6684 (relating to assessable penalties with respect to liability 
for tax under Chapter 42) or a tax under section 507 (relating to 
termination of private foundation status) if such foreign private 
foundation were a domestic private foundation.
    (ii) For purposes of subdivision (i) of this subparagraph:
    (a) Approval by an appropriate foreign government of grants by the 
foreign private foundation to individuals is sufficient to satisfy the 
requirements of section 4945(g) and the regulations thereunder.
    (b) In determining whether a grantee of the foreign organization is 
a private foundation which is not an operating foundation for purposes 
of section 4942(g)(1)(A)(ii) or is an organization which is not 
described in section 509(a) (1), (2), or (3) for purposes of section 
4945 (d)(4) and (h), a determination made by such foreign organization 
will be accepted if such determination is made in good faith after a 
reasonable effort to identify the status of its grantee.
    (iii) For purposes of subdivision (i) of this subparagraph, in order 
for an act or failure to act (without regard to section 4942(e)) to be 
treated as a prohibited transaction under section 4948(c)(2) by reason 
of the application of section 6684(1), there must have been a prior act 
or failure to act (without regard to section 4942(e)), which:
    (a) Would have resulted in liability for tax under Chapter 42 (other 
than section 4940 or 4948(a)) if the foreign private foundation had been 
a domestic private foundation, and
    (b) Had been the subject of a warning from the Commissioner that a 
second act or failure to act (without regard to section 4942(e)) would 
result in a prohibited transaction.

The second act or failure to act (with respect to which a warning 
described in subparagraph (3)(i) of this paragraph is

[[Page 221]]

given) need not be related to the prior act or failure to act with 
respect to which a warning from the Commissioner was given under (b) of 
this subdivision.
    (3) Taxable years affected. (i) Except as provided in subdivision 
(ii) of this subparagraph, a foreign private foundation described in 
paragraph (b) of this section shall be denied exemption from taxation 
under section 501(a) by reason of subparagraph (1) of this paragraph for 
all taxable years beginning with the taxable year during which it is 
notified by the Commissioner that it has engaged in a prohibited 
transaction. The Commissioner shall publish such notice in the Federal 
Register on the day on which he so notifies such foreign private 
foundation. In the case of an act or failure to act (without regard to 
section 4942(e)) which would result in a penalty under section 6684(1) 
if the foreign private foundation were a domestic private foundation, 
before giving notice under this subdivision the Commissioner shall warn 
such foreign private foundation that such act or failure to act may be 
treated as a prohibited transaction. However, such act or failure to act 
will not be treated as a prohibited transaction if it is corrected 
(within the meaning of Chapter 42 and the regulations thereunder) within 
90 days after the making of such warning.
    (ii)(a) Any foreign private foundation described in paragraph (b) of 
this section which is denied exemption from taxation under section 
501(a) by reason of subparagraph (1) of this paragraph may, with respect 
to the second taxable year following the taxable year in which notice is 
given under subdivision (i) of this subparagraph (or any taxable year 
subsequent to such second taxable year), file a request for exemption 
from taxation under section 501(a) on Form 1023. In addition to the 
information generally required of an organization requesting exemption 
as an organization described in section 501(a), a request under this 
subdivision must contain or have attached to it a written declaration, 
made under the penalties of perjury, by a principal officer of such 
organization authorized to make such declaration, that the organization 
will not knowingly again engage in a prohibited transaction.
    (b) If the Commissioner is satisfied that such organization will not 
knowingly again engage in a prohibited transaction and that the 
organization has satisfied all other requirements under section 501, the 
organization will be so notified in writing. In such case the 
organization shall not, with respect to taxable years beginning with the 
taxable year with respect to which a request under this subdivision is 
filed, be denied exemption from taxation under section 501(a) by reason 
of any prohibited transaction which was engaged in before the date on 
which notice was given under subdivision (i) of this subparagraph. 
Section 4948(c) provides that an organization denied exemption under 
such section will not be exempt from taxation under section 501(a) for 
the taxable year in which notice of loss of exemption is given and at 
least one immediately subsequent taxable year.
    (d) Disallowance of certain charitable deductions. No gift, bequest, 
legacy, devise, or transfer shall be allowed as a deduction under 
section 170, 545(b)(2), 556(b)(2), 642(c), 2055, 2106(a)(2), or 2522, if 
made:
    (1) To a foreign private foundation described in paragraph (b) of 
this section after the date on which the Commissioner publishes notice 
under paragraph (c)(3)(i) of this section that he has notified such 
organization that it has engaged in a prohibited transaction, and
    (2) In a taxable year of such organization for which it is not 
exempt from taxation under section 501(a) by reason of paragraph (c)(1) 
of this section.

For purposes of this paragraph, a bequest, legacy, devise, or transfer 
under section 2055 or 2106(a)(2) shall be treated as made on the date of 
death of the decedent. For example, assume that an individual gives 
money to a foreign private foundation described in section 4948(b) in 
January 1970, January 1971, and January 1972. The organization has a 
taxable year from June 1 through May 31. In February 1970, notice is 
duly published that the foreign organization has engaged in a prohibited 
transaction. In December 1970, the organization duly submits a request 
for exemption under paragraph (c)(3)(ii)(a) of this

[[Page 222]]

section which is granted for the taxable year ending May 31, 1972. The 
January 1970 gift is allowable as a deduction under section 2522 since 
it was made before the notice (February 1970). The January 1971 gift is 
not allowable as a deduction because the taxable year ending May 31, 
1971, is a nonexempt year (the first taxable year subsequent to the 
taxable year of the notice) for the foreign organization. The January 
1972 gift is allowable as a deduction under section 2522 because the 
taxable year ending May 31, 1972, is an exempt year for the 
organization.

[T.D. 7218, 37 FR 23918, Nov. 10, 1972; 37 FR 24748, Nov. 21, 1972; 38 
FR 4324, Feb. 13, 1973]



             Subpart J_Black Lung Benefit Trust Excise Taxes

    Source: T.D. 7644, 44 FR 52198, Sept. 7, 1979, unless otherwise 
noted.



Sec.  53.4951-1  Black lung trusts--taxes on self-dealing.

    (a) In general. Section 4951 contains provisions that correspond to 
provisions of section 4941 (relating to taxes on foundation self-
dealing) and section 4946 (relating to definitions and special rules). 
Regulations and rulings under these corresponding provisions apply to 
section 4951 where appropriate.
    (b) Transfer of property to trust. A transfer of personal property 
without consideration to a trust for which a deduction is allowable 
under section 192 does not constitute a sale or exchange for purposes of 
section 4951 unless the property is subject to a mortgage or similar 
lien within section 4951(d)(2)(A). The transfer to a trust of a note or 
other evidence of indebtedness constitutes an extension of credit to the 
obligor for purposes of section 4951(d)(1)(B).
    (c) Deposits. A time or demand deposit made with a bank or credit 
union that is a trustee or other disqualified person with respect to a 
trust constitutes a lending of money for purposes of section 
4951(d)(1)(B) even though the deposit is of a kind generally authorized 
for investments by the trust.
    (d) Trustee. The term ``trustee'' as used in section 4951(e)(5)(B) 
includes any person having powers or responsibilities with respect to a 
trust similar to those of trustees.
    (e) Misallocation of insurance premium. Under section 
501(c)(21)(A)(ii) and Sec.  1.501(c)(21)-1(d), a trust may pay a portion 
of a premium for insurance which covers both black lung liabilities and 
other liabilities, so long as the requirements of section 
501(c)(21)(A)(i) concerning allocation of the total premium are met. 
However, if an insurance company misallocates the total premium in a 
manner which benefits a disqualified person, the amount of misallocation 
constitutes a use of trust assets for the benefit of the disqualified 
person within section 4951(d)(1)(D). For these purposes, it is 
irrelevant whether the combination of insurance is sold under one policy 
or more than one policy.
    (f) Effective date. Section 4951 applies with respect to acts that 
occur after December 31, 1977, in and for trust taxable years beginning 
after December 31, 1977.



Sec.  53.4952-1  Black lung trusts--taxes on taxable expenditures.

    (a) In general. Section 4952 contains provisions that generally 
correspond to provisions of section 4945 (relating to taxes on taxable 
expenditures by private foundations) and section 4946 (relating to 
definitions and special rules). Regulations and rulings under these 
corresponding provisions apply to section 4952 where appropriate. See 
section 4952(e)(1) for the definition of correction.
    (b) Unauthorized investments. The term ``taxable expenditure'' in 
section 4952(d) includes an investment that is not authorized under 
section 501(c)(21)(B)(ii).
    (c) Effective date. Section 4952 applies with respect to 
expenditures made after December 31, 1977, in and for trust taxable 
years beginning after December 31, 1977.



                   Subpart K_Second Tier Excise Taxes

    Source: T.D. 8084, 51 FR 16303, May 2, 1986, unless otherwise noted.

[[Page 223]]



Sec.  53.4955-1  Tax on political expenditures.

    (a) Relationship between section 4955 excise taxes and substantive 
standards for exemption under section 501(c)(3). The excise taxes 
imposed by section 4955 do not affect the substantive standards for tax 
exemption under section 501(c)(3), under which an organization is 
described in section 501(c)(3) only if it does not participate or 
intervene in any political campaign on behalf of any candidate for 
public office.
    (b) Imposition of initial taxes on organization managers--(1) In 
general. The excise tax under section 4955(a)(2) on the agreement of any 
organization manager to the making of a political expenditure by a 
section 501(c)(3) organization is imposed only in cases where--
    (i) A tax is imposed by section 4955(a)(1);
    (ii) The organization manager knows that the expenditure to which 
the manager agrees is a political expenditure; and
    (iii) The agreement is willful and is not due to reasonable cause.
    (2) Type of organization managers covered--(i) In general. The tax 
under section 4955(a)(2) is imposed only on those organization managers 
who are authorized to approve, or to exercise discretion in recommending 
approval of, the making of the expenditure by the organization and on 
those organization managers who are members of a group (such as the 
organization's board of directors or trustees) which is so authorized.
    (ii) Officer. For purposes of section 4955(f)(2)(A), a person is an 
officer of an organization if--
    (A) That person is specifically so designated under the certificate 
of incorporation, bylaws, or other constitutive documents of the 
foundation; or
    (B) That person regularly exercises general authority to make 
administrative or policy decisions on behalf of the organization. 
Independent contractors, acting in a capacity as attorneys, accountants, 
and investment managers and advisors, are not officers. With respect to 
any expenditure, any person described in this paragraph (b)(2)(ii)(B) 
who has authority merely to recommend particular administrative or 
policy decisions, but not to implement them without approval of a 
superior, is not an officer.
    (iii) Employee. For purposes of section 4955(f)(2)(B), an individual 
rendering services to an organization is an employee of the organization 
only if that individual is an employee within the meaning of section 
3121(d)(2). With respect to any expenditure, an employee (other than an 
officer, director, or trustee of the organization) is described in 
section 4955(f)(2)(B) only if he or she has final authority or 
responsibility (either officially or effectively) with respect to such 
expenditure.
    (3) Type of agreement required. An organization manager agrees to 
the making of a political expenditure if the manager manifests approval 
of the expenditure which is sufficient to constitute an exercise of the 
organization manager's authority to approve, or to exercise discretion 
in recommending approval of, the making of the expenditure by the 
organization. The manifestation of approval need not be the final or 
decisive approval on behalf of the organization.
    (4) Knowing--(i) General rule. For purposes of section 4955, an 
organization manager is considered to have agreed to an expenditure 
knowing that it is a political expenditure only if--
    (A) The manager has actual knowledge of sufficient facts so that, 
based solely upon these facts, the expenditure would be a political 
expenditure;
    (B) The manager is aware that such an expenditure under these 
circumstances may violate the provisions of federal tax law governing 
political expenditures; and
    (C) The manager negligently fails to make reasonable attempts to 
ascertain whether the expenditure is a political expenditure, or the 
manager is aware that it is a political expenditure.
    (ii) Amplification of general rule. For purposes of section 4955, 
knowing does not mean having reason to know. However, evidence tending 
to show that an organization manager has reason to know of a particular 
fact or particular rule is relevant in determining whether the manager 
had actual knowledge of the fact or rule. Thus, for example, evidence 
tending to show that an organization manager has reason to know of 
sufficient facts so that, based solely

[[Page 224]]

upon those facts, an expenditure would be a political expenditure is 
relevant in determining whether the manager has actual knowledge of the 
facts.
    (5) Willful. An organization manager's agreement to a political 
expenditure is willful if it is voluntary, conscious, and intentional. 
No motive to avoid the restrictions of the law or the incurrence of any 
tax is necessary to make an agreement willful. However, an organization 
manager's agreement to a political expenditure is not willful if the 
manager does not know that it is a political expenditure.
    (6) Due to reasonable cause. An organization manager's actions are 
due to reasonable cause if the manager has exercised his or her 
responsibility on behalf of the organization with ordinary business care 
and prudence.
    (7) Advice of counsel. An organization manager's agreement to an 
expenditure is ordinarily not considered knowing or willful and is 
ordinarily considered due to reasonable cause if the manager, after full 
disclosure of the factual situation to legal counsel (including house 
counsel), relies on the advice of counsel expressed in a reasoned 
written legal opinion that an expenditure is not a political expenditure 
under section 4955 (or that expenditures conforming to certain 
guidelines are not political expenditures). For this purpose, a written 
legal opinion is considered reasoned even if it reaches a conclusion 
which is subsequently determined to be incorrect, so long as the opinion 
addresses itself to the facts and applicable law. A written legal 
opinion is not considered reasoned if it does nothing more than recite 
the facts and express a conclusion. However, the absence of advice of 
counsel with respect to an expenditure does not, by itself, give rise to 
any inference that an organization manager agreed to the making of the 
expenditure knowingly, willfully, or without reasonable cause.
    (8) Cross reference. For provisions relating to the burden of proof 
in cases involving the issue of whether an organization manager has 
knowingly agreed to the making of a political expenditure, see section 
7454(b).
    (c) Amplification of political expenditure definition--(1) General 
rule. Any expenditure that would cause an organization that makes the 
expenditure to be classified as an action organization by reason of 
Sec.  1.501(c)(3)-1(c)(3)(iii) of this chapter is a political 
expenditure within the meaning of section 4955(d)(1).
    (2) Other political expenditures--(i) For purposes of section 
4955(d)(2), an organization is effectively controlled by a candidate or 
prospective candidate only if the individual has a continuing, 
substantial involvement in the day-to-day operations or management of 
the organization. An organization is not effectively controlled by a 
candidate or a prospective candidate merely because it is affiliated 
with the candidate, or merely because the candidate knows the directors, 
officers, or employees of the organization. The effectively controlled 
test is not met merely because the organization carries on its research, 
study, or other educational activities with respect to subject matter or 
issues in which the individual is interested or with which the 
individual is associated.
    (ii) For purposes of section 4955(d)(2), a determination of whether 
the primary purpose of an organization is promoting the candidacy or 
prospective candidacy of an individual for public office is made on the 
basis of all the facts and circumstances. The factors to be considered 
include whether the surveys, studies, materials, etc. prepared by the 
organization are made available only to the candidate or are made 
available to the general public; and whether the organization pays for 
speeches and travel expenses for only one individual, or for speeches or 
travel expenses of several persons. The fact that a candidate or 
prospective candidate utilizes studies, papers, materials, etc., 
prepared by the organization (such as in a speech by the candidate) is 
not to be considered as a factor indicating that the organization has a 
purpose of promoting the candidacy or prospective candidacy of that 
individual where such studies, papers, materials, etc. are not made 
available only to that individual.
    (iii) Expenditures for voter registration, voter turnout, or voter 
education constitute other expenses, treated as

[[Page 225]]

political expenditures by reason of section 4955(d)(2)(E), only if the 
expenditures violate the prohibition on political activity provided in 
section 501(c)(3).
    (d) Abatement, refund, or no assessment of initial tax. No initial 
(first-tier) tax will be imposed under section 4955(a), or the initial 
tax will be abated or refunded, if the organization or an organization 
manager establishes to the satisfaction of the IRS that--
    (1) The political expenditure was not willful and flagrant; and
    (2) The political expenditure was corrected.
    (e) Correction--(1) Recovery of expenditure. For purposes of section 
4955(f)(3) and this section, correction of a political expenditure is 
accomplished by recovering part or all of the expenditure to the extent 
recovery is possible, and, where full recovery cannot be accomplished, 
by any additional corrective action which the Commissioner may 
prescribe. The organization making the political expenditure is not 
under any obligation to attempt to recover the expenditure by legal 
action if the action would in all probability not result in the 
satisfaction of execution on a judgment.
    (2) Establishing safeguards. Correction of a political expenditure 
must also involve the establishment of sufficient safeguards to prevent 
future political expenditures by the organization. The determination of 
whether safeguards are sufficient to prevent future political 
expenditures by the organization is made by the District Director.
    (f) Effective date. This section is effective December 5, 1995.

[T.D. 8628, 60 FR 62210, Dec. 5, 1995]



Sec.  53.4958-0  Table of contents.

    This section lists the major captions contained in Sec. Sec.  
53.4958-1 through 53.4958-8.

          Sec.  53.4958-1 Taxes on excess benefit transactions

    (a) In general.
    (b) Excess benefit defined.
    (c) Taxes paid by disqualified person.
    (1) Initial tax.
    (2) Additional tax on disqualified person.
    (i) In general.
    (ii) Taxable period.
    (iii) Abatement if correction during the correction period.
    (d) Tax paid by organization managers.
    (1) In general.
    (2) Organization manager defined.
    (i) In general.
    (ii) Special rule for certain committee members.
    (3) Participation.
    (4) Knowing.
    (i) In general.
    (ii) Amplification of general rule.
    (iii) Reliance on professional advice.
    (iv) Satisfaction of rebuttable presumption of reasonableness.
    (5) Willful.
    (6) Due to reasonable cause.
    (7) Limits on liability for management.
    (8) Joint and several liability.
    (9) Burden of proof.
    (e) Date of occurrence.
    (1) In general.
    (2) Special rules.
    (3) Statute of limitations rules.
    (f) Effective date for imposition of taxes.
    (1) In general.
    (2) Existing binding contracts.

    Sec.  53.4958-2 Definition of applicable tax-exempt organization

    (a) Organizations described in section 501(c)(3) or (4) and exempt 
from tax under section 501(a).
    (1) In general.
    (2) Exceptions from definition of applicable tax-exempt 
organization.
    (i) Private foundation.
    (ii) Governmental unit or affiliate.
    (3) Organizations described in section 501(c)(3).
    (4) Organizations described in section 501(c)(4).
    (5) Effect of non-recognition or revocation of exempt status.
    (b) Special rules.
    (1) Transition rule for lookback period.
    (2) Certain foreign organizations.

            Sec.  53.4958-3 Definition of disqualified person

    (a) In general.
    (1) Scope of definition.
    (2) Transition rule for lookback period.
    (b) Statutory categories of disqualified persons.
    (1) Family members.
    (2) Thirty-five percent controlled entities.
    (i) In general.
    (ii) Combined voting power.
    (iii) Constructive ownership rules.
    (A) Stockholdings.
    (B) Profits or beneficial interest.
    (c) Persons having substantial influence.
    (1) Voting members of the governing body.
    (2) Presidents, chief executive officers, or chief operating 
officers.
    (3) Treasurers and chief financial officers.
    (4) Persons with a material financial interest in a provider-
sponsored organization.

[[Page 226]]

    (d) Persons deemed not to have substantial influence.
    (1) Tax-exempt organizations described in section 501(c)(3).
    (2) Certain section 501(c)(4) organizations.
    (3) Employees receiving economic benefits of less than a specified 
amount in a taxable year.
    (e) Facts and circumstances govern in all other cases.
    (1) In general.
    (2) Facts and circumstances tending to show substantial influence.
    (3) Facts and circumstances tending to show no substantial 
influence.
    (f) Affiliated organizations.
    (g) Examples.

               Sec.  53.4958-4 Excess benefit transaction

    (a) Definition of excess benefit transaction.
    (1) In general.
    (2) Economic benefit provided indirectly.
    (i) In general.
    (ii) Through a controlled entity.
    (A) In general.
    (B) Definition of control.
    (1) In general.
    (2) Constructive ownership.
    (iii) Through an intermediary.
    (iv) Examples.
    (3) Exception for fixed payments made pursuant to an initial 
contract.
    (i) In general.
    (ii) Fixed payment.
    (A) In general.
    (B) Special rules.
    (iii) Initial contract.
    (iv) Substantial performance required.
    (v) Treatment as a new contract.
    (vi) Evaluation of non-fixed payments.
    (vii) Examples.
    (4) Certain economic benefits disregarded for purposes of section 
4958.
    (i) Nontaxable fringe benefits.
    (ii) Expense reimbursement payments pursuant to accountable plans.
    (iii) Certain economic benefits provided to a volunteer for the 
organization.
    (iv) Certain economic benefits provided to a member of, or donor to, 
the organization.
    (v) Economic benefits provided to a charitable beneficiary.
    (vi) Certain economic benefits provided to a governmental unit.
    (5) Exception for certain payments made pursuant to an exemption 
granted by the Department of Labor under ERISA.
    (b) Valuation standards.
    (1) In general.
    (i) Fair market value of property.
    (ii) Reasonable compensation.
    (A) In general.
    (B) Items included in determining the value of compensation for 
purposes of determining reasonableness under section 4958.
    (C) Inclusion in compensation for reasonableness determination does 
not govern income tax treatment.
    (2) Timing of reasonableness determination.
    (i) In general.
    (ii) Treatment as a new contract.
    (iii) Examples.
    (c) Establishing intent to treat economic benefit as consideration 
for the performance of services.
    (1) In general.
    (2) Nontaxable benefits.
    (3) Contemporaneous substantiation.
    (i) Reporting of benefit.
    (A) In general.
    (B) Failure to report due to reasonable cause.
    (ii) Other written contemporaneous evidence.
    (4) Examples.

Sec.  53.4958-5 Transaction in which the amount of the economic benefit 
    is determined in whole or in part by the revenues of one or more 
               activities of the organization. [Reserved]

  Sec.  53.4958-6 Rebuttable presumption that a transaction is not an 
                       excess benefit transaction.

    (a) In general.
    (b) Rebutting the presumption.
    (c) Requirements for invoking rebuttable presumption.
    (1) Approval by an authorized body.
    (i) In general.
    (ii) Individuals not included on authorized body.
    (iii) Absence of conflict of interest.
    (2) Appropriate data as to comparability.
    (i) In general.
    (ii) Special rule for compensation paid by small organizations.
    (iii) Application of special rule for small organizations.
    (iv) Examples.
    (3) Documentation.
    (d) No presumption with respect to non-fixed payments until amounts 
are determined.
    (1) In general.
    (2) Special rule for certain non-fixed payments subject to a cap.
    (e) No inference from absence of presumption.
    (f) Period of reliance on rebuttable presumption.

                       Sec.  53.4958-7 Correction.

    (a) In general.
    (b) Form of correction.
    (1) Cash or cash equivalents.
    (2) Anti-abuse rule.
    (3) Special rule relating to nonqualified deferred compensation.
    (4) Return of specific property.
    (i) In general.

[[Page 227]]

    (ii) Payment not equal to correction amount.
    (iii) Disqualified person may not participate in decision.
    (c) Correction amount.
    (d) Correction where contract has been partially performed.
    (e) Correction in the case of an applicable tax-exempt organization 
that has ceased to exist, or is no longer tax-exempt.
    (1) In general.
    (2) Section 501(c)(3) organizations.
    (3) Section 501(c)(4) organizations.
    (f) Examples.

                     Sec.  53.4958-8 Special rules.

    (a) Substantive requirements for exemption still apply.
    (b) Interaction between section 4958 and section 7611 rules for 
church tax inquiries and examinations.
    (c) Other substantiation requirements.

[T.D. 8978, 67 FR 3083, Jan. 23, 2002]



Sec.  53.4958-1  Taxes on excess benefit transactions.

    (a) In general. Section 4958 imposes excise taxes on each excess 
benefit transaction (as defined in section 4958(c) and Sec.  53.4958-4) 
between an applicable tax-exempt organization (as defined in section 
4958(e) and Sec.  53.4958-2) and a disqualified person (as defined in 
section 4958(f)(1) and Sec.  53.4958-3). A disqualified person who 
receives an excess benefit from an excess benefit transaction is liable 
for payment of a section 4958(a)(1) excise tax equal to 25 percent of 
the excess benefit. If an initial tax is imposed by section 4958(a)(1) 
on an excess benefit transaction and the transaction is not corrected 
(as defined in section 4958(f)(6) and Sec.  53.4958-7) within the 
taxable period (as defined in section 4958(f)(5) and paragraph 
(c)(2)(ii) of this section), then any disqualified person who received 
an excess benefit from the excess benefit transaction on which the 
initial tax was imposed is liable for an additional tax of 200 percent 
of the excess benefit. An organization manager (as defined in section 
4958(f)(2) and paragraph (d) of this section) who participates in an 
excess benefit transaction, knowing that it was such a transaction, is 
liable for payment of a section 4958(a)(2) excise tax equal to 10 
percent of the excess benefit, unless the participation was not willful 
and was due to reasonable cause. If an organization manager also 
receives an excess benefit from an excess benefit transaction, the 
manager may be liable for both taxes imposed by section 4958(a).
    (b) Excess benefit defined. An excess benefit is the amount by which 
the value of the economic benefit provided by an applicable tax-exempt 
organization directly or indirectly to or for the use of any 
disqualified person exceeds the value of the consideration (including 
the performance of services) received for providing such benefit.
    (c) Taxes paid by disqualified person--(1) Initial tax. Section 
4958(a)(1) imposes a tax equal to 25 percent of the excess benefit on 
each excess benefit transaction. The section 4958(a)(1) tax shall be 
paid by any disqualified person who received an excess benefit from that 
excess benefit transaction. With respect to any excess benefit 
transaction, if more than one disqualified person is liable for the tax 
imposed by section 4958(a)(1), all such persons are jointly and 
severally liable for that tax.
    (2) Additional tax on disqualified person--(i) In general. Section 
4958(b) imposes a tax equal to 200 percent of the excess benefit in any 
case in which section 4958(a)(1) imposes a 25-percent tax on an excess 
benefit transaction and the transaction is not corrected (as defined in 
section 4958(f)(6) and Sec.  53.4958-7) within the taxable period (as 
defined in section 4958(f)(5) and paragraph (c)(2)(ii) of this section). 
If a disqualified person makes a payment of less than the full 
correction amount under the rules of Sec.  53.4958-7, the 200-percent 
tax is imposed only on the unpaid portion of the correction amount (as 
described in Sec.  53.4958-7(c)). The tax imposed by section 4958(b) is 
payable by any disqualified person who received an excess benefit from 
the excess benefit transaction on which the initial tax was imposed by 
section 4958(a)(1). With respect to any excess benefit transaction, if 
more than one disqualified person is liable for the tax imposed by 
section 4958(b), all such persons are jointly and severally liable for 
that tax.
    (ii) Taxable period. Taxable period means, with respect to any 
excess benefit transaction, the period beginning with the date on which 
the transaction occurs and ending on the earlier of--

[[Page 228]]

    (A) The date of mailing a notice of deficiency under section 6212 
with respect to the section 4958(a)(1) tax; or
    (B) The date on which the tax imposed by section 4958(a)(1) is 
assessed.
    (iii) Abatement if correction during the correction period. For 
rules relating to abatement of taxes on excess benefit transactions that 
are corrected within the correction period, as defined in section 
4963(e), see sections 4961(a), 4962(a), and the regulations thereunder. 
The abatement rules of section 4961 specifically provide for a 90-day 
correction period after the date of mailing a notice of deficiency under 
section 6212 with respect to the section 4958(b) 200-percent tax. If the 
excess benefit is corrected during that correction period, the 200-
percent tax imposed shall not be assessed, and if assessed the 
assessment shall be abated, and if collected shall be credited or 
refunded as an overpayment. For special rules relating to abatement of 
the 25-percent tax, see section 4962.
    (d) Tax paid by organization managers--(1) In general. In any case 
in which section 4958(a)(1) imposes a tax, section 4958(a)(2) imposes a 
tax equal to 10 percent of the excess benefit on the participation of 
any organization manager who knowingly participated in the excess 
benefit transaction, unless such participation was not willful and was 
due to reasonable cause. Any organization manager who so participated in 
the excess benefit transaction must pay the tax.
    (2) Organization manager defined--(i) In general. An organization 
manager is, with respect to any applicable tax-exempt organization, any 
officer, director, or trustee of such organization, or any individual 
having powers or responsibilities similar to those of officers, 
directors, or trustees of the organization, regardless of title. A 
person is an officer of an organization if that person--
    (A) Is specifically so designated under the certificate of 
incorporation, by-laws, or other constitutive documents of the 
organization; or
    (B) Regularly exercises general authority to make administrative or 
policy decisions on behalf of the organization. A contractor who acts 
solely in a capacity as an attorney, accountant, or investment manager 
or advisor, is not an officer. For purposes of this paragraph 
(d)(2)(i)(B), any person who has authority merely to recommend 
particular administrative or policy decisions, but not to implement them 
without approval of a superior, is not an officer.
    (ii) Special rule for certain committee members. An individual who 
is not an officer, director, or trustee, yet serves on a committee of 
the governing body of an applicable tax-exempt organization (or as a 
designee of the governing body described in Sec.  53.4958-6(c)(1)) that 
is attempting to invoke the rebuttable presumption of reasonableness 
described in Sec.  53.4958-6 based on the committee's (or designee's) 
actions, is an organization manager for purposes of the tax imposed by 
section 4958(a)(2).
    (3) Participation. For purposes of section 4958(a)(2) and this 
paragraph (d), participation includes silence or inaction on the part of 
an organization manager where the manager is under a duty to speak or 
act, as well as any affirmative action by such manager. An organization 
manager is not considered to have participated in an excess benefit 
transaction, however, where the manager has opposed the transaction in a 
manner consistent with the fulfillment of the manager's responsibilities 
to the applicable tax-exempt organization.
    (4) Knowing--(i) In general. For purposes of section 4958(a)(2) and 
this paragraph (d), a manager participates in a transaction knowingly 
only if the person--
    (A) Has actual knowledge of sufficient facts so that, based solely 
upon those facts, such transaction would be an excess benefit 
transaction;
    (B) Is aware that such a transaction under these circumstances may 
violate the provisions of Federal tax law governing excess benefit 
transactions; and
    (C) Negligently fails to make reasonable attempts to ascertain 
whether the transaction is an excess benefit transaction, or the manager 
is in fact aware that it is such a transaction.
    (ii) Amplification of general rule. Knowing does not mean having 
reason to know. However, evidence tending to show that a manager has 
reason to know of a particular fact or particular

[[Page 229]]

rule is relevant in determining whether the manager had actual knowledge 
of such a fact or rule. Thus, for example, evidence tending to show that 
a manager has reason to know of sufficient facts so that, based solely 
upon such facts, a transaction would be an excess benefit transaction is 
relevant in determining whether the manager has actual knowledge of such 
facts.
    (iii) Reliance on professional advice. An organization manager's 
participation in a transaction is ordinarily not considered knowing 
within the meaning of section 4958(a)(2), even though the transaction is 
subsequently held to be an excess benefit transaction, to the extent 
that, after full disclosure of the factual situation to an appropriate 
professional, the organization manager relies on a reasoned written 
opinion of that professional with respect to elements of the transaction 
within the professional's expertise. For purposes of section 4958(a)(2) 
and this paragraph (d), a written opinion is reasoned even though it 
reaches a conclusion that is subsequently determined to be incorrect so 
long as the opinion addresses itself to the facts and the applicable 
standards. However, a written opinion is not reasoned if it does nothing 
more than recite the facts and express a conclusion. The absence of a 
written opinion of an appropriate professional with respect to a 
transaction shall not, by itself, however, give rise to any inference 
that an organization manager participated in the transaction knowingly. 
For purposes of this paragraph, appropriate professionals on whose 
written opinion an organization manager may rely, are limited to--
    (A) Legal counsel, including in-house counsel;
    (B) Certified public accountants or accounting firms with expertise 
regarding the relevant tax law matters; and
    (C) Independent valuation experts who--
    (1) Hold themselves out to the public as appraisers or compensation 
consultants;
    (2) Perform the relevant valuations on a regular basis;
    (3) Are qualified to make valuations of the type of property or 
services involved; and
    (4) Include in the written opinion a certification that the 
requirements of paragraphs (d)(4)(iii)(C)(1) through (3) of this section 
are met.
    (iv) Satisfaction of rebuttable presumption of reasonableness. An 
organization manager's participation in a transaction is ordinarily not 
considered knowing within the meaning of section 4958(a)(2), even though 
the transaction is subsequently held to be an excess benefit 
transaction, if the appropriate authorized body has met the requirements 
of Sec.  53.4958-6(a) with respect to the transaction.
    (5) Willful. For purposes of section 4958(a)(2) and this paragraph 
(d), participation by an organization manager is willful if it is 
voluntary, conscious, and intentional. No motive to avoid the 
restrictions of the law or the incurrence of any tax is necessary to 
make the participation willful. However, participation by an 
organization manager is not willful if the manager does not know that 
the transaction in which the manager is participating is an excess 
benefit transaction.
    (6) Due to reasonable cause. An organization manager's participation 
is due to reasonable cause if the manager has exercised responsibility 
on behalf of the organization with ordinary business care and prudence.
    (7) Limits on liability for management. The maximum aggregate amount 
of tax collectible under section 4958(a)(2) and this paragraph (d) from 
organization managers with respect to any one excess benefit transaction 
is $10,000.
    (8) Joint and several liability. In any case where more than one 
person is liable for a tax imposed by section 4958(a)(2), all such 
persons shall be jointly and severally liable for the taxes imposed 
under section 4958(a)(2) with respect to that excess benefit 
transaction.
    (9) Burden of proof. For provisions relating to the burden of proof 
in cases involving the issue of whether an organization manager has 
knowingly participated in an excess benefit transaction, see section 
7454(b) and Sec.  301.7454-2 of this chapter. In these cases, the 
Commissioner bears the burden of proof.
    (e) Date of occurrence--(1) In general. Except as otherwise 
provided, an excess

[[Page 230]]

benefit transaction occurs on the date on which the disqualified person 
receives the economic benefit for Federal income tax purposes. When a 
single contractual arrangement provides for a series of compensation or 
other payments to (or for the use of) a disqualified person over the 
course of the disqualified person's taxable year (or part of a taxable 
year), any excess benefit transaction with respect to these aggregate 
payments is deemed to occur on the last day of the taxable year (or if 
the payments continue for part of the year, the date of the last payment 
in the series).
    (2) Special rules. In the case of benefits provided pursuant to a 
qualified pension, profit-sharing, or stock bonus plan, the transaction 
occurs on the date the benefit is vested. In the case of a transfer of 
property that is subject to a substantial risk of forfeiture or in the 
case of rights to future compensation or property (including benefits 
under a nonqualified deferred compensation plan), the transaction occurs 
on the date the property, or the rights to future compensation or 
property, is not subject to a substantial risk of forfeiture. However, 
where the disqualified person elects to include an amount in gross 
income in the taxable year of transfer pursuant to section 83(b), the 
general rule of paragraph (e)(1) of this section applies to the property 
with respect to which the section 83(b) election is made. Any excess 
benefit transaction with respect to benefits under a deferred 
compensation plan which vest during any taxable year of the disqualified 
person is deemed to occur on the last day of such taxable year. For the 
rules governing the timing of the reasonableness determination for 
deferred, contingent, and certain other noncash compensation, see Sec.  
53.4958-4(b)(2).
    (3) Statute of limitations rules. See sections 6501(e)(3) and (l) 
and the regulations thereunder for statute of limitations rules as they 
apply to section 4958 excise taxes.
    (f) Effective date for imposition of taxes--(1) In general. The 
section 4958 taxes imposed on excess benefit transactions or on 
participation in excess benefit transactions apply to transactions 
occurring on or after September 14, 1995.
    (2) Existing binding contracts. The section 4958 taxes do not apply 
to any transaction occurring pursuant to a written contract that was 
binding on September 13, 1995, and at all times thereafter before the 
transaction occurs. A written binding contract that is terminable or 
subject to cancellation by the applicable tax-exempt organization 
without the disqualified person's consent (including as the result of a 
breach of contract by the disqualified person) and without substantial 
penalty to the organization, is no longer treated as a binding contract 
as of the earliest date that any such termination or cancellation, if 
made, would be effective. If a binding written contract is materially 
changed, it is treated as a new contract entered into as of the date the 
material change is effective. A material change includes an extension or 
renewal of the contract (other than an extension or renewal that results 
from the person contracting with the applicable tax-exempt organization 
unilaterally exercising an option expressly granted by the contract), or 
a more than incidental change to any payment under the contract.

[T.D. 8978, 67 FR 3083, Jan. 23, 2002]



Sec.  53.4958-2  Definition of applicable tax-exempt organization.

    (a) Organizations described in section 501(c)(3) or (4) and exempt 
from tax under section 501(a)--(1) In general. An applicable tax-exempt 
organization is any organization that, without regard to any excess 
benefit, would be described in section 501(c)(3) or (4) and exempt from 
tax under section 501(a). An applicable tax-exempt organization also 
includes any organization that was described in section 501(c)(3) or (4) 
and was exempt from tax under section 501(a) at any time during a five-
year period ending on the date of an excess benefit transaction (the 
lookback period).
    (2) Exceptions from definition of applicable tax-exempt 
organization--(i) Private foundation. A private foundation as defined in 
section 509(a) is not an applicable tax-exempt organization for section 
4958 purposes.
    (ii) Governmental unit or affiliate. A governmental unit or an 
affiliate of a

[[Page 231]]

governmental unit is not an applicable tax-exempt organization for 
section 4958 purposes if it is--
    (A) Exempt from (or not subject to) taxation without regard to 
section 501(a); or
    (B) Relieved from filing an annual return pursuant to the authority 
of Sec.  1.6033-2(g)(6).
    (3) Organizations described in section 501(c)(3). An organization is 
described in section 501(c)(3) for purposes of section 4958 only if the 
organization--
    (i) Provides the notice described in section 508; or
    (ii) Is described in section 501(c)(3) and specifically is excluded 
from the requirements of section 508 by that section.
    (4) Organizations described in section 501(c)(4). An organization is 
described in section 501(c)(4) for purposes of section 4958 only if the 
organization--
    (i) Has applied for and received recognition from the Internal 
Revenue Service as an organization described in section 501(c)(4); or
    (ii) Has filed an application for recognition under section 
501(c)(4) with the Internal Revenue Service, has filed an annual 
information return as a section 501(c)(4) organization under the 
Internal Revenue Code or regulations promulgated thereunder, or has 
otherwise held itself out as being described in section 501(c)(4) and 
exempt from tax under section 501(a).
    (5) Effect of non-recognition or revocation of exempt status. An 
organization is not described in paragraph (a)(3) or (4) of this section 
during any period covered by a final determination or adjudication that 
the organization is not exempt from tax under section 501(a) as an 
organization described in section 501(c)(3) or (4), so long as that 
determination or adjudication is not based upon participation in 
inurement or one or more excess benefit transactions. However, the 
organization may be an applicable tax-exempt organization for that 
period as a result of the five-year lookback period described in 
paragraph (a)(1) of this section.
    (6) Examples. The following examples illustrate the principles of 
this section, which defines an applicable tax-exempt organization for 
purposes of section 4958:

    Example 1. O is a nonprofit corporation formed under state law. O 
filed its application for recognition of exemption under section 
501(c)(3) within the time prescribed under section 508(a). In its 
application, O described its plans for purchasing property from some of 
its directors at prices that would exceed fair market value. After 
reviewing the application, the IRS determined that because of the 
proposed property purchase transactions, O failed to establish that it 
met the requirements for an organization described in section 501(c)(3). 
Accordingly, the IRS denied O's application. While O's application was 
pending, O engaged in the purchase transactions described in its 
application at prices that exceeded the fair market values of the 
properties. Although these transactions would constitute excess benefit 
transactions under section 4958, because the IRS never recognized O as 
an organization described in section 501(c)(3), O was never an 
applicable tax-exempt organization under section 4958. Therefore, these 
transactions are not subject to the excise taxes provided in section 
4958.
    Example 2. O is a nonprofit corporation formed under state law. O 
files its application for recognition of exemption under section 
501(c)(3) within the time prescribed under section 508(a). The IRS 
issues a favorable determination letter in Year 1 that recognizes O as 
an organization described in section 501(c)(3). Subsequently, in Year 5 
of O's operations, O engages in certain transactions that constitute 
excess benefit transactions under section 4958 and violate the 
proscription against inurement under section 501(c)(3) and Sec.  
1.501(c)(3)-1(c)(2). The IRS examines the Form 990, ``Return of 
Organization Exempt From Income Tax'', that O filed for Year 5. After 
considering all the relevant facts and circumstances in accordance with 
Sec.  1.501(c)(3)-1(f), the IRS concludes that O is no longer described 
in section 501(c)(3) effective in Year 5. The IRS does not examine the 
Forms 990 that O filed for its first four years of operations and, 
accordingly, does not revoke O's exempt status for those years. Although 
O's tax-exempt status is revoked effective in Year 5, under the lookback 
rules in paragraph (a)(1) of this section and Sec.  53.4958-3(a)(1) of 
this chapter, during the five-year period prior to the excess benefit 
transactions that occurred in Year 5, O was an applicable tax-exempt 
organization and O's directors were disqualified persons as to O. 
Therefore, the transactions between O and its directors during Year 5 
are subject to the applicable excise taxes provided in section 4958.

    (b) Special rules--(1) Transition rule for lookback period. In the 
case of any excess benefit transaction occurring before September 14, 
2000, the lookback period described in paragraph (a)(1) of

[[Page 232]]

this section begins on September 14, 1995, and ends on the date of the 
transaction.
    (2) Certain foreign organizations. A foreign organization, 
recognized by the Internal Revenue Service or by treaty, that receives 
substantially all of its support (other than gross investment income) 
from sources outside of the United States is not an organization 
described in section 501(c)(3) or (4) for purposes of section 4958.

[T.D. 8978, 67 FR 3083, Jan. 23, 2002, as amended by T.D. 9390, 73 FR 
16524, Mar. 28, 2008]



Sec.  53.4958-3  Definition of disqualified person.

    (a) In general--(1) Scope of definition. Section 4958(f)(1) defines 
disqualified person, with respect to any transaction, as any person who 
was in a position to exercise substantial influence over the affairs of 
an applicable tax-exempt organization at any time during the five-year 
period ending on the date of the transaction (the lookback period). 
Paragraph (b) of this section describes persons who are defined to be 
disqualified persons under the statute, including certain family members 
of an individual in a position to exercise substantial influence, and 
certain 35-percent controlled entities. Paragraph (c) of this section 
describes persons in a position to exercise substantial influence over 
the affairs of an applicable tax-exempt organization by virtue of their 
powers and responsibilities or certain interests they hold. Paragraph 
(d) of this section describes persons deemed not to be in a position to 
exercise substantial influence. Whether any person who is not described 
in paragraph (b), (c) or (d) of this section is a disqualified person 
with respect to a transaction for purposes of section 4958 is based on 
all relevant facts and circumstances, as described in paragraph (e) of 
this section. Paragraph (f) of this section describes special rules for 
affiliated organizations. Examples in paragraph (g) of this section 
illustrate these categories of persons.
    (2) Transition rule for lookback period. In the case of any excess 
benefit transaction occurring before September 14, 2000, the lookback 
period described in paragraph (a)(1) of this section begins on September 
14, 1995, and ends on the date of the transaction.
    (b) Statutory categories of disqualified persons--(1) Family 
members. A person is a disqualified person with respect to any 
transaction with an applicable tax-exempt organization if the person is 
a member of the family of a person who is a disqualified person 
described in paragraph (a) of this section (other than as a result of 
this paragraph) with respect to any transaction with the same 
organization. For purposes of the following sentence, a legally adopted 
child of an individual is treated as a child of such individual by 
blood. A person's family is limited to--
    (i) Spouse;
    (ii) Brothers or sisters (by whole or half blood);
    (iii) Spouses of brothers or sisters (by whole or half blood);
    (iv) Ancestors;
    (v) Children;
    (vi) Grandchildren;
    (vii) Great grandchildren; and
    (viii) Spouses of children, grandchildren, and great grandchildren.
    (2) Thirty-five percent controlled entities--(i) In general. A 
person is a disqualified person with respect to any transaction with an 
applicable tax-exempt organization if the person is a 35-percent 
controlled entity. A 35-percent controlled entity is--
    (A) A corporation in which persons described in this section (except 
in paragraphs (b)(2) and (d) of this section) own more than 35 percent 
of the combined voting power;
    (B) A partnership in which persons described in this section (except 
in paragraphs (b)(2) and (d) of this section) own more than 35 percent 
of the profits interest; or
    (C) A trust or estate in which persons described in this section 
(except in paragraphs (b)(2) and (d) of this section) own more than 35 
percent of the beneficial interest.
    (ii) Combined voting power. For purposes of this paragraph (b)(2), 
combined voting power includes voting power represented by holdings of 
voting stock, direct or indirect, but does not include voting rights 
held only as a director, trustee, or other fiduciary.
    (iii) Constructive ownership rules--(A) Stockholdings. For purposes 
of section

[[Page 233]]

4958(f)(3) and this paragraph (b)(2), indirect stockholdings are taken 
into account as under section 267(c), except that in applying section 
267(c)(4), the family of an individual shall include the members of the 
family specified in section 4958(f)(4) and paragraph (b)(1) of this 
section.
    (B) Profits or beneficial interest. For purposes of section 
4958(f)(3) and this paragraph (b)(2), the ownership of profits or 
beneficial interests shall be determined in accordance with the rules 
for constructive ownership of stock provided in section 267(c) (other 
than section 267(c)(3)), except that in applying section 267(c)(4), the 
family of an individual shall include the members of the family 
specified in section 4958(f)(4) and paragraph (b)(1) of this section.
    (c) Persons having substantial influence. A person who holds any of 
the following powers, responsibilities, or interests is in a position to 
exercise substantial influence over the affairs of an applicable tax-
exempt organization:
    (1) Voting members of the governing body. This category includes any 
individual serving on the governing body of the organization who is 
entitled to vote on any matter over which the governing body has 
authority.
    (2) Presidents, chief executive officers, or chief operating 
officers. This category includes any person who, regardless of title, 
has ultimate responsibility for implementing the decisions of the 
governing body or for supervising the management, administration, or 
operation of the organization. A person who serves as president, chief 
executive officer, or chief operating officer has this ultimate 
responsibility unless the person demonstrates otherwise. If this 
ultimate responsibility resides with two or more individuals (e.g., co-
presidents), who may exercise such responsibility in concert or 
individually, then each individual is in a position to exercise 
substantial influence over the affairs of the organization.
    (3) Treasurers and chief financial officers. This category includes 
any person who, regardless of title, has ultimate responsibility for 
managing the finances of the organization. A person who serves as 
treasurer or chief financial officer has this ultimate responsibility 
unless the person demonstrates otherwise. If this ultimate 
responsibility resides with two or more individuals who may exercise the 
responsibility in concert or individually, then each individual is in a 
position to exercise substantial influence over the affairs of the 
organization.
    (4) Persons with a material financial interest in a provider-
sponsored organization. For purposes of section 4958, if a hospital that 
participates in a provider-sponsored organization (as defined in section 
1855(e) of the Social Security Act, 42 U.S.C. 1395w-25) is an applicable 
tax-exempt organization, then any person with a material financial 
interest (within the meaning of section 501(o)) in the provider-
sponsored organization has substantial influence with respect to the 
hospital.
    (d) Persons deemed not to have substantial influence. A person is 
deemed not to be in a position to exercise substantial influence over 
the affairs of an applicable tax-exempt organization if that person is 
described in one of the following categories:
    (1) Tax-exempt organizations described in section 501(c)(3). This 
category includes any organization described in section 501(c)(3) and 
exempt from tax under section 501(a).
    (2) Certain section 501(c)(4) organizations. Only with respect to an 
applicable tax-exempt organization described in section 501(c)(4) and 
Sec.  53.4958-2(a)(4), this category includes any other organization so 
described.
    (3) Employees receiving economic benefits of less than a specified 
amount in a taxable year. This category includes, for the taxable year 
in which benefits are provided, any full- or part-time employee of the 
applicable tax-exempt organization who--
    (i) Receives economic benefits, directly or indirectly from the 
organization, of less than the amount referenced for a highly 
compensated employee in section 414(q)(1)(B)(i);
    (ii) Is not described in paragraph (b) or (c) of this section with 
respect to the organization; and
    (iii) Is not a substantial contributor to the organization within 
the meaning of section 507(d)(2)(A), taking into account only 
contributions received by the organization during its current

[[Page 234]]

taxable year and the four preceding taxable years.
    (e) Facts and circumstances govern in all other cases--(1) In 
general. Whether a person who is not described in paragraph (b), (c) or 
(d) of this section is a disqualified person depends upon all relevant 
facts and circumstances.
    (2) Facts and circumstances tending to show substantial influence. 
Facts and circumstances tending to show that a person has substantial 
influence over the affairs of an organization include, but are not 
limited to, the following--
    (i) The person founded the organization;
    (ii) The person is a substantial contributor to the organization 
(within the meaning of section 507(d)(2)(A)), taking into account only 
contributions received by the organization during its current taxable 
year and the four preceding taxable years;
    (iii) The person's compensation is primarily based on revenues 
derived from activities of the organization, or of a particular 
department or function of the organization, that the person controls;
    (iv) The person has or shares authority to control or determine a 
substantial portion of the organization's capital expenditures, 
operating budget, or compensation for employees;
    (v) The person manages a discrete segment or activity of the 
organization that represents a substantial portion of the activities, 
assets, income, or expenses of the organization, as compared to the 
organization as a whole;
    (vi) The person owns a controlling interest (measured by either vote 
or value) in a corporation, partnership, or trust that is a disqualified 
person; or
    (vii) The person is a non-stock organization controlled, directly or 
indirectly, by one or more disqualified persons.
    (3) Facts and circumstances tending to show no substantial 
influence. Facts and circumstances tending to show that a person does 
not have substantial influence over the affairs of an organization 
include, but are not limited to, the following--
    (i) The person has taken a bona fide vow of poverty as an employee, 
agent, or on behalf, of a religious organization;
    (ii) The person is a contractor (such as an attorney, accountant, or 
investment manager or advisor) whose sole relationship to the 
organization is providing professional advice (without having decision-
making authority) with respect to transactions from which the contractor 
will not economically benefit either directly or indirectly (aside from 
customary fees received for the professional advice rendered);
    (iii) The direct supervisor of the individual is not a disqualified 
person;
    (iv) The person does not participate in any management decisions 
affecting the organization as a whole or a discrete segment or activity 
of the organization that represents a substantial portion of the 
activities, assets, income, or expenses of the organization, as compared 
to the organization as a whole; or
    (v) Any preferential treatment a person receives based on the size 
of that person's contribution is also offered to all other donors making 
a comparable contribution as part of a solicitation intended to attract 
a substantial number of contributions.
    (f) Affiliated organizations. In the case of multiple organizations 
affiliated by common control or governing documents, the determination 
of whether a person does or does not have substantial influence shall be 
made separately for each applicable tax-exempt organization. A person 
may be a disqualified person with respect to transactions with more than 
one applicable tax-exempt organization.
    (g) Examples. The following examples illustrate the principles of 
this section. A finding that a person is a disqualified person in the 
following examples does not indicate that an excess benefit transaction 
has occurred. If a person is a disqualified person, the rules of section 
4958(c) and Sec.  53.4958-4 apply to determine whether an excess benefit 
transaction has occurred. The examples are as follows:

    Example 1. N, an artist by profession, works part-time at R, a local 
museum. In the first taxable year in which R employs N, R pays N a 
salary and provides no additional benefits to N except for free 
admission to the museum, a benefit R provides to all of its employees 
and volunteers. The total economic

[[Page 235]]

benefits N receives from R during the taxable year are less than the 
amount referenced for a highly compensated employee in section 
414(q)(1)(B)(i). The part-time job constitutes N's only relationship 
with R. N is not related to any other disqualified person with respect 
to R. N is deemed not to be in a position to exercise substantial 
influence over the affairs of R. Therefore, N is not a disqualified 
person with respect to R in that year.
    Example 2. The facts are the same as in Example 1, except that in 
addition to the salary that R pays N for N's services during the taxable 
year, R also purchases one of N's paintings for $x. The total of N's 
salary plus $x exceeds the amount referenced for highly compensated 
employees in section 414(q)(1)(B)(i). Consequently, whether N is in a 
position to exercise substantial influence over the affairs of R for 
that taxable year depends upon all of the relevant facts and 
circumstances.
    Example 3. Q is a member of K, a section 501(c)(3) organization with 
a broad-based public membership. Members of K are entitled to vote only 
with respect to the annual election of directors and the approval of 
major organizational transactions such as a merger or dissolution. Q is 
not related to any other disqualified person of K. Q has no other 
relationship to K besides being a member of K and occasionally making 
modest donations to K. Whether Q is a disqualified person is determined 
by all relevant facts and circumstances. Q's voting rights, which are 
the same as granted to all members of K, do not place Q in a position to 
exercise substantial influence over K. Under these facts and 
circumstances, Q is not a disqualified person with respect to K.
    Example 4. E is the headmaster of Z, a school that is an applicable 
tax-exempt organization for purposes of section 4958. E reports to Z's 
board of trustees and has ultimate responsibility for supervising Z's 
day-to-day operations. For example, E can hire faculty members and 
staff, make changes to the school's curriculum and discipline students 
without specific board approval. Because E has ultimate responsibility 
for supervising the operation of Z, E is in a position to exercise 
substantial influence over the affairs of Z. Therefore, E is a 
disqualified person with respect to Z.
    Example 5. Y is an applicable tax-exempt organization for purposes 
of section 4958 that decides to use bingo games as a method of 
generating revenue. Y enters into a contract with B, a company that 
operates bingo games. Under the contract, B manages the promotion and 
operation of the bingo activity, provides all necessary staff, 
equipment, and services, and pays Y q percent of the revenue from this 
activity. B retains the balance of the proceeds. Y provides no goods or 
services in connection with the bingo operation other than the use of 
its hall for the bingo games. The annual gross revenue earned from the 
bingo games represents more than half of Y's total annual revenue. B's 
compensation is primarily based on revenues from an activity B controls. 
B also manages a discrete activity of Y that represents a substantial 
portion of Y's income compared to the organization as a whole. Under 
these facts and circumstances, B is in a position to exercise 
substantial influence over the affairs of Y. Therefore, B is a 
disqualified person with respect to Y.
    Example 6. The facts are the same as in Example 5, with the 
additional fact that P owns a majority of the stock of B and is actively 
involved in managing B. Because P owns a controlling interest (measured 
by either vote or value) in and actively manages B, P is also in a 
position to exercise substantial influence over the affairs of Y. 
Therefore, under these facts and circumstances, P is a disqualified 
person with respect to Y.
    Example 7. A, an applicable tax-exempt organization for purposes of 
section 4958, owns and operates one acute care hospital. B, a for-profit 
corporation, owns and operates a number of hospitals. A and B form C, a 
limited liability company. In exchange for proportional ownership 
interests, A contributes its hospital, and B contributes other assets, 
to C. All of A's assets then consist of its membership interest in C. A 
continues to be operated for exempt purposes based almost exclusively on 
the activities it conducts through C. C enters into a management 
agreement with a management company, M, to provide day to day management 
services to C. Subject to supervision by C's board, M is given broad 
discretion to manage C's day to day operation and has ultimate 
responsibility for supervising the management of the hospital. Because M 
has ultimate responsibility for supervising the management of the 
hospital operated by C, A's ownership interest in C is its primary 
asset, and C's activities form the basis for A's continued exemption as 
an organization described in section 501(c)(3), M is in a position to 
exercise substantial influence over the affairs of A. Therefore, M is a 
disqualified person with respect to A.
    Example 8. T is a large university and an applicable tax-exempt 
organization for purposes of section 4958. L is the dean of the College 
of Law of T, a substantial source of revenue for T, including 
contributions from alumni and foundations. L is not related to any other 
disqualified person of T. L does not serve on T's governing body or have 
ultimate responsibility for managing the university as whole. However, 
as dean of the College of Law, L plays a key role in faculty hiring and 
determines a substantial portion of the capital expenditures and 
operating budget of the College of Law. L's compensation is greater than 
the amount referenced

[[Page 236]]

for a highly compensated employee in section 414(q)(1)(B)(i) in the year 
benefits are provided. L's management of a discrete segment of T that 
represents a substantial portion of the income of T (as compared to T as 
a whole) places L in a position to exercise substantial influence over 
the affairs of T. Under these facts and circumstances L is a 
disqualified person with respect to T.
    Example 9. S chairs a small academic department in the College of 
Arts and Sciences of the same university T described in Example 8. S is 
not related to any other disqualified person of T. S does not serve on 
T's governing body or as an officer of T. As department chair, S 
supervises faculty in the department, approves the course curriculum, 
and oversees the operating budget for the department. S's compensation 
is greater than the amount referenced for a highly compensated employee 
in section 414(q)(1)(B)(i) in the year benefits are provided. Even 
though S manages the department, that department does not represent a 
substantial portion of T's activities, assets, income, expenses, or 
operating budget. Therefore, S does not participate in any management 
decisions affecting either T as a whole, or a discrete segment or 
activity of T that represents a substantial portion of its activities, 
assets, income, or expenses. Under these facts and circumstances, S does 
not have substantial influence over the affairs of T, and therefore S is 
not a disqualified person with respect to T.
    Example 10. U is a large acute-care hospital that is an applicable 
tax-exempt organization for purposes of section 4958. U employs X as a 
radiologist. X gives instructions to staff with respect to the radiology 
work X conducts, but X does not supervise other U employees or manage 
any substantial part of U's operations. X's compensation is primarily in 
the form of a fixed salary. In addition, X is eligible to receive an 
incentive award based on revenues of the radiology department. X's 
compensation is greater than the amount referenced for a highly 
compensated employee in section 414(q)(1)(B)(i) in the year benefits are 
provided. X is not related to any other disqualified person of U. X does 
not serve on U's governing body or as an officer of U. Although U 
participates in a provider-sponsored organization (as defined in section 
1855(e) of the Social Security Act), X does not have a material 
financial interest in that organization. X does not receive compensation 
primarily based on revenues derived from activities of U that X 
controls. X does not participate in any management decisions affecting 
either U as a whole or a discrete segment of U that represents a 
substantial portion of its activities, assets, income, or expenses. 
Under these facts and circumstances, X does not have substantial 
influence over the affairs of U, and therefore X is not a disqualified 
person with respect to U.
    Example 11. W is a cardiologist and head of the cardiology 
department of the same hospital U described in Example 10. The 
cardiology department is a major source of patients admitted to U and 
consequently represents a substantial portion of U's income, as compared 
to U as a whole. W does not serve on U's governing board or as an 
officer of U. W does not have a material financial interest in the 
provider-sponsored organization (as defined in section 1855(e) of the 
Social Security Act) in which U participates. W receives a salary and 
retirement and welfare benefits fixed by a three-year renewable 
employment contract with U. W's compensation is greater than the amount 
referenced for a highly compensated employee in section 414(q)(1)(B)(i) 
in the year benefits are provided. As department head, W manages the 
cardiology department and has authority to allocate the budget for that 
department, which includes authority to distribute incentive bonuses 
among cardiologists according to criteria that W has authority to set. 
W's management of a discrete segment of U that represents a substantial 
portion of its income and activities (as compared to U as a whole) 
places W in a position to exercise substantial influence over the 
affairs of U. Under these facts and circumstances, W is a disqualified 
person with respect to U.
    Example 12. M is a museum that is an applicable tax-exempt 
organization for purposes of section 4958. D provides accounting 
services and tax advice to M as a contractor in return for a fee. D has 
no other relationship with M and is not related to any disqualified 
person of M. D does not provide professional advice with respect to any 
transaction from which D might economically benefit either directly or 
indirectly (aside from fees received for the professional advice 
rendered). Because D's sole relationship to M is providing professional 
advice (without having decision-making authority) with respect to 
transactions from which D will not economically benefit either directly 
or indirectly (aside from customary fees received for the professional 
advice rendered), under these facts and circumstances, D is not a 
disqualified person with respect to M.
    Example 13. F is a repertory theater company that is an applicable 
tax-exempt organization for purposes of section 4958. F holds a fund-
raising campaign to pay for the construction of a new theater. J is a 
regular subscriber to F's productions who has made modest gifts to F in 
the past. J has no relationship to F other than as a subscriber and 
contributor. F solicits contributions as part of a broad public campaign 
intended to attract a large number of donors, including a substantial 
number of donors making large gifts. In its solicitations for 
contributions, F promises to invite all contributors giving $z

[[Page 237]]

or more to a special opening production and party held at the new 
theater. These contributors are also given a special number to call in 
F's office to reserve tickets for performances, make ticket exchanges, 
and make other special arrangements for their convenience. J makes a 
contribution of $z to F, which makes J a substantial contributor within 
the meaning of section 507(d)(2)(A), taking into account only 
contributions received by F during its current and the four preceding 
taxable years. J receives the benefits described in F's solicitation. 
Because F offers the same benefit to all donors of $z or more, the 
preferential treatment that J receives does not indicate that J is in a 
position to exercise substantial influence over the affairs of the 
organization. Therefore, under these facts and circumstances, J is not a 
disqualified person with respect to F.

[T.D. 8978, 67 FR 3083, Jan. 23, 2002]



Sec.  53.4958-4  Excess benefit transaction.

    (a) Definition of excess benefit transaction--(1) In general. An 
excess benefit transaction means any transaction in which an economic 
benefit is provided by an applicable tax-exempt organization directly or 
indirectly to or for the use of any disqualified person, and the value 
of the economic benefit provided exceeds the value of the consideration 
(including the performance of services) received for providing the 
benefit. Subject to the limitations of paragraph (c) of this section 
(relating to the treatment of economic benefits as compensation for the 
performance of services), to determine whether an excess benefit 
transaction has occurred, all consideration and benefits (except 
disregarded benefits described in paragraph (a)(4) of this section) 
exchanged between a disqualified person and the applicable tax-exempt 
organization and all entities the organization controls (within the 
meaning of paragraph (a)(2)(ii)(B) of this section) are taken into 
account. For example, in determining the reasonableness of compensation 
that is paid (or vests, or is no longer subject to a substantial risk of 
forfeiture) in one year, services performed in prior years may be taken 
into account. The rules of this section apply to all transactions with 
disqualified persons, regardless of whether the amount of the benefit 
provided is determined, in whole or in part, by the revenues of one or 
more activities of the organization. For rules regarding valuation 
standards, see paragraph (b) of this section. For the requirement that 
an applicable tax-exempt organization clearly indicate its intent to 
treat a benefit as compensation for services when paid, see paragraph 
(c) of this section.
    (2) Economic benefit provided indirectly--(i) In general. A 
transaction that would be an excess benefit transaction if the 
applicable tax-exempt organization engaged in it directly with a 
disqualified person is likewise an excess benefit transaction when it is 
accomplished indirectly. An applicable tax-exempt organization may 
provide an excess benefit indirectly to a disqualified person through a 
controlled entity or through an intermediary, as described in paragraphs 
(a)(2)(ii) and (iii) of this section, respectively.
    (ii) Through a controlled entity--(A) In general. An applicable tax-
exempt organization may provide an excess benefit indirectly through the 
use of one or more entities it controls. For purposes of section 4958, 
economic benefits provided by a controlled entity will be treated as 
provided by the applicable tax-exempt organization.
    (B) Definition of control--(1) In general. For purposes of this 
paragraph, control by an applicable tax-exempt organization means--
    (i) In the case of a stock corporation, ownership (by vote or value) 
of more than 50 percent of the stock in such corporation;
    (ii) In the case of a partnership, ownership of more than 50 percent 
of the profits interests or capital interests in the partnership;
    (iii) In the case of a nonstock organization (i.e., an entity in 
which no person holds a proprietary interest), that at least 50 percent 
of the directors or trustees of the organization are either 
representatives (including trustees, directors, agents, or employees) 
of, or directly or indirectly controlled by, an applicable tax-exempt 
organization; or
    (iv) In the case of any other entity, ownership of more than 50 
percent of the beneficial interest in the entity.
    (2) Constructive ownership. Section 318 (relating to constructive 
ownership of stock) shall apply for purposes of determining ownership of 
stock in a corporation. Similar principles shall apply

[[Page 238]]

for purposes of determining ownership of interests in any other entity.
    (iii) Through an intermediary. An applicable tax-exempt organization 
may provide an excess benefit indirectly through an intermediary. An 
intermediary is any person (including an individual or a taxable or tax-
exempt entity) who participates in a transaction with one or more 
disqualified persons of an applicable tax-exempt organization. For 
purposes of section 4958, economic benefits provided by an intermediary 
will be treated as provided by the applicable tax-exempt organization 
when--
    (A) An applicable tax-exempt organization provides an economic 
benefit to an intermediary; and
    (B) In connection with the receipt of the benefit by the 
intermediary--
    (1) There is evidence of an oral or written agreement or 
understanding that the intermediary will provide economic benefits to or 
for the use of a disqualified person; or
    (2) The intermediary provides economic benefits to or for the use of 
a disqualified person without a significant business purpose or exempt 
purpose of its own.
    (iv) Examples. The following examples illustrate when economic 
benefits are provided indirectly under the rules of this paragraph 
(a)(2):

    Example 1. K is an applicable tax-exempt organization for purposes 
of section 4958. L is a wholly-owned taxable subsidiary of K. J is 
employed by K, and is a disqualified person with respect to K. K pays J 
an annual salary of $12m, and reports that amount as compensation during 
calendar year 2001. Although J only performed services for K for nine 
months of 2001, J performed equivalent services for L during the 
remaining three months of 2001. Taking into account all of the economic 
benefits K provided to J, and all of the services J performed for K and 
L, $12m does not exceed the fair market value of the services J 
performed for K and L during 2001. Therefore, under these facts, K does 
not provide an excess benefit to J directly or indirectly.
    Example 2. F is an applicable tax-exempt organization for purposes 
of section 4958. D is an entity controlled by F within the meaning of 
paragraph (a)(2)(ii)(B) of this section. T is the chief executive 
officer (CEO) of F. As CEO, T is responsible for overseeing the 
activities of F. T's duties as CEO make him a disqualified person with 
respect to F. T's compensation package with F represents the maximum 
reasonable compensation for T's services as CEO. Thus, any additional 
economic benefits that F provides to T without T providing additional 
consideration constitute an excess benefit. D contracts with T to 
provide enumerated consulting services to D. However, the contract does 
not require T to perform any additional services for D that T is not 
already obligated to perform as F's chief executive officer. Therefore, 
any payment to T pursuant to the consulting contract with D represents 
an indirect excess benefit that F provides through a controlled entity, 
even if F, D, or T treats the additional payment to T as compensation.
    Example 3. P is an applicable tax-exempt organization for purposes 
of section 4958. S is a taxable entity controlled by P within the 
meaning of paragraph (a)(2)(ii)(B) of this section. V is the chief 
executive officer of S, for which S pays V $w in salary and benefits. V 
also serves as a voting member of P's governing body. Consequently, V is 
a disqualified person with respect to P. P provides V with $x 
representing compensation for the services V provides P as a member of 
its governing body. Although $x represents reasonable compensation for 
the services V provides directly to P as a member of its governing body, 
the total compensation of $w + $x exceeds reasonable compensation for 
the services V provides to P and S collectively. Therefore, the portion 
of total compensation that exceeds reasonable compensation is an excess 
benefit provided to V.
    Example 4. G is an applicable tax-exempt organization for section 
4958 purposes. F is a disqualified person who was last employed by G in 
a position of substantial influence three years ago. H is an entity 
engaged in scientific research and is unrelated to either F or G. G 
makes a grant to H to fund a research position. H subsequently 
advertises for qualified candidates for the research position. F is 
among several highly qualified candidates who apply for the research 
position. H hires F. There was no evidence of an oral or written 
agreement or understanding with G that H will use G's grant to provide 
economic benefits to or for the use of F. Although G provided economic 
benefits to H, and in connection with the receipt of such benefits, H 
will provide economic benefits to or for the use of F, H acted with a 
significant business purpose or exempt purpose of its own. Under these 
facts, G did not provide an economic benefit to F indirectly through the 
use of an intermediary.

    (3) Exception for fixed payments made pursuant to an initial 
contract--(i) In general. Except as provided in paragraph (a)(3)(iv) of 
this section, section 4958 does not apply to any fixed payment made to a 
person pursuant to an initial contract.

[[Page 239]]

    (ii) Fixed payment--(A) In general. For purposes of paragraph 
(a)(3)(i) of this section, fixed payment means an amount of cash or 
other property specified in the contract, or determined by a fixed 
formula specified in the contract, which is to be paid or transferred in 
exchange for the provision of specified services or property. A fixed 
formula may incorporate an amount that depends upon future specified 
events or contingencies, provided that no person exercises discretion 
when calculating the amount of a payment or deciding whether to make a 
payment (such as a bonus). A specified event or contingency may include 
the amount of revenues generated by (or other objective measure of) one 
or more activities of the applicable tax-exempt organization. A fixed 
payment does not include any amount paid to a person under a 
reimbursement (or similar) arrangement where discretion is exercised by 
any person with respect to the amount of expenses incurred or 
reimbursed.
    (B) Special rules. Amounts payable pursuant to a qualified pension, 
profit-sharing, or stock bonus plan under section 401(a), or pursuant to 
an employee benefit program that is subject to and satisfies coverage 
and nondiscrimination rules under the Internal Revenue Code (e.g., 
sections 127 and 137), other than nondiscrimination rules under section 
9802, are treated as fixed payments for purposes of this section, 
regardless of the applicable tax-exempt organization's discretion with 
respect to the plan or program. The fact that a person contracting with 
an applicable tax-exempt organization is expressly granted the choice 
whether to accept or reject any economic benefit is disregarded in 
determining whether the benefit constitutes a fixed payment for purposes 
of this paragraph.
    (iii) Initial contract. For purposes of paragraph (a)(3)(i) of this 
section, initial contract means a binding written contract between an 
applicable tax-exempt organization and a person who was not a 
disqualified person within the meaning of section 4958(f)(1) and Sec.  
53.4958-3 immediately prior to entering into the contract.
    (iv) Substantial performance required. Paragraph (a)(3)(i) of this 
section does not apply to any fixed payment made pursuant to the initial 
contract during any taxable year of the person contracting with the 
applicable tax-exempt organization if the person fails to perform 
substantially the person's obligations under the initial contract during 
that year.
    (v) Treatment as a new contract. A written binding contract that 
provides that the contract is terminable or subject to cancellation by 
the applicable tax-exempt organization (other than as a result of a lack 
of substantial performance by the disqualified person, as described in 
paragraph (a)(3)(iv) of this section) without the other party's consent 
and without substantial penalty to the organization is treated as a new 
contract as of the earliest date that any such termination or 
cancellation, if made, would be effective. Additionally, if the parties 
make a material change to a contract, it is treated as a new contract as 
of the date the material change is effective. A material change includes 
an extension or renewal of the contract (other than an extension or 
renewal that results from the person contracting with the applicable 
tax-exempt organization unilaterally exercising an option expressly 
granted by the contract), or a more than incidental change to any amount 
payable under the contract. The new contract is tested under paragraph 
(a)(3)(iii) of this section to determine whether it is an initial 
contract for purposes of this section.
    (vi) Evaluation of non-fixed payments. Any payment that is not a 
fixed payment (within the meaning of paragraph (a)(3)(ii) of this 
section) is evaluated to determine whether it constitutes an excess 
benefit transaction under section 4958. In making this determination, 
all payments and consideration exchanged between the parties are taken 
into account, including any fixed payments made pursuant to an initial 
contract with respect to which section 4958 does not apply.
    (vii) Examples. The following examples illustrate the rules 
governing fixed payments made pursuant to an initial contract. Unless 
otherwise stated, assume that the person contracting with the applicable 
tax-exempt organization has performed substantially the person's 
obligations under the contract

[[Page 240]]

with respect to the payment. The examples are as follows:

    Example 1. T is an applicable tax-exempt organization for purposes 
of section 4958. On January 1, 2002, T hires S as its chief financial 
officer by entering into a five-year written employment contract with S. 
S was not a disqualified person within the meaning of section 4958(f)(1) 
and Sec.  53.4958-3 immediately prior to entering into the January 1, 
2002, contract (initial contract). S's duties and responsibilities under 
the contract make S a disqualified person with respect to T (see Sec.  
53.4958-3(c)(3)). Under the initial contract, T agrees to pay S an 
annual salary of $200,000, payable in monthly installments. The contract 
provides that, beginning in 2003, S's annual salary will be adjusted by 
the increase in the Consumer Price Index (CPI) for the prior year. 
Section 4958 does not apply because S's compensation under the contract 
is a fixed payment pursuant to an initial contract within the meaning of 
paragraph (a)(3) of this section. Thus, for section 4958 purposes, it is 
unnecessary to evaluate whether any portion of the compensation paid to 
S pursuant to the initial contract is an excess benefit transaction.
    Example 2. The facts are the same as in Example 1, except that the 
initial contract provides that, in addition to a base salary of 
$200,000, T may pay S an annual performance-based bonus. The contract 
provides that T's governing body will determine the amount of the annual 
bonus as of the end of each year during the term of the contract, based 
on the board's evaluation of S's performance, but the bonus cannot 
exceed $100,000 per year. Unlike the base salary portion of S's 
compensation, the bonus portion of S's compensation is not a fixed 
payment pursuant to an initial contract, because the governing body has 
discretion over the amount, if any, of the bonus payment. Section 4958 
does not apply to payment of the $200,000 base salary (as adjusted for 
inflation), because it is a fixed payment pursuant to an initial 
contract within the meaning of paragraph (a)(3) of this section. By 
contrast, the annual bonuses that may be paid to S under the initial 
contract are not protected by the initial contract exception. Therefore, 
each bonus payment will be evaluated under section 4958, taking into 
account all payments and consideration exchanged between the parties.
    Example 3. The facts are the same as in Example 1, except that in 
2003, T changes its payroll system, such that T makes biweekly, rather 
than monthly, salary payments to its employees. Beginning in 2003, T 
also grants its employees an additional two days of paid vacation each 
year. Neither change is a material change to S's initial contract within 
the meaning of paragraph (a)(3)(v) of this section. Therefore, section 
4958 does not apply to the base salary payments to S due to the initial 
contract exception.
    Example 4. The facts are the same as in Example 1, except that on 
January 1, 2003, S becomes the chief executive officer of T and a new 
chief financial officer is hired. At the same time, T's board of 
directors approves an increase in S's annual base salary from $200,000 
to $240,000, effective on that day. These changes in S's employment 
relationship constitute material changes of the initial contract within 
the meaning of paragraph (a)(3)(v) of this section. As a result, S is 
treated as entering into a new contract with T on January 1, 2003, at 
which time S is a disqualified person within the meaning of section 
4958(f)(1) and Sec.  53.4958-3. T's payments to S made pursuant to the 
new contract will be evaluated under section 4958, taking into account 
all payments and consideration exchanged between the parties.
    Example 5. J is a performing arts organization and an applicable 
tax-exempt organization for purposes of section 4958. J hires W to 
become the chief executive officer of J. W was not a disqualified person 
within the meaning of section 4958(f)(1) and Sec.  53.4958-3 immediately 
prior to entering into the employment contract with J. As a result of 
this employment contract, W's duties and responsibilities make W a 
disqualified person with respect to J (see Sec.  53.4958-3(c)(2)). Under 
the contract, J will pay W $x (a specified amount) plus a bonus equal to 
2 percent of the total season subscription sales that exceed $100z. The 
$x base salary is a fixed payment pursuant to an initial contract within 
the meaning of paragraph (a)(3) of this section. The bonus payment is 
also a fixed payment pursuant to an initial contract within the meaning 
of paragraph (a)(3) of this section, because no person exercises 
discretion when calculating the amount of the bonus payment or deciding 
whether the bonus will be paid. Therefore, section 4958 does not apply 
to any of J's payments to W pursuant to the employment contract due to 
the initial contract exception.
    Example 6. Hospital B is an applicable tax-exempt organization for 
purposes of section 4958. Hospital B hires E as its chief operating 
officer. E was not a disqualified person within the meaning of section 
4958(f)(1) and Sec.  53.4958-3 immediately prior to entering into the 
employment contract with Hospital B. As a result of this employment 
contract, E's duties and responsibilities make E a disqualified person 
with respect to Hospital B (see Sec.  53.4958-3(c)(2)). E's initial 
employment contract provides that E will have authority to enter into 
hospital management arrangements on behalf of Hospital B. In E's 
personal capacity, E owns more than 35 percent of the combined voting 
power of Company X. Consequently, at the time E becomes a disqualified 
person with respect to B, Company

[[Page 241]]

X also becomes a disqualified person with respect to B (see Sec.  
53.4958-3(b)(2)(i)(A)). E, acting on behalf of Hospital B as chief 
operating officer, enters into a contract with Company X under which 
Company X will provide billing and collection services to Hospital B. 
The initial contract exception of paragraph (a)(3)(i) of this section 
does not apply to the billing and collection services contract, because 
at the time that this contractual arrangement was entered into, Company 
X was a disqualified person with respect to Hospital B. Although E's 
employment contract (which is an initial contract) authorizes E to enter 
into hospital management arrangements on behalf of Hospital B, the 
payments made to Company X are not made pursuant to E's employment 
contract, but rather are made by Hospital B pursuant to a separate 
contractual arrangement with Company X. Therefore, even if payments made 
to Company X under the billing and collection services contract are 
fixed payments (within the meaning of paragraph (a)(3)(ii) of this 
section), section 4958 nonetheless applies to payments made by Hospital 
B to Company X because the billing and collection services contract 
itself does not constitute an initial contract under paragraph 
(a)(3)(iii) of this section. Accordingly, all payments made to Company X 
under the billing and collection services contract will be evaluated 
under section 4958.
    Example 7. Hospital C, an applicable tax-exempt organization, enters 
into a contract with Company Y, under which Company Y will provide a 
wide range of hospital management services to Hospital C. Upon entering 
into this contractual arrangement, Company Y becomes a disqualified 
person with respect to Hospital C. The contract provides that Hospital C 
will pay Company Y a management fee of x percent of adjusted gross 
revenue (i.e., gross revenue increased by the cost of charity care 
provided to indigents) annually for a five-year period. The management 
services contract specifies the cost accounting system and the standards 
for indigents to be used in calculating the cost of charity care. The 
cost accounting system objectively defines the direct and indirect costs 
of all health care goods and services provided as charity care. Because 
Company Y was not a disqualified person with respect to Hospital C 
immediately before entering into the management services contract, that 
contract is an initial contract within the meaning of paragraph 
(a)(3)(iii) of this section. The annual management fee paid to Company Y 
is determined by a fixed formula specified in the contract, and is 
therefore a fixed payment within the meaning of paragraph (a)(3)(ii) of 
this section. Accordingly, section 4958 does not apply to the annual 
management fee due to the initial contract exception.
    Example 8. The facts are the same as in Example 7, except that the 
management services contract also provides that Hospital C will 
reimburse Company Y on a monthly basis for certain expenses incurred by 
Company Y that are attributable to management services provided to 
Hospital C (e.g., legal fees and travel expenses). Although the 
management fee itself is a fixed payment not subject to section 4958, 
the reimbursement payments that Hospital C makes to Company Y for the 
various expenses covered by the contract are not fixed payments within 
the meaning of paragraph (a)(3)(ii) of this section, because Company Y 
exercises discretion with respect to the amount of expenses incurred. 
Therefore, any reimbursement payments that Hospital C pays pursuant to 
the contract will be evaluated under section 4958.
    Example 9. X, an applicable tax-exempt organization for purposes of 
section 4958, hires C to conduct scientific research. On January 1, 
2003, C enters into a three-year written employment contract with X 
(initial contract). Under the terms of the contract, C is required to 
work full-time at X's laboratory for a fixed annual salary of $90,000. 
Immediately prior to entering into the employment contract, C was not a 
disqualified person within the meaning of section 4958(f)(1) and Sec.  
53.4958-3, nor did C become a disqualified person pursuant to the 
initial contract. However, two years after joining X, C marries D, who 
is the child of X's president. As D's spouse, C is a disqualified person 
within the meaning of section 4958(f)(1) and Sec.  53.4958-3 with 
respect to X. Nonetheless, section 4958 does not apply to X's salary 
payments to C due to the initial contract exception.
    Example 10. The facts are the same as in Example 9, except that the 
initial contract included a below-market loan provision under which C 
has the unilateral right to borrow up to a specified dollar amount from 
X at a specified interest rate for a specified term. After C's marriage 
to D, C borrows money from X to purchase a home under the terms of the 
initial contract. Section 4958 does not apply to X's loan to C due to 
the initial contract exception.
    Example 11. The facts are the same as in Example 9, except that 
after C's marriage to D, C works only sporadically at the laboratory, 
and performs no other services for X. Notwithstanding that C fails to 
perform substantially C's obligations under the initial contract, X does 
not exercise its right to terminate the initial contract for 
nonperformance and continues to pay full salary to C. Pursuant to 
paragraph (a)(3)(iv) of this section, the initial contract exception 
does not apply to any payments made pursuant to the initial contract 
during any taxable year of C in which C fails to perform substantially 
C's obligations under the initial contract.


[[Page 242]]


    (4) Certain economic benefits disregarded for purposes of section 
4958. The following economic benefits are disregarded for purposes of 
section 4958--
    (i) Nontaxable fringe benefits. An economic benefit that is excluded 
from income under section 132, except any liability insurance premium, 
payment, or reimbursement that must be taken into account under 
paragraph (b)(1)(ii)(B)(2) of this section;
    (ii) Expense reimbursement payments pursuant to accountable plans. 
Amounts paid under reimbursement arrangements that meet the requirements 
of Sec.  1.62-2(c) of this chapter;
    (iii) Certain economic benefits provided to a volunteer for the 
organization. An economic benefit provided to a volunteer for the 
organization if the benefit is provided to the general public in 
exchange for a membership fee or contribution of $75 or less per year;
    (iv) Certain economic benefits provided to a member of, or donor to, 
the organization. An economic benefit provided to a member of an 
organization solely on account of the payment of a membership fee, or to 
a donor solely on account of a contribution for which a deduction is 
allowable under section 170 (charitable contribution), regardless of 
whether the donor is eligible to claim the deduction, if--
    (A) Any non-disqualified person paying a membership fee or making a 
charitable contribution above a specified amount to the organization is 
given the option of receiving substantially the same economic benefit; 
and
    (B) The disqualified person and a significant number of non-
disqualified persons make a payment or charitable contribution of at 
least the specified amount;
    (v) Economic benefits provided to a charitable beneficiary. An 
economic benefit provided to a person solely because the person is a 
member of a charitable class that the applicable tax-exempt organization 
intends to benefit as part of the accomplishment of the organization's 
exempt purpose; and
    (vi) Certain economic benefits provided to a governmental unit. Any 
transfer of an economic benefit to or for the use of a governmental unit 
defined in section 170(c)(1), if the transfer is for exclusively public 
purposes.
    (5) Exception for certain payments made pursuant to an exemption 
granted by the Department of Labor under ERISA. Section 4958 does not 
apply to any payment made pursuant to, and in accordance with, a final 
individual prohibited transaction exemption issued by the Department of 
Labor under section 408(a) of the Employee Retirement Income Security 
Act of 1974 (88 Stat. 854) (ERISA) with respect to a transaction 
involving a plan (as defined in section 3(3) of ERISA) that is an 
applicable tax exempt organization.
    (b) Valuation standards--(1) In general. This section provides rules 
for determining the value of economic benefits for purposes of section 
4958.
    (i) Fair market value of property. The value of property, including 
the right to use property, for purposes of section 4958 is the fair 
market value (i.e., the price at which property or the right to use 
property would change hands between a willing buyer and a willing 
seller, neither being under any compulsion to buy, sell or transfer 
property or the right to use property, and both having reasonable 
knowledge of relevant facts).
    (ii) Reasonable compensation--(A) In general. The value of services 
is the amount that would ordinarily be paid for like services by like 
enterprises (whether taxable or tax-exempt) under like circumstances 
(i.e., reasonable compensation). Section 162 standards apply in 
determining reasonableness of compensation, taking into account the 
aggregate benefits (other than any benefits specifically disregarded 
under paragraph (a)(4) of this section) provided to a person and the 
rate at which any deferred compensation accrues. The fact that a 
compensation arrangement is subject to a cap is a relevant factor in 
determining the reasonableness of compensation. The fact that a State or 
local legislative or agency body or court has authorized or approved a 
particular compensation package paid to a disqualified person is not 
determinative of the reasonableness of compensation for purposes of 
section 4958.
    (B) Items included in determining the value of compensation for 
purposes of determining reasonableness under section 4958. Except for 
economic benefits that

[[Page 243]]

are disregarded for purposes of section 4958 under paragraph (a)(4) of 
this section, compensation for purposes of determining reasonableness 
under section 4958 includes all economic benefits provided by an 
applicable tax-exempt organization in exchange for the performance of 
services. These benefits include, but are not limited to--
    (1) All forms of cash and noncash compensation, including salary, 
fees, bonuses, severance payments, and deferred and noncash compensation 
described in Sec.  53.4958-1(e)(2);
    (2) Unless excludable from income as a de minimis fringe benefit 
pursuant to section 132(a)(4), the payment of liability insurance 
premiums for, or the payment or reimbursement by the organization of--
    (i) Any penalty, tax, or expense of correction owed under section 
4958;
    (ii) Any expense not reasonably incurred by the person in connection 
with a civil judicial or civil administrative proceeding arising out of 
the person's performance of services on behalf of the applicable tax-
exempt organization; or
    (iii) Any expense resulting from an act or failure to act with 
respect to which the person has acted willfully and without reasonable 
cause; and
    (3) All other compensatory benefits, whether or not included in 
gross income for income tax purposes, including payments to welfare 
benefit plans, such as plans providing medical, dental, life insurance, 
severance pay, and disability benefits, and both taxable and nontaxable 
fringe benefits (other than fringe benefits described in section 132), 
including expense allowances or reimbursements (other than expense 
reimbursements pursuant to an accountable plan that meets the 
requirements of Sec.  1.62-2(c)), and the economic benefit of a below-
market loan (within the meaning of section 7872(e)(1)). (For this 
purpose, the economic benefit of a below-market loan is the amount 
deemed transferred to the disqualified person under section 7872(a) or 
(b), regardless of whether section 7872 otherwise applies to the loan).
    (C) Inclusion in compensation for reasonableness determination does 
not govern income tax treatment. The determination of whether any item 
listed in paragraph (b)(1)(ii)(B) of this section is included in the 
disqualified person's gross income for income tax purposes is made on 
the basis of the provisions of chapter 1 of Subtitle A of the Internal 
Revenue Code, without regard to whether the item is taken into account 
for purposes of determining reasonableness of compensation under section 
4958.
    (2) Timing of reasonableness determination--(i) In general. The 
facts and circumstances to be taken into consideration in determining 
reasonableness of a fixed payment (within the meaning of paragraph 
(a)(3)(ii) of this section) are those existing on the date the parties 
enter into the contract pursuant to which the payment is made. However, 
in the event of substantial non-performance, reasonableness is 
determined based on all facts and circumstances, up to and including 
circumstances as of the date of payment. In the case of any payment that 
is not a fixed payment under a contract, reasonableness is determined 
based on all facts and circumstances, up to and including circumstances 
as of the date of payment. In no event shall circumstances existing at 
the date when the payment is questioned be considered in making a 
determination of the reasonableness of the payment. These general timing 
rules also apply to property subject to a substantial risk of 
forfeiture. Therefore, if the property subject to a substantial risk of 
forfeiture satisfies the definition of fixed payment (within the meaning 
of paragraph (a)(3)(ii) of this section), reasonableness is determined 
at the time the parties enter into the contract providing for the 
transfer of the property. If the property is not a fixed payment, then 
reasonableness is determined based on all facts and circumstances up to 
and including circumstances as of the date of payment.
    (ii) Treatment as a new contract. For purposes of paragraph 
(b)(2)(i) of this section, a written binding contract that provides that 
the contract is terminable or subject to cancellation by the applicable 
tax-exempt organization without the other party's consent and without 
substantial penalty to the organization is treated as a new contract as 
of the earliest date that any such

[[Page 244]]

termination or cancellation, if made, would be effective. Additionally, 
if the parties make a material change to a contract (within the meaning 
of paragraph (a)(3)(v) of this section), it is treated as a new contract 
as of the date the material change is effective.
    (iii) Examples. The following examples illustrate the timing of the 
reasonableness determination under the rules of this paragraph (b)(2):

    Example 1. G is an applicable tax-exempt organization for purposes 
of section 4958. H is an employee of G and a disqualified person with 
respect to G. H's new multi-year employment contract provides for 
payment of a salary and provision of specific benefits pursuant to a 
qualified pension plan under section 401(a) and an accident and health 
plan that meets the requirements of section 105(h)(2). The contract 
provides that H's salary will be adjusted by the increase in the 
Consumer Price Index (CPI) for the prior year. The contributions G makes 
to the qualified pension plan are equal to the maximum amount G is 
permitted to contribute under the rules applicable to qualified plans. 
Under these facts, all items comprising H's total compensation are 
treated as fixed payments within the meaning of paragraph (a)(3)(ii) of 
this section. Therefore, the reasonableness of H's compensation is 
determined based on the circumstances existing at the time G and H enter 
into the employment contract.
    Example 2. The facts are the same as in Example 1, except that the 
multi-year employment contract provides, in addition, that G will 
transfer title to a car to H under the condition that if H fails to 
complete x years of service with G, title to the car will be forfeited 
back to G. All relevant information about the type of car to be provided 
(including the make, model, and year) is included in the contract. 
Although ultimate vesting of title to the car is contingent on H 
continuing to work for G for x years, the amount of property to be 
vested (i.e., the type of car) is specified in the contract, and no 
person exercises discretion regarding the type of property or whether H 
will retain title to the property at the time of vesting. Under these 
facts, the car is a fixed payment within the meaning of paragraph 
(a)(3)(ii) of this section. Therefore, the reasonableness of H's 
compensation, including the value of the car, is determined based on the 
circumstances existing at the time G and H enter into the employment 
contract.
    Example 3. N is an applicable tax-exempt organization for purposes 
of section 4958. On January 2, N's governing body enters into a new one-
year employment contract with K, its executive director, who is a 
disqualified person with respect to N. The contract provides that K will 
receive a specified amount of salary, contributions to a qualified 
pension plan under section 401(a), and other benefits pursuant to a 
section 125 cafeteria plan. In addition, the contract provides that N's 
governing body may, in its discretion, declare a bonus to be paid to K 
at any time during the year covered by the contract. K's salary and 
other specified benefits constitute fixed payments within the meaning of 
paragraph (a)(3)(ii) of this section. Therefore, the reasonableness of 
those economic benefits is determined on the date when the contract was 
made. However, because the bonus payment is not a fixed payment within 
the meaning of paragraph (a)(3)(ii) of this section, the determination 
of whether any bonus awarded to N is reasonable must be made based on 
all facts and circumstances (including all payments and consideration 
exchanged between the parties), up to and including circumstances as of 
the date of payment of the bonus.

    (c) Establishing intent to treat economic benefit as consideration 
for the performance of services--(1) In general. An economic benefit is 
not treated as consideration for the performance of services unless the 
organization providing the benefit clearly indicates its intent to treat 
the benefit as compensation when the benefit is paid. Except as provided 
in paragraph (c)(2) of this section, an applicable tax-exempt 
organization (or entity controlled by an applicable tax-exempt 
organization, within the meaning of paragraph (a)(2)(ii)(B) of this 
section) is treated as clearly indicating its intent to provide an 
economic benefit as compensation for services only if the organization 
provides written substantiation that is contemporaneous with the 
transfer of the economic benefit at issue. If an organization fails to 
provide this contemporaneous substantiation, any services provided by 
the disqualified person will not be treated as provided in consideration 
for the economic benefit for purposes of determining the reasonableness 
of the transaction. In no event shall an economic benefit that a 
disqualified person obtains by theft or fraud be treated as 
consideration for the performance of services.
    (2) Nontaxable benefits. For purposes of section 4958(c)(1)(A) and 
this section, an applicable tax-exempt organization is not required to 
indicate its intent to provide an economic benefit as compensation for 
services if the economic

[[Page 245]]

benefit is excluded from the disqualified person's gross income for 
income tax purposes on the basis of the provisions of chapter 1 of 
Subtitle A of the Internal Revenue Code. Examples of these benefits 
include, but are not limited to, employer-provided health benefits and 
contributions to a qualified pension, profit-sharing, or stock bonus 
plan under section 401(a), and benefits described in sections 127 and 
137. However, except for economic benefits that are disregarded for 
purposes of section 4958 under paragraph (a)(4) of this section, all 
compensatory benefits (regardless of the Federal income tax treatment) 
provided by an organization in exchange for the performance of services 
are taken into account in determining the reasonableness of a person's 
compensation for purposes of section 4958.
    (3) Contemporaneous substantiation--(i) Reporting of benefit--(A) In 
general. An applicable tax-exempt organization provides contemporaneous 
written substantiation of its intent to provide an economic benefit as 
compensation if--
    (1) The organization reports the economic benefit as compensation on 
an original Federal tax information return with respect to the payment 
(e.g., Form W-2, ``Wage and Tax Statement'', or Form 1099, 
``Miscellaneous Income'') or with respect to the organization (e.g., 
Form 990, ``Return of Organization Exempt From Income Tax''), or on an 
amended Federal tax information return filed prior to the commencement 
of an Internal Revenue Service examination of the applicable tax-exempt 
organization or the disqualified person for the taxable year in which 
the transaction occurred (as determined under Sec.  53.4958-1(e)); or
    (2) The recipient disqualified person reports the benefit as income 
on the person's original Federal tax return (e.g., Form 1040, ``U.S. 
Individual Income Tax Return''), or on the person's amended Federal tax 
return filed prior to the earlier of the following dates--
    (i) Commencement of an Internal Revenue Service examination 
described in paragraph (c)(3)(i)(A)(1) of this section; or
    (ii) The first documentation in writing by the Internal Revenue 
Service of a potential excess benefit transaction involving either the 
applicable tax-exempt organization or the disqualified person.
    (B) Failure to report due to reasonable cause. If an applicable tax-
exempt organization's failure to report an economic benefit as required 
under the Internal Revenue Code is due to reasonable cause (within the 
meaning of Sec.  301.6724-1 of this chapter), then the organization will 
be treated as having clearly indicated its intent to provide an economic 
benefit as compensation for services. To show that its failure to report 
an economic benefit that should have been reported on an information 
return was due to reasonable cause, an applicable tax-exempt 
organization must establish that there were significant mitigating 
factors with respect to its failure to report (as described in Sec.  
301.6724-1(b) of this chapter), or the failure arose from events beyond 
the organization's control (as described in Sec.  301.6724-1(c) of this 
chapter), and that the organization acted in a responsible manner both 
before and after the failure occurred (as described in Sec.  301.6724-
1(d) of this chapter).
    (ii) Other written contemporaneous evidence. In addition, other 
written contemporaneous evidence may be used to demonstrate that the 
appropriate decision-making body or an officer authorized to approve 
compensation approved a transfer as compensation for services in 
accordance with established procedures, including but not limited to--
    (A) An approved written employment contract executed on or before 
the date of the transfer;
    (B) Documentation satisfying the requirements of Sec.  53.4958-
6(a)(3) indicating that an authorized body approved the transfer as 
compensation for services on or before the date of the transfer; or
    (C) Written evidence that was in existence on or before the due date 
of the applicable Federal tax return described in paragraph 
(c)(3)(i)(A)(1) or (2) of this section (including extensions but not 
amendments), of a reasonable belief by the applicable tax-exempt 
organization that a benefit was a nontaxable benefit as defined in 
paragraph (c)(2) of this section.

[[Page 246]]

    (4) Examples. The following examples illustrate the requirement that 
an organization contemporaneously substantiate its intent to provide an 
economic benefit as compensation for services, as defined in paragraph 
(c) of this section:

    Example 1. G is an applicable tax-exempt organization for purposes 
of section 4958. G hires an individual contractor, P, who is also the 
child of a disqualified person of G, to design a computer program for 
it. G executes a contract with P for that purpose in accordance with G's 
established procedures, and pays P $1,000 during the year pursuant to 
the contract. Before January 31 of the next year, G reports the full 
amount paid to P under the contract on a Form 1099 filed with the 
Internal Revenue Service. G will be treated as providing contemporaneous 
written substantiation of its intent to provide the $1,000 paid to P as 
compensation for the services P performed under the contract by virtue 
of either the Form 1099 filed with the Internal Revenue Service 
reporting the amount, or by virtue of the written contract executed 
between G and P.
    Example 2. G is an applicable tax-exempt organization for purposes 
of section 4958. D is the chief operating officer of G, and a 
disqualified person with respect to G. D receives a bonus at the end of 
the year. G's accounting department determines that the bonus is to be 
reported on D's Form W-2. Due to events beyond G's control, the bonus is 
not reflected on D's Form W-2. As a result, D fails to report the bonus 
on D's individual income tax return. G acts to amend Forms W-2 affected 
as soon as G is made aware of the error during an Internal Revenue 
Service examination. G's failure to report the bonus on an information 
return issued to D arose from events beyond G's control, and G acted in 
a responsible manner both before and after the failure occurred. Thus, 
because G had reasonable cause (within the meaning Sec.  301.6724-1 of 
this chapter) for failing to report D's bonus, G will be treated as 
providing contemporaneous written substantiation of its intent to 
provide the bonus as compensation for services when paid.
    Example 3. H is an applicable tax-exempt organization and J is a 
disqualified person with respect to H. J's written employment agreement 
provides for a fixed salary of $y. J's duties include soliciting funds 
for various programs of H. H raises a large portion of its funds in a 
major metropolitan area. Accordingly, H maintains an apartment there in 
order to provide a place to entertain potential donors. H makes the 
apartment available exclusively to J to assist in the fundraising. J's 
written employment contract does not mention the use of the apartment. H 
obtains the written opinion of a benefits compensation expert that the 
rental value of the apartment is not includable in J's income by reason 
of section 119, based on the expectation that the apartment will be used 
for fundraising activities. Consequently, H does not report the rental 
value of the apartment on J's Form W-2, which otherwise correctly 
reports J's taxable compensation. J does not report the rental value of 
the apartment on J's individual Form 1040. Later, the Internal Revenue 
Service correctly determines that the requirements of section 119 were 
not satisfied. Because of the written expert opinion, H has written 
evidence of its reasonable belief that use of the apartment was a 
nontaxable benefit as defined in paragraph (c)(2) of this section. That 
evidence was in existence on or before the due date of the applicable 
Federal tax return. Therefore, H has demonstrated its intent to treat 
the use of the apartment as compensation for services performed by J.

[T.D. 8978, 67 FR 3083, Jan. 23, 2002; 67 FR 12472, Mar. 19, 2002]



Sec.  53.4958-5  Transaction in which the amount of the economic benefit 
is determined in whole or in part by the revenues of one or more activities 
of the organization. [Reserved]



Sec.  53.4958-6  Rebuttable presumption that a transaction is not 
an excess benefit transaction.

    (a) In general. Payments under a compensation arrangement are 
presumed to be reasonable, and a transfer of property, or the right to 
use property, is presumed to be at fair market value, if the following 
conditions are satisfied--
    (1) The compensation arrangement or the terms of the property 
transfer are approved in advance by an authorized body of the applicable 
tax-exempt organization (or an entity controlled by the organization 
within the meaning of Sec.  53.4958-4(a)(2)(ii)(B)) composed entirely of 
individuals who do not have a conflict of interest (within the meaning 
of paragraph (c)(1)(iii) of this section) with respect to the 
compensation arrangement or property transfer, as described in paragraph 
(c)(1) of this section;
    (2) The authorized body obtained and relied upon appropriate data as 
to comparability prior to making its determination, as described in 
paragraph (c)(2) of this section; and

[[Page 247]]

    (3) The authorized body adequately documented the basis for its 
determination concurrently with making that determination, as described 
in paragraph (c)(3) of this section.
    (b) Rebutting the presumption. If the three requirements of 
paragraph (a) of this section are satisfied, then the Internal Revenue 
Service may rebut the presumption that arises under paragraph (a) of 
this section only if it develops sufficient contrary evidence to rebut 
the probative value of the comparability data relied upon by the 
authorized body. With respect to any fixed payment (within the meaning 
of Sec.  53.4958-4(a)(3)(ii)), rebuttal evidence is limited to evidence 
relating to facts and circumstances existing on the date the parties 
enter into the contract pursuant to which the payment is made (except in 
the event of substantial nonperformance). With respect to all other 
payments (including non-fixed payments subject to a cap, as described in 
paragraph (d)(2) of this section), rebuttal evidence may include facts 
and circumstances up to and including the date of payment. See Sec.  
53.4958-4(b)(2)(i).
    (c) Requirements for invoking rebuttable presumption--(1) Approval 
by an authorized body--(i) In general. An authorized body means--
    (A) The governing body (i.e., the board of directors, board of 
trustees, or equivalent controlling body) of the organization;
    (B) A committee of the governing body, which may be composed of any 
individuals permitted under State law to serve on such a committee, to 
the extent that the committee is permitted by State law to act on behalf 
of the governing body; or
    (C) To the extent permitted under State law, other parties 
authorized by the governing body of the organization to act on its 
behalf by following procedures specified by the governing body in 
approving compensation arrangements or property transfers.
    (ii) Individuals not included on authorized body. For purposes of 
determining whether the requirements of paragraph (a) of this section 
have been met with respect to a specific compensation arrangement or 
property transfer, an individual is not included on the authorized body 
when it is reviewing a transaction if that individual meets with other 
members only to answer questions, and otherwise recuses himself or 
herself from the meeting and is not present during debate and voting on 
the compensation arrangement or property transfer.
    (iii) Absence of conflict of interest. A member of the authorized 
body does not have a conflict of interest with respect to a compensation 
arrangement or property transfer only if the member--
    (A) Is not a disqualified person participating in or economically 
benefitting from the compensation arrangement or property transfer, and 
is not a member of the family of any such disqualified person, as 
described in section 4958(f)(4) or Sec.  53.4958-3(b)(1);
    (B) Is not in an employment relationship subject to the direction or 
control of any disqualified person participating in or economically 
benefitting from the compensation arrangement or property transfer;
    (C) Does not receive compensation or other payments subject to 
approval by any disqualified person participating in or economically 
benefitting from the compensation arrangement or property transfer;
    (D) Has no material financial interest affected by the compensation 
arrangement or property transfer; and
    (E) Does not approve a transaction providing economic benefits to 
any disqualified person participating in the compensation arrangement or 
property transfer, who in turn has approved or will approve a 
transaction providing economic benefits to the member.
    (2) Appropriate data as to comparability--(i) In general. An 
authorized body has appropriate data as to comparability if, given the 
knowledge and expertise of its members, it has information sufficient to 
determine whether, under the standards set forth in Sec.  53.4958-4(b), 
the compensation arrangement in its entirety is reasonable or the 
property transfer is at fair market value. In the case of compensation, 
relevant information includes, but is not limited to, compensation 
levels paid by similarly situated organizations, both taxable and tax-
exempt, for functionally comparable positions; the availability of 
similar services in the

[[Page 248]]

geographic area of the applicable tax-exempt organization; current 
compensation surveys compiled by independent firms; and actual written 
offers from similar institutions competing for the services of the 
disqualified person. In the case of property, relevant information 
includes, but is not limited to, current independent appraisals of the 
value of all property to be transferred; and offers received as part of 
an open and competitive bidding process.
    (ii) Special rule for compensation paid by small organizations. For 
organizations with annual gross receipts (including contributions) of 
less than $1 million reviewing compensation arrangements, the authorized 
body will be considered to have appropriate data as to comparability if 
it has data on compensation paid by three comparable organizations in 
the same or similar communities for similar services. No inference is 
intended with respect to whether circumstances falling outside this safe 
harbor will meet the requirement with respect to the collection of 
appropriate data.
    (iii) Application of special rule for small organizations. For 
purposes of determining whether the special rule for small organizations 
described in paragraph (c)(2)(ii) of this section applies, an 
organization may calculate its annual gross receipts based on an average 
of its gross receipts during the three prior taxable years. If any 
applicable tax-exempt organization is controlled by or controls another 
entity (as defined in Sec.  53.4958-4(a)(2)(ii)(B)), the annual gross 
receipts of such organizations must be aggregated to determine 
applicability of the special rule stated in paragraph (c)(2)(ii) of this 
section.
    (iv) Examples. The following examples illustrate the rules for 
appropriate data as to comparability for purposes of invoking the 
rebuttable presumption of reasonableness described in this section. In 
all examples, compensation refers to the aggregate value of all benefits 
provided in exchange for services. The examples are as follows:

    Example 1. Z is a university that is an applicable tax-exempt 
organization for purposes of section 4958. Z is negotiating a new 
contract with Q, its president, because the old contract will expire at 
the end of the year. In setting Q's compensation for its president at 
$600x per annum, the executive committee of the Board of Trustees relies 
solely on a national survey of compensation for university presidents 
that indicates university presidents receive annual compensation in the 
range of $100x to $700x; this survey does not divide its data by any 
criteria, such as the number of students served by the institution, 
annual revenues, academic ranking, or geographic location. Although many 
members of the executive committee have significant business experience, 
none of the members has any particular expertise in higher education 
compensation matters. Given the failure of the survey to provide 
information specific to universities comparable to Z, and because no 
other information was presented, the executive committee's decision with 
respect to Q's compensation was not based upon appropriate data as to 
comparability.
    Example 2. The facts are the same as Example 1, except that the 
national compensation survey divides the data regarding compensation for 
university presidents into categories based on various university-
specific factors, including the size of the institution (in terms of the 
number of students it serves and the amount of its revenues) and 
geographic area. The survey data shows that university presidents at 
institutions comparable to and in the same geographic area as Z receive 
annual compensation in the range of $200x to $300x. The executive 
committee of the Board of Trustees of Z relies on the survey data and 
its evaluation of Q's many years of service as a tenured professor and 
high-ranking university official at Z in setting Q's compensation at 
$275x annually. The data relied upon by the executive committee 
constitutes appropriate data as to comparability.
    Example 3. X is a tax-exempt hospital that is an applicable tax-
exempt organization for purposes of section 4958. Before renewing the 
contracts of X's chief executive officer and chief financial officer, 
X's governing board commissioned a customized compensation survey from 
an independent firm that specializes in consulting on issues related to 
executive placement and compensation. The survey covered executives with 
comparable responsibilities at a significant number of taxable and tax-
exempt hospitals. The survey data are sorted by a number of different 
variables, including the size of the hospitals and the nature of the 
services they provide, the level of experience and specific 
responsibilities of the executives, and the composition of the annual 
compensation packages. The board members were provided with the survey 
results, a detailed written analysis comparing the hospital's executives 
to those covered by the survey, and an opportunity to ask questions of a 
member of the firm that prepared the survey. The survey, as prepared

[[Page 249]]

and presented to X's board, constitutes appropriate data as to 
comparability.
    Example 4. The facts are the same as Example 3, except that one year 
later, X is negotiating a new contract with its chief executive officer. 
The governing board of X obtains information indicating that the 
relevant market conditions have not changed materially, and possesses no 
other information indicating that the results of the prior year's survey 
are no longer valid. Therefore, X may continue to rely on the 
independent compensation survey prepared for the prior year in setting 
annual compensation under the new contract.
    Example 5. W is a local repertory theater and an applicable tax-
exempt organization for purposes of section 4958. W has had annual gross 
receipts ranging from $400,000 to $800,000 over its past three taxable 
years. In determining the next year's compensation for W's artistic 
director, the board of directors of W relies on data compiled from a 
telephone survey of three other unrelated performing arts organizations 
of similar size in similar communities. A member of the board drafts a 
brief written summary of the annual compensation information obtained 
from this informal survey. The annual compensation information obtained 
in the telephone survey is appropriate data as to comparability.

    (3) Documentation--(i) For a decision to be documented adequately, 
the written or electronic records of the authorized body must note--
    (A) The terms of the transaction that was approved and the date it 
was approved;
    (B) The members of the authorized body who were present during 
debate on the transaction that was approved and those who voted on it;
    (C) The comparability data obtained and relied upon by the 
authorized body and how the data was obtained; and
    (D) Any actions taken with respect to consideration of the 
transaction by anyone who is otherwise a member of the authorized body 
but who had a conflict of interest with respect to the transaction.
    (ii) If the authorized body determines that reasonable compensation 
for a specific arrangement or fair market value in a specific property 
transfer is higher or lower than the range of comparability data 
obtained, the authorized body must record the basis for its 
determination. For a decision to be documented concurrently, records 
must be prepared before the later of the next meeting of the authorized 
body or 60 days after the final action or actions of the authorized body 
are taken. Records must be reviewed and approved by the authorized body 
as reasonable, accurate and complete within a reasonable time period 
thereafter.
    (d) No presumption with respect to non-fixed payments until amounts 
are determined--(1) In general. Except as provided in paragraph (d)(2) 
of this section, in the case of a payment that is not a fixed payment 
(within the meaning of Sec.  53.4958-4(a)(3)(ii)), the rebuttable 
presumption of this section arises only after the exact amount of the 
payment is determined, or a fixed formula for calculating the payment is 
specified, and the three requirements for the presumption under 
paragraph (a) of this section subsequently are satisfied. See Sec.  
53.4958-4(b)(2)(i).
    (2) Special rule for certain non-fixed payments subject to a cap. If 
the authorized body approves an employment contract with a disqualified 
person that includes a non-fixed payment (such as a discretionary bonus) 
subject to a specified cap, the authorized body may establish a 
rebuttable presumption with respect to the non-fixed payment at the time 
the employment contract is entered into if--
    (i) Prior to approving the contract, the authorized body obtains 
appropriate comparability data indicating that a fixed payment of up to 
a certain amount to the particular disqualified person would represent 
reasonable compensation;
    (ii) The maximum amount payable under the contract (taking into 
account both fixed and non-fixed payments) does not exceed the amount 
referred to in paragraph (d)(2)(i) of this section; and
    (iii) The other requirements for the rebuttable presumption of 
reasonableness under paragraph (a) of this section are satisfied.
    (e) No inference from absence of presumption. The fact that a 
transaction between an applicable tax-exempt organization and a 
disqualified person is not subject to the presumption described in this 
section neither creates any inference that the transaction is

[[Page 250]]

an excess benefit transaction, nor exempts or relieves any person from 
compliance with any Federal or state law imposing any obligation, duty, 
responsibility, or other standard of conduct with respect to the 
operation or administration of any applicable tax-exempt organization.
    (f) Period of reliance on rebuttable presumption. Except as provided 
in paragraph (d) of this section with respect to non-fixed payments, the 
rebuttable presumption applies to all payments made or transactions 
completed in accordance with a contract, provided that the provisions of 
paragraph (a) of this section were met at the time the parties entered 
into the contract.

[T.D. 8978, 67 FR 3083, Jan. 23, 2002]



Sec.  53.4958-7  Correction.

    (a) In general. An excess benefit transaction is corrected by 
undoing the excess benefit to the extent possible, and taking any 
additional measures necessary to place the applicable tax-exempt 
organization involved in the excess benefit transaction in a financial 
position not worse than that in which it would be if the disqualified 
person were dealing under the highest fiduciary standards. Paragraph (b) 
of this section describes the acceptable forms of correction. Paragraph 
(c) of this section defines the correction amount. Paragraph (d) of this 
section describes correction where a contract has been partially 
performed. Paragraph (e) of this section describes correction where the 
applicable tax-exempt organization involved in the transaction has 
ceased to exist or is no longer tax-exempt. Paragraph (f) of this 
section provides examples illustrating correction.
    (b) Form of correction--(1) Cash or cash equivalents. Except as 
provided in paragraphs (b)(3) and (4) of this section, a disqualified 
person corrects an excess benefit only by making a payment in cash or 
cash equivalents, excluding payment by a promissory note, to the 
applicable tax-exempt organization equal to the correction amount, as 
defined in paragraph (c) of this section.
    (2) Anti-abuse rule. A disqualified person will not satisfy the 
requirements of paragraph (b)(1) of this section if the Commissioner 
determines that the disqualified person engaged in one or more 
transactions with the applicable tax-exempt organization to circumvent 
the requirements of this correction section, and as a result, the 
disqualified person effectively transferred property other than cash or 
cash equivalents.
    (3) Special rule relating to nonqualified deferred compensation. If 
an excess benefit transaction results, in whole or in part, from the 
vesting (as described in Sec.  53.4958-1(e)(2)) of benefits provided 
under a nonqualified deferred compensation plan, then, to the extent 
that such benefits have not yet been distributed to the disqualified 
person, the disqualified person may correct the portion of the excess 
benefit resulting from the undistributed deferred compensation by 
relinquishing any right to receive the excess portion of the 
undistributed deferred compensation (including any earnings thereon).
    (4) Return of specific property--(i) In general. A disqualified 
person may, with the agreement of the applicable tax-exempt 
organization, make a payment by returning specific property previously 
transferred in the excess benefit transaction. In this case, the 
disqualified person is treated as making a payment equal to the lesser 
of--
    (A) The fair market value of the property determined on the date the 
property is returned to the organization; or
    (B) The fair market value of the property on the date the excess 
benefit transaction occurred.
    (ii) Payment not equal to correction amount. If the payment 
described in paragraph (b)(4)(i) of this section is less than the 
correction amount (as described in paragraph (c) of this section), the 
disqualified person must make an additional cash payment to the 
organization equal to the difference. Conversely, if the payment 
described in paragraph (b)(4)(i) of this section exceeds the correction 
amount (as described in paragraph (c) of this section), the organization 
may make a cash payment to the disqualified person equal to the 
difference.
    (iii) Disqualified person may not participate in decision. Any 
disqualified person who received an excess benefit from the excess 
benefit transaction may not participate in the applicable

[[Page 251]]

tax-exempt organization's decision whether to accept the return of 
specific property under paragraph (b)(4)(i) of this section.
    (c) Correction amount. The correction amount with respect to an 
excess benefit transaction equals the sum of the excess benefit (as 
defined in Sec.  53.4958-1(b)) and interest on the excess benefit. The 
amount of the interest charge for purposes of this section is determined 
by multiplying the excess benefit by an interest rate, compounded 
annually, for the period from the date the excess benefit transaction 
occurred (as defined in Sec.  53.4958-1(e)) to the date of correction. 
The interest rate used for this purpose must be a rate that equals or 
exceeds the applicable Federal rate (AFR), compounded annually, for the 
month in which the transaction occurred. The period from the date the 
excess benefit transaction occurred to the date of correction is used to 
determine whether the appropriate AFR is the Federal short-term rate, 
the Federal mid-term rate, or the Federal long-term rate. See section 
1274(d)(1)(A).
    (d) Correction where contract has been partially performed. If the 
excess benefit transaction arises under a contract that has been 
partially performed, termination of the contractual relationship between 
the organization and the disqualified person is not required in order to 
correct. However, the parties may need to modify the terms of any 
ongoing contract to avoid future excess benefit transactions.
    (e) Correction in the case of an applicable tax-exempt organization 
that has ceased to exist, or is no longer tax-exempt--(1) In general. A 
disqualified person must correct an excess benefit transaction in 
accordance with this paragraph where the applicable tax-exempt 
organization that engaged in the transaction no longer exists or is no 
longer described in section 501(c)(3) or (4) and exempt from tax under 
section 501(a).
    (2) Section 501(c)(3) organizations. In the case of an excess 
benefit transaction with a section 501(c)(3) applicable tax-exempt 
organization, the disqualified person must pay the correction amount, as 
defined in paragraph (c) of this section, to another organization 
described in section 501(c)(3) and exempt from tax under section 501(a) 
in accordance with the dissolution clause contained in the constitutive 
documents of the applicable tax-exempt organization involved in the 
excess benefit transaction, provided that--
    (i) The organization receiving the correction amount is described in 
section 170(b)(1)(A) (other than in section 170(b)(1)(A)(vii) and 
(viii)) and has been in existence and so described for a continuous 
period of at least 60 calendar months ending on the correction date;
    (ii) The disqualified person is not also a disqualified person (as 
defined in Sec.  53.4958-3) with respect to the organization receiving 
the correction amount; and
    (iii) The organization receiving the correction amount does not 
allow the disqualified person (or persons described in Sec.  53.4958-
3(b) with respect to that person) to make or recommend any grants or 
distributions by the organization.
    (3) Section 501(c)(4) organizations. In the case of an excess 
benefit transaction with a section 501(c)(4) applicable tax-exempt 
organization, the disqualified person must pay the correction amount, as 
defined in paragraph (c) of this section, to a successor section 
501(c)(4) organization or, if no tax-exempt successor, to any 
organization described in section 501(c)(3) or (4) and exempt from tax 
under section 501(a), provided that the requirements of paragraphs 
(e)(2)(i) through (iii) of this section are satisfied (except that the 
requirement that the organization receiving the correction amount is 
described in section 170(b)(1)(A) (other than in section 
170(b)(1)(A)(vii) and (viii)) shall not apply if the organization is 
described in section 501(c)(4)).
    (f) Examples. The following examples illustrate the principles of 
this section describing the requirements of correction:

    Example 1. W is an applicable tax-exempt organization for purposes 
of section 4958. D is a disqualified person with respect to W. W 
employed D in 1999 and made payments totaling $12t to D as compensation 
throughout the taxable year. The fair market value of D's services in 
1999 was $7t. Thus, D received excess compensation in the amount of $5t, 
the excess benefit for purposes of section 4958. In accordance with 
Sec.  53.4958-1(e)(1), the

[[Page 252]]

excess benefit transaction with respect to the series of compensatory 
payments during 1999 is deemed to occur on December 31, 1999, the last 
day of D's taxable year. In order to correct the excess benefit 
transaction on June 30, 2002, D must pay W, in cash or cash equivalents, 
excluding payment with a promissory note, $5t (the excess benefit) plus 
interest on $5t for the period from the date the excess benefit 
transaction occurred to the date of correction (i.e., December 31, 1999, 
to June 30, 2002). Because this period is not more than three years, the 
interest rate D must use to determine the interest on the excess benefit 
must equal or exceed the short-term AFR, compounded annually, for 
December, 1999 (5.74%, compounded annually).
    Example 2. X is an applicable tax-exempt organization for purposes 
of section 4958. B is a disqualified person with respect to X. On 
January 1, 2000, B paid X $6v for Property F. Property F had a fair 
market value of $10v on January 1, 2000. Thus, the sales transaction on 
that date provided an excess benefit to B in the amount of $4v. In order 
to correct the excess benefit on July 5, 2005, B pays X, in cash or cash 
equivalents, excluding payment with a promissory note, $4v (the excess 
benefit) plus interest on $4v for the period from the date the excess 
benefit transaction occurred to the date of correction (i.e., January 1, 
2000, to July 5, 2005). Because this period is over three but not over 
nine years, the interest rate B must use to determine the interest on 
the excess benefit must equal or exceed the mid-term AFR, compounded 
annually, for January, 2000 (6.21%, compounded annually).
    Example 3. The facts are the same as in Example 2, except that B 
offers to return Property F. X agrees to accept the return of Property 
F, a decision in which B does not participate. Property F has declined 
in value since the date of the excess benefit transaction. On July 5, 
2005, the property has a fair market value of $9v. For purposes of 
correction, B's return of Property F to X is treated as a payment of 
$9v, the fair market value of the property determined on the date the 
property is returned to the organization. If $9v is greater than the 
correction amount ($4v plus interest on $4v at a rate that equals or 
exceeds 6.21%, compounded annually, for the period from January 1, 2000, 
to July 5, 2005), then X may make a cash payment to B equal to the 
difference.
    Example 4. The facts are the same as in Example 3, except that 
Property F has increased in value since January 1, 2000, the date the 
excess benefit transaction occurred, and on July 5, 2005, has a fair 
market value of $13v. For purposes of correction, B's return of Property 
F to X is treated as a payment of $10v, the fair market value of the 
property on the date the excess benefit transaction occurred. If $10v is 
greater than the correction amount ($4v plus interest on $4v at a rate 
that equals or exceeds 6.21%, compounded annually, for the period from 
January 1, 2000, to July 5, 2005), then X may make a cash payment to B 
equal to the difference.
    Example 5. The facts are the same as in Example 2. Assume that the 
correction amount B paid X in cash on July 5, 2005, was $5.58v. On July 
4, 2005, X loaned $5.58v to B, in exchange for a promissory note signed 
by B in the amount of $5.58v, payable with interest at a future date. 
These facts indicate that B engaged in the loan transaction to 
circumvent the requirement of this section that (except as provided in 
paragraph (b)(3) or (4) of this section), the correction amount must be 
paid only in cash or cash equivalents. As a result, the Commissioner may 
determine that B effectively transferred property other than cash or 
cash equivalents, and therefore did not satisfy the correction 
requirements of this section.

[T.D. 8978, 67 FR 3083, Jan. 23, 2002]



Sec.  53.4958-8  Special rules.

    (a) Substantive requirements for exemption still apply. Section 4958 
does not affect the substantive standards for tax exemption under 
section 501(c)(3) or (4), including the requirements that the 
organization be organized and operated exclusively for exempt purposes, 
and that no part of its net earnings inure to the benefit of any private 
shareholder or individual. Thus, regardless of whether a particular 
transaction is subject to excise taxes under section 4958, existing 
principles and rules may be implicated, such as the limitation on 
private benefit. For example, transactions that are not subject to 
section 4958 because of the initial contract exception described in 
Sec.  53.4958-4(a)(3) may, under certain circumstances, jeopardize the 
organization's tax-exempt status.
    (b) Interaction between section 4958 and section 7611 rules for 
church tax inquiries and examinations. The procedures of section 7611 
will be used in initiating and conducting any inquiry or examination 
into whether an excess benefit transaction has occurred between a church 
and a disqualified person. For purposes of this rule, the reasonable 
belief required to initiate a church tax inquiry is satisfied if there 
is a reasonable belief that a section 4958 tax is due from a 
disqualified person with respect to a transaction involving a church. 
See Sec.  301.7611-1 Q&A 19 of this chapter.

[[Page 253]]

    (c) Other substantiation requirements. These regulations, in Sec.  
53.4958-4(c)(3), set forth specific substantiation rules. Compliance 
with the specific substantiation rules of that section does not relieve 
applicable tax-exempt organizations of other rules and requirements of 
the Internal Revenue Code, regulations, Revenue Rulings, and other 
guidance issued by the Internal Revenue Service (including the 
substantiation rules of sections 162 and 274, or Sec.  1.6001-1(a) and 
(c) of this chapter).

[T.D. 8978, 67 FR 3083, Jan. 23, 2002]



Sec.  53.4959-1  Taxes on failures by hospital organizations 
to meet section 501(r)(3).

    (a) Excise tax for failure to meet the section 501(r)(3) 
requirements--(1) In general. If a hospital organization (as defined in 
Sec.  1.501(r)-1(b)(18)) fails to meet the requirements of section 
501(r)(3) separately with respect to a hospital facility it operates in 
any taxable year, there is imposed on the hospital organization a tax 
equal to $50,000. If a hospital organization operates multiple hospital 
facilities and fails to meet the requirements of section 501(r)(3) with 
respect to more than one facility it operates, the $50,000 tax is 
imposed on the hospital organization separately for each hospital 
facility's failure. The tax is imposed for each taxable year that a 
hospital facility fails to meet the requirements of section 501(r)(3).
    (2) Examples. The following examples illustrate this paragraph (a):

    Example 1. (i) U is a hospital organization that operates only one 
hospital facility, V. In Year 1, V conducts a community health needs 
assessment (CHNA) and adopts an implementation strategy to meet the 
health needs identified through the CHNA. In Years 2 and 3, V does not 
conduct a CHNA. V fails to conduct a CHNA by the last day of Year 4. 
Accordingly, U has failed to meet the requirements of section 501(r)(3) 
with respect to V in Year 4 because V has failed to conduct a CHNA in 
Years 2, 3, and 4. U is subject to a tax equal to $50,000 for Year 4.
    (ii) V also fails to conduct a CHNA by the last day of Year 5. 
Accordingly, U has failed to meet the requirements of section 501(r)(3) 
with respect to V in Year 5 because V has failed to conduct a CHNA in 
Years 3, 4, and 5. U is subject to a tax equal to $50,000 for Year 5.
    Example 2. P is a hospital organization that operates only one 
hospital facility, Q. In Year 1, Q conducts a CHNA and adopts an 
implementation strategy to meet the health needs identified through the 
CHNA. In Years 2 and 3, Q does not conduct a CHNA. In Year 4, Q conducts 
a CHNA but does not adopt an implementation strategy to meet the health 
needs identified through that CHNA by the 15th day of the fifth month of 
Year 5. Accordingly, P has failed to meet the requirements of section 
501(r)(3) with respect to Q in Year 4 because Q has failed to adopt an 
implementation strategy by the 15th day of the fifth month after the end 
of the taxable year in which Q conducted its CHNA. P is subject to a tax 
equal to $50,000 for Year 4.
    Example 3. R is a hospital organization that operates two hospital 
facilities, S and T. In Year 1, S and T each conduct a CHNA and adopt an 
implementation strategy to meet the health needs identified through the 
CHNA. In Years 2 and 3, S and T do not conduct a CHNA. S and T each fail 
to conduct a CHNA by the last day of Year 4. Accordingly, R has failed 
to meet the requirements of section 501(r)(3) with respect to both S and 
T in Year 4. R is subject to a tax equal to $100,000 ($50,000 for S's 
failure plus $50,000 for T's failure) for Year 4.

    (b) Interaction with other provisions--(1) Correction. Unless a 
hospital organization's failure to meet the requirements of section 
501(r)(3) involves an omission or error that is described in and 
corrected in accordance with Sec.  1.501(r)-2(b) (and is thus not 
considered a failure), a failure to meet the requirements of section 
501(r)(3) will result in a tax being imposed on the organization under 
this section, notwithstanding the organization's correction and 
disclosure of the failure in accordance with the guidance described in 
Sec.  1.501(r)-2(c).
    (2) Interaction with other taxes. The tax imposed by this section is 
in addition to any tax imposed by Sec.  1.501(r)-2(d) or as a result of 
revocation of a hospital organization's section 501(c)(3) status.
    (c) Effective/applicability date. Paragraph (a) of this section 
applies on and after December 29, 2014.

[T.D. 9708, 79 FR 79015, Dec. 31, 2014, as amended at 80 FR 12765, Mar. 
11, 2015]



Sec.  53.4960-0  Table of contents.

                 Sec.  53.4960-1 Scope and definitions.

    (a) Scope.
    (b) Applicable tax-exempt organization.
    (1) In general.
    (i) Section 501(a) organization.

[[Page 254]]

    (ii) Section 521 farmers' cooperative.
    (iii) Section 115(1) organization.
    (iv) Section 527 political organization.
    (2) Certain foreign organizations.
    (3) Organization described in section 501(c)(1)(A)(i) for which the 
enabling act provides for exemption from all current and future Federal 
taxes.
    (c) Applicable year.
    (1) In general.
    (2) Examples.
    (3) Short applicable years.
    (i) In general.
    (ii) Initial year of ATEO status.
    (iii) Year of termination of ATEO status.
    (A) Termination on or before the close of the calendar year ending 
with or within the taxable year of termination.
    (B) Termination after the close of the calendar year ending in the 
taxable year of termination.
    (4) Examples.
    (d) Covered employee.
    (1) In general.
    (2) Five highest-compensated employees.
    (i) In general.
    (ii) Limited hours exception.
    (A) In general.
    (1) Remuneration requirement.
    (2) Hours of service requirement.
    (B) Certain payments disregarded.
    (C) Safe harbor.
    (iii) Nonexempt funds exception.
    (A) In general.
    (1) Remuneration requirement.
    (2) Hours of service requirement.
    (3) Related organizations requirement.
    (B) Certain payments disregarded.
    (iv) Limited services exception.
    (A) Remuneration requirement.
    (B) Related ATEO requirement.
    (1) Ten percent remuneration condition.
    (2) Less remuneration condition.
    (3) Examples.
    (e) Employee.
    (1) In general.
    (2) Directors.
    (3) Trustees.
    (f) Employer.
    (1) In general.
    (2) Disregarded entities.
    (g) Medical services.
    (1) Medical and veterinary services.
    (i) In general.
    (ii) Examples.
    (2) Definition of licensed medical professional.
    (h) Predecessor.
    (1) Asset acquisitions.
    (2) Corporate reorganizations.
    (3) Predecessor change of form or of place of organization.
    (4) ATEO that becomes a non-ATEO.
    (i) General rule.
    (ii) Intervening changes or entities.
    (5) Predecessor of a predecessor.
    (6) Elections under sections 336(e) and 338.
    (7) Date of transaction.
    (i) Related organization.
    (1) In general.
    (i) Controls or controlled by test.
    (ii) Controlled by same persons test.
    (iii) Supported organization test.
    (iv) Supporting organization test.
    (v) VEBA test.
    (2) Control.
    (i) In general.
    (ii) Stock corporation.
    (iii) Partnership.
    (iv) Trust.
    (v) Nonstock organization.
    (A) In general.
    (B) Control of a trustee or director of a nonstock organization.
    (C) Representatives.
    (vi) Brother-sister related organizations.
    (vii) Section 318 principles.
    (A) In general.
    (B) Nonstock organizations.
    (1) Attribution of ownership interest from a nonstock organization 
to a controlling person.
    (2) Attribution of ownership interest from a controlling person to a 
nonstock organization.
    (3) Indirect control of a nonstock organization through another 
nonstock organization.
    (4) Attribution of control of nonstock organization to family 
member.
    (3) Examples.

 Sec.  53.4960-2 Determination of remuneration paid for a taxable year.

    (a) Remuneration.
    (1) In general.
    (2) Exclusion of remuneration for medical services.
    (i) In general.
    (ii) Allocation of remuneration for medical services and non-medical 
services.
    (iii) Examples.
    (b) Source of payment.
    (1) Remuneration paid by third parties for employment by an 
employer.
    (2) Remuneration paid by a related organization for employment by 
the related organization.
    (c) Applicable year in which remuneration is treated as paid.
    (1) In general.
    (2) Vested remuneration.
    (3) Change in related status during the year.
    (d) Amount of remuneration treated as paid.
    (1) In general.
    (2) Earnings and losses on previously paid remuneration.
    (i) In general.
    (ii) Previously paid remuneration.
    (A) New covered employee.
    (B) Existing covered employee.
    (iii) Earnings.

[[Page 255]]

    (iv) Losses.
    (v) Net earnings.
    (vi) Net losses.
    (3) Remuneration paid for a taxable year before the employee becomes 
a covered employee.
    (i) In general.
    (ii) Examples.
    (e) Calculation of present value.
    (1) In general.
    (2) Treatment of future payment amount as present value for certain 
amounts.
    (f) Examples.

 Sec.  53.4960-3 Determination of whether there is a parachute payment.

    (a) Parachute payment.
    (1) In general.
    (2) Exclusions.
    (i) Certain qualified plans.
    (ii) Certain annuity contracts.
    (iii) Compensation for medical services.
    (iv) Payments to non-HCEs.
    (3) Determination of HCEs for purposes of the exclusion from 
parachute payments.
    (b) Payment in the nature of compensation.
    (1) In general.
    (2) Consideration paid by covered employee.
    (c) When payment is considered to be made.
    (1) In general.
    (2) Transfers of section 83 property.
    (3) Stock options.
    (d) Payment contingent on an employee's separation from employment.
    (1) In general.
    (2) Employment agreements.
    (i) In general.
    (ii) Example.
    (3) Noncompetition agreements.
    (4) Payment of amounts previously included in income or excess 
remuneration.
    (5) Window programs.
    (6) Anti-abuse provision.
    (e) Involuntary separation from employment.
    (1) In general.
    (2) Separation from employment for good reason.
    (i) In general.
    (ii) Material negative change required.
    (iii) Deemed material negative change.
    (A) Material diminution of compensation.
    (B) Material diminution of responsibility.
    (C) Material diminution of authority of a supervisor.
    (D) Material diminution of a location.
    (E) Material change of location.
    (F) Other material breach.
    (3) Separation from employment.
    (f) Accelerated payment or accelerated vesting resulting from an 
involuntary separation from employment.
    (1) In general.
    (2) Nonvested payments subject to a non-service vesting condition.
    (3) Vested payments.
    (4) Nonvested payments subject to a service vesting condition.
    (i) In general.
    (A) Vesting trigger.
    (B) Vesting condition.
    (C) Services condition.
    (ii) Value of the lapse of the obligation to continue to perform 
services.
    (iii) Accelerated vesting of equity compensation.
    (5) Application to benefits under a nonqualified deferred 
compensation plan.
    (6) Present value.
    (7) Examples.
    (g) Three-times-base-amount test for parachute payments.
    (1) In general.
    (2) Examples.
    (h) Calculating present value.
    (1) In general.
    (2) Deferred payments.
    (3) Health care.
    (i) Discount rate.
    (j) Present value of a payment to be made in the future that is 
contingent on an uncertain future event or condition.
    (1) Treatment based on the estimated probability of payment.
    (2) Correction of incorrect estimates.
    (3) Initial option value estimate.
    (4) Examples.
    (k) Base amount.
    (1) In general.
    (2) Short or incomplete taxable years.
    (3) Excludable fringe benefits.
    (4) Section 83(b) income.
    (l) Base period.
    (1) In general.
    (2) Determination of base amount if employee separates from 
employment in the year hired.
    (3) Examples.

  Sec.  53.4960-4 Liability for tax on excess remuneration and excess 
                           parachute payments.

    (a) Liability, reporting, and payment of excise taxes.
    (1) Liability.
    (2) Reporting and payment.
    (3) Arrangements between an ATEO and a related organization.
    (4) Certain foreign related organizations.
    (5) [Reserved]
    (b) Amounts subject to tax.
    (1) Excess remuneration.
    (i) In general.
    (ii) Exclusion for excess parachute payments.
    (2) Excess parachute payment.
    (c) Calculation of liability for tax on excess remuneration.
    (1) In general.

[[Page 256]]

    (2) Calculation if liability is allocated from more than one ATEO 
with respect to an individual.
    (3) Calculation if liability is allocated from an ATEO with a short 
applicable year.
    (4) Examples.
    (d) Calculation of liability for excess parachute payments.
    (1) In general.
    (2) Computation of excess parachute payments.
    (3) Reallocation when the payment is disproportionate to base 
amount.
    (4) Election to prepay tax.
    (5) Liability after a redetermination of total parachute payments.
    (6) Examples.

                       Sec.  53.4960-5 [Reserved]

                   Sec.  53.4960-6 Applicability date.

    (a) General applicability date.
    (b) [Reserved]

[T.D. 9938, 86 FR 6219, Jan. 19, 2021]



Sec.  53.4960-1  Scope and definitions.

    (a) Scope. This section provides definitions for purposes of section 
4960, this section, and Sec. Sec.  53.4960-2 through 53.4960-6. Section 
53.4960-2 provides definitions and rules for determining the amount of 
remuneration paid for a taxable year. Section 53.4960-3 provides 
definitions and rules for determining whether a parachute payment is 
paid. Section 53.4960-4 provides definitions and rules for calculating 
the amount of excess remuneration paid for a taxable year, excess 
parachute payments paid in a taxable year, and liability for the excise 
tax. Section 53.4960-5 is reserved for rules on the coordination of 
sections 4960 and 162(m). Section 53.4960-6 provides rules regarding the 
applicability date for the regulations in Sec. Sec.  53.4960-1 through 
53.4960-5. The rules and definitions provided in this section through 
Sec.  53.4960-6 apply solely for purposes of section 4960 unless 
specified otherwise.
    (b) Applicable tax-exempt organization--(1) In general. Applicable 
tax-exempt organization or ATEO means any organization that is one of 
the following types of organizations:
    (i) Section 501(a) organization. The organization is exempt from 
taxation under section 501(a) (except as provided in paragraph (b)(2) or 
(b)(3) of this section);
    (ii) Section 521 farmers' cooperative. The organization is a 
farmers' cooperative organization described in section 521(b)(1);
    (iii) Section 115(1) organization. The organization has income 
excluded from taxation under section 115(1); or
    (iv) Section 527 political organization. The organization is a 
political organization described in section 527(e)(1).
    (2) Certain foreign organizations. Any foreign organization 
described in section 4948(b) that either is exempt from tax under 
section 501(a) or is a taxable private foundation (section 4948(b) 
organization) is not an ATEO. A foreign organization is an organization 
not created or organized in the United States or in any possession 
thereof, or under the law of the United States, any State, the District 
of Columbia, or any possession of the United States. See section 4948(b) 
and Sec.  53.4948-1. For purposes of this paragraph (b)(2) and the 
application of section 4960 to a taxable year, an organization's status 
as a section 4948(b) organization is determined at the end of its 
taxable year.
    (c) Applicable year--(1) In general. Applicable year means the 
calendar year ending with or within the ATEO's taxable year. See Sec.  
53.4960-4 regarding how an ATEO's applicable year affects the liability 
of related organizations.
    (2) Examples. The following examples illustrate the rules of 
paragraph (c)(1) of this section.
    (i) Example 1 (Calendar year taxpayer)--(A) Facts. ATEO 1 uses the 
calendar year as its taxable year and became an ATEO before 2022.
    (B) Conclusion. ATEO 1's applicable year for its 2022 taxable year 
is the period from January 1, 2022, through December 31, 2022 (that is, 
the 2022 calendar year).
    (ii) Example 2 (Fiscal year taxpayer)--(A) Facts. ATEO 2 uses a 
taxable year that starts July 1 and ends June 30 and became an ATEO 
before 2022.
    (B) Conclusion. ATEO 2's applicable year for the taxable year 
beginning July 1, 2022, and ending June 30, 2023, is the 2022 calendar 
year.
    (3) Short applicable years--(i) In general. An ATEO may have an 
applicable year that does not span the entire calendar year for the 
initial taxable year that the organization is an ATEO or for

[[Page 257]]

the taxable year in which the taxpayer ceases to be an ATEO. The 
beginning and end dates of the applicable year in the case of an ATEO's 
change in status depend on when the change in status occurs.
    (ii) Initial year of ATEO status. For the taxable year in which an 
ATEO first becomes an ATEO, applicable year means the period beginning 
on the date the ATEO first becomes an ATEO and ending on the last day of 
the calendar year ending with or within such taxable year (or, if 
earlier, the date of termination of ATEO status, as described in 
paragraph (c)(3)(ii)(A) of this section). If the taxable year in which 
an ATEO first becomes an ATEO ends before the end of the calendar year 
in which the ATEO first becomes an ATEO, then there is no applicable 
year for the ATEO's first taxable year; however, for the ATEO's next 
taxable year, applicable year means the period beginning on the date the 
ATEO first becomes an ATEO and ending on December 31 of the calendar 
year (or, if earlier, the date of termination of ATEO status, as 
described in paragraph (c)(3)(ii)(A) of this section).
    (iii) Year of termination of ATEO status--(A) Termination on or 
before the close of the calendar year ending with or within the taxable 
year of termination. If an ATEO has a termination of ATEO status during 
the taxable year and the termination of ATEO status occurs on or before 
the close of the calendar year ending with or within such taxable year, 
then, for the taxable year of termination of ATEO status, applicable 
year means the period starting January 1 of the calendar year of the 
termination of ATEO status and ending on the date of the termination of 
ATEO status.
    (B) Termination after the close of the calendar year ending in the 
taxable year of termination. If an ATEO has a termination of ATEO status 
during the taxable year and the termination of ATEO status occurs after 
the close of the calendar year ending within such taxable year, then, 
for the taxable year of the termination of ATEO status, applicable year 
means both the calendar year ending within such taxable year and the 
period beginning January 1 of the calendar year of the termination of 
ATEO status and ending on the date of the termination of ATEO status. 
Both such applicable years are treated as separate applicable years. See 
Sec.  53.4960-4(b)(2)(ii) for rules regarding calculation of the tax in 
the event there are multiple applicable years associated with a taxable 
year.
    (4) Examples. The following examples illustrate the rules of 
paragraph (c)(3) of this section. For purposes of these examples, assume 
any entity referred to as ``ATEO'' is an ATEO and any entity referred to 
as ``CORP'' is not an ATEO.
    (i) Example 1 (Taxable year of formation ending after December 31)--
(A) Facts. ATEO 1, ATEO 2, and CORP 1 are related organizations that all 
use a taxable year that starts July 1 and ends June 30. ATEO 1 is 
recognized as a section 501(c)(3) organization by the IRS on May 8, 
2023, effective as of October 1, 2022. ATEO 2 became an ATEO in 2017.
    (B) Conclusion (ATEO 1). ATEO 1's applicable year for the taxable 
year beginning October 1, 2022, and ending June 30, 2023, is the period 
beginning October 1, 2022, and ending December 31, 2022. For purposes of 
determining the amount of remuneration paid by ATEO 1 and all related 
organizations for ATEO 1's taxable year beginning October 1, 2022, and 
ending June 30, 2023, (including for purposes of determining ATEO 1's 
covered employees), only remuneration paid between October 1, 2022, and 
December 31, 2022, is taken into account. Thus, any remuneration paid by 
ATEO 1, ATEO 2, and CORP 1 before October 1, 2022, is disregarded for 
purposes of ATEO 1's applicable year associated with its initial taxable 
year.
    (C) Conclusion (ATEO 2). ATEO 2's applicable year for its taxable 
year beginning July 1, 2022, and ending June 30, 2023, is the 2022 
calendar year. Thus, any remuneration paid by ATEO 1, ATEO 2, and CORP 1 
during the 2022 calendar year is taken into account for purposes of 
determining ATEO 2's covered employees and remuneration paid for ATEO 
2's taxable year ending June 30, 2023.
    (ii) Example 2 (Taxable year of formation ending before December 
31)--(A) Facts. Assume the same facts as in

[[Page 258]]

paragraph (c)(4)(i)(A) of this section (Example 1), except that ATEO 1 
is recognized as a section 501(c)(3) organization effective as of March 
15, 2023.
    (B) Conclusion. ATEO 1 has no applicable year for the taxable year 
starting March 15, 2023, and ending June 30, 2023, because no calendar 
year ends (or termination of ATEO status occurs) with or within the 
taxable year. ATEO 1's applicable year for the taxable year ending June 
30, 2024, is the period beginning March 15, 2023, and ending December 
31, 2023. For purposes of determining the amount of remuneration paid by 
ATEO 1 and all related organizations for ATEO 1's taxable year ending 
June 30, 2024 (including for purposes of determining ATEO 1's covered 
employees), only remuneration paid between March 15, 2023, and December 
31, 2023, is taken into account. The conclusion for ATEO 2 is the same 
as in paragraph (c)(4)(i)(C) of this section (Example 1).
    (iii) Example 3 (Termination before the close of the calendar year 
ending in the taxable year of termination)--(A) Facts. Assume the same 
facts as in paragraph (c)(4)(i)(A) of this section (Example 1). In 
addition, ATEO 1 has a termination of ATEO status on September 30, 2024.
    (B) Conclusion. For ATEO 1's taxable year beginning July 1, 2024, 
and ending September 30, 2024, ATEO 1's applicable year is the period 
beginning January 1, 2024, and ending September 30, 2024.
    (iv) Example 4 (Termination after the close of the calendar year 
ending in the taxable year of termination)--(A) Facts. Assume the same 
facts as in paragraph (c)(4)(i)(A) of this section (Example 1). In 
addition, ATEO 1 has a termination of ATEO status on March 31, 2025.
    (B) Conclusion. For ATEO 1's taxable year beginning July 1, 2024, 
and ending March 31, 2025, ATEO 1 has two applicable years: the 2024 
calendar year, and the period beginning on January 1, 2025, and ending 
on March 31, 2025.
    (d) Covered employee--(1) In general. For each taxable year, covered 
employee means any individual who is one of the five highest-compensated 
employees of the ATEO for the taxable year or was a covered employee of 
the ATEO (or any predecessor) for any preceding taxable year beginning 
after December 31, 2016.
    (2) Five highest-compensated employees--(i) In general. Except as 
otherwise provided in this paragraph (d)(2), an individual is one of an 
ATEO's five highest- compensated employees for the taxable year if the 
individual is among the five employees of the ATEO with the highest 
amount of remuneration paid during the applicable year, as determined 
under Sec.  53.4960-2. However, remuneration for which the deduction is 
disallowed by reason of section 162(m) is taken into account for 
purposes of determining an ATEO's five highest-compensated employees. 
The five highest-compensated employees of an ATEO for the taxable year 
are identified on the basis of the total remuneration paid during the 
applicable year to the employee for services performed as an employee of 
the ATEO or any related organization. An ATEO may have fewer than five 
highest-compensated employees for a taxable year if it has fewer than 
five employees other than employees who are disregarded under paragraphs 
(d)(2)(ii) through (iv) of this section. For purposes of this paragraph 
(d)(2), a grant of a legally binding right (within the meaning of Sec.  
1.409A-1(b)) to vested remuneration is considered to be remuneration 
paid as of the date of grant, as described in Sec.  53.4960-2(c)(2), and 
a person or governmental entity is considered to grant a legally binding 
right to nonvested remuneration if the person or governmental entity 
grants a legally binding right to remuneration that is not vested within 
the meaning of Sec.  53.4960-2(c)(2). An employee is disregarded for 
purposes of determining an ATEO's five highest-compensated employees for 
a taxable year if, during the applicable year, neither the ATEO nor any 
related organization paid remuneration or granted a legally binding 
right to nonvested remuneration to the individual for services the 
individual performed as an employee of the ATEO or any related 
organization.
    (ii) Limited hours exception--(A) In general. An individual is 
disregarded for purposes of determining an ATEO's five highest-
compensated employees for a taxable year if all of the following 
requirements are met:
    (1) Remuneration requirement. Neither the ATEO nor any related ATEO 
paid

[[Page 259]]

remuneration or granted a legally binding right to nonvested 
remuneration to the individual for services the individual performed as 
an employee of the ATEO during the applicable year; and
    (2) Hours of service requirement. The individual performed services 
as an employee of the ATEO and all related ATEOs for no more than 10 
percent of the total hours the individual worked as an employee of the 
ATEO and any related organizations during the applicable year. An ATEO 
may instead make this determination based on the total days the 
individual worked as an employee of the ATEO and all related ATEOs as a 
percentage of the total days worked as an employee of the ATEO and all 
related organizations, provided that for purposes of the calculation, 
any day that the individual worked at least one hour as an employee of 
the ATEO or a related ATEO is treated as a day worked as an employee of 
the ATEO and not for any other organization.
    (B) Certain payments disregarded. For purposes of paragraph 
(d)(2)(ii)(A)(1) of this section, a payment of remuneration made to the 
individual by a related organization that is an employer of the 
individual and for which the related organization is neither entitled to 
reimbursement by the ATEO nor entitled to any other consideration from 
the ATEO is not considered remuneration paid by the ATEO under Sec.  
53.4960-2(b)(1), and a payment of remuneration made to the individual by 
a related organization is not treated as remuneration paid by the ATEO 
under Sec.  53.4960-2(b)(2).
    (C) Safe harbor. For purposes of paragraph (d)(2)(ii)(A)(2) of this 
section, an individual is treated as having performed services as an 
employee of the ATEO and all related ATEOs for no more than 10 percent 
of the total hours the individual worked as an employee of the ATEO and 
all related organizations during the applicable year if the employee 
performed no more than 100 hours of service as an employee of the ATEO 
and all related ATEOs during the applicable year.
    (iii) Nonexempt funds exception--(A) In general. An individual is 
disregarded for purposes of determining an ATEO's five highest-
compensated employees for a taxable year if all the following 
requirements are met:
    (1) Remuneration requirement. Neither the ATEO, nor any related 
ATEO, nor any taxable related organization controlled by the ATEO, or by 
one or more related ATEOs, either alone or together with the ATEO, paid 
remuneration or granted a legally binding right to nonvested 
remuneration to the individual for services the individual performed as 
an employee of an ATEO during the applicable year and the preceding 
applicable year. For this purpose, whether a taxable related 
organization is controlled by the ATEO (or one or more related ATEOs) is 
determined without regard to paragraph (i)(2)(vii)(B)(2) of this section 
and without regard to section 318(a)(3) for purposes of applying 
paragraph (i)(2)(vii)(A) of this section, so that an interest in a 
corporation or nonstock entity is not attributed downward in determining 
control of the corporation or nonstock entity;
    (2) Hours of service requirement. The individual performed services 
as an employee of the ATEO and any related ATEOs for not more than 50 
percent of the total hours worked as an employee of the ATEO and any 
related organizations during the applicable year and the preceding 
applicable year. An ATEO may instead make this determination based on 
the total days the individual worked as an employee of the ATEO and all 
related ATEOs as a percentage of the total days worked as an employee of 
the ATEO and all related organizations, provided that for purposes of 
the calculation, any day that the individual worked at least one hour as 
an employee of the ATEO or a related ATEO is treated as a day worked as 
an employee of the ATEO and not for any other organization; and
    (3) Related organizations requirement. No related organization that 
paid remuneration or granted a legally binding right to nonvested 
remuneration to the individual during the applicable year and the 
preceding applicable year provided services for a fee to the ATEO, to 
any related ATEO, or to any taxable related organization controlled by 
the ATEO or by one or more related ATEOs, either alone or together with

[[Page 260]]

the ATEO, during the applicable year and the preceding applicable year. 
For purposes of this paragraph (d)(2)(iii)(A)(3), whether a taxable 
related organization is controlled by the ATEO (or one or more related 
ATEOs) is determined without regard to paragraph (i)(2)(vii)(B)(2) of 
this section and without regard to section 318(a)(3) for purposes of 
applying paragraph (i)(2)(vii)(A) of this section, so that an interest 
in a corporation or nonstock entity is not attributed downward in 
determining control of the corporation or nonstock entity.
    (B) Certain payments disregarded. For purposes of paragraph 
(d)(2)(iii)(A)(1) of this section, a payment of remuneration made to an 
individual by a related organization that is an employer of the 
individual and for which the related organization is neither entitled to 
reimbursement by the ATEO nor entitled to any other consideration from 
the ATEO is not considered remuneration paid by the ATEO under Sec.  
53.4960-2(b)(1) and a payment of remuneration made to the individual by 
a related organization is not treated as paid by the ATEO under Sec.  
53.4960-2(b)(2).
    (iv) Limited services exception. An individual is disregarded for 
purposes of determining an ATEO's five highest-compensated employees for 
a taxable year even though the ATEO paid remuneration to the individual 
if, disregarding Sec.  53.4960-2(b)(2), all of the following 
requirements are met:
    (A) Remuneration requirement. The ATEO did not pay 10 percent or 
more of the individual's total remuneration for services performed as an 
employee of the ATEO and all related organizations during the applicable 
year; and
    (B) Related ATEO requirement. The ATEO had at least one related ATEO 
during the applicable year and one of the following conditions applies:
    (1) Ten percent remuneration condition. A related ATEO paid at least 
10 percent of the remuneration paid by the ATEO and any related 
organizations during the applicable year; or
    (2) Less remuneration condition. No related ATEO paid at least 10 
percent of the total remuneration paid by the ATEO and any related 
organizations and the ATEO paid less remuneration to the individual than 
at least one related ATEO during the applicable year.
    (3) Examples. The following examples illustrate the rules of this 
paragraph (d). For purposes of these examples, assume any entity 
referred to as ``ATEO'' is an ATEO, any entity referred to as ``CORP'' 
is not an ATEO and is not a publicly held company within the meaning of 
section 162(m)(2) unless otherwise stated, and each taxpayer uses the 
calendar year as its taxable year.
    (i) Example 1 (Employee of two related ATEOs)--(A) Facts. ATEO 1 and 
ATEO 2 are related organizations and have no other related 
organizations. Both employ Employee A during calendar year 2022 and pay 
remuneration to Employee A for Employee A's services. During 2022, 
Employee A performed services for 1,000 hours as an employee of ATEO 1 
and 1,000 hours as an employee of ATEO 2.
    (B) Conclusion. Employee A may be a covered employee of both ATEO 1 
and ATEO 2 as one of the five highest-compensated employees for taxable 
year 2022 under paragraph (d)(2)(i) of this section because the 
exceptions in paragraphs (d)(2)(ii) through (iv) of this section do not 
apply. Because they are related organizations, ATEO 1 and ATEO 2 must 
each include the remuneration paid to Employee A by the other during 
each of their applicable years in determining their respective five 
highest-compensated employees for taxable year 2022.
    (ii) Example 2 (Employee of an ATEO and a related non-ATEO)--(A) 
Facts. Assume the same facts as in paragraph (d)(3)(i) of this section 
(Example 1), except that ATEO 1 is instead CORP 1.
    (B) Conclusion (CORP 1). For taxable year 2022, CORP 1 is not an 
ATEO and therefore does not need to identify covered employees.
    (C) Conclusion (ATEO 2). Employee A may be a covered employee of 
ATEO 2 as one of its five highest-compensated employees for taxable year 
2022 under paragraph (d)(2)(i) of this section because no exception in 
paragraphs (d)(2)(ii) through (iv) of this section applies. ATEO 2 must 
include the remuneration paid to Employee A by CORP

[[Page 261]]

1 during its applicable year in determining ATEO 2's five highest-
compensated employees for taxable year 2022.
    (iii) Example 3 (Amounts for which a deduction is disallowed under 
section 162(m) are taken into account for purposes of determining the 
five highest-compensated employees)--(A) Facts. CORP 2 is a publicly 
held corporation within the meaning of section 162(m)(2) and is a 
related organization of ATEO 3. ATEO 3 is a corporation that is part of 
CORP 2's affiliated group (as defined in section 1504, without regard to 
section 1504(b)) and has no other related organizations. Employee B is a 
covered employee (as defined in section 162(m)(3)) of CORP 2 and an 
employee of ATEO 3. In 2022, CORP 2 paid Employee B $8 million of 
remuneration for services provided as an employee of CORP 2 and ATEO 3 
paid Employee B $500,000 of remuneration for services provided as an 
employee of ATEO 3. $7.5 million of the remuneration is compensation for 
which a deduction is disallowed pursuant to section 162(m)(1).
    (B) Conclusion. The $7.5 million of remuneration for which a 
deduction is disallowed under section 162(m)(1) is taken into account 
for purposes of determining ATEO 3's five highest-compensated employees. 
Thus, ATEO 3 is treated as paying Employee B $8.5 million of 
remuneration for purposes of determining its five highest-compensated 
employees.
    (iv) Example 4 (Employee disregarded due to receiving no 
remuneration)--(A) Facts. Employee C is an officer of ATEO 4 who 
performs more than minor services for ATEO 4. In 2022, neither ATEO 4 
nor any related organization paid remuneration or granted a legally 
binding right to any nonvested remuneration to Employee C. ATEO 4 paid 
premiums for insurance for liability arising from Employee C's service 
with ATEO 4, which is properly treated as a working condition fringe 
benefit excluded from gross income under Sec.  1.132-5.
    (B) Conclusion. Even though Employee C is an employee of ATEO 4, 
Employee C is disregarded for purposes of determining ATEO 4's five 
highest-compensated employees for taxable year 2022 under paragraph 
(d)(2)(i) of this section because neither ATEO 4 nor any related 
organization paid Employee C any remuneration (nor did they grant a 
legally binding right to nonvested remuneration) in applicable year 
2022. The working condition fringe benefit is not wages within the 
meaning of section 3401(a), as provided in section 3401(a)(19), and thus 
is not remuneration within the meaning of Sec.  53.4960-2(a).
    (v) Example 5 (Limited hours exception)--(A) Facts. ATEO 5 and CORP 
3 are related organizations. ATEO 5 has no other related organizations. 
Employee D is an employee of CORP 3. As part of Employee D's duties at 
CORP 3, Employee D serves as an officer of ATEO 5. Only CORP 3 paid 
remuneration (or granted a legally binding right to nonvested 
remuneration) to Employee D and ATEO 5 did not reimburse CORP 3 for any 
portion of Employee D's remuneration in any manner. During 2022, 
Employee D provided services as an employee for 2,000 hours to CORP 3 
and 200 hours to ATEO 5.
    (B) Conclusion. Even though Employee D is an employee of ATEO 5 
because Employee D provided more than minor services as an officer, 
Employee D is disregarded for purposes of determining ATEO 5's five 
highest-compensated employees for taxable year 2022. Employee D is 
disregarded under paragraph (d)(2)(ii) of this section because only CORP 
3 paid Employee D any remuneration or granted a legally binding right to 
nonvested remuneration in applicable year 2022 and Employee D provided 
services as an employee of ATEO 5 for 200 hours, which is not more than 
ten percent of the 2,200 total hours (2,000 + 200 = 2,200) worked as an 
employee of ATEO 5 and all related organizations.
    (vi) Example 6 (Limited hours exception)--(A) Facts. Assume the same 
facts as in paragraph (d)(3)(v) of this section (Example 5), except that 
ATEO 5 also provides a reasonable allowance for expenses incurred by 
Employee D in executing Employee D's duties as an officer of ATEO 5, 
which is properly excluded from gross income under an accountable plan 
described in Sec.  1.62-2.
    (B) Conclusion. The conclusion is the same as in paragraph 
(d)(3)(v)(B) of this section (Example 5). Specifically, even

[[Page 262]]

though Employee D is an employee of ATEO 5 because Employee D provided 
more than minor services for ATEO 5, Employee D is disregarded for 
purposes of determining ATEO 5's five highest-compensated employees for 
taxable year 2022 under paragraph (d)(2)(ii) of this section because the 
expense allowance under the accountable plan is excluded from wages 
within the meaning of section 3401(a), as provided in Sec.  31.3401(a)-
4, and thus is not remuneration within the meaning of Sec.  53.4960-
2(a).
    (vii) Example 7 (No exception applies due to source of payment)--(A) 
Facts. Assume the same facts as in paragraph (d)(3)(v) of this section 
(Example 5), except that ATEO 5 has a contractual arrangement with CORP 
3 to reimburse CORP 3 for the hours of service Employee D provides to 
ATEO 5 during applicable year 2022 by paying an amount equal to the 
total remuneration received by Employee D from both ATEO 5 and CORP 3, 
multiplied by a fraction equal to the hours of service Employee D 
provided ATEO 5 over Employee D's total hours of service to both ATEO 5 
and CORP 3.
    (B) Conclusion. Employee D may be one of ATEO 5's five highest-
compensated employees for taxable year 2022 under paragraph (d)(2)(i) of 
this section because the exceptions in paragraphs (d)(2)(ii) through 
(iv) of this section do not apply. Pursuant to the contractual 
arrangement between CORP 3 and ATEO 5, ATEO 5 reimburses CORP 3 for a 
portion of Employee D's remuneration during applicable year 2022; thus, 
the exceptions under paragraphs (d)(2)(ii) and (iii) of this section do 
not apply. Further, while ATEO 5 paid Employee D less than 10 percent of 
the total remuneration from ATEO 5 and all related organizations (200 
hours of service to ATEO 5/2,200 hours of service to ATEO 5 and all 
related organizations = 9 percent), it had no related ATEO; thus, the 
limited services exception under paragraph (d)(2)(iv) of this section 
does not apply.
    (viii) Example 8 (Nonexempt funds exception for part-time 
services)--(A) Facts. ATEO 6 and CORP 4 are related organizations. ATEO 
6 has no other related organizations and does not control CORP 4. During 
applicable year 2022, Employee E provided 2,000 hours of services as an 
employee of CORP 4 and 0 hours of services as an employee of ATEO 6; 
during applicable year 2023, Employee E provided 1,100 hours of services 
as an employee of CORP 4 and 900 hours of services as an employee of 
ATEO 6; during applicable year 2024, Employee E provided 1,100 hours of 
services as an employee of CORP 4 and 900 hours of services as an 
employee of ATEO 6. ATEO 6 neither paid any remuneration to Employee E 
nor paid a fee for services to CORP 4 during any applicable year. No 
exception under paragraphs (d)(2)(i), (ii), or (iv) applies to Employee 
E.
    (B) Conclusion (2023). Employee E is disregarded for purposes of 
determining ATEO 6's five highest-compensated employees for taxable year 
2023 under paragraph (d)(2)(iii) of this section because for applicable 
years 2022 and 2023, Employee E provided services as an employee of ATEO 
6 for not more than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (900 hours/4,000 hours), 
and ATEO 6 neither paid any remuneration to Employee E nor paid a fee 
for services to CORP 4 during applicable years 2022 and 2023.
    (C) Conclusion (2024). Employee E is disregarded for purposes of 
determining ATEO 6's five highest-compensated employees for taxable year 
2024 under paragraph (d)(2)(iii) of this section because for applicable 
years 2023 and 2024, Employee E provided services as an employee of ATEO 
6 for not more than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (1,800 hours/4,000 hours), 
and ATEO 6 neither paid any remuneration to Employee E nor paid a fee 
for services to CORP 4 during applicable years 2023 and 2024.
    (ix) Example 9 (Nonexempt funds for full-time services in one 
applicable year)--(A) Facts. Assume the same facts as in paragraph 
(d)(3)(viii) of this section (Example 8), except that during applicable 
year 2022, Employee E provided services as an employee for 2,000 hours 
to CORP 4 and for 0 hours to ATEO 6; during applicable year 2023, 
Employee E provided services as an employee for 0 hours to CORP 4 and 
2,000 hours to ATEO 6; and during applicable year

[[Page 263]]

2024, Employee E resumes employment with CORP 4 so that Employee E 
provided services as an employee for 2,000 hours to CORP 4 and 0 hours 
to ATEO 6.
    (B) Conclusion (2023). Employee E is disregarded for purposes of 
determining ATEO 6's five highest-compensated employees for taxable year 
2023 under paragraph (d)(2)(iii) of this section because for applicable 
years 2022 and 2023, Employee E provided services as an employee of ATEO 
6 for not more than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (2,000 hours/4,000 hours), 
and ATEO 6 neither paid any remuneration to Employee E nor paid a fee 
for services to CORP 4 during applicable years 2022 and 2023.
    (C) Conclusion (2024). Employee E is disregarded for purposes of 
determining ATEO 6's five highest-compensated employees for taxable year 
2024 under paragraph (d)(2)(iii) of this section because for applicable 
years 2023 and 2024, Employee E provided services as an employee of ATEO 
6 for not more than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (2,000 hours/4,000 hours 
for ATEO 6 and CORP 4), and ATEO 6 neither paid any remuneration to 
Employee E nor paid a fee for services to CORP 4 during applicable years 
2023 and 2024.
    (x) Example 10 (Nonexempt funds exception for full-time services 
across two applicable years)--(A) Facts. Assume the same facts as in 
paragraph (d)(3)(viii)(A) of this section (Example 8), except that 
during applicable year 2022, Employee E provided services as an employee 
for 2,000 hours to CORP 4 and for 0 hours to ATEO 6; during applicable 
year 2023, Employee E provided services as an employee for 600 hours to 
CORP 4 and for 1,400 hours to ATEO 6; and during applicable year 2024, 
Employee E provided services as an employee for 1,400 hours to CORP 4 
and for 600 hours to ATEO 6.
    (B) Conclusion (2023). Employee E is disregarded for purposes of 
determining ATEO 6's five highest-compensated employees for taxable year 
2023 under paragraph (d)(2)(iii) of this section because for applicable 
years 2022 and 2023, Employee E provided services as an employee of ATEO 
6 for not more than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (1,400 hours/4,000 hours), 
and ATEO 6 neither paid any remuneration to Employee E, nor paid a fee 
for services to CORP 4 during applicable years 2022 and 2023.
    (C) Conclusion (2024). Employee E is disregarded for purposes of 
determining ATEO 6's five highest-compensated employees for taxable year 
2024 under paragraph (d)(2)(iii) of this section because for applicable 
years 2023 and 2024, Employee E provided services as an employee of ATEO 
6 for not more than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (2,000 hours/4,000 hours), 
and ATEO 6 neither paid any remuneration to Employee E, nor paid a fee 
for services to CORP 4 during applicable years 2023 and 2024.
    (xi) Example 11 (Failure under the nonexempt funds exception)--(A) 
Facts. Assume the same facts as in paragraph (d)(3)(viii)(A) of this 
section (Example 8), except that during applicable year 2022, Employee E 
provided services as an employee for 2,000 hours to CORP 4 and for 0 
hours to ATEO 6; during applicable year 2023, Employee E provided 
services as an employee for 600 hours to CORP 4 and for 1,400 hours to 
ATEO 6; and during applicable year 2024, Employee E provided services as 
an employee for 1,300 hours to CORP 4 and for 700 hours to ATEO 6.
    (B) Conclusion (2023). Employee E is disregarded for purposes of 
determining ATEO 6's five highest-compensated employees for taxable year 
2023 under paragraph (d)(2)(iii) of this section because for applicable 
years 2022 and 2023, Employee E provided services as an employee of ATEO 
6 for less than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (1,400 hours/4,000 hours), 
and ATEO 6 neither paid any remuneration to Employee E, nor paid a fee 
for services to CORP 4 during applicable years 2022 and 2023.
    (C) Conclusion (2024). Employee E may be a covered employee of ATEO 
6 as one of its five highest-compensated employees for taxable year 2024 
because the requirements under paragraph

[[Page 264]]

(d)(2)(iii) are not met and no other exception applies. For applicable 
years 2023 and 2024, Employee E provided services as an employee of ATEO 
6 for more than 50 percent of the total hours Employee E provided 
services as an employee of ATEO 6 and CORP 4 (2,100 hours/4,000 hours).
    (xii) Example 12 (Limited services exception)--(A) Facts. ATEO 7, 
ATEO 8, ATEO 9, and ATEO 10 are a group of related organizations, none 
of which have any other related organizations. During 2022, Employee F 
is an employee of ATEO 7, ATEO 8, ATEO 9, and ATEO 10. During applicable 
year 2022, ATEO 7 paid 5 percent of Employee F's remuneration, ATEO 8 
paid 10 percent of Employee F's remuneration, ATEO 9 paid 25 percent of 
Employee F's remuneration, and ATEO 10 paid 60 percent of Employee F's 
remuneration. No exception under paragraph (d)(2)(i), (ii), or (iii) 
applies to Employee F for any of ATEO 7, ATEO 8, ATEO 9, or ATEO 10.
    (B) Conclusion (ATEO 7). Employee F is disregarded for purposes of 
determining ATEO 7's five highest-compensated employees for taxable year 
2022 under paragraph (d)(2)(iv) of this section because ATEO 7 paid less 
than 10 percent of Employee F's total remuneration from ATEO 7 and all 
related organizations during applicable year 2022, and another related 
ATEO paid at least 10 percent of that total remuneration.
    (C) Conclusion (ATEO 8, ATEO 9, and ATEO 10). Employee F may be a 
covered employee of ATEO 8, ATEO 9, and ATEO 10 as one of their 
respective five highest-compensated employees for their taxable years 
2022 because each of those ATEOs paid 10 percent or more of Employee F's 
remuneration during the 2022 applicable year. Thus, the limited services 
exception under paragraph (d)(2)(iv) of this section does not apply.
    (xiii) Example 13 (Limited services exception if no ATEO paid at 
least 10 percent of remuneration)--(A) Facts. Assume the same facts as 
in paragraph (d)(3)(xii) of this section (Example 12), except that for 
applicable year 2022, ATEO 7 paid 6 percent of F's remuneration, ATEO 8, 
ATEO 9, and ATEO 10 each paid 5 percent of Employee F's remuneration, 
and Employee F also works as an employee of CORP 5, a related 
organization of ATEO 7, ATEO 8, ATEO 9, and ATEO 10 that paid 79 percent 
of Employee F's remuneration for applicable year 2022.
    (B) Conclusion (ATEO 7). Employee F may be one of ATEO 7's five 
highest-compensated employees for taxable year 2022. Although ATEO 7 did 
not pay Employee F 10 percent or more of the total remuneration paid by 
ATEO 7 and all of its related organizations, no related ATEO paid more 
than 10 percent of Employee F's remuneration, and ATEO 7 did not pay 
less remuneration to Employee F than at least one related ATEO. Thus, 
the limited services exception under paragraph (d)(2)(iv) of this 
section does not apply, and Employee F may be one of ATEO 7's five 
highest-compensated employees because ATEO 7 paid Employee F more 
remuneration than any other related ATEO.
    (C) Conclusion (ATEO 8, ATEO 9, and ATEO 10). Employee F is 
disregarded for purposes of determining the five highest-compensated 
employees of ATEO 8, ATEO 9, and ATEO 10 for taxable year 2022 under 
paragraph (d)(2)(iv) of this section because none paid 10 percent or 
more of Employee F's total remuneration, each had no related ATEO that 
paid at least 10 percent of Employee F's total remuneration, and each 
paid less remuneration than at least one related ATEO (ATEO 7).
    (e) Employee--(1) In general. Employee means an employee as defined 
in section 3401(c) and Sec.  31.3401(c)-1. Section 31.3401(c)-1 
generally defines an employee as any individual performing services if 
the relationship between the individual and the person for whom the 
individual performs services is the legal relationship of employer and 
employee. As set forth in Sec.  31.3401(c)-1, this includes common law 
employees, as well as officers and employees of government entities, 
whether or not elected. An employee generally also includes an officer 
of a corporation, but an officer of a corporation who as such does not 
perform any services or performs only minor services and who neither 
receives, nor is entitled to receive, any remuneration is not considered 
to

[[Page 265]]

be an employee of the corporation solely due to the individual's status 
as an officer of the corporation. Whether an individual is an employee 
depends on the facts and circumstances.
    (2) Directors. A director of a corporation (or an individual holding 
a substantially similar position in a corporation or other entity) in 
the individual's capacity as such is not an employee of the corporation. 
See Sec.  31.3401(c)-1(f).
    (3) Trustees. The principles of paragraph (e)(2) of this section 
apply by analogy to a trustee of any arrangement classified as a trust 
for Federal tax purposes in Sec.  301.7701-4(a).
    (f) Employer--(1) In general. Employer means an employer within the 
meaning of section 3401(d), without regard to section 3401(d)(1) or (2), 
meaning generally the person or governmental entity for whom the 
services were performed as an employee. Whether a person or governmental 
entity is the employer depends on the facts and circumstances, but a 
person does not cease to be the employer through use of a payroll agent 
under section 3504, a common paymaster under section 3121(s), a person 
described in section 3401(d)(1) or (2), a certified professional 
employer organization under section 7705, or any similar arrangement.
    (2) Disregarded entities. In the case of a disregarded entity 
described in Sec.  301.7701-3, Sec.  301.7701-2(c)(2)(iv) does not 
apply; thus, the sole owner of the disregarded entity is treated as the 
employer of any individual performing services as an employee of the 
disregarded entity.
    (g) Medical services--(1) Medical and veterinary services--(i) In 
general. Medical services means services directly performed by a 
licensed medical professional (as defined in paragraph (g)(2) of this 
section) for the diagnosis, cure, mitigation, treatment, or prevention 
of disease in humans or animals; services provided for the purpose of 
affecting any structure or function of the human or animal body; and 
other services integral to providing such medical services. For purposes 
of section 4960, teaching and research services are not medical services 
except to the extent that they involve the services performed to 
directly diagnose, cure, mitigate, treat, or prevent disease or affect a 
structure or function of the body. Administrative services may be 
integral to directly providing medical services. For example, 
documenting the care and condition of a patient is integral to providing 
medical services, as is accompanying another licensed professional as a 
supervisor while that medical professional provides medical services. 
However, managing an organization's operations, including scheduling, 
staffing, appraising employee performance, and other similar functions 
that may relate to a particular medical professional or professionals 
who perform medical services, is not integral to providing medical 
services. See Sec.  53.4960-2(a)(2)(ii) for rules regarding allocating 
remuneration paid to a medical professional who performs both medical 
services and other services.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (g):
    (A) Example 1 (Administrative tasks that are integral to providing 
medical services)--(1) Facts. Employee A is a doctor who is licensed to 
practice medicine in the state in which Employee A's place of employment 
is located. In the course of Employee A's practice, Employee A treats 
patients and performs some closely-related administrative tasks, such as 
examining and updating patient records.
    (2) Conclusion. Employee A's administrative tasks are integral to 
providing medical services and thus are medical services.
    (B) Example 2 (Administrative tasks that are not integral to 
providing medical services)--(1) Facts. Assume the same facts as in 
paragraph (g)(1)(ii)(A)(1) of this section (Example 1), except that 
Employee A also performs additional administrative tasks such as 
analyzing the budget, authorizing capital expenditures, and managing 
human resources for the organization by which Employee A is employed.
    (2) Conclusion. Employee A's additional administrative tasks are not 
integral to providing medical services and thus are not medical 
services.
    (C) Example 3 (Teaching duties that are and are not medical 
services)--(1) Facts. Employee B is a medical doctor who is licensed to 
practice medicine in the

[[Page 266]]

state in which her place of employment, a university hospital, is 
located. Employee B's duties include overseeing and teaching a group of 
resident physicians who have restricted licenses to practice medicine. 
Those duties include supervising and instructing the resident physicians 
while they treat patients and instruction in a classroom setting.
    (2) Conclusion. Employee B's supervision and instruction of resident 
physicians during the course of patient treatment are necessary for the 
treatment, and thus are medical services. Employee B's classroom 
instruction is not necessary for patient treatment, and thus is not 
medical services.
    (D) Example 4 (Research services that are and are not medical 
services)--(1) Facts. Employee C is a licensed medical doctor who is 
employed to work on a research trial. Employee C provides an 
experimental treatment to patients afflicted by a disease and performs 
certain closely-related administrative tasks that ordinarily are 
performed by a medical professional in a course of patient treatment. As 
part of the research trial, Employee C also compiles and analyzes 
patient results and prepares reports and articles that would not 
ordinarily be prepared by a medical professional in the course of 
patient treatment.
    (2) Conclusion. Employee C's services that are ordinarily performed 
by a medical professional in a course of treatment, including closely-
related administrative tasks, are medical services. Because the 
compilation and analysis of patient results and the formulation of 
reports and articles are neither services ordinarily performed by a 
medical professional in a course of treatment nor necessary for such 
treatment, these services are not medical services.
    (2) Definition of licensed medical professional. Licensed medical 
professional means an individual who is licensed under applicable state 
or local law to perform medical services, including as a doctor, nurse, 
nurse practitioner, dentist, veterinarian, or other licensed medical 
professional.
    (h) Predecessor--(1) Asset acquisitions. If an ATEO (acquiror) 
acquires at least 80 percent of the operating assets or total assets 
(determined by fair market value on the date of acquisition) of another 
ATEO (target), then the target is a predecessor of the acquiror. For an 
acquisition of assets that occurs over time, only assets acquired within 
a 12-month period are taken into account to determine whether at least 
80 percent of the target's operating assets or total assets were 
acquired. However, this 12-month period is extended to include any 
continuous period that ends or begins on any day during which the 
acquiror has an arrangement to acquire directly or indirectly, assets of 
the target. Additions to the assets of target made as part of a plan or 
arrangement to avoid the application of this subsection to acquiror's 
purchase of target's assets are disregarded in applying this paragraph. 
This paragraph (h)(1) applies for purposes of determining whether an 
employee is a covered employee under paragraph (d)(1) of this section 
only with respect to a covered employee of the target who commences the 
performance of services for the acquiror (or a related organization with 
respect to the acquiror) within the period beginning 12 months before 
and ending 12 months after the date of the transaction as defined in 
paragraph (h)(7) of this section.
    (2) Corporate reorganizations. A predecessor of an ATEO includes 
another separate ATEO the stock or assets of which are acquired in a 
corporate reorganization as defined in section 368(a)(1)(A), (C), (D), 
(E), (F), or (G) (including by reason of section 368(a)(2)).
    (3) Predecessor change of form or of place of organization. An ATEO 
that restructured by changing its organizational form or place of 
organization (or both) is a predecessor of the restructured ATEO.
    (4) ATEO that becomes a non-ATEO--(i) General rule. An organization 
is a predecessor of an ATEO if it ceases to be an ATEO and then again 
becomes an ATEO effective on or before the predecessor end date. The 
predecessor end date is the date that is 36 months following the date 
that the organization's Federal information return under section 6033 
(or, for an ATEO described in paragraph (b)(1)(ii) or (iii) of this 
section, its Federal income tax return under section 6011(a)) is due (or 
would

[[Page 267]]

be due if the organization were required to file), excluding any 
extension, for the last taxable year for which the organization 
previously was an ATEO. If the organization becomes an ATEO again 
effective after the predecessor end date, then the former ATEO is 
treated as a separate organization that is not a predecessor of the 
current ATEO.
    (ii) Intervening changes or entities. If an ATEO that ceases to be 
an ATEO (former ATEO) would be treated as a predecessor to an 
organization that becomes an ATEO before the predecessor end date 
(successor ATEO), and if the former ATEO would be treated as a 
predecessor to each intervening entity (if such intervening entities had 
been ATEOs) under the rules of this paragraph (h), then the former ATEO 
is a predecessor of the successor ATEO. For example, if ATEO 1 loses its 
tax-exempt status and then merges into Corporation X, Corporation X then 
merges into Corporation Y, and Corporation Y becomes an ATEO before the 
predecessor end date, then ATEO 1 is a predecessor of Corporation Y.
    (5) Predecessor of a predecessor. A reference to a predecessor 
includes any predecessor or predecessors of such predecessor, as 
determined under these rules.
    (6) Elections under sections 336(e) and 338. For purposes of this 
paragraph (h), when an ATEO organized as a corporation makes an election 
to treat as an asset purchase either the sale, exchange, or distribution 
of stock pursuant to regulations under section 336(e) or the purchase of 
stock pursuant to regulations under section 338, the corporation that 
issued the stock is treated as the same corporation both before and 
after such transaction.
    (7) Date of transaction. For purposes of this paragraph (h), the 
date that a transaction is treated as having occurred is the date on 
which all events necessary to complete the transaction described in the 
relevant provision have occurred.
    (i) Related organization--(1) In general. Related organization means 
any person or governmental entity, domestic or foreign, that meets any 
of the following tests:
    (i) Controls or controlled by test. The person or governmental 
entity controls, or is controlled by, the ATEO;
    (ii) Controlled by same persons test. The person or governmental 
entity is controlled by one or more persons that control the ATEO;
    (iii) Supported organization test. The person or governmental entity 
is a supported organization (as defined in section 509(f)(3)) with 
respect to the ATEO;
    (iv) Supporting organization test. The person or governmental entity 
is a supporting organization described in section 509(a)(3) with respect 
to the ATEO; or
    (v) VEBA test. With regard to an ATEO that is a voluntary employees' 
beneficiary association (VEBA) described in section 501(c)(9), the 
person or governmental entity establishes, maintains, or makes 
contributions to such VEBA.
    (2) Control--(i) In general. Control may be direct or indirect. For 
rules concerning application of the principles of section 318 in 
applying this paragraph (i)(2), see paragraph (i)(2)(vii) of this 
section.
    (ii) Stock corporation. A person or governmental entity controls a 
stock corporation if it owns (by vote or value) more than 50 percent of 
the stock in the stock corporation.
    (iii) Partnership. A person or governmental entity controls a 
partnership if it owns more than 50 percent of the profits interests or 
capital interests in the partnership, determined in accordance with the 
rules and principles of Sec.  1.706-1(b)(4)(ii) for a partner's interest 
in the profits of a partnership and Sec.  1.706-1(b)(4)(iii) for a 
partner's interest in the capital of a partnership.
    (iv) Trust. A person or governmental entity controls a trust if it 
owns more than 50 percent of the beneficial interests in the trust, 
determined by actuarial value.
    (v) Nonstock organization--(A) In general. A person or governmental 
entity controls a nonstock organization if more than 50 percent of the 
trustees or directors of the nonstock organization are either 
representatives of, or directly or indirectly controlled by, the person 
or governmental entity. A

[[Page 268]]

nonstock organization is a nonprofit organization or other organization 
without owners and includes a governmental entity.
    (B) Control of a trustee or director of a nonstock organization. A 
person or governmental entity controls a trustee or director of the 
nonstock organization if the person or governmental entity has the power 
(either at will or at regular intervals) to remove such trustee or 
director and designate a new one.
    (C) Representatives. Trustees, directors, officers, employees, or 
agents of a person or governmental entity are deemed representatives of 
the person or governmental entity. However, an employee of a person or 
governmental entity (other than a trustee, director, or officer, or an 
employee who possesses at least the authority commonly exercised by an 
officer) who is a director or trustee of a nonstock organization (or 
acting in that capacity) will not be treated as a representative of the 
person or governmental entity if the employee does not act as a 
representative of the person or governmental entity and that fact is 
reported in the form and manner prescribed by the Commissioner in forms 
and instructions.
    (vi) Brother-sister related organizations. Under paragraph 
(i)(1)(ii) of this section, an organization is a related organization 
with respect to an ATEO if one or more persons control both the ATEO and 
the other organization. In the case of control by multiple persons, the 
control tests described in this paragraph (i)(2) of this section apply 
to the persons as a group. For example, if 1,000 individuals who are 
members of both ATEO 1 and ATEO 2 elect a majority of the board members 
of each organization, then ATEO 1 and ATEO 2 are related to each other 
because the same group of 1,000 persons controls both ATEO 1 and ATEO 2.
    (vii) Section 318 principles--(A) In general. Section 318 (relating 
to constructive ownership of stock) applies in determining ownership of 
stock in a corporation. The principles of section 318 also apply for 
purposes of determining ownership of interests in a partnership or in a 
trust with beneficial interests. For example, applying the principles of 
section 318(a)(1)(A), an individual is considered to own the partnership 
interest or trust interest owned, directly or indirectly, by or for the 
family members specified in such section.
    (B) Nonstock organizations--(1) Attribution of ownership interest 
from a nonstock organization to a controlling person. If a person or 
governmental entity controls a nonstock organization, the person or 
governmental entity is treated as owning a percentage of the stock (or 
partnership interest or beneficial interest in a trust) owned by the 
nonstock organization in accordance with the percentage of trustees or 
directors of the nonstock organization that are representatives of, or 
directly or indirectly controlled by, the person or governmental entity.
    (2) Attribution of ownership interest from a controlling person to a 
nonstock organization. If a person or governmental entity controls a 
nonstock organization, the nonstock organization is treated as owning a 
percentage of the stock (or partnership interest or beneficial interest 
in a trust) owned by the person or governmental entity in accordance 
with the percentage of trustees or directors of the nonstock 
organization that are representatives of, or directly or indirectly 
controlled by, the person or governmental entity.
    (3) Indirect control of a nonstock organization through another 
nonstock organization. If a person or governmental entity controls one 
nonstock organization that controls a second nonstock organization, the 
person or governmental entity is treated as controlling the second 
nonstock organization if the product of the percentage of trustees or 
directors of the first nonstock organization that are representatives 
of, or directly or indirectly controlled by, the person or governmental 
entity, multiplied by the percentage of trustees or directors of the 
second nonstock organization that are representatives of, or directly or 
indirectly controlled by, the person or governmental entity or first 
nonstock organization, exceeds 50 percent. Similar principles apply to 
successive tiers of nonstock organizations.
    (4) Attribution of control of nonstock organization to family 
member. An individual's control of a nonstock organization or of a 
trustee or director of a

[[Page 269]]

nonstock organization is attributed to the members of the individual's 
family (as set forth in section 318(a)(1) and the regulations 
thereunder), subject to the limitation of section 318(a)(5)(B) and the 
regulations thereunder.
    (3) Examples. The following examples illustrate the principles of 
this paragraph (i). For purposes of these examples, assume any entity 
referred to as ``ATEO'' is an ATEO and any entity referred to as 
``CORP'' is not an ATEO.
    (i) Example 1 (Related through a chain of control)--(A) Facts. ATEO 
1, ATEO 2, and ATEO 3 are nonstock organizations. ATEO 3 owns 80 percent 
of the stock (by value) of corporation CORP 1. Eighty percent of ATEO 
2's directors are representatives of ATEO 1. In addition, 80 percent of 
ATEO 3's directors are representatives of ATEO 1.
    (B) Conclusion. ATEO 1 is a related organization with respect to 
ATEO 2 (and vice versa) because more than 50 percent of ATEO 2's 
directors are representatives of ATEO 1; thus, ATEO 1 controls ATEO 2. 
Based on the same analysis, ATEO 1 is also a related organization with 
respect to ATEO 3 (and vice versa). CORP 1 is a related organization 
with respect to ATEO 3 because, as the owner of more than 50 percent of 
CORP 1's stock, ATEO 3 controls CORP 1. Applying the principles of 
section 318, ATEO 1 is deemed to own 64 percent of the stock of CORP 1 
(80 percent of ATEO 3's stock in CORP 1). Thus, CORP 1 is a related 
organization with respect to ATEO 1 because ATEO 1 controls CORP 1. ATEO 
2 is a related organization with respect to ATEO 3, ATEO 3 is a related 
organization with respect to ATEO 2, and CORP 1 is a related 
organization with respect to ATEO 2 because ATEO 2, ATEO 3, and CORP 1 
are all controlled by the same person (ATEO 1).
    (ii) Example 2 (Not related through a chain of control)--(A) Facts. 
ATEO 4, ATEO 5, and ATEO 6 are nonstock organizations. Sixty percent of 
ATEO 5's directors are representatives of ATEO 4. In addition, 60 
percent of ATEO 6's directors are representatives of ATEO 5, but none 
are representatives of ATEO 4.
    (B) Conclusion. ATEO 4 is a related organization with respect to 
ATEO 5 (and vice versa) because more than 50 percent of ATEO 5's 
directors are representatives of ATEO 4; thus, ATEO 4 controls ATEO 5. 
Based on the same analysis, ATEO 6 is a related organization with 
respect to ATEO 5 (and vice versa). Applying the principles of section 
318, ATEO 4 is deemed to control 36 percent of ATEO 6's directors (60 
percent of ATEO 5's 60 percent control over ATEO 6). Because less than 
50 percent of ATEO 6's directors are representatives of ATEO 4, and 
absent any facts suggesting that ATEO 4 directly or indirectly controls 
ATEO 6, ATEO 4 and ATEO 6 are not related organizations with respect to 
each other.

[T.D. 9938, 86 FR 6219, Jan. 19, 2021]



Sec.  53.4960-2  Determination of remuneration paid for a taxable year.

    (a) Remuneration--(1) In general. For purposes of section 4960, 
remuneration means any amount that is wages as defined in section 
3401(a), excluding any designated Roth contribution (as defined in 
section 402A(c)) and including any amount required to be included in 
gross income under section 457(f). Remuneration includes amounts 
includible in gross income as compensation for services as an employee 
pursuant to a below-market loan described in section 7872(c)(1)(B)(i) 
(compensation-related loans) but does not include amounts excepted by 
section 7872(c)(3) ($10,000 de minimis exception). For example, see 
Sec.  1.7872-15(e)(1)(i). Director's fees paid by a corporation to a 
director of the corporation are not remuneration, provided that if the 
director is also an employee of the corporation, the director's fees are 
excluded from remuneration only to the extent that they do not exceed 
fees paid to a director who is not an employee of the corporation or any 
related organization or, if there is no such director, they do not 
exceed reasonable director's fees. Remuneration does not include any 
amount that vested or was paid by a taxpayer before the start of the 
taxpayer's first taxable year that began on or after January 1, 2018.
    (2) Exclusion of remuneration for medical services--(i) In general. 
Remuneration does not include the portion of any

[[Page 270]]

remuneration paid to a licensed medical professional that is for the 
performance of medical services by such professional.
    (ii) Allocation of remuneration for medical services and non-medical 
services. If, during an applicable year, an employer pays a covered 
employee remuneration for providing both medical services and non-
medical services, the employer must make a reasonable, good faith 
allocation between the remuneration for medical services and the 
remuneration for non-medical services. For example, if a medical doctor 
receives current remuneration (or vests in remuneration under a deferred 
compensation plan) for providing medical services and administrative or 
management services, the employer must make a reasonable, good faith 
allocation between the remuneration for the medical services and the 
remuneration for the administrative or management services. For this 
purpose, if an employment agreement or similar written arrangement sets 
forth the remuneration to be paid for particular services, that 
allocation of remuneration applies unless the facts and circumstances 
demonstrate that the amount allocated to medical services is 
unreasonable for those services or that the allocation was established 
for purposes of avoiding application of the excise tax under section 
4960. If some or all of the remuneration is not reasonably allocated in 
an employment agreement or similar arrangement, an employer may use any 
reasonable allocation method. For example, an employer may use a 
representative sample of records, such as patient, insurance, and 
Medicare/Medicaid billing records or internal time reporting mechanisms 
to determine the time spent providing medical services, and then 
allocate remuneration to medical services in the proportion such time 
bears to the total hours the employee worked for the employer (and any 
related employer) for purposes of making a reasonable allocation of 
remuneration. Similarly, if some or all of the remuneration is not 
reasonably allocated in an employment agreement or other similar 
arrangement, an employer may use salaries or other remuneration paid by 
the employer or similarly situated employers for duties comparable to 
those the employee performs (for example, hospital administrator and 
physician) for purposes of making a reasonable allocation between 
remuneration for providing medical services and for providing non-
medical services.
    (iii) Examples. The following examples illustrate the rules of this 
paragraph (a)(2). For purposes of these examples, assume any entity 
referred to as ``ATEO'' is an ATEO.
    (A) Example 1 (Allocation based on employment agreement)--(1) Facts. 
Employee A is a covered employee of ATEO 1. Employee A is a licensed 
medical professional who provides patient care services for ATEO 1 and 
also provides management and administrative services to ATEO 1 as the 
manager of a medical practice group within ATEO 1. The employment 
agreement between ATEO 1 and Employee A specifies that of Employee A's 
salary, 30 percent is allocable to Employee A's services as manager of 
the medical practice group and 70 percent is allocable to Employee A's 
services as a medical professional providing patient care services. The 
facts regarding Employee A's employment indicate the employment 
agreement provides a reasonable allocation and that the allocation was 
not established for purposes of avoiding application of the excise tax.
    (2) Conclusion. Consistent with Employee A's employment agreement, 
ATEO 1 must allocate 30 percent of Employee A's salary to the provision 
of non-medical services and 70 percent of Employee A's salary to the 
provision of medical services. Accordingly, only the 30 percent portion 
of Employee A's salary allocated to the other, non-medical services is 
remuneration for purposes of paragraph (a) of this section.
    (B) Example 2 (Allocation based on billing records)--(1) Facts. 
Assume the same facts as in paragraph (a)(2)(iii)(A) of this section 
(Example 1), except that the employment agreement does not allocate 
Employee A's salary between medical and non-medical services performed 
by Employee A. Based on a representative sample of insurance and 
Medicare billing records, as well as time reports that Employee A 
submits to ATEO 1, ATEO 1 determines that Employee A spends 50 percent 
of her

[[Page 271]]

work hours providing patient care and 50 percent of her work hours 
performing administrative and management services. ATEO 1 allocates 50 
percent of Employee A's remuneration to medical services.
    (2) Conclusion. ATEO 1's allocation of Employee A's salary is a 
reasonable, good faith allocation. Accordingly, only the 50 percent 
portion of Employee A's remuneration allocated to the non-medical 
services is remuneration for purposes of paragraph (a) of this section.
    (b) Source of payment. For purposes of this section, the 
determination of the source of a payment of remuneration may involve the 
application of one or both of two separate rules described in this 
paragraph (b). Paragraph (b)(1) of this section addresses payments by a 
third party for services performed as an employee of a separate employer 
entity, while paragraph (b)(2) of this section addresses the application 
of section 4960(c)(4)(A) to treat certain remuneration paid by a related 
organization (after application of paragraph (b)(1) of this section, if 
applicable) as paid by the ATEO.
    (1) Remuneration paid by a third party for employment by an 
employer. Remuneration paid (or a grant of a legally binding right to 
nonvested remuneration) by a third-party payor (whether a related 
organization, payroll agent, agent designated under section 3504, 
certified professional employer organization under section 7705, or 
other entity) during an applicable year for services performed as an 
employee of an employer is remuneration paid (or payable) by the 
employer, except as otherwise provided in Sec.  53.4960-1(d)(2)(ii) and 
(iii).
    (2) Remuneration paid by a related organization for employment by 
the related organization. Pursuant to section 4960(c)(4)(A), 
remuneration paid (or a grant of a legally binding right to nonvested 
remuneration) by a related organization to an ATEO's employee during an 
applicable year for services performed as an employee of the related 
organization is treated as remuneration paid (or payable) by the ATEO, 
except as otherwise provided in Sec.  53.4960-1(d)(2)(ii) and (iii).
    (c) Applicable year in which remuneration is treated as paid--(1) In 
general. Remuneration that is a regular wage within the meaning of Sec.  
31.3402(g)-1(a)(1)(ii) is treated as paid on the date it is actually or 
constructively paid and all other remuneration is treated as paid on the 
first date on which the remuneration is vested.
    (2) Vested remuneration. Remuneration is vested if it is not subject 
to a substantial risk of forfeiture within the meaning of section 
457(f)(3)(B) (regardless of whether the arrangement under which the 
remuneration is to be paid is deferred compensation described in section 
457(f) or 409A). In general, an amount is subject to a substantial risk 
of forfeiture if entitlement to the amount is conditioned on the future 
performance of substantial services or upon the occurrence of a 
condition that is related to a purpose of the remuneration if the 
possibility of forfeiture is substantial. Except as provided in 
paragraph (c)(1) of this section, remuneration that is never subject to 
a substantial risk of forfeiture is considered paid on the first date 
the service provider has a legally binding right to the payment. For 
purposes of this section, a plan means a plan within the meaning of 
Sec.  1.409A-1(c), an account balance plan means an account balance plan 
within the meaning of Sec.  1.409A-1(c)(2)(i)(A), and a nonaccount 
balance plan means a nonaccount balance plan within the meaning of Sec.  
1.409A-1(c)(2)(i)(C). Net earnings on previously paid remuneration 
(described in paragraph (d)(2) of this section) that are not subject to 
a substantial risk of forfeiture are vested (and, thus, treated as paid) 
at the earlier of the date actually or constructively paid to the 
employee or the close of the applicable year in which they accrue. For 
example, the present value of a principal amount accrued to an 
employee's account under an account balance plan (under which the 
earnings and losses attributed to the account are based solely on a 
predetermined actual investment as determined under Sec.  31.3121(v)(2)-
1(d)(2)(i)(B) or a reasonable market interest rate) is treated as paid 
on the date vested, but the present value of any net earnings 
subsequently accrued on that amount (the increase

[[Page 272]]

in value due to the predetermined actual investment or a reasonable 
market interest rate) is treated as paid at the close of the applicable 
year in which they accrue. Similarly, while the present value of an 
amount accrued under a nonaccount balance (including earnings that 
accrued while the amount was nonvested) is treated as paid on the date 
it is first vested, the present value of the net earnings on that amount 
(the increase in the present value) is treated as paid at the close of 
the applicable year in which they accrue.
    (3) Change in related status during the year. If a taxpayer becomes 
or ceases to be a related organization with respect to an ATEO during an 
applicable year, then only the remuneration paid by the taxpayer to an 
employee with respect to services performed as an employee of the 
related organization during the portion of the applicable year during 
which the employer is a related organization is treated as paid by the 
ATEO. If an amount is treated as paid due to vesting in the year the 
taxpayer becomes or ceases to be a related organization with respect to 
the ATEO, then the amount is treated as paid by the ATEO only if the 
amount becomes vested during the portion of the applicable year that the 
taxpayer is a related organization with respect to the ATEO.
    (d) Amount of remuneration treated as paid--(1) In general. For each 
applicable year, the amount of remuneration treated as paid by the 
employer to a covered employee is the sum of regular wages within the 
meaning of Sec.  31.3402(g)-1(a)(1)(ii) actually or constructively paid 
during the applicable year and the present value (as determined under 
paragraph (e) of this section) of all other remuneration that vested 
during the applicable year. The amount of remuneration that vests during 
an applicable year is determined on an employer-by-employer basis with 
respect to each covered employee.
    (2) Earnings and losses on previously paid remuneration--(i) In 
general. The amount of net earnings or losses on previously paid 
remuneration paid by an employer is determined on an employee-by-
employee basis, such that amounts accrued with regard to one employee do 
not affect amounts accrued with regard to a different employee. 
Similarly, losses accrued on previously paid remuneration from one 
employer do not offset earnings accrued on previously paid remuneration 
from another employer. The amount of net earnings or losses on 
previously paid remuneration paid by the employer is determined on a net 
aggregate basis for all plans maintained by the employer in which the 
employee participates for each applicable year. For example, losses 
under an account balance plan may offset earnings under a nonaccount 
balance plan for the same applicable year maintained by the same 
employer for the same employee.
    (ii) Previously paid remuneration--(A) New covered employee. For an 
individual who was not a covered employee for any prior applicable year, 
previously paid remuneration means, for the applicable year for which 
the individual becomes a covered employee, the present value of vested 
remuneration that was not actually or constructively paid or otherwise 
includible in the employee's gross income before the start of the 
applicable year plus any remuneration that vested during the applicable 
year but that is not actually or constructively paid or otherwise 
includible in the employee's gross income before the close of the 
applicable year.
    (B) Existing covered employee. For an individual who was a covered 
employee for any prior applicable year, previously paid remuneration 
means, for each applicable year, the amount of remuneration that the 
employer treated as paid in the applicable year or for a prior 
applicable year but that is not actually or constructively paid or 
otherwise includible in the employee's gross income before the close of 
the applicable year. Actual or constructive payment or another event 
causing an amount of previously paid remuneration to be includible in 
the employee's gross income thus reduces the amount of previously paid 
remuneration.
    (iii) Earnings. Earnings means any increase in the vested present 
value of previously paid remuneration as of the close of the applicable 
year, regardless of whether the plan denominates the increase as 
earnings. For example, an

[[Page 273]]

increase in the vested account balance of a nonqualified deferred 
compensation plan based solely on the investment return of a 
predetermined actual investment (and disregarding any additional 
contributions) constitutes earnings. Similarly, an increase in the 
vested present value of a benefit under a nonqualified nonaccount 
balance plan due solely to the passage of time (and disregarding any 
additional benefit accruals) constitutes earnings. However, an increase 
in an account balance of a nonqualified deferred compensation plan due 
to a salary reduction contribution or an employer contribution does not 
constitute earnings (and therefore may not be offset with losses). 
Likewise, an increase in the benefit under a nonaccount balance plan due 
to an additional year of service or an increase in compensation that is 
reflected in a benefit formula does not constitute earnings.
    (iv) Losses. Losses means any decrease in the vested present value 
of previously paid remuneration as of the close of the applicable year, 
regardless of whether the plan denominates that decrease as losses.
    (v) Net earnings. Net earnings means, for each applicable year, the 
amount (if any) by which the earnings accrued for the applicable year on 
previously paid remuneration exceeds the sum of the losses accrued on 
previously paid remuneration for the applicable year and any net losses 
carried forward from a previous taxable year.
    (vi) Net losses. Net losses means, for each applicable year, the 
amount (if any) by which the sum of the losses accrued on previously 
paid remuneration for the applicable year and any net losses carried 
forward from a previous taxable year exceed the earnings accrued for the 
applicable year on previously paid remuneration. Losses may only be used 
to offset earnings and thus do not reduce the remuneration treated as 
paid for an applicable year except to the extent of the earnings accrued 
for that applicable year. However, with regard to a covered employee, an 
employer may carry net losses forward to the next applicable year and 
offset vested earnings for purposes of determining net earnings or 
losses for that subsequent applicable year. For example, if a covered 
employee who participates in a nonaccount balance plan and an account 
balance plan vests in an amount of earnings under the nonaccount balance 
plan and has losses under the account balance plan that exceed the 
vested earnings treated as remuneration under the nonaccount balance 
plan, those excess losses are carried forward to the next applicable 
year and offset vested earnings for purposes of determining net earnings 
or losses for that applicable year. If, for the next applicable year, 
there are not sufficient earnings to offset the entire amount of losses 
carried forward from the previous year (and any additional losses), the 
offset process repeats for each subsequent applicable year until there 
are sufficient earnings for the applicable year to offset any remaining 
losses carried forward.
    (3) Remuneration paid for a taxable year before the employee becomes 
a covered employee--(i) In general. In accordance with the payment 
timing rules of paragraph (c) of this section, any remuneration that is 
vested but is not actually or constructively paid or otherwise 
includible in an employee's gross income as of the close of the 
applicable year for the taxable year immediately preceding the taxable 
year in which the employee first becomes a covered employee of an ATEO 
is treated as previously paid remuneration for the taxable year in which 
the employee first becomes a covered employee. Net losses on this 
previously paid remuneration from any preceding applicable year do not 
carry forward to subsequent applicable years. However, net earnings and 
losses that vest on such previously paid remuneration in subsequent 
applicable years are treated as remuneration paid for a taxable year for 
which the employee is a covered employee.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (d)(3). For purposes of these examples, assume any 
organization described as ``ATEO'' is an ATEO.
    (A) Example 1 (Earnings on pre-covered employee remuneration)--(1) 
Facts. ATEO 1 uses a taxable year beginning July 1 and ending June 30. 
Employee A becomes a covered employee of ATEO 1

[[Page 274]]

for the taxable year beginning July 1, 2023, and ending June 30, 2024. 
During the 2022 applicable year, Employee A vests in $1 million of 
nonqualified deferred compensation. As of December 31, 2022, the present 
value of the amount deferred under the plan is $1.1 million. During the 
2023 applicable year, ATEO 1 pays Employee A $1 million in regular 
wages. The present value as of December 31, 2023, of Employee A's 
nonqualified deferred compensation is $1.3 million.
    (2) Conclusion (Taxable year beginning July 1, 2022, and ending June 
30, 2023). ATEO 1 pays Employee A $1.1 million of remuneration in the 
2022 applicable year. This is comprised of $1 million of vested 
nonqualified deferred compensation, and $100,000 of earnings, all of 
which is treated as paid for the taxable year beginning July 1, 2022, 
and ending June 30, 2023.
    (3) Conclusion (Taxable year beginning July 1, 2023, and ending June 
30, 2024). ATEO 1 pays Employee A $1.2 million of remuneration in the 
2023 applicable year. This is comprised of $1 million regular wages and 
$200,000 of earnings ($1.3 million present value as of December 31, 
2023, minus $1.1 million previously paid remuneration as of December 31, 
2022).
    (B) Example 2 (Losses on pre-covered employee remuneration)--(1) 
Facts. Assume the same facts as in paragraph (d)(3)(ii)(A) of this 
section (Example 1), except that the present value of the nonqualified 
deferred compensation as of December 31, 2022, is $900,000.
    (2) Conclusion (Taxable year beginning July 1, 2022, and ending June 
30, 2023). ATEO 1 pays Employee A $1 million of remuneration in the 2022 
applicable year. This is comprised of $1 million of vested nonqualified 
deferred compensation. The present value of all vested deferred 
compensation as of December 31 of the 2022 applicable year ($900,000) is 
treated as previously paid remuneration for the next applicable year (as 
Employee A is a covered employee for the next taxable year). The 
$100,000 of losses accrued while Employee A was not a covered employee 
do not carry forward to the next applicable year.
    (3) Conclusion (Taxable year beginning July 1, 2023, and ending June 
30, 2024). ATEO 1 pays Employee A $1.4 million of remuneration in the 
2023 applicable year. This is comprised of $1 million cash and $400,000 
of earnings ($1.3 million present value as of December 31, 2023, minus 
$900,000 previously paid remuneration).
    (e) Calculation of present value--(1) In general. The employer must 
determine present value using reasonable actuarial assumptions regarding 
the amount, time, and probability that a payment will be made. For this 
purpose, a discount for the probability that an employee will die before 
commencement of benefit payments is permitted, but only to the extent 
that benefits will be forfeited upon death. The present value may not be 
discounted for the probability that payments will not be made (or will 
be reduced) because of the unfunded status of the plan; the risk 
associated with any deemed or actual investment of amounts deferred 
under the plan; the risk that the employer, the trustee, or another 
party will be unwilling or unable to pay; the possibility of future plan 
amendments; the possibility of a future change in the law; or similar 
risks or contingencies. The present value of the right to future 
payments as of the vesting date includes any earnings that have accrued 
as of the vesting date that are not previously paid remuneration.
    (2) Treatment of future payment amount as present value for certain 
amounts. For purposes of determining the present value of remuneration 
that is scheduled to be actually or constructively paid within 90 days 
of vesting, the employer may treat the future amount that is to be paid 
as the present value at vesting.
    (f) Examples. The following examples illustrate the rules of this 
section. For purposes of these examples, assume any entity referred to 
as ``ATEO'' is an ATEO, anyentity referred to as ``CORP'' is not an 
ATEO, and all taxpayers use the calendar year as their taxable year.
    (1) Example 1 (Account balance plan)--(i) Facts. Employee A is a 
covered employee of ATEO 1. Employee A participates in a nonqualified 
deferred compensation plan (the NQDC plan) in which the account balance 
is adjusted based on the investment returns on

[[Page 275]]

predetermined actual investments. On January 1, 2022, ATEO 1 credits 
$100,000 to Employee A's account under the plan, subject to the 
requirement that Employee A remain employed through June 30, 2024. On 
June 30, 2024, the vested account balance is $110,000. Due to earnings 
or losses on the account balance, the closing account balance on each of 
the following dates is: $115,000 on December 31, 2024, $120,000 on 
December 31, 2025, $100,000 on December 31, 2026, and $110,000 on 
December 31, 2027. During 2028, Employee A defers an additional $10,000 
under the plan, all of which is vested at the time of deferral. On 
December 31, 2028, the closing account balance is $125,000. In 2029, 
ATEO 1 pays $10,000 to Employee A under the plan. On December 31, 2029, 
the closing account balance is $135,000 due to earnings on the account 
balance.
    (ii) Conclusion (2022 and 2023 applicable years--nonvested amounts). 
For 2022 and 2023, ATEO 1 is not treated as paying Employee A any 
remuneration attributable to Employee A's participation in the NQDC plan 
because the amount deferred under the plan remains subject to a 
substantial risk of forfeiture within the meaning of section 
457(f)(3)(B).
    (iii) Conclusion (2024 applicable year--amounts in year of vesting). 
For 2024, ATEO 1 is treated as paying Employee A $115,000 of 
remuneration attributable to Employee A's participation in the NQDC 
plan, including $110,000 of remuneration on June 30, 2024, when the 
amount becomes vested, and an additional $5,000 of remuneration on 
December 31, 2024, which is earnings on the previously paid remuneration 
($110,000).
    (iv) Conclusion (2025 applicable year--earnings). For 2025, ATEO 1 
is treated as paying Employee A $5,000 of remuneration attributable to 
Employee A's participation in the NQDC plan, which is the additional 
earnings on the previously paid remuneration ($115,000) as of December 
31, 2025.
    (v) Conclusion (2026 applicable year--losses). For 2026, ATEO 1 is 
not treated as paying Employee A any remuneration attributable to 
Employee A's participation in the NQDC plan because the present value of 
the previously paid remuneration ($120,000) decreased to $100,000 as of 
December 31, 2026. The $20,000 loss for 2026 does not reduce any amount 
previously treated as remuneration but is available for carryover to 
subsequent taxable years to offset earnings.
    (vi) Conclusion (2027 applicable year--recovery of losses). For 
2027, ATEO 1 is not treated as paying Employee A any remuneration 
attributable to Employee A's participation in the NQDC plan because the 
present value of the previously paid remuneration ($120,000) was 
$110,000 as of December 31, 2027. Due to increases on the account 
balance, ATEO 1 recovers $10,000 of the $20,000 of losses carried over 
from 2026. The net losses as of December 31, 2027, are $10,000, and none 
of the $10,000 in earnings during 2027 is treated as remuneration paid 
in 2027.
    (vii) Conclusion (2028 applicable year--no recovery of losses 
against additional deferrals of compensation). For 2028, ATEO 1 is 
treated as paying Employee A $10,000 of remuneration attributable to 
Employee A's participation in the NQDC plan. The additional $10,000 
deferral is vested and thus is treated as remuneration paid on the date 
credited to Employee A's account. This credit increases the amount of 
previously paid remuneration from $120,000 to $130,000. Additionally, 
due to earnings, ATEO 1 recovers $5,000 of the $10,000 loss carried over 
from 2027, none of which was remuneration paid for 2026, so that as of 
December 31, 2028, the net loss available for carryover to 2029 is 
$5,000.
    (viii) Conclusion (2029 applicable year--distributions, recovery of 
remainder of losses through earnings and additional earnings). For 2029, 
ATEO 1 is treated as paying Employee A $15,000 of remuneration 
attributable to Employee A's participation in the NQDC plan. The $10,000 
payment reduces the amount of previously paid remuneration (from 
$130,000 to $120,000) and the account balance (from $125,000 to 
$115,000). The present value of the vested account balance increases by 
$20,000 (from $115,000 to $135,000) as of December 31, 2029. Therefore, 
due to earnings, ATEO 1 recovers the remaining $5,000 loss carried over 
from 2028 (the difference between the $120,000 previously paid 
remuneration before earnings and the

[[Page 276]]

$115,000 account balance before earnings) and is treated as paying 
Employee A an additional $15,000 of remuneration as earnings (the 
difference between the $135,000 account balance after earnings and the 
$120,000 previously paid remuneration after loss recovery).
    (2) Example 2 (Nonaccount balance plan with earnings)--(i) Facts. 
ATEO 2 and CORP 2 are related organizations. Employee B is a covered 
employee of ATEO 2 and is also employed by CORP 2. On January 1, 2022, 
CORP 2 and Employee B enter into an agreement under which CORP 2 will 
pay Employee B $100,000 on December 31, 2025, if B remains employed by 
CORP 2 through January 1, 2024. Employee B remains employed by CORP 2 
through January 1, 2024. On January 1, 2024, the present value based on 
reasonable actuarial assumptions of the $100,000 to be paid on December 
31, 2025, is $75,000. On December 31, 2024, the present value of the 
$100,000 future payment increases to $85,000 due solely to the passage 
of time. On December 31, 2025, CORP 2 pays Employee B $100,000.
    (ii) Conclusion (2022 and 2023 applicable years--nonvested amounts). 
For 2022 and 2023, CORP 2 is not treated as paying Employee B any 
remuneration attributable to the agreement because the amount deferred 
under the agreement remains subject to a substantial risk of forfeiture 
within the meaning of section 457(f)(3)(B).
    (iii) Conclusion (2024 applicable year--amounts in year of vesting). 
For 2024, CORP 2 is treated as paying Employee B $75,000 of remuneration 
attributable to the agreement on January 1, 2024, which is the present 
value on that date of the $100,000 payable on December 31, 2025. In 
addition, CORP 2 is treated as paying Employee B $10,000 of remuneration 
attributable to the agreement on December 31, 2024, which is earnings 
based on the increase in the present value of the previously paid 
remuneration (from $75,000 to $85,000) as of December 31, 2024.
    (iv) Conclusion (2025 applicable year--earnings and distribution of 
previously paid remuneration). For 2025, CORP 2 is treated as paying 
Employee B $15,000 in remuneration attributable to the agreement on 
December 31, 2025, which is earnings based on the increase in the 
present value of the previously paid remuneration (from $85,000 to 
$100,000) as of December 31, 2025. In addition, the $100,000 payment is 
treated as reducing the amount of previously paid remuneration 
($100,000) to zero.
    (3) Example 3 (Treatment of amount payable as present value at 
vesting)--(i) Facts. Employee C is a covered employee of ATEO 3. Under 
an agreement between ATEO 3 and Employee C, ATEO 3 agrees to pay 
Employee C $100,000 two months after the date Employee C meets a 
specified performance goal that is a substantial risk of forfeiture 
within the meaning of section 457(f)(3)(B). Employee C meets the 
performance goal on November 30, 2022, and ATEO 3 pays Employee C 
$100,000 on January 31, 2023. In accordance with Sec.  53.4960-2(e)(2), 
because the payment is to be made within 90 days of vesting, ATEO 3 
elects to treat the full payment amount as the amount of remuneration 
paid at vesting.
    (ii) Conclusion (2022 applicable year--election to treat amount 
payable within 90 days as paid at vesting). For taxable year 2022, ATEO 
3 is treated as paying Employee C $100,000 of remuneration attributable 
to the agreement. Employee C vests in the $100,000 payment in 2022 upon 
meeting the performance goal. Under the general rule, ATEO 3 would be 
treated as paying for the taxable year 2022 the present value as of 
November 30, 2022, of $100,000 payable on January 31, 2023 (two months 
after the date of vesting), with adjustments to the present value as of 
the end of the year. However, because ATEO 3 elected to treat the full 
$100,000 amount payable within 90 days of vesting as the remuneration 
paid, the $100,000 payable to Employee C in 2023 is treated as 
remuneration paid in 2022 (and no additional amount related to the 
$100,000 paid on January 31, 2023, is treated as remuneration paid in 
2023).
    (4) Example 4 (Aggregation of remuneration from related 
organizations)--(i) Facts. Employee D is a covered employee of ATEO 4 
and also an employee of CORP 4 and CORP 5. ATEO 4, CORP 4, and CORP 5 
are related organizations. ATEO 4, CORP 4, and CORP 5 each pay Employee 
D $200,000 of salary during 2022 and 2023. On January 1,

[[Page 277]]

2022, ATEO 4 promises to pay Employee D $120,000 on December 31, 2023, 
under a nonaccount balance plan, the right to which is vested and the 
present value of which is $100,000 on January 1, 2022. On January 1, 
2022, CORP 4 and CORP 5 each contribute $100,000 on Employee D's behalf 
to account balance plans of CORP 4 and CORP 5, respectively, under which 
all amounts deferred are vested. On December 31, 2022, the present value 
of the amounts deferred under the ATEO 4 plan is $110,000, the present 
value of the amounts deferred under the CORP 4 plan is $120,000, and the 
present value of the amounts deferred under the CORP 5 plan maintained 
is $90,000. On December 31, 2023, the present value of the amounts 
deferred under the ATEO 4 plan is $120,000, the present value of the 
amounts deferred under the CORP 4 plan is $130,000, and the present 
value of the amounts deferred under the CORP 5 plan is $110,000.
    (ii) Conclusion (2022 applicable year). For 2022, before aggregation 
of remuneration paid by related organizations, ATEO 4 is treated as 
paying Employee D $310,000 of remuneration ($200,000 salary + $100,000 
upon vesting of deferred amounts + $10,000 net earnings on vested 
deferred amounts). CORP 4 is treated as paying Employee D $320,000 of 
remuneration ($200,000 salary + $100,000 upon vesting of deferred 
amounts + $20,000 net earnings on vested deferred amounts). CORP 5 is 
treated as paying Employee D $300,000 of remuneration ($200,000 salary + 
$100,000 upon vesting of deferred amounts) and has $10,000 of net losses 
on vested deferred amounts, which are carried forward to 2023. Thus, 
ATEO 4 is treated as paying $930,000 of remuneration to Employee D for 
the applicable year.
    (iii) Conclusion (2023 applicable year). For 2023, before 
aggregation of remuneration paid by related organizations, ATEO 4 is 
treated as paying Employee D $210,000 of remuneration ($200,000 salary + 
$10,000 earnings on previously paid remuneration). CORP 4 is treated as 
paying Employee D $210,000 of remuneration ($200,000 salary + $10,000 
net earnings on previously paid remuneration). CORP 5 is treated as 
paying Employee D $210,000 of remuneration ($200,000 salary + $10,000 
net earnings on previously paid remuneration after taking into account 
the loss carryforward). Thus, ATEO 4 is treated as paying $630,000 of 
remuneration to Employee D for the applicable year.
    (5) Example 5 (Treatment of regular wages for a pay period spanning 
applicable years)--(i) Facts. ATEO 5 pays its employees' salaries in 
accordance with a two-week payroll period that begins Sunday of the 
first week and ends Saturday of the second week. Payment occurs the 
Friday following the end of the payroll period. The last payroll period 
of 2023 ends on December 31, 2023. For the last payroll period, Employee 
E earns $8,000 of salary. In addition, ATEO 5 awards Employee E a 
$10,000 bonus that vests on December 31, 2023. ATEO 5 pays Employee E 
$18,000 on Friday, January 5, 2024, reflecting Employee E's salary for 
the last payroll period of 2023 and the bonus, the right to which vested 
on December 31, 2023.
    (ii) Conclusion (Regular wages). The $8,000 of salary is regular 
wages within the meaning of Sec.  31.3402(g)-1(a)(1)(ii) because it is 
an amount paid at a periodic rate for the current payroll period. Thus, 
$8,000 is treated as remuneration paid on January 5, 2024 (when it is 
actually or constructively paid), and, therefore, is treated as 
remuneration paid in ATEO 5's 2024 applicable year.
    (iii) Conclusion (Amounts other than regular wages). The $10,000 
bonus is not regular wages within the meaning of Sec.  31.3402(g)-
1(a)(1)(ii) because it is not an amountpaid at a periodic rate for the 
current payroll period. Thus, $10,000 is treatedas remuneration paid on 
December 31, 2023 (when it is vested) and, therefore, is treated as 
remuneration paid in ATEO 5's 2023 applicable year.

[T.D. 9938, 86 FR 6219, Jan. 19, 2021]



Sec.  53.4960-3  Determination of whether there is a parachute payment.

    (a) Parachute payment--(1) In general. Except as otherwise provided 
in paragraph (a)(2) of this section (relating to payments excluded from 
the definition of a parachute payment), parachute payment means any 
payment in the nature of compensation made by an ATEO (or a predecessor 
of the ATEO) or a related organization to (or for the benefit of) a 
covered employee if the

[[Page 278]]

payment is contingent on the employee's separation from employment with 
the employer, and the aggregate present value of the payments in the 
nature of compensation to (or for the benefit of) the individual that 
are contingent on the separation equals or exceeds an amount equal to 3-
times the base amount.
    (2) Exclusions. The following payments are not parachute payments:
    (i) Certain qualified plans. A payment that is a contribution to or 
a distribution from a plan described in section 401(a) that includes a 
trust exempt from tax under section 501(a), an annuity plan described in 
section 403(a), a simplified employee pension (as defined in section 
408(k)), or a simple retirement account described in section 408(p);
    (ii) Certain annuity contracts. A payment made under or to an 
annuity contract described in section 403(b) or a plan described in 
section 457(b);
    (iii) Compensation for medical services. A payment made to a 
licensed medical professional for the performance of medical services 
performed by such professional; and
    (iv) Payments to non-HCEs. A payment made to an individual who is 
not a highly compensated employee (HCE) as defined in paragraph (a)(3) 
of this section.
    (3) Determination of HCEs for purposes of the exclusion from 
parachute payments. For purposes of this section, highly compensated 
employee or HCE means, with regard to an ATEO that maintains a qualified 
retirement plan or other employee benefit plan described in Sec.  
1.414(q)-1T, Q/A-1, any person who is a highly compensated employee 
within the meaning of section 414(q) and, with regard to an ATEO that 
does not maintain such a plan, any person who would be a highly 
compensated employee within the meaning of section 414(q) if the ATEO 
did maintain such a plan. For purposes of determining the group of 
highly compensated employees for a determination year, consistent with 
Sec.  1.414(q)-1T, Q/A-14(a)(1), the determination year calculation is 
made on the basis of the applicable plan year under Sec.  1.414(q)-1T, 
Q/A-14(a)(2) of the plan or other entity for which a determination is 
made, and the look-back year calculation is made on the basis of the 12-
month period immediately preceding that year. For an ATEO that does not 
maintain a plan described in Sec.  1.414(q)-1T, Q/A-1, the rules are 
applied by analogy, substituting the calendar year for the plan year. 
Thus, for example, in 2022, an ATEO that does not maintain such a plan 
must use its employees' 2021 annual compensation (as defined in Sec.  
1.414(q)-1T, Q/A-13, including any of the safe harbor definitions if 
applied consistently to all employees) to determine which employees are 
HCEs for 2022, if any, for purposes of section 4960. If an employee is 
an HCE at the time of separation from employment, then for purposes of 
section 4960 any parachute payment that is contingent on the separation 
from employment (as defined in paragraph (d) of this section) is treated 
as paid to an HCE so that the exception from the term parachute payment 
under paragraph (a)(2)(iv) of this section does not apply, even if the 
payment occurs during one or more later taxable years (that is, taxable 
years after the taxable year during which the employee separated from 
employment).
    (b) Payment in the nature of compensation--(1) In general. Any 
payment--in whatever form--is a payment in the nature of compensation if 
the payment arises out of an employment relationship, including holding 
oneself out as available to perform services and refraining from 
performing services. Thus, for example, a payment made under a covenant 
not to compete or a similar arrangement is a payment in the nature of 
compensation. A payment in the nature of compensation includes (but is 
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 or earnings thereon). A payment in the nature of compensation 
also includes cash when paid, the value of the right to receive cash, 
the value of accelerated vesting, or a transfer of property. The vesting 
of an option, stock appreciation right, or similar form of compensation 
as a result of a covered employee's separation from employment is a 
payment in

[[Page 279]]

the nature of compensation. However, a payment in the nature of 
compensation does not include attorney's fees or court costs paid or 
incurred in connection with the payment of any parachute payment or a 
reasonable rate of interest accrued on any amount during the period the 
parties contest whether a parachute payment will be made.
    (2) Consideration paid by covered employee. 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 covered employee without 
restriction) that is (or will be) transferred by the covered employee in 
exchange for the payment.
    (c) When payment is considered to be made--(1) In general. A payment 
in the nature of compensation is considered made in the taxable year in 
which it is includible in the covered employee's gross income or, in the 
case of fringe benefits and other benefits that are excludable from 
income, in the taxable year the benefits are received. In the case of 
taxable non-cash fringe benefits provided in a calendar year, payment is 
considered made on the date or dates the employer chooses, but no later 
than December 31 of the calendar year in which the benefits are 
provided, except that when the fringe benefit is the transfer of 
personal property (either tangible or intangible) of a kind normally 
held for investment or the transfer of real property, payment is 
considered made on the actual date of transfer. If the fringe benefit is 
neither a transfer of personal property nor a transfer of real property, 
the employer may, in its discretion, treat the value of the benefit 
actually provided during the last two months of the calendar year as 
paid during the subsequent calendar year. However, an employer that 
treats the value of a benefit paid during the last two months of a 
calendar year as paid during the subsequent calendar year under this 
rule must treat the value of that fringe benefit as paid during the 
subsequent calendar year with respect to all employees who receive it.
    (2) Transfers of section 83 property. A transfer of property in 
connection with the performance of services that is subject to section 
83 is considered a payment made in the taxable year in which the 
property is transferred or would be includible in the gross income of 
the covered employee under section 83, disregarding any election made by 
the employee under section 83(b) or (i). Thus, in general, such a 
payment is considered made at the later of the date the property is 
transferred (as defined in Sec.  1.83-3(a)) to the covered employee or 
the date the property becomes substantially vested (as defined in Sec.  
1.83-3(b) and (j)). The amount of the payment is the compensation as 
determined under section 83, disregarding any amount includible in 
income pursuant to an election made by an employee under section 83(b).
    (3) Stock options. 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 determining the timing and amount of any payment related to 
the option, the principles of Sec.  1.280G-1, Q/A-13 and any method 
prescribed by the Commissioner in published guidance of general 
applicability under Sec.  601.601(d)(2) apply.
    (d) Payment contingent on an employee's separation from employment--
(1) In general. A payment is contingent on an employee's separation from 
employment if the facts and circumstances indicate that the employer 
would not make the payment in the absence of the employee's involuntary 
separation from employment. A payment generally would be made in the 
absence of the employee's involuntary separation from employment if it 
is substantially certain at the time of the involuntary separation from 
employment that the payment would be made whether or not the involuntary 
separation occurred. A payment the right to which is not subject to a 
substantial risk of forfeiture within the meaning of section 
457(f)(3)(B) at the time of an involuntary separation from employment 
generally is a payment that would have been made in the absence of an 
involuntary separation from employment (and is therefore not contingent 
on a separation from employment), except

[[Page 280]]

that the increased value of an accelerated payment of a vested amount 
described in paragraph (f)(3) of this section resulting from an 
involuntary separation from employment is not treated as a payment that 
would have been made in the absence of an involuntary separation from 
employment. A payment the right to which is no longer subject to a 
substantial risk of forfeiture within the meaning of section 
457(f)(3)(B) as a result of an involuntary separation from employment, 
including a payment the vesting of which is accelerated due to the 
separation from employment as described in paragraph (f)(3) of this 
section, is not treated as a payment that would have been made in the 
absence of an involuntary separation from employment (and thus is 
contingent on a separation from employment). A payment does not fail to 
be contingent on a separation from employment merely because the payment 
is conditioned upon the execution of a release of claims, noncompetition 
or nondisclosure provisions, or other similar requirements. See 
paragraph (d)(3) of this section for the treatment of a payment made 
pursuant to a covenant not to compete. If, after an involuntary 
separation from employment, the former employee continues to provide 
certain services as a nonemployee, payments for services rendered as a 
nonemployee are not payments that are contingent on a separation from 
employment to the extent those payments are reasonable and are not made 
on account of the involuntary separation from employment. Whether 
services are performed as an employee or nonemployee depends upon all 
the facts and circumstances. See Sec.  53.4960-1(e). For rules on 
determining whether payments are reasonable compensation for services, 
the rules of Sec.  1.280G-1, Q/A-40 through Q/A-42 (excluding Q/A-40(b) 
and Q/A-42(b)), and Q/A-44 are applied by analogy (substituting 
involuntary separation from employment for change in ownership or 
control).
    (2) Employment agreements--(i) In general. If a covered employee 
involuntarily separates from employment before the end of a contract 
term and is paid damages for breach of contract pursuant to an 
employment agreement, the payment of damages is treated as a payment 
that is contingent on a separation from employment. An employment 
agreement is an agreement between an employee and employer that 
describes, among other things, the amount of compensation or 
remuneration payable to the employee for services performed during the 
term of the agreement.
    (ii) Example. The following example illustrates the rules of this 
paragraph (d)(2). For purposes of this example, assume any entity 
referred to as ``ATEO'' is an ATEO.
    (A) Example--(1) Facts. Employee A, a covered employee, has a 3-year 
employment agreement with ATEO 1. Under the agreement, Employee A will 
receive a salary of $200,000 for the first year and, for each succeeding 
year, an annual salary that is $100,000 more than the previous year. The 
agreement provides that, in the event of A's involuntary separation from 
employment without cause, Employee A will receive the remaining salary 
due under the agreement. At the beginning of the second year of the 
agreement, ATEO 1 involuntarily terminates Employee A's employment 
without cause and pays Employee A $700,000 representing the remaining 
salary due under the employment agreement ($300,000 for the second year 
of the agreement plus $400,000 for the third year of the agreement).
    (2) Conclusion. The $700,000 payment is treated as a payment that is 
contingent on a separation from employment.
    (3) Noncompetition agreements. A payment under an agreement 
requiring a covered employee to refrain from performing services (for 
example, a covenant not to compete) is a payment that is contingent on a 
separation from employment if the payment would not have been made in 
the absence of an involuntary separation from employment. For example, a 
payment contingent on compliance in whole or in part with a covenant not 
to compete negotiated as part of a severance arrangement arising from an 
involuntary separation from employment is contingent on a separation 
from employment. Similarly, one or more payments contingent on 
compliance in whole or in part with a covenant not to compete not 
negotiated as part of a severance

[[Page 281]]

arrangement arising from an involuntary separation from employment but 
that provides for a payment specific to an involuntary separation from 
employment (and not voluntary separation from employment) is contingent 
on a separation from employment. Payments made under an agreement 
requiring a covered employee to refrain from performing services that 
are contingent on separation from employment are not treated as paid in 
exchange for the performance of services and are not excluded from 
parachute payments.
    (4) Payment of amounts previously included in income or excess 
remuneration. Actual or constructive payment of an amount that was 
previously included in gross income of the employee is not a payment 
contingent on a separation from employment. For example, payment of an 
amount included in income under section 457(f)(1)(A) due to the lapsing 
of a substantial risk of forfeiture on a date before the separation from 
employment generally is not a payment that is contingent on a separation 
from employment, even if the amount is paid in cash or otherwise to the 
employee because of the separation from employment. In addition, actual 
or constructive receipt of an amount treated as excess remuneration 
under Sec.  53.4960-4(b)(1) is not a payment that is contingent on a 
separation from employment (and thus is not a parachute payment), even 
if the amount is paid to the employee because of the separation from 
employment.
    (5) Window programs. A payment under a window program is contingent 
on a separation from employment. A window program is a program 
established by an employer in connection with an impending separation 
from employment to provide separation pay if the program is made 
available by the employer for a limited period of time (no longer than 
12 months) to employees who separate from employment during that period 
or to employees who separate from service during that period under 
specified circumstances. A payment made under a window program is 
treated as a payment that is contingent on an employee's separation from 
employment notwithstanding that the employee may not have had an 
involuntary separation from employment.
    (6) Anti-abuse provision. Notwithstanding paragraphs (d)(1) through 
(5) of this section, if the facts and circumstances demonstrate that 
either the vesting or the payment of an amount (whether before or after 
an employee's involuntary separation from employment) would not have 
occurred but for the involuntary nature of the separation from 
employment, the payment of the amount is contingent on a separation from 
employment. For example, an employer's exercise of discretion to 
accelerate vesting of an amount shortly before an involuntary separation 
from employment may indicate that the acceleration of vesting was due to 
the involuntary nature of the separation from employment and was 
therefore contingent on the employee's separation from employment. 
Similarly, payment of an amount in excess of an amount otherwise payable 
(for example, increased salary), shortly before or after an involuntary 
separation from employment, may indicate that the amount was paid 
because the separation was involuntary and was therefore contingent on 
the employee's separation from employment. If an ATEO becomes a 
predecessor as a result of a reorganization or other transaction 
described in Sec.  53.4960-1(h), any payment to an employee by a 
successor organization that is contingent on the employee's separation 
from employment with the predecessor ATEO is treated as paid by the 
predecessor ATEO.
    (e) Involuntary separation from employment--(1) In general. 
Involuntary separation from employmentmeans a separation from employment 
due to the independent exercise of the employer's unilateral authority 
to terminate the employee's services, other than due to the employee's 
implicit or explicit request, if the employee was willing and able to 
continue performing services as an employee. An involuntary separation 
from employment may include an employer's failure to renew a contract at 
the time the contract expires, provided that the employee was willing 
and able to execute a new contract providing terms and conditions 
substantially

[[Page 282]]

similar to those in the expiring contract and to continue providing 
services. The determination of whether a separation from employment is 
involuntary is based on all the facts and circumstances.
    (2) Separation from employment for good reason--(i) In general. 
Notwithstanding paragraph (e)(1) of this section, an employee's 
voluntary separation from employment is treated as an involuntary 
separation from employment if the separation occurs under certain bona 
fide conditions (referred to herein as a separation from employment for 
good reason).
    (ii) Material negative change required. A separation from employment 
for good reason is treated as an involuntary separation from employment 
if the relevant facts and circumstances demonstrate that it was the 
result of unilateral employer action that caused a material negative 
change to the employee's relationship with the employer. Factors that 
may provide evidence of such a material negative change include a 
material reduction in the duties to be performed, a material negative 
change in the conditions under which the duties are to be performed, or 
a material reduction in the compensation to be received for performing 
such services.
    (iii) Deemed material negative change. An involuntary separation 
from employment due to a material negative change is deemed to occur if 
the separation from employment occurs within 2 years following the 
initial existence of one or more of the following conditions arising 
without the consent of the employee:
    (A) Material diminution of compensation. A material diminution in 
the employee's base compensation;
    (B) Material diminution of responsibility. A material diminution in 
the employee's authority, duties, or responsibilities;
    (C) Material diminution of authority of supervisor. A material 
diminution in the authority, duties, or responsibilities of the 
supervisor to whom the employee is required to report, including a 
requirement that an employee report to a corporate officer or employee 
instead of reporting directly to the board of directors (or similar 
governing body) of an organization;
    (D) Material diminution of budget. A material diminution in the 
budget over which the employee retains authority;
    (E) Material change of location. A material change in the geographic 
location at which the employee must perform services; or
    (F) Other material breach. Any other action or inaction that 
constitutes a material breach by the employer of the agreement under 
which the employee provides services.
    (3) Separation from employment. Except as otherwise provided in this 
paragraph, separation from employment has the same meaning as separation 
from service as defined in Sec.  1.409A-1(h). Pursuant to Sec.  1.409A-
1(h), an employee generally separates from employment with the employer 
if the employee dies, retires, or otherwise has a termination of 
employment with the employer or experiences a sufficient reduction in 
the level of services provided to the employer. For purposes of applying 
the rules regarding reductions in the level of services set forth in the 
definition of termination of employment in Sec.  1.409A-1(h)(1)(ii), the 
rules are modified for purposes of this paragraph such that an employer 
may not set the level of the anticipated reduction in future services 
that will give rise to a separation from employment, meaning that the 
default percentages set forth in Sec.  1.409A-1(h)(1)(ii) apply in all 
circumstances. Thus, an anticipated reduction of the level of service of 
less than 50 percent is not treated as a separation from employment, an 
anticipated reduction of more than 80 percent is treated as a separation 
from employment, and the treatment of an anticipated reduction between 
those two levels is determined based on the facts and circumstances. The 
measurement of the anticipated reduction of the level of service is 
based on the average level of service for the prior 36 months (or 
shorter period for an employee employed for less than 36 months). In 
addition, an employee's separation from employment is determined without 
regard to Sec.  1.409A-1(h)(2) and (5) (application to independent 
contractors), since, for purposes of this section, only an employee may 
have a

[[Page 283]]

separation from employment, and a change from bona fide employee status 
to bona fide independent contractor status is also a separation from 
employment. See Sec.  53.4960-2(a)(1) regarding the treatment of an 
employee who also serves as a director of a corporation (or in a 
substantially similar position). The definition of separation from 
employment also incorporates the rules under Sec.  1.409A-1(h)(1)(i) 
(addressing leaves of absence, including military leaves of absence), 
Sec.  1.409A-1(h)(4) (addressing asset purchase transactions), and Sec.  
1.409A-1(h)(6) (addressing employees participating in collectively 
bargained plans covering multiple employers). The definition further 
incorporates the rules of Sec.  1.409A-1(h)(3), under which an employee 
separates from employment only if the employee has a separation from 
employment with the employer and all employers that would be considered 
a single employer under section 414(b) and (c), except that the ``at 
least 80 percent'' rule under section 414(b) and (c) is used, rather 
than replacing it with ``at least 50 percent.'' However, for purposes of 
determining whether there has been a separation from employment, a 
purported ongoing employment relationship between a covered employee and 
an ATEO or a related organization is disregarded if the facts and 
circumstances demonstrate that the purported employment relationship is 
not bona fide, or the primary purpose of the establishment or 
continuation of the relationship is avoidance of the application of 
section 4960.
    (f) Accelerated payment or accelerated vesting resulting from an 
involuntary separation from employment--(1) In general. If a payment or 
the lapse of a substantial risk of forfeiture is accelerated as a result 
of an involuntary separation from employment, generally only the value 
due to the acceleration of payment or vesting is treated as contingent 
on a separation from employment, as described in paragraphs (f)(3) and 
(4) of this section, except as otherwise provided in this paragraph (f). 
For purposes of this paragraph (f), the terms vested and substantial 
risk of forfeiture have the same meaning as provided in Sec.  53.4960-
2(c)(2).
    (2) Nonvested payments subject to a non-service vesting condition. 
If (without regard to a separation from employment) vesting of a payment 
would depend on an event other than the performance of services, such as 
the attainment of a performance goal, and that vesting event does not 
occur prior to the employee's separation from employment and the payment 
vests due to the employee's involuntary separation from employment, the 
full amount of the payment is treated as contingent on the separation 
from employment.
    (3) Vested payments. If an involuntary separation from employment 
accelerates actual or constructive payment of an amount that previously 
vested without regard to the separation, the portion of the payment, if 
any, that is contingent on the separation from employment is the amount 
by which the present value of the accelerated payment exceeds the 
present value of the payment absent the acceleration. The payment of an 
amount otherwise due upon a separation from employment (whether 
voluntary or involuntary) is not treated as an acceleration of the 
payment unless the payment timing was accelerated due to the involuntary 
nature of the separation from employment. If the value of the 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 the amount of the accelerated payment 
(so the amount contingent on the separation from employment is zero). If 
the present 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 the payment 
contingent on the separation from employment is treated as equal to the 
amount of the accelerated payment. For purposes of this paragraph 
(f)(3), the acceleration of a payment by 90 days or less is not treated 
as significantly increasing the present value of the payment. For rules 
on determining present value, see paragraph (f)(6) and paragraphs (h), 
(i) and (j) of this section.

[[Page 284]]

    (4) Nonvested payments subject to a service vesting condition--(i) 
In general. If an involuntary separation from employment accelerates 
vesting of a payment, the portion of the payment that is contingent on 
separation from employment is the amount described in paragraph (f)(3) 
of this section (if any) plus the value of the lapse of the obligation 
to continue to perform services described in paragraph (f)(4)(ii) of 
this section (but the amount cannot exceed the amount of the accelerated 
payment, or, if the payment is not accelerated, the present value of the 
payment), to the extent that all of the following conditions are 
satisfied with respect to the payment:
    (A) Vesting trigger. The payment vests as a result of an involuntary 
separation from employment;
    (B) Vesting condition. Disregarding the involuntary separation from 
employment, the vesting of the payment was contingent only on the 
continued performance of services for the employer for a specified 
period of time; and
    (C) Services condition. 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.
    (ii) Value of the lapse of the obligation to continue to perform 
services. The value of the lapse of the obligation to continue to 
perform services is one percent of the amount of the accelerated payment 
multiplied by the number of full months between the date that the 
employee's right to receive the payment is vested and the date that, 
absent the acceleration, the payment would have been vested. This 
paragraph (f)(4)(ii) applies to the accelerated vesting of a payment in 
the nature of compensation even if the time when the payment is made is 
not accelerated. In that case, the value of the lapse of the obligation 
to continue to perform services is one 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.
    (iii) Accelerated vesting of equity compensation. For purposes of 
this paragraph (f)(4), the acceleration of the vesting of a stock option 
or stock appreciation right (or similar arrangement) or the lapse of a 
restriction on restricted stock or a restricted stock unit (or a similar 
arrangement) is considered to significantly increase the value of the 
payment.
    (5) Application to benefits under a nonqualified deferred 
compensation plan. In the case of a payment of benefits under a 
nonqualified deferred compensation plan, paragraph (f)(3) of this 
section applies to the extent benefits under the plan are vested without 
regard to the involuntary separation from employment, but the payment of 
benefits is accelerated due to the involuntary separation from 
employment. Paragraph (f)(4) of this section applies to the extent 
benefits under the plan are subject to the conditions described in 
paragraph (f)(4)(i) of this section. For any other payment of benefits 
under a nonqualified deferred compensation plan (such as a contribution 
made due to the employee's involuntary separation from employment), the 
full amount of the payment is contingent on the employee's separation 
from employment.
    (6) Present value. For purposes of this paragraph (f), the present 
value of a payment is determined based on the payment date absent the 
acceleration and the date on which the accelerated payment is scheduled 
to be made. The amount that is treated as contingent on the separation 
from employment is the amount by which the present value of the 
accelerated payment exceeds the present value of the payment absent the 
acceleration.
    (7) Examples. See Sec.  1.280G Q/A-24(f) for examples that may be 
applied by analogy to illustrate the rules of this paragraph (f).
    (g) Three-times-base-amount test for parachute payments--(1) In 
general. To determine whether payments in the nature of compensation 
made to a covered employee that are contingent on the covered employee 
separating from employment with the ATEO are parachute payments, the 
aggregate present value of the payments must be compared to the 
individual's base amount. To do this, the aggregate present value of all 
payments in the nature of compensation that are made or to be made

[[Page 285]]

to (or for the benefit of) the same covered employee by an ATEO (or any 
predecessor of the ATEO) or related organization and that are contingent 
on the separation from employment 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, the payments are not parachute payments. See 
paragraphs (f)(6), (h), (i), and (j) of this section for rules on 
determining present value.
    (2) Examples. The following examples illustrate the rules of this 
paragraph (g). For purposes of these examples, assume any entity 
referred to as ``ATEO'' is an ATEO.
    (i) Example 1 (Parachute payment)--(A) Facts. Employee A is a 
covered employee and an HCE of ATEO 1. Employee A's base amount is 
$200,000. Payments in the nature of compensation that are contingent on 
a separation from employment with ATEO 1 totaling $800,000 are made to 
Employee A on the date of Employee A's separation from employment.
    (B) Conclusion. The payments are parachute payments because they 
have an aggregate present value at the time of the separation from 
employment of $800,000, which is at least equal to 3-times Employee A's 
base amount of $200,000 (3 x $200,000 = $600,000).
    (ii) Example 2 (No parachute payment)--(A) Facts. Assume the same 
facts as in paragraph (g)(2)(i) of this section (Example 1), except that 
the payments contingent on Employee A's separation from employment total 
$580,000.
    (B) Conclusion. Because the aggregate present value of the payments 
($580,000) is not at least equal to 3-times Employee A's base amount 
($600,000), the payments are not parachute payments.
    (h) Calculating present value--(1) In general. Except as otherwise 
provided in this paragraph (h), for purposes of determining if a payment 
contingent on a separation from employment exceeds 3-times the base 
amount, the present value of a payment is determined as of the date of 
the separation from employment or, if the payment is made prior to that 
date, the date on which the payment is made.
    (2) Deferred payments. 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 separation from employment, the value of the payment is the 
present value of the payment (or payments) calculated on the basis of 
reasonable actuarial assumptions and using the applicable discount rate 
for the present value calculation that is determined in accordance with 
paragraph (i) of this section.
    (3) Health care. If the payment in the nature of compensation is an 
obligation to provide health care (including an obligation to purchase 
or provide health insurance), then, for purposes of this paragraph (h) 
and for applying the 3-times-base-amount test under paragraph (g) of 
this section, the present value of the obligation is calculated in 
accordance with generally accepted accounting principles. For purposes 
of paragraph (g) of this section and this paragraph (h), the obligation 
to provide health care is permitted to be measured by projecting the 
cost of premiums for 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 employer 
makes available to a group, then the premiums used for purposes of this 
paragraph (h)(3) may be the allocable portion of group premiums.
    (i) Discount rate. 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 in part 1 under 
section 1274(d)), compounded semiannually. The applicable Federal rate 
to be used 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 is 
expected to be made as the term of the debt instrument under section 
1274(d). See paragraph (h) of this section for rules with respect to the 
date as of which the present value is determined. However, for any 
payment, the employer and the covered employee may elect to use the 
applicable Federal

[[Page 286]]

rate that is in effect on the date on which the parties entered into the 
contract that provides for the payment if that election is set forth in 
writing in the contract.
    (j) Present value of a payment to be made in the future that is 
contingent on an uncertain future event or condition--(1) Treatment 
based on the estimated probability of payment. In certain cases, it may 
be necessary to apply the 3-times-base-amount test to a payment that is 
contingent on separation from employment at a time when the aggregate 
present value of all the payments is uncertain because the time, amount, 
or right to receive one or more of the payments is also contingent on 
the occurrence of an uncertain future event or condition. In that case, 
the employer must reasonably estimate whether it will make the payment. 
If the employer reasonably estimates there is a 50-percent or greater 
probability that it will make the payment, the full amount of the 
payment is considered for purposes of the 3-times-base-amount test and 
the allocation of the base amount. If the employer reasonably estimates 
there is a less than 50-percent probability that the payment will be 
made, the payment is not considered for either purpose.
    (2) Correction of incorrect estimates. If an ATEO later determines 
that an estimate it made under paragraph (j)(1) of this section was 
incorrect, it must reapply the 3-times-base-amount test to reflect the 
actual time and amount of the payment. In reapplying the 3-times-base-
amount test (and, if necessary, reallocating the base amount), the ATEO 
must determine the aggregate present value of payments paid or to be 
paid as of the date described in paragraph (h) of this section using the 
discount rate described in paragraph (i) of this section. This 
redetermination may affect the amount of any excess parachute payment 
for a prior taxable year. However, if, based on the application of the 
3-times-base-amount test without regard to the payment described in this 
paragraph (j), an ATEO has determined it will pay an employee an excess 
parachute payment or payments, then the 3-times-base-amount test does 
not have to be reapplied when a payment described in this paragraph (j) 
is made (or becomes certain to be made) if no base amount is allocated 
to that payment under Sec.  53.4960-4(d)(5).
    (3) Initial option value estimate. To the extent provided in 
published guidance of general applicability under Sec.  601.601(d)(2), 
an initial estimate of the value of an option subject to paragraph (c) 
of this section is permitted to be made, with the valuation subsequently 
redetermined and the 3-times-base-amount test reapplied. Until guidance 
is published under section 4960, published guidance of general 
applicability described in Sec.  601.601(d)(2) that is issued under 
section 280G applies by analogy.
    (4) Examples. See Sec.  1.280G-1, Q/A-33(d) for examples that may be 
applied by analogy to illustrate the rules of this paragraph (j).
    (k) Base amount--(1) In general. A covered employee's base amount is 
the average annual compensation for services performed as an employee of 
the ATEO (including compensation for services performed for a 
predecessor of the ATEO), and/or, if applicable, a related organization, 
with respect to which there has been a separation from employment, if 
the compensation was includible in the gross income of the individual 
for taxable years in the base period (including amounts that were 
excluded under section 911) or that would have been includible in the 
individual's gross income if the individual had been a United States 
citizen or resident. See paragraph (l) of this section for the 
definition of base period and for examples of base amount computations.
    (2) Short or incomplete taxable years. If the base period of a 
covered employee includes a short taxable year or less than all of a 
taxable year of the employee, compensation for the 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 
a short or incomplete taxable year that represents a payment that will 
not be made more often than once per year is not annualized.

[[Page 287]]

    (3) Excludable fringe benefits. Because the base amount includes 
only compensation that is includible in gross income, the base amount 
does not include certain items that may constitute parachute payments. 
For example, payments in the form of excludable fringe benefits or 
excludable health care benefits are not included in the base amount but 
may be treated as parachute payments.
    (4) Section 83(b) income. The base amount includes the amount of 
compensation included in income under section 83(b) during the base 
period.
    (l) Base period--(1) In general. The base period of a covered 
employee is the covered employee's 5 most-recent taxable years ending 
before the date on which the separation from employment occurs. However, 
if the covered employee was not an employee of the ATEO for this entire 
5-year period, the individual's base period is the portion of the 5-year 
period during which the covered employee performed services for the 
ATEO, a predecessor, or a related organization.
    (2) Determination of base amount if employee separates from 
employment in the year hired. If a covered employee commences services 
as an employee and experiences a separation from employment in the same 
taxable year, the covered employee's base amount is the annualized 
compensation for services performed for the ATEO (or a predecessor or 
related organization) that was not contingent on the separation from 
employment and either was includible in the employee's gross income for 
that portion of the employee's taxable year prior to the employee's 
separation from employment (including amounts that were excluded under 
section 911) or would have been includible in the employee's gross 
income if the employee had been a United States citizen or resident.
    (3) Examples. The following examples illustrate the rules of 
paragraph (k) of this section and this paragraph (l). For purposes of 
these examples, assume any entity referred to as ``ATEO'' is an ATEO, 
any entity referred to as ``CORP'' is not an ATEO, and all employees are 
HCEs of their respective employers.
    (i) Example 1 (Calculation with salary deferrals)--(A) Facts. 
Employee A, a covered employee of ATEO 1, receives an annual salary of 
$500,000 per year during the 5-year base period. Employee A defers 
$100,000 of salary each year under a nonqualified deferred compensation 
plan (none of which is includible in Employee A's income until paid in 
cash to Employee A).
    (B) Conclusion. Employee A's base amount is $400,000 (($400,000 x 
5)/5).
    (ii) Example 2 (Calculation for less-than-5-year base period)--(A) 
Facts. Employee B, a covered employee of ATEO 1, was employed by ATEO 1 
for 2 years and 4 months preceding the year in which Employee B 
separates from employment. Employee B's compensation includible in gross 
income was $100,000 for the 4-month period, $420,000 for the first full 
year, and $450,000 for the second full year.
    (B) Conclusion. Employee B's base amount is $390,000 (((3 x 
$100,000) + $420,000 + $450,000)/3). Any compensation Employee B 
receives in the year of separation from employment is not included in 
the base amount calculation.
    (iii) Example 3 (Calculation for less-than-5-year base period with 
signing bonus)--(A) Facts. Assume the same facts as in paragraph 
(l)(3)(ii)(A) of this section (Example 2), except that Employee B also 
received a $60,000 signing bonus when Employee B's employment with ATEO 
1 commenced at the beginning of the 4-month period.
    (B) Conclusion. Employee B's base amount is $410,000 ((($60,000 + (3 
x $100,000)) + $420,000 + $450,000)/3). Pursuant to paragraph (k)(2) of 
this section, because the bonus is a payment that will not be paid more 
often than once per year, the bonus is not taken into account in 
annualizing Employee B's compensation for the 4-month period.
    (iv) Example 4 (Effect of non-employee compensation)--(A) Facts. 
Employee C, a covered employee of ATEO 1, was not an employee of ATEO 1 
for the full 5-year base period. In 2024 and 2025, Employee C is only a 
director of ATEO 1 and receives $30,000 per year for services as a 
director. On January 1, 2026, Employee C becomes an officer and covered 
employee of ATEO 1. Employee C's includible compensation for services as 
an officer of ATEO 1 is $250,000

[[Page 288]]

for each of 2026 and 2027, and $300,000 for 2028. In 2028, Employee C 
separates from employment with ATEO 1.
    (B) Conclusion. Employee C's base amount is $250,000 ((2 x 
$250,000)/2). The $30,000 of director's fees paid to Employee C in each 
of 2024 and 2025 is not included in Employee C's base amount calculation 
because it was not for services performed as an employee of ATEO 1.

[T.D. 9938, 86 FR 6219, Jan. 19, 2021]



Sec.  53.4960-4  Liability for tax on excess remuneration 
and excess parachute payments.

    (a) Liability, reporting, and payment of excise taxes--(1) 
Liability. For each taxable year, with respect to each covered employee, 
the taxpayer is liable for tax at the rate imposed under section 11 on 
the sum of the excess remuneration allocated to the taxpayer under 
paragraph (c) of this section and, if the taxpayer is an ATEO, any 
excess parachute payment paid by the taxpayer or a predecessor during 
the taxable year.
    (2) Reporting and payment. The excise tax imposed by section 4960 is 
reported as provided in Sec. Sec.  53.6011-1(b) and 53.6071-1(i) and 
paid in the form and manner prescribed by the Commissioner.
    (3) Arrangements between an ATEO and a related organization. 
Calculation of, and liability for, the excise tax imposed by section 
4960 is separate from, and unaffected by, any arrangement that an ATEO 
and any related organization may have for bearing the cost of any 
liability for the excise tax imposed by section 4960.
    (4) Certain foreign related organizations. A related organization 
that is a foreign organization described in section 4948(b) that either 
is exempt from tax under section 501(a) or is a taxable private 
foundation (section 4948(b) related organization) is not liable for the 
excise tax imposed by section 4960. A foreign organization is an 
organization not created or organized in the United States or in any 
possession thereof, or under the law of the United States, any State, 
the District of Columbia, or any possession of the United States. See 
section 4948(b) and Sec.  53.4948-1. For purposes of this paragraph 
(a)(4) and the application of section 4960 to a taxable year, an 
organization's status as a section 4948(b) related organization is 
determined at the end of its taxable year. However, remuneration that 
the section 4948(b) related organization pays to a covered employee of 
an ATEO must be taken into account by the ATEO and other related 
organizations for purposes of section 4960 generally, including for 
purposes of determining the five highest-compensated employees and the 
total remuneration paid to a covered employee. For example, if an ATEO 
and its related organization that is a section 4948(b) related 
organization each paid $600,000 remuneration to a covered employee 
during the applicable year, then the related organization would not be 
liable for the tax that would otherwise be allocable to it, and the ATEO 
would be liable for tax on $100,000 (50 percent of the $200,000 excess 
remuneration paid to the employee).
    (5) [Reserved]
    (b) Amounts subject to tax--(1) Excess remuneration--(i) In general. 
Excess remuneration means the amount of remuneration paid by an ATEO to 
any covered employee during an applicable year in excess of $1 million, 
as determined under Sec.  53.4960-2.
    (ii) Exclusion for excess parachute payments. Excess remuneration 
does not include any amount that is an excess parachute payment as 
defined in paragraph (b)(2) of this section.
    (2) Excess parachute payment. Excess parachute payment means an 
amount equal to the excess (if any) of the amount of any parachute 
payment paid by an ATEO, a predecessor of the ATEO, or a related 
organization, or on behalf of any such person, during the taxable year 
over the portion of the base amount allocated to such payment.
    (c) Calculation of liability for tax on excess remuneration--(1) In 
general. For each taxable year, an employer is liable for the tax on 
excess remuneration paid in the applicable year ending with or within 
the employer's taxable year. If, for the taxable year, remuneration paid 
during an applicable year by an ATEO or one or more related 
organizations to a covered employee is taken into account in determining 
the tax imposed on excess remuneration for that taxable year, then each 
employer

[[Page 289]]

is liable for the tax in an amount that bears the same ratio to the 
total tax determined under section 4960(a) as the amount of remuneration 
paid by the employer to the covered employee (including remuneration 
paid by the employer as described in Sec.  53.4960-2(b)(1), but 
disregarding remuneration treated as paid by the employer under Sec.  
53.4960-2(b)(2)), bears to the total amount of remuneration paid by the 
ATEO under Sec.  53.4960-2 (including remuneration treated as paid by 
the ATEO under Sec.  53.4960-2(b)(2)).
    (2) Calculation if liability is allocated from more than one ATEO 
with regard to an individual. If liability for the tax on excess 
remuneration is allocated to an employer from more than one ATEO in a 
taxable year with regard to an individual that is a covered employee of 
each ATEO, then the employer is liable for the tax only in the capacity 
in which it is liable for the greatest amount of the tax with respect to 
that individual for the taxable year. For example, assume ATEO 1 is a 
related organization to both ATEO 2 and ATEO 3 and pays excess 
remuneration to Employee D, and Employee D is a covered employee of ATEO 
1, ATEO 2, and ATEO 3. In this case, ATEO 1's liability for the tax on 
excess remuneration to Employee D is the highest of its liability as an 
ATEO, as a related organization to ATEO 2, or as a related organization 
to ATEO 3.
    (3) Calculation if liability is allocated from an ATEO with a short 
applicable year. If liability for the tax on excess remuneration paid to 
an individual is allocated to an employer from an ATEO with a short 
applicable year under Sec.  53.4960-1(c)(3), then the liability with 
respect to the excess remuneration paid to that individual is allocated 
in accordance with the principles of this paragraph (c) adjusted as 
necessary to avoid, to the extent possible, duplication of application 
of the excise tax. The Commissioner may provide additional guidance of 
general applicability, published in the Internal Revenue Bulletin (see 
Sec.  601.601(d)(2) of this chapter), on the application of this 
paragraph (c)(3) to particular circumstances, including circumstances 
involving an ATEO with a short applicable year that has one or more 
related organizations and the ATEO's short applicable year and the 
preceding applicable year both end with or within the related 
organization's taxable year, such that the ATEO and related 
organizations are liable for the tax for multiple applicable years 
ending with or within the employer's taxable year.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (c). For purposes of these examples, assume that the rate of 
excise tax under section 4960 is 21 percent, that any entity that is 
referred to as ``ATEO'' is an ATEO, that any entity referred to as 
``CORP'' is not an ATEO and is not a publicly held corporation within 
the meaning of section 162(m)(2) or a covered health insurance provider 
within the meaning of section 162(m)(6)(C), that no related organization 
is a section 4948(b) related organization, all taxpayers use the 
calendar year as their taxable year unless otherwise stated, and that no 
parachute payments are made in any of the years at issue.
    (i) Example 1 (Remuneration from multiple employers)--(A) Facts. 
ATEO 1 and CORP 1 are related organizations. Employee A is a covered 
employee of ATEO 1 and an employee of CORP 1. In the 2022 applicable 
year, ATEO 1 pays Employee A $1.2 million of remuneration, and CORP 1 
pays A $800,000 of remuneration. Remuneration paid by each employer is 
for services performed by Employee A solely as an employee of that 
employer.
    (B) Conclusion. For the 2022 taxable year, ATEO 1 is treated as 
paying Employee A $2 million of remuneration, $1 million of which is 
excess remuneration. The total excise tax is $210,000 (21 percent x $1 
million). ATEO 1 paid \3/5\ of Employee A's total remuneration ($1.2 
million/$2 million); thus, ATEO 1 is liable for \3/5\ of the excise tax, 
which is $126,000. CORP 1 paid \2/5\ of Employee A's total remuneration 
($800,000/$2 million); thus, CORP 1 is liable for \2/5\ of the excise 
tax, which is $84,000.
    (ii) Example 2 (Application when taxpayers have different taxable 
years)--(A) Facts. Assume the same facts as in paragraph (c)(4)(i) of 
this section (Example 1), except that CORP 2 uses a taxable year 
beginning July 1 and ending June 30.

[[Page 290]]

    (B) Conclusion. The conclusion is the same as the conclusion in 
paragraph (c)(4)(i) of this section (Example 1), except that ATEO 1 is 
liable for the tax for its taxable year starting January 1, 2022, and 
ending December 31, 2022, and CORP 1 is liable for the tax for its 
taxable year beginning July 1, 2022, and ending June 30, 2023 (the 
taxable year with or within which ATEO 1's 2022 applicable year ends).
    (iii) Example 3 (Multiple liabilities for same applicable year due 
to multiple ATEOs)--(A) Facts. The following facts are all with respect 
to the 2023 applicable year: ATEO 5 owns 60 percent of the stock of CORP 
2. Sixty percent of ATEO 4's directors are representatives of ATEO 3. In 
addition, 60 percent of ATEO 5's directors are representatives of ATEO 
4, but none are representatives of ATEO 3. Employee B is a covered 
employee of ATEO 3, ATEO 4, and ATEO 5 and is an employee of CORP 2. 
ATEO 3, ATEO 4, ATEO 5, and CORP 2 each pay Employee B $1.2 million of 
remuneration in the applicable year. ATEO 4's related organizations are 
ATEO 3 and ATEO 5. ATEO 3's only related organization is ATEO 4. ATEO 
5's related organizations are ATEO 4 and CORP 2.
    (B) Calculation (ATEO 3). Under ATEO 3's calculation as an ATEO for 
the 2023 applicable year, ATEO 3 is treated as paying Employee B a total 
of $2.4 million in remuneration ($1.2 million from ATEO 3 + $1.2 million 
from ATEO 4). The total excise tax is $294,000 (21 percent x $1.4 
million). ATEO 3 and ATEO 4 each paid \1/2\ of Employee B's total 
remuneration ($1.2 million/$2.4 million); thus, under ATEO 3's 
calculation, ATEO 3 and ATEO 4 each would be liable for \1/2\ of the 
excise tax, which is $147,000.
    (C) Calculation (ATEO 4). Under ATEO 4's calculation as an ATEO for 
the 2023 applicable year, ATEO 4 is treated as paying Employee B a total 
of $3.6 million in remuneration for the 2022 applicable year ($1.2 
million from ATEO 3 + $1.2 million from ATEO 4 + $1.2 million from ATEO 
5). The total excise tax is $546,000 (21 percent x $2.6 million). ATEO 
3, ATEO 4, and ATEO 5 each paid \1/3\ of the total remuneration to 
Employee B ($1.2 million/$3.6 million); thus, under ATEO 4's 
calculation, ATEO 3, ATEO 4, and ATEO 5 each would be liable for \1/3\ 
of the excise tax, which is $182,000.
    (D) Calculation (ATEO 5). Under ATEO 5's calculation as an ATEO for 
the 2023 applicable year, ATEO 5 is treated as paying Employee B a total 
of $3.6 million in remuneration ($1.2 million from ATEO 4 + $1.2 million 
from ATEO 5 + $1.2 million from CORP 2). The total excise tax is 
$546,000 (21 percent x $2.6 million). ATEO 4, ATEO 5, and CORP 2 each 
paid \1/3\ of the total remuneration to Employee B ($1.2 million/$3.6 
million); thus, under ATEO 5's calculation, ATEO 4, ATEO 5, and CORP 2 
each would be liable for \1/3\ of the excise tax, which is $182,000.
    (E) Conclusion (Liability of ATEO 3). For the 2023 applicable year, 
ATEO 3 is liable for $182,000 of excise tax as a related organization 
under ATEO 4's calculation, which is greater than the $147,000 of excise 
tax under ATEO 3's own calculation. Thus, ATEO 3's excise tax liability 
with respect to Employee B is $182,000 for its 2023 taxable year.
    (F) Conclusion (Liability of ATEO 4). For the 2023 applicable year, 
ATEO 4 is liable as a related organization for $147,000 of excise tax 
according to ATEO 3's calculation, for $182,000 according to ATEO 4's 
own calculation, and for $182,000 according to ATEO 5's calculation. 
Thus, ATEO 4's excise tax liability with respect to Employee B is 
$182,000 for its 2023 taxable year.
    (G) Conclusion (Liability of ATEO 5). For the 2023 applicable year, 
ATEO 5 is liable as a related organization for $182,000 of excise tax 
under ATEO 4's calculation, and is liable for $182,000 of excise tax 
under ATEO 5's own calculation. Thus, ATEO 5's excise tax liability with 
respect to Employee B is $182,000 for its 2023 taxable year.
    (H) Conclusion (Liability of CORP 2). For the 2023 applicable year, 
CORP 2 is liable as a related organization for $182,000 of excise tax 
according to ATEO 5's calculation only. Thus, CORP 2's excise tax 
liability with respect to Employee B is $182,000 for its 2023 taxable 
year.
    (d) Calculation of liability for excess parachute payments--(1) In 
general. Except as provided in paragraph (d)(3) of this section, only 
excess parachute payments made by or on behalf of an

[[Page 291]]

ATEO are subject to tax under this section. However, parachute payments 
made by related organizations that are not made by or on behalf of an 
ATEO are taken into account for purposes of determining the total amount 
of excess parachute payments.
    (2) Computation of excess parachute payments--(i) Calculation. The 
amount of an excess parachute payment is the excess of the amount of any 
parachute payment made by an ATEO, a predecessor of the ATEO, or a 
related organization, or on behalf of any such person, over the portion 
of the covered employee's base amount that is allocated to the payment. 
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 the 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 covered employee. Thus, the portion of the base amount allocated to 
any parachute payment is determined by multiplying the base amount by a 
fraction, the numerator of which is the present value of the parachute 
payment and the denominator of which is the aggregate present value of 
all parachute payments.
    (ii) Examples. The following examples illustrate the rules of this 
paragraph (d)(2). For purposes of these examples, assume any entity 
referred to as ``ATEO'' is an ATEO and all employees are HCEs of their 
respective employers.
    (A) Example 1 (Compensation from related organizations)--(1) Facts. 
ATEO 1 and ATEO 2 are related organizations. Employee A is a covered 
employee of ATEO 1 and an employee of ATEO 2 who has an involuntary 
separation from employment with ATEO 1 and ATEO 2. Employee A's base 
amount is $200,000 with respect to ATEO 1 and $400,000 with respect to 
ATEO 2. A receives $1 million from ATEO 1 contingent upon Employee A's 
involuntary separation from employment from ATEO 1 and $1 million from 
ATEO 2 contingent upon Employee A's involuntary separation from 
employment from ATEO 2.
    (2) Conclusion. Employee A has a base amount of $600,000 ($200,000 + 
$400,000). The two $1 million payments are parachute payments because 
their aggregate present value is at least 3-times Employee A's base 
amount (3 x $600,000 = $1.8 million). The portion of the base amount 
allocated to each parachute payment is $300,000 (($1 million/$2 million) 
x $600,000). Thus, the amount of each excess parachute payment is 
$700,000 ($1 million-$300,000).
    (B) Example 2 (Multiple parachute payments)--(1) Facts. Employee B 
is a covered employee of ATEO 3 with a base amount of $200,000 who is 
entitled to receive two parachute payments: One of $200,000 and the 
other of $900,000. The $200,000 payment is made upon separation from 
employment, and the $900,000 payment is to be made on a date in a future 
taxable year. The present value of the $900,000 payment is $800,000 as 
of the date of the separation from employment.
    (2) Conclusion. The portion of the base amount allocated to the 
first payment is $40,000 (($200,000 present value of the parachute 
payment/$1 million present value of all parachute payments) x $200,000 
total base amount) and the portion of the base amount allocated to the 
second payment is $160,000 (($800,000 present value of the parachute 
payment/$1 million present value of all parachute payments) x $200,000 
total base amount). Thus, the amount of the first excess parachute 
payment is $160,000 ($200,000-$40,000) and that the amount of the second 
excess parachute payment is $740,000 ($900,000-$160,000).
    (3) Reallocation when the payment is disproportionate to base 
amount. In accordance with section 4960(d), the Commissioner may treat a 
parachute payment as paid by an ATEO if the facts and circumstances 
indicate that the ATEO and other payors of parachute payments structured 
the payments in a manner primarily to avoid liability under section 
4960. For example, if an ATEO would otherwise be treated as paying a 
portion of an excess parachute payment in an amount that is materially 
lower in proportion to the total excess parachute payment than the 
proportion that the amount of average annual compensation paid by the 
ATEO (or any predecessor) during the base period bears to the total 
average

[[Page 292]]

annual compensation paid by the ATEO (or any predecessor) and any 
related organization (or organizations), and the lower amount is offset 
by payments from a non-ATEO or an unrelated ATEO, this may indicate that 
that the parachute payments were structured in a manner primarily to 
avoid liability under section 4960.
    (4) Election to prepay tax. An ATEO may prepay the excise tax under 
paragraph (a)(1) of this section on any excess parachute payment for the 
taxable year of the separation from employment or any later taxable year 
before the taxable year in which the parachute payment is actually or 
constructively paid. However, an employer may not prepay the excise tax 
on a payment to be made in cash if the present value of the payment is 
not reasonably ascertainable under Sec.  31.3121(v)(2)-1(e)(4) or on a 
payment related to health coverage. Any prepayment must be based on the 
present value of the excise tax that would be due for the taxable year 
in which the employer will pay the excess parachute payment, and be 
calculated using the discount rate equal to 120 percent of the 
applicable Federal rate (determined under section 1274(d) and the 
regulations in part 1 under section 1274) and the tax rate in effect 
under section 11 for the year in which the excise tax is paid. For 
purposes of projecting the future value of a payment that provides for 
interest to be credited at a variable interest rate, the employer may 
make a reasonable assumption regarding the variable rate. An employer is 
not required to adjust the excise tax paid merely because the actual 
future interest rates are not the same as the rate used for purposes of 
projecting the future value of the payment.
    (5) Liability after a redetermination of total parachute payments. 
If an ATEO determines that an estimate made under Sec.  53.4960-3(j)(1) 
was incorrect, it must reapply the 3-times-base-amount test to reflect 
the actual time and amount of the payment. In reapplying the 3-times-
base-amount test (and, if necessary, reallocating the base amount), the 
ATEO must determine the correct base amount allocable to any parachute 
payment paid in the taxable year. See Sec.  1.280G-1, Q/A-33(d) for 
examples that may be applied by analogy to illustrate the rules of this 
paragraph (d)(5).
    (6) Examples. The following examples illustrate the rules of this 
paragraph (d). For purposes of these examples, assume any entity 
referred to as ``ATEO'' is an ATEO, any entity referred to as ``CORP'' 
is not an ATEO, and all employees are HCEs of their respective 
employers.
    (i) Example 1 (Excess parachute payment paid by a non-ATEO)--(A) 
Facts. ATEO 1 and CORP 1 are related organizations that are treated as 
the same employer for purposes of Sec.  53.4960-3(e)(3) (defining 
separation from employment) and are both calendar year taxpayers. For 
2022 through 2026, ATEO 1 and CORP 1 each pay Employee A $250,000 of 
compensation per year for services performed as an employee of each 
organization ($500,000 total per year). In 2027, ATEO 1 and CORP 1 each 
pay Employee A $1 million payment ($2 million total) that is contingent 
on Employee A's separation from employment with both ATEO 1 and CORP 1, 
all of which is remuneration, and no other compensation. Employee A is a 
covered employee of ATEO 1 in 2027.
    (B) Conclusion. Employee A's base amount in 2027 is $500,000 
(Employee A's average annual compensation from both ATEO 1 and CORP 1 
for the previous 5 years). ATEO 1 makes a parachute payment of $2 
million in 2027, the amount paid by both ATEO 1 and CORP 1 that is 
contingent on Employee A's separation from employment with ATEO 1 and 
all organizations that are treated as the same employer under Sec.  
53.4960-3(e)(3). Employee A's $2 million payment exceeds 3-times the 
base amount ($1.5 million). ATEO 1 makes a $1.5 million excess parachute 
payment (the amount by which $2 million exceeds the $500,000 base 
amount). However, ATEO 1 is liable for tax only on the excess parachute 
payment paid by ATEO 1 ($1 million parachute payment-$250,000 base 
amount = $750,000) that is subject to tax under Sec.  53.4960-4(a). CORP 
1 is not liable for tax under Sec.  53.4960-4(a) in 2027.
    (ii) Example 2 (Election to prepay tax on excess parachute payments 
and effect on excess remuneration)--(A) Facts. Employee B is a covered 
employee of

[[Page 293]]

ATEO 2 with a base amount of $200,000 who is entitled to receive two 
parachute payments from ATEO 2, one of $200,000 and the other of 
$900,000. The $200,000 payment is made upon separation from employment, 
and the $900,000 payment is to be made on a date in a future taxable 
year. The present value of the $900,000 payment is $800,000 as of the 
date of the separation from employment. ATEO 2 elects to prepay the 
excise tax on the $900,000 future parachute payment (of which $740,000 
is an excess parachute payment). The tax rate under section 11 is 21 
percent for the taxable year the excise tax is paid and, using a 
discount rate determined under Sec.  53.4960-3(i), the present value of 
the $155,400 ($740,000 x 21 percent) excise tax on the $740,000 future 
excess parachute payment is $140,000.
    (B) Conclusion. The excess parachute payment is thus $800,000 
($200,000 plus $800,000 present value of the $900,000 future payment, 
less $200,000 base amount), with $40,000 of the base amount allocable to 
the $200,000 payment and $160,000 of the base amount allocable to the 
$900,000 payment. To prepay the excise tax on the $740,000 future excess 
parachute payment, the employer must satisfy its $140,000 obligation 
under section 4960 with respect to the future payment, in addition to 
the $33,600 excise tax ($160,000 x 21 percent) on the $160,000 excess 
parachute payment made upon separation from employment. For purposes of 
determining the amount of excess remuneration (if any) under section 
4960(a)(1), the amount of remuneration paid by the employer to the 
covered employee for the taxable year of the separation from employment 
is reduced by the $900,000 of total excess parachute payments ($160,000 
+ $740,000).

[T.D. 9938, 86 FR 6219, Jan. 19, 2021]



Sec.  53.4960-5  [Reserved]



Sec.  53.4960-6  Applicability date.

    (a) General applicability date. Sections 53.4960-0 through 53.4960-4 
apply to taxable years beginning after December 31, 2021. Taxpayers may 
choose to apply Sec. Sec.  53.4960-0 through 53.4960-4 to taxable years 
beginning after December 31, 2017, and on or before December 31, 2021, 
provided the taxpayer applies Sec. Sec.  53.4960-0 through 53.4960-4 in 
their entirety and in a consistent manner.
    (b) [Reserved]

[T.D. 9938, 86 FR 6219, Jan. 19, 2021]



Sec.  53.4961-1  Abatement of second tier taxes for correction 
within correction period.

    If any taxable event is corrected during the correction period for 
the event, then any second tier tax imposed with respect to the event 
shall not be assessed. If the tax has been assessed, it shall be abated. 
If the tax has been collected, it shall be credited or refunded as an 
overpayment. For purposes of this section, the tax imposed includes 
interest, additions to the tax and additional amounts. For definitions 
of the terms second tier tax, taxable event, correct, and correction 
period, see Sec.  53.4963-1.



Sec.  53.4961-2  Court proceedings to determine liability for second tier tax.

    (a) Introduction. Under section 4961 (b) and (c), the period of 
limitations on collection may be suspended and assessment or collection 
of first or second tier tax may be prohibited during the pendency of 
administrative and judicial proceedings conducted to determine a 
taxpayer's liability for second tier tax. This section provides rules 
relating to the suspension of the limitations period and the 
prohibitions on assessment and collection. In addition, this section 
describes the administrative and judicial proceedings to which these 
rules apply.
    (b) Initial proceeding--(1) Defined. For purposes of subpart K, an 
initial proceeding means a proceeding described in subparagraph (2) or 
(3).
    (2) Tax Court proceeding before assessment. A proceeding is 
described in this subparagraph (2) if it is a proceeding with respect to 
the taxpayer's liability for second tier tax and is commenced in 
accordance with section 6213 (a).
    (3) Refund proceeding commenced before correction period ends. A 
proceeding is described in this subparagraph (3) if it is a proceeding 
commenced under section 7422, in accordance with the provisions of Sec.  
53.4963-1(e) (4) and (5) (relating to prerequisites to extension of the 
correction period during certain refund proceedings), and with respect

[[Page 294]]

to the taxpayer's liability for second tier tax.
    (c) Supplemental proceeding--(1) Jurisdiction. If a determination in 
an initial proceeding that a taxpayer is liable for a second tier tax 
has become final, the court in which the initial proceeding was 
commenced shall have jurisdiction to conduct any necessary supplemental 
proceeding to determine whether the taxable event was corrected during 
the correction period.
    (2) Time for beginning proceeding. The time for beginning a 
supplemental proceeding begins on the day after a determination in an 
initial proceeding becomes final and ends on the 90th day after the last 
day of the correction period.
    (d) Restriction on assessment during Tax Court proceeding. If a 
supplemental proceeding described in section 4961 (b) and Sec.  53.4961-
2(c) is commenced in the Tax Court, the provisions of the second and 
third sentences of section 6213(a) and the first and third sentences of 
Sec.  301.6213-1(a)(2) apply with respect to a deficiency in second tier 
tax until the decision of the Tax Court in the supplemental proceeding 
is final.
    (e) Suspension of period of collection for second tier tax--(1) 
Scope. Except as provided in subparagraph (6), this paragraph (e) 
applies to the second tier tax assessed with respect to a taxable event 
if a claim described in subparagraph (2) is filed.
    (2) Claim for refund. A claim for refund is described in this 
subparagraph (2) if, no later than 90 days after the day on which the 
second tier tax is assessed with respect to a taxable event, the 
taxpayer--
    (i) Pays the full amount of first tier tax for the taxable period, 
and
    (ii) Files a claim for refund of the amount paid.
    (3) Collection prohibited. No levy or proceeding in court for the 
collection of the second tier tax shall be made, begun, or prosecuted 
until the end of the collection prohibition period described in 
subparagraph (5). Notwithstanding section 7421(a), the collection by 
levy or proceeding may be enjoined during the collection prohibition 
period by a proceeding in the proper court.
    (4) Suspension of running of period of limitations on collection. 
With respect to a second tier tax to which this paragraph (e) applies, 
the running of the period of limitations provided in section 6502 
(relating to collection of tax by levy or by a proceeding in court) 
shall be suspended for the collection prohibition period described in 
subparagraph (5).
    (5) Collection prohibition period. The collection prohibition period 
begins on the day the second tier tax is assessed and ends on the latest 
of:
    (i) The day a decision in a refund proceeding commenced before the 
91st day after denial of the claim described in subparagraph (2) of this 
paragraph (including any supplemental proceeding under Sec.  53.4961-
2(c)) becomes final;
    (ii) The 90th day after the claim referred to in subparagraph (2) is 
denied; or
    (iii) The 90th day after the second tier tax is assessed.
    (6) Jeopardy collection. If the Secretary makes a finding that the 
collection of the second tier tax is in jeopardy, nothing in this 
paragraph (e) shall prevent the immediate collection of such tax.
    (f) Finality--(1) Tax Court proceeding. For purposes of this subpart 
K, section 7481 applies in determining when a decision in a Tax Court 
proceeding becomes final.
    (2) Refund proceeding. For purposes of this subpart K, Sec.  
301.7422-1 applies in determining when a decision in a refund proceeding 
becomes final.



Sec.  53.4963-1  Definitions.

    (a) First tier tax. For purposes of this subpart K, the term first 
tier tax means any tax imposed by subsection (a) of section 4941, 4942, 
4943, 4944, 4945, 4951, 4952, 4955, 4958, 4966, 4967, 4971, or 4975. A 
first tier tax may also be referred to as an ``initial tax'' in parts 53 
and 54.
    (b) Second tier tax. For purposes of this subpart K, the term second 
tier tax means any tax imposed by subsection (b) of section 4941, 4942, 
4943, 4944, 4945, 4951, 4952, 4955, 4958, 4971, or 4975. A second tier 
tax may also be referred to as an ``additional tax'' in parts 53 and 54.
    (c) Taxable event. For purposes of this subpart K, the term taxable 
event means any act, or failure to act, giving

[[Page 295]]

rise to liability for tax under section 4941, 4942, 4943, 4944, 4945, 
4951, 4952, 4955, 4958, 4966, 4967, 4971, or 4975.
    (d) Correct--(1) In general. Except as provided in subparagraph (2), 
the term correct has the same meaning for purposes of this subpart K as 
in the section which imposes the second tier tax or the regulations 
thereunder.
    (2) Special rules. The term correct means--
    (i) For a second tier tax imposed by section 4942(b), reducing the 
amount of the undistributed income to zero,
    (ii) For a second tier tax imposed by section 4943(b), reducing the 
amount of the excess business holdings to zero, and
    (iii) For a second tier tax imposed by section 4944(b), removing the 
investment from jeopardy.
    (e) Correction period--(1) In general. The correction period with 
respect to any taxable event shall begin with the date on which the 
taxable event occurs and shall end 90 days after the date of mailing of 
a notice of deficiency under section 6212 with respect to the second 
tier tax imposed with respect to the taxable event.
    (2) Extensions of correction period. The correction period referred 
to in subparagraph (1) of this paragraph shall be extended by any period 
in which a deficiency cannot be assessed under section 6213(a). In 
addition, the correction period referred to in subparagraph (1) of this 
paragraph (e) shall be extended in accordance with subparagraph (3), 
(4), and (5) of this paragraph except that subparagraph (4), or (5) 
shall not operate to extend a correction period with respect to which a 
taxpayer has filed a petition with the United States Tax Court for 
redetermination of a deficiency within the time prescribed by section 
6213(a).
    (3) Extensions by Commissioner. The correction period referred to in 
subparagraph (1) of this paragraph may be extended by any period which 
the Commissioner determines is reasonable and necessary to bring about 
correction (including, for taxes imposed by section 4975, equitable 
relief sought by the Secretary of Labor) of the taxable event. The 
Commissioner ordinarily will not extend the correction period unless the 
following factors are present.
    (i) The taxpayer on whom the second tier tax is imposed, the 
Secretary of Labor (for taxes imposed by section 4975), or an 
appropriate State officer (as defined in section 6104(c)(2)) is actively 
seeking in good faith to correct the taxable event;
    (ii) Adequate corrective action cannot reasonably be expected to 
result during the unextended correction period;
    (iii) For taxes imposed by section 4975, the Secretary of Labor 
requests the extension because subdivision (ii) applies; and
    (iv) For taxes imposed by chapter 42 (other than taxes imposed by 
section 4940), the taxable event appears to have been an isolated 
occurrence so that it appears unlikely that similar taxable events will 
occur in the future.
    (4) Extension for payment of first tier tax. If, within the 
unexpected correction period, the taxpayer pays the full amount of the 
first tier tax imposed with respect to the taxable event the 
Commissioner shall extend the correction period to the later of--
    (i) Ninety days after the payment of the first tier tax, or
    (ii) The last day of the correction period determined without regard 
to this paragraph.
    (5) Extensions for filing claim for refund or refund suit. If prior 
to the expiration of the correction period (including extensions) a 
claim for refund is filed with respect to payment of the full amount of 
the first tier tax imposed with respect to the taxable event, the 
Commissioner shall extend the correction period during the pendency of 
the claim plus an additional 90 days. If within that time a suit or 
proceeding referred to in section 7422(g) with respect to the claim is 
filed, the Commissioner shall extend the correction period until the 
determination in the suit for refund (determined without regard to a 
supplemental proceeding under section 4861(b)) is final, determined 
under Sec.  301.7422-2(a).
    (6) End of correction period if waiver accepted. If the notice of 
deficiency referred to in paragraph (1) is not mailed because there is a 
waiver of the restrictions on assessment and collection of

[[Page 296]]

the deficiency or because the deficiency is paid, the correction period 
will end with the end of the collection prohibition period described in 
Sec.  53.4961-2(e)(5).
    (7) Date on which taxable event occurs. For purposes of subparagraph 
(1), the taxable event shall be treated as occurring--
    (i) Under section 4942, on the first day of the taxable year for 
which there is undistributed income,
    (ii) Under section 4943, on the first day on which there are excess 
business holdings,
    (iii) Under section 4971, on the last day of the plan year in which 
there is an accumulated funding deficiency, and
    (iv) In all other cases, the date on which the event occurred.
    (f) Effective date. The provisions of this subpart K are effective 
with respect to second tier taxes assessed after December 24, 1980. The 
preceding sentence shall not be construed to permit the assessment of a 
tax in a case to which, on December 24, 1980, the doctrine of res 
judicata applied.

[T.D. 8084, 51 FR 16303, May 2, 1986; 51 FR 17732, May 15, 1986, as 
amended by T.D. 8628, 60 FR 62212, Dec. 5, 1995; T.D. 8920, 66 FR 2171, 
Jan. 10, 2001; T.D. 9855, 84 FR 14009, Apr. 9, 2019]



Sec.  53.4965-1  Overview.

    (a) Entity-level excise tax. Section 4965 imposes two excise taxes 
with respect to certain tax shelter transactions to which tax-exempt 
entities are parties. Section 4965(a)(1) imposes an entity-level excise 
tax on certain tax-exempt entities that are parties to ``prohibited tax 
shelter transactions,'' as defined in section 4965(e). See Sec.  
53.4965-2 for the discussion of covered tax-exempt entities. See Sec.  
53.4965-3 for the definition of prohibited tax shelter transactions. See 
Sec.  53.4965-4 for the definition of tax-exempt party to a prohibited 
tax shelter transaction. The entity-level excise tax under section 
4965(a)(1) is imposed on a specified percentage of the entity's net 
income or proceeds that are attributable to the transaction for the 
relevant tax year (or a period within that tax year). The rate of tax 
depends on whether the entity knew or had reason to know that the 
transaction was a prohibited tax shelter transaction at the time the 
entity became a party to the transaction. See Sec.  53.4965-7(a) for the 
discussion of the entity-level excise tax under section 4965(a)(1). See 
Sec.  53.4965-6 for the discussion of ``knowing or having reason to 
know.'' See Sec.  53.4965-8 for the definition of net income and 
proceeds and the standard for allocating net income and proceeds that 
are attributable to a prohibited tax shelter transaction to various 
periods.
    (b) Manager-level excise tax. Section 4965(a)(2) imposes a manager-
level excise tax on ``entity managers,'' as defined in section 4965(d), 
of tax-exempt entities who approve the entity as a party (or otherwise 
cause the entity to be a party) to a prohibited tax shelter transaction 
and know or have reason to know, at the time the tax-exempt entity 
enters into the transaction, that the transaction is a prohibited tax 
shelter transaction. See Sec.  53.4965-5 for the definition of entity 
manager and the meaning of ``approving or otherwise causing,'' and Sec.  
53.4965-6 for the discussion of ``knowing or having reason to know.'' 
See Sec.  53.4965-7(b) for the discussion of the manager-level excise 
tax under section 4965(a)(2).
    (c) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010]



Sec.  53.4965-2  Covered tax-exempt entities.

    (a) In general. Under section 4965(c), the term ``tax-exempt 
entity'' refers to entities that are described in sections 501(c), 
501(d), or 170(c) (other than the United States), Indian tribal 
governments (within the meaning of section 7701(a)(40)), and tax-
qualified pension plans, individual retirement arrangements and similar 
tax-favored savings arrangements that are described in sections 
4979(e)(1), (2) or (3), 529, 457(b), or 4973(a). The tax-exempt entities 
referred to in section 4965(c) are divided into two broad categories, 
non-plan entities and plan entities.
    (b) Non-plan entities. Non-plan entities are--
    (1) Entities described in section 501(c);

[[Page 297]]

    (2) Religious or apostolic associations or corporations described in 
section 501(d);
    (3) Entities described in section 170(c), including states, 
possessions of the United States, the District of Columbia, political 
subdivisions of states and political subdivisions of possessions of the 
United States (but not including the United States); and
    (4) Indian tribal governments within the meaning of section 
7701(a)(40).
    (c) Plan entities. Plan entities are--
    (1) Entities described in section 4979(e)(1) (qualified plans under 
section 401(a), including qualified cash or deferred arrangements under 
section 401(k) (including a section 401(k) plan that allows designated 
Roth contributions));
    (2) Entities described in section 4979(e)(2) (annuity plans 
described in section 403(a));
    (3) Entities described in section 4979(e)(3) (annuity contracts 
described in section 403(b), including a section 403(b) arrangement that 
allows Roth contributions);
    (4) Qualified tuition programs described in section 529;
    (5) Eligible deferred compensation plans under section 457(b) that 
are maintained by a governmental employer as defined in section 
457(e)(1)(A);
    (6) Arrangements described in section 4973(a) which include--
    (i) Individual retirement plans defined in section 408(a) and (b), 
including--
    (A) Simplified employee pensions (SEPs) under section 408(k);
    (B) Simple individual retirement accounts (SIMPLEs) under section 
408(p);
    (C) Deemed individual retirement accounts or annuities (IRAs) 
qualified under a qualified plan (deemed IRAs) under section 408(q); and
    (D) Roth IRAs under section 408A.
    (ii) Arrangements described in section 220(d) (Archer Medical 
Savings Accounts (MSAs));
    (iii) Arrangements described in section 403(b)(7) (custodial 
accounts treated as annuity contracts);
    (iv) Arrangements described in section 530 (Coverdell education 
savings accounts); and
    (v) Arrangements described in section 223(d) (health savings 
accounts (HSAs)).
    (d) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010; 75 FR 46844, Aug. 4, 2010]



Sec.  53.4965-3  Prohibited tax shelter transactions.

    (a) In general. Under section 4965(e), the term prohibited tax 
shelter transaction means--
    (1) Listed transactions within the meaning of section 6707A(c)(2), 
including subsequently listed transactions described in paragraph (b) of 
this section; and
    (2) Prohibited reportable transactions, which consist of the 
following reportable transactions within the meaning of section 
6707A(c)(1)--
    (i) Confidential transactions, as described in Sec.  1.6011-4(b)(3) 
of this chapter; or
    (ii) Transactions with contractual protection, as described in Sec.  
1.6011-4(b)(4) of this chapter.
    (b) Subsequently listed transactions. A subsequently listed 
transaction for purposes of section 4965 is a transaction that is 
identified by the Secretary as a listed transaction after the tax-exempt 
entity has entered into the transaction and that was not a prohibited 
reportable transaction (within the meaning of section 4965(e)(1)(C) and 
paragraph (a)(2) of this section) at the time the entity entered into 
the transaction.
    (c) Cross-reference. The determination of whether a transaction is a 
listed transaction or a prohibited reportable transaction for section 
4965 purposes shall be made under the law applicable to section 
6707A(c)(1) and (c)(2).
    (d) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010]



Sec.  53.4965-4  Definition of tax-exempt party to a prohibited 
tax shelter transaction.

    (a) In general. For purposes of sections 4965 and 6033(a)(2), a tax-
exempt entity is a party to a prohibited tax shelter transaction if the 
entity--

[[Page 298]]

    (1) Facilitates a prohibited tax shelter transaction by reason of 
its tax-exempt, tax indifferent or tax-favored status; or
    (2) Is identified in published guidance, by type, class or role, as 
a party to a prohibited tax shelter transaction.
    (b) Published guidance may identify which tax-exempt entities, by 
type, class or role, will not be treated as a party to a prohibited tax 
shelter transaction.
    (c) Example. The following example illustrates the principle of 
paragraph (a)(1) of this section:

    Example. A tax-exempt entity enters into a transaction (Transaction 
A) with an S corporation. Transaction A is the same as or substantially 
similar to the transaction identified by the Secretary as a listed 
transaction in Notice 2004-30 (2004-1 CB 828). The tax-exempt entity's 
role in Transaction A is similar to the role of the tax-exempt party, as 
described in Notice 2004-30. Under the terms of the transaction, as 
described in Notice 2004-30, the tax-exempt entity receives the S 
corporation stock and purports to aid the S corporation and its 
shareholders in avoiding taxable income. The tax-exempt entity 
facilitates Transaction A by reason of its tax-exempt, tax indifferent 
or tax-favored status. Accordingly, the tax-exempt entity is a party to 
Transaction A for purposes of sections 4965 and 6033(a)(2). See Sec.  
601.601(d)(2)(ii)(b) of this chapter.

    (d) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010]



Sec.  53.4965-5  Entity managers and related definitions.

    (a) Entity manager of a non-plan entity--(1) In general. Under 
section 4965(d)(1), an entity manager of a non-plan entity is--
    (i) A person with the authority or responsibility similar to that 
exercised by an officer, director, or trustee of an organization (that 
is, the non-plan entity); and
    (ii) With respect to any act, the person who has final authority or 
responsibility (either individually or as a member of a collective body) 
with respect to such act.
    (2) Definition of officer. For purposes of paragraph (a)(1)(i) of 
this section, a person is considered to be an officer of the non-plan 
entity (or to have similar authority or responsibility) if the person--
    (i) Is specifically designated as such under the certificate of 
incorporation, by-laws, or other constitutive documents of the non-plan 
entity; or
    (ii) Regularly exercises general authority to make administrative or 
policy decisions on behalf of the non-plan entity.
    (3) Exception for acts requiring approval by a superior. With 
respect to any act, any person is not described in paragraph (a)(2)(ii) 
of this section if the person has authority merely to recommend 
particular administrative or policy decisions, but not to implement them 
without approval of a superior.
    (4) Delegation of authority. A person is an entity manager of a non-
plan entity within the meaning of paragraph (a)(1)(ii) of this section 
if, with respect to any prohibited tax shelter transaction, such person 
has been delegated final authority or responsibility with respect to 
such transaction (including by transaction type or dollar amount) by a 
person described in paragraph (a)(1)(i) of this section or the governing 
board of the entity. For example, an investment manager is an entity 
manager with respect to a prohibited tax shelter transaction if the non-
plan entity's governing body delegated to the investment manager the 
final authority to make certain investment decisions and, in the 
exercise of that authority, the manager committed the entity to the 
transaction. To be considered an entity manager of a non-plan entity 
within the meaning of paragraph (a)(1)(ii) of this section, a person 
need not be an employee of the entity. A person is not described in 
paragraph (a)(1)(ii) of this section if the person is merely 
implementing a decision made by a superior.
    (b) Entity manager of a plan entity--(1) In general. Under section 
4965(d)(2), an entity manager of a plan entity is the person who 
approves or otherwise causes the entity to be a party to the prohibited 
tax shelter transaction.
    (2) Special rule for plan participants and beneficiaries who have 
investment elections--(i) Fully self-directed plans or arrangements. In 
the case of a fully self-directed qualified plan, IRA, or other savings 
arrangement (including a case

[[Page 299]]

where a plan participant or beneficiary is given a list of prohibited 
investments, such as collectibles), if the plan participant or 
beneficiary selected a certain investment and, therefore, approved the 
plan entity to become a party to a prohibited tax shelter transaction, 
the plan participant or the beneficiary is an entity manager.
    (ii) Plans or arrangements with limited investment options. In the 
case of a qualified plan, IRA, or other savings arrangement where a plan 
participant or beneficiary is offered a limited number of investment 
options from which to choose, the person responsible for determining the 
pre-selected investment options is an entity manager and the plan 
participant or the beneficiary generally is not an entity manager.
    (c) Meaning of ``approves or otherwise causes''--(1) In general. A 
person is treated as approving or otherwise causing a tax-exempt entity 
to become a party to a prohibited tax shelter transaction if the person 
has the authority to commit the entity to the transaction, either 
individually or as a member of a collective body, and the person 
exercises that authority.
    (2) Collective bodies. If a person shares the authority described in 
paragraph (c)(1) of this section as a member of a collective body (for 
example, board of trustees or committee), the person will be considered 
to have exercised such authority if the person voted in favor of the 
entity becoming a party to the transaction. However, a member of the 
collective body will not be treated as having exercised the authority 
described in paragraph (c)(1) of this section if he or she voted against 
a resolution that constituted approval or an act that caused the tax-
exempt entity to be a party to a prohibited tax shelter transaction, 
abstained from voting for such approval, or otherwise failed to vote in 
favor of such approval.
    (3) Exceptions--(i) Successor in interest. If a tax-exempt entity 
that is a party to a prohibited tax shelter transaction is dissolved, 
liquidated, or merged into a successor entity, an entity manager of the 
successor entity will not, solely by reason of the reorganization, be 
treated as approving or otherwise causing the successor entity to become 
a party to a prohibited tax shelter transaction, provided that the 
reorganization of the tax-exempt entity does not result in a material 
change to the terms of the transaction. For purposes of this paragraph 
(c)(3)(i), a material change includes an extension or renewal of the 
agreement (other than an extension or renewal that results from another 
party to the transaction unilaterally exercising an option granted by 
the agreement) or a more than incidental change to any payment under the 
agreement. A change for the sole purpose of substituting the successor 
entity for the original tax-exempt party is not a material change.
    (ii) Exercise or nonexercise of options. Nonexercise of an option 
pursuant to a transaction involving the tax-exempt entity generally will 
not constitute an act of approving or causing the entity to be a party 
to the transaction. If, pursuant to a transaction involving the tax-
exempt entity, the entity manager exercises an option (such as a 
repurchase option), the entity manager will not be subject to the entity 
manager-level tax if the exercise of the option does not result in the 
tax-exempt entity becoming a party to a second transaction that is a 
prohibited tax shelter transaction.
    (4) Example. The following example illustrates the principles of 
paragraph (c)(3)(ii) of this section:

    Example. In a sale-in, lease-out (SILO) transaction described in 
Notice 2005-13 (2005-1 CB 630), X, which is a non-plan entity, has 
purported to sell property to Y, a taxable entity and lease it back for 
a term of years. At the end of the basic lease term, X has the option of 
``repurchasing'' the property from Y for a predetermined purchase price, 
with funds that have been set aside at the inception of the transaction 
for that purpose. The entity manager, by deciding to exercise or not 
exercise the ``repurchase'' option is not approving or otherwise causing 
the non-plan entity to become a party to a second prohibited tax shelter 
transaction. See Sec.  601.601(d)(2)(ii)(b) of this chapter.

    (5) Coordination with the reason-to-know standard. The determination 
that an entity manager approved or caused a tax-exempt entity to be a 
party to a prohibited tax shelter transaction, by itself, does not 
establish liability for the section 4965(a)(2) tax. For rules on 
determining whether an entity manager knew or had reason to know that

[[Page 300]]

the transaction was a prohibited tax shelter transaction, see Sec.  
53.4965-6(b).
    (d) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010; 75 FR 46844, Aug. 4, 2010]



Sec.  53.4965-6  Meaning of ``knows or has reason to know''.

    (a) Attribution to the entity. An entity will be treated as knowing 
or having reason to know for section 4965 purposes if one or more of its 
entity managers knew or had reason to know that the transaction was a 
prohibited tax shelter transaction at the time the entity manager(s) 
approved the entity as (or otherwise caused the entity to be) a party to 
the transaction. The entity shall be attributed the knowledge or reason 
to know of any entity manager described in Sec.  53.4965-5(a)(1)(i) even 
if that entity manager does not approve the entity as (or otherwise 
cause the entity to be) a party to the transaction.
    (b) Determining whether an entity manager knew or had reason to 
know--(1) In general. Whether an entity manager knew or had reason to 
know that a transaction is a prohibited tax shelter transaction is based 
on all facts and circumstances. In order for an entity manager to know 
or have reason to know that a transaction is a prohibited tax shelter 
transaction, the entity manager must have knowledge of sufficient facts 
that would lead a reasonable person to conclude that the transaction is 
a prohibited tax shelter transaction. An entity manager will be 
considered to have ``reason to know'' if a reasonable person in the 
entity manager's circumstances would conclude that the transaction was a 
prohibited tax shelter transaction based on all the facts reasonably 
available to the manager at the time of approving the entity as (or 
otherwise causing the entity to be) a party to the transaction. Factors 
that will be considered in determining whether a reasonable person in 
the entity manager's circumstances would conclude that the transaction 
was a prohibited tax shelter transaction include, but are not limited 
to--
    (i) The presence of tax shelter indicia (see paragraph (b)(2) of 
this section);
    (ii) Whether the entity manager received a disclosure statement 
prior to the consummation of the transaction indicating that the 
transaction may be a prohibited tax shelter transaction (see paragraph 
(b)(3) of this section); and
    (iii) Whether the entity manager made appropriate inquiries into the 
transaction (see paragraph (b)(4) of this section).
    (2) Tax-shelter indicia. The presence of indicia that a transaction 
is a tax shelter will be treated as an indication that the entity 
manager knew or had reason to know that the transaction was a prohibited 
tax shelter transaction. Tax shelter indicia include but are not limited 
to--
    (i) The transaction is extraordinary for the entity considering 
prior investment activity;
    (ii) The transaction promises an economic return for the 
organization that is exceptional considering the amount invested by, the 
participation of, or the absence of risk to the organization; or
    (iii) The transaction is of significant size relative to the 
receipts of the entity.
    (3) Effect of disclosure statements. Receipt by an entity manager of 
a statement, including a statement described in section 6011(g), in 
advance of a transaction that the transaction may be a prohibited tax 
shelter transaction (or a statement that a partnership, hedge fund or 
other investment conduit may engage in a prohibited tax shelter 
transaction in the future) is a factor relevant in the determination of 
whether the entity manager knew or had reason to know that the 
transaction is a prohibited transaction. However, an entity manager will 
not be treated as knowing or having reason to know that the transaction 
was a prohibited tax shelter transaction solely because the entity 
manager receives such a disclosure.
    (4) Appropriate inquiries. What inquiries are appropriate will be 
determined from the facts and circumstances of each case. For example, 
if one or more tax shelter indicia are present or if an entity manager 
receives a disclosure statement described in paragraph (b)(3) of this 
section, an entity manager has a responsibility to inquire further

[[Page 301]]

whether the transaction is a prohibited tax shelter transaction.
    (c) Reliance on professional advice--(1) In general. An entity 
manager is not required to obtain the advice of a professional tax 
advisor to establish that the entity manager made appropriate inquiries. 
Moreover, not seeking professional advice, by itself, shall not give 
rise to an inference that the entity manager had reason to know that a 
transaction is a prohibited tax shelter transaction.
    (2) Reliance on written opinion of professional tax advisor. An 
entity manager may establish that he or she did not have a reason to 
know that a transaction was a prohibited tax shelter transaction at the 
time the tax-exempt entity entered into the transaction if the entity 
manager reasonably, and in good faith, relied on the written opinion of 
a professional tax advisor. Reliance on the written opinion of a 
professional tax advisor establishes that the entity manager did not 
have reason to know if, taking into account all the facts and 
circumstances, the reliance was reasonable and the entity manager acted 
in good faith. For example, the entity manager's education, 
sophistication, and business experience will be relevant in determining 
whether the reliance was reasonable and made in good faith. In no event 
will an entity manager be considered to have reasonably relied in good 
faith on an opinion unless the requirements of this paragraph (c)(2) are 
satisfied. The fact that these requirements are satisfied, however, will 
not necessarily establish that the entity manager reasonably relied on 
the opinion in good faith. For example, reliance may not be reasonable 
or in good faith if the entity manager knew, or reasonably should have 
known, that the advisor lacked knowledge in the relevant aspects of 
Federal tax law.
    (i) All facts and circumstances considered. The advice must be based 
upon all pertinent facts and circumstances and the law as it relates to 
those facts and circumstances. The requirements of this paragraph (c)(2) 
are not satisfied if the entity manager fails to disclose a fact that it 
knows, or reasonably should know, is relevant to determining whether the 
transaction is a prohibited tax shelter transaction.
    (ii) No unreasonable assumptions. The advice must not be based on 
unreasonable factual or legal assumptions (including assumptions as to 
future events) and must not unreasonably rely on the representations, 
statements, findings, or agreements of the entity manager or any other 
person (including another party to the transaction or a material advisor 
within the meaning of sections 6111 and 6112).
    (iii) ``More likely than not'' opinion. The written opinion of the 
professional tax advisor must apply the appropriate law to the facts 
and, based on this analysis, must conclude that the transaction was not 
a prohibited tax shelter transaction at a ``more likely than not'' level 
of certainty at the time the entity manager approved the entity (or 
otherwise caused the entity) to be a party to the transaction.
    (3) Special rule. An entity manager's reliance on a written opinion 
of a professional tax advisor will not be considered reasonable if the 
advisor is, or is related to a person who is, a material advisor with 
respect to the transaction within the meaning of sections 6111 and 6112.
    (d) Subsequently listed transactions. An entity manager will not be 
treated as knowing or having reason to know that a transaction (other 
than a prohibited reportable transaction as defined in section 
4965(e)(1)(C) and Sec.  53.4965-3(a)(2)) is a prohibited tax shelter 
transaction if the entity enters into the transaction before the date on 
which the transaction is identified by the Secretary as a listed 
transaction.
    (e) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010]



Sec.  53.4965-7  Taxes on prohibited tax shelter transactions.

    (a) Entity-level taxes--(1) In general. Entity-level excise taxes 
apply to non-plan entities (as defined in Sec.  53.4965-2(b)) that are 
parties to prohibited tax shelter transactions.
    (i) Prohibited tax shelter transactions other than subsequently 
listed transactions--(A) Amount of tax if the entity did not know and 
did not have reason to

[[Page 302]]

know. If the tax-exempt entity did not know and did not have reason to 
know that the transaction was a prohibited tax shelter transaction at 
the time the entity entered into the transaction, the tax is the highest 
rate of tax under section 11 multiplied by the greater of--
    (1) The entity's net income with respect to the prohibited tax 
shelter transaction (after taking into account any tax imposed by 
Subtitle D, other than by this section, with respect to such 
transaction) for the taxable year; or
    (2) 75 percent of the proceeds received by the entity for the 
taxable year that are attributable to such transaction.
    (B) Amount of tax if the entity knew or had reason to know. If the 
tax-exempt entity knew or had reason to know that the transaction was a 
prohibited tax shelter transaction at the time the entity entered into 
the transaction, the tax is the greater of--
    (1) 100 percent of the entity's net income with respect to the 
transaction (after taking into account any tax imposed by Subtitle D, 
other than by this section, with respect to such transaction) for the 
taxable year; or
    (2) 75 percent of the proceeds received by the entity for the 
taxable year that are attributable to such transaction.
    (ii) Subsequently listed transactions--(A) In general. In the case 
of a subsequently listed transaction (as defined in section 4965(e)(2) 
and Sec.  53.4965-3(b)), the tax-exempt entity's income and proceeds 
attributable to the transaction are allocated between the period before 
the transaction became listed and the period beginning on the date the 
transaction became listed. See Sec.  53.4965-8 for the standard for 
allocating net income or proceeds to various periods. The tax for each 
taxable year is the highest rate of tax under section 11 multiplied by 
the greater of--
    (1) The entity's net income with respect to the subsequently listed 
transaction (after taking into account any tax imposed by Subtitle D, 
other than by this section, with respect to such transaction) for the 
taxable year that is allocable to the period beginning on the later of 
the date such transaction is identified by the Secretary as a listed 
transaction or the first day of the taxable year; or
    (2) 75 percent of the proceeds received by the entity for the 
taxable year that are attributable to such transaction and allocable to 
the period beginning on the later of the date such transaction is 
identified by the Secretary as a listed transaction or the first day of 
the taxable year.
    (B) No increase in tax. The 100 percent tax under section 
4965(b)(1)(B) and Sec.  53.4965-7(a)(1)(i)(B) does not apply to any 
subsequently listed transaction (as defined in section 4965(e)(2) and 
Sec.  53.4965-3(b)) entered into by a tax-exempt entity before the date 
on which the transaction is identified by the Secretary as a listed 
transaction.
    (2) Taxable year. The excise tax imposed under section 4965(a)(1) 
applies for the taxable year in which the entity becomes a party to the 
prohibited tax shelter transaction and any subsequent taxable year for 
which the entity has net income or proceeds attributable to the 
transaction. A taxable year for tax-exempt entities is the calendar year 
or fiscal year, as applicable, depending on the basis on which the tax-
exempt entity keeps its books for Federal income tax purposes. If a tax-
exempt entity has not established a taxable year for Federal income tax 
purposes, the entity's taxable year for the purpose of determining the 
amount and timing of net income and proceeds attributable to a 
prohibited tax shelter transaction will be deemed to be the annual 
period the entity uses in keeping its books and records.
    (b) Manager-level taxes--(1) Amount of tax. If any entity manager 
approved or otherwise caused the tax-exempt entity to become a party to 
a prohibited tax shelter transaction and knew or had reason to know that 
the transaction was a prohibited tax shelter transaction, such entity 
manager is liable for the $20,000 tax. See Sec.  53.4965-5(d) for the 
meaning of approved or otherwise caused. See Sec.  53.4965-6 for the 
meaning of knew or had reason to know.
    (2) Timing of the entity manager tax. If a tax-exempt entity enters 
into a prohibited tax shelter transaction during a taxable year of an 
entity manager, then the entity manager that approved

[[Page 303]]

or otherwise caused the tax-exempt entity to become a party to the 
transaction is liable for the entity manager tax for that taxable year 
if the entity manager knew or had reason to know that the transaction 
was a prohibited tax shelter transaction.
    (3) Example. The application of paragraph (b)(2) of this section is 
illustrated by the following example:

    Example. The entity manager's taxable year is the calendar year. On 
December 1, 2006, the entity manager approved or otherwise caused the 
tax-exempt entity to become a party to a transaction that the entity 
manager knew or had reason to know was a prohibited tax shelter 
transaction. The tax-exempt entity entered into the transaction on 
January 31, 2007. The entity manager is liable for the entity manager 
level tax for the entity manager's 2007 taxable year, during which the 
tax-exempt entity entered into the prohibited tax shelter transaction.

    (4) Separate liability. If more than one entity manager approved or 
caused a tax-exempt entity to become a party to a prohibited tax shelter 
transaction while knowing (or having reason to know) that the 
transaction was a prohibited tax shelter transaction, then each such 
entity manager is separately (that is, not jointly and severally) liable 
for the entity manager-level tax with respect to the transaction.
    (c) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010]



Sec.  53.4965-8  Definition of net income and proceeds and standard 
for allocating net income or proceeds to various periods.

    (a) In general. For purposes of section 4965(a), the amount and the 
timing of the net income and proceeds attributable to the prohibited tax 
shelter transaction will be computed in a manner consistent with the 
substance of the transaction. In determining the substance of listed 
transactions, the IRS will look to, among other items, the listing 
guidance and any subsequent guidance published in the Internal Revenue 
Bulletin relating to the transaction.
    (b) Definition of net income and proceeds--(1) Net income. A tax-
exempt entity's net income attributable to a prohibited tax shelter 
transaction is its gross income derived from the transaction reduced by 
those deductions that are attributable to the transaction and that would 
be allowed by chapter 1 of the Internal Revenue Code if the tax-exempt 
entity were treated as a taxable entity for this purpose, and further 
reduced by taxes imposed by Subtitle D, other than by this section, with 
respect to the transaction.
    (2) Proceeds--(i) Tax-exempt entities that facilitate the 
transaction by reason of their tax-exempt, tax indifferent or tax-
favored status. Solely for purposes of section 4965, in the case of a 
tax-exempt entity that is a party to the transaction by reason of Sec.  
53.4965-4(a)(1) of this chapter, the term proceeds means the gross 
amount of the tax-exempt entity's consideration for facilitating the 
transaction, not reduced for any costs or expenses attributable to the 
transaction. Published guidance with respect to a particular prohibited 
tax shelter transaction may designate additional amounts as proceeds 
from the transaction for section 4965 purposes.
    (ii) Treatment of gifts and contributions. To the extent not 
otherwise included in the definition of proceeds in paragraph (b)(2)(i) 
of this section, any amount that is a gift or a contribution to a tax-
exempt entity and is attributable to a prohibited tax shelter 
transaction will be treated as proceeds for section 4965 purposes, 
unreduced by any associated expenses.
    (c) Allocation of net income and proceeds--(1) In general. For 
purposes of section 4965(a), the net income and proceeds attributable to 
a prohibited tax shelter transaction must be allocated in a manner 
consistent with the tax-exempt entity's established method of accounting 
for Federal income tax purposes. If the tax-exempt entity has not 
established a method of accounting for Federal income tax purposes, 
solely for purposes of section 4965(a) the tax-exempt entity must use 
the cash receipts and disbursements method of accounting (cash method) 
provided for in section 446 of the Internal Revenue Code to determine 
the amount and timing of net income and proceeds attributable to a 
prohibited tax shelter transaction.

[[Page 304]]

    (2) Special rule. If a tax-exempt entity has established a method of 
accounting other than the cash method, the tax-exempt entity may 
nevertheless use the cash method of accounting to determine the amount 
of the net income and proceeds--
    (i) Attributable to a prohibited tax shelter transaction entered 
into prior to the effective date of section 4965(a) tax and allocable to 
pre- and post-effective date periods; or
    (ii) Attributable to a subsequently listed transaction and allocable 
to pre- and post-listing periods.
    (d) Transition year rules. In the case of the taxable year that 
includes August 16, 2006 (the transition year), the IRS will treat the 
period beginning on the first day of the transition year and ending on 
August 15, 2006, and the period beginning on August 16, 2006, and ending 
on the last day of the transition year as short taxable years. This 
treatment is solely for purposes of allocating net income or proceeds 
under section 4965. The tax-exempt entity continues to file tax returns 
for the full taxable year, does not file tax returns with respect to 
these deemed short taxable years and does not otherwise take the short 
taxable years into account for Federal tax purposes. Accordingly, the 
net income or proceeds that are properly allocated to the transition 
year in accordance with this section will be treated as allocable to the 
period--
    (1) Ending on or before August 15, 2006 (and accordingly not subject 
to tax under section 4965(a)) to the extent such net income or proceeds 
would have been properly taken into account in accordance with this 
section by the tax-exempt entity in the deemed short year ending on 
August 15, 2006; and
    (2) Beginning after August 15, 2006 (and accordingly subject to tax 
under section 4965(a)) to the extent such income or proceeds would have 
been properly taken into account in accordance with this section by the 
tax-exempt entity in the short year beginning August 16, 2006.
    (e) Allocation to pre- and post-listing periods. If a transaction 
other than a prohibited reportable transaction (as defined in section 
4965(e)(1)(C) and Sec.  53.4965-3(a)(2)) to which the tax-exempt entity 
is a party is subsequently identified in published guidance as a listed 
transaction during a taxable year of the entity (the listing year) in 
which it has net income or proceeds attributable to the transaction, the 
net income or proceeds are allocated between the pre- and post-listing 
periods. The IRS will treat the period beginning on the first day of the 
listing year and ending on the day immediately preceding the date of the 
listing, and the period beginning on the date of the listing and ending 
on the last day of the listing year as short taxable years. This 
treatment is solely for purposes of allocating net income or proceeds 
under section 4965. The tax-exempt entity continues to file tax returns 
for the full taxable year, does not file tax returns with respect to 
these deemed short taxable years and does not otherwise take the short 
taxable years into account for Federal tax purposes. Accordingly, the 
net income or proceeds that are properly allocated to the listing year 
in accordance with this section will be treated as allocable to the 
period--
    (1) Ending before the date of the listing (and accordingly not 
subject to tax under section 4965(a)) to the extent such net income or 
proceeds would have been properly taken into account in accordance with 
this section by the tax-exempt entity in the deemed short year ending on 
the day immediately preceding the date of the listing; and
    (2) Beginning on the date of the listing (and accordingly subject to 
tax under section 4965(a)) to the extent such income or proceeds would 
have been properly taken into account in accordance with this section by 
the tax-exempt entity in the short year beginning on the date of the 
listing.
    (f) Examples. The following examples illustrate the allocation rules 
of this section:

    Example 1. (i) In 1999, X, a calendar year non-plan entity using the 
cash method of accounting, entered into a lease-in/lease-out transaction 
(LILO) substantially similar to the transaction described in Notice 
2000-15 (2000-1 CB 826) (describing Rev. Rul. 99-14 (1999-1 CB 835), 
superseded by Rev. Rul. 2002-69 (2002-2 CB 760)). In 1999, X purported 
to lease property to Y pursuant to a ``head lease,'' and Y purported to 
lease the property back to X pursuant to a ``sublease'' of a

[[Page 305]]

shorter term. In form, X received $268M as an advance payment of head 
lease rent. Of this amount, $200M had been, in form, financed by a 
nonrecourse loan obtained by Y. X deposited the $200M with a ``debt 
payment undertaker.'' This served to defease both a portion of X's rent 
obligation under its sublease and Y's repayment obligation under the 
nonrecourse loan. Of the remainder of the $268M advance head lease rent 
payment, X deposited $54M with an ``equity payment undertaker.'' This 
served to defease the remainder of X's rent obligation under the 
sublease as well as the exercise price of X's end-of-sublease term 
purchase option. This amount inures to the benefit of Y and enables Y to 
recover its investment in the transaction and a return on that 
investment. In substance, the $54M is a loan from Y to X. X retained the 
remaining $14M of the advance head lease rent payment. In substance, 
this represents a fee for X's participation in the transaction. See 
Sec.  601.601(d)(2)(ii)(b) of this chapter.
    (ii) According to the substance of the transaction, the head lease, 
sublease and nonrecourse debt will be ignored for Federal income tax 
purposes. Therefore, any net income or proceeds resulting from these 
elements of the transaction will not be considered net income or 
proceeds attributable to the LILO transaction for purposes of section 
4965(a). The $54M deemed loan from Y to X and the $14M fee are not 
ignored for Federal income tax purposes.
    (iii) Under X's established cash basis method of accounting, any net 
income received in 1999 and attributable to the LILO transaction is 
allocated to X's December 31, 1999, tax year for purposes of section 
4965. The $14M fee received in 1999, which constitutes proceeds of the 
transaction, is likewise allocated to that tax year. Because the 1999 
tax year is before the effective date of the section 4965 tax, X will 
not be subject to any excise tax under section 4965 for the amounts 
received in 1999.
    (iv) Any earnings on the amount deposited with the equity payment 
undertaker that constitute gross income to X will be reduced by X's 
original issue discount deductions with respect to the deemed loan from 
Y, in determining X's net income from the transaction.
    Example 2. B, a non-plan entity using the cash method of accounting, 
has an annual accounting period that ends on December 31, 2006. B 
entered into a prohibited tax shelter transaction on March 15, 2006. On 
that date, B received a payment of $600,000 as a fee for its involvement 
in the transaction. B received no other proceeds or income attributable 
to this transaction in 2006. Under B's method of accounting, the payment 
received by B on March 15, 2006, is taken into account in the deemed 
short year ending on August 15, 2006. Accordingly, solely for purposes 
of section 4965, the payment is treated as allocable solely to the 
period ending on or before August 15, 2006, and is not subject to the 
excise tax imposed by section 4965(a).
    Example 3. The facts are the same as in Example 2, except that B 
received an additional payment of $400,000 on September 30, 2006. Under 
B's method of accounting, the payment received by B on September 30, 
2006, is taken into account in the deemed short year beginning on August 
16, 2006. Accordingly, solely for purposes of section 4965, the $400,000 
payment is treated as allocable to the period beginning after August 15, 
2006, and is subject to the excise tax imposed by section 4965(a).
    Example 4. C, a non-plan entity using the cash method of accounting, 
has an annual accounting period that ends on December 31. C entered into 
a prohibited tax shelter transaction on May 1, 2005. On March 15, 2007, 
C received a payment of $580,000 attributable to the transaction. On 
June 1, 2007, the transaction is identified by the IRS in published 
guidance as a listed transaction. On June 15, 2007, C received an 
additional payment of $400,000 attributable to the transaction. Under 
C's method of accounting, the payments received on March 15, 2007, and 
June 15, 2007, are taken into account in 2007. The IRS will treat the 
period beginning on January 1, 2007, and ending on May 31, 2007, and the 
period beginning on June 1, 2007, and ending on December 31, 2007, as 
short taxable years. The payment received by C on March 15, 2007, is 
taken into account in the deemed short year ending on May 31, 2007. 
Accordingly, solely for purposes of section 4965, the payment is treated 
as allocable solely to the pre-listing period, and is not subject to the 
excise tax imposed by section 4965(a). The payment received by C on June 
15, 2007, is taken into account in the deemed short year beginning on 
June 1, 2007. Accordingly, solely for purposes of section 4965, the 
payment is treated as allocable to the post-listing period, and is 
subject to the excise tax imposed by section 4965(a).

    (g) Effective/applicability dates. See Sec.  53.4965-9 for the 
discussion of the relevant effective and applicability dates.

[T.D. 9492, 75 FR 38702, July 6, 2010; 75 FR 46844, Aug. 4, 2010]



Sec.  53.4965-9  Effective/applicability dates.

    (a) In general. The taxes under section 4965(a) and Sec.  53.4965-7 
are effective for taxable years ending after May 17, 2006, with respect 
to transactions entered into before, on or after that date, except that 
no tax under section 4965(a) applies with respect to income or proceeds 
that are properly allocable to

[[Page 306]]

any period ending on or before August 15, 2006.
    (b) Applicability of the regulations. As of July 6, 2010, except as 
provided in paragraph (c) of this section, Sec. Sec.  53.4965-1 through 
53.4965-8 of this chapter will apply to taxable years ending after July 
6, 2007. A tax-exempt entity may rely on the provisions of Sec. Sec.  
53.4965-1 through 53.4965-8 for taxable years ending on or before July 
6, 2007.
    (c) Effective/applicability date with respect to certain knowing 
transactions--(1) Entity-level tax. The 100 percent tax under section 
4965(b)(1)(B) and Sec.  53.4965-7(a)(1)(i)(B) does not apply to 
prohibited tax shelter transactions entered into by a tax-exempt entity 
on or before May 17, 2006.
    (2) Manager-level tax. The IRS will not assert that an entity 
manager who approved or caused a tax-exempt entity to become a party to 
a prohibited tax shelter transaction is liable for the entity manager 
tax under section 4965(b)(2) and Sec.  53.4965-7(b)(1) with respect to 
the transaction if the tax-exempt entity entered into such transaction 
prior to May 17, 2006.

[T.D. 9492, 75 FR 38702, July 6, 2010]



Sec.  53.4968-1  Excise tax based on investment income of certain 
private colleges and universities.

    (a) Excise tax on the investment income of certain private colleges 
and universities. For taxable years beginning after December 31, 2017, 
section 4968 of the Internal Revenue Code (Code) imposes a tax equal to 
1.4 percent of the net investment income (as defined in section 4968(c) 
and Sec.  53.4968-2) of an applicable educational institution (as 
defined in section 4968(b)(1) and paragraph (b)(1) of this section).
    (b) Definitions. The definitions in this paragraph (b) apply for 
purposes of section 4968 and Sec. Sec.  53.4968-1 through 53.4968-4.
    (1) Applicable educational institution. The term applicable 
educational institution means any eligible educational institution (as 
defined in section 25A(f)(2) of the Code and Sec.  1.25A-2(b) of this 
chapter)--
    (i) That had at least 500 tuition-paying students during the 
preceding taxable year;
    (ii) More than 50 percent of whose tuition-paying students are 
located in the United States;
    (iii) That is not described in the first sentence of section 
511(a)(2)(B) of the Code (relating to state colleges and universities); 
and
    (iv) The aggregate fair market value of the assets of which at the 
end of such preceding taxable year (other than those assets that are 
used directly in carrying out the institution's exempt purpose) is at 
least $500,000 per student.
    (2) Student. The term student means a person who is enrolled and 
attending a course for academic credit from the institution and who is 
being charged tuition at a rate that is commensurate with the tuition 
rate charged to students enrolled for a degree. The number of students 
of an educational institution (including for purposes of determining the 
number of students at a particular location) is based on the daily 
average number of full-time students (with part-time students taken into 
account on a full-time student equivalent basis). The standards for 
determining part-time students, full-time students, full-time 
equivalents, and daily average are determined by each educational 
institution. However, the standards may not be lower than the minimum 
applicable standards established by the Department of Education under 
the Higher Education Act of 1965 (20 U.S.C. 1088), as amended.
    (3) Tuition-paying--(i) In general. The term tuition-paying means 
the payment of any tuition or fees required for the enrollment or 
attendance of a student for a course of instruction at an educational 
institution. Tuition and fees do not include payment for supplies or 
equipment required during a specific course once a student is enrolled 
in and attending the course, or payment for room and board or other 
personal living expenses.
    (ii) Treatment of a comprehensive or bundled fee. If a student is 
required to pay a fee (such as a comprehensive fee or a bundled fee) to 
an educational institution that combines charges for tuition with 
charges for personal expenses such as room and board, the student is a 
tuition-paying student.

[[Page 307]]

    (iii) Scholarships, grants, and work study programs. Whether a 
student is tuition-paying is determined after taking into account any 
scholarships and grants provided directly by the educational institution 
or by the Federal government or any state or local government, and after 
application of any work study programs operated directly by the 
institution. Scholarships and grants provided by non-governmental third 
parties, even if administered by the institution, are considered 
payments of tuition on behalf of the student. Accordingly, a student 
will be considered a tuition-paying student if payment of tuition or a 
fee is required for the enrollment or attendance of the student for 
courses of instruction after the application of any scholarships offered 
directly by the institution, any work study program operated directly by 
the institution, and any grants and scholarships provided by the Federal 
government or any state or local government.
    (4) Located in the United States. A student is located in the United 
States if the student resided in the United States for at least a 
portion of the time the student attended the educational institution 
during the institution's preceding taxable year. Whether a student 
resided in the United States in any given year can be determined using 
any reasonable method, as long as that method is consistently applied.
    (5) Assets used directly in carrying out an institution's exempt 
purpose--(i) In general. Except as provided in paragraph (b)(5)(iv) of 
this section, an asset is used directly in carrying out an educational 
institution's exempt purpose only if the asset is actually used directly 
by the institution in carrying out its exempt purpose. Whether an asset 
is used directly by the institution to carry out its exempt purpose is 
determined based on all the facts and circumstances. If property is used 
for an exempt purpose and for other purposes, and the exempt use 
represents 95 percent or more of the total use, the property is 
considered to be used exclusively for an exempt purpose. If the exempt 
use of such property represents less than 95 percent of the total use, 
the institution must make a reasonable allocation between such exempt 
and nonexempt uses.
    (ii) Illustrations. Examples of assets that are used directly in 
carrying out an institution's exempt purpose include, but are not 
limited to, the following--
    (A) Administrative assets, such as office equipment and supplies 
used by the institution directly in the administration of its exempt 
activities;
    (B) Real estate or the portion of any building used by the 
institution directly in its exempt activities;
    (C) Physical property such as paintings or other works of art owned 
by the institution that are on public display (or held for public 
display), fixtures and equipment in classrooms, research facilities and 
related equipment that under the facts and circumstances serve a useful 
purpose in the conduct of the institution's exempt activities;
    (D) The reasonable cash balance, determined using any reasonable 
method, necessary to cover current operating and administrative expenses 
and other normal and current disbursements directly connected with the 
educational institution's exempt activities. For this purpose, a 
reasonable method would include calculating an amount equal to three 
months of operating expenses allocable to program services, calculated 
by dividing annual functional expenses allocable to program services by 
four. A larger amount may be a reasonable cash balance for this purpose 
if, under the facts and circumstances, a larger amount is established to 
be necessary to cover administrative expenses and other normal 
disbursements directly connected with the institution's exempt activity.
    (E) Any property the educational institution leases to other persons 
at no cost (or at a nominal rent) to the lessee in furtherance of the 
institution's exempt purposes; and
    (F) Patents, copyrights, and other intellectual property and 
intangible property to the extent that income from those assets is 
excluded from net investment income by Sec.  53.4968-2(b)(2)(iii).
    (iii) Assets not used directly. The following assets are examples of 
assets not used directly in carrying out an institution's exempt 
purpose--

[[Page 308]]

    (A) Assets that are held for the production of income or for 
investment (for example, stocks, bonds, interest-bearing notes, 
endowment funds, or leased real estate not described in paragraph 
(b)(5)(ii)(E) of this section), even if the income from such assets is 
used to carry out such exempt purpose; and
    (B) Property (such as offices and equipment) used for the purpose of 
managing the institution's endowment funds.
    (iv) Assets of related organizations. An asset of a related 
organization that is treated as an asset of an educational institution 
by section 4968(d) and Sec.  53.4968-3(c) and that is used directly in 
carrying out an educational institution's exempt purpose, or that is 
used directly in carrying out the exempt purpose of a related 
organization that is described in section 501(c)(3), is considered used 
directly by the educational institution in carrying out its exempt 
purpose.
    (v) Valuation of assets not used directly in carrying out an 
institution's exempt purpose--(A) In general. The values of assets not 
used directly in carrying out an educational institution's exempt 
purpose are determined under the rules of section 4942(e) and Sec.  
53.4942(a)-2(c)(4), as modified by paragraph (b)(5)(v)(B) of this 
section.
    (B) Modifications. In applying the rules of Sec.  53.4942(a)-
2(c)(4), an educational institution must--
    (1) Substitute ``educational institution'' for ``private 
foundation'' or ``foundation'' every place they appear; and
    (2) Make such adjustments as are reasonable and necessary to obtain 
the fair market value of any and all assets as of the last day of the 
preceding taxable year, rather than as of any other times permitted or 
required by Sec.  53.4942(a)-2(c)(4).

[T.D 9917, 85 FR 65557, Oct. 15, 2020]



Sec.  53.4968-2  Net investment income.

    (a) Net investment income--(1) In general. For taxable years 
beginning after December 31, 2017, section 4968(a) of the Internal 
Revenue Code (Code) imposes a 1.4 percent excise tax on the net 
investment income (as defined in section 4968(c) and this section) of an 
applicable educational institution and on certain amounts of net 
investment income of certain related organizations, as described in 
section 4968(d) and Sec.  53.4968-3. For purposes of this section, net 
investment income is determined under rules similar to the rules of 
section 4940(c) of the Code. Thus, net investment income generally is 
the amount by which the sum of the gross investment income (as defined 
in paragraph (b) of this section) and the capital gain net income (as 
defined in paragraph (d) of this section) exceeds the deductions allowed 
by paragraph (c) of this section. Except to the extent inconsistent with 
the provisions of this section, net investment income is determined 
under the principles of subtitle A of the Code.
    (2) Tax-exempt income. For purposes of this section, net investment 
income is determined by applying section 103 of the Code (relating to 
State and local bonds) and section 265 of the Code (relating to expenses 
and interest relating to tax-exempt income).
    (b) Gross investment income--(1) In general. For purposes of this 
section and except as provided in paragraph (b)(2) of this section, the 
term gross investment income means the gross amounts of income from 
interest, dividends, rents, payments with respect to securities loans 
(as defined in section 512(a)(5) of the Code), and royalties, but not 
including any such income to the extent included in computing the tax 
imposed by section 511 of the Code. Such term also includes income from 
sources similar to those in the preceding sentence. In general, gross 
investment income includes the items of investment income described in 
Sec.  1.512(b)-1(a) of this chapter.
    (2) Exceptions. The following items of income are excluded from the 
definition of gross investment income:
    (i) Interest income from a student loan that was made by the 
applicable educational institution or a related organization to a 
student of the applicable educational institution in connection with the 
student's attendance at the institution;
    (ii) Rental income from the provision of housing by the applicable 
educational institution or a related organization to students of the 
applicable

[[Page 309]]

educational institution and from housing for faculty and staff if the 
housing is provided contingent on their roles as faculty or staff of the 
applicable educational institution; and
    (iii) Royalty income that is derived from patents, copyrights, and 
other intellectual property and intangible property to the extent those 
assets resulted from the work of student(s) or faculty member(s) in 
their capacities as such with the applicable educational institution. 
However, neither royalty income from trademarks on the institution's 
logo or name nor royalty income from intellectual property donated or 
sold to the institution is excluded from gross investment income under 
this rule.
    (c) Deductions--(1) In general. For purposes of computing net 
investment income--
    (i) There is allowed as a deduction from gross investment income all 
the ordinary and necessary expenses paid or incurred for the production 
or collection of gross investment income or for the management, 
conservation, or maintenance of property held for the production of such 
income, determined with the modifications set forth in paragraph (c)(2) 
of this section. Taxes paid or incurred under section 4968 are not paid 
or incurred for the production or collection of gross investment income. 
Allowable expenses include that portion of an applicable educational 
institution's operating expenses that is paid or incurred for the 
production or collection of gross investment income. An applicable 
educational institution's operating expenses include compensation of 
officers, other salaries and wages of employees, outside professional 
fees, interest, and rent and taxes on property used in the applicable 
educational institution's operations. Where an applicable educational 
institution's officers or employees engage in activities on behalf of 
the institution for both activities that generate net investment income 
and for activities that do not generate net investment income, 
compensation and salaries paid to such officers or employees must be 
allocated between the activities that generate net investment income and 
for activities that do not generate net investment income.
    (ii) Where only a portion of property produces, or is held for the 
production of, income subject to the section 4968 excise tax, and the 
remainder of the property is used for other purposes, the deductions 
allowed by this paragraph must be apportioned between the taxable and 
other uses.
    (iii) No amount is allowable as a deduction under this section to 
the extent it is paid or incurred for purposes other than those 
described in paragraph (c)(1)(i) of this section. Thus, for example, the 
charitable deductions prescribed under sections 170 and 642(c) of the 
Code; the net operating loss deduction prescribed under section 172; and 
the special deductions prescribed under part VIII of subchapter B of 
chapter 1 of the Code are not allowable.
    (2) Deduction modifications. The following modifications must be 
made in determining deductions otherwise allowable under this paragraph 
(c):
    (i) The depreciation deduction is allowed, but only on the basis of 
the straight-line method provided in section 168(b)(3) and without 
regard to section 168(b)(1) and (2).
    (ii) The depletion deduction is allowed, but such deduction is 
determined without regard to sections 613 and 613A of the Code, relating 
to percentage depletion.
    (iii) The basis to be used for purposes of the deduction allowed for 
depreciation or depletion is the basis determined under the rules of 
part II of subchapter O of chapter 1 of the Code (part II of subchapter 
O), subject to the modifications found in paragraphs (c)(2)(i) and (ii) 
of this section (relating to depreciation and depletion), and without 
regard to Sec.  53.4968-2(d)(2) (relating to the basis for determining 
gain for property held on December 31, 2017, and continuously thereafter 
to the date of disposition), or section 362(c) of the Code (relating to 
certain special basis rules regarding contributions of capital to 
corporations). Thus, an applicable educational institution must reduce 
the cost or other substituted or transferred basis by an amount equal to 
the straight-line depreciation or cost depletion, without regard to 
whether the applicable educational institution deducted such 
depreciation or depletion

[[Page 310]]

during the period prior to its first taxable year beginning after 
December 31, 2017. However, where an applicable educational institution 
has previously taken depreciation or depletion deductions in excess of 
the amount which would have been taken had the straight-line or cost 
method been employed, such excess depreciation or depletion also is 
taken into account to reduce basis. If the facts necessary to determine 
the basis of property in the hands of the donor or the last preceding 
owner by whom it was not acquired by gift are unknown to the applicable 
educational institution, then the original basis to the applicable 
educational institution of such property is determined under the rules 
of Sec.  1.1015-1(a)(3) of this chapter.
    (iv) The deduction for expenses paid or incurred in any taxable year 
for the production of gross investment income earned as an incident to a 
charitable function can be no greater than the income earned from such 
function which is includible as gross investment income for such year. 
For example, where rental income incidentally is realized in a year from 
historic buildings held open to the public, deductions for amounts paid 
or incurred in that year for the production of such income is limited to 
the amount of rental income includible as gross investment income for 
the year.
    (d) Capital gains and losses--(1) In general. In determining capital 
gain net income for purposes of the tax imposed by section 4968--
    (i) Interaction with section 511. No gain or loss from the sale or 
other disposition of property is taken into account to the extent that 
such gain or loss is taken into account for purposes of computing the 
tax imposed by section 511.
    (ii) Sales or other dispositions of exempt use property. To the 
extent that property is used by the educational institution for its 
exempt purposes, capital gain from the sale or exchange of the portion 
of that property that is used by the educational institution for its 
exempt purposes is disregarded;
    (iii) Sales of donated property--(A) In general. Any appreciation in 
the value of donated property that occurred prior to the date of its 
donation to the institution is disregarded.
    (B) Date of donation. The date of donation is determined under the 
timing rules of Sec.  1.170A-1(b) of this chapter.
    (C) Value on the date of donation. The value of the donated property 
on the date of donation is determined under the valuation rules of Sec.  
1.170A-1(c) of this chapter; and
    (iv) Capital losses. Net losses from sales or other dispositions of 
property by one related organization (or by the applicable educational 
institution) reduce (but not below zero) net gains from such sales or 
other dispositions by other related organizations (or by the applicable 
educational institution). Should overall net losses from sales or other 
dispositions of property exceed gains from sales or other dispositions 
of such property during the same taxable year, such excess may not be 
deducted from gross investment income in any taxable year, nor may such 
excess be used to reduce gains in prior taxable years. However, capital 
loss carryovers are allowed and may be deducted from capital gains in a 
future year.
    (2) Basis--(i) For purposes of calculating gain from the sale or 
other disposition of property other than a partnership interest. Subject 
to the modifications of paragraphs (c)(2)(i) and (ii) of this section 
(referring to the modifications relating to deductions against gross 
investment income) and without regard to section 362(c), the basis for 
purposes of determining gain from the sale or other disposition of 
property (other than a partnership interest) for purposes of determining 
capital gain net income for purposes of the tax imposed by section 4968 
is the greater of--
    (A) Fair market value on December 31, 2017, plus or minus all 
adjustments after December 31, 2017, and before the date of disposition 
under the rules of part II of subchapter O, provided that the property 
was held by the applicable educational institution on December 31, 2017, 
and continuously thereafter to the date of disposition, or
    (B) Basis as determined under the rules of part II of subchapter O.
    (ii) For purposes of determining a distributive share of gain from 
the sale or other disposition of a partnership asset.

[[Page 311]]

For purposes of determining an applicable educational institution's 
share of gain upon the sale or other disposition of a partnership asset, 
the applicable educational institution's basis in each such partnership 
asset generally is determined under the rules of subchapter K of chapter 
1 of the Code (subchapter K). However, see paragraph (d)(3) of this 
section.
    (iii) For purposes of determining gain on the sale or other 
disposition of a partnership interest. For purposes of determining an 
applicable educational institution's gain upon the sale or other 
disposition of all or a portion of a partnership interest, the 
applicable educational institution's basis in such partnership interest 
is generally determined under the rules of subchapter K, subject to the 
special rules in paragraph (d)(3) of this section.
    (iv) For purposes of calculating loss. Subject to the modifications 
of paragraphs (c)(2)(i) and (ii) of this section (referring to the 
modifications relating to deductions against gross investment income) 
and without regard to section 362(c), basis as determined in paragraph 
(d)(2)(i)(B) of this section applies for purposes of determining loss. 
For purposes of determining loss from the sale or other disposition of a 
partnership interest, basis is determined under the rules of subchapter 
K.
    (3) Special rules regarding partnership interests and partnership 
assets--(i) Reduction of distributive share of capital gain net income 
from a partnership. For purposes of computing net investment income, an 
applicable educational institution reduces the amount of its 
distributive share of capital gain net income from a partnership by the 
least of--
    (A) The applicable educational institution's share of applicable 
capital gain (as defined in paragraph (d)(3)(iii)(A) of this section) 
from such partnership;
    (B) One-third of the applicable educational institution's unadjusted 
step-up (as defined in paragraph (d)(3)(iii)(B) of this section) for 
such partnership; or
    (C) The applicable educational institution's adjusted step-up (as 
defined in paragraph (d)(3)(iii)(C) of this section) for such 
partnership.
    (ii) Reduction of capital gain net income from a sale or other 
disposition of all or a portion of a partnership interest. For purposes 
of computing net investment income, an applicable educational 
institution reduces the amount of its capital gain net income upon the 
sale or other disposition of all or a portion of a partnership interest 
by an amount that bears the same relation to the applicable educational 
institution's adjusted step-up (as defined in paragraph (d)(3)(iii)(C) 
of this section) for such partnership as the fair market value of the 
transferred portion of the interest bears to the fair market value of 
the applicable educational institution's entire interest in such 
partnership before the sale or other disposition.
    (iii) Definitions. For purposes of this section--
    (A) Applicable capital gain. For an applicable educational 
institution's first taxable year beginning after December 31, 2017, the 
term applicable capital gain means an applicable educational 
institution's share of both short-term and long-term capital gains and 
losses subject to section 4968 from a partnership. For subsequent 
taxable years, applicable capital gain does not include an applicable 
educational institution's share of short-term capital gains and losses 
subject to section 4968 from a partnership. For purposes of this 
paragraph, applicable capital gain is not less than zero.
    (B) Unadjusted step-up. An applicable educational institution 
computes an unadjusted step-up for each partnership interest it held on 
December 31, 2017. The unadjusted step-up for a partnership interest 
equals the excess, if any, of the fair market value of such partnership 
interest on December 31, 2017, over the adjusted basis of such 
partnership interest on December 31, 2017.
    (C) Adjusted step-up. An applicable educational institution computes 
an adjusted step-up for each partnership interest it held on December 
31, 2017. The adjusted step-up for a partnership interest equals the 
unadjusted step-up for such partnership, reduced by the amount of any 
capital gain net income reduction pursuant to paragraphs (d)(3)(i) and 
(ii) of this section for such partnership.

[[Page 312]]

    (4) Examples. The following examples illustrate paragraph (d)(3) of 
this section. Unless stated otherwise in the examples, partners have no 
tax items other than those listed in the example. With respect to 
partnerships, all allocations are in accordance with section 704(b) and 
the regulations under section 704(b) in part 1 of this chapter (Income 
Tax Regulations).
    (i) Example 1--(A) Facts. University (U), an applicable educational 
institution, is a partner in partnership PRS. On December 31, 2017, U's 
PRS interest had a fair market value of $130 and tax basis of $100. In 
2018, U's share of capital gain net income from PRS is $5, which is 
comprised of $20 of gain from the sale of capital asset X and ($15) of 
loss from the sale of capital asset Y. Further, such $5 of capital gain 
net income is applicable capital gain (as defined in paragraph 
(d)(3)(iii)(A) of this section).
    (B) Analysis. U has an unadjusted step-up (as defined in paragraph 
(d)(3)(iii)(B) of this section) for PRS of $30 ($130 fair market value - 
$100 tax basis on December 31, 2017). Pursuant to paragraph (d)(3)(i) of 
this section, for purposes of computing its net investment income, U 
reduces the amount of its capital gain net income from PRS by $5, which 
is the least of: U's share of applicable capital gain from PRS ($5); or 
one-third of U's unadjusted step-up for PRS ($10); or U's adjusted step-
up for PRS ($30). Thus, U reduces its $5 of capital gain net income 
allocated from PRS by $5, resulting in U having $0 of capital gain net 
income in 2018 for purposes of section 4968. As a result, U's adjusted 
step-up for PRS for subsequent taxable years is reduced to $25 ($30 - 
$5) pursuant to paragraph (d)(4)(iii)(C) of this section. Pursuant to 
section 705, the $5 of gain allocated to U increases U's tax basis in 
its PRS interest to $105.
    (ii) Example 2--(A) Facts. The facts are the same as in paragraph 
(d)(4)(i)(A) of this section (Example 1). In 2019, U sells its entire 
interest in PRS for $130, which, immediately prior to the sale, had a 
tax basis of $105. As a result, U has $25 of capital gain from the sale 
of its PRS interest.
    (B) Analysis. Pursuant to paragraph (d)(3)(iii) of this section, for 
purposes of computing its net investment income, U reduces its capital 
gain net income resulting from the sale of its entire PRS interest by 
$25, which is the amount that bears the same relation to U's adjusted 
step-up for PRS ($25) as the fair market value of the transferred 
portion of PRS ($130) bears to the fair market value of the U's entire 
interest in PRS before the sale or other disposition ($130). Thus, U 
reduces its $25 of capital gain net income from the sale of its PRS 
interest by $25, resulting in U having $0 of capital gain net income in 
2019 for purposes of section 4968.
    (iii) Example 3--(A) Facts. The facts are the same as in paragraph 
(d)(4)(i)(A) of this section (Example 1). In 2019, U's share of capital 
gain net income from PRS is $15, which is comprised of $15 of gain from 
the sale of capital asset Z. Further, such $15 of capital gain net 
income is applicable capital gain (as defined in paragraph 
(d)(3)(iii)(A) of this section).
    (B) Analysis. Pursuant to paragraph (d)(3)(i) of this section, for 
purposes of computing its net investment income, U reduces the amount of 
its capital gain net income from PRS by $10, which is the least of: U's 
share of applicable capital gain from PRS ($15); or one-third of U's 
unadjusted step-up for PRS ($10); or U's adjusted step-up for PRS ($25, 
computed as $30 of unadjusted step-up, less $5 of capital gain net 
income reduced in 2018 pursuant to paragraph (d)(3)(i) of this section). 
Thus, U reduces its $15 of capital gain net income allocated from PRS by 
$10, resulting in U having $5 of capital gain net income in 2019 for 
purposes of section 4968. As a result, U's adjusted step-up for PRS is 
reduced for subsequent taxable years to $15 ($25 - $10) pursuant to 
paragraph (d)(3)(iii)(C) of this section. Pursuant to section 705, the 
$15 of gain allocated to U increases U's tax basis in its PRS interest 
to $120.

[T.D 9917, 85 FR 65557, Oct. 15, 2020]



Sec.  53.4968-3  Related organizations.

    (a) Definition of related organization--(1) In general. For purposes 
of section 4968(d) of the Internal Revenue Code (Code) and Sec. Sec.  
53.4968-1 through 53.4968-4, except as provided in paragraph (a)(2)

[[Page 313]]

of this section, the term related organization means, with respect to an 
educational institution, any organization that--
    (i) Controls such institution;
    (ii) Is controlled by such institution;
    (iii) Is controlled by one or more persons that also control such 
institution;
    (iv) Is a supported organization (as defined in section 509(f)(3) of 
the Code) with respect to such institution during the taxable year; or
    (v) Is a supporting organization (as described in section 509(a)(3)) 
with respect to such institution during the taxable year.
    (2) Organizations not considered related organizations. For purposes 
of section 4968(d) and Sec. Sec.  53.4968-1 through 53.4968-4, the term 
related organization does not include any organization that is--
    (i) A taxable corporation;
    (ii) A taxable trust, including a non-grantor charitable lead trust 
(except to the extent the trust is controlled by the educational 
institution as described in paragraph (b)(2)(ii) of this section);
    (iii) A grantor charitable lead trust;
    (iv) A charitable remainder trust;
    (v) A partnership, S corporation (as defined in section 1361(a)(1) 
of the Code), or other pass-through entity that is generally not subject 
to Federal income tax, the income of which is taxable to its partners or 
other interest holders; or
    (vi) A decedent's estate.
    (3) Employee benefit plans or arrangements. A trust or similar 
funding vehicle of an employee benefit plan or arrangement, such as a 
section 501(a) trust funding a section 401(a) qualified retirement plan, 
or an annuity contract funding a section 403(b) plan, or a section 
419(e) welfare benefit fund (including a voluntary employees' 
beneficiary association under section 501(c)(9)) funding a welfare 
benefit plan, will not be treated as a related organization and its 
assets will not be treated as the assets of the educational institution 
or of a related organization. A trust or other funding vehicle of an 
unfunded employee benefit plan of an educational institution or a 
related organization, such as a grantor trust described in section 671 
et seq., used in connection with a section 457(b) plan or an arrangement 
subject to section 457(f), will be treated as a related organization for 
purposes of section 4968(d) and its assets will be treated as the assets 
of the educational institution or of a related organization, but the 
assets are not considered ``used directly in carrying out the 
institution's exempt purpose'' for purposes of section 4968(b)(1)(D). 
For purposes of determining whether the employee benefit plan of an 
educational institution is funded or unfunded, the educational 
institution and all of its related organizations are treated as a single 
sponsor and payor of the benefits.
    (b) Control--(1) Controls such institution. For purposes of section 
4968(d) and Sec. Sec.  53.4968-1 through 53.4968-4, an organization 
controls an educational institution if--
    (i) The organization owns (by vote or value) more than 50 percent of 
the voting and non-voting stock or membership interest of the 
educational institution; or
    (ii) The organization (or one or more of its managers, directors, 
officers, trustees, or employees, acting only in those capacities) can--
    (A) Appoint or elect (which must include the power to remove and 
replace) more than 50 percent of the members of the educational 
institution's governing body (such as directors, officers, or trustees), 
or otherwise has the ongoing power to appoint or elect more than 50 
percent of such members with reasonable frequency;
    (B) Require the educational institution to make an expenditure (or 
prevent the educational institution from making an expenditure); or
    (C) Require the educational institution to perform any act that 
significantly affects its operations (or prevent it from performing such 
an act).
    (2) Is controlled by such institution. For purposes of section 
4968(d) and Sec. Sec.  53.4968-1 through 53.4968-4, an organization is 
controlled by an educational institution:
    (i) Tax-exempt corporation. In the case of a corporation recognized 
as exempt from income tax under section 501(a), if the educational 
institution owns (by vote or value) more than 50 percent of the voting 
and nonvoting stock or

[[Page 314]]

membership interest of the corporation.
    (ii) Trust--(A) In general. In the case of a trust--
    (1) If the educational institution is substantially the sole 
permissible trust beneficiary or appointee of both income and principal, 
whether or not the timing of the distribution is subject to the 
trustee's discretion;
    (2) If the trust is a pooled income fund described in sections 
642(c)(3) and 642(c)(5);
    (3) If, but only to the extent that, the assets of the trust were 
contributed to the trust by the educational institution (or by a person 
controlled by the educational institution); or
    (4) If, but only to the extent that, the educational institution (or 
person controlled by the educational institution) has the right to 
demand (or can otherwise cause) a distribution of principal from the 
trust to the educational institution (or a person controlled by the 
educational institution).
    (B) Person controlled by the educational organization. For purposes 
of this paragraph (b)(2)(ii), a person is controlled by an educational 
institution if the educational institution has the power to remove and 
replace such person or otherwise controls the person under one of the 
tests described in Sec.  53.4968-3(b)(2)(i), (ii), or (iii), with 
similar principles applying for purposes of determining control of any 
other form of entity.
    (iii) Nonstock organization. In the case of a nonstock organization, 
if the educational institution (or one or more of its managers, 
directors, officers, trustees, or employees, acting only in those 
capacities) can--
    (A) Appoint or elect (which must include the power to remove and 
replace) more than 50 percent of the members of the organization's 
governing body (such as directors, officers, or trustees), or otherwise 
has an ongoing power to appoint or elect more than 50 percent of such 
members with reasonable frequency);
    (B) Require the organization to make an expenditure (or prevent the 
organization from making an expenditure); or
    (C) Require the organization to perform any act that significantly 
affects its operations (or prevent it from performing such an act).
    (3) Is controlled by one or more persons that also control such 
institution. For purposes of section 4968(d) and this section, an 
organization (other than one described in paragraph (a)(2) of this 
section) is controlled by one or more persons that also control the 
educational institution if more than 50 percent of the members of the 
governing body of the other organization are directly or indirectly 
controlled by persons that comprise more than 50 percent of the members 
of the governing body of the educational institution.
    (4) Constructive ownership. The principles of section 318(a)(2) 
(relating to ownership attribution from partnerships, estates, trusts, 
and corporations) apply for purposes of determining ownership of stock 
in a corporation, and similar principles apply for purposes of 
determining ownership of an interest in any other entity.
    (5) Method of control. Control includes control by aggregating votes 
or positions of authority (including by veto power), but applies 
regardless of the method by which the control is exercised or 
exercisable.
    (c) Organization described in section 509(a)(3) during the taxable 
year with respect to the educational institution. A section 509(a)(3) 
organization is a supporting organization with respect to an educational 
institution only if the supporting organization meets the 
organizational, operational, and relationship tests of section 
509(a)(3)(B) and Sec.  1.509(a)-4 of this chapter with respect to the 
educational institution.
    (d) Assets and net investment income of related organizations--(1) 
In general. A related organization's assets and net investment income 
are taken into account both in determining whether an institution is an 
applicable educational institution and in computing the net investment 
income of an applicable educational institution. For purposes of 
determining the aggregate fair market value of the assets and net 
investment income of an educational institution, the assets and net 
investment income of all related organizations are

[[Page 315]]

treated as the assets and net investment income, respectively, of the 
institution, unless an exception provided in paragraph (d)(2) of this 
section or the exception provided in Sec.  53.4968-1(b)(5)(iv) (relating 
to assets used directly in carrying out an exempt purpose) applies. In 
cases in which an organization is a related organization with respect to 
an educational institution under more than one definition of this Sec.  
53.4968-3, then the rule that attributes the largest amount of assets 
and net investment income of the related organization to the educational 
institution must be applied.
    (2) Exceptions. For purposes of section 4968 and this paragraph 
(d)(2)--
    (i) No amount is taken into account with respect to more than one 
educational institution. In determining the aggregate fair market value 
of the assets and net investment income of an educational institution, 
assets and net investment income of a related organization are not taken 
into account with respect to more than one educational institution. 
Thus, in any case in which an organization is a related organization 
with respect to more than one educational institution, the assets and 
net investment income of the related organization must be allocated 
between or among the educational institutions as to which the 
organization is a related organization, subject to paragraph (d)(2)(ii) 
of this section. The educational institution must make such allocation 
in a reasonable manner, taking into account all facts and circumstances, 
that is consistent across all related organizations.
    (ii) Assets and net investment income that are not intended or 
available for the use or benefit of the educational institution--(A) In 
general. Unless a related organization is controlled by the educational 
institution or is a supporting organization described in section 
509(a)(3) with respect to such institution for the taxable year, assets 
and net investment income of a related organization that are not 
intended or available for the use or benefit of the educational 
institution are not taken into account by that educational institution.
    (B) Determining whether assets and net investment income of a 
related organization are intended or available for the use or benefit of 
an educational institution. If a related organization controls the 
educational institution, is controlled by one or more persons that also 
control such institution (but is not described in section 509(a)(3) with 
respect to the educational institution for the taxable year), or is a 
supported organization (as defined in section 509(f)(3)) during the 
taxable year with respect to the educational institution, then the 
related organization's assets and net investment income are taken into 
account as assets and net investment income of the educational 
institution only to the extent the assets and net investment income are 
intended or available for the use or benefit of that educational 
institution. Assets and net investment income of a related organization 
are intended or available for the use or benefit of an educational 
institution if such assets and net investment income are specifically 
earmarked or restricted for the benefit of, or otherwise are fairly 
attributable to, the educational institution. For example, assets are 
fairly attributable to the educational institution if they have been 
affirmatively designated or appropriated for the educational institution 
or made available for the educational institution to draw upon at will. 
Conversely, assets and net investment income of a related organization 
are not intended or available for the use or benefit of an educational 
institution if such assets and net investment income are specifically 
earmarked or restricted for another entity or for unrelated purposes or 
otherwise are not fairly attributable to the educational institution. 
The assets and net investment income of a related organization must be 
allocated between those intended or available for the use or benefit of 
an educational institution and those not intended or not available for 
the use or benefit of that same educational institution. The educational 
institution must make such allocation in a reasonable manner, taking 
into account all facts and circumstances, that is consistent across all 
related organizations.
    (C) Related organizations that are controlled by the educational 
institution or

[[Page 316]]

that are supporting organizations (as described in section 509(a)(3)) 
with respect to the educational institution during the taxable year--(1) 
In general. If a related organization is controlled, as defined in 
paragraph (b)(2) of this section, by an educational institution, or is a 
supporting organization with respect to the educational institution 
during the taxable year, as defined in paragraph (c) of this section, 
the assets and net investment income of the related organization are 
taken into account as assets and net investment income of the 
educational institution regardless of whether those assets and net 
investment income are earmarked or restricted for the benefit of, or 
otherwise are fairly attributable to, the educational institution and 
even if they are specifically earmarked or restricted for another entity 
or for unrelated purposes or otherwise are not fairly attributable to 
the educational institution, subject to paragraph (d)(2)(ii)(C)(2) of 
this section. However, see Sec. Sec.  53.4968-1(b)(2)(ii)(A)(3) and (4) 
regarding trusts that are controlled related organizations only to the 
extent assets of the trust were contributed to the trust by the 
educational institution (or by a person controlled by the educational 
institution), or only to the extent the educational institution (or 
person controlled by the educational institution) has the right to 
demand (or can otherwise cause) a distribution of principal from the 
trust to the educational institution (or a person controlled by the 
educational institution). See also Sec.  53.4968-1(b)(5)(iv) for rules 
relating to when assets of a related organization are deemed to be used 
directly in carrying out the institution's exempt purpose.
    (2) Special rule for Type III supporting organizations with respect 
to an educational institution as of December 31, 2017. An educational 
institution with a related organization that was a Type III supporting 
organization with respect to the educational institution on December 31, 
2017, takes into account only the assets and net investment income of 
such Type III supporting organization that are intended or available for 
the use or benefit of, or otherwise are fairly attributable to, the 
educational institution, as described in paragraph (d)(2)(ii)(B) of this 
section. An educational institution may determine whether the assets and 
net investment income of such a Type III supporting organization are 
intended or available for the use or benefit of, or otherwise are fairly 
attributable to, the educational institution using any reasonable 
method. A method that attributes to an educational institution assets 
and net investment income of a supporting organization that specifically 
are earmarked for the educational institution, are restricted for the 
benefit of the educational institution, or otherwise are fairly 
attributable to the educational institution (such as those that have 
been affirmatively designated or appropriated for the educational 
institution or made available for the educational institution to draw 
upon at will) will be deemed to be reasonable.
    (3) Determining assets of related organizations. To determine which 
assets of a related organization are included by an educational 
institution under section 4968(b)(1)(D) for a particular year, an 
educational institution determines which organizations are related 
organizations, as defined in section 4968(d)(2) and Sec.  53.4968-3, as 
of the end of the educational institution's preceding taxable year, and 
values the relevant assets on that date.
    (4) Determining net investment income of related organizations. To 
determine the amount of net investment income of a related organization 
that is included by the applicable educational institution in 
calculating the tax imposed by section 4968(a) for a particular taxable 
year, an applicable educational institution determines which 
organizations are related organizations, as defined in section 
4968(d)(2) and Sec.  53.4968-3, as of the end of that taxable year of 
the applicable educational institution and includes the net investment 
income from each related organization's taxable year that ends with or 
within that same taxable year of the applicable educational institution. 
If an organization became a related organization after the beginning of 
the applicable educational institution's taxable year, then the 
applicable educational institution includes the organization's net 
investment income for the portion of

[[Page 317]]

the year that the organization was a related organization, using any 
reasonable method.

[T.D 9917, 85 FR 65557, Oct. 15, 2020]



Sec.  53.4968-4  Applicability date.

    The rules of Sec. Sec.  53.4968-1 through 53.4968-3 apply to taxable 
years of an educational institution beginning after October 15, 2020.

[T.D 9917, 85 FR 65557, Oct. 15, 2020]



                 Subpart L_Procedure and Administration

    Source: T.D. 7368, 40 FR 29843, July 16, 1975, unless otherwise 
noted. Redesignated by T.D. 8084, 51 FR 16303, May 2, 1986.



Sec.  53.6001-1  Notice or regulations requiring records, statements, 
and special returns.

    (a) In general. Any person subject to tax under Chapter 42, Subtitle 
D, of the Code shall keep such complete and detailed records as are 
sufficient to enable the district director to determine accurately the 
amount of liability under Chapter 42.
    (b) Notice by district director requiring returns, statements, or 
the keeping of records. The district director may require any person, by 
notice served upon him, to make such returns, render such statements, or 
keep such specific records as will enable the district director to 
determine whether or not such person is liable for tax under Chapter 42.
    (c) Retention of records. The records required by this section shall 
be kept at all times available for inspection by authorized internal 
revenue officers or employees, and shall be retained so long as the 
contents thereof may become material in the administration of any 
internal revenue law.



Sec.  53.6011-1  General requirement of return, statement or list.

    (a) Every private foundation liable for tax under section 4940 or 
4948(a) shall file an annual return with respect to such tax on the form 
prescribed by the Internal Revenue Service for such purpose and shall 
include therein the information required by such form and the 
instructions issued with respect thereto.
    (b) Every person (including a governmental entity) liable for tax 
imposed by sections 4941(a), 4942(a), 4943(a), 4944(a), 4945(a), 
4955(a), 4958(a), 4959, 4960(a), 4965(a), 4966(a), 4967(a), or 4968(a), 
and every private foundation and every trust described in section 
4947(a)(2) which has engaged in an act of self-dealing (as defined in 
section 4941(d)) (other than an act giving rise to no tax under section 
4941(a)) shall file an annual return on Form 4720,``Return of Certain 
Excise Taxes Under Chapters 41 and 42 of the Internal Revenue Code,'' 
and shall include therein the information required by such form and the 
instructions issued with respect thereto. In the case of any tax imposed 
by sections 4941(a), 4942(a), 4943(a), and 4944(a), the annual return 
shall be filed with respect to each act (or failure to act) for each 
year (or part thereof) in the taxable period (as defined in sections 
4941 (e)(1), 4942(j)(1), 4943(d)(2), and 4944(e)(1)). In the case of a 
tax imposed by section 4945(a), 4955(a), 4958(a), 4960(a), 4965(a), 
4966(a), or 4967(a), the annual return shall be filed with respect to 
each act for the year in which such act giving rise to liability 
occurred. In the case of a tax imposed by section 4959 on a hospital 
organization (as defined in Sec.  1.501(r)-1(b)(18)), the annual return 
must include the required information for each of the organization's 
hospital facilities that failed to meet the requirements of section 
501(r)(3) for the taxable year.
    (c) If a Form 4720 is filed by a private foundation or trust 
described in section 4947(a)(2) with respect to a transaction to which 
other persons are required to file under paragraph (b) of this section, 
such persons may by their signature designate such organization's Form 
4720 (to the extent applicable) as their return for purposes of 
compliance with such paragraph. However, this paragraph shall not apply 
to a person whose taxable year is other than the taxable year of the 
foundation or trust.
    (d) For taxable years ending on or after December 31, 1975, every 
trust described in section 4947(a)(2) which is subject to any of the 
provisions of Chapter 42 as if it were a private foundation shall file 
an annual return on

[[Page 318]]

Form 5227. For taxable years beginning after December 31, 1980, every 
trust described in section 4947(a)(1) which is a private foundation 
shall file an annual return on Form 990-PF.
    (e) For taxable years beginning after December 31, 1977, every 
person liable for tax under section 4951, 4952, or 4953 (relating to 
taxes on self-dealing, taxable expenditures, and excess contributions 
involving black lung benefit trusts) shall file an annual return with 
respect to the tax on the form prescribed by the Internal Revenue 
Service for that purpose. The person liable for the tax shall include 
the information required by the form and its related instructions.

[T.D. 7368, 40 FR 29843, July 16, 1975, as amended by T.D. 7838, 47 FR 
44249, Oct. 7, 1982; T.D. 8026, 50 FR 20757, May 20, 1985; T.D. 8628, 60 
FR 62212, Dec. 5, 1995; T.D. 8705, 62 FR 26, Jan. 2, 1997; T.D. 9334, 72 
FR 36872, July 6, 2007; T.D. 9629, 78 FR 49682, Aug. 15, 2013; T.D. 
9708, 79 FR 79015, Dec. 31, 2014; T.D. 9855, 84 FR 14009, Apr. 9, 2019]



Sec.  53.6011-4  Requirement of statement disclosing participation 
in certain transactions by taxpayers.

    (a) In general. If a transaction is identified as a listed 
transaction or a transaction of interest as defined in Sec.  1.6011-4 of 
this chapter by the Commissioner in published guidance (see Sec.  
601.601(d)(2)(ii)(b) of this chapter), and the listed transaction or 
transaction of interest involves an excise tax under chapter 42 of 
subtitle D of the Internal Revenue Code (relating to private foundations 
and certain other tax-exempt organizations), the transaction must be 
disclosed in the manner stated in such published guidance.
    (b) Effective/applicability date. This section applies to listed 
transactions entered into on or after January 1, 2003. This section 
applies to transactions of interest entered into on or after November 2, 
2006.

[T.D. 9350, 72 FR 43154, Aug. 3, 2007]



Sec.  53.6060-1  Reporting requirements for tax return preparers.

    (a) In general. A person that employs one or more tax return 
preparers to prepare a return or claim for refund of tax under Chapter 
42 of the Internal Revenue Code, other than for the person, at any time 
during a return period, shall satisfy the record keeping and inspection 
requirements in the manner stated in Sec.  1.6060-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78457, Dec. 22, 2008]



Sec.  53.6061-1  Signing of returns and other documents.

    Any return, statement, or other document required to be made with 
respect to a tax imposed by Chapter 42 or the regulations thereunder 
shall be signed by the person required to file such return, statement or 
document, or by such other persons required or duly authorized to sign 
in accordance with the regulations, forms or instructions prescribed 
with respect to such return, statement or other document. The person 
required or duly authorized to make the return may incur liability for 
penalties provided for erroneous, false or fraudulent returns. For 
criminal penalties see sections 7201, 7203, 7206, and 7207.



Sec.  53.6065-1  Verification of returns.

    (a) Penalties of perjury. If a return, statement, or other document 
made under the provisions of Chapter 42 or Subtitle F of the Code or the 
regulations thereunder with respect to any tax imposed by Chapter 42 of 
the Code, or the form and instructions issued with respect to such 
return, statement, or other document, requires that it shall contain or 
be verified by a written declaration that it is made under the penalties 
of perjury, it must be so verified by the person or persons required to 
sign such return, statement, or other document. In addition, any other 
statement or document submitted under any provision of Chapter 42 or 
Subtitle F of the Code or regulations thereunder with respect to any tax 
imposed by Chapter 42 of the Code may be required to contain or be 
verified by a written declaration that it is made under the penalties of 
perjury.
    (b) Oath. Any return, statement, or other document required to be 
submitted under Chapter 42 or Subtitle F

[[Page 319]]

of the Code or regulations prescribed thereunder with respect to any tax 
imposed by Chapter 42 of the Code may be required to be verified by an 
oath.



Sec.  53.6071-1  Time for filing returns.

    (a) General rule. Except as otherwise provided in this section, a 
return required by Sec.  53.6011-1 shall be filed at the time the 
private foundation or trust described in section 4947(a)(2) is required 
to file its annual information or tax return under section 6033 or 6012 
(as may be applicable).
    (b) Exception. The Form 4720 of a person whose taxable year ends on 
a date other than that on which the taxable year of the foundation or 
trust ends shall be filed on or before the 15th day of the fifth month 
following the close of such person's taxable year.
    (c) Form 5227. A Form 5227 required to be filed by paragraph (d) of 
Sec.  53.6011-1 for a trust described in section 4947(a) shall be filed 
on or before the 15th day of the fourth month following the close of the 
trust's taxable year.
    (d) Taxes related to black lung benefit trusts. Forms 990-BL and 
6069 shall be filed on or before the 15th day of the fifth month 
following the close of the filer's taxable year.
    (e) Taxes related to political expenditures of organizations 
described in section 501(c)(3) of the Internal Revenue Code. A Form 4720 
required to be filed by Sec.  53.6011-1(b) for an organization liable 
for tax imposed by section 4955(a) must be filed by the unextended due 
date for filing its annual information return under section 6033 or, if 
the organization is exempt from filing, the date the organization would 
be required to file an annual information return if it was not exempt 
from filing. The Form 4720 of a person whose taxable year ends on a date 
other than that on which the taxable year of the organization described 
in section 501(c)(3) ends must be filed on or before the 15th day of the 
fifth month following the close of the person's taxable year.
    (f) Taxes imposed on excess benefit transactions engaged in by 
organizations described in sections 501(c)(3) (except private 
foundations) and 501(c)(4)--(1) General rule. A Form 4720 required by 
Sec.  53.6011-1(b) for a disqualified person or organization manager 
liable for tax imposed by section 4958(a) shall be filed by that person 
on or before the 15th day of the fifth month following the close of such 
person's taxable year.
    (2) Special rule for taxable years ending after September 13, 1995, 
and on or before July 30, 1996. A Form 4720 required by Sec.  53.6011-
1(b) for a disqualified person or organization manager liable for tax 
imposed by section 4958(a) on an excess benefit transaction occurring in 
such person's taxable year ending after September 13, 1995, and on or 
before July 30, 1996, is due on or before December 15, 1996.
    (g) Taxes imposed with respect to prohibited tax shelter 
transactions to which tax-exempt entities are parties--(1) Returns by 
certain tax-exempt entities. A Form 4720, ``Return of Certain Excise 
Taxes Under Chapters 41 and 42 of the Internal Revenue Code,'' required 
by Sec.  53.6011-1(b) for a tax-exempt entity described in section 
4965(c)(1), (c)(2) or (c)(3) that is a party to a prohibited tax shelter 
transaction and is liable for tax imposed by section 4965(a)(1) shall be 
filed on or before the due date (not including extensions) for filing 
the tax-exempt entity's annual information return under section 
6033(a)(1). If the tax-exempt entity is not required to file an annual 
information return under section 6033(a)(1), the Form 4720 shall be 
filed on or before the 15th day of the fifth month after the end of the 
tax-exempt entity's taxable year or, if the entity has not established a 
taxable year for Federal income tax purposes, the entity's annual 
accounting period.
    (2) Returns by entity managers of tax-exempt entities described in 
section 4965(c)(1), (c)(2) or (c)(3). A Form 4720, required by Sec.  
53.6011-1(b) for an entity manager of a tax-exempt entity described in 
section 4965(c)(1), (c)(2) or (c)(3) who is liable for tax imposed by 
section 4965(a)(2) shall be filed on or before the 15th day of the fifth 
month following the close of the entity manager's taxable year during 
which the entity entered into the prohibited tax shelter transaction.
    (3) Transition rule. A Form 4720, for a section 4965 tax that was 
due on or before October 4, 2007, will be deemed to have been filed on 
the due date if it was filed by October 4, 2007, and if all section 4965 
taxes required to be reported

[[Page 320]]

on that Form 4720 were paid by October 4, 2007.
    (h) Taxes on failures by charitable hospital organizations to 
satisfy the community health needs assessment requirements of section 
501(r)(3). A hospital organization (as defined in Sec.  1.501(r)-
1(b)(18)) liable for tax imposed by section 4959 must file a Form 4720 
as required by Sec.  53.6011-1(b), on or before the 15th day of the 
fifth month after the end of the hospital organization's taxable year 
for which it failed to meet the requirements of section 501(r)(3).
    (i) Taxes under section 4960, 4966, 4967, or 4968. A person 
(including a governmental entity) required by Sec.  53.6011-1(b) to file 
a return for a tax imposed by section 4960(a), 4966(a), 4967(a), or 
4968(a) in a taxable year must file the Form 4720 on or before the 15th 
day of the fifth month after the end of the person's taxable year (or, 
if the person has not established a taxable year for Federal income tax 
purposes, the person's annual accounting period).
    (j) Effective/applicability date--(1) Paragraph (g) of this section 
applies on and after July 6, 2007.
    (2) Paragraph (h) of this section applies on and after August 15, 
2013.
    (3) Paragraph (i) of this section applies on and after April 9, 
2019.

[T.D. 7368, 40 FR 29843, July 16, 1975, as amended by T.D. 7407, 41 FR 
9322, Mar. 4, 1976; T.D. 7838, 47 FR 44249, Oct. 7, 1982; T.D. 8628, 60 
FR 62212, Dec. 5, 1995; T.D. 8736, 62 FR 52257, Oct. 7, 1997; T.D. 9334, 
72 FR 36872, July 6, 2007; T.D. 9492, 75 FR 38708, July 6, 2010; 75 FR 
46845, Aug. 4, 2010; T.D. 9629, 78 FR 49682, Aug. 15, 2013; T.D. 9708, 
79 FR 79015, Dec. 31, 2014; T.D. 9855, 84 FR 14009, Apr. 9, 2019]



Sec.  53.6081-1  Automatic extension of time for filing the return 
to report taxes due under section 4951 for self-dealing 
with a nuclear decommissioning fund.

    (a) In general. A ``disqualified person'' for purposes of section 
4951(e)(4) who engaged in self-dealing with a Nuclear Decommissioning 
Fund, and must report tax due under section 4951 on Form 1120-ND, 
``Return for Nuclear Decommissioning Funds and Certain Related 
Persons,'' will be allowed an automatic 6-month extension of time to 
file the return after the date prescribed for filing the return if the 
disqualified person files an application under this section in 
accordance with paragraph (b) of this section. For guidance on 
requesting an extension of time to file Form 1120-ND for purposes of 
reporting contributions received, income earned, administrative expenses 
of operating the fund, and the tax on modified gross income, see Sec.  
1.6081-3 of this chapter.
    (b) Requirements. To satisfy this paragraph (b), a disqualified 
person must--
    (1) Submit a complete application on Form 7004, ``Application for 
Automatic Extension of Time to File Certain Business Income Tax, 
Information, and Other Returns,'' or in any other manner prescribed by 
the Commissioner;
    (2) File the application on or before the date prescribed for filing 
the return with the Internal Revenue Service office designated in the 
application's instructions; and
    (3) Remit the amount of the properly estimated unpaid tax liability 
on or before the date prescribed for payment.
    (c) No extension of time for the payment of tax. An automatic 
extension of time for filing a return granted under paragraph (a) of 
this section will not extend the time for payment of any tax due on such 
return.
    (d) Termination of automatic extension. The Commissioner may 
terminate an automatic extension at any time by mailing to the 
disqualified person a notice of termination at least 10 days prior to 
the termination date designated in such notice. The Commissioner must 
mail the notice of termination to the address shown on the Form 7004 or 
to the disqualified person's last known address. For further guidance 
regarding the definition of last known address, see Sec.  301.6212-2 of 
this chapter.
    (e) Penalties. See section 6651 for failure to file or failure to 
pay the amount shown as tax on the return.
    (f) Effective/applicability dates. This section is applicable for 
applications for an automatic extension of time to file a return to 
report taxes due under section 4951 for self-dealing with a Nuclear 
Decommissioning Fund filed after July 1, 2008.

[T.D. 9407, 73 FR 37369, July 1, 2008]

[[Page 321]]



Sec.  53.6091-1  Place for filing chapter 42 tax returns.

    Except as provided in Sec.  53.6091-2 (relating to exceptional 
cases):
    (a) Persons other than corporations. Chapter 42 tax returns of 
persons other than corporations shall be filed with any person assigned 
the responsibility to receive returns in the local Internal Revenue 
Service office that serves the legal residence or principal place of 
business of the person required to make the return.
    (b) Corporations. Chapter 42 tax returns of corporations shall be 
filed with any person assigned the responsibility to receive returns in 
the local Internal Revenue Service office that serves the principal 
place of business or principal office or agency of the corporation.
    (c) Returns filed with service centers. Notwithstanding paragraphs 
(a) and (b) of this section, unless a return is filed by hand carrying, 
whenever instructions applicable to Chapter 42 tax returns provide that 
the returns be filed with a service center, the returns must be so filed 
in accordance with the instructions. Returns which are filed by hand 
carrying shall be filed with any person assigned the responsibility to 
receive hand-carried returns in the local Internal Revenue Service 
office in accordance with paragraphs (a) or (b) of this section, 
whichever is applicable.
    (d) Returns of persons subject to a termination assessment. 
Notwithstanding paragraph (c) of this section, income tax returns of 
persons with respect to whom a chapter 42 tax assessment was made under 
section 6852(a) with respect to the taxable year must be filed with any 
person assigned the responsibility to receive returns in the local 
Internal Revenue Service office as provided in paragraphs (a) and (b) of 
this section.

[T.D. 7368, 40 FR 29843, July 16, 1975, as amended by T.D. 7495, 42 FR 
33727, July 1, 1977; T.D. 8628, 60 FR 62212, Dec. 5, 1995; T.D. 9156, 69 
FR 55746, Sept. 16, 2004]



Sec.  53.6091-2  Exceptional cases.

    Notwithstanding the provisions of Sec.  53.6091-1, the Commissioner 
may permit the filing of any Chapter 42 tax return in any local Internal 
Revenue Service office.

[T.D. 7368, 40 FR 29843, July 16, 1975. Redesignated by T.D. 8084, 51 FR 
16303, May 2, 1986, as amended by T.D. 9156, 69 FR 55746, Sept. 16, 
2004]



Sec.  53.6107-1  Tax return preparer must furnish copy of return 
or claim for refund to taxpayer and must retain a copy or record.

    (a) In general. A person who is a signing tax return preparer of any 
return or claim for refund of tax under Chapter 42 of the Internal 
Revenue Code shall furnish a completed copy of the return or claim for 
refund to the taxpayer and retain a completed copy or record in the 
manner stated in Sec.  1.6107-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78457, Dec. 22, 2008]



Sec.  53.6109-1  Tax return preparers furnishing identifying numbers 
for returns or claims for refund filed.

    (a) In general. Each tax return or claim for refund under Chapter 42 
of the Internal Revenue Code prepared by one or more signing tax return 
preparers must include the identifying number of the preparer required 
by Sec.  1.6695-1(b) of this chapter to sign the return or claim for 
refund in the manner stated in Sec.  1.6109-2 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed after December 31, 
2008.

[T.D. 9436, 73 FR 78457, Dec. 22, 2008]



Sec.  53.6151-1  Time and place for paying tax shown on returns.

    The Chapter 42 tax shown on any return shall, without assessment or 
notice and demand, be paid to the internal revenue officer with whom the 
return is filed at the time and place for filing such return (determined 
without regard to any extension of time for filing the return). For 
provisions relating to the time and place for filing such return, see 
Sec. Sec.  53.6071-1 and 53.6091-1. For provisions relating to the 
extension of time for paying the tax, see Sec.  53.6161-1.

[[Page 322]]



Sec.  53.6161-1  Extension of time for paying tax or deficiency.

    (a) In general--(1) Tax shown or required to be shown on return. A 
reasonable extension of the time for payment of the amount of any tax 
imposed by Chapter 42 and shown or required to be shown on any return, 
may be granted by the district directors and directors of the service 
centers at the request of the taxpayer. The period of such extension 
shall not be in excess of 6 months from the date fixed for payment of 
such tax, except that if the taxpayer is abroad the period of the 
extension may be in excess of 6 months.
    (2) Deficiency. The time for payment of any amount determined as a 
deficiency in respect of tax imposed by Chapter 42 may, at the request 
of the taxpayer, be extended by the internal revenue officer to whom the 
tax is required to be paid for a period not to exceed 18 months from the 
date fixed for payment of the deficiency, as shown on the notice and 
demand, and, in exceptional cases for a further period not in excess of 
12 months. No extension of the time for payment of a deficiency shall be 
granted if the deficiency is due to negligence, to intentional disregard 
of rules and regulations, or to fraud with intent to evade tax.
    (3) Extension of time for filing distinguished. The granting of an 
extension of time for filing a return does not operate to extend the 
time for the payment of the tax or any part thereof unless so specified 
in the extension.
    (b) Undue hardship required for extension. An extension of the time 
for payment shall be granted only upon a satisfactory showing that 
payment on the due date of the amount with respect to which the 
extension is desired will result in an undue hardship. The extension 
will not be granted upon a general statement of hardship. The term 
``undue hardship'' means more than an inconvenience to the taxpayer. It 
must appear that substantial financial loss, for example, loss due to 
the sale of property at a sacrifice price, will result to the taxpayer 
from making payment on the due date of the amount with respect to which 
the extension is desired. If a market exists, the sale of property at 
the current market price is not ordinarily considered as resulting in an 
undue hardship.
    (c) Application for extension. An application for an extension of 
the time for payment of the tax shown or required to be shown on any 
return, or for the payment of any amount determined as a deficiency 
shall be made on Form 1127 and shall be accompanied by evidence showing 
the undue hardship that would result to the taxpayer if the extension 
were refused. Such application shall also be accompanied by a statement 
of the assets and liabilities of the taxpayer and an itemized statement 
showing all receipts and disbursements for each of the three months 
immediately preceding the due date of the amount to which the 
application relates. The application, with supporting documents, must be 
filed on or before the date prescribed for payment of the amount with 
respect to which the extension is desired with the internal revenue 
officer to whom the tax is to be paid. The application will be examined, 
and within 30 days, if possible, will be denied, granted, or tentatively 
granted subject to certain conditions of which the taxpayer will be 
notified. If an additional extension is desired, the request therefor 
must be made on or before the expiration of the period for which the 
prior extension is granted.
    (d) Payment pursuant to extension. If an extension of time for 
payment is granted, the amount the time for payment of which is so 
extended shall be paid on or before the expiration of the period of the 
extension without the necessity of notice and demand. The granting of an 
extension of the time for payment of the tax or deficiency does not 
relieve the taxpayer from liability for the payment of interest thereon 
during the period of the extension. See section 6601 and Sec.  301.6601-
1 of this chapter (Regulations on Procedure and Administration).



Sec.  53.6165-1  Bonds where time to pay tax or deficiency has been extended.

    If an extension of time for payment of tax or deficiency is granted 
under section 6161, the district director or the director of the service 
center may, if he deems it necessary, require a bond for the payment of 
the amount in respect

[[Page 323]]

of which the extension is granted in accordance with the terms of the 
extension. However, such bond shall not exceed double the amount with 
respect to which the extension is granted. For provisions relating to 
form of bonds, see the regulations under section 7101 contained in part 
301 of this chapter (Regulations on Procedure and Administration).



Sec.  53.6601-1  Interest on underpayment, nonpayment, or extensions 
of time for payment, of tax.

    For regulations concerning interest on underpayment, nonpayment, or 
extensions of time for payment of tax, see Sec.  301.6601-1 of this 
chapter (Regulations on Procedure and Administration).



Sec.  53.6651-1  Failure to file tax return or to pay tax.

    (a) General rules. For general rules relating to the failure to file 
tax return or to pay tax, see the regulations under section 6651 
contained in part 301 of this chapter (Regulations on Procedure and 
Administration).
    (b) Special rule where foundation files return. (1) Except as 
provided in paragraph (b)(2) of this section, in the case of tax imposed 
by section 4941(a)(1) on any disqualified person, reasonable cause shall 
be presumed, for purposes of section 6651(a)(1), where the private 
foundation or trust described in section 4947(a)(2) files a return in 
good faith and such return indicates no tax liability with respect to 
such tax on the part of such disqualified person.
    (2) Paragraph (b)(1) of this section shall not apply where the 
disqualified person knew of facts which, if known by the foundation, 
would have precluded the foundation from making the return, as filed, in 
good faith.



Sec.  53.6694-1  Section 6694 penalties applicable to tax return preparer.

    (a) In general. For general definitions regarding section 6694 
penalties applicable to preparers of tax returns or claims for refund 
under Chapter 42 of the Internal Revenue Code, see Sec.  1.6694-1 of 
this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed, and advice provided, 
after December 31, 2008.

[T.D. 9436, 73 FR 78457, Dec. 22, 2008]



Sec.  53.6694-2  Penalties for understatement due to an unreasonable position.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under Chapter 42 of the Internal Revenue Code 
(Code) shall be subject to penalties under section 6694(a) of the Code 
in the manner stated in Sec.  1.6694-2 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78457, Dec. 22, 2008]



Sec.  53.6694-3  Penalty for understatement due to willful, reckless, 
or intentional conduct.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under Chapter 42 of the Internal Revenue Code 
(Code) shall be subject to penalties under section 6694(b) of the Code 
in the manner stated in Sec.  1.6694-3 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78457, Dec. 22, 2008]



Sec.  53.6694-4  Extension of period of collection when tax return preparer 
pays 15 percent of a penalty for understatement of taxpayer's liability 
and certain other procedural matters.

    (a) In general. For rules relating to the extension of period of 
collection when a tax return preparer who prepared a return or claim for 
refund of tax under Chapter 42 of the Internal Revenue Code pays 15 
percent of a penalty for understatement of taxpayer's liability and 
procedural matters relating to the investigation, assessment and 
collection of the penalties under section 6694(a) and (b), the rules 
under Sec.  1.6694-4 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and

[[Page 324]]

claims for refund filed, and advice provided, after December 31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  53.6695-1  Other assessable penalties with respect to the preparation 
of tax returns or claims for refund for other persons.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under Chapter 42 of the Internal Revenue Code 
(Code) shall be subject to penalties for failure to furnish a copy to 
the taxpayer under section 6695(a) of the Code, failure to sign the 
return under section 6695(b) of the Code, failure to furnish an 
identification number under section 6695(c) of the Code, failure to 
retain a copy or list under section 6695(d) of the Code, failure to file 
a correct information return under section 6695(e) of the Code, and 
negotiation of a check under section 6695(f) of the Code, in the manner 
stated in Sec.  1.6695-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  53.6696-1  Claims for credit or refund by tax return preparers.

    (a) In general. For rules for claims for credit or refund by a tax 
return preparer who prepared a return or claim for refund for tax under 
Chapter 42 of the Internal Revenue Code, the rules under Sec.  1.6696-1 
of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  53.7101-1  Form of bonds.

    For provisions relating to form of bonds, see the regulations under 
section 7101 contained in part 301 of this chapter (Regulations on 
Procedure and Administration).



Sec.  53.7701-1  Tax return preparer.

    (a) In general. For the definition of a tax return preparer, see 
Sec.  301.7701-15 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



PART 54_PENSION EXCISE TAXES--Table of Contents



Sec.
54.4971-1 General rules relating to excise tax on failure to meet 
          minimum funding standards.
54.4971(c)-1 Taxes on failure to meet minimum funding standards; 
          definitions.
54.4974-1 Excise tax on accumulations in individual retirement accounts 
          or annuities.
54.4974-2 Excise tax on accumulations in qualified retirement plans.
54.4975-1 General rules relating to excise tax on prohibited 
          transactions.
54.4975-6 Statutory exemptions for office space or services and certain 
          transactions involving financial institutions.
54.4975-7 Other statutory exemptions.
54.4975-9 Definition of ``fiduciary''.
54.4975-11 ``ESOP'' requirements.
54.4975-12 Definition of the term ``qualifying employer security''.
54.4975-14 Election to pay an excise tax for certain pre-1975 prohibited 
          transactions.
54.4975-15 Other transitional rules.
54.4976-1T Questions and answers relating to taxes with respect to 
          welfare benefit funds (temporary).
54.4977-1T Questions and answers relating to the election concerning 
          lines of business in existence on January 1, 1984 (temporary).
54.4978-1T Questions and answers relating to the tax on certain 
          dispositions by employee stock ownership plans and certain 
          cooperatives (temporary).
54.4979-0 Excise tax on certain excess contributions and excess 
          aggregate contributions; table of contents.
54.4979-1 Excise tax on certain excess contributions and excess 
          aggregate contributions.
54.4980B-0 Table of contents.
54.4980B-1 CORBA in general.
54.4980B-2 Plans that must comply.
54.4980B-3 Qualified beneficiaries.
54.4980B-4 Qualifying events.
54.4980B-5 CORBA continuation coverage.
54.4980B-6 Electing COBRA continuation coverage.
54.4980B-7 Duration of CORBA continuation coverage.
54.4980B-8 Paying for COBRA continuation coverage.
54.4980B-9 Business reorganizations and employer withdrawals from 
          multiemployer plans.

[[Page 325]]

54.4980B-10 Interaction of FMLA and COBRA.
54.4980D-1 Requirement of return and time for filing of the excise tax 
          under section 4980D.
54.4980E-1 Requirement of return and time for filing of the excise tax 
          under section 4980E.
54.4980F-1 Notice requirements for certain pension plan amendments 
          significantly reducing the rate of future benefit accrual.
54.4980G-0 Table of contents.
54.4980G-1 Failure of employer to make comparable health savings account 
          contributions.
54.4980G-2 Employer contribution defined.
54.4980G-3 Failure of employer to make comparable health savings account 
          contributions.
54.4980G-4 Calculating comparable contributions.
54.4980G-5 HSA comparability rules and cafeteria plans and waiver of 
          excise tax.
54.4980G-6 Special rule for contributions made to the HSAs of nonhighly 
          compensated employees.
54.4980G-7 Special comparability rules for qualified HSA distributions 
          contributed to HSAs on or after December 20, 2006 and before 
          January 1, 2012.
54.4980H-0 Table of contents.
54.4980H-1 Definitions.
54.4980H-2 Applicable large employer and applicable large employer 
          member.
54.4980H-3 Determining full-time employees.
54.4980H-4 Assessable payments under section 4980H(a).
54.4980H-5 Assessable payments under section 4980H(b).
54.4980H-6 Administration and procedure.
54.6011-1 General requirement of return, statement, or list.
54.6011-1T General requirement of return, statement, or list 
          (temporary).
54.6011-2 General requirement of return, statement, or list.
54.6011-4 Requirement of statement disclosing participation in certain 
          transactions by taxpayers.
54.6060-1 Reporting requirements for tax return preparers.
54.6061-1 Signing of returns and other documents.
54.6071-1 Time for filing returns.
54.6081-1 Automatic extension of time for filing returns for certain 
          excise taxes under Chapter 43.
54.6091-1 Place for filing excise tax returns under section 4980B, 
          4980D, 4980E, or 4980G.
54.6107-1 Tax return preparer must furnish copy of return or claims for 
          refund to taxpayer and must retain a copy or record.
54.6109-1 Tax return preparers furnishing identifying numbers for 
          returns or claims for refund filed.
54.6151-1 Time and place for paying of tax shown on returns.
54.6694-1 Section 6694 penalties applicable to tax return preparer.
54.6694-2 Penalties for understatement due to an unreasonable position.
54.6694-3 Penalty for understatement due to willful, reckless, or 
          intentional conduct.
54.6694-4 Extension of period of collection when tax return preparer 
          pays 15 percent of a penalty for understatement of taxpayer's 
          liability and certain other procedural matters.
54.6695-1 Other assessable penalties with respect to the preparation of 
          tax returns for other persons.
54.6696-1 Claims for credit or refund by tax return preparers.
54.7701-1 Tax return preparer.
54.9801-1 Basis and scope.
54.9801-2 Definitions.
54.9801-3 Limitations on preexisting condition exclusion period.
54.9801-4 Rules relating to creditable coverage.
54.9801-5 Evidence of creditable coverage.
54.9801-6 Special enrollment periods.
54.9802-1 Prohibiting discrimination against participants and 
          beneficiaries based on a health factor.
54.9802-2 Special rules for certain church plans.
54.9802-3T Additional requirements prohibiting discrimination based on 
          genetic information (temporary).
54.9802-4 Special Rule Allowing Integration of Health Reimbursement 
          Arrangements (HRAs) and Other Account-Based Group Health Plans 
          with Individual Health Insurance Coverage and Medicare and 
          Prohibiting Discrimination In HRAs and Other Account-Based 
          Group Health Plans.
54.9811-1 Standards relating to benefits for mothers and newborns.
54.9812-1 Parity in mental health and substance use disorder benefits.
54.9815-1251 Preservation of right to maintain existing coverage.
54.9815-2704 Prohibition of preexisting condition exclusions.
54.9815-2705 Prohibiting discrimination against participants and 
          beneficiaries based on a health factor.
54.9815-2708 Prohibition on waiting periods that exceed 90 days.
54.9815-2711 No lifetime or annual limits.
54.9815-2712 Rules regarding rescissions.
54.9815-2713 Coverage of preventive health services.
54.9815-2713T Coverage of preventive health services (temporary).

[[Page 326]]

54.9815-2713A Accommodations in connection with coverage of preventive 
          health services.
54.9815-2714 Eligibility of children until at least age 26.
54.9815-2715 Summary of benefits and coverage and uniform glossary.
54.9815-2715A1 Transparency in coverage--definitions.
54.9815-2715A2 Transparency in coverage--required disclosures to 
          participants and beneficiaries.
54.9815-2715A3 Transparency in coverage--requirements for public 
          disclosure.
54.9815-2719 Internal claims and appeals and external review processes.
54.9815-2719A Patient protections.
54.9831-1 Special rules relating to group health plans.
54.9833-1 Applicability dates.

    Authority: 26 U.S.C. 7805, unless otherwise noted.
    Section 54.4974-2 also issued under 26 U.S.C. 4974;
    Section 54.4981A-1T also issued under 26 U.S.C. 4981A;
    Section 54.4980B-1 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-2 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-3 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-4 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-5 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-6 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-7 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-8 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-9 also issued under 26 U.S.C. 4980B;
    Section 54.4980B-10 also issued under 26 U.S.C. 4980B;
    Section 54.4980F-1 also issued under 26 U.S.C. 4980F;
    Section 54.4980G-1 also issued under 26 U.S.C. 4980G;
    Section 54.4980G-2 also issued under 26 U.S.C. 4980G;
    Section 54.4980G-3 also issued under 26 U.S.C. 4980G;
    Section 54.4980G-4 also issued under 26 U.S.C. 4980G;
    Section 54.4980G-5 also issued under 26 U.S.C. 4980G;
    Section 54.4980G-6 also issued under 26 U.S.C. 4980G;
    Section 54.4980G-7 also issued under 26 U.S.C. 4980G;
    Section 54.4980H-3 also issued under 26 U.S.C. 4980H(c)(4)(B);
    Section 54.6060-1 also issued under 26 U.S.C. 6060(a);
    Section 54.6081-1 also issued under 26 U.S.C. 6081(a);
    Section 54.6109-1 also issued under 26 U.S.C. 6109(a);
    Section 54.6109-2 also issued under 26 U.S.C. 6109(a);
    Section 54.6695-1 also issued under 26 U.S.C. 6695(b);
    Section 54.9801-1 also issued under 26 U.S.C. 9833;
    Section 54.9801-2 also issued under 26 U.S.C. 9833;
    Section 54.9801-3 also issued under 26 U.S.C. 9801(c)(4), 
9801(e)(3), and 9833;
    Section 54.9801-4 also issued under 26 U.S.C. 9801(c)(1)(I) and 
9833;
    Section 54.9801-5 also issued under 26 U.S.C. 9801(c)(4), 
9801(e)(3), and 9833;
    Section 54.9801-6 also issued under 26 U.S.C. 9833;
    Section 54.9802-1 also issued under 26 U.S.C. 9833;
    Section 54.9802-2 also issued under 26 U.S.C. 9833;
    Section 54.9802-3T also issued under 26 U.S.C. 9833;
    Section 54.9802-4 also issued under 26 U.S.C. 9833;
    Section 54.9811-1 also issued under 26 U.S.C. 9833;
    Section 54.9812-1 also issued under 26 U.S.C. 9833;
    Section 54.9815-1251 also issued under 26 U.S.C. 9833;
    Section 54.9815-1251T also issued under 26 U.S.C. 9833;
    Section 54.9815-2704 also issued under 26 U.S.C. 9833;
    Section 54.9815-2704T also issued under 26 U.S.C. 9833;
    Section 54.9815-2705 also issued under 26 U.S.C. 9833;
    Section 54.9815-2708 is also issued under 26 U.S.C. 9833;
    Section 54.9815-2711 also issued under 26 U.S.C. 9833;
    Section 54.9815-2711T also issued under 26 U.S.C. 9833;
    Section 54.9815-2712 also issued under 26 U.S.C. 9833;
    Section 54.9815-2712T also issued under 26 U.S.C. 9833;
    Section 54.9815-2713 also issued under 26 U.S.C. 9833;
    Section 54.9815-2713T also issued under 26 U.S.C. 9833;
    Section 54.9815-2714 also issued under 26 U.S.C. 9833;
    Section 54.9815-2714T also issued under 26 U.S.C. 9833;
    Section 54.9815-2715 also issued under 26 U.S.C. 9833;
    Sections 54.9815-2715A1, 54.9815-2715A2, and 54.9815-2715A3 are also 
issued under 26 U.S.C. 9833;
    Section 54.9815-2719 also issued under 26 U.S.C. 9833;

[[Page 327]]

    Section 54.9815-2719A also issued under 26 U.S.C. 9833;
    Section 54.9815-2719AT also issued under 26 U.S.C. 9833;
    Section 54.9815-2719T also issued under 26 U.S.C. 9833;
    Section 54.9831-1 also issued under 26 U.S.C. 9833;
    Section 54.9833-1 also issued under 26 U.S.C. 9833.



Sec.  54.4971-1  General rules relating to excise tax on failure to meet 
minimum funding standards.

    (a)-(b) [Reserved]
    (c) Additional tax. Section 4971(b) imposes an excise tax in any 
case in which an initial tax is imposed under section 4971(a) on an 
accumulated funding deficiency and the accumulated funding deficiency is 
not corrected within the taxable period (as defined in section 
4971(c)(3)). The additional tax is 100 percent of the accumulated 
funding deficiency to the extent not corrected.
    (d) [Reserved]
    (e) Definition of taxable period--(1) In general. For purposes of 
any accumulated funding deficiency, the term ``taxable period'' means 
the period beginning with the end of the plan year in which there is an 
accumulated funding deficiency and ending on the earlier of:
    (i) The date of mailing of a notice of deficiency under section 6212 
with respect to the tax imposed by section 4971(a), or
    (ii) The date on which the tax imposed by section 4971(a) is 
assessed.
    (2) Special rule. Where a notice of deficiency referred to in 
paragraph (e)(1)(i) of this section is not mailed because a waiver of 
the restrictions on assessment and collection of a deficiency has been 
accepted or because the deficiency is paid, the date of filing of the 
waiver or the date of such payment, respectively, shall be treated as 
the end of the taxable period.

[T.D. 8084, 51 FR 16305, May 2, 1986]



Sec.  54.4971(c)-1  Taxes on failure to meet minimum funding standards; 
definitions.

    (a) In general. This section sets forth definitions that apply for 
purposes of applying the rules of section 4971.
    (b) Accumulated funding deficiency--(1) Multiemployer plans. With 
respect to a multiemployer plan defined in section 414(f), the term 
accumulated funding deficiency has the meaning given to that term by 
section 431. A plan's accumulated funding deficiency for a plan year 
takes into account all charges and credits to the funding standard 
account under section 412 for plan years before the first plan year for 
which section 431 applies to the plan.
    (2) CSEC plans. With respect to a CSEC plan (that is, a plan that 
fits within the definition of a CSEC plan in section 414(y) for plan 
years beginning on or after January 1, 2014 and for which the election 
under section 414(y)(3)(A) has not been made), the term accumulated 
funding deficiency means the CSEC accumulated funding deficiency 
determined under section 433. A plan's CSEC accumulated funding 
deficiency for a plan year takes into account all charges and credits to 
the funding standard account under section 412 for plan years before the 
first plan year for which section 433 applies to the plan.
    (c) Unpaid minimum required contribution--(1) In general. The term 
unpaid minimum required contribution means, with respect to any plan 
year, the portion of the minimum required contribution under section 430 
for the plan year for which contributions have not been made on or 
before the due date for the plan year under section 430(j)(1). The 
unpaid minimum required contribution is determined after taking into 
account the interest adjustment to contributions under Sec.  1.430(j)-
1(b)(4) and any offsets from use of the funding balances under Sec.  
1.430(f)-1(d).
    (2) Accumulated funding deficiency for pre-effective plan year. For 
purposes of this section, a plan's accumulated funding deficiency under 
section 412 for the pre-effective plan year is treated as an unpaid 
minimum required contribution for that plan year until correction is 
made under the rules of paragraph (d)(2) of this section.
    (d) Correct--(1) Accumulated funding deficiency. With respect to an 
accumulated funding deficiency for a plan year that is described in 
paragraph (b) of this section, the term correct means to contribute, to 
or under the plan, the amount necessary to reduce the accumulated 
funding deficiency as of the

[[Page 328]]

end of that plan year to zero. To reduce the deficiency to zero, the 
contribution must include interest at the plan's valuation interest rate 
for the period between the end of that plan year and the date of the 
contribution (determined taking into account the rules of section 
431(c)(8) or section 433(c)(9), as applicable).
    (2) Unpaid minimum required contribution--(i) In general. With 
respect to an unpaid minimum required contribution for a plan year, the 
term correct means to contribute, to or under the plan, an amount that, 
when discounted to the valuation date for the plan year for which the 
unpaid minimum required contribution is due at the appropriate rate of 
interest, equals or exceeds the unpaid minimum required contribution. 
For this purpose, the appropriate rate of interest is the plan's 
effective interest rate for the plan year for which the unpaid minimum 
required contribution is due except to the extent that the payments are 
subject to additional interest as provided under section 430(j)(3) or 
(4).
    (ii) Pre-PPA accumulated funding deficiency. With respect to the 
accumulated funding deficiency under section 412 for the pre-effective 
plan year that is described in paragraph (c)(2) of this section, the 
term correct means to contribute, to or under the plan, the amount of 
that accumulated funding deficiency increased with interest from the end 
of the pre-effective plan year to the date of the contribution at the 
plan's valuation interest rate for the pre-effective plan year.
    (iii) Ordering rule. For purposes of section 4971 and this section, 
a contribution is attributable first to the earliest plan year of any 
unpaid minimum required contribution for which correction has not yet 
been made.
    (3) Corrective action of certain retroactive plan amendments. 
Certain retroactive plan amendments that meet the requirements of 
section 412(d)(2) may reduce the minimum required contribution for a 
plan year, which would reduce the accumulated funding deficiency or the 
amount of the unpaid minimum required contribution for a plan year.
    (e) Taxable period--(1) In general. The term taxable period means 
the period beginning with the end of the plan year in which there is an 
accumulated funding deficiency or unpaid minimum required contribution, 
whichever is applicable, and ending on the earlier of:
    (i) The date of mailing of a notice of deficiency under section 6212 
with respect to the tax imposed by section 4971(a); or
    (ii) The date on which the tax imposed by section 4971(a) is 
assessed.
    (2) Special rule. Where a notice of deficiency referred to in 
paragraph (e)(1)(i) of this section is not mailed because a waiver of 
the restrictions on assessment and collection of a deficiency has been 
accepted or because the deficiency is paid, the date of filing of the 
waiver or the date of such payment, respectively, is treated as the end 
of the taxable period.
    (f) Single-employer plan. The term single-employer plan means a plan 
to which the minimum funding requirements of section 412 apply that is 
not a multiemployer plan as described in section 414(f). The term 
single-employer plan includes a multiple employer plan to which section 
413(c) applies, other than a CSEC plan as described in paragraph (b)(2) 
of this section.
    (g) Examples. The following examples illustrate the rules of this 
section.

    Example 1. (i) Plan A, a single-employer defined benefit plan, has a 
calendar year plan year and a January 1 valuation date. The sponsor of 
Plan A has a calendar taxable year. Plan A has no funding shortfall as 
of January 1, 2008, and Plan A has no unpaid minimum required 
contributions for 2008 or any earlier plan year. The minimum required 
contribution for the 2009 plan year is $250,000. The plan sponsor makes 
one contribution for 2009 on July 1, 2009 in the amount of $200,000, and 
the sponsor does not make an election to use the prefunding balance or 
funding standard carryover balance to offset the minimum required 
contribution for 2009. The effective interest rate for Plan A for the 
2009 plan year is 5.90%.
    (ii) The contribution paid July 1, 2009 is discounted for 6 months 
(to the valuation date) at the effective interest rate ($200,000 / 
1.0590(6/12) = $194,349). The unpaid minimum required 
contribution for the 2009 plan year is $250,000 minus $194,349, or 
$55,651. The excise tax due under section 4971(a) is 10% of the unpaid 
minimum required contribution, or $5,565.

[[Page 329]]

    Example 2. (i) The facts are the same as in Example 1. The plan 
sponsor makes an additional contribution of $175,000 on December 31, 
2010.
    (ii) Under the ordering rule in paragraph (d)(2)(iii) of this 
section, the contribution made on December 31, 2010 is applied first to 
correct the unpaid minimum required contribution for 2009. The portion 
of the contribution paid December 31, 2010 that is required to eliminate 
the unpaid minimum required contribution for 2009 (taking into account 
the 2009 effective interest rate for the 24 months between January 1, 
2009 and the payment date of December 31, 2010), is $55,651 multiplied 
by 1.059(24/12) or $62,412. The remaining payment of $112,588 
($175,000 minus $62,412) is applied to the contribution required for the 
2010 plan year.
    Example 3. (i) Plan B, a single-employer defined benefit plan, has a 
calendar year plan year. The sponsor of Plan B has a calendar taxable 
year. Plan B has an accumulated funding deficiency of $100,000 as of 
December 31, 2007, including additional interest due to late required 
installments during 2007. The valuation interest rate for the 2007 plan 
year is 7.5%.
    (ii) In accordance with paragraph (c)(2) of this section, the 
accumulated funding deficiency under section 412 as of December 31, 2007 
is considered an unpaid minimum required contribution until it is 
corrected. Pursuant to paragraph (d)(2)(ii) of this section, the amount 
needed to correct that accumulated funding deficiency is $100,000 plus 
interest at the valuation interest rate of 7.5% for the period between 
December 31, 2007 and the date of payment of the contribution.
    (iii) The funding shortfall as of January 1, 2008 is calculated as 
the difference between the funding target and the value of assets as of 
that date. The assets are not adjusted by the amount of the accumulated 
funding deficiency. The fact that the contribution was not made for the 
2007 plan year means that the January 1, 2008 funding shortfall is 
larger than it would have been otherwise.
    Example 4. (i) The facts are the same as in Example 3. The minimum 
required contribution for the 2008 plan year is $125,000, but the plan 
sponsor does not make any required contributions for 2008.
    (ii) The total unpaid minimum required contribution as of December 
31, 2008 is the sum of the $100,000 accumulated funding deficiency under 
section 412 from 2007 and the $125,000 unpaid minimum required 
contribution for 2008, or $225,000. The section 4971(a) excise tax 
applies to the aggregate unpaid minimum required contributions for all 
plan years that remain unpaid as of the end of 2008. In this case, there 
is an unpaid minimum required contribution of $100,000 for the 2007 plan 
year and an unpaid minimum required contribution of $125,000 for the 
2008 plan year. The section 4971(a) excise tax is 10% of the aggregate 
of those unpaid amounts, $22,500.
    Example 5. (i) The facts are the same as in Example 4, except that 
the plan sponsor makes a contribution of $150,000 on December 31, 2008. 
No additional contributions are paid through September 15, 2009. 
Required installments of $25,000 each are due April 15, 2008, July 15, 
2008, October 15, 2008, and January 15, 2009. Plan B's effective 
interest rate for the 2008 plan year is 5.75%.
    (ii) In accordance with paragraph (c)(2) of this section, the 
accumulated funding deficiency under section 412 as of December 31, 2007 
is treated as an unpaid minimum required contribution until it is 
corrected.
    (iii) The December 31, 2008 contribution is first applied to the 
2007 accumulated funding deficiency under section 412 that is treated as 
an unpaid minimum required contribution. Accordingly, the amount needed 
to correct the 2007 unpaid required minimum contribution ($100,000 
multiplied by 1.075, or $107,500) is applied to eliminate this unpaid 
minimum required contribution for the 2007 plan year.
    (iv) The remaining $42,500 December 31, 2008 contribution ($150,000 
minus $107,500) is then applied to the 2008 minimum required 
contribution. This amount is first allocated to the required installment 
due April 15, 2008. In accordance with Sec.  1.430(j)-1(b)(4)(ii) of 
this chapter, the adjustment for interest on late required installments 
is increased by 5 percentage points for the period of underpayment. 
Therefore, $25,000 of the remaining December 31, 2008 contribution is 
discounted using an interest rate of 10.75% for the 8\1/2\-month period 
between the payment date of December 31, 2008 and the required 
installment due date of April 15, 2008, and at the 5.75% effective 
interest rate for the 3\1/2\ months between April 15, 2008 and January 
1, 2008. This portion of the December 31, 2008 contribution results in 
an adjusted amount of $22,880 (that is, $25,000 / 
1.1075(8.5/12) / 1.0575(3.5/12)) as of January 1, 
2008.
    (v) The remaining December 31, 2008 contribution is then applied to 
the required installment due July 15, 2008. The $17,500 balance of the 
December 31, 2008 contribution ($150,000 minus $107,500 minus $25,000) 
is paid after the due date for the second required installment. 
Accordingly, the remaining $17,500 contribution is adjusted using an 
interest rate of 10.75% for the 5\1/2\-month period between the payment 
date of December 31, 2008 and the required installment due date of July 
15, 2008, and at the 5.75% effective interest rate for the 6\1/2\ months 
between July 15, 2008 and January 1, 2008. This portion of the December 
31, 2008 contribution results in an adjusted amount of $16,202 (that is, 
$17,500 / 1.1075(5.5/12) / 1.0575(6.5/12)) as of 
January 1, 2008.
    (vi) The remaining unpaid minimum required contribution for 2008 is 
$125,000 minus

[[Page 330]]

the interest-adjusted amounts of $22,880 and $16,202 applied towards the 
2008 minimum required contribution as determined in paragraphs (iv) and 
(v) of this Example 5. This results in an unpaid minimum required 
contribution of $85,918 for 2008. The section 4971(a) excise tax is 10% 
of the unpaid minimum required contribution, or $8,592.
    Example 6. (i) Plan C, a single-employer defined benefit plan, has a 
calendar year plan year and a January 1 valuation date, and has no 
funding standard carryover balance or prefunding balance as of January 
1, 2008. Plan C's sponsor has a calendar taxable year. The minimum 
required contributions for Plan C are $100,000 for the 2008 plan year, 
$110,000 for the 2009 plan year, $125,000 for the 2010 plan year, and 
$135,000 for the 2011 plan year. No contributions for these plan years 
are made until September 15, 2012, at which time the plan sponsor 
contributes $273,000 (which is exactly enough to correct the unpaid 
minimum required contributions for the 2008 and 2009 plan years).
    (ii) The excise tax under section 4971(a) for the 2008 taxable year 
is 10% of the aggregate unpaid minimum required contributions for all 
plan years remaining unpaid as of the end of any plan year ending within 
the 2008 taxable year. Accordingly, the excise tax for the 2008 taxable 
year is $10,000 (that is, 10% of $100,000). The excise tax for the 2009 
taxable year is $21,000 (that is, 10% of the sum of $100,000 and 
$110,000) and the excise tax for the 2010 taxable year is $33,500 (that 
is, 10% of the sum of $100,000, $110,000, and $125,000).
    (iii) The contribution made on September 15, 2012 is applied to 
correct the unpaid minimum required contributions for the 2008 and 2009 
plan years by the deadline for making contributions for the 2011 plan 
year. Therefore, the excise tax under section 4971(a) for the 2011 
taxable year is based only on the remaining unpaid minimum required 
contributions for the 2010 and 2011 plan years, or $26,000 (that is, 10% 
of the sum of $125,000 and $135,000).
    (iv) The plan sponsor may also be required to pay an excise tax of 
100% under section 4971(b), if the unpaid minimum required contributions 
are not corrected by the end of the taxable period.

    (h) Effective/applicability dates and transition rules--(1) 
Statutory effective date--(i) In general. In general, the amendments 
made to section 4971 by section 114 of the Pension Protection Act of 
2006, Public Law 109-280, 120 Stat. 780 (2006), as amended (PPA '06), 
apply to taxable years beginning on or after January 1, 2008, but only 
with respect to a plan year that--
    (A) Begins on or after January 1, 2008; and
    (B) Ends with or within any such taxable year.
    (ii) Plans with delayed PPA '06 effective dates. In the case of a 
plan for which the effective date of section 430 for purposes of 
determining the minimum required contribution is delayed in accordance 
with sections 104 through 106 of PPA '06, the amendments made to section 
4971 by section 114 of PPA '06 apply to taxable years beginning on or 
after January 1, 2008, but only with respect to a plan year--
    (A) To which section 430 applies to determine the minimum required 
contribution of the plan; and
    (B) That ends with or within any such taxable year.
    (2) Effective date of regulations. This section is effective for 
taxable years beginning on or after the statutory effective date 
described in paragraph (h)(1) of this section, but in no event does this 
section apply to taxable years ending before April 15, 2008.
    (3) Pre-effective plan year. For purposes of this section, the pre-
effective plan year for a plan is the plan year described in Sec.  
1.430(a)-1(h)(5) of this chapter. Thus, except for plans with a delayed 
effective date under paragraph (h)(1)(ii) of this section, the pre-
effective plan year for a plan is the last plan year beginning before 
January 1, 2008.

[T.D. 9732, 80 FR 54400, Sept. 9, 2015]



Sec.  54.4974-1  Excise tax on accumulations in individual retirement accounts 
or annuities.

    (a) General rule. A tax equal to 50 percent of the amount by which 
the minimum amount required to be distributed from an individual 
retirement account or annuity described in section 408 during the 
taxable year of the payee under paragraph (b) of this section exceeds 
the amount actually distributed during the taxable year is imposed by 
section 4974 on the payee.
    (b) Minimum amount required to be distributed. For purposes of this 
section, the minimum amount required to be distributed is the amount 
required under Sec.  1.408-2(b)(6)(v) to be distributed in the taxable 
year described in paragraph (a) of this section.

[[Page 331]]

    (c) Examples. The application of this section may be illustrated by 
the following examples.

    Example 1. In 1975, the minimum amount required to be distributed 
under Sec.  1.408-2(b)(6)(v) to A under his individual retirement 
account is $100. Only $60 is actually distributed to A in 1975. Under 
section 4974, A would have an excise tax liability of $20 [50% of ($100-
$60)].
    Example 2. Although no distribution is required under Sec.  1.408-
2(b)(6)(v) to be made in 1986, H, a married individual born on February 
1, 1921, who has established and maintained an individual retirement 
account decides to begin receiving distributions from the account 
beginning in 1986. H's wife, W, was born on March 6, 1921. H and W are 
calendar year taxpayers. H decides to receive his interest in the 
account over the joint life and last survivor expectancy of himself and 
his wife. On January 1, 1986, the balance in H's account is $10,000; H 
and W, based on their nearest birthdates, are 65; and the joint life and 
last survivor expectancy of H and his wife is 22.0 years (see Table II 
of Sec.  1.72-9). His annual payments during the following years (none 
of which were required) were determined by dividing the balance in the 
account on the first day of each year by the joint life and last 
survivor expectancy reduced by the number of whole years elapsed since 
the distributions were to commence.

------------------------------------------------------------------------
                                             Life      Account
                                          expectancy   balance
                                             minus        at      Annual
                  Date                       whole    beginning  payment
                                             years     of each
                                            elapsed      year
------------------------------------------------------------------------
Jan. 1, 1986............................      22.0      $10,000    $455
Jan. 1, 1987............................      21.0       10,118     482
Jan. 1, 1988............................      20.0       10,214     511
Jan. 1, 1989............................      19.0       10,285     541
Jan. 1, 1990............................      18.0       10,329     574
Jan. 1, 1991............................      17.0       10,340     608
------------------------------------------------------------------------


For 1986, 1987, 1989, and 1990, the amount required to be distributed 
under Sec.  1.408-2(b)(6)(v) is zero. Thus, H would have no excise tax 
liability under section 4974 for these years. In 1991, the year H 
attains age 70\1/2\, the amount required to be distributed from the 
account under Sec.  1.408-2(b)(6)(v) is $565, determined by dividing 
$10,340 (the account balance as of January 1, 1991) by 18.8 years (the 
joint life and last survivor expectancy of H and W, assuming they are 
both still living, as of January 1, 1991). If W should die after 
December 31, 1990, the joint life and last survivor expectancy 
determined on January 1, 1991 (18.3 years) would not be redetermined. 
Because the amount distributed from the account in 1991 ($608) exceeds 
the amount required to be distributed from the account in 1991 ($565), H 
has no excise tax liability under section 4974 for 1991.
    Example 3. Assume the same facts as in example (2) except that W 
dies in 1988. For 1988, 1989, and 1990, the amount required to be 
distributed under Sec.  1.408-2(b)(6)(v) is zero. Thus, H would have no 
excise tax liability under section 4974 for these years. In 1991, the 
amount required to be distributed under Sec.  1.408-2(b)(6)(v) is $855, 
determined by dividing $10,340 (the account balance as of January 1, 
1991) by 12.1 years (the life expectancy of H as of January 1, 1991). 
Because the amount distributed from the account in 1991 ($608) is less 
than the amount required to be distributed from the account in 1991 
($855), H has an excise tax liability of $123.50 under section 4974 for 
1991 [50% of ($855-$608)].

[T.D. 7714, 45 FR 52799, Aug. 8, 1980]



Sec.  54.4974-2  Excise tax on accumulations in qualified retirement plans.

    Q-1. Is any tax imposed on a payee under any qualified retirement 
plan or any eligible deferred compensation plan (as defined in section 
457(b)) to whom an amount is required to be distributed for a taxable 
year if the amount distributed during the taxable year is less than the 
required minimum distribution?
    A-1. Yes, if the amount distributed to a payee under any qualified 
retirement plan or any eligible deferred compensation plan (as defined 
in section 457(b)) for a calendar year is less than the required minimum 
distribution for such year, an excise tax is imposed on such payee under 
section 4974 for the taxable year beginning with or within the calendar 
year during which the amount is required to be distributed. The tax is 
equal to 50 percent of the amount by which such required minimum 
distribution exceeds the actual amount distributed during the calendar 
year. Section 4974 provides that this tax shall be paid by the payee. 
For purposes of section 4974, the term required minimum distribution 
means the minimum distribution amount required to be distributed 
pursuant to section 401(a)(9), 403(b)(10), 408(a)(6), 408(b)(3), or 
457(d)(2), as the case may be, and the regulations thereunder. Except as 
otherwise provided in A-6 of this section, the required minimum 
distribution for a calendar year is the required minimum distribution 
amount required to be distributed during the calendar year. A-6 of this 
section provides a special rule for

[[Page 332]]

amounts required to be distributed by an employee's (or individual's) 
required beginning date.

 Q-2. For purposes of section 4974, what is a qualified retirement plan?

    A-2. For purposes of section 4974, each of the following is a 
qualified retirement plan--
    (a) A plan described in section 401(a) which includes a trust exempt 
from tax under section 501(a);
    (b) An annuity plan described in section 403(a);
    (c) An annuity contract, custodial account, or retirement income 
account described in section 403(b);
    (d) An individual retirement account described in section 408(a) 
(including a Roth IRA described in section 408A);
    (e) An individual retirement annuity described in section 408(b) 
(including a Roth IRA described in section 408A); or
    (f) Any other plan, contract, account, or annuity that, at any time, 
has been treated as a plan, account, or annuity described in paragraphs 
(a) through (e) of this A-2, whether or not such plan, contract, 
account, or annuity currently satisfies the applicable requirements for 
such treatment.
    Q-3. If a payee's interest under a qualified retirement plan is in 
the form of an individual account, how is the required minimum 
distribution for a given calendar year determined for purposes of 
section 4974?
    A-3. (a) General rule. If a payee's interest under a qualified 
retirement plan is in the form of an individual account and distribution 
of such account is not being made under an annuity contract purchased in 
accordance with A-4 of Sec.  1.401(a)(9)-6, the amount of the required 
minimum distribution for any calendar year for purposes of section 4974 
is the required minimum distribution amount required to be distributed 
for such calendar year in order to satisfy the minimum distribution 
requirements in Sec.  1.401(a)(9)-5 as provided in the following 
(whichever is applicable)--
    (1) Section 401(a)(9) and Sec. Sec.  1.401(a)(9)-1 through 
1.401(a)(9)-5 and 1.401(a)(9)-7 through 1.401(a)(9)-9 in the case of a 
plan described in section 401(a) which includes a trust exempt under 
section 501(a) or an annuity plan described in section 403(a);
    (2) Section 403(b)(10) and Sec.  1.403(b)-6(e) (in the case of an 
annuity contract, custodial account, or retirement income account 
described in section 403(b));
    (3) Section 408(a)(6) or (b)(3) and Sec.  1.408-8 (in the case of an 
individual retirement account or annuity described in section 408(a) or 
(b)); or
    (4) Section 457(d) in the case of an eligible deferred compensation 
plan (as defined in section 457(b)).
    (b) Default provisions. Unless otherwise provided under the 
qualified retirement plan (or, if applicable, the governing instrument 
of the qualified retirement plan), the default provisions in A-4(a) of 
Sec.  1.401(a)(9)-3 apply in determining the required minimum 
distribution for purposes of section 4974.
    (c) Five-year rule. If the 5-year rule in section 401(a)(9)(B)(ii) 
applies to the distribution to a payee, no amount is required to be 
distributed for any calendar year to satisfy the applicable enumerated 
section in paragraph (a) of this A-3 until the calendar year which 
contains the date 5 years after the date of the employee's death. For 
the calendar year which contains the date 5 years after the employee's 
death, the required minimum distribution amount required to be 
distributed to satisfy the applicable enumerated section is the payee's 
entire remaining interest in the qualified retirement plan.
    Q-4. If a payee's interest in a qualified retirement plan is being 
distributed in the form of an annuity, how is the amount of the required 
minimum distribution determined for purposes of section 4974?
    A-4. If a payee's interest in a qualified retirement plan is being 
distributed in the form of an annuity (either directly from the plan, in 
the case of a defined benefit plan, or under an annuity contract 
purchased from an insurance company), the amount of the required minimum 
distribution for purposes of section 4974 will be determined as follows:
    (a) Permissible annuity distribution option. A permissible annuity 
distribution option is an annuity contract (or, in the case of annuity 
distributions

[[Page 333]]

from a defined benefit plan, a distribution option) which specifically 
provides for distributions which, if made as provided, would for every 
calendar year equal or exceed the minimum distribution amount required 
to be distributed to satisfy the applicable section enumerated in 
paragraph (a) of A-2 of this section for every calendar year. If the 
annuity contract (or, in the case of annuity distributions from a 
defined benefit plan, a distribution option) under which distributions 
to the payee are being made is a permissible annuity distribution 
option, the required minimum distribution for a given calendar year will 
equal the amount which the annuity contract (or distribution option) 
provides is to be distributed for that calendar year.
    (b) Impermissible annuity distribution option. An impermissible 
annuity distribution option is an annuity contract (or, in the case of 
annuity distributions from a defined benefit plan, a distribution 
option) under which distributions to the payee are being made that 
specifically provides for distributions which, if made as provided, 
would for any calendar year be less than the minimum distribution amount 
required to be distributed to satisfy the applicable section enumerated 
in paragraph (a) of A-3 of this section. If the annuity contract (or, in 
the case of annuity distributions from a defined benefit plan, the 
distribution option) under which distributions to the payee are being 
made is an impermissible annuity distribution option, the required 
minimum distribution for each calendar year will be determined as 
follows:
    (1) If the qualified retirement plan under which distributions are 
being made is a defined benefit plan, the minimum distribution amount 
required to be distributed each year will be the amount which would have 
been distributed under the plan if the distribution option under which 
distributions to the payee were being made was the following permissible 
annuity distribution option:
    (i) In the case of distributions commencing before the death of the 
employee, if there is a designated beneficiary under the impermissible 
annuity distribution option for purposes of section 401(a)(9), the 
permissible annuity distribution option is the joint and survivor 
annuity option under the plan for the lives of the employee and the 
designated beneficiary that provides for the greatest level amount 
payable to the employee determined on an annual basis. If the plan does 
not provide such an option or there is no designated beneficiary under 
the impermissible distribution option for purposes of section 401(a)(9), 
the permissible annuity distribution option is the life annuity option 
under the plan payable for the life of the employee in level amounts 
with no survivor benefit.
    (ii) In the case of distributions commencing after the death of the 
employee, if there is a designated beneficiary under the impermissible 
annuity distribution option for purposes of section 401(a)(9), the 
permissible annuity distribution option is the life annuity option under 
the plan payable for the life of the designated beneficiary in level 
amounts. If there is no designated beneficiary, the 5-year rule in 
section 401(a)(9)(B)(ii) applies. See paragraph (b)(3) of this A-4. The 
determination of whether or not there is a designated beneficiary and 
the determination of which designated beneficiary's life is to be used 
in the case of multiple beneficiaries will be made in accordance with 
Sec.  1.401(a)(9)-4 and A-7 of Sec.  1.401(a)(9)-5. If the defined 
benefit plan does not provide for distribution in the form of the 
applicable permissible distribution option, the required minimum 
distribution for each calendar year will be an amount as determined by 
the Commissioner.
    (2) If the qualified retirement plan under which distributions are 
being made is a defined contribution plan and the impermissible annuity 
distribution option is an annuity contract purchased from an insurance 
company, the minimum distribution amount required to be distributed each 
year will be the amount that would have been distributed in the form of 
an annuity contract under the permissible annuity distribution option 
under the plan determined in accordance with paragraph (b)(1) of this A-
4 for defined benefit plans. If the defined contribution plan does not 
provide the applicable permissible annuity distribution option, the 
required minimum distribution for each calendar

[[Page 334]]

year will be the amount that would have been distributed under an 
annuity described in paragraph (b)(2)(i) or (ii) of this A-4 purchased 
with the employee's or individual's account used to purchase the annuity 
contract that is the impermissible annuity distribution option.
    (i) In the case of distributions commencing before the death of the 
employee, if there is a designated beneficiary under the impermissible 
annuity distribution option for purposes of section 401(a)(9), the 
annuity is a joint and survivor annuity for the lives of the employee 
and the designated beneficiary which provides level annual payments and 
which would have been a permissible annuity distribution option. 
However, the amount of the periodic payment which would have been 
payable to the survivor will be the applicable percentage under the 
table in A-2(c) of Sec.  1.401(a)(9)-6 of the amount of the periodic 
payment which would have been payable to the employee or individual. If 
there is no designated beneficiary under the impermissible distribution 
option for purposes of section 401(a)(9), the annuity is a life annuity 
for the life of the employee with no survivor benefit which provides 
level annual payments and which would have been a permissible annuity 
distribution option.
    (ii) In the case of a distribution commencing after the death of the 
employee, if there is a designated beneficiary under the impermissible 
annuity distribution option for purposes of section 401(a)(9), the 
annuity option is a life annuity for the life of the designated 
beneficiary which provides level annual payments and which would have 
been a permissible annuity distribution option. If there is no 
designated beneficiary, the 5-year rule in section 401(a)(9)(B)(ii) 
applies. See paragraph (b)(3) of this A-4. The amount of the payments 
under the annuity contract will be determined using the interest rate 
and actuarial tables prescribed under section 7520 determined using the 
date determined under A-3 of Sec.  1.401(a)(9)-3 when distributions are 
required to commence and using the age of the beneficiary as of the 
beneficiary's birthday in the calendar year that contains that date. The 
determination of whether or not there is a designated beneficiary and 
the determination of which designated beneficiary's life is to be used 
in the case of multiple beneficiaries will be made in accordance with 
Sec.  1.401(a)(9)-4 and A-7 of Sec.  1.401(a)(9)-5.
    (3) If the 5-year rule in section 401(a)(9)(B)(ii) applies to the 
distribution to the payee under the contract (or distribution option), 
no amount is required to be distributed to satisfy the applicable 
enumerated section in paragraph (a) of this A-4 until the calendar year 
which contains the date 5 years after the date of the employee's death. 
For the calendar year which contains the date 5 years after the 
employee's death, the required minimum distribution amount required to 
be distributed to satisfy the applicable enumerated section is the 
payee's entire remaining interest in the annuity contract (or under the 
plan in the case of distributions from a defined benefit plan).
    (4) If the plan provides that the required beginning date for 
purposes of section 401(a)(9) for all employees is April 1 of the 
calendar year following the calendar year in which the employee attained 
age 70\1/2\ in accordance with paragraph A-2(e) of Sec.  1.401(a)(9)-2, 
the required minimum distribution for each calendar year for an employee 
who is not a 5-percent owner for purposes of this section will be the 
lesser of the amount determined based on the required beginning date as 
set forth in A-2(a) of Sec.  1.401(a)(9)-2 or the required beginning 
date under the plan. Thus, for example, if an employee dies after 
attaining age 70\1/2\, but before April 1 of the calendar year following 
the calendar year in which the employee retired, and there is no 
designated beneficiary as of September 30 of the year following the 
employee's year of death, required minimum distributions for calendar 
years after the calendar year containing the employee's date of death 
may be based on either the applicable distribution period provided under 
either the 5-year rule of A-1 of Sec.  1.401(a)(9)-3 or the employee's 
remaining life expectancy as set forth in A-5(c)(3) of Sec.  
1.401(a)(9)-5.
    Q-5. If there is any remaining benefit with respect to an employee 
(or IRA owner) after any calendar year in

[[Page 335]]

which the entire remaining benefit is required to be distributed under 
section 401(a)(9), what is the amount of the required minimum 
distribution for each calendar year subsequent to such calendar year?
    A-5. If there is any remaining benefit with respect to an employee 
(or IRA owner) after the calendar year in which the entire remaining 
benefit is required to be distributed, the required minimum distribution 
for each calendar year subsequent to such calendar year is the entire 
remaining benefit.
    Q-6. With respect to which calendar year is the excise tax under 
section 4974 imposed in the case in which the amount not distributed is 
an amount required to be distributed by April 1 of a calendar year (by 
the employee's or individual's required beginning date)?
    A-6. In the case in which the amount not paid is an amount required 
to be paid by April 1 of a calendar year, such amount is a required 
minimum distribution for the previous calendar year, i.e., for the 
employee's or the individual's first distribution calendar year. 
However, the excise tax under section 4974 is imposed for the calendar 
year containing the last day by which the amount is required to be 
distributed, i.e., the calendar year containing the employee's or 
individual's required beginning date, even though the preceding calendar 
year is the calendar year for which the amount is required to be 
distributed. There is also a required minimum distribution for the 
calendar year which contains the employee's or individual's required 
beginning date. Such distribution is also required to be made during the 
calendar year which contains the employee's or individual's required 
beginning date.
    Q-7. Are there any circumstances when the excise tax under section 
4974 for a taxable year may be waived?
    A-7. (a) Reasonable cause. The tax under section 4974(a) may be 
waived if the payee described in section 4974(a) establishes to the 
satisfaction of the Commissioner the following--
    (1) The shortfall described in section 4974(a) in the amount 
distributed in any taxable year was due to reasonable error; and
    (2) Reasonable steps are being taken to remedy the shortfall.
    (b) Automatic waiver. The tax under section 4974 will be 
automatically waived, unless the Commissioner determines otherwise, if--
    (1) The payee described in section 4974(a) is an individual who is 
the sole beneficiary and whose required minimum distribution amount for 
a calendar year is determined under the life expectancy rule described 
in Sec.  1.401(a)(9)-3 A-3 in the case of an employee's or individual's 
death before the employee's or individual's required beginning date; and
    (2) The employee's or individual's entire benefit to which that 
beneficiary is entitled is distributed by the end of the fifth calendar 
year following the calendar year that contains the employee's or 
individual's date of death.

[T.D. 8987, 67 FR 19026, Apr. 17, 2002; 67 FR 35732, May 21, 2002, as 
amended by T.D. 9340, 72 FR 41160, July 26, 2007]



Sec.  54.4975-1  General rules relating to excise tax 
on prohibited transactions.

    (a) Scope. This section provides general rules for the imposition of 
the excise taxes on prohibited transactions.
    (b) Initial tax. Section 4975(a) imposes an initial tax on each 
prohibited transaction. The initial tax is 5 percent of the amount 
involved with respect to the prohibited transaction for each year (or 
part thereof) in the taxable period.
    (c) Additional tax. Section 4975(b) imposes an excise tax in any 
case in which an initial tax is imposed under section 4975(a) on a 
prohibited transaction and the prohibited transaction is not corrected 
within the taxable period (as defined in paragraph (d) of this section). 
The additional tax is 100 percent of the amount involved with respect to 
the prohibited transaction.
    (d) Taxable period--(1) In general. For purposes of any prohibited 
transaction, the term ``taxable period'' means the period beginning with 
the date on which the prohibited transaction occurs and ending on the 
earliest of:
    (i) The date of mailing of a notice of deficiency under section 6212 
with respect to the tax imposed by section 4975(a);

[[Page 336]]

    (ii) The date on which correction of the prohibited transaction is 
completed; or
    (iii) The date on which the tax imposed by section 4975(a) is 
assessed.
    (2) Special rule. Where a notice of deficiency referred to in 
paragraph (d)(1)(i) of this section is not mailed because a waiver of 
the restrictions on assessment and collection of a deficiency has been 
accepted or because the deficiency is paid, the date of filing of the 
waiver or the date of such payment, respectively, shall be treated as 
the end of the taxable period.

[T.D. 8084, 51 FR 16305, May 2, 1986]



Sec.  54.4975-6  Statutory exemptions for office space or services 
and certain transactions involving financial institutions.

    (a) Exemption for office space or services--(1) In general. Section 
4975(d)(2) exempts from the excise taxes imposed by section 4975 payment 
by a plan to a disqualified person, including a fiduciary, for office 
space or any service (or a combination of services), if (i) such office 
space or service is necessary for the establishment or operation of the 
plan; (ii) such office space or service is furnished under a contract or 
arrangement which is reasonable; and (iii) no more than reasonable 
compensation is paid for such office space or service. However, section 
4975(d)(2) does not contain an exemption for acts described in section 
4975(c)(1)(E) (relating to fiduciaries dealing with the income or assets 
of plans in their own interest or for their own account) or acts 
described in section 4975(c)(1)(F) (relating to fiduciaries receiving 
consideration for their own personal account from any party dealing with 
a plan in connection with a transaction involving the income or assets 
of the plan). Such acts are separate transactions not described in 
section 4975(d)(2). See Sec. Sec.  54.4975-6(a)(5) and 54.4975-6(a)(6) 
for guidance as to whether transactions relating to the furnishing of 
office space or services by fiduciaries to plans involve acts described 
in section 4975(c)(1)(E).

Section 4975(d)(2) does not contain an exemption from other provisions 
of the Code, such as section 401, or other provisions of law which may 
impose requirements or restrictions relating to the transactions which 
are exempt under section 4975(d)(2). See, for example, the general 
fiduciary responsibility provisions of section 404 of the Employee 
Retirement Income Security Act of 1974 (the Act) (88 Stat. 877). The 
provisions of section 4975(d)(2) are further limited by the flush 
language at the end of section 4975(d) (relating to transactions with 
owner-employees and related persons).
    (2) Necessary service. A service is necessary for the establishment 
or operation of a plan within the meaning of section 4975(d)(2) and 
Sec.  54.4975-6(a)(1)(i) if the service is appropriate and helpful to 
the plan obtaining the service in carrying out the purposes for which 
the plan is established or maintained. A person providing such a service 
to a plan (or a person who is disqualified person solely by reason of a 
relationship to such a service provider described in section 4975(e)(2) 
(F), (G), (H), or (I)) may furnish goods which are necessary for the 
establishment or operation of the plan in the course of, and incidental 
to, the furnishing of such service to the plan.
    (3) Reasonable contract or arrangement. No contract or arrangement 
is reasonable within the meaning of section 4975(d)(2) and Sec.  
54.4975-6(a)(1)(ii) if it does not permit termination by the plan 
without penalty to the plan on reasonably short notice under the 
circumstances to prevent the plan from becoming locked into an 
arrangement that has become disadvantageous. A long-term lease which may 
be terminated prior to its expiration (without penalty to the plan) on 
reasonably short notice under the circumstances is not generally an 
unreasonable arrangement merely because of its long term. A provision in 
a contract or other arrangement which reasonably compensates the service 
provider or lessor for loss upon early termination of the contract, 
arrangement or lease is not a penalty. For example, a minimal fee in a 
service contract which is charged to allow recoupment of reasonable 
start-up costs is not a penalty.

Similarly, a provision in a lease for a termination fee that covers 
reasonably foreseeable expenses related to the vacancy and reletting of 
the office space

[[Page 337]]

upon early termination of the lease is not a penalty. Such a provision 
does not reasonably compensate for loss if it provides for payments in 
excess of actual loss or if it fails to require mitigation of damages.
    (4) Reasonable compensation. Section 4975(d)(2) and Sec.  54.4975-
6(a)(1)(iii) permit a plan to pay a disqualified person reasonable 
compensation for the provision of office space or services described in 
section 4975(d)(2). Paragraph (e) of this section contains regulations 
relating to what constitutes reasonable compensation for the provision 
of services.
    (5) Transactions with fiduciaries--(i) In general. If the furnishing 
of office space or a service involves an act described in section 
4975(c)(1) (E) or (F) (relating to acts involving conficts of interest 
by fiduciaries), such an act constitutes a separate transaction which is 
not exempt under section 4975(d)(2). The prohibitions of sections 
4975(c)(1) (E) and (F) supplement the other prohibitions of section 
4975(c)(1) by imposing on disqualified persons who are fiduciaries a 
duty of undivided loyalty to the plans for which they act. These 
prohibitions are imposed upon fiduciaries to deter them from exercising 
the authority, control, or responsibility which makes such persons 
fiduciaries when they have interests which may conflict with the 
interests of the plans for which they act. In such cases, the 
fiduciaries have interests in the transactions which may affect the 
exercise of their best judgment as fiduciaries. Thus, a fiduciary may 
not use the authority, control, or responsibility which makes such 
person a fiduciary to cause a plan to pay an additional fee to such 
fiduciary (or to a person in which such fiduciary has an interest which 
may affect the exercise of such fiduciary's best judgment as a 
fiduciary) to provide a service. Nor may a fiduciary use such authority, 
control, or responsibility to cause a plan to enter into a transaction 
involving plan assets whereby such fiduciary (or a person in which such 
fiduciary has an interest which may affect the exercise of such 
fiduciary's best judgment as a fiduciary) will receive consideration 
from a third party in connection with such transaction.

A person in which a fiduciary has an interest which may affect the 
exercise of such fiduciary's best judgment as a fiduciary includes, for 
example, a person who is a disqualified person by reason of a 
relationship to such fiduciary described in section 4975(e)(2) (E), (F), 
(G), (H), or (I).
    (ii) Transactions not described in section 4975(c)(1)(E). A 
fiduciary does not engage in an act described in section 4975(c)(1)(E) 
if the fiduciary does not use any of the authority, control or 
responsibility which makes such person a fiduciary to cause a plan to 
pay additional fees for a service furnished by such fiduciary or to pay 
a fee for a service furnished by a person in which such fiduciary has an 
interest which may affect the exercise of such fiduciary's best judgment 
as a fiduciary. This may occur, for example, when one fiduciary is 
retained on behalf of a plan by a second fiduciary to provide a service 
for an additional fee. However, because the authority, control or 
responsibility which makes a person a fiduciary may be exercised ``in 
effect'' as well as in form, mere approval of the transaction by a 
second fiduciary does not mean that the first fiduciary has not used any 
of the authority, control or responsibility which makes such person a 
fiduciary to cause the plan to pay the first fiduciary an additional fee 
for a service.
    (iii) Services without compensation. If a fiduciary provides 
services to a plan without the receipt of compensation or other 
consideration (other than reimbursement of direct expenses properly and 
actually incurred in the performance of such services within the meaning 
of paragraph (e)(4) of this section), the provision of such services 
does not, in and of itself, constitute an act described in section 
4975(c)(1) (E) or (F). The allowance of a deduction to an employer under 
section 162 or 212 for the expense incurred in furnishing office space 
or services to a plan established or maintained by such employer does 
not constitute compensation or other consideration.
    (6) Examples. The provisions of Sec.  54.4975-6(a)(5) may be 
illustrated by the following examples:

    Example 1. E, an employer whose employees are covered by plan P, is 
a fiduciary or P. I

[[Page 338]]

is a professional investment adviser in which E has no interest which 
may affect the exercise of E's best judgment as a fiduciary. E causes P 
to retain I to provide certain kinds of investment advisory services of 
a type which causes I to be a fiduciary of P under section 
4975(e)(3)(B). Thereafter, I proposes to perform for additional fees 
portfolio evaluation services in addition to the services currently 
provided. The provision of such services is arranged by I and approved 
on behalf of the plan by E. I has not engaged in an act described in 
section 4975(c)(1)(E), because I did not use any of the authority, 
control or responsibility which makes I a fiduciary (the provision of 
investment advisory services) to cause the plan to pay I additional fees 
for the provision of the portfolio evaluation services. E has not 
engaged in an act which is described in section 4975(c)(1)(E). E, as the 
fiduciary who has the responsibility to be prudent in his selection and 
retention of I and the other investments advisers of the plan, has an 
interest in the purchase by the plan of portfolio evaluation services. 
However, such an interest is not an interest which may affect the 
exercise of E's best judgment as a fiduciary.
    Example 2. D, a trustee of plan P with discretion over the 
management and disposition of plan assets, relies on the advice of C, a 
consultant to P, as to the investment of plan assets, thereby making C a 
fiduciary of the plan. On January 1, 1978, C recommends to D that the 
plan purchase an insurance policy from U, an insurance company which is 
not a disqualified person with respect to P. C thoroughly explains the 
reasons for the recommendation and makes a full disclosure concerning 
the fact that C will receive a commission from U upon the purchase of 
the policy by P. D considers the recommendation and approves the 
purchase of the policy by P. C receives a commission. Under such 
circumstances, C has engaged in an act described in section 
4975(c)(1)(E) (as well as section 4975(c)(1)(F), because C is in fact 
exercising the authority, control or responsibility which makes C a 
fiduciary to cause the plan to purchase the policy. However, the 
transaction is exempt from the prohibited transaction provisions of 
section 4975(c)(1) if the requirements of Prohibited Transaction 
Exemption 77-9 are met.
    Example 3. Assume the same facts as in Example (2) except that the 
nature of C's relationship with the plan is not such that C is a 
fiduciary of P. The purchase of the insurance policy does not involve an 
act described in section 4975(c)(1) (E) or (F), because such sections 
only apply to acts by fiduciaries.
    Example 4. E, an employer whose employees are covered by plan P, is 
a fiduciary with respect to P. A, who is not a disqualified person with 
respect to P, persuades E that the plan needs the services of a 
professional investment adviser and that A should be hired to provide 
the investment advice. Accordingly, E causes P to hire A to provide 
investment advice of the type which makes A a fiduciary under Sec.  
54.4975-9(c)(1)(ii)(B). Prior to the expiration of A's first contract 
with P, A persuades E to cause P to renew A's contract with P to provide 
the same services for additional fees in view of the increased costs in 
providing such services. During the period of A's second contract, A 
provides additional investment advice services for which no additional 
charge is made. Prior to the expiration of A's second contract, A 
persuades E to cause P to renew his contract for additional fees in view 
of the additional services A is providing. A has not engaged in an act 
described in section 4975(c)(1)(E), because A has not used any of the 
authority, control or responsibility which makes A a fiduciary (the 
provision of investment advice) to cause the plan to pay additional fees 
for A's services.
    Example 5. F, a trustee of plan P with discretion over the 
management and disposition of plan assets, retains C to provide 
administrative services to P of the type which makes C a fiduciary under 
section 4975(e)(3)(C). Thereafter, C retains F to provide, for 
additional fees, actuarial and various kinds of administrative services 
in addition to the services F is currently providing to P. Both F and C 
have engaged in an act described in section 4975(c)(1)(E). F, regardless 
of any intent which he may have had at the time he retained C, has 
engaged in such an act because F has, in effect, exercised the 
authority, control or responsibility which makes F a fiduciary to cause 
the plan to pay F additional fees for the services. C, whose continued 
employment by P depends on F, has also engaged in such an act, because C 
has an interest in the transaction which might affect the exercise of 
C's best judgment as a fiduciary. As a result, C has dealt with plan 
assets in his own interest under section 4975(c)(1)(E).
    Example 6. F, a fiduciary of plan P with discretionary authority 
respecting the management of P, retains S, the son of F, to provide for 
a fee various kinds of administrative services necessary for the 
operation of the plan. F has engaged in an act described in section 
4975(c)(1)(E), because S is a person in whom F has an interest which may 
affect the exercise of F's best judgment as a fiduciary. Such act is not 
exempt under section 4975(d)(2) irrespective of whether the provision of 
the services by S is exempt.
    Example 7. T, one of the trustees of plan P, is president of bank B. 
The bank proposes to provide administrative services to P for a fee. T 
physically absents himself from all consideration of B's proposal and 
does not otherwise exercise any of the authority, control or 
responsibility which makes T a fiduciary to cause the plan to retain B. 
The other trustees decide to retain B. T has not engaged in an act 
described in section

[[Page 339]]

4975(c)(1)(E). Further, the other trustees have not engaged in an act 
described in section 4975(c)(1)(E) merely because T is on the board of 
trustees of P. This fact alone would not make them have an interest in 
the transaction which might affect the exercise of their best judgment 
as fiduciaries.

    (b) Exemption for bank deposits--(1) In general. Section 4975(d)(4) 
exempts from the excise taxes imposed by section 4975 investment of all 
or a part of a plan's assets in deposits bearing a reasonable rate of 
interest in a bank or similar financial institution supervised by the 
United States or a State, even though such bank or similar financial 
institution is a fiduciary or other disqualified person with respect to 
the plan, if the conditions of either Sec.  54.4975-6(b)(2) or Sec.  
54.4975-6(b)(3) are met. Section 4975(d)(4) provides an exemption from 
section 4975(c)(1)(E) relating to fiduciaries dealing with the income or 
assets of plans in their own interest or for their own account), as well 
as sections 4975(c)(1) (A) through (D), because section 4975(d)(4) 
contemplates a bank or similar financial institution causing a plan for 
which it acts as a fiduciary to invest plan assets in its own deposits 
if the requirements of section 4975(d)(4) are met. However, it does not 
provide an exemption from section 4975(c)(1)(F) (relating to fidiciaries 
receiving consideration for their own personal account from any party 
dealing with a plan in connection with a transaction involving the 
income or assets of the plan). The receipt of such consideration is a 
separate transaction not described in the exemption. Section 4975(d)(4) 
does not contain an exemption from other provisions of the Code, such as 
section 401, or other provisions of law which may impose requirements or 
restrictions relating to the transactions which are exempt under section 
4975(d)(4). See, for example, the general fiduciary responsibility 
provisions of section 404 of the Act. The provisions of section 
4975(d)(4) are further limited by the flush language at the end of 
section 4975(d) (relating to transactions with owner-employees and 
related persons).
    (2) Plan covering own employees. Such investment may be made if the 
plan is one which covers only the employees of the bank or similar 
financial institution, the employees of any of its affiliates, or the 
employees of both.
    (3) Other plans--(i) General rule. Such investment may be made if 
the investment is expressly authorized by a provision of the plan or 
trust instrument or if the investment is expressly authorized (or made) 
by a fiduciary of the plan (other than the bank or similar financial 
institution or any of its affiliates) who has authority to make such 
investments, or to instruct the trustee or other fiduciary with respect 
to investments, and who has no interest in the transaction which may 
affect the exercise of such authorizing fiduciary's best judgment as a 
fiduciary so as to cause such authorization to constitute an act 
described in section 4975(c)(1) (E) or (F). Any authorization to make 
investments contained in a plan or trust instrument will satisfy the 
requirement of express authorization for investments made prior to 
November 1, 1977.


Effective November 1, 1977, in the case of a bank or similar financial 
institution that invests plan assets in deposits in itself or its 
affiliates under an authorization contained in a plan or trust 
instrument, such authorization must name such bank or similar financial 
institution and must state that such bank or similar financial 
institution may make investments in deposits which bear a reasonable 
rate of interest in itself (or in an affiliate.)
    (ii) Example. B, a bank, is the trustee of plan P's assets. The 
trust instruments give the trustee the right to invest plan assets in 
its discretion. B invests in the certificates of deposit of bank C, 
which is a fiduciary of the plan by virtue of performing certain 
custodial and administrative services. The authorization is sufficient 
for the plan to make such investment under section 4975(d)(4). Further, 
such authorization would suffice to allow B to make investments in 
deposits in itself prior to November 1, 1977. However, subsequent to 
October 31, 1977, B may not invest in deposits in itself, unless the 
plan or trust instrument specifically authorizes it to invest in 
deposits of B.
    (4) Definitions. (i) The term ``bank or similar financial 
institution'' includes a bank (as defined in section 581), a domestic 
building and loan association

[[Page 340]]

(as defined in section 7701(a)(19)), and a credit union (as defined in 
section 101 (6) of the Federal Credit Union Act).
    (ii) A person is an affiliate of a bank or similar financial 
institution if such person and such bank or similar financial 
institution would be treated as members of the same controlled group of 
corporations or as members of two or more trades or businesses under 
common control within the meaning of section 414 (b) or (c) and the 
regulations thereunder.
    (iii) The term ``deposits'' includes any account, temporary or 
otherwise, upon which a reasonable rate of interest is paid, including a 
certificate of deposit issued by a bank or similar financial 
institution.
    (c) Exemption for ancillary bank services--(1) In general. Section 
4975(d)(6) exempts from the excise taxes imposed by section 4975 the 
provision of certain ancillary services by a bank or similar financial 
institution (as defined in Sec.  54.4975-6(b)(4)(i)) supervised by the 
United States or a State to a plan for which it acts as a fiduciary if 
the conditions in Sec.  54.4975-6(c)(2) are met. Such ancillary services 
include services which do not meet the requirements of section 
4975(d)(2), because the provision of such services involves an act 
described in section 4975(c)(1)(E) (relating to fiduciaries dealing with 
the income or assets of plans in their own interest or for their own 
account) by the fiduciary bank or similar financial institution. Section 
4975(d)(6) provides an exemption from section 4975(c)(1)(E), because 
section 4975 (d)(6) contemplates the provision of such ancillary 
services without the approval of a second fiduciary (as described in 
Sec.  54.4975-6(a)(5)(ii)) if the conditions of Sec.  54.4975-6(c)(2) 
are met. Thus, for example, plan assets held by a fiduciary bank which 
are reasonably expected to be needed to satisfy current plan expenses 
may be placed by the bank in a non-interest-bearing checking account in 
the bank if the conditions of Sec.  54.4975-6(c)(2) are met, 
notwithstanding the provisions of section 4975(d)(4) (relating to 
investments in bank deposits). However, section 4975(d)(6) does not 
provide an exemption for an act described in section 4975(c)(1)(F) 
(relating to fiduciaries receiving consideration for their own personal 
account from any party dealing with a plan in connection with a 
transaction involving the income or assets of the plan). The receipt of 
such consideration is a separate transaction not described in section 
4975(d)(6).

Section 4975(d)(6) does not contain an exemption from other provisions 
of the Code, such as section 401, or other provisions of law which may 
impose requirements or restrictions relating to the transactions which 
are exempt under section 4975(d)(6). See, for example, the general 
fiduciary responsibility provisions of section 404 of the Act. The 
provisions of section 4975(d)(6) are further limited by the flush 
language at the end of section 4975(d) (relating to transactions with 
owner-employees and related persons).
    (2) Conditions. Such service must be provided:
    (i) At not more than reasonable compensation;
    (ii) Under adequate internal safeguards which assure that the 
provision of such service is consistent with sound banking and financial 
practice, as determined by Federal or State supervisory authority; and
    (iii) Only to the extent that such service is subject to specific 
guidelines issued by the bank or similar financial institution which 
meet the requirements of Sec.  54.4975-6(c)(3).
    (3) Specific guidelines. [Reserved]
    (d) Exemption for services as a fiduciary. [Reserved]
    (e) Compensation for services--(1) In general. Section 4975(d)(2) 
refers to the payment of reasonable compensation by a plan to a 
disqualified person for services rendered to the plan. Section 
4975(d)(10) and Sec. Sec.  54.4975-6(e)(2) through 54.4975-6(e)(5) 
clarify what constitutes reasonable compensation for such services.
    (2) General rule. Generally, whether compensation is ``reasonable'' 
under sections 4975(d) (2) and (10) depends on the particular facts and 
circumstances of each case.
    (3) Payments to certain fiduciaries. Under sections 4975(d) (2) and 
(10), the term ``reasonable compensation'' does not include any 
compensation to a fiduciary who is already receiving full-

[[Page 341]]

time pay from an employer or association of employers (any of whose 
employees are participants in the plan) or from an employee organization 
(any of whose members are participants in the plan), except for the 
reimbursement of direct expenses properly and actually incurred and not 
otherwise reimbursed. The restrictions of this paragraph (e)(3) do not 
apply to a disqualified person who is not a fiduciary.
    (4) Certain expenses not direct expenses. An expense is not a direct 
expense to the extent it would have been sustained had the service not 
been provided or if it represents an allocable portion of overhead 
costs.
    (5) Expense advances. Under sections 4975(d) (2) and (10), the term 
``reasonable compensation'', as applied to a fiduciary or an employee of 
a plan, includes an advance to such a fiduciary or employee by the plan 
to cover direct expenses to be properly and actually incurred by such 
person in the performance of such person's duties with the plan if:
    (i) The amount of such advance is reasonable with respect to the 
amount of the direct expense which is likely to be properly and actually 
incurred in the immediate future (such as during the next month); and
    (ii) The fiduciary or employee accounts to the plan at the end of 
the period covered by the advance for the expenses properly and actually 
incurred.
    (6) Excessive compensation. Under sections 4975(d) (2) and (10), any 
compensation which would be considered excessive under Sec.  1.162-7 
(relating to compensation for personal services which constitutes an 
ordinary and necessary trade or business expense) will not be 
``reasonable compensation''. Depending upon the facts and circumstances 
of the particular situation, compensation which is not excessive under 
Sec.  1.162-7 may, nevertheless, not be ``reasonable compensation'' 
within the meaning of sections 4975(d) (2) and (10).

[T.D. 7491, 42 FR 32385, June 24, 1977; 42 FR 37810, July 25, 1977; 43 
FR 4604, Feb. 3, 1978]



Sec.  54.4975-7  Other statutory exemptions.

    (a) [Reserved]
    (b) Loans to employee stock ownership plans--(1) Definitions. When 
used in this paragraph (b) and Sec.  54.4975-11, the terms listed below 
have the following meanings:
    (i) ESOP. The term ``ESOP'' refers to an employee stock ownership 
plan that meets the requirements of section 4975(e)(7) and Sec.  
54.4975-11. It is not synonymous with ``stock bonus plan.'' A stock 
bonus plan must, however, be an ESOP to engage in an exempt loan. The 
qualification of an ESOP under section 401(a) and Sec.  54.4975-11 will 
not be adversely affected merely because it engages in a non-exempt 
loan.
    (ii) Loan. The term ``loan'' refers to a loan made to an ESOP by a 
disqualified person or a loan to an ESOP which is guaranteed by a 
disqualified person. It includes a direct loan of cash, a purchase-money 
transaction, and an assumption of the obligation of an ESOP, 
``Guarantee'' includes an unsecured guarantee and the use of assets of a 
disqualified person as collateral for a loan, even though the use of 
assets may not be a guarantee under applicable state law. An amendment 
of a loan in order to qualify as an exempt loan is not a refinancing of 
the loan or the making of another loan.
    (iii) Exempt loan. The term ``exempt loan'' refers to a loan that 
satisfies the provisions of this paragraph (b). A ``nonexempt loan'' is 
one that fails to satisfy such provisions.
    (iv) Publicly traded. The term ``publicly traded'' refers to a 
security that is listed on a national securities exchange registered 
under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f) 
or that is quoted on a system sponsored by a national securities 
association registered under section 15A(b) of the Securities Exchange 
Act (15 U.S.C. 78o).
    (v) Qualifying employer security. The term ``qualifying employer 
security'' refers to a security described in Sec.  54.4975-12.
    (2) Statutory exemption--(i) Scope. Section 4975(d)(3) provides an 
exemption from the excise tax imposed under section 4975 (a) and (b) by 
reason of section 4975(c)(1) (A) through (E). Section 4975(d)(3) does 
not provide an exemption from the imposition of such tax by reason of 
section 4975(c)(1)(F), relating to fiduciaries receiving consideration 
for their own personal account from

[[Page 342]]

any party dealing with a plan in connection with a transaction involving 
the income or assets of the plan.
    (ii) Special scrutiny of transaction. The exemption under section 
4975(d)(3) includes within its scope certain transaction in which the 
potential for self-dealing by fiduciaries exists and in which the 
interests of fiduciaries may conflict with the interests of 
participants. To guard against those potential abuses, the Internal 
Revenue Service will subject these transactions to special scrutiny to 
ensure that they are primarily for the benefit of participants and their 
beneficiaries. Although the transactions need not be arranged and 
approved by an independent fiduciary, fiduciaries are cautioned to 
exercise scrupulously their discretion in approving them. For example, 
fiduciaries should be prepared to demonstrate compliance with the net 
effect test and the arm's-length standard under paragraph (b)(3)(ii) and 
(iii) of this section. Also, fiduciaries should determine that the 
transaction is truly arranged primarily in the interest of participants 
and their beneficiaries rather than, for example, in the interest of 
certain selling shareholders.
    (3) Primary benefit requirement--(i) In general. An exempt loan must 
be primarily for the benefit of the ESOP participants and their 
beneficiaries. All the surrounding facts and circumstances, including 
those described in paragraph (b) (3) (ii) and (iii) of this section, 
will be considered in determining whether the loan satisfies this 
requirement. However, no loan will satisfy the requirement unless it 
satisfies the requirements of paragraph (b) (4), (5), and (6) of this 
section.
    (ii) Net effect on plan assets. At the time that a loan is made, the 
interest rate for the loan and the price of securities to be acquired 
with the loan proceeds should not be such that plan assets might be 
drained off.
    (iii) Arm's-length standard. The terms of a loan, whether or not 
between independent parties, must, at the same time the loan is made, be 
at least as favorable to the ESOP as the terms of a comparable loan 
resulting from arm's-length negotiations between independent parties.
    (4) Use of loan proceeds. The proceeds of an exempt loan must be 
used within a reasonable time after their receipt by the borrowing ESOP 
only for any or all of the following purposes:
    (i) To acquire qualifying employer securities.
    (ii) To repay such loan.
    (iii) To repay a prior exempt loan. A new loan, the proceeds of 
which are so used, must satisfy the provisions of this paragraph (b).

Except as provided in paragraph (b) (9) and (10) of this section or as 
otherwise required by applicable law, no security acquired with the 
proceeds of an exempt loan may be subject to a put, call, or other 
option, or buy-sell or similar arrangement while held by and when 
distributed from a plan, whether or not the plan is then an ESOP.
    (5) Liability and collateral of ESOP for loan. An exempt loan must 
be without recourse against the ESOP. Furthermore, the only assets of 
the ESOP that may be given as collateral on an exempt loan are 
qualifying employer securities of two classes: those acquired with the 
proceeds of the loan and those that were used as collateral on a prior 
exempt loan repaid with the proceeds of the current exempt loan. No 
person entitled to payment under the exempt loan shall have any right to 
assets of the ESOP other than:
    (i) Collateral given for the loan,
    (ii) Contributions (other than contributions of employers 
securities) that are made under an ESOP to meet its obligations under 
the loan, and
    (iii) Earnings attributable to such collateral and the investment of 
such contributions.

The payments made with respect to an exempt loan by the ESOP during a 
plan year must not exceed an amount equal to the sum of such 
contributions and earnings received during or prior to the year less 
such payments in prior years. Such contributions and earnings must be 
accounted for separately in the books of account of the ESOP until the 
loan is repaid.
    (6) Default. In the event of default upon an exempt loan, the value 
of plan assets transferred in satisfaction of the loan must not exceed 
the amount of default. If the lender is a disqualified person, a loan 
must provide for a transfer

[[Page 343]]

of plan assets upon default only upon and to the extent of the failure 
of the plan to meet the payment schedule of the loan. For purposes of 
this subparagraph (6), the making of a guarantee does not make a person 
a lender.
    (7) Reasonable rate of interest. The interest rate of a loan must 
not be in excess of a reasonable rate of interest. All relevant factors 
will be considered in determining a reasonable rate of interest, 
including the amount and duration of the loan, the security and 
guarantee (if any) involved, the credit standing of the ESOP and the 
guarantor (if any), and the interest rate prevailing for comparable 
loans. When these factors are considered, a variable interest rate may 
be reasonable.
    (8) Release from encumbrance--(i) General rule. In general, an 
exempt loan must provide for the release from encumbrance under this 
subdivision (i) of plan assets used as collateral for the loan. For each 
plan year during the duration of the loan, the number of securities 
released must equal the number of encumbered securities held immediately 
before release for the current plan year multiplied by a fraction. The 
numerator of the fraction is the amount of principal and interest paid 
for the year. The denominator of the fraction is the sum of the 
numerator plus the principal and interest to be paid for all future 
years. See Sec.  54.4975-7(b) (8) (iv). The number of future years under 
the loan must be definitely ascertainable and must be determined without 
taking into account any possible extensions or renewal periods. If the 
interest rate under the loan is variable, the interest to be paid in 
future years must be computed by using the interest rate applicable as 
of the end of the plan year. If collateral includes more than one class 
of securities, the number of securities of each class to be released for 
a plan year must be determined by applying the same fraction to each 
class.
    (ii) Special rule. A loan will not fail to be exempt merely because 
the number of securities to be released from encumbrance is determined 
solely with reference to principal payments. However, if release is 
determined with reference to principal payments only, the following 
three additional rules apply. The first rule is that the loan must 
provide for annual payments of principal and interest at a cumulative 
rate that is not less rapid at any time than level annual payments of 
such amounts for 10 years. The second rule is that interest included in 
any payment is disregarded only to the extent that it would be 
determined to be interest under standard loan amoritization tables. The 
third rule is that this subdivision, (ii) is not applicable from the 
time that, by reason of a renewal, extension, or refinancing, the sum of 
the expired duration of the exempt loan, the renewal period, the 
extension period, and the duration of a new exempt loan exceeds 10 
years.
    (iii) Caution against plan disqualification. Under an exempt loan, 
the number of securities released from encumbrance may vary from year to 
year. The release of securities depends upon certain employer 
contributions and earnings under the ESOP. Under Sec.  54.4975-11(d)(2) 
actual allocations to participants' accounts are based upon assets 
withdrawn from the suspense account. Nevertheless, for purposes of 
applying the limitations under section 415 to these allocations, under 
Sec.  54.4975-11(a)(8)(ii) contributions used by the ESOP to pay the 
loan are treated as annual additions to participants' accounts. 
Therefore, particular caution must be exercised to avoid exceeding the 
maximum annual additions under section 415. At the same time, release 
from encumbrance in annual varying numbers may reflect a failure on the 
part of the employer to make substantial and recurring contributions to 
the ESOP which will lead to loss of qualification under section 401(a). 
The Internal Revenue Service will observe closely the operation of 
ESOP's that release encumbered securities in varying annual amounts, 
particularly those that provide for the deferral of loan payments or for 
balloon payments.
    (iv) Illustration. The general rule under paragraph (b)(8)(i) of 
this section operates as illustrated in the following example:

    Example. Corporation X establishes an ESOP that borrows $750,000 
from a bank. X guarantees the loan, which is for 15 years at 5% interest 
and is payable in level annual amounts of $72,256.72. Total payments on 
the

[[Page 344]]

loan are $1,083,850.80. The ESOP uses the entire loan proceeds to 
acquire 15,000 shares of X stock which is used as collateral for the 
loan. The number of securities to be released for the first year is 
1,000 shares, i.e., 15,000 shares x $72,256.72/$1,083,850.80 = 15,000 
shares x 1/15. The number of securities to be released for the second 
year is 1,000 shares, i.e., 14,000 shares x $72,256.72/$1,011,594.08 = 
14,000 shares x 1/14. If all loan payments are made as originally 
scheduled, the number of securities released in each succeeding year of 
the loan will also be 1,000.

    (9) Right of first refusal. Qualifying employer securities acquired 
with proceeds of an exempt loan may, but need not, be subject to a right 
of first refusal. However, any such right must meet the requirements of 
this subparagraph (9). Securities subject to such right must be stock or 
an equity security, or a debt security convertible into stock or an 
equity security. Also, the securities must not be publicly traded at the 
time the right may be exercised. The right of first refusal must be in 
favor of the employer, the ESOP, or both in any order of priority. The 
selling price and other terms under the right must not be less favorable 
to the seller than the greater of the value of the security determined 
under Sec.  54.4975-11(d)(5), or the purchase price and other terms 
offered by a buyer, other than the employer or the ESOP, making a good 
faith offer to purchase the security. The right of first refusal must 
lapse no later than 14 days after the security holder gives written 
notice to the holder of the right that an offer by a third party to 
purchase the security has been received.
    (10) Put option. A qualifying employer security acquired with the 
proceeds of an exempt loan by an ESOP after September 30, 1976, must be 
subject to a put option if it is not publicly traded when distributed or 
if it is subject to a trading limitation when distributed. For purposes 
of subparagraph (10), a ``trading limitation'' on a security is a 
restriction under any Federal or state securities law, any regulation 
thereunder, or an agreement, not prohibited by this paragraph (b), 
affecting the security which would make the security not as freely 
tradable as one not subject to such restriction. The put option must be 
exercisable only by a participant, by the participant's donees, or by a 
person (including an estate or its distributee) to whom the security 
passes by reason of a participant's death. (Under this subparagraph 
(10), participant means a participant and beneficiaries of the 
participant under the ESOP.) The put option must permit a participant to 
put the security to the employer. Under no circumstances may the put 
option bind the ESOP. However, it may grant the ESOP an option to assume 
the rights and obligations of the employer at the time that the put 
option is exercised. If it is known at the time a loan is made that 
Federal or state law will be violated by the employer's honoring such 
put option, the put option must permit the security to be put, in a 
manner consistent with such law, to a third party (e.g., an affiliate of 
the employer or a shareholder other than the ESOP) that has substantial 
net worth at the time the loan is made and whose net worth is reasonably 
expected to remain substantial.
    (11) Duration of put option--(i) General rule. A put option must be 
exercisable at least during a 15-month period which begins on the date 
the security subject to the put option is distributed by the ESOP.
    (ii) Special rule. In the case of a security that is publicly traded 
without restriction when distributed but ceases to be so traded within 
15 months after distribution, the employer must notify each security 
holder in writing on or before the tenth day after the date the security 
ceases to be so traded that for the remainder of the 15-month period the 
security is subject to a put option. The number of days between such 
tenth day and the date on which notice is actually given, if later than 
the tenth day, must be added to the duration of the put option. The 
notice must inform distributees of the terms of the put options that 
they are to hold. Such terms must satisfy the requirements of paragraph 
(b) (10) through (12) of this section.
    (12) Other put option provisions--(i) Manner of exercise. A put 
option is exercised by the holder notifying the employer in writing that 
the put option is being exercised.
    (ii) Time excluded from duration of put option. The period during 
which a put option is exercisable does not include

[[Page 345]]

any time when a distributee is unable to exercise it because the party 
bound by the put option is prohibited from honoring it by applicable 
Federal or state law.
    (iii) Price. The price at which a put option must be exercisable is 
the value of the security, determined under Sec.  54.4975-11(d)(5).
    (iv) Payment terms. The provisions for payment under a put option 
must be reasonable. The deferral of payment is reasonable if adequate 
security and a reasonable interest rate are provided for any credit 
extended and if the cumulative payments at any time are no less than the 
aggregate of reasonable periodic payments as of such time. Periodic 
payments are reasonable if annual installments, beginning with 30 days 
after the date the put option is excercised, are substantially equal. 
Generally, the payment period may not end more than 5 years after the 
date the put option is exercised. However, it may be extended to a date 
no later than the earlier of 10 years from the date the put option is 
exercised or the date the proceeds of the loan used by the ESOP to 
acquire the security subject to the put option are entirely repaid.
    (v) Payment restrictions. Payment under a put option may be 
restricted by the terms of a loan, including one used to acquire a 
security subject to a put option made before November 1, 1977. 
Otherwise, payment under a put option must not be restricted by the 
provisions of a loan or any other arrangement, including the terms of 
the employer's articles of incorporation, unless so required by 
applicable state law.
    (13) Other terms of loan. An exempt loan must be for a specific 
term. Such loan may not be payable at the demand of any person, except 
in the case of default.
    (14) Status of plan as ESOP. To be exempt, a loan must be made to a 
plan that is an ESOP at the time of such loan. However, a loan to a plan 
formally designated as an ESOP at the time of the loan that fails to be 
an ESOP because it does not comply with section 401(a) of the Code or 
Sec.  54.4975-11 will be exempt as of the time of such loan if the plan 
is amended retroactively under section 401(b) or Sec.  54.4975-11(a)(4).
    (15) Special rules for certain loans--(i) Loans made before January 
1, 1976. A loan made before January 1, 1976, or made afterwards under a 
binding agreement in effect on January 1, 1976 (or under renewals 
permitted by the terms of the agreement on that date) is exempt for the 
entire period of the loan if it otherwise satisfies the provisions of 
this paragraph (b) for such period, even though it does not satisfy the 
following provisions of this section: the last sentence of paragraph (b) 
(4) and all of paragraph (b) (5), (6), (8) (i) and (ii), and (9) through 
(13), inclusive.
    (ii) Loans made after December 31, 1975, but before November 1, 
1977. A loan made after December 31, 1975, but before November 1, 1977 
or made afterwards under a binding agreement in effect on November 1, 
1977 (or under renewals permitted by the terms of the agreement on that 
date) is exempt for the entire period of the loan if it otherwise 
satisfies the provisions of this paragraph (b) for such period even 
though it does not satisfy the following provisions of this section: 
paragraph (b) (6) and (9) and the three additional rules listed in 
paragraph (b) (8) (ii).
    (iii) Release rule. Notwithstanding paragraph (b) (15) (i) and (ii) 
of this section, if the proceeds of a loan are used to acquire 
securities after November 1, 1977, the loan must comply by such date 
with the provisions of paragraph (b) (8) of this section.
    (iv) Default rule. Notwithstanding paragraph (b) (15) (i) and (ii) 
of this section, a loan by a disqualified person other than a guarantor 
must meet the requirements of paragraph (b) (6) of this section. A loan 
will meet these requirements if it is retroactively amended before 
November 1, 1977 to meet these requirements.
    (v) Put option rule. With respect to a security distributed before 
November 1, 1977, the put option provisions of paragraph (b) (10), (11), 
and (12) of this section will be deemed satisfied as of the date the 
security is distributed if by December 31, 1977, the security is subject 
to a put option satisfying such provisions, the security is subject to a 
put option satisfying such provisions.

[[Page 346]]

For purposes of satisfying such provisions, the security will be deemed 
distributed on the date the put option is issued. However, the put 
option provisions need not be satisfied with respect to a security that 
is not owned on November 1, 1977, by a person in whose hands a put 
option must be exercisable.

(Sec. 4975 (e) (7), (88 Stat. 976; 26 U.S.C. 4975 (e) (7)))

[T.D. 7506, 42 FR 44391, Sept. 2, 1977]



Sec.  54.4975-9  Definition of ``fiduciary''.

    (a)-(b) [Reserved]
    (c) Investment advice. (1) A person shall be deemed to be rendering 
``investment advice'' to an employee benefit plan, within the meaning of 
section 4975(e)(3)(B) and this paragraph, only if:
    (i) Such person renders advice to the plan as to the value of 
securities or other property, or makes recommendations as to the 
advisability of investing in, purchasing, or selling securities or other 
property; and
    (ii) Such person either directly or indirectly (e.g., through or 
together with any affiliate):
    (A) Has discretionary authority or control, whether or not pursuant 
to agreement, arrangement or understanding, with respect to purchasing 
or selling securities or other property for the plan; or
    (B) Renders any advice described in paragraph (c)(1)(i) of this 
section on a regular basis to the plan pursuant to a mutual agreement, 
arrangement or understanding, written or otherwise, between such person 
and the plan or a fiduciary with respect to the plan, that such services 
will serve as a primary basis for investment decisions with respect to 
plan assets, and that such person will render individualized investment 
advice to the plan based on the particular needs of the plan regarding 
such matters as, among other things, investment policies or stategy, 
overall portfolio composition, or diversification of plan investments.
    (2) A person who is a fiduciary with respect to a plan by reason of 
rendering investment advice (as defined in paragraph (c)(1) of this 
section) for a fee or other compensation, direct or indirect, with 
respect to any moneys or other property of such plan, or having any 
authority or responsibility to do so, shall not be deemed to be a 
fiduciary regarding any assets of the plan with respect to which such 
person does not have any discretionary authority, discretionary control 
or discretionary responsibility, does not exercise any authority or 
control, does not render investment advice (as defined in paragraph 
(c)(1) of this section) for a fee or other compensation, and does not 
have any authority or responsibility to render such investment advice, 
provided that nothing in this paragraph shall be deemed to:
    (i) Exempt such person from the provisions of section 405(a) of the 
Employee Retirement Income Security Act of 1974 concerning liability for 
fiduciary breaches by other fiduciaries with respect to any assets of 
the plan; or
    (ii) Exclude such person from the definition of the term 
disqualified person (as set forth in section 4975(e)(2)) with respect to 
any assets of the plan.
    (d) Execution of securities transactions. (1) A person who is a 
broker or dealer registered under the Securities Exchange Act of 1934, a 
reporting dealer who makes primary markets in securities of the United 
States Government or of an agency of the United States Government and 
reports daily to the Federal Reserve Bank of New York its positions with 
respect to such securities and borrowings thereon, or a bank supervised 
by the United States or a State, shall not be deemed to be a fiduciary, 
within the meaning of section 4975(e)(3), with respect to an employee 
benefit plan solely because such person executes transactions for the 
purchase or sale of securities on behalf of such plan in the ordinary 
course of its business as a broker, dealer, or bank, pursuant to 
instructions of a fiduciary with respect to such plan, if:
    (i) Neither the fiduciary nor any affiliate of such fiduciary is 
such broker, dealer, or bank; and
    (ii) The instructions specify (A) the security to be purchased or 
sold, (B) a price range within which such security is to be purchased or 
sold, or, if such security is issued by an open-end investment company 
registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1, et 
seq.), a price which is

[[Page 347]]

determined in accordance with Rule 22c-1 under the Investment Company 
Act of 1940 (17 CFR 270.22c-1), (C) a time span during which such 
security may be purchased or sold (not to exceed five business days), 
and (D) the minimum or maximum quantity of such security which may be 
purchased or sold within such price range, or, in the case of security 
issued by an open-end investment company registered under the Investment 
Company Act of 1940, the minimum or maximum quantity of such security 
which may be purchased or sold, or the value of such security in dollar 
amount which may be purchased or sold, at the price referred to in 
paragraph (d)(1)(ii)(B) of this section.
    (2) A person who is a broker-dealer, reporting dealer, or bank which 
is a fiduciary with respect to an employee benefit plan solely by reason 
of the possession or exercise of discretionary authority or 
discretionary control in the management of the plan or the management or 
disposition of plan assets in connection with the execution of a 
transaction or transactions for the purchase or sale of securities on 
behalf of such plan which fails to comply with the provisions of 
paragraph (d)(1) of this section, shall not be deemed to be a fiduciary 
regarding any assets of the plan with respect to which such broker-
dealer, reporting dealer or bank does not have any discretionary 
authority, discretionary control or discretionary responsibility, does 
not exercise any authority or control, does not render investment advice 
(as defined in paragraph (c)(1) of this section) for a fee or other 
compensation, and does not have any authority or responsibility to 
render such investment advice, provided that nothing in this paragraph 
shall be deemed to:
    (i) Exempt such broker-dealer, reporting dealer, or bank from the 
provisions of section 405(a) of the Employee Retirement Income Security 
Act of 1974 concerning liability for fiduciary breaches by other 
fiduciaries with respect to any assets of the plan; or
    (ii) Exclude such broker-dealer, reporting dealer, or bank from the 
definition of the term disqualified person (as set forth in section 
4975(e)(2)) with respect to any assets of the plan.
    (e) Affiliate and control. (1) For purposes of paragraphs (c) and 
(d) of this section, an ``affiliate'' of a person shall include:
    (i) Any person directly or indirectly, through one or more 
intermediaries, controlling, controlled by, or under common control with 
such person;
    (ii) Any officer, director, partner, employee or relative (as 
defined in section 4975(e)(6)) of such person; and
    (iii) Any corporation or partnership of which such person is an 
officer, director or partner.
    (2) For purposes of this paragraph, the term control means the power 
to exercise a controlling influence over the management or policies of a 
person other than an individual.

[T.D. 7386, 40 FR 50841, Oct. 31, 1975]



Sec.  54.4975-11  ``ESOP'' requirements.

    (a) In general--(1) Type of plan. To be an ``ESOP'' (employee stock 
ownership plan), a plan described in section 4975(e)(7)(A) must meet the 
requirements of this section. See section 4975(e)(7)(B).
    (2) Designation as ESOP. To be an ESOP, a plan must be formally 
designated as such in the plan document.
    (3) Continuing loan provisions under plan--(i) Creation of 
protections and rights. The terms of an ESOP must formally provide 
participants with certain protections and rights with respect to plan 
assets acquired with the proceeds of an exempt loan. These protections 
and rights are those referred to in the third sentence of Sec.  54.4975-
7(b)(4), relating to put, call, or other options and to buy-sell or 
similar arrangements, and in Sec.  54.4975-7(b) (10), (11), and (12), 
relating to put options.
    (ii) ``Nonterminable'' protections and rights. The terms of an ESOP 
must also formally provide that these protections and rights are 
nonterminable. Thus, if a plan holds or has distributed securities 
acquired with the proceeds of an exempt loan and either the loan is 
repaid or the plan ceases to be an ESOP, these protections and rights 
must continue to exist under the terms of the plan. However, the 
protections and rights will not fail to be nonterminable merely because 
they are not exercisable under Sec.  54.4975-7(b) (11) and (12)(ii). For 
example, if, after a plan

[[Page 348]]

ceases to be an ESOP, securities acquired with the proceeds of an exempt 
loan cease to be publicly traded, the 15-month period prescribed by 
Sec.  54.4975-7(b)(11) includes the time when the securities are 
publicly traded.
    (iii) No incorporation by reference of protections and rights. The 
formal requirements of paragraph (a)(3) (i) and (ii) of this section 
must be set forth in the plan. Mere reference to the third sentence of 
Sec.  54.4975-7(b)(4) and to the provisions of Sec.  54.4975-7(b) (10), 
(11), and (12) is not sufficient.
    (iv) Certain remedial amendments. Notwithstanding the limits under 
paragraph (a) (4) and (10) of this section on the retroactive effect of 
plan amendments, a remedial plan amendment adopted before December 31, 
1979, to meet the requirements of paragraph (a)(3) (i) and (ii) of this 
section is retroactively effective as of the later of the date on which 
the plan was designated as an ESOP or November 1, 1977.
    (4) Retroactive amendment. A plan meets the requirements of this 
section as of the date that it is designated as an ESOP if it is amended 
retroactively to meet, and in fact does meet, such requirements at any 
of the following times:
    (i) 12 months after the date on which the plan is designated as an 
ESOP;
    (ii) 90 days after a determination letter is issued with respect to 
the qualification of the plan as an ESOP under this section, but only if 
the determination is requested by the time in paragraph (a)(4)(i) of 
this section; or
    (iii) A later date approved by the district director.
    (5) Addition to other plan. An ESOP may form a portion of a plan the 
balance of which includes a qualified pension, profit-sharing, or stock 
bonus plan which is not an ESOP. A reference to an ESOP includes an ESOP 
that forms a portion of another plan.
    (6) Conversion of existing plan to an ESOP. If an existing pension, 
profit-sharing, or stock bonus plan is converted into an ESOP, the 
requirements of section 404 of the Employee Retirement Income Security 
Act of 1974 (ERISA) (88 Stat. 877), relating to fiduciary duties, and 
section 401(a) of the Code, relating to requirements for plans 
established for the exclusive benefit of employees, applying to such 
conversion. A conversion may constitute a termination of an existing 
plan. For definition of a termination, see the regulations under section 
411(d)(3) of the Code and section 4041(f) of ERISA.
    (7) Certain arrangements barred--(i) Buy-sell agreements. An 
arrangement involving an ESOP that creates a put option must not provide 
for the issuance of put options other than as provided under Sec.  
54.4975-7(b) (10), (11) and (12). Also, an ESOP must not otherwise 
obligate itself to acquire securities from a particular security holder 
at an indefinite time determined upon the happening of an event such as 
the death of the holder.
    (ii) Integrated plans. A plan designated as an ESOP after November 
1, 1977, must not be integrated directly or indirectly with 
contributions or benefits under title II of the Social Security Act or 
any other State or Federal law. ESOP's established and integrated before 
such date may remain integrated. However, such plans must not be amended 
to increase the integration level or the integration percentage. Such 
plans may in operation continue to increase the level of integration if 
under the plan such increase is limited by reference to a criterion 
existing apart from the plan.
    (8) Effect of certain ESOP provisions on section 401(a) status--(i) 
Exempt loan requirements. An ESOP will not fail to meet the requirements 
of section 401(a)(2) merely because it gives plan assets as collateral 
for an exempt loan under Sec.  54.4975-7(b)(5) or uses plan assets under 
Sec.  54.4975-7(b)(6) to repay and exempt loan in the event of default.
    (ii) Individual annual contribution limitation. An ESOP will not 
fail to meet the requirements of section 401(a)(16) merely because 
annual additions under section 415(c) are calculated with respect to 
employer contributions used to repay an exempt loan rather than with 
respect to securities allocated to participants.
    (iii) Income pass-through. An ESOP will not fail to meet the 
requirements of section 401(a) merely because it provides for the 
current payment of income under paragraph (f)(3) of this section.

[[Page 349]]

    (9) Transitional rules for ESOP's established before November 1, 
1977. A plan established before November 1, 1977 that otherwise 
satisfies the provisions of this section constitutes an ESOP if it is 
amended by December 31, 1977, to comply from November 1, 1977 with this 
section even though before November 1, 1977 the plan did not satisfy 
paragraphs (c) and (d) (2), (4), and (5) of this section.
    (10) Additional transitional rules. Notwithstanding paragraph (a)(9) 
of this section, a plan established before November 1, 1977, that 
otherwise satisfies the provisions of this section constitutes an ESOP 
if by December 31, 1977, it is amended to comply from November 1, 1977, 
with this section even though before such date the plan did not satisfy 
the following provisions of this section:
    (i) Paragraph (a) (3) and (8) (iii);
    (ii) The last sentence of paragraph (d)(3); and
    (iii) Paragraph (f)(3).
    (b) Plan designed to invest primarily in qualifying employer 
securities. A plan constitutes an ESOP only if the plan specifically 
states that it is designed to invest primarily in qualifying employer 
securities. Thus, a stock bonus plan or a money purchase pension plan 
constituting an ESOP may invest part of its assets in other than 
qualifying employer securities. Such plan will be treated the same as 
other stock bonus plans or money purchase pension plans qualified under 
section 401a with respect to those investments.
    (c) Suspense account. All assets acquired by an ESOP with the 
proceeds of an exempt loan under section 4975(d)(3) must be added to and 
maintained in a suspense account. They are to be withdrawn from the 
suspense account by applying Sec.  54.4975-7(b) (8) and (15) as if all 
securities in the suspense account were encumbered. Such assets acquired 
before November 1, 1977, must be withdrawn by applying Sec.  54.4975-
7(b)(8) or the provision of the loan that controls release from 
encumbrance. Assets in such suspense accounts are assets of the ESOP. 
Thus, for example, such assets are subject to section 401(a)(2).
    (d) Allocations to accounts of participants--(1) In general. Except 
as provided in this section, amounts contributed to an ESOP must be 
allocated as provided under Sec.  1.401-1(b)(ii) and (iii) of this 
chapter, and securities acquired by an ESOP must be accounted for as 
provided under Sec.  1.402(a)-1(b)(2)(ii) of this chapter.
    (2) Assets withdrawn from suspense account. As of the end of each 
plan year, the ESOP must consistently allocate to the participants' 
accounts non-monetary units representing participants' interests in 
assets withdrawn from the suspense account.
    (3) Income. Income with respect to securities acquired with the 
proceeds of an exempt loan must be allocated as income of the plan 
except to the extent that the ESOP provides for the use of income from 
such securities to repay the loan. Certain income may be distributed 
currently under paragraph (f)(3) of this section.
    (4) Forfeitures. If a portion of a participant's account is 
forfeited, qualifying employer securities allocated under paragraph 
(d)(2) of this section must be forfeited only after other assets. If 
interests in more than one class of qualifying employer securities have 
been allocated to the participant's account, the participant must be 
treated as forfeiting the same proportion of each such class.
    (5) Valuation. For purposes of Sec.  54.4975-7(b) (9) and (12) and 
this section, valuations must be made in good faith and based on all 
relevant factors for determining the fair market value of securities. In 
the case of a transaction between a plan and a disqualified person, 
value must be determined as of the date of the transaction. For all 
other purposes under this subparagraph (5), value must be determined as 
of the most recent valuation date under the plan. An independent 
appraisal will not in itself be a good faith determination of value in 
the case of a transaction between a plan and a disqualified person. 
However, in other cases, a determination of fair market value based on 
at least an annual appraisal independently arrived at by a person who 
customarily makes such appraisals and who is independent of any party to 
a transaction under Sec.  54.4975-7(b) (9) and (12) will be deemed to be 
a good faith determination of value.

[[Page 350]]

    (e) Multiple plans--(1) General rule. An ESOP may not be considered 
together with another plan for purposes of applying section 401(a) (4) 
and (5) or section 410(b) unless:
    (i) The ESOP and such other plan exist on November 1, 1977, or
    (ii) Paragraph (e)(2) of this section is satisfied.
    (2) Special rule for combined ESOP's. Two or more ESOP's, one or 
more of which does not exist on November 1, 1977, may be considered 
together for purposes of applying section 401(a) (4) and (5) or section 
410(b) only if the proportion of qualifying employer securities to total 
plan assets is substantially the same for each ESOP and:
    (i) The qualifying employer securities held by all ESOP's are all of 
the same class; or
    (ii) The ratios of each class held to all such securities held is 
substantially the same for each plan.
    (3) Amended coverage, contribution, or benefit structure. For 
purposes of paragraph (e)(1)(i) of this section, if the coverage, 
contribution, or benefit structure of a plan that exists on November 1, 
1977 is amended after that date, as of the effective date of the 
amendment, the plan is no longer considered to be a plan that exists on 
November 1, 1977.
    (f) Distribution--(1) In general. Except as provided in paragraph 
(f) (2) and (3) of this section, with respect to distributions, a 
portion of an ESOP consisting of stock bonus plan or a money purchase 
pension plan is not to be distinguished from other such plans under 
section 401(a). Thus, for example, benefits distributable from the 
portion of an ESOP consisting of a stock bonus plan are distributable 
only in stock of the employer. Also, benefits distributable from the 
money-purchase portion of the ESOP may be, but are not required to be, 
distributable in qualifying employer securities.
    (2) Exempt loan proceeds. If securities acquired with the proceeds 
of an exempt loan available for distribution consist of more than one 
class, a distributee must receive substantially the same proportion of 
each such class. However, as indicated in paragraph (f)(1) of this 
section, benefits distributable from the portion of an ESOP consisting 
of a stock bonus plan are distributable only in stock of the employer.
    (3) Income. Income paid with respect to qualifying employer 
securities acquired by an ESOP in taxable years beginning after December 
31, 1974, may be distributed at any time after receipt by the plan to 
participants on whose behalf such securities have been allocated. 
However, under an ESOP that is a stock bonus plan, income held by the 
plan for a 2-year period or longer must be distributed under the general 
rules described in paragraph (f)(1) of this section. (See the last 
sentence of section 803(h), Tax Reform Act of 1976.)

(Sec. 4975(e)(7), (88 Stat. 976; 26 U.S.C. 4975(e)(7)))

[T.D. 7506, 42 FR 44393, Sept. 2, 1977, as amended by T.D. 7571, 44 FR 
1978, Jan. 9, 1979]



Sec.  54.4975-12  Definition of the term ``qualifying employer security''.

    (a) In general. For purposes of section 4975(e)(8) and this section, 
the term ``qualifying employer security'' means an employer security 
which is:
    (1) Stock or otherwise an equity security, or
    (2) A bond, debenture, note, or certificate or other evidence of 
indebtedness which is described in paragraphs (1), (2), and (3) of 
section 503(e).
    (b) Special rule. In determining whether a bond, debenture, note, or 
certificate or other evidence of indebtedness is described in paragraphs 
(1), (2), and (3) of section 503(e), any organization described in 
section 401(a) shall be treated as an organization subject to the 
provisions of section 503.

(Sec. 4975(e)(7) (88 Stat. 976; 26 U.S.C. 4975(e)(7)))

[T.D. 7506, 42 FR 44394, Sept. 2, 1977]



Sec.  54.4975-14  Election to pay an excise tax for certain pre-1975 
prohibited transactions.

    (a) In general. Section 2003(c)(1)(B) of the Employee Retirement 
Income Security Act of 1974 (88 Stat. 978) provides an election to pay 
an excise tax by certain persons involved prior to 1975 in prohibited 
transactions within the meaning of section 503 (b) or (g).

[[Page 351]]

    (b) Effect of election. If a valid election is made under this 
section with respect to a particular transaction, any loss of exemption 
under section 501(a) because of a prohibited transaction within the 
meaning of section 503 (b) or (g) shall not apply. Instead, the person 
who made the election referred to in this section shall be subject to 
the taxes which would have been imposed by section 4975 (a) or (b) as 
though section 4975 had imposed a tax in respect of the transaction. 
(However, section 4975(f)(1), relating to joint and several liability, 
shall not apply to any person who has not made an election under this 
section, and interest for late payment of tax shall not begin to accrue 
until after the date of the election.) Such an election is irrevocable. 
However, the making of the election does not affect the application of 
section 6501 for purposes of assessment and collection of tax and 
section 6511 for purposes of filing a claim for credit or refund with 
respect to taxpayers and to taxable years of taxpayers whose tax 
liability is or may be affected by reason of the nonapplication of a 
denial of exempt status.
    (c) Method of election. A person shall make the election referred to 
in this section by filing the form issued for such purpose by the 
Internal Revenue Service, including therein the information required by 
such form and the instructions issued with respect thereto, and by 
paying the tax which the taxpayer indicates is due at the time the 
return is filed. To be valid the election must be made prior to the 
later of December 6, 1976, or 120 days after the date of notification 
referred to in Sec.  1.503(a)-1(b) of this chapter (Income Tax 
Regulations), relating to loss of exemption for certain prohibited 
transactions. If there has been no notification of loss of exemption, 
the election may be made at any time. However, these limitations do not 
preclude an agreement between the disqualified person and the district 
director to extend the time within which the election is permitted.
    (d) Computation of section 4975 excise tax. To the extent 
applicable, and solely for purposes associated with the payment of a 
section 4975 excise tax under the election referred to in this section, 
Sec.  53.4941(e)-1 of this chapter (Foundation Excise Tax Regulations) 
is controlling.

(Sec. 2003(c)(1)(B) of the Employee Retirement Income Security Act of 
1974 (88 Stat. 978))

[T.D. 7489, 42 FR 27882, June 1, 1977]



Sec.  54.4975-15  Other transitional rules.

    (a)-(c) [Reserved]
    (d) Provision of certain services until June 30, 1977--(1) In 
general. Section 2003(c)(2)(D) of the Employee Retirement Income 
Security Act of 1974 (the Act) (88 Stat. 979) provides that section 4975 
shall not apply to the provision of services before June 30, 1977, 
between a plan and a disqualified person if the three requirements 
contained in section 2003(c)(2)(D) of the Act are met. The first 
requirement is that such services must be provided either (in) under a 
binding contract in effect on July 1, 1974 (or pursuant to a renewal or 
modification of such contract); or (ii) by a disqualified person who 
ordinarily and customarily furnished such services on June 30, 1974. The 
second requirement is that the services be provided on terms that remain 
at least as favorable to the plan as an arm's-length transaction with an 
unrelated party would be.

For this purpose, such services are provided on terms that remain at 
least as favorable to the plan as an arms-length transaction with an 
unrelated party would be if, at the time of execution (or renewal) of 
such binding contract, the contract (or renewal) is on terms at least as 
favorable to the plan as an arm's-length transaction with an unrelated 
party would be. However, if in a normal commercial setting an unrelated 
party in the position of the plan could be expected to insist upon a 
renegotiation or termination of a binding contract, the plan must so 
act. Thus, for example, if a disqualified person provides services to a 
plan on a month-to-month basis, and a party in the position of the plan 
could be expected to renegotiate the price paid under such contract 
because of a decline in the fair market value of such services, the plan 
must so act in order to avoid participation in a prohibited transaction.

[[Page 352]]

The third requirement is that the provision of services must not be, or 
have been, at the time of such provision a prohibited transaction within 
the meaning of section 503(b) or the corresponding provisions of prior 
law. If these three requirements are met, section 4975 will apply 
neither to services provided before June 30, 1977 (both to customers to 
whom such services were being provided on June 30, 1974, and to new 
customers) nor to the receipt of compensation therefor. Thus, if these 
three requirements are met, section 4975 will not apply until June 30, 
1977, to the provision of services to a plan by a disqualified person 
(including a fiduciary) even if such services could not be furnished 
pursuant to the exemption provisions of sections 4975(d)(2) or (6) and 
Sec.  54.4975-6. For example, if the three requirements of section 
2003(c)(2)(D) of the Act are met, a person serving as fiduciary to a 
plan who already receives full-time pay from an employer or an 
association of employers, whose employees are participants in such plan, 
or from an employee organization whose members are participants in such 
plan, may continue to receive reasonable compensation from the plan for 
services rendered to the plan before June 30, 1977. Similarly, until 
June 30, 1977, a plan consultant who may be a fiduciary because of the 
nature of the consultative and administrative services being provided 
may, if these three requirements are met, continue to cause the sale of 
insurance to the plan and continue to receive commissions for such sales 
from the insurance company writing the policy. Further, if the three 
requirements of section 2003 (c)(2)(D) of the Act are met, a securities 
broker dealer who renders investment advice to a plan for a fee, thereby 
becoming a fiduciary may furnish other services to the plan, such as 
brokerage services, and receives compensation therefor. Also, if a 
registered representative of such a broker-dealer were a fiduciary, the 
registered representative may receive compensation, including 
commissions, for brokerage services performed before June 30, 1977.
    (2) Persons deemed to be June 30, 1974, service providers. A 
disqualified person with respect to a plan which did not, on June 30, 
1974, ordinarily and customarily furnish a particular service, will 
nevertheless be considered to have ordinarily and customarily furnished 
such service on June 30, 1974, for purposes of this section and section 
2003(c)(2)(D) of the Act, if either of the following conditions are met:
    (i) At least 50 percent of the outstanding beneficial interests of 
such disqualified person are owned directly or through one or more 
intermediaries by the same person or persons who owned, directly or 
through one or more intermediaries, at least 50 percent of the 
outstanding beneficial interests of a person who ordinarily and 
customarily furnished such service on June 30, 1974; or
    (ii) Control, or the power to exercise a controlling influence over 
the management and policies of such disqualified person is possessed, 
directly or through one or more intermediaries, by the same person or 
persons who possessed directly or through one or more intermediaries 
control, or the power to exercise a controlling influence over the 
management and policies of a person who ordinarily and customarily 
furnished such service on June 30, 1974. For purposes of this paragraph 
(d)(2) a person shall be deemed to be an ``intermediary'' of another 
person if at least 50 percent of the outstanding beneficial interests of 
such person are owned by such other person, directly or indirectly, or 
if such other person controls or has the power to exercise a controlling 
influence over the management and policies of such person.
    (3) Examples. The principals of Sec.  54.4975-15(d)(2) may be 
illustrated by the following examples.

    Example 1. A owns 50 percent of the outstanding beneficial interests 
of ABC Partnership which ordinarily and customarily furnished certain 
services on June 30, 1974. On July 2, 1974, ABC Partnership was 
incorporated into ABC Corporation with one class of stock outstanding. A 
owns 50 percent of the shares of such stock. ABC Corporation furnishes 
the same services that were furnished by ABC Partnership on June 30, 
1974. ABC Corporation will be deemed to have ordinarily and customarily 
furnished such services on June 30, 1974, for purposes of section 
2003(c)(2)(D) of the Act.
    Example 2. A and B together own 100 percent of the beneficial 
interests of AB Partnership, which ordinarily and customarily furnished 
certain services on June 30, 1974.

[[Page 353]]

On September 1, 1974, AB Partnership was incorporated into AB 
Corporation with one class of stock outstanding. A and B each own 20 
percent of such outstanding class of stock and together have control 
over the management and policies of AB Corporation. AB Corporation 
furnishes the same services that were furnished by AB Partnership on 
June 30, 1974. AB Corporation will be deemed to have ordinarily and 
customarily furnished such services on June 30, 1974, for purposes of 
section 2003(c)(2)(D) of the Act.
    Example 3. On June 30, 1974, M Corporation was ordinarily and 
customarily furnishing certain services. On that date, X, Y and Z 
together owned 50 percent of all classes of the outstanding shares of M 
Corporation. On January 28, 1975, all of the shareholders of M 
Corporation exchanged their shares in M Corporation for shares of a new 
N Corporation. As a result of that exchange, X, Y and Z together own 50 
percent of the common stock of N Corporation, the only class of N 
Corporation stock outstanding after the exchange. N Corporation 
furnishes the services formerly furnished by M Corporation. N 
Corporation will be deemed to have ordinarily and customarily furnished 
such services on June 30, 1974, for purposes of section 2003(c)(2)(D) of 
the Act.
    Example 4. I Corporation ordinarily and customarily furnished 
certain services on June 30, 1974. On November 3, 1975, I Corporation 
organizes a wholly owned subsidiary, S Corporation, which furnishes the 
same services ordinarily and customarily furnished by I Corporation on 
June 30, 1974. S Corporation will be deemed to have ordinarily and 
customarily furnished such services on June 30, 1974, for purposes of 
section 2003(c)(2)(D) of the Act.
    Example 5. X Corporation, wholly-owned and controlled by A, 
ordinarily and customarily furnished certain services on June 30, 1974. 
Y Corporation did not perform such services on that date. On January 2, 
1976, X Corporation is merged into Y Corporation and although A received 
less than 50 percent of the total outstanding shares of Y Corporation, 
after such merger A has control over the management and policies of Y 
Corporation. Y Corporation furnishes the same services that were 
formerly furnished by X Corporation. Y Corporation will be deemed to 
have ordinarily and customarily furnished such services on June 30, 
1974, for purposes of section 2003(c)(2)(D) of the Act.

[T.D. 7491, 42 FR 32388, June 24, 1977]



Sec.  54.4976-1T  Questions and answers relating to taxes with respect to 
welfare benefit funds (temporary).

    Q-1: What does section 4976 provide?
    A-1: Section 4976 imposes a tax on employers who provide 
disqualified benefits through a welfare benefit fund. The tax imposed is 
equal to 100 percent of the disqualified benefit.
    Q-2: What constitutes a disqualified benefit?
    A-2: A disqualified benefit is (a) any post-retirement medical or 
life insurance benefit provided with respect to a key employee (as 
defined in section 419A(d)(3)) through a welfare benefit fund if a 
separate account is required to be established for such employee under 
section 419A(d) and the cost for such coverage is not charged against or 
paid from such separate account; (b) any post-retirement medical or life 
insurance benefit provided through a welfare benefit fund with respect 
to an individual in whose favor discrimination is prohibited unless the 
plan of which the fund is a part meets the requirements of section 
505(b) with respect to that benefit; and (c) any portion of the fund 
which reverts to the benefit of the employer. A post-retirement medical 
or life insurance benefit provided with respect to a key employee will 
not constitute a disqualified benefit even though such benefit is not 
provided through a separate account if the cost of such benefit is paid 
by the employer in the taxable year in which the benefit is provided and 
there is not (and there is not required to be) a separate account with 
an outstanding credit balance maintained for the key employee.
    Q-3: What is the effective date of section 4976?
    A-3: (a) Generally, section 4976 applies to disqualified benefits 
provided by a welfare benefit fund after December 31, 1985. However, a 
disqualified benefit, as defined in section 4976(b)(1) or (2), is not 
subject to section 4976(a) if it is provided from ``existing reserves 
for post-retirement medical or life insurance benefits'' that are within 
the transition rule set forth in section 512(a)(3)(E)(iii) and Q&A-4 of 
Sec.  1.512(a)-5T (or would be if such transition rule applied to such 
welfare benefit fund). For example, if a welfare benefit fund in 
existence on July 18, 1984, provides an individual in whose favor 
discrimination is prohibited with a post-retirement life insurance 
benefit after December 31, 1985, that does not meet the requirements of 
section 505(b) and if the welfare benefit fund received no

[[Page 354]]

contributions after July 18, 1984, then the disqualified benefit 
provided by the fund is not subject to section 4976(a)
    (b) A welfare benefit fund will be able to avoid the application of 
section 4976(b)(1) and (2) if the employer withdraws from such fund, 
before April 7, 1986, any amounts that are not attributable to 
``existing reserves for post-retirement medical or life insurance 
benefits'' because they were neither actually set aside nor treated as 
actually set aside under Q&A-4 of Sec.  1.512(a)-5T, on July 18, 1984. 
The employer making such a withdrawal must include the amount in income 
for the first taxable year ending after July 18, 1984, or, to the extent 
that the withdrawn amount is attributable to the following taxable year, 
for such following taxable year. Such a withdrawal will not be treated 
as an impermissible distribution or reversion under section 501(c)(9), 
and will not be treated as a disqualified benefit under section 
4976(b)(3). Of course, to the extent that the welfare benefit fund 
contains amounts that are attributable to ``existing reserves'' but are 
not within the transition rule set forth in Q&A-4 of Sec.  1.512(a)-5T 
(as applied to welfare benefit funds), for example, because such amounts 
exceed the amounts that could have been accumulated under the principles 
set forth in Revenue Rulings 69-382, 1969-2 C.B. 28; 69-478, 1969-2 C.B. 
29; and 73-599, 1973-2 C.B. 40, the fund will not be able to avoid the 
application of section 4976(b)(1) and (2) under this paragraph.
    (c) In the case of a plan which is maintained pursuant to one or 
more collective bargaining agreements (1) between employee 
representatives and one or more employers and (2) which are in effect on 
July 1, 1985 (or ratified on or before that date), the provision does 
not apply to disqualified benefits provided in years beginning before 
the termination of the last of the collective bargaining agreements 
pursuant to which the plan is maintained (determined without regard to 
any extension of the contract agreed to after July 1, 1985). For 
purposes of the preceding sentence, any plan amendment made pursuant to 
a collective bargaining agreement relating to the plan which amends the 
plan solely to conform to any requirement added under section 511 of the 
Tax Reform Act 1984 (i.e., requirements under sections 419, 419A, 
512(a)(3)(E), and 4976) shall not be treated as a termination of such 
collective bargaining agreement.

[T.D. 8073, 51 FR 4336, Feb. 4, 1986]



Sec.  54.4977-1T  Questions and answers relating to the election 
concerning lines of business in existence on January 1, 1984 (temporary).

    The following questions and answers relate to the election by 
employers under section 4977 of the Internal Revenue Code of 1954, as 
added by section 531(e)(1) of the Tax Reform Act of 1984 (98 Stat. 886), 
to treat all employees of any line of business in existence on January 
1, 1984, as employees of one of those lines of business for purposes of 
section 132(a) (1) and (2):
    Q-1: What does section 4977 provide with respect to the exclusion 
from gross income of certain fringe benefits?
    A-1: In general, section 4977 provides an elective grandfather rule 
that allows an employer under certain circumstances to treat employees 
of all lines of business which were in existence on January 1, 1984, as 
employees of one of those lines of business for purposes of section 
132(a) (1) and (2), but not for purposes of section 132(g)(2).
    Q-2: Under what circumstances does the elective grandfather rule of 
section 4977 apply?
    A-2: If:
    (a) An election under section 4977 is in effect with respect to an 
employer for any calendar year, and
    (b) On and after January 1, 1984, at least 85 percent of the 
employees of the employer in all of its lines of business which existed 
on January 1, 1984, were entitled to employee discounts or services 
provided by the employer in one line of business,

then all employees of any line of business of the employer which was in 
existence on January 1, 1984, are treated, for purposes of section 
132(a) (1) and (2) (but not for purposes of section 132(g)(2)) as 
employees of the one line of business referred to in (b) of this Q/A-2.
    Q-3: How does an employer make the election provided for in section 
4977?
    A-3: An employer must file a statement with the director of the 
service

[[Page 355]]

center with which the employer's tax returns are filed. The statement 
must indicate that the employer is electing to apply the provisions of 
section 4977 to one or more of the employer's lines of business and must 
contain the following information:
    (a) The employer's name, address, and taxpayer identification 
number;
    (b) A description of all of the employer's lines of business in 
existence on January 1, 1984; and
    (c) For each lines of business which is to have as an employee for 
purposes of section 132(a) (1) and (2) an individual but for the 
election under section 4977 would not be treated as an employee for 
purposes of section 132(a) (1) and (2):
    (1) A description of the no-additional-cost service or qualified 
employee discount (including, with respect to discounts, the percentage 
discount) to be offered to employees pursuant to section 4977 in such 
line of business, and
    (2) With respect to employees in all of the employer's lines of 
business in existence on January 1, 1984, the number of such employees 
and the number entitled to the described fringe benefit. Such numbers 
may be determined as of a date which does not precede the date the 
election is filed by more than 30 days.
    Q-4: In order to make a timely section 4977 election, when must an 
employer file the election statement?
    A-4: Except as otherwise provided in the second sentence of this 
answer, the employer must file the election statement before the end of 
the calendar year preceding the year for which the election is to apply. 
For calendar year 1985, however, the employer has until March 31, 1985, 
to file the election statement. However, the Commissioner may, in his 
discretion, extend the March 31, 1985 deadline to a later date.
    Q-5: Does section 4977 apply to all calendar years following the 
calendar year in which the election is made?
    A-5: Yes, unless the employer revokes the election.
    Q-6: When is a revocation effective?
    A-6: A revocation is effective with respect to the calendar year 
following the calendar year in which it is filed.
    Q-7: If an employer does not make a timely section 4977 election 
with respect to 1985, will the employer be entitled to make an election 
with respect to any subsequent year?
    A-7: No.
    Q-8: If an employer revokes a section 4977 election, is the employer 
entitled to elect the application of section 4977 for subsequent years?
    A-8: No.

[T.D. 8004, 50 FR 758, Jan. 7, 1985]



Sec.  54.4978-1T  Questions and answers relating to the tax 
on certain dispositions by employee stock ownership plans 
and certain cooperatives (temporary).

    Q-1: What does section 4978 provide?
    A-1: Section 4978 imposes a tax (as determined under section 4978(b) 
and Q&A-2 of this section) on the amount realized on the disposition of 
any qualified securities, if:
    (a) An employee stock ownership plan or eligible worker-owned 
cooperative acquires any qualified securities in a sale to which section 
1042 applies;
    (b) Such plan or cooperative disposes of any qualified securities 
during the 3-year period after the date on which any qualified 
securities were acquired in the sale to which section 1042 applies; and
    (c) Either (1) the percentage of the total outstanding shares of the 
class of employer securities of which the disposed qualified securities 
are a part held by such plan or cooperative after such disposition is 
less than the percentage of the total outstanding shares of such class 
of employer securities held immediately after the sale to which section 
1042 applies, or (2) the value of the employer securities held by such 
plan or cooperative immediately after such disposition is less than 30 
percent of the total value of all employer securities outstanding at 
that time. For purposes of this section, the following terms have the 
same meanings given to such terms by the identified provisions: 
``employee stock ownership plan'' (section 4975(e)(7)); ``qualified 
securities'' (section 1042(b)(1)); ``eligible worker-owned cooperative'' 
(section 1042(b)(2)); ``employer securities'' (section 409(l)). For 
purposes of determining what constitutes a disposition to which section 
4978 applies, see Q&A-3 of this section.

[[Page 356]]

    Q-2: What is the amount of tax imposed under section 4978?
    A-2: Section 4978 imposes a tax of 10 percent of the amount realized 
on the disposition of qualified securities. The amount realized that is 
subject to tax under section 4978 shall not exceed that portion of the 
amount realized that is allocable to qualified securities acquired 
within the 3-year period prior to the date of disposition and to which 
section 1042 applied (``restricted qualified securities''). In 
determining the amount realized (except as otherwise provided in Q&A-3 
of this section), any disposition of employer securities with respect to 
which the condition contained in provision (c) of Q&A-1 is met shall be 
treated, first, as a disposition of restricted qualified securities (on 
a first in, first out basis) and, thereafter, as a disposition of any 
other employer securities. Thus, for example, if a plan disposes of more 
employer securities than the number of restricted qualified securities 
held by the plan at that time and immediately after such disposition the 
value of the employer securities held by the plan is less than 30 
percent of the total value of all outstanding employer securities, the 
portion of the total amount realized that is allocable to restricted 
qualified securities subject to tax under section 4978 is determined by 
multiplying the total amount realized on the disposition by a fraction, 
the numerator of which is the total value of restricted qualified 
securities included in the disposition and the denominator of which is 
the total value of employer securities in the disposition.
    Q-3: What constitutes a ``disposition'' under section 4978?
    A-3: (a) Under section 4978, the term ``disposition'' includes any 
sale, exchange, or distribution. However, in the case of any exchange of 
qualified securities for stock of another corporation in any 
reorganization described in section 368(a)(1), such exchange shall not 
be treated as a disposition for purposes of section 4978.
    (b) Section 4978 shall not apply to any disposition of qualified 
securities which is made by reason of:
    (1) The death of the employee;
    (2) The retirement of the employee after the employee has attained 
59\1/2\ years of age;
    (3) The disability of the employee (within the meaning of section 
72(m)(5)); or
    (4) The separation of the employee from service for any period which 
results in a 1-year break in service (within the meaning of section 
411(a)(6)(A)).
    Any disposition of employer securities within this paragraph and any 
disposition of employer securities with respect to which the condition 
contained in provision (c) of Q&A-1 of this section is not met shall be 
treated, first, as a disposition of securities that are not restricted 
qualified securities and, thereafter, as a disposition of restricted 
qualified securities (on a first-in, first-out basis).
    (c) If restricted qualified securities held by an employee stock 
ownership plan or eligible worker-owned cooperative no longer meet the 
definition of qualified securities (``old restricted qualified 
securities'') as a result of a transaction changing (1) the status of a 
corporation as an employer, or as a member of a controlled group of 
corporations including the employer, or (2) the existence of employer 
securities of the type described in section 409(l)(1), the disposition 
of such securities shall not be treated as a disposition of restricted 
qualified securites to which the tax under section 4978 is imposed if, 
within 90 days after such disposition, securities meeting the 
requirements of section 409(l) (``new restricted qualified securities'') 
that are of equal value to the old restricted qualfied securities (at 
the time of the disposition of the old restricted qualified securities) 
are substituted for such old restricted qualified securities. However, 
for purposes of determining the tax imposed under section 4978, old 
restricted qualified securities shall not be treated as if they retained 
their status as restricted qualified securities and new restricted 
qualified securities derived from the disposition of old restricted 
qualified securities pursuant to the preceding sentence shall be treated 
as restricted qualified securities for the remaining portion of the 
period during which the disposition of the old restricted qualified 
securities

[[Page 357]]

would have been subject to tax under section 4978.
    Q-4: To whom does the tax under section 4978 apply?
    A-4: The tax under section 4978 is imposed on the domestic 
corporation (or corporations) or the eligible worker-owned cooperative 
that made the written statement of consent as described in section 
1042(a)(2)(B) and Q&A-2 of Sec.  1.1042-1T with respect to the 
disposition of the restricted qualified securities.
    Q-5: When does section 4978, as enacted by the Tax Reform Act of 
1984, become effective?
    A-5: Section 4978 applies to the disposition of qualified securities 
acquired in a sale to which section 1042 applies. See Q&A-6 of Sec.  
1.1042-1T for the effective date of section 1042.

[T.D. 8073, 51 FR 4336, Feb. 4, 1986]



Sec.  54.4979-0  Excise tax on certain excess contributions 
and excess aggregate contributions; table of contents.

    This section contains the captions that appear in Sec.  54.4979.

 Sec.  54.4979-1 Excise tax on certain excess contributions and excess 
                        aggregate contributions.

    (a) In general.
    (1) General rule.
    (2) Liability for tax.
    (3) Due date and form for payment of tax.
    (4) Special rule for simplified employee pensions.
    (b) Definitions.
    (1) Excess aggregate contributions.
    (2) Excess contributions.
    (3) Plan.
    (c) No tax when excess distributed within 2\1/2\ months of close of 
year or additional employer contributions made.
    (1) General rule.
    (2) Tax treatment of distributions.
    (3) Income.
    (4) Example.
    (d) Effective date.
    (1) General rule.
    (2) Section 403(b) annuity contracts.
    (3) Collectively bargained plans and plans of state or local 
governments.
    (4) Plan years beginning before January 1, 1992.

[T.D. 8357, 56 FR 40550, Aug. 15, 1991; 57 FR 10290, Mar. 25, 1992, as 
amended by T.D. 8581, 59 FR 66181, Dec. 23, 1994]



Sec.  54.4979-1  Excise tax on certain excess contributions 
and excess aggregate contributions.

    (a) In general--(1) General rule. In the case of any plan (as 
defined in paragraph (b)(3) of this section), there is imposed a tax for 
the employer's taxable year equal to 10 percent of the sum of:
    (i) Any excess contributions under a plan for the plan year ending 
in the taxable year; and
    (ii) Any excess aggregate contributions under the plan for the plan 
year ending in the taxable year.
    (2) Liability for tax. The tax imposed by paragraph (a)(1) of this 
section is to be paid by the employer. In the case of a collectively 
bargained plan to which section 413(b) applies, all employers who are 
parties to the collective bargaining agreement and whose employees are 
participants in the plan are jointly and severally liable for the tax.
    (3) Due date and form for payment of tax--(i) The tax described in 
paragraph (a)(1) of this section is due on the last day of the 15th 
month after the close of the plan year to which the excess contributions 
or excess aggregate contributions relate.
    (ii) An employer that owes the tax described in paragraph (a)(1) of 
this section must file the form prescribed by the Commissioner for the 
payment of the tax.
    (4) Special rule for simplified employee pensions--(i) An employer 
that maintains a simplified employee pension (SEP) as defined in section 
408(k) that accepts elective contributions is exempted from the tax of 
section 4979 and paragraph (a)(1) of this section if it notifies its 
employees of the fact and tax consequences of excess contributions 
within 2\1/2\ months following the plan year for which excess 
contributions are made. The notification must meet the standards of 
paragraph (a)(4)(ii) of this section.
    (ii) The employer's notification to each affected employee of the 
excess SEP contributions must specifically state, in a manner calculated 
to be understood by the average plan participant: the amount of the 
excess contributions attributable to that employee's elective deferrals; 
the calendar year for which the excess contributions

[[Page 358]]

were made; that the excess contributions are includible in the affected 
employee's gross income for the specified calendar year; and that 
failure to withdraw the excess contributions and income attributable 
thereto by the due date (plus extensions) for filing the affected 
employee's tax return for the preceding calendar year may result in 
significant penalties.
    (iii) If an employer does not notify its employees by the last day 
of the 12-month period following the year of excess SEP contributions, 
the SEP will no longer be considered to meet the requirements of section 
408(k)(6).
    (b) Definitions. The following is a list of terms and definitions to 
be used for purposes of section 4979 and this section:
    (1) Excess aggregate contributions. The term ``excess aggregate 
contribution'' has the meaning set forth in Sec.  1.401(m)-5 of this 
chapter. For purposes of determining excess aggregate contributions 
under an annuity contract described in section 403(b), the contract is 
treated as a plan described in section 401(a).
    (2) Excess contributions. The term ``excess contributions'' has the 
meaning set forth in sections 401(k)(8)(B), 408(k)(6)(C)(ii), and 
501(c)(18). See, e.g., Sec.  1.401(k)-6 of this chapter.
    (3) Plan. The term ``plan'' means:
    (i) A plan described in section 401(a) that includes a trust exempt 
from tax under section 501(a);
    (ii) Any annuity plan described in section 403(a);
    (iii) Any annuity contract described in section 403(b);
    (iv) A simplified employee pension of an employer that satisfies the 
requirements of section 408(k); and
    (v) A plan described in section 501(c)(18).

The term includes any plan that at any time has been determined by the 
Secretary to be one of the types of plans described in this paragraph 
(b)(3).
    (c) No tax when excess distributed within 2\1/2\ months of close of 
year or additional employer contributions made--(1) General rule. No tax 
is imposed under this section on any excess contribution or excess 
aggregate contribution, as the case may be, to the extent the 
contribution (together with any income allocable thereto) is corrected 
before the close of the first 2\1/2\ months of the following plan year 
(6 months in the case of a plan that includes an eligible automatic 
contribution arrangement within the meaning of section 414(w)). The 
extension to 6 months applies to a distribution of excess contributions 
or excess aggregate contributions for a plan year beginning on or after 
January 1, 2010, only where all the eligible NHCEs and eligible HCEs 
(both as defined in Sec.  1.401(k)-6 of this Chapter) are covered 
employees under an eligible automatic contribution arrangement within 
the meaning of section 414(w) for the entire plan year (or the portion 
of the plan year that the eligible NHCEs and eligible HCEs are eligible 
employees under the plan)). Qualified nonelective contributions and 
qualified matching contributions taken into account under Sec.  
1.401(k)-2(a)(6) of this Chapter or qualified nonelective contributions 
or elective contributions taken into account under Sec.  1.401(m)-
2(a)(6) of this Chapter for a plan year may permit a plan to avoid 
excess contributions or excess aggregate contributions, respectively, 
even if made after the close of the 2\1/2\ month (or 6 month) period for 
distributing excess contributions or excess aggregate contributions 
without the excise tax. See Sec.  1.401(k)-2(b)(1)(i) and (5)(i) of this 
Chapter for methods to avoid excess contributions, and Sec.  1.401(m)-
2(b)(1)(i) of the Chapter for methods to avoid excess aggregate 
contributions.
    (2) Tax treatment of distributions. See Sec.  1.401(k)-2(b)(3)(ii) 
and (2)(vi) of this chapter for rules for determining the tax 
consequences to a participant of a distribution or recharacterization of 
excess contributions and income allocable thereto, including a special 
rule for de minimis distributions. See Sec.  1.401(m)-2(b)(2)(vi) of 
this chapter for rules for determining the tax consequences to a 
participant of a distribution of excess aggregate contributions and 
income allocable thereto.
    (3) Income. See Sec.  1.401(k)-2(b)(2)(iv) of this chapter for rules 
for determining income allocable to excess contributions. See Sec.  
1.401(m)-2(b)(2)(iv) of this chapter for rules for determining income 
allocable to excess aggregate contributions.

[[Page 359]]

    (4) Example. The provisions of this paragraph (c) are illustrated by 
the following example.

    Example. (i) Employer X maintains Plan Y, a calendar year profit-
sharing plan that includes a qualified cash or deferred arrangement. 
Under the plan, failure to satisfy the actual deferral percentage test 
may only be corrected by distributing the excess contributions or making 
qualified nonelective contributions (QNECs).
    (ii) On December 31, 1990, X determines that Y does not satisfy the 
actual deferral percentage test for the 1990 plan year, and that excess 
contributions for the year equal $5,000. On March 1, 1991, Y distributes 
$2,000 of these excess contributions. On May 30, 1991, X distributes 
another $2,000 of excess contributions. On December 17, 1991, X 
contributes QNECs for certain nonhighly compensated employees, thereby 
eliminating the remainder of the excess contributions for 1990.
    (iii) X has incurred a tax liability under section 4979 for 1990 
equal to 10 percent of the excess contributions that were in the plan as 
of December 31, 1990. However, this tax is not imposed on the $2,000 
distributed on March 1, 1991, or the amount corrected by QNECs. X must 
pay an excise tax of $200, 10 percent of the $2,000 of excess 
contributions distributed after March 15, 1991. This tax must be paid by 
March 31, 1992.

    (d) Effective date--(1) General rule. Except as provided in 
paragraphs (d)(2) through (4), this section is effective for plan years 
beginning after December 31, 1986.
    (2) Section 403(b) annuity contracts. In the case of an annuity 
contract under section 403(b), this section applies to plan years 
beginning after December 31, 1988.
    (3) Collectively bargained plans and plans of state or local 
governments. For plan years beginning before January 1, 1993, the 
provisions of this section do not apply to a collectively bargained plan 
that automatically satisfies the requirements of section 410(b). See 
Sec. Sec.  1.401(a)(4)-1(c)(5) and 1.410(b)-2(b)(7) of this chapter. In 
the case of a plan (including a collectively bargained plan) maintained 
by a state or local government, the provisions of this section do not 
apply for plan years beginning before the later of January 1, 1996, or 
90 days after the opening of the first legislative session beginning on 
or after January 1, 1996, of the governing body with authority to amend 
the plan, if that body does not meet continuously. For purposes of this 
paragraph (d)(3), the term governing body with authority to amend the 
plan means the legislature, board, commission, council, or other 
governing body with authority to amend the plan.
    (4) Plan years beginning before January 1, 1992. For plan years 
beginning before January 1, 1992, a reasonable interpretation of the 
rules set forth in section 4979, as in effect during those years, may be 
relied upon in determining whether the excise tax is due for those 
years.

[T.D. 8357, 56 FR 40550, Aug. 15, 1991, as amended by T.D. 8581, 59 FR 
66181, Dec. 23, 1994; T.D. 9169, 69 FR 78153, Dec. 29, 2004; T.D. 9447, 
74 FR 8214, Feb. 24, 2009]



Sec.  54.4980B-0  Table of contents.

    This section contains first a list of the section headings and then 
a list of the questions in each section in Sec. Sec.  54.4980B-1 through 
54.4980B-10.

                            List of Sections

                   Sec.  54.4980B-1 COBRA in general.

                Sec.  54.4980B-2 Plans that must comply.

                Sec.  54.4980B-3 Qualified beneficiaries.

                   Sec.  54.4980B-4 Qualifying events.

              Sec.  54.4980B-5 COBRA continuation coverage.

         Sec.  54.4980B-6 Electing COBRA continuation coverage.

        Sec.  54.4980B-7 Duration of COBRA continuation coverage.

        Sec.  54.4980B-8 Paying for COBRA continuation coverage.

Sec.  54.4980B-9 Business reorganizations and employer withdrawals from 
                          multiemployer plans.

            Sec.  54.4980B-10 Interaction of FMLA and COBRA.

                            List of Questions

                   Sec.  54.4980B-1 COBRA in general.

    Q-1: What are the health care continuation coverage requirements 
contained in section 4980B of the Internal Revenue Code and in ERISA?
    Q-2: What standard applies for topics not addressed in Sec. Sec.  
54.4980B-1 through 54.4980B-10?

                Sec.  54.4980B-2 Plans that must comply.

    Q-1: For purposes of section 4980B, what is a group health plan?

[[Page 360]]

    Q-2: For purposes of section 4980B, what is the employer?
    Q-3: What is a multiemployer plan?
    Q-4: What group health plans are subject to COBRA?
    Q-5: What is a small-employer plan?
    Q-6: How is the number of group health plans that an employer or 
employee organization maintains determined?
    Q-7: What is the plan year?
    Q-8: How do the COBRA continuation coverage requirements apply to 
cafeteria plans and other flexible benefit arrangements?
    Q-9: What is the effect of a group health plan's failure to comply 
with the requirements of section 4980B(f)?
    Q-10: Who is liable for the excise tax if a group health plan fails 
to comply with the requirements of section 4980B(f)?
    Q-11: If a person is liable for the excise tax under section 4980B, 
what form must the person file and what is the due date for the filing 
and payment of the excise tax?

                Sec.  54.4980B-3 Qualified beneficiaries.

    Q-1: Who is a qualified beneficiary?
    Q-2: Who is an employee and who is a covered employee?
    Q-3: Who are the similarly situated nonCOBRA beneficiaries?

                   Sec.  54.4980B-4 Qualifying events.

    Q-1: What is a qualifying event?
    Q-2: Are the facts surrounding a termination of employment (such as 
whether it was voluntary or involuntary) relevant in determining whether 
the termination of employment is a qualifying event?

              Sec.  54.4980B-5 COBRA continuation coverage.

    Q-1: What is COBRA continuation coverage?
    Q-2: What deductibles apply if COBRA continuation coverage is 
elected?
    Q-3: How do a plan's limits apply to COBRA continuation coverage?
    Q-4: Can a qualified beneficiary who elects COBRA continuation 
coverage ever change from the coverage received by that individual 
immediately before the qualifying event?
    Q-5: Aside from open enrollment periods, can a qualified beneficiary 
who has elected COBRA continuation coverage choose to cover individuals 
(such as newborn children, adopted children, or new spouses) who join 
the qualified beneficiary's family on or after the date of the 
qualifying event?

         Sec.  54.4980B-6 Electing COBRA continuation coverage.

    Q-1: What is the election period and how long must it last?
    Q-2: Is a covered employee or qualified beneficiary responsible for 
informing the plan administrator of the occurrence of a qualifying 
event?
    Q-3: During the election period and before the qualified beneficiary 
has made an election, must coverage be provided?
    Q-4: Is a waiver before the end of the election period effective to 
end a qualified beneficiary's election rights?
    Q-5: Can an employer or employee organization withhold money or 
other benefits owed to a qualified beneficiary until the qualified 
beneficiary either waives COBRA continuation coverage, elects and pays 
for such coverage, or allows the election period to expire?
    Q-6: Can each qualified beneficiary make an independent election 
under COBRA?

        Sec.  54.4980B-7 Duration of COBRA continuation coverage.

    Q-1: How long must COBRA continuation coverage be made available to 
a qualified beneficiary?
    Q-2: When may a plan terminate a qualified beneficiary's COBRA 
continuation coverage due to coverage under another group health plan?
    Q-3: When may a plan terminate a qualified beneficiary's COBRA 
continuation coverage due to the qualified beneficiary's entitlement to 
Medicare benefits?
    Q-4: When does the maximum coverage period end?
    Q-5: How does a qualified beneficiary become entitled to a 
disability extension?
    Q-6: Under what circumstances can the maximum coverage period be 
expanded?
    Q-7: If health coverage is provided to a qualified beneficiary after 
a qualifying event without regard to COBRA continuation coverage (for 
example, as a result of state or local law, the Uniformed Services 
Employment and Reemployment Rights Act of 1994 (38 U.S.C. 4315), 
industry practice, a collective bargaining agreement, severance 
agreement, or plan procedure), will such alternative coverage extend the 
maximum coverage period?
    Q-8: Must a qualified beneficiary be given the right to enroll in a 
conversion health plan at the end of the maximum coverage period for 
COBRA continuation coverage?

        Sec.  54.4980B-8 Paying for COBRA continuation coverage.

    Q-1: Can a group health plan require payment for COBRA continuation 
coverage?
    Q-2: When is the applicable premium determined and when can a group 
health plan increase the amount it requires to be paid for COBRA 
continuation coverage?
    Q-3: Must a plan allow payment for COBRA continuation coverage to be 
made in monthly installments?

[[Page 361]]

    Q-4: Is a plan required to allow a qualified beneficiary to choose 
to have the first payment for COBRA continuation coverage applied 
prospectively only?
    Q-5: What is timely payment for COBRA continuation coverage?

Sec.  54.4980B-9 Business reorganizations and employer withdrawals from 
                          multiemployer plans.

    Q-1: For purposes of this section, what are a business 
reorganization, a stock sale, and an asset sale?
    Q-2: In the case of a stock sale, what are the selling group, the 
acquired organization, and the buying group?
    Q-3: In the case of an asset sale, what are the selling group and 
the buying group?
    Q-4: Who is an M&A qualified beneficiary?
    Q-5: In the case of a stock sale, is the sale a qualifying event 
with respect to a covered employee who is employed by the acquired 
organization before the sale and who continues to be employed by the 
acquired organization after the sale, or with respect to the spouse or 
dependent children of such a covered employee?
    Q-6: In the case of an asset sale, is the sale a qualifying event 
with respect to a covered employee whose employment immediately before 
the sale was associated with the purchased assets, or with respect to 
the spouse or dependent children of such a covered employee who are 
covered under a group health plan of the selling group immediately 
before the sale?
    Q-7: In a business reorganization, are the buying group and the 
selling group permitted to allocate by contract the responsibility to 
make COBRA continuation coverage available to M&A qualified 
beneficiaries?
    Q-8: Which group health plan has the obligation to make COBRA 
continuation coverage available to M&A qualified beneficiaries in a 
business reorganization?
    Q-9: Can the cessation of contributions by an employer to a 
multiemployer group health plan be a qualifying event?
    Q-10: If an employer stops contributing to a multiemployer group 
health plan, does the multiemployer plan have the obligation to make 
COBRA continuation coverage available to a qualified beneficiary who was 
receiving coverage under the multiemployer plan on the day before the 
cessation of contributions and who is, or whose qualifying event 
occurred in connection with, a covered employee whose last employment 
prior to the qualifying event was with the employer that has stopped 
contributing to the multiemployer plan?

            Sec.  54.4980B-10 Interaction of FMLA and COBRA.

    Q-1: In what circumstances does a qualifying event occur if an 
employee does not return from leave taken under FMLA?
    Q-2: If a qualifying event described in Q&A-1 of this section 
occurs, when does it occur, and how is the maximum coverage period 
measured?
    Q-3: If an employee fails to pay the employee portion of premiums 
for coverage under a group health plan during FMLA leave or declines 
coverage under a group health plan during FMLA leave, does this affect 
the determination of whether or when the employee has experienced a 
qualifying event?
    Q-4: Is the application of the rules in Q&A-1 through Q&A-3 of this 
section affected by a requirement of state or local law to provide a 
period of coverage longer than that required under FMLA?
    Q-5: May COBRA continuation coverage be conditioned upon 
reimbursement of the premiums paid by the employer for coverage under a 
group health plan during FMLA leave?

[T.D. 8812, 64 FR 5173, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1848, Jan. 10, 2001; T.D. 9457, 74 FR 45997, Sept. 8, 2009]



Sec.  54.4980B-1  COBRA in general.

    The COBRA continuation coverage requirements are described in 
general in the following questions-and-answers:
    Q-1: What are the health care continuation coverage requirements 
contained in section 4980B of the Internal Revenue Code and in ERISA?
    A-1: (a) Section 4980B provides generally that a group health plan 
must offer each qualified beneficiary who would otherwise lose coverage 
under the plan as a result of a qualifying event an opportunity to 
elect, within the election period, continuation coverage under the plan. 
The continuation coverage requirements were added to section 162 by the 
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Public 
Law 99-272 (100 Stat. 222), and moved to section 4980B by the Technical 
and Miscellaneous Revenue Act of 1988, Public Law 100-647 (102 Stat. 
3342). Continuation coverage required under section 4980B is referred to 
in Sec. Sec.  54.4980B-1 through 54.4980B-10 as COBRA continuation 
coverage.
    (b) COBRA also added parallel continuation coverage requirements to 
Part 6 of Subtitle B of title I of the Employee Retirement Income 
Security

[[Page 362]]

Act of 1974 (ERISA) (29 U.S.C. 1161-1168), which is administered by the 
U.S. Department of Labor. If a plan does not comply with the COBRA 
continuation coverage requirements, the Internal Revenue Code imposes an 
excise tax on the employer maintaining the plan (or on the plan itself), 
whereas ERISA gives certain parties--including qualified beneficiaries 
who are participants or beneficiaries within the meaning of title I of 
ERISA, as well as the Department of Labor--the right to file a lawsuit 
to redress the noncompliance. The rules in Sec. Sec.  54.4980B-1 through 
54.4980B-10 apply for purposes of section 4980B and generally also for 
purposes of the COBRA continuation coverage requirements in title I of 
ERISA. However, certain provisions of the COBRA continuation coverage 
requirements (such as the definitions of group health plan, employee, 
and employer) are not identical in the Internal Revenue Code and title I 
of ERISA. In those cases in which the statutory language is not 
identical, the rules in Sec. Sec.  54.4980B-1 through 54.4980B-10 
nonetheless apply to the COBRA continuation coverage requirements of 
title I of ERISA, except to the extent those rules are inconsistent with 
the statutory language of title I of ERISA.
    (c) A group health plan that is subject to section 4980B (or the 
parallel provisions under ERISA) is referred to as being subject to 
COBRA. (See Q&A-4 of Sec.  54.4980B-2). A qualified beneficiary can be 
required to pay for COBRA continuation coverage. The term qualified 
beneficiary is defined in Q&A-1 of Sec.  54.4980B-3. The term qualifying 
event is defined in Q&A-1 of Sec.  54.4980B-4. COBRA continuation 
coverage is described in Sec.  54.4980B-5. The election procedures are 
described in Sec.  54.4980B-6. Duration of COBRA continuation coverage 
is addressed in Sec.  54.4980B-7, and payment for COBRA continuation 
coverage is addressed in Sec.  54.4980B-8. Section 54.4980B-9 contains 
special rules for how COBRA applies in connection with business 
reorganizations and employer withdrawals from a multiemployer plan, and 
Sec.  54.4980B-10 addresses how COBRA applies for individuals who take 
leave under the Family and Medical Leave Act of 1993. Unless the context 
indicates otherwise, any reference in Sec. Sec.  54.4980B-1 through 
54.4980B-10 to COBRA refers to section 4980B (as amended) and to the 
parallel provisions of ERISA.
    Q-2: What standard applies for topics not addressed in Sec. Sec.  
54.4980B-1 through 54.4980B-10?
    A-2: For purposes of section 4980B, for topics relating to the COBRA 
continuation coverage requirements of section 4980B that are not 
addressed in Sec. Sec.  54.4980B-1 through 54.4980B-10 (such as methods 
for calculating the applicable premium), plans and employers must 
operate in good faith compliance with a reasonable interpretation of the 
statutory requirements in section 4980B.

[T.D. 8812, 64 FR 5173, Feb. 3, 1999; 64 FR 14382, Mar. 25, 1999, as 
amended by T.D. 8928, 66 FR 1849, Jan. 10, 2001]



Sec.  54.4980B-2  Plans that must comply.

    The following questions-and-answers apply in determining which plans 
must comply with the COBRA continuation coverage requirements:
    Q-1: For purposes of section 4980B, what is a group health plan?
    A-1: (a) For purposes of section 4980B, a group health plan is a 
plan maintained by an employer or employee organization to provide 
health care to individuals who have an employment-related connection to 
the employer or employee organization or to their families. Individuals 
who have an employment-related connection to the employer or employee 
organization consist of employees, former employees, the employer, and 
others associated or formerly associated with the employer or employee 
organization in a business relationship (including members of a union 
who are not currently employees). Health care is provided under a plan 
whether provided directly or through insurance, reimbursement, or 
otherwise, and whether or not provided through an on-site facility 
(except as set forth in paragraph (d) of this Q&A-1), or through a 
cafeteria plan (as defined in section 125) or other flexible benefit 
arrangement. (See paragraphs (b) through (e) in Q&A-8 of this section 
for rules regarding the application of the COBRA continuation coverage 
requirements to certain health flexible spending arrangements.) For 
purposes

[[Page 363]]

of this Q&A-1, insurance includes not only group insurance policies but 
also one or more individual insurance policies in any arrangement that 
involves the provision of health care to two or more employees. A plan 
maintained by an employer or employee organization is any plan of, or 
contributed to (directly or indirectly) by, an employer or employee 
organization. Thus, a group health plan is maintained by an employer or 
employee organization even if the employer or employee organization does 
not contribute to it if coverage under the plan would not be available 
at the same cost to an individual but for the individual's employment-
related connection to the employer or employee organization. These rules 
are further explained in paragraphs (b) through (d) of this Q&A-1. An 
exception for qualified long-term care services is set forth in 
paragraph (e) of this Q&A-1, and for medical savings accounts in 
paragraph (f) of this Q&A-1. See Q&A-6 of this section for rules to 
determine the number of group health plans that an employer or employee 
organization maintains.
    (b) For purposes of Sec. Sec.  54.4980B-1 through 54.4980B-10, 
health care has the same meaning as medical care under section 213(d). 
Thus, health care generally includes the diagnosis, cure, mitigation, 
treatment, or prevention of disease, and any other undertaking for the 
purpose of affecting any structure or function of the body. Health care 
also includes transportation primarily for and essential to health care 
as described in the preceding sentence. However, health care does not 
include anything that is merely beneficial to the general health of an 
individual, such as a vacation. Thus, if an employer or employee 
organization maintains a program that furthers general good health, but 
the program does not relate to the relief or alleviation of health or 
medical problems and is generally accessible to and used by employees 
without regard to their physical condition or state of health, that 
program is not considered a program that provides health care and so is 
not a group health plan. For example, if an employer maintains a spa, 
swimming pool, gymnasium, or other exercise/fitness program or facility 
that is normally accessible to and used by employees for reasons other 
than relief of health or medical problems, such a facility does not 
constitute a program that provides health care and thus is not a group 
health plan. In contrast, if an employer maintains a drug or alcohol 
treatment program or a health clinic, or any other facility or program 
that is intended to relieve or alleviate a physical condition or health 
problem, the facility or program is considered to be the provision of 
health care and so is considered a group health plan.
    (c) Whether a benefit provided to employees constitutes health care 
is not affected by whether the benefit is excludable from income under 
section 132 (relating to certain fringe benefits). For example, if a 
department store provides its employees discounted prices on all 
merchandise, including health care items such as drugs or eyeglasses, 
the mere fact that the discounted prices also apply to health care items 
will not cause the program to be a plan providing health care, so long 
as the discount program would normally be accessible to and used by 
employees without regard to health needs or physical condition. If, 
however, the employer maintaining the discount program is a health 
clinic, so that the program is used exclusively by employees with health 
or medical needs, the program is considered to be a plan providing 
health care and so is considered to be a group health plan.
    (d) The provision of health care at a facility that is located on 
the premises of an employer or employee organization does not constitute 
a group health plan if--
    (1) The health care consists primarily of first aid that is provided 
during the employer's working hours for treatment of a health condition, 
illness, or injury that occurs during those working hours;
    (2) The health care is available only to current employees; and
    (3) Employees are not charged for the use of the facility.
    (e) A plan does not constitute a group health plan subject to COBRA 
if substantially all of the coverage provided under the plan is for 
qualified long-term care services (as defined in section 7702B(c)). For 
this purpose, a plan

[[Page 364]]

is permitted to use any reasonable method in determining whether 
substantially all of the coverage provided under the plan is for 
qualified long-term care services.
    (f) Under section 106(b)(5), amounts contributed by an employer to a 
medical savings account (as defined in section 220(d)) are not 
considered part of a group health plan subject to COBRA. Thus, a plan is 
not required to make COBRA continuation coverage available with respect 
to amounts contributed by an employer to a medical savings account. A 
high deductible health plan does not fail to be a group health plan 
subject to COBRA merely because it covers a medical savings account 
holder.
    Q-2: For purposes of section 4980B, what is the employer?
    A-2: (a) For purposes of section 4980B, employer refers to--
    (1) A person for whom services are performed;
    (2) Any other person that is a member of a group described in 
section 414(b), (c), (m), or (o) that includes a person described in 
paragraph (a)(1) of this Q&A-2 and
    (3) Any successor of a person described in paragraph (a)(1) or (2) 
of this Q&A-2.
    (b) An employer is a successor employer if it results from a 
consolidation, merger, or similar restructuring of the employer or if it 
is a mere continuation of the employer. See paragraph (c) in Q&A-8 of 
Sec.  54.4980B-9 for rules describing the circumstances in which a 
purchaser of substantial assets is a successor employer to the employer 
selling the assets.
    Q-3: What is a multiemployer plan?
    A-3: For purposes of Sec. Sec.  54.4980B-1 through 54.4980B-10, a 
multiemployer plan is a plan to which more than one employer is required 
to contribute, that is maintained pursuant to one or more collective 
bargaining agreements between one or more employee organizations and 
more than one employer, and that satisfies such other requirements as 
the Secretary of Labor may prescribe by regulation. Whenever reference 
is made in Sec. Sec.  54.4980B-1 through 54.4980B-10 to a plan of or 
maintained by an employer or employee organization, the reference 
includes a multiemployer plan.
    Q-4: What group health plans are subject to COBRA?
    A-4: (a) All group health plans are subject to COBRA except group 
health plans described in paragraph (b) of this Q&A-4. Group health 
plans described in paragraph (b) of this Q&A-4 are referred to in 
Sec. Sec.  54.4980B-1 through 54.4980B-10 as excepted from COBRA.
    (b) The following group health plans are excepted from COBRA--
    (1) Small-employer plans (see Q&A-5 of this section);
    (2) Church plans (within the meaning of section 414(e)); and
    (3) Governmental plans (within the meaning of section 414(d)).
    (c) The COBRA continuation coverage requirements generally do not 
apply to group health plans that are excepted from COBRA. However, a 
small-employer plan otherwise excepted from COBRA is nonetheless subject 
to COBRA with respect to qualified beneficiaries who experience a 
qualifying event during a period when the plan is not a small-employer 
plan (see paragraph (g) of Q&A-5 of this section).
    (d) Although governmental plans are not subject to the COBRA 
continuation coverage requirements, group health plans maintained by 
state or local governments are generally subject to parallel 
continuation coverage requirements that were added by section 10003 of 
COBRA to the Public Health Service Act (42 U.S.C. 300bb-1 through 300bb-
8), which is administered by the U.S. Department of Health and Human 
Services. Federal employees and their family members covered under the 
Federal Employees Health Benefit Program are covered by generally 
similar, but not parallel, temporary continuation of coverage provisions 
enacted by the Federal Employees Health Benefits Amendments Act of 1988. 
See 5 U.S.C. 8905a.
    Q-5: What is a small-employer plan?
    A-5: (a) Except in the case of a multiemployer plan, a small-
employer plan is a group health plan maintained by an employer (within 
the meaning of Q&A-2 of this section) that normally employed fewer than 
20 employees (within the meaning of paragraph (c) of this

[[Page 365]]

Q&A-5) during the preceding calendar year. In the case of a 
multiemployer plan, a small-employer plan is a group health plan under 
which each of the employers contributing to the plan for a calendar year 
normally employed fewer than 20 employees during the preceding calendar 
year. See Q&A-6 of this section for rules to determine the number of 
plans that an employer or employee organization maintains. The rules of 
this paragraph (a) are illustrated in the following example:

    Example. (i) Corporation S employs 12 employees, all of whom work 
and reside in the United States. S maintains a group health plan for its 
employees and their families. S is a wholly-owned subsidiary of P. In 
the previous calendar year, the controlled group of corporations 
including P and S employed more than 19 employees, although the only 
employees in the United States of the controlled group that includes P 
and S are the 12 employees of S.
    (ii) Under Sec.  1.414(b)-1 of this chapter, foreign corporations 
are not excluded from membership in a controlled group of corporations. 
Consequently, the group health plan maintained by S is not a small-
employer plan during the current calendar year because the controlled 
group including S normally employed at least 20 employees in the 
preceding calendar year.

    (b) An employer is considered to have normally employed fewer than 
20 employees during a particular calendar year if, and only if, it had 
fewer than 20 employees on at least 50 percent of its typical business 
days during that year.
    (c) All full-time and part-time common law employees of an employer 
are taken into account in determining whether an employer had fewer than 
20 employees; however, an individual who is not a common law employee of 
the employer is not taken into account. Thus, the following individuals 
are not counted as employees for purposes of this Q&A-5 even though they 
are referred to as employees for all other purposes of Sec. Sec.  
54.4980B-1 through 54.4980B-10--
    (1) Self-employed individuals (within the meaning of section 
401(c)(1));
    (2) Independent contractors (and their employees and independent 
contractors); and
    (3) Directors (in the case of a corporation).
    (d) In determining the number of the employees of an employer, each 
full-time employee is counted as one employee and each part-time 
employee is counted as a fraction of an employee, determined in 
accordance with paragraph (e) of this Q&A-5.
    (e) An employer may determine the number of its employees on a daily 
basis or a pay period basis. The basis used by the employer must be used 
with respect to all employees of the employer and must be used for the 
entire year for which the number of employees is being determined. If an 
employer determines the number of its employees on a daily basis, it 
must determine the actual number of full-time employees on each typical 
business day and the actual number of part-time employees and the hours 
worked by each of those part-time employees on each typical business 
day. Each full-time employee counts as one employee on each typical 
business day and each part-time employee counts as a fraction, with the 
numerator of the fraction equal to the number of hours worked by that 
employee and the denominator equal to the number of hours that must be 
worked on a typical business day in order to be considered a full-time 
employee. If an employer determines the number of its employees on a pay 
period basis, it must determine the actual number of full-time employees 
employed during that pay period and the actual number of part-time 
employees employed and the hours worked by each of those part-time 
employees during the pay period. For each day of that pay period, each 
full-time employee counts as one employee and each part-time employee 
counts as a fraction, with the numerator of the fraction equal to the 
number of hours worked by that employee during that pay period and the 
denominator equal to the number of hours that must be worked during that 
pay period in order to be considered a full-time employee. The 
determination of the number of hours required to be considered a full-
time employee is based upon the employer's employment practices, except 
that in no event may the hours required to be considered a full-time 
employee exceed eight hours for any day or 40 hours for any week.

[[Page 366]]

    (f) In the case of a multiemployer plan, the determination of 
whether the plan is a small-employer plan on any particular date depends 
on which employers are contributing to the plan on that date and on the 
workforce of those employers during the preceding calendar year. If a 
plan that is otherwise subject to COBRA ceases to be a small-employer 
plan because of the addition during a calendar year of an employer that 
did not normally employ fewer than 20 employees on a typical business 
day during the preceding calendar year, the plan ceases to be excepted 
from COBRA immediately upon the addition of the new employer. In 
contrast, if the plan ceases to be a small-employer plan by reason of an 
increase during a calendar year in the workforce of an employer 
contributing to the plan, the plan ceases to be excepted from COBRA on 
the January 1 immediately following the calendar year in which the 
employer's workforce increased.
    (g) A small-employer plan is generally excepted from COBRA. If, 
however, a plan that has been subject to COBRA (that is, was not a 
small-employer plan) becomes a small-employer plan, the plan remains 
subject to COBRA for qualifying events that occurred during the period 
when the plan was subject to COBRA. The rules of this paragraph (g) are 
illustrated by the following examples:

    Example 1. An employer maintains a group health plan. The employer 
employed 20 employees on more than 50 percent of its working days during 
2001, and consequently the plan is not excepted from COBRA during 2002. 
Employee E resigns and does not work for the employer after January 31, 
2002. Under the terms of the plan, E is no longer eligible for coverage 
upon the effective date of the resignation, that is, February 1, 2002. 
The employer does not hire a replacement for E. E timely elects and pays 
for COBRA continuation coverage. The employer employs 19 employees for 
the remainder of 2002, and consequently the plan is not subject to COBRA 
in 2003. The plan must nevertheless continue to make COBRA continuation 
coverage available to E during 2003 until the obligation to make COBRA 
continuation coverage available ceases under the rules of Sec.  
54.4980B-7. The obligation could continue until August 1, 2003, the date 
that is 18 months after the date of E's qualifying event, or longer if E 
is eligible for a disability extension.
    Example 2. The facts are the same as in Example 1. The employer 
continues to employ 19 employees throughout 2003 and 2004 and 
consequently the plan continues to be excepted from COBRA during 2004 
and 2005. Spouse S is covered under the plan because S is married to one 
of the employer's employees. On April 1, 2002, S is divorced from that 
employee and ceases to be eligible for coverage under the plan. The plan 
is subject to COBRA during 2002 because X normally employed 20 employees 
during 2001. S timely notifies the plan administrator of the divorce and 
timely elects and pays for COBRA continuation coverage. Even though the 
plan is generally excepted from COBRA during 2003, 2004, and 2005, it 
must nevertheless continue to make COBRA continuation coverage available 
to S during those years until the obligation to make COBRA continuation 
coverage available ceases under the rules of Sec.  54.4980B-7. The 
obligation could continue until April 1, 2005, the date that is 36 
months after the date of S's qualifying event.
    Example 3. The facts are the same as in Example 2. C is a dependent 
child of one of the employer's employees and is covered under the plan. 
A dependent child is no longer eligible for coverage under the plan upon 
the attainment of age 23. C attains age 23 on November 16, 2005. The 
plan is excepted from COBRA with respect to C during 2005 because the 
employer normally employed fewer than 20 employees during 2004. 
Consequently, the plan is not obligated to make COBRA continuation 
coverage available to C (and would not be obligated to make COBRA 
continuation coverage available to C even if the plan later became 
subject to COBRA again).

    Q-6: How is the number of group health plans that an employer or 
employee organization maintains determined?
    A-6: (a) The rules of this Q&A-6 apply in determining the number of 
group health plans that an employer or employee organization maintains. 
All references elsewhere in Sec. Sec.  54.4980B-1 through 54.4980B-10 to 
a group health plan are references to a group health plan as determined 
under Q&A-1 of this section and this Q&A-6. Except as provided in 
paragraph (b) or (c) of this Q&A-6, all health care benefits, other than 
benefits for qualified long-term care services (as defined in section 
7702B(c)), provided by a corporation, partnership, or other entity or 
trade or business, or by an employee organization, constitute one group 
health plan, unless--

[[Page 367]]

    (1) It is clear from the instruments governing an arrangement or 
arrangements to provide health care benefits that the benefits are being 
provided under separate plans; and
    (2) The arrangement or arrangements are operated pursuant to such 
instruments as separate plans.
    (b) A multiemployer plan and a nonmultiemployer plan are always 
separate plans.
    (c) If a principal purpose of establishing separate plans is to 
evade any requirement of law, then the separate plans will be considered 
a single plan to the extent necessary to prevent the evasion.
    (d) The significance of treating an arrangement as two or more 
separate group health plans is illustrated by the following examples:

    Example 1. (i) Employer X maintains a single group health plan, 
which provides major medical and prescription drug benefits. Employer Y 
maintains two group health plans; one provides major medical benefits 
and the other provides prescription drug benefits.
    (ii) X's plan could comply with the COBRA continuation coverage 
requirements by giving a qualified beneficiary experiencing a qualifying 
event with respect to X's plan the choice of either electing both major 
medical and prescription drug benefits or not receiving any COBRA 
continuation coverage under X's plan. By contrast, for Y's plans to 
comply with the COBRA continuation coverage requirements, a qualified 
beneficiary experiencing a qualifying event with respect to each of Y's 
plans must be given the choice of electing COBRA continuation coverage 
under either the major medical plan or the prescription drug plan or 
both.
    Example 2. If a joint board of trustees administers one 
multiemployer plan, that plan will fail to qualify for the small-
employer plan exception if any one of the employers whose employees are 
covered under the plan normally employed 20 or more employees during the 
preceding calendar year. However, if the joint board of trustees 
maintains two or more multiemployer plans, then the exception would be 
available with respect to each of those plans in which each of the 
employers whose employees are covered under the plan normally employed 
fewer than 20 employees during the preceding calendar year.

    Q-7: What is the plan year?
    A-7: (a) The plan year is the year that is designated as the plan 
year in the plan documents.
    (b) If the plan documents do not designate a plan year (or if there 
are no plan documents), then the plan year is determined in accordance 
with this paragraph (b).
    (1) The plan year is the deductible/limit year used under the plan.
    (2) If the plan does not impose deductibles or limits on an annual 
basis, then the plan year is the policy year.
    (3) If the plan does not impose deductibles or limits on an annual 
basis, and either the plan is not insured or the insurance policy is not 
renewed on an annual basis, then the plan year is the employer's taxable 
year.
    (4) In any other case, the plan year is the calendar year.
    Q-8: How do the COBRA continuation coverage requirements apply to 
cafeteria plans and other flexible benefit arrangements?
    A-8: (a)(1) The provision of health care benefits does not fail to 
be a group health plan merely because those benefits are offered under a 
cafeteria plan (as defined in section 125) or under any other 
arrangement under which an employee is offered a choice between health 
care benefits and other taxable or nontaxable benefits. However, the 
COBRA continuation coverage requirements apply only to the type and 
level of coverage under the cafeteria plan or other flexible benefit 
arrangement that a qualified beneficiary is actually receiving on the 
day before the qualifying event. See paragraphs (b) through (e) of this 
Q&A-8 for rules limiting the obligations of certain health flexible 
spending arrangements.
    (2) The rules of this paragraph (a) are illustrated by the following 
example:

    Example: (i) Under the terms of a cafeteria plan, employees can 
choose among life insurance coverage, membership in a health maintenance 
organization (HMO), coverage for medical expenses under an indemnity 
arrangement, and cash compensation. Of these available choices, the HMO 
and the indemnity arrangement are the arrangements providing health 
care. The instruments governing the HMO and indemnity arrangements 
indicate that they are separate group health plans. These group health 
plans are subject to COBRA. The employer does not provide any group 
health plan outside of the

[[Page 368]]

cafeteria plan. B and C are unmarried employees. B has chosen the life 
insurance coverage, and C has chosen the indemnity arrangement.
    (ii) B does not have to be offered COBRA continuation coverage upon 
terminating employment, nor is a subsequent open enrollment period for 
active employees required to be made available to B. However, if C 
terminates employment and the termination constitutes a qualifying 
event, C must be offered an opportunity to elect COBRA continuation 
coverage under the indemnity arrangement. If C makes such an election 
and an open enrollment period for active employees occurs while C is 
still receiving the COBRA continuation coverage, C must be offered the 
opportunity to switch from the indemnity arrangement to the HMO (but not 
to the life insurance coverage because that does not constitute coverage 
provided under a group health plan).

    (b) If a health flexible spending arrangement (health FSA), within 
the meaning of section 106(c)(2), satisfies the two conditions in 
paragraph (c) of this Q&A-8 for a plan year, the obligation of the 
health FSA to make COBRA continuation coverage available to a qualified 
beneficiary who experiences a qualifying event in that plan year is 
limited in accordance with paragraphs (d) and (e) of this Q&A-8, as 
illustrated by an example in paragraph (f) of this Q&A-8. To the extent 
that a health FSA is obligated to make COBRA continuation coverage 
available to a qualified beneficiary, the health FSA must comply with 
all the applicable rules of Sec. Sec.  54.4980B-1 through 54.4980B-10, 
including the rules of Q&A-3 in Sec.  54.4980B-5 (relating to limits).
    (c) The conditions of this paragraph (c) are satisfied if--
    (1) Benefits provided under the health FSA are excepted benefits 
within the meaning of sections 9831 and 9832; and
    (2) The maximum amount that the health FSA can require to be paid 
for a year of COBRA continuation coverage under Q&A-1 of Sec.  54.4980B-
8 equals or exceeds the maximum benefit available under the health FSA 
for the year.
    (d) If the conditions in paragraph (c) of this Q&A-8 are satisfied 
for a plan year, then the health FSA is not obligated to make COBRA 
continuation coverage available for any subsequent plan year to any 
qualified beneficiary who experiences a qualifying event during that 
plan year.
    (e) If the conditions in paragraph (c) of this Q&A-8 are satisfied 
for a plan year, the health FSA is not obligated to make COBRA 
continuation coverage available for that plan year to any qualified 
beneficiary who experiences a qualifying event during that plan year 
unless, as of the date of the qualifying event, the qualified 
beneficiary can become entitled to receive during the remainder of the 
plan year a benefit that exceeds the maximum amount that the health FSA 
is permitted to require to be paid for COBRA continuation coverage for 
the remainder of the plan year. In determining the amount of the benefit 
that a qualified beneficiary can become entitled to receive during the 
remainder of the plan year, the health FSA may deduct from the maximum 
benefit available to that qualified beneficiary for the year (based on 
the election made under the health FSA for that qualified beneficiary 
before the date of the qualifying event) any reimbursable claims 
submitted to the health FSA for that plan year before the date of the 
qualifying event.
    (f) The rules of paragraphs (b), (c), (d), and (e) of this Q&A-8 are 
illustrated by the following example:

    Example. (i) An employer maintains a group health plan providing 
major medical benefits and a group health plan that is a health FSA, and 
the plan year for each plan is the calendar year. Both the plan 
providing major medical benefits and the health FSA are subject to 
COBRA. Under the health FSA, during an open season before the beginning 
of each calendar year, employees can elect to reduce their compensation 
during the upcoming year by up to $1200 per year and have that same 
amount contributed to a health flexible spending account. The employer 
contributes an additional amount to the account equal to the employee's 
salary reduction election for the year. Thus, the maximum amount 
available to an employee under the health FSA for a year is two times 
the amount of the employee's salary reduction election for the year. 
This amount may be paid to the employee during the year as reimbursement 
for health expenses not covered by the employer's major medical plan 
(such as deductibles, copayments, prescription drugs, or eyeglasses). 
The employer determined, in accordance with section 4980B(f)(4), that a 
reasonable estimate of the cost of providing coverage for similarly 
situated nonCOBRA beneficiaries for 2002 under this health FSA is equal 
to two times their salary reduction election for 2002 and, thus,

[[Page 369]]

that two times the salary reduction election is the applicable premium 
for 2002.
    (ii) Because the employer provides major medical benefits under 
another group health plan, and because the maximum benefit that any 
employee can receive under the health FSA is not greater than two times 
the employee's salary reduction election for the plan year, benefits 
under this health FSA are excepted benefits within the meaning of 
sections 9831 and 9832. Thus, the first condition of paragraph (c) of 
this Q&A-8 is satisfied for the year. The maximum amount that a plan can 
require to be paid for coverage (outside of coverage required to be made 
available due to a disability extension) under Q&A-1 of Sec.  54.4980B-8 
is 102 percent of the applicable premium. Thus, the maximum amount that 
the health FSA can require to be paid for coverage for the 2002 plan 
year is 2.04 times the employee's salary reduction election for the plan 
year. Because the maximum benefit available under the health FSA is 2.0 
times the employee's salary reduction election for the year, the maximum 
benefit available under the health FSA for the year is less than the 
maximum amount that the health FSA can require to be paid for coverage 
for the year. Thus, the second condition in paragraph (c) of this Q&A-8 
is also satisfied for the 2002 plan year. Because both conditions in 
paragraph (c) of this Q&A-8 are satisfied for 2002, with respect to any 
qualifying event occurring in 2002, the health FSA is not obligated to 
make COBRA continuation coverage available for any year after 2002.
    (iii) Whether the health FSA is obligated to make COBRA continuation 
coverage available in 2002 to a qualified beneficiary with respect to a 
qualifying event that occurs in 2002 depends upon the maximum benefit 
that would be available to the qualified beneficiary under COBRA 
continuation coverage for that plan year. Case 1: Employee B has elected 
to reduce B's salary by $1200 for 2002. Thus, the maximum benefit that B 
can become entitled to receive under the health FSA during the entire 
year is $2400. B experiences a qualifying event that is the termination 
of B's employment on May 31, 2002. As of that date, B had submitted $300 
of reimbursable expenses under the health FSA. Thus, the maximum benefit 
that B could become entitled to receive for the remainder of 2002 is 
$2100. The maximum amount that the health FSA can require to be paid for 
COBRA continuation coverage for the remainder of 2002 is 102 percent 
times \1/12\ of the applicable premium for 2002 times the number of 
months remaining in 2002 after the date of the qualifying event. In B's 
case, the maximum amount that the health FSA can require to be paid for 
COBRA continuation coverage for 2002 is 2.04 times $1200, or $2448. One-
twelfth of $2448 is $204. Because seven months remain in the plan year, 
the maximum amount that the health FSA can require to be paid for B's 
coverage for the remainder of the year is seven times $204, or $1428. 
Because $1428 is less than the maximum benefit that B could become 
entitled to receive for the remainder of the year ($2100), the health 
FSA is required to make COBRA continuation coverage available to B for 
the remainder of 2002 (but not for any subsequent year).
    (iv) Case 2: The facts are the same as in Case 1 except that B had 
submitted $1000 of reimbursable expenses as of the date of the 
qualifying event. In that case, the maximum benefit available to B for 
the remainder of the year would be $1400 instead of $2100. Because the 
maximum amount that the health FSA can require to be paid for B's 
coverage is $1428, and because the $1400 maximum benefit for the 
remainder of the year does not exceed $1428, the health FSA is not 
obligated to make COBRA continuation coverage available to B in 2002 (or 
any later year). (Of course, the administrator of the health FSA is 
permitted to make COBRA continuation coverage available to every 
qualified beneficiary in the year that the qualified beneficiary's 
qualifying event occurs in order to avoid having to determine the 
maximum benefit available for each qualified beneficiary for the 
remainder of the plan year.)

    Q-9: What is the effect of a group health plan's failure to comply 
with the requirements of section 4980B(f)?
    A-9: Under section 4980B(a), if a group health plan subject to COBRA 
fails to comply with section 4980B(f), an excise tax is imposed. 
Moreover, non-tax remedies may be available if the plan fails to comply 
with the parallel requirements in ERISA, which are administered by the 
Department of Labor.
    Q-10: Who is liable for the excise tax if a group health plan fails 
to comply with the requirements of section 4980B(f)?
    A-10: (a) In general, the excise tax is imposed on the employer 
maintaining the plan, except that in the case of a multiemployer plan 
(see Q&A-3 of this section for a definition of multiemployer plan) the 
excise tax is imposed on the plan.
    (b) In certain circumstances, the excise tax is also imposed on a 
person involved with the provision of benefits under the plan (other 
than in the capacity of an employee), such as an insurer providing 
benefits under the plan or a third party administrator administering 
claims under the plan. In general, such a person will be liable for the

[[Page 370]]

excise tax if the person assumes, under a legally enforceable written 
agreement, the responsibility for performing the act to which the 
failure to comply with the COBRA continuation coverage requirements 
relates. Such a person will be liable for the excise tax notwithstanding 
the absence of a written agreement assuming responsibility for complying 
with COBRA if the person provides coverage under the plan to a similarly 
situated nonCOBRA beneficiary (see Q&A-3 of Sec.  54.4980B-3 for a 
definition of similarly situated nonCOBRA beneficiaries) and the 
employer or plan administrator submits a written request to the person 
to provide to a qualified beneficiary the same coverage that the person 
provides to the similarly situated nonCOBRA beneficiary. If the person 
providing coverage under the plan to a similarly situated nonCOBRA 
beneficiary is the plan administrator and the qualifying event is a 
divorce or legal separation or a dependent child's ceasing to be covered 
under the generally applicable requirements of the plan, the plan 
administrator will also be liable for the excise tax if the qualified 
beneficiary submits a written request for coverage.
    Q-11: If a person is liable for the excise tax under section 4980B, 
what form must the person file and what is the due date for the filing 
and payment of the excise tax?
    A-11: (a) In general. See Sec. Sec.  54.6011-2 and 54.6151-1.
    (b) Due date for filing of return by employers or other persons 
responsible for benefits under a group health plan. See Sec.  54.6071-
1(a)(1).
    (c) Due date for filing of return by multiemployer plans. See Sec.  
54.6071-1(a)(2).
    (d) Effective/applicability date. In the case of an employer or 
other person mentioned in paragraph (b) of this Q & A-11, the rules in 
this Q & A-11 are effective for taxable years beginning on or after 
January 1, 2010. In the case of a plan mentioned in paragraph (c) of 
this Q & A-11, the rules in this Q & A-11 are effective for plan years 
beginning on or after January 1, 2010.

[T.D. 8812, 64 FR 5174, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1849, Jan. 10, 2001; T.D. 9457, 74 FR 45997, Sept. 8, 2009]



Sec.  54.4980B-3  Qualified beneficiaries.

    The determination of who is a qualified beneficiary, an employee, or 
a covered employee, and of who are the similarly situated nonCOBRA 
beneficiaries is addressed in the following questions-and-answers:
    Q-1: Who is a qualified beneficiary?
    A-1: (a)(1) Except as set forth in paragraphs (c) through (f) of 
this Q&A-1, a qualified beneficiary is--
    (i) Any individual who, on the day before a qualifying event, is 
covered under a group health plan by virtue of being on that day either 
a covered employee, the spouse of a covered employee, or a dependent 
child of the covered employee; or
    (ii) Any child who is born to or placed for adoption with a covered 
employee during a period of COBRA continuation coverage.
    (2) In the case of a qualifying event that is the bankruptcy of the 
employer, a covered employee who had retired on or before the date of 
substantial elimination of group health plan coverage is also a 
qualified beneficiary, as is any spouse, surviving spouse, or dependent 
child of such a covered employee if, on the day before the bankruptcy 
qualifying event, the spouse, surviving spouse, or dependent child is a 
beneficiary under the plan.
    (3) In general, an individual (other than a child who is born to or 
placed for adoption with a covered employee during a period of COBRA 
continuation coverage) who is not covered under a plan on the day before 
the qualifying event cannot be a qualified beneficiary with respect to 
that qualifying event, and the reason for the individual's lack of 
actual coverage (such as the individual's having declined participation 
in the plan or failed to satisfy the plan's conditions for 
participation) is not relevant for this purpose. However, if the 
individual is denied or not offered coverage under a plan under 
circumstances in which the denial or failure to offer constitutes a 
violation of applicable law (such as the Americans with Disabilities 
Act, 42 U.S.C. 12101-12213, the special enrollment rules of section 
9801, or the requirements of section 9802 prohibiting discrimination in 
eligibility to enroll in a group health plan based on health status),

[[Page 371]]

then, for purposes of Sec. Sec.  54.4980B-1 through 54.4980B-10, the 
individual will be considered to have had the coverage that was 
wrongfully denied or not offered.
    (4) Paragraph (b) of this Q&A-1 describes how certain family members 
are not qualified beneficiaries even if they become covered under the 
plan; paragraphs (c), (d), and (e) of this Q&A-1 place limits on the 
general rules of this paragraph (a) concerning who is a qualified 
beneficiary; paragraph (f) of this Q&A-1 provides when an individual who 
has been a qualified beneficiary ceases to be a qualified beneficiary; 
paragraph (g) of this Q&A-1 defines placed for adoption; and paragraph 
(h) of this Q&A-1 contains examples.
    (b) In contrast to a child who is born to or placed for adoption 
with a covered employee during a period of COBRA continuation coverage, 
an individual who marries any qualified beneficiary on or after the date 
of the qualifying event and a newborn or adopted child (other than one 
born to or placed for adoption with a covered employee) are not 
qualified beneficiaries by virtue of the marriage, birth, or placement 
for adoption or by virtue of the individual's status as the spouse or 
the child's status as a dependent of the qualified beneficiary. These 
new family members do not themselves become qualified beneficiaries even 
if they become covered under the plan. (For situations in which a plan 
is required to make coverage available to new family members of a 
qualified beneficiary who is receiving COBRA continuation coverage, see 
Q&A-5 of Sec.  54.4980B-5, paragraph (c) in Q&A-4 of Sec.  54.4980B-5, 
and section 9801(f)(2).)
    (c) An individual is not a qualified beneficiary if, on the day 
before the qualifying event referred to in paragraph (a) of this Q&A-1, 
the individual is covered under the group health plan by reason of 
another individual's election of COBRA continuation coverage and is not 
already a qualified beneficiary by reason of a prior qualifying event.
    (d) A covered employee can be a qualified beneficiary only in 
connection with a qualifying event that is the termination, or reduction 
of hours, of the covered employee's employment, or that is the 
bankruptcy of the employer.
    (e) An individual is not a qualified beneficiary if the individual's 
status as a covered employee is attributable to a period in which the 
individual was a nonresident alien who received from the individual's 
employer no earned income (within the meaning of section 911(d)(2)) that 
constituted income from sources within the United States (within the 
meaning of section 861(a)(3)). If, pursuant to the preceding sentence, 
an individual is not a qualified beneficiary, then a spouse or dependent 
child of the individual is not considered a qualified beneficiary by 
virtue of the relationship to the individual.
    (f) A qualified beneficiary who does not elect COBRA continuation 
coverage in connection with a qualifying event ceases to be a qualified 
beneficiary at the end of the election period (see Q&A-1 of Sec.  
54.4980B-6). Thus, for example, if such a former qualified beneficiary 
is later added to a covered employee's coverage (e.g., during an open 
enrollment period) and then another qualifying event occurs with respect 
to the covered employee, the former qualified beneficiary does not 
become a qualified beneficiary by reason of the second qualifying event. 
If a covered employee who is a qualified beneficiary does not elect 
COBRA continuation coverage during the election period, then any child 
born to or placed for adoption with the covered employee on or after the 
date of the qualifying event is not a qualified beneficiary. Once a 
plan's obligation to make COBRA continuation coverage available to an 
individual who has been a qualified beneficiary ceases under the rules 
of Sec.  54.4980B-7, the individual ceases to be a qualified 
beneficiary.
    (g) For purposes of Sec. Sec.  54.4980B-1 through 54.4980B-10, 
placement for adoption or being placed for adoption means the assumption 
and retention by the covered employee of a legal obligation for total or 
partial support of a child in anticipation of the adoption of the child. 
The child's placement for adoption with the covered employee terminates 
upon the termination of the legal obligation for total or partial 
support. A child who is immediately adopted by

[[Page 372]]

the covered employee without a preceding placement for adoption is 
considered to be placed for adoption on the date of the adoption.
    (h) The rules of this Q&A-1 are illustrated by the following 
examples:

    Example 1. (i) B is a single employee who voluntarily terminates 
employment and elects COBRA continuation coverage under a group health 
plan. To comply with the requirements of section 9801(f), the plan 
permits a covered employee who marries to have her or his spouse covered 
under the plan. One month after electing COBRA continuation coverage, B 
marries and chooses to have B's spouse covered under the plan.
    (ii) B's spouse is not a qualified beneficiary. Thus, if B dies 
during the period of COBRA continuation coverage, the plan does not have 
to offer B's surviving spouse an opportunity to elect COBRA continuation 
coverage.
    Example 2. (i) C is a married employee who terminates employment. C 
elects COBRA continuation coverage for C but not C's spouse, and C's 
spouse declines to elect such coverage. C's spouse thus ceases to be a 
qualified beneficiary. At the next open enrollment period, C adds the 
spouse as a beneficiary under the plan.
    (ii) The addition of the spouse during the open enrollment period 
does not make the spouse a qualified beneficiary. The plan thus will not 
have to offer the spouse an opportunity to elect COBRA continuation 
coverage upon a later divorce from or death of C.
    Example 3. (i) Under the terms of a group health plan, a covered 
employee's child, upon attaining age 19, ceases to be a dependent 
eligible for coverage.
    (ii) At that time, the child must be offered an opportunity to elect 
COBRA continuation coverage. If the child elects COBRA continuation 
coverage, the child marries during the period of the COBRA continuation 
coverage, and the child's spouse becomes covered under the group health 
plan, the child's spouse is not a qualified beneficiary.
    Example 4. (i) D is a single employee who, upon retirement, is given 
the opportunity to elect COBRA continuation coverage but declines it in 
favor of an alternative offer of 12 months of employer-paid retiree 
health benefits. At the end of the election period, D ceases to be a 
qualified beneficiary and will not have to be given another opportunity 
to elect COBRA continuation coverage (at the end of those 12 months or 
at any other time). D marries E during the period of retiree health 
coverage and, under the terms of that coverage, E becomes covered under 
the plan.
    (ii) If a divorce from or death of D will result in E's losing 
coverage, E will be a qualified beneficiary because E's coverage under 
the plan on the day before the qualifying event (that is, the divorce or 
death) will have been by reason of D's acceptance of 12 months of 
employer-paid coverage after the prior qualifying event (D's retirement) 
rather than by reason of an election of COBRA continuation coverage.
    Example 5. (i) The facts are the same as in Example 4, except that, 
under the terms of the plan, the divorce or death does not cause E to 
lose coverage so that E continues to be covered for the balance of the 
original 12-month period.
    (ii) E does not have to be allowed to elect COBRA continuation 
coverage because the loss of coverage at the end of the 12-month period 
is not caused by the divorce or death, and thus the divorce or death 
does not constitute a qualifying event. See Q&A-1 of Sec.  54.4980B-4.

    Q-2: Who is an employee and who is a covered employee?
    A-2: (a)(1) For purposes of Sec. Sec.  54.4980B-1 through 54.4980B-
10 (except for purposes of Q&A-5 in Sec.  54.4980B-2, relating to the 
exception from COBRA for plans maintained by an employer with fewer than 
20 employees), an employee is any individual who is eligible to be 
covered under a group health plan by virtue of the performance of 
services for the employer maintaining the plan or by virtue of 
membership in the employee organization maintaining the plan. Thus, for 
purposes of Sec. Sec.  54.4980B-1 through 54.4980B-10 (except for 
purposes of Q&A-5 in Sec.  54.4980B-2), the following individuals are 
employees if their relationship to the employer maintaining the plan 
makes them eligible to be covered under the plan--
    (i) Self-employed individuals (within the meaning of section 
401(c)(1));
    (ii) Independent contractors (and their employees and independent 
contractors); and
    (iii) Directors (in the case of a corporation).
    (2) Similarly, whenever reference is made in Sec. Sec.  54.4980B-1 
through 54.4980B-10 (except in Q&A-5 of Sec.  54.4980B-2) to an 
employment relationship (such as by referring to the termination of 
employment of an employee or to an employee's being employed by an 
employer), the reference includes the relationship of those individuals 
who are employees within the meaning of this paragraph (a). See 
paragraph (c) in Q&A-5 of Sec.  54.4980B-2 for a narrower

[[Page 373]]

meaning of employee solely for purposes of Q&A-5 of Sec.  54.4980B-2.
    (b) For purposes of Sec. Sec.  54.4980B-1 through 54.4980B-10, a 
covered employee is any individual who is (or was) provided coverage 
under a group health plan (other than a plan that is excepted from COBRA 
on the date of the qualifying event; see Q&A-4 of Sec.  54.4980B-2) by 
virtue of being or having been an employee. For example, a retiree or 
former employee who is covered by a group health plan is a covered 
employee if the coverage results in whole or in part from her or his 
previous employment. An employee (or former employee) who is merely 
eligible for coverage under a group health plan is generally not a 
covered employee if the employee (or former employee) is not actually 
covered under the plan. In general, the reason for the employee's (or 
former employee's) lack of actual coverage (such as having declined 
participation in the plan or having failed to satisfy the plan's 
conditions for participation) is not relevant for this purpose. However, 
if the employee (or former employee) is denied or not offered coverage 
under circumstances in which the denial or failure to offer constitutes 
a violation of applicable law (such as the Americans with Disabilities 
Act, 42 U.S.C. 12101 through 12213, the special enrollment rules of 
section 9801, or the requirements of section 9802 prohibiting 
discrimination in eligibility to enroll in a group health plan based on 
health status), then, for purposes of Sec. Sec.  54.4980B-1 through 
54.4980B-10, the employee (or former employee) will be considered to 
have had the coverage that was wrongfully denied or not offered.
    Q-3: Who are the similarly situated nonCOBRA beneficiaries?
    A-3: For purposes of Sec. Sec.  54.4980B-1 through 54.4980B-10, 
similarly situated nonCOBRA beneficiaries means the group of covered 
employees, spouses of covered employees, or dependent children of 
covered employees receiving coverage under a group health plan 
maintained by the employer or employee organization who are receiving 
that coverage for a reason other than the rights provided under the 
COBRA continuation coverage requirements and who, based on all of the 
facts and circumstances, are most similarly situated to the situation of 
the qualified beneficiary immediately before the qualifying event.

[T.D. 8812, 64 FR 5176, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1852, Jan. 10, 2001]



Sec.  54.4980B-4  Qualifying events.

    The determination of what constitutes a qualifying event is 
addressed in the following questions and answers:
    Q-1: What is a qualifying event?
    A-1: (a) A qualifying event is an event that satisfies paragraphs 
(b), (c), and (d) of this Q&A-1. Paragraph (e) of this Q&A-1 further 
explains a reduction of hours of employment, paragraph (f) of this Q&A-1 
describes the treatment of children born to or placed for adoption with 
a covered employee during a period of COBRA continuation coverage, and 
paragraph (g) of this Q&A-1 contains examples. See Q&A-1 through Q&A-3 
of Sec.  54.4980B-10 for special rules in the case of leave taken under 
the Family and Medical Leave Act of 1993 (29 U.S.C. 2601-2619).
    (b) An event satisfies this paragraph (b) if the event is any of the 
following--
    (1) The death of a covered employee;
    (2) The termination (other than by reason of the employee's gross 
misconduct), or reduction of hours, of a covered employee's employment;
    (3) The divorce or legal separation of a covered employee from the 
employee's spouse;
    (4) A covered employee's becoming entitled to Medicare benefits 
under title XVIII of the Social Security Act (42 U.S.C. 1395-1395ggg);
    (5) A dependent child's ceasing to be a dependent child of a covered 
employee under the generally applicable requirements of the plan; or
    (6) A proceeding in bankruptcy under title 11 of the United States 
Code with respect to an employer from whose employment a covered 
employee retired at any time.
    (c) An event satisfies this paragraph (c) if, under the terms of the 
group health plan, the event causes the covered employee, or the spouse 
or a dependent child of the covered employee, to lose coverage under the 
plan. For this purpose, to lose coverage means to cease to be covered 
under the same

[[Page 374]]

terms and conditions as in effect immediately before the qualifying 
event. Any increase in the premium or contribution that must be paid by 
a covered employee (or the spouse or dependent child of a covered 
employee) for coverage under a group health plan that results from the 
occurrence of one of the events listed in paragraph (b) of this Q&A-1 is 
a loss of coverage. In the case of an event that is the bankruptcy of 
the employer, lose coverage also means any substantial elimination of 
coverage under the plan, occurring within 12 months before or after the 
date the bankruptcy proceeding commences, for a covered employee who had 
retired on or before the date of the substantial elimination of group 
health plan coverage or for any spouse, surviving spouse, or dependent 
child of such a covered employee if, on the day before the bankruptcy 
qualifying event, the spouse, surviving spouse, or dependent child is a 
beneficiary under the plan. For purposes of this paragraph (c), a loss 
of coverage need not occur immediately after the event, so long as the 
loss of coverage occurs before the end of the maximum coverage period 
(see Q&A-4 and Q&A-6 of Sec.  54.4980B-7). However, if neither the 
covered employee nor the spouse or a dependent child of the covered 
employee loses coverage before the end of what would be the maximum 
coverage period, the event does not satisfy this paragraph (c). If 
coverage is reduced or eliminated in anticipation of an event (for 
example, an employer's eliminating an employee's coverage in 
anticipation of the termination of the employee's employment, or an 
employee's eliminating the coverage of the employee's spouse in 
anticipation of a divorce or legal separation), the reduction or 
elimination is disregarded in determining whether the event causes a 
loss of coverage.
    (d) An event satisfies this paragraph (d) if it occurs while the 
plan is subject to COBRA. Thus, an event will not satisfy this paragraph 
(d) if it occurs while the plan is excepted from COBRA (see Q&A-4 of 
Sec.  54.4980B-2). Even if the plan later becomes subject to COBRA, it 
is not required to make COBRA continuation coverage available to anyone 
whose coverage ends as a result of an event during a year in which the 
plan is excepted from COBRA. For example, if a group health plan is 
excepted from COBRA as a small-employer plan during the year 2001 (see 
Q&A-5 of Sec.  54.4980B-2) and an employee terminates employment on 
December 31, 2001, the termination is not a qualifying event and the 
plan is not required to permit the employee to elect COBRA continuation 
coverage. This is the case even if the plan ceases to be a small-
employer plan as of January 1, 2002. Also, the same result will follow 
even if the employee is given three months of coverage beyond December 
31 (that is, through March of 2002), because there will be no qualifying 
event as of the termination of coverage in March. However, if the 
employee's spouse is initially provided with the three-month coverage 
through March 2002, but the spouse divorces the employee before the end 
of the three months and loses coverage as a result of the divorce, the 
divorce will constitute a qualifying event during 2002 and so entitle 
the spouse to elect COBRA continuation coverage. See Q&A-7 of Sec.  
54.4980B-7 regarding the maximum coverage period in such a case.
    (e) A reduction of hours of a covered employee's employment occurs 
whenever there is a decrease in the hours that a covered employee is 
required to work or actually works, but only if the decrease is not 
accompanied by an immediate termination of employment. This is true 
regardless of whether the covered employee continues to perform services 
following the reduction of hours of employment. For example, an absence 
from work due to disability, a temporary layoff, or any other reason 
(other than due to leave that is FMLA leave; see Sec.  54.4980B-10) is a 
reduction of hours of a covered employee's employment if there is not an 
immediate termination of employment. If a group health plan measures 
eligibility for the coverage of employees by the number of hours worked 
in a given time period, such as the preceding month or quarter, and an 
employee covered under the plan fails to work the minimum number of 
hours during that time period, the failure to work the minimum number of 
required hours is a reduction of

[[Page 375]]

hours of that covered employee's employment.
    (f) The qualifying event of a qualified beneficiary who is a child 
born to or placed for adoption with a covered employee during a period 
of COBRA continuation coverage is the qualifying event giving rise to 
the period of COBRA continuation coverage during which the child is born 
or placed for adoption. If a second qualifying event has occurred before 
the child is born or placed for adoption (such as the death of the 
covered employee), then the second qualifying event also applies to the 
newborn or adopted child. See Q&A-6 of Sec.  54.4980B-7.
    (g) The rules of this Q&A-1 are illustrated by the following 
examples, in each of which the group health plan is subject to COBRA:

    Example 1. (i) An employee who is covered by a group health plan 
terminates employment (other than by reason of the employee's gross 
misconduct) and, beginning with the day after the last day of 
employment, is given 3 months of employer-paid coverage under the same 
terms and conditions as before that date. At the end of the three 
months, the coverage terminates.
    (ii) The loss of coverage at the end of the three months results 
from the termination of employment and, thus, the termination of 
employment is a qualifying event.
    Example 2. (i) An employee who is covered by a group health plan 
retires (which is a termination of employment other than by reason of 
the employee's gross misconduct) and, upon retirement, is required to 
pay an increased amount for the same group health coverage that the 
employee had before retirement.
    (ii) The increase in the premium or contribution required for 
coverage is a loss of coverage under paragraph (c) of this Q&A-1 and, 
thus, the retirement is a qualifying event.
    Example 3. (i) An employee and the employee's spouse are covered 
under an employer's group health plan. The employee retires and is given 
identical coverage for life. However, the plan provides that the spousal 
coverage will not be continued beyond six months unless a higher premium 
for the spouse is paid to the plan.
    (ii) The requirement for the spouse to pay a higher premium at the 
end of the six months is a loss of coverage under paragraph (c) of this 
Q&A-1. Thus, the retirement is a qualifying event and the spouse must be 
given an opportunity to elect COBRA continuation coverage.
    Example 4. (i) F is a covered employee who is married to G, and both 
are covered under a group health plan maintained by F's employer. F and 
G are divorced. Under the terms of the plan, the divorce causes G to 
lose coverage. The divorce is a qualifying event, and G elects COBRA 
continuation coverage, remarries during the period of COBRA continuation 
coverage, and G's new spouse becomes covered under the plan. (See Q&A-5 
in Sec.  54.4980B-5, paragraph (c) in Q&A-4 of Sec.  54.4980B-5, and 
section 9801(f)(2).) G dies. Under the terms of the plan, the death 
causes G's new spouse to lose coverage under the plan.
    (ii) G's death is not a qualifying event because G is not a covered 
employee.
    Example 5. (i) An employer maintains a group health plan for both 
active employees and retired employees (and their families). The 
coverage for active employees and retired employees is identical, and 
the employer does not require retirees to pay more for coverage than 
active employees. The plan does not make COBRA continuation coverage 
available when an employee retires (and is not required to because the 
retired employee has not lost coverage under the plan). The employer 
amends the plan to eliminate coverage for retired employees effective 
January 1, 2002. On that date, several retired employees (and their 
spouses and dependent children) have been covered under the plan since 
their retirement for less than the maximum coverage period that would 
apply to them in connection with their retirement.
    (ii) The elimination of retiree coverage under these circumstances 
is a deferred loss of coverage for those retirees (and their spouses and 
dependent children) under paragraph (c) of this Q&A-1 and, thus, the 
retirement is a qualifying event. The plan must make COBRA continuation 
coverage available to them for the balance of the maximum coverage 
period that applies to them in connection with the retirement.

    Q-2: Are the facts surrounding a termination of employment (such as 
whether it was voluntary or involuntary) relevant in determining whether 
the termination of employment is a qualifying event?
    A-2: Apart from facts constituting gross misconduct, the facts 
surrounding the termination or reduction of hours are irrelevant in 
determining whether a qualifying event has occurred. Thus, it does not 
matter whether the employee voluntarily terminated or was discharged. 
For example, a strike or a lockout is a termination or reduction of 
hours that constitutes a qualifying event if the strike or lockout 
results in a loss of coverage as described in paragraph (c) of Q&A-1 of

[[Page 376]]

this section. Similarly, a layoff that results in such a loss of 
coverage is a qualifying event.

[T.D. 8812, 64 FR 5178, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1852, Jan. 10, 2001]



Sec.  54.4980B-5  COBRA continuation coverage.

    The following questions-and-answers address the requirements for 
coverage to constitute COBRA continuation coverage:
    Q-1: What is COBRA continuation coverage?
    A-1: (a) If a qualifying event occurs, each qualified beneficiary 
(other than a qualified beneficiary for whom the qualifying event will 
not result in any immediate or deferred loss of coverage) must be 
offered an opportunity to elect to receive the group health plan 
coverage that is provided to similarly situated nonCOBRA beneficiaries 
(ordinarily, the same coverage that the qualified beneficiary had on the 
day before the qualifying event). See Q&A-3 of Sec.  54.4980B-3 for the 
definition of similarly situated nonCOBRA beneficiaries. This coverage 
is COBRA continuation coverage. If coverage is modified for similarly 
situated nonCOBRA beneficiaries, then the coverage made available to 
qualified beneficiaries is modified in the same way. If the continuation 
coverage offered differs in any way from the coverage made available to 
similarly situated nonCOBRA beneficiaries, the coverage offered does not 
constitute COBRA continuation coverage and the group health plan is not 
in compliance with COBRA unless other coverage that does constitute 
COBRA continuation coverage is also offered. Any elimination or 
reduction of coverage in anticipation of an event described in paragraph 
(b) of Q&A-1 of Sec.  54.4980B-4 is disregarded for purposes of this 
Q&A-1 and for purposes of any other reference in Sec. Sec.  54.4980B-1 
through 54.4980B-10 to coverage in effect immediately before (or on the 
day before) a qualifying event. COBRA continuation coverage must not be 
conditioned upon, or discriminate on the basis of lack of, evidence of 
insurability.
    (b) In the case of a qualified beneficiary who is a child born to or 
placed for adoption with a covered employee during a period of COBRA 
continuation coverage, the child is generally entitled to elect 
immediately to have the same coverage that dependent children of active 
employees receive under the benefit packages under which the covered 
employee has coverage at the time of the birth or placement for 
adoption. Such a child would be entitled to elect coverage different 
from that elected by the covered employee during the next available open 
enrollment period under the plan. See Q&A-4 of this section.
    Q-2: What deductibles apply if COBRA continuation coverage is 
elected?
    A-2: (a) Qualified beneficiaries electing COBRA continuation 
coverage generally are subject to the same deductibles as similarly 
situated nonCOBRA beneficiaries. If a qualified beneficiary's COBRA 
continuation coverage begins before the end of a period prescribed for 
accumulating amounts toward deductibles, the qualified beneficiary must 
retain credit for expenses incurred toward those deductibles before the 
beginning of COBRA continuation coverage as though the qualifying event 
had not occurred. The specific application of this rule depends on the 
type of deductible, as set forth in paragraphs (b) through (d) of this 
Q&A-2. Special rules are set forth in paragraph (e) of this Q&A-2, and 
examples appear in paragraph (f) of this Q&A-2.
    (b) If a deductible is computed separately for each individual 
receiving coverage under the plan, each individual's remaining 
deductible amount (if any) on the date COBRA continuation coverage 
begins is equal to that individual's remaining deductible amount 
immediately before that date.
    (c) If a deductible is computed on a family basis, the remaining 
deductible for the family on the date that COBRA continuation coverage 
begins depends on the members of the family electing COBRA continuation 
coverage. In computing the family deductible that remains on the date 
COBRA continuation coverage begins, only the expenses of those family 
members receiving COBRA continuation coverage need be taken into 
account. If the qualifying event results in there being more than one 
family unit (for example, because of a divorce), the family deductible 
may be computed separately for each

[[Page 377]]

resulting family unit based on the members in each unit. These rules 
apply regardless of whether the plan provides that the family deductible 
is an alternative to individual deductibles or an additional 
requirement.
    (d) Deductibles that are not described in paragraph (b) or (c) of 
this Q&A-2 must be treated in a manner consistent with the principles 
set forth in those paragraphs.
    (e) If a deductible is computed on the basis of a covered employee's 
compensation instead of being a fixed dollar amount and the employee 
remains employed during the period of COBRA continuation coverage, the 
plan is permitted to choose whether to apply the deductible by treating 
the employee's compensation as continuing without change for the 
duration of the COBRA continuation coverage at the level that was used 
to compute the deductible in effect immediately before the COBRA 
continuation coverage began, or to apply the deductible by taking the 
employee's actual compensation into account. In applying a deductible 
that is computed on the basis of the covered employee's compensation 
instead of being a fixed dollar amount, for periods of COBRA 
continuation coverage in which the employee is not employed by the 
employer, the plan is required to compute the deductible by treating the 
employee's compensation as continuing without change for the duration of 
the COBRA continuation coverage either at the level that was used to 
compute the deductible in effect immediately before the COBRA 
continuation coverage began or at the level that was used to compute the 
deductible in effect immediately before the employee's employment was 
terminated.
    (f) The rules of this Q&A-2 are illustrated by the following 
examples; in each example, deductibles under the plan are determined on 
a calendar year basis:

    Example 1. (i) A group health plan applies a separate $100 annual 
deductible to each individual it covers. The plan provides that the 
spouse and dependent children of a covered employee will lose coverage 
on the last day of the month after the month of the covered employee's 
death. A covered employee dies on June 11, 2001. The spouse and the two 
dependent children elect COBRA continuation coverage, which will begin 
on August 1, 2001. As of July 31, 2001, the spouse has incurred $80 of 
covered expenses, the older child has incurred no covered expenses, and 
the younger one has incurred $120 of covered expenses (and therefore has 
already satisfied the deductible).
    (ii) At the beginning of COBRA continuation coverage on August 1, 
the spouse has a remaining deductible of $20, the older child still has 
the full $100 deductible, and the younger one has no further deductible.
    Example 2. (i) A group health plan applies a separate $200 annual 
deductible to each individual it covers, except that each family member 
is treated as having satisfied the individual deductible once the family 
has incurred $500 of covered expenses during the year. The plan provides 
that upon the divorce of a covered employee, coverage will end 
immediately for the employee's spouse and any children who do not remain 
in the employee's custody. A covered employee with four dependent 
children is divorced, the spouse obtains custody of the two oldest 
children, and the spouse and those children all elect COBRA continuation 
coverage to begin immediately. The family had accumulated $420 of 
covered expenses before the divorce, as follows: $70 by each parent, 
$200 by the oldest child, $80 by the youngest child, and none by the 
other two children.
    (ii) The resulting family consisting of the spouse and the two 
oldest children accumulated a total of $270 of covered expenses, and 
thus the remaining deductible for that family could be as high as $230 
(because the plan would not have to count the incurred expenses of the 
covered employee and the youngest child). The remaining deductible for 
the resulting family consisting of the covered employee and the two 
youngest children is not subject to the rules of this Q&A-2 because 
their coverage is not COBRA continuation coverage.
    Example 3. Each year a group health plan pays 70 percent of the cost 
of an individual's psychotherapy after that individual's first three 
visits during the year. A qualified beneficiary whose election of COBRA 
continuation coverage takes effect beginning August 1, 2001 and who has 
already made two visits as of that date need only pay for one more visit 
before the plan must begin to pay 70 percent of the cost of the 
remaining visits during 2001.
    Example 4. (i) A group health plan has a $250 annual deductible per 
covered individual. The plan provides that if the deductible is not 
satisfied in a particular year, expenses incurred during October through 
December of that year are credited toward satisfaction of the deductible 
in the next year. A qualified beneficiary who has incurred covered 
expenses of $150 from January through September of 2001 and $40 during 
October

[[Page 378]]

elects COBRA continuation coverage beginning November 1, 2001.
    (ii) The remaining deductible amount for this qualified beneficiary 
is $60 at the beginning of the COBRA continuation coverage. If this 
individual incurs covered expenses of $50 in November and December of 
2001 combined (so that the $250 deductible for 2001 is not satisfied), 
the $90 incurred from October through December of 2001 are credited 
toward satisfaction of the deductible amount for 2002.

    Q-3: How do a plan's limits apply to COBRA continuation coverage?
    A-3: (a) Limits are treated in the same way as deductibles (see Q&A-
2 of this section). This rule applies both to limits on plan benefits 
(such as a maximum number of hospital days or dollar amount of 
reimbursable expenses) and limits on out-of-pocket expenses (such as a 
limit on copayments, a limit on deductibles plus copayments, or a 
catastrophic limit). This rule applies equally to annual and lifetime 
limits and applies equally to limits on specific benefits and limits on 
benefits in the aggregate under the plan.
    (b) The rule of this Q&A-3 is illustrated by the following examples; 
in each example limits are determined on a calendar year basis:

    Example 1. (i) A group health plan pays for a maximum of 150 days of 
hospital confinement per individual per year. A covered employee who has 
had 20 days of hospital confinement as of May 1, 2001 terminates 
employment and elects COBRA continuation coverage as of that date.
    (ii) During the remainder of the year 2001 the plan need only pay 
for a maximum of 130 days of hospital confinement for this individual.
    Example 2. (i) A group health plan reimburses a maximum of $20,000 
of covered expenses per family per year, and the same $20,000 limit 
applies to unmarried covered employees. A covered employee and spouse 
who have no children divorce on May 1, 2001, and the spouse elects COBRA 
continuation coverage as of that date. In 2001, the employee had 
incurred $5,000 of expenses and the spouse had incurred $8,000 before 
May 1.
    (ii) The plan can limit its reimbursement of the amount of expenses 
incurred by the spouse on and after May 1 for the remainder of the year 
to $12,000 ($20,000-$8,000 = $12,000). The remaining limit for the 
employee is not subject to the rules of this Q&A-3 because the 
employee's coverage is not COBRA continuation coverage.
    Example 3. (i) A group health plan pays for 80 percent of covered 
expenses after satisfaction of a $100-per-individual deductible, and the 
plan pays for 100 percent of covered expenses after a family has 
incurred out-of-pocket costs of $2,000. The plan provides that upon the 
divorce of a covered employee, coverage will end immediately for the 
employee's spouse and any children who do not remain in the employee's 
custody. An employee and spouse with three dependent children divorce on 
June 1, 2001, and one of the children remains with the employee. The 
spouse elects COBRA continuation coverage as of that date for the spouse 
and the other two children. During January through May of 2001, the 
spouse incurred $600 of covered expenses and each of the two children in 
the spouse's custody after the divorce incurred covered expenses of 
$1,100. This resulted in total out-of-pocket costs for these three 
individuals of $800 ($300 total for the three deductibles, plus $500 for 
20 percent of the other $2,500 in incurred expenses [$600 + $1,100 + 
$1,100 = $2,800; $2,800-$300 = $2,500]).
    (ii) For the remainder of 2001, the resulting family consisting of 
the spouse and two children has an out-of-pocket limit of $1,200 
($2,000-$800 = $1,200) . The remaining out-of-pocket limit for the 
resulting family consisting of the employee and one child is not subject 
to the rules of this Q&A-3 because their coverage is not COBRA 
continuation coverage.

    Q-4: Can a qualified beneficiary who elects COBRA continuation 
coverage ever change from the coverage received by that individual 
immediately before the qualifying event?
    A-4: (a) In general, a qualified beneficiary need only be given an 
opportunity to continue the coverage that she or he was receiving 
immediately before the qualifying event. This is true regardless of 
whether the coverage received by the qualified beneficiary before the 
qualifying event ceases to be of value to the qualified beneficiary, 
such as in the case of a qualified beneficiary covered under a region-
specific health maintenance organization (HMO) who leaves the HMO's 
service region. The only situations in which a qualified beneficiary 
must be allowed to change from the coverage received immediately before 
the qualifying event are as set forth in paragraphs (b) and (c) of this 
Q&A-4 and in Q&A-1 of this section (regarding changes to or elimination 
of the coverage provided to similarly situated nonCOBRA beneficiaries).

[[Page 379]]

    (b) If a qualified beneficiary participates in a region-specific 
benefit package (such as an HMO or an on-site clinic) that will not 
service her or his health needs in the area to which she or he is 
relocating (regardless of the reason for the relocation), the qualified 
beneficiary must be given, within a reasonable period after requesting 
other coverage, an opportunity to elect alternative coverage that the 
employer or employee organization makes available to active employees. 
If the employer or employee organization makes group health plan 
coverage available to similarly situated nonCOBRA beneficiaries that can 
be extended in the area to which the qualified beneficiary is 
relocating, then that coverage is the alternative coverage that must be 
made available to the relocating qualified beneficiary. If the employer 
or employee organization does not make group health plan coverage 
available to similarly situated nonCOBRA beneficiaries that can be 
extended in the area to which the qualified beneficiary is relocating 
but makes coverage available to other employees that can be extended in 
that area, then the coverage made available to those other employees 
must be made available to the relocating qualified beneficiary. The 
effective date of the alternative coverage must be not later than the 
date of the qualified beneficiary's relocation, or, if later, the first 
day of the month following the month in which the qualified beneficiary 
requests the alternative coverage. However, the employer or employee 
organization is not required to make any other coverage available to the 
relocating qualified beneficiary if the only coverage the employer or 
employee organization makes available to active employees is not 
available in the area to which the qualified beneficiary relocates 
(because all such coverage is region-specific and does not service 
individuals in that area).
    (c) If an employer or employee organization makes an open enrollment 
period available to similarly situated active employees with respect to 
whom a qualifying event has not occurred, the same open enrollment 
period rights must be made available to each qualified beneficiary 
receiving COBRA continuation coverage. An open enrollment period means a 
period during which an employee covered under a plan can choose to be 
covered under another group health plan or under another benefit package 
within the same plan, or to add or eliminate coverage of family members.
    (d) The rules of this Q&A-4 are illustrated by the following 
examples:

    Example 1. (i) E is an employee who works for an employer that 
maintains several group health plans. Under the terms of the plans, if 
an employee chooses to cover any family members under a plan, all family 
members must be covered by the same plan and that plan must be the same 
as the plan covering the employee. Immediately before E's termination of 
employment (for reasons other than gross misconduct), E is covered along 
with E's spouse and children by a plan. The coverage under that plan 
will end as a result of the termination of employment.
    (ii) Upon E's termination of employment, each of the four family 
members is a qualified beneficiary. Even though the employer maintains 
various other plans and options, it is not necessary for the qualified 
beneficiaries to be allowed to switch to a new plan when E terminates 
employment.
    (iii) COBRA continuation coverage is elected for each of the four 
family members. Three months after E's termination of employment there 
is an open enrollment period during which similarly situated active 
employees are offered an opportunity to choose to be covered under a new 
plan or to add or eliminate family coverage.
    (iv) During the open enrollment period, each of the four qualified 
beneficiaries must be offered the opportunity to switch to another plan 
(as though each qualified beneficiary were an individual employee). For 
example, each member of E's family could choose coverage under a 
separate plan, even though the family members of employed individuals 
could not choose coverage under separate plans. Of course, if each 
family member chooses COBRA continuation coverage under a separate plan, 
the plan can require payment for each family member that is based on the 
applicable premium for individual coverage under that separate plan. See 
Q&A-1 of Sec.  54.4980B-8.
    Example 2. (i) The facts are the same as in Example 1, except that 
E's family members are not covered under E's group health plan when E 
terminates employment.
    (ii) Although the family members do not have to be given an 
opportunity to elect COBRA continuation coverage, E must be allowed to 
add them to E's COBRA continuation coverage during the open enrollment 
period. This is true even though the family

[[Page 380]]

members are not, and cannot become, qualified beneficiaries (see Q&A-1 
of Sec.  54.4980B-3).

    Q-5: Aside from open enrollment periods, can a qualified beneficiary 
who has elected COBRA continuation coverage choose to cover individuals 
(such as newborn children, adopted children, or new spouses) who join 
the qualified beneficiary's family on or after the date of the 
qualifying event?
    A-5: (a) Yes. Under section 9801, employees eligible to participate 
in a group health plan (whether or not participating), as well as former 
employees participating in a plan (referred to in those rules as 
participants), are entitled to special enrollment rights for certain 
family members upon the loss of other group health plan coverage or upon 
the acquisition by the employee or participant of a new spouse or of a 
new dependent through birth, adoption, or placement for adoption, if 
certain requirements are satisfied. Employees not participating in the 
plan also can obtain rights for self-enrollment under those rules. Once 
a qualified beneficiary is receiving COBRA continuation coverage (that 
is, has timely elected and made timely payment for COBRA continuation 
coverage), the qualified beneficiary has the same right to enroll family 
members under those special enrollment rules as if the qualified 
beneficiary were an employee or participant within the meaning of those 
rules. However, neither a qualified beneficiary who is not receiving 
COBRA continuation coverage nor a former qualified beneficiary has any 
special enrollment rights under those rules.
    (b) In addition to the special enrollment rights described in 
paragraph (a) of this Q&A-5, if the plan covering the qualified 
beneficiary provides that new family members of active employees can 
become covered (either automatically or upon an appropriate election) 
before the next open enrollment period, then the same right must be 
extended to the new family members of a qualified beneficiary.
    (c) If the addition of a new family member will result in a higher 
applicable premium (for example, if the qualified beneficiary was 
previously receiving COBRA continuation coverage as an individual, or if 
the applicable premium for family coverage depends on family size), the 
plan can require the payment of a correspondingly higher amount for the 
COBRA continuation coverage. See Q&A-1 of Sec.  54.4980B-8.
    (d) The right to add new family members under this Q&A-5 is in 
addition to the rights that newborn and adopted children of covered 
employees may have as qualified beneficiaries; see Q&A-1 in Sec.  
54.4980B-3.

[T.D. 8812, 64 FR 5180, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1852, Jan. 10, 2001]



Sec.  54.4980B-6  Electing COBRA continuation coverage.

    The following questions-and-answers address the manner in which 
COBRA continuation coverage is elected:
    Q-1: What is the election period and how long must it last?
    A-1: (a) A group health plan can condition the availability of COBRA 
continuation coverage upon the timely election of such coverage. An 
election of COBRA continuation coverage is a timely election if it is 
made during the election period. The election period must begin not 
later than the date the qualified beneficiary would lose coverage on 
account of the qualifying event. (See paragraph (c) of Q&A-1 of Sec.  
54.4980B-4 for the meaning of lose coverage.) The election period must 
not end before the date that is 60 days after the later of--
    (1) The date the qualified beneficiary would lose coverage on 
account of the qualifying event; or
    (2) The date notice is provided to the qualified beneficiary of her 
or his right to elect COBRA continuation coverage.
    (b) An election is considered to be made on the date it is sent to 
the plan administrator.
    (c) The rules of this Q&A-1 are illustrated by the following 
example:

    Example. (i) An unmarried employee without children who is receiving 
employer-paid coverage under a group health plan voluntarily terminates 
employment on June 1, 2001. The employee is not disabled at the time of 
the termination of employment nor at any time thereafter, and the plan 
does not provide for the extension of the required periods (as is 
permitted under paragraph (b) of Q&A-4 of Sec.  54.4980B-7).
    (ii) Case 1: If the plan provides that the employer-paid coverage 
ends immediately upon the termination of employment, the election

[[Page 381]]

period must begin not later than June 1, 2001, and must not end earlier 
than July 31, 2001. If notice of the right to elect COBRA continuation 
coverage is not provided to the employee until June 15, 2001, the 
election period must not end earlier than August 14, 2001.
    (iii) Case 2: If the plan provides that the employer-paid coverage 
does not end until 6 months after the termination of employment, the 
employee does not lose coverage until December 1, 2001. The election 
period can therefore begin as late as December 1, 2001, and must not end 
before January 30, 2002.
    (iv) Case 3: If employer-paid coverage for 6 months after the 
termination of employment is offered only to those qualified 
beneficiaries who waive COBRA continuation coverage, the employee loses 
coverage on June 1, 2001, so the election period is the same as in Case 
1. The difference between Case 2 and Case 3 is that in Case 2 the 
employee can receive 6 months of employer-paid coverage and then elect 
to pay for up to an additional 12 months of COBRA continuation coverage, 
while in Case 3 the employee must choose between 6 months of employer-
paid coverage and paying for up to 18 months of COBRA continuation 
coverage. In all three cases, COBRA continuation coverage need not be 
provided for more than 18 months after the termination of employment 
(see Q&A-4 of Sec.  54.4980B-7), and in certain circumstances might be 
provided for a shorter period (see Q&A-1 of Sec.  54.4980B-7).

    Q-2: Is a covered employee or qualified beneficiary responsible for 
informing the plan administrator of the occurrence of a qualifying 
event?
    A-2: (a) In general, the employer or plan administrator must 
determine when a qualifying event has occurred. However, each covered 
employee or qualified beneficiary is responsible for notifying the plan 
administrator of the occurrence of a qualifying event that is either a 
dependent child's ceasing to be a dependent child under the generally 
applicable requirements of the plan or a divorce or legal separation of 
a covered employee. The group health plan is not required to offer the 
qualified beneficiary an opportunity to elect COBRA continuation 
coverage if the notice is not provided to the plan administrator within 
60 days after the later of--
    (1) The date of the qualifying event; or
    (2) The date the qualified beneficiary would lose coverage on 
account of the qualifying event.
    (b) For purposes of this Q&A-2, if more than one qualified 
beneficiary would lose coverage on account of a divorce or legal 
separation of a covered employee, a timely notice of the divorce or 
legal separation that is provided by the covered employee or any one of 
those qualified beneficiaries will be sufficient to preserve the 
election rights of all of the qualified beneficiaries.
    Q-3: During the election period and before the qualified beneficiary 
has made an election, must coverage be provided?
    A-3: (a) In general, each qualified beneficiary has until 60 days 
after the later of the date the qualifying event would cause her or him 
to lose coverage or the date notice is provided to the qualified 
beneficiary of her or his right to elect COBRA continuation coverage to 
decide whether to elect COBRA continuation coverage. If the election is 
made during that period, coverage must be provided from the date that 
coverage would otherwise have been lost (but see Q&A-4 of this section). 
This can be accomplished as described in paragraph (b) or (c) of this 
Q&A-3.
    (b) In the case of an indemnity or reimbursement arrangement, the 
employer or employee organization can provide for plan coverage during 
the election period or, if the plan allows retroactive reinstatement, 
the employer or employee organization can terminate the coverage of the 
qualified beneficiary and reinstate her or him when the election (and, 
if applicable, payment for the coverage) is made. Claims incurred by a 
qualified beneficiary during the election period do not have to be paid 
before the election (and, if applicable, payment for the coverage) is 
made. If a provider of health care (such as a physician, hospital, or 
pharmacy) contacts the plan to confirm coverage of a qualified 
beneficiary during the election period, the plan must give a complete 
response to the health care provider about the qualified beneficiary's 
COBRA continuation coverage rights during the election period. For 
example, if the plan provides coverage during the election

[[Page 382]]

period but cancels coverage retroactively if COBRA continuation coverage 
is not elected, then the plan must inform a provider that a qualified 
beneficiary for whom coverage has not been elected is covered but that 
the coverage is subject to retroactive termination. Similarly, if the 
plan cancels coverage but then retroactively reinstates it once COBRA 
continuation coverage is elected, then the plan must inform the provider 
that the qualified beneficiary currently does not have coverage but will 
have coverage retroactively to the date coverage was lost if COBRA 
continuation coverage is elected. (See paragraph (c) of Q&A-5 in Sec.  
54.4980B-8 for similar rules that a plan must follow in confirming 
coverage during a period when the plan has not received payment but that 
is still within the grace period for a qualified beneficiary for whom 
COBRA continuation coverage has been elected.)
    (c)(1) In the case of a group health plan that provides health 
services (such as a health maintenance organization or a walk-in 
clinic), the plan can require with respect to a qualified beneficiary 
who has not elected and paid for COBRA continuation coverage that the 
qualified beneficiary choose between--
    (i) Electing and paying for the coverage; or
    (ii) Paying the reasonable and customary charge for the plan's 
services, but only if a qualified beneficiary who chooses to pay for the 
services will be reimbursed for that payment within 30 days after the 
election of COBRA continuation coverage (and, if applicable, the payment 
of any balance due for the coverage).
    (2) In the alternative, the plan can provide continued coverage and 
treat the qualified beneficiary's use of the facility as a constructive 
election. In such a case, the qualified beneficiary is obligated to pay 
any applicable charge for the coverage, but only if the qualified 
beneficiary is informed that use of the facility will be a constructive 
election before using the facility.
    Q-4: Is a waiver before the end of the election period effective to 
end a qualified beneficiary's election rights?
    A-4: If, during the election period, a qualified beneficiary waives 
COBRA continuation coverage, the waiver can be revoked at any time 
before the end of the election period. Revocation of the waiver is an 
election of COBRA continuation coverage. However, if a waiver of COBRA 
continuation coverage is later revoked, coverage need not be provided 
retroactively (that is, from the date of the loss of coverage until the 
waiver is revoked). Waivers and revocations of waivers are considered 
made on the date they are sent to the employer, employee organization, 
or plan administrator, as applicable.
    Q-5: Can an employer or employee organization withhold money or 
other benefits owed to a qualified beneficiary until the qualified 
beneficiary either waives COBRA continuation coverage, elects and pays 
for such coverage, or allows the election period to expire?
    A-5: No. An employer, and an employee organization, must not 
withhold anything to which a qualified beneficiary is otherwise entitled 
(by operation of law or other agreement) in order to compel payment for 
COBRA continuation coverage or to coerce the qualified beneficiary to 
give up rights to COBRA continuation coverage (including the right to 
use the full election period to decide whether to elect such coverage). 
Such a withholding constitutes a failure to comply with the COBRA 
continuation coverage requirements. Furthermore, any purported waiver 
obtained by means of such a withholding is invalid.
    Q-6: Can each qualified beneficiary make an independent election 
under COBRA?
    A-6: Yes. Each qualified beneficiary (including a child who is born 
to or placed for adoption with a covered employee during a period of 
COBRA continuation coverage) must be offered the opportunity to make an 
independent election to receive COBRA continuation coverage. If the plan 
allows similarly situated active employees with respect to whom a 
qualifying event has not occurred to choose among several options during 
an open enrollment period (for example, to switch to another group 
health plan or to another benefit package under the same group health 
plan), then each qualified beneficiary must also be offered an 
independent

[[Page 383]]

election to choose during an open enrollment period among the options 
made available to similarly situated active employees with respect to 
whom a qualifying event has not occurred. If a qualified beneficiary who 
is either a covered employee or the spouse of a covered employee elects 
COBRA continuation coverage and the election does not specify whether 
the election is for self-only coverage, the election is deemed to 
include an election of COBRA continuation coverage on behalf of all 
other qualified beneficiaries with respect to that qualifying event. An 
election on behalf of a minor child can be made by the child's parent or 
legal guardian. An election on behalf of a qualified beneficiary who is 
incapacitated or dies can be made by the legal representative of the 
qualified beneficiary or the qualified beneficiary's estate, as 
determined under applicable state law, or by the spouse of the qualified 
beneficiary. (See also Q&A-5 of Sec.  54.4980B-7 relating to the 
independent right of each qualified beneficiary with respect to the same 
qualifying event to receive COBRA continuation coverage during the 
disability extension.) The rules of this Q&A-6 are illustrated by the 
following examples; in each example each group health plan is subject to 
COBRA:

    Example 1. (i) Employee H and H's spouse are covered under a group 
health plan immediately before H's termination of employment (for 
reasons other than gross misconduct). Coverage under the plan will end 
as a result of the termination of employment.
    (ii) Upon H's termination of employment, both H and H's spouse are 
qualified beneficiaries and each must be allowed to elect COBRA 
continuation coverage. Thus, H might elect COBRA continuation coverage 
while the spouse declines to elect such coverage, or H might elect COBRA 
continuation coverage for both of them. In contrast, H cannot decline 
COBRA continuation coverage on behalf of H's spouse. Thus, if H does not 
elect COBRA continuation coverage on behalf of the spouse, the spouse 
must still be allowed to elect COBRA continuation coverage.
    Example 2. (i) An employer maintains a group health plan under which 
all employees receive employer-paid coverage. Employees can arrange to 
cover their families by paying an additional amount. The employer also 
maintains a cafeteria plan, under which one of the options is to pay 
part or all of the employee share of the cost for family coverage under 
the group health plan. Thus, an employee might pay for family coverage 
under the group health plan partly with before-tax dollars and partly 
with after-tax dollars.
    (ii) If an employee's family is receiving coverage under the group 
health plan when a qualifying event occurs, each of the qualified 
beneficiaries must be offered an opportunity to elect COBRA continuation 
coverage, regardless of how that qualified beneficiary's coverage was 
paid for before the qualifying event.

[T.D. 8812, 64 FR 5182, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1853, Jan. 10, 2001]



Sec.  54.4980B-7  Duration of COBRA continuation coverage.

    The following questions-and-answers address the duration of COBRA 
continuation coverage:
    Q-1: How long must COBRA continuation coverage be made available to 
a qualified beneficiary?
    A-1: (a) Except for an interruption of coverage in connection with a 
waiver, as described in Q&A-4 of Sec.  54.4980B-6, COBRA continuation 
coverage that has been elected for a qualified beneficiary must extend 
for at least the period beginning on the date of the qualifying event 
and ending not before the earliest of the following dates--
    (1) The last day of the maximum coverage period (see Q&A-4 of this 
section);
    (2) The first day for which timely payment is not made to the plan 
with respect to the qualified beneficiary (see Q&A-5 in Sec.  54.4980B-
8);
    (3) The date upon which the employer or employee organization ceases 
to provide any group health plan (including successor plans) to any 
employee;
    (4) The date, after the date of the election, upon which the 
qualified beneficiary first becomes covered under any other group health 
plan, as described in Q&A-2 of this section;
    (5) The date, after the date of the election, upon which the 
qualified beneficiary first becomes entitled to Medicare benefits, as 
described in Q&A-3 of this section; and
    (6) In the case of a qualified beneficiary entitled to a disability 
extension (see Q&A-5 of this section), the later of--
    (i) Either 29 months after the date of the qualifying event, or the 
first day of the month that is more than 30 days

[[Page 384]]

after the date of a final determination under title II or XVI of the 
Social Security Act (42 U.S.C. 401-433 or 1381-1385) that the disabled 
qualified beneficiary whose disability resulted in the qualified 
beneficiary's being entitled to the disability extension is no longer 
disabled, whichever is earlier; or
    (ii) The end of the maximum coverage period that applies to the 
qualified beneficiary without regard to the disability extension.
    (b) However, a group health plan can terminate for cause the 
coverage of a qualified beneficiary receiving COBRA continuation 
coverage on the same basis that the plan terminates for cause the 
coverage of similarly situated nonCOBRA beneficiaries. For example, if a 
group health plan terminates the coverage of active employees for the 
submission of a fraudulent claim, then the coverage of a qualified 
beneficiary can also be terminated for the submission of a fraudulent 
claim. Notwithstanding the preceding two sentences, the coverage of a 
qualified beneficiary can be terminated for failure to make timely 
payment to the plan only if payment is not timely under the rules of 
Q&A-5 in Sec.  54.4980B-8.
    (c) In the case of an individual who is not a qualified beneficiary 
and who is receiving coverage under a group health plan solely because 
of the individual's relationship to a qualified beneficiary, if the 
plan's obligation to make COBRA continuation coverage available to the 
qualified beneficiary ceases under this section, the plan is not 
obligated to make coverage available to the individual who is not a 
qualified beneficiary.
    Q-2: When may a plan terminate a qualified beneficiary's COBRA 
continuation coverage due to coverage under another group health plan?
    A-2: (a) If a qualified beneficiary first becomes covered under 
another group health plan (including for this purpose any group health 
plan of a governmental employer or employee organization) after the date 
on which COBRA continuation coverage is elected for the qualified 
beneficiary and the other coverage satisfies the requirements of 
paragraphs (b), (c), and (d) of this Q&A-2, then the plan may terminate 
the qualified beneficiary's COBRA continuation coverage upon the date on 
which the qualified beneficiary first becomes covered under the other 
group health plan (even if the other coverage is less valuable to the 
qualified beneficiary). By contrast, if a qualified beneficiary first 
becomes covered under another group health plan on or before the date on 
which COBRA continuation coverage is elected, then the other coverage 
cannot be a basis for terminating the qualified beneficiary's COBRA 
continuation coverage.
    (b) The requirement of this paragraph (b) is satisfied if the 
qualified beneficiary is actually covered, rather than merely eligible 
to be covered, under the other group health plan.
    (c) The requirement of this paragraph (c) is satisfied if the other 
group health plan is a plan that is not maintained by the employer or 
employee organization that maintains the plan under which COBRA 
continuation coverage must otherwise be made available.
    (d) The requirement of this paragraph (d) is satisfied if the other 
group health plan does not contain any exclusion or limitation with 
respect to any preexisting condition of the qualified beneficiary (other 
than such an exclusion or limitation that does not apply to, or is 
satisfied by, the qualified beneficiary by reason of the provisions in 
section 9801 (relating to limitations on preexisting condition exclusion 
periods in group health plans)).
    (e) The rules of this Q&A-2 are illustrated by the following 
examples:

    Example 1. (i) Employer X maintains a group health plan subject to 
COBRA. C is an employee covered under the plan. C is also covered under 
a group health plan maintained by Employer Y, the employer of C's 
spouse. C terminates employment (for reasons other than gross 
misconduct), and the termination of employment causes C to lose coverage 
under X's plan (and, thus, is a qualifying event). C elects to receive 
COBRA continuation coverage under X's plan.
    (ii) Under these facts, X's plan cannot terminate C's COBRA 
continuation coverage on the basis of C's coverage under Y's plan.
    Example 2. (i) Employer W maintains a group health plan subject to 
COBRA. D is an employee covered under the plan. D terminates employment 
(for reasons other than gross misconduct), and the termination of 
employment causes D to lose coverage under W's plan (and, thus, is a 
qualifying event). D

[[Page 385]]

elects to receive COBRA continuation coverage under W's plan. Later D 
becomes employed by Employer V and is covered under V's group health 
plan. D's coverage under V's plan is not subject to any exclusion or 
limitation with respect to any preexisting condition of D.
    (ii) Under these facts, W can terminate D's COBRA continuation 
coverage on the date D becomes covered under V's plan.
    Example 3. (i) The facts are the same as in Example 2, except that D 
becomes employed by V and becomes covered under V's group health plan 
before D elects COBRA continuation coverage under W's plan.
    (ii) Because the termination of employment is a qualifying event, D 
must be offered COBRA continuation coverage under W's plan, and W is not 
permitted to terminate D's COBRA continuation coverage on account of D's 
coverage under V's plan because D first became covered under V's plan 
before COBRA continuation coverage was elected for D.

    Q-3: When may a plan terminate a qualified beneficiary's COBRA 
continuation coverage due to the qualified beneficiary's entitlement to 
Medicare benefits?
    A-3: (a) If a qualified beneficiary first becomes entitled to 
Medicare benefits under title XVIII of the Social Security Act (42 
U.S.C. 1395-1395ggg) after the date on which COBRA continuation coverage 
is elected for the qualified beneficiary, then the plan may terminate 
the qualified beneficiary's COBRA continuation coverage upon the date on 
which the qualified beneficiary becomes so entitled. By contrast, if a 
qualified beneficiary first becomes entitled to Medicare benefits on or 
before the date that COBRA continuation coverage is elected, then the 
qualified beneficiary's entitlement to Medicare benefits cannot be a 
basis for terminating the qualified beneficiary's COBRA continuation 
coverage.
    (b) A qualified beneficiary becomes entitled to Medicare benefits 
upon the effective date of enrollment in either part A or B, whichever 
occurs earlier. Thus, merely being eligible to enroll in Medicare does 
not constitute being entitled to Medicare benefits.
    Q-4: When does the maximum coverage period end?
    A-4: (a) Except as otherwise provided in this Q&A-4, the maximum 
coverage period ends 36 months after the qualifying event. The maximum 
coverage period for a qualified beneficiary who is a child born to or 
placed for adoption with a covered employee during a period of COBRA 
continuation coverage is the maximum coverage period for the qualifying 
event giving rise to the period of COBRA continuation coverage during 
which the child was born or placed for adoption. Paragraph (b) of this 
Q&A-4 describes the starting point from which the end of the maximum 
coverage period is measured. The date that the maximum coverage period 
ends is described in paragraph (c) of this Q&A-4 in a case where the 
qualifying event is a termination of employment or reduction of hours of 
employment, in paragraph (d) of this Q&A-4 in a case where a covered 
employee becomes entitled to Medicare benefits under title XVIII of the 
Social Security Act (42 U.S.C. 1395-1395ggg) before experiencing a 
qualifying event that is a termination of employment or reduction of 
hours of employment, and in paragraph (e) of this Q&A-4 in the case of a 
qualifying event that is the bankruptcy of the employer. See Q&A-8 of 
Sec.  54.4980B-2 for limitations that apply to certain health flexible 
spending arrangements. See also Q&A-6 of this section in the case of 
multiple qualifying events. Nothing in Sec. Sec.  54.4980B-1 through 
54.4980B-10 prohibits a group health plan from providing coverage that 
continues beyond the end of the maximum coverage period.
    (b)(1) The end of the maximum coverage period is measured from the 
date of the qualifying event even if the qualifying event does not 
result in a loss of coverage under the plan until a later date. If, 
however, coverage under the plan is lost at a later date and the plan 
provides for the extension of the required periods, then the maximum 
coverage period is measured from the date when coverage is lost. A plan 
provides for the extension of the required periods if it provides both--
    (i) That the 30-day notice period (during which the employer is 
required to notify the plan administrator of the occurrence of certain 
qualifying events such as the death of the covered employee or the 
termination of employment or reduction of hours of employment of the 
covered employee) begins on the date of the loss of coverage

[[Page 386]]

rather than on the date of the qualifying event; and
    (ii) That the end of the maximum coverage period is measured from 
the date of the loss of coverage rather than from the date of the 
qualifying event.
    (2) In the case of a plan that provides for the extension of the 
required periods, whenever the rules of Sec. Sec.  54.4980B-1 through 
54.4980B-10 refer to the measurement of a period from the date of the 
qualifying event, those rules apply in such a case by measuring the 
period instead from the date of the loss of coverage.
    (c) In the case of a qualifying event that is a termination of 
employment or reduction of hours of employment, the maximum coverage 
period ends 18 months after the qualifying event if there is no 
disability extension, and 29 months after the qualifying event if there 
is a disability extension. See Q&A-5 of this section for rules to 
determine if there is a disability extension. If there is a disability 
extension and the disabled qualified beneficiary is later determined to 
no longer be disabled, then a plan may terminate the COBRA continuation 
coverage of an affected qualified beneficiary before the end of the 
disability extension; see paragraph (a)(6) in Q&A-1 of this section.
    (d)(1) If a covered employee becomes entitled to Medicare benefits 
under title XVIII of the Social Security Act (42 U.S.C. 1395-1395ggg) 
before experiencing a qualifying event that is a termination of 
employment or reduction of hours of employment, the maximum coverage 
period for qualified beneficiaries other than the covered employee ends 
on the later of--
    (i) 36 months after the date the covered employee became entitled to 
Medicare benefits; or
    (ii) 18 months (or 29 months, if there is a disability extension) 
after the date of the covered employee's termination of employment or 
reduction of hours of employment.
    (2) See paragraph (b) of Q&A-3 of this section regarding the 
determination of when a covered employee becomes entitled to Medicare 
benefits.
    (e) In the case of a qualifying event that is the bankruptcy of the 
employer, the maximum coverage period for a qualified beneficiary who is 
the retired covered employee ends on the date of the retired covered 
employee's death. The maximum coverage period for a qualified 
beneficiary who is the spouse, surviving spouse, or dependent child of 
the retired covered employee ends on the earlier of--
    (1) The date of the qualified beneficiary's death; or
    (2) The date that is 36 months after the death of the retired 
covered employee.
    Q-5: How does a qualified beneficiary become entitled to a 
disability extension?
    A-5: (a) A qualified beneficiary becomes entitled to a disability 
extension if the requirements of paragraphs (b), (c), and (d) of this 
Q&A-5 are satisfied with respect to the qualified beneficiary. If the 
disability extension applies with respect to a qualifying event, it 
applies with respect to each qualified beneficiary entitled to COBRA 
continuation coverage because of that qualifying event. Thus, for 
example, the 29-month maximum coverage period applies to each qualified 
beneficiary who is not disabled as well as to the qualified beneficiary 
who is disabled, and it applies independently with respect to each of 
the qualified beneficiaries. See Q&A-1 in Sec.  54.4980B-8, which 
permits a plan to require payment of an increased amount during the 
disability extension.
    (b) The requirement of this paragraph (b) is satisfied if a 
qualifying event occurs that is a termination, or reduction of hours, of 
a covered employee's employment.
    (c) The requirement of this paragraph (c) is satisfied if an 
individual (whether or not the covered employee) who is a qualified 
beneficiary in connection with the qualifying event described in 
paragraph (b) of this Q&A-5 is determined under title II or XVI of the 
Social Security Act (42 U.S.C. 401-433 or 1381-1385) to have been 
disabled at any time during the first 60 days of COBRA continuation 
coverage. For this purpose, the period of the first 60 days of COBRA 
continuation coverage is measured from the date of the qualifying event 
described in paragraph (b) of this Q&A-5 (except that if a loss of 
coverage

[[Page 387]]

would occur at a later date in the absence of an election for COBRA 
continuation coverage and if the plan provides for the extension of the 
required periods (as described in paragraph (b) of Q&A-4 of this 
section) then the period of the first 60 days of COBRA continuation 
coverage is measured from the date on which the coverage would be lost). 
However, in the case of a qualified beneficiary who is a child born to 
or placed for adoption with a covered employee during a period of COBRA 
continuation coverage, the period of the first 60 days of COBRA 
continuation coverage is measured from the date of birth or placement 
for adoption. For purposes of this paragraph (c), an individual is 
determined to be disabled within the first 60 days of COBRA continuation 
coverage if the individual has been determined under title II or XVI of 
the Social Security Act to have been disabled before the first day of 
COBRA continuation coverage and has not been determined to be no longer 
disabled at any time between the date of that disability determination 
and the first day of COBRA continuation coverage.
    (d) The requirement of this paragraph (d) is satisfied if any of the 
qualified beneficiaries affected by the qualifying event described in 
paragraph (b) of this Q&A-5 provides notice to the plan administrator of 
the disability determination on a date that is both within 60 days after 
the date the determination is issued and before the end of the original 
18-month maximum coverage period that applies to the qualifying event.
    Q-6: Under what circumstances can the maximum coverage period be 
expanded?
    A-6: (a) The maximum coverage period can be expanded if the 
requirements of Q&A-5 of this section (relating to the disability 
extension) or paragraph (b) of this Q&A-6 are satisfied.
    (b) The requirements of this paragraph (b) are satisfied if a 
qualifying event that gives rise to an 18-month maximum coverage period 
(or a 29-month maximum coverage period in the case of a disability 
extension) is followed, within that 18-month period (or within that 29-
month period, in the case of a disability extension), by a second 
qualifying event (for example, a death or a divorce) that gives rise to 
a 36-month maximum coverage period. (Thus, a termination of employment 
following a qualifying event that is a reduction of hours of employment 
cannot be a second qualifying event that expands the maximum coverage 
period; the bankruptcy of an employer also cannot be a second qualifying 
event that expands the maximum coverage period.) In such a case, the 
original 18-month period (or 29-month period, in the case of a 
disability extension) is expanded to 36 months, but only for those 
individuals who were qualified beneficiaries under the group health plan 
in connection with the first qualifying event and who are still 
qualified beneficiaries at the time of the second qualifying event. No 
qualifying event (other than a qualifying event that is the bankruptcy 
of the employer) can give rise to a maximum coverage period that ends 
more than 36 months after the date of the first qualifying event (or 
more than 36 months after the date of the loss of coverage, in the case 
of a plan that provides for the extension of the required periods; see 
paragraph (b) in Q&A-4 of this section). For example, if an employee 
covered by a group health plan that is subject to COBRA terminates 
employment (for reasons other than gross misconduct) on December 31, 
2000, the termination is a qualifying event giving rise to a maximum 
coverage period that extends for 18 months to June 30, 2002. If the 
employee dies after the employee and the employee's spouse and dependent 
children have elected COBRA continuation coverage and on or before June 
30, 2002, the spouse and dependent children (except anyone among them 
whose COBRA continuation coverage had already ended for some other 
reason) will be able to receive COBRA continuation coverage through 
December 31, 2003. See Q&A-8(b) of Sec.  54.4980B-2 for a special rule 
that applies to certain health flexible spending arrangements.
    Q-7: If health coverage is provided to a qualified beneficiary after 
a qualifying event without regard to COBRA continuation coverage (for 
example, as a result of state or local law, the Uniformed Services 
Employment and Reemployment Rights Act of 1994 (38

[[Page 388]]

U.S.C. 4315), industry practice, a collective bargaining agreement, 
severance agreement, or plan procedure), will such alternative coverage 
extend the maximum coverage period?
    A-7: (a) No. The end of the maximum coverage period is measured 
solely as described in Q&A-4 and Q&A-6 of this section, which is 
generally from the date of the qualifying event.
    (b) If the alternative coverage does not satisfy all the 
requirements for COBRA continuation coverage, or if the amount that the 
group health plan requires to be paid for the alternative coverage is 
greater than the amount required to be paid by similarly situated 
nonCOBRA beneficiaries for the coverage that the qualified beneficiary 
can elect to receive as COBRA continuation coverage, the plan covering 
the qualified beneficiary immediately before the qualifying event must 
offer the qualified beneficiary receiving the alternative coverage the 
opportunity to elect COBRA continuation coverage. See Q&A-1 of Sec.  
54.4980B-6.
    (c) If an individual rejects COBRA continuation coverage in favor of 
alternative coverage, then, at the expiration of the alternative 
coverage period, the individual need not be offered a COBRA election. 
However, if the individual receiving alternative coverage is a covered 
employee and the spouse or a dependent child of the individual would 
lose that alternative coverage as a result of a qualifying event (such 
as the death of the covered employee), the spouse or dependent child 
must be given an opportunity to elect to continue that alternative 
coverage, with a maximum coverage period of 36 months measured from the 
date of that qualifying event.
    Q-8: Must a qualified beneficiary be given the right to enroll in a 
conversion health plan at the end of the maximum coverage period for 
COBRA continuation coverage?
    A-8: If a qualified beneficiary's COBRA continuation coverage under 
a group health plan ends as a result of the expiration of the maximum 
coverage period, the group health plan must, during the 180-day period 
that ends on that expiration date, provide the qualified beneficiary the 
option of enrolling under a conversion health plan if such an option is 
otherwise generally available to similarly situated nonCOBRA 
beneficiaries under the group health plan. If such a conversion option 
is not otherwise generally available, it need not be made available to 
qualified beneficiaries.

[T.D. 8812, 64 FR 5184, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1853, Jan. 10, 2001]



Sec.  54.4980B-8  Paying for COBRA continuation coverage.

    The following questions-and-answers address paying for COBRA 
continuation coverage:
    Q-1: Can a group health plan require payment for COBRA continuation 
coverage?
    A-1: (a) Yes. For any period of COBRA continuation coverage, a group 
health plan can require the payment of an amount that does not exceed 
102 percent of the applicable premium for that period. (See paragraph 
(b) of this Q&A-1 for a rule permitting a plan to require payment of an 
increased amount due to the disability extension.) The applicable 
premium is defined in section 4980B(f)(4). A group health plan can 
terminate a qualified beneficiary's COBRA continuation coverage as of 
the first day of any period for which timely payment is not made to the 
plan with respect to that qualified beneficiary (see Q&A-1 of Sec.  
54.4980B-7). For the meaning of timely payment, see Q&A-5 of this 
section.
    (b) A group health plan is permitted to require the payment of an 
amount that does not exceed 150 percent of the applicable premium for 
any period of COBRA continuation coverage covering a disabled qualified 
beneficiary (for example, whether single or family coverage) if the 
coverage would not be required to be made available in the absence of a 
disability extension. (See Q&A-5 of Sec.  54.4980B-7 for rules to 
determine whether a qualified beneficiary is entitled to a disability 
extension.) A plan is not permitted to require the payment of an amount 
that exceeds 102 percent of the applicable premium for any period of 
COBRA continuation coverage to which a qualified beneficiary is entitled 
without regard to the disability extension. Thus, if a qualified 
beneficiary entitled to a disability extension experiences a second 
qualifying

[[Page 389]]

event within the original 18-month maximum coverage period, then the 
plan is not permitted to require the payment of an amount that exceeds 
102 percent of the applicable premium for any period of COBRA 
continuation coverage. By contrast, if a qualified beneficiary entitled 
to a disability extension experiences a second qualifying event after 
the end of the original 18-month maximum coverage period, then the plan 
may require the payment of an amount that is up to 150 percent of the 
applicable premium for the remainder of the period of COBRA continuation 
coverage (that is, from the beginning of the 19th month through the end 
of the 36th month) as long as the disabled qualified beneficiary is 
included in that coverage. The rules of this paragraph (b) are 
illustrated by the following examples; in each example the group health 
plan is subject to COBRA:

    Example 1. (i) An employer maintains a group health plan. The plan 
determines the cost of covering individuals under the plan by reference 
to two categories, individual coverage and family coverage, and the 
applicable premium is determined for those two categories. An employee 
and members of the employee's family are covered under the plan. The 
employee experiences a qualifying event that is the termination of the 
employee's employment. The employee's family qualifies for the 
disability extension because of the disability of the employee's spouse. 
(Timely notice of the disability is provided to the plan administrator.) 
Timely payment of the amount required by the plan for COBRA continuation 
coverage for the family (which does not exceed 102 percent of the cost 
of family coverage under the plan) was made to the plan with respect to 
the employee's family for the first 18 months of COBRA continuation 
coverage, and the disabled spouse and the rest of the family continue to 
receive COBRA continuation coverage through the 29th month.
    (ii) Under these facts, the plan may require payment of up to 150 
percent of the applicable premium for family coverage in order for the 
family to receive COBRA continuation coverage from the 19th month 
through the 29th month. If the plan determined the cost of coverage by 
reference to three categories (such as employee, employee-plus-one-
dependent, employee-plus-two-or-more-dependents) or more than three 
categories, instead of two categories, the plan could still require, 
from the 19th month through the 29th month of COBRA continuation 
coverage, the payment of 150 percent of the cost of coverage for the 
category of coverage that included the disabled spouse.
    Example 2. (i) The facts are the same as in Example 1, except that 
only the covered employee elects and pays for the first 18 months of 
COBRA continuation coverage.
    (ii) Even though the employee's disabled spouse does not elect or 
pay for COBRA continuation coverage, the employee satisfies the 
requirements for the disability extension to apply with respect to the 
employee's qualifying event. Under these facts, the plan may not require 
the payment of more than 102 percent of the applicable premium for 
individual coverage for the entire period of the employee's COBRA 
continuation coverage, including the period from the 19th month through 
the 29th month. If COBRA continuation coverage had been elected and paid 
for with respect to other nondisabled members of the employee's family, 
then the plan could not require the payment of more than 102 percent of 
the applicable premium for family coverage (or for any other appropriate 
category of coverage that might apply to that group of qualified 
beneficiaries under the plan, such as employee-plus-one-dependent or 
employee-plus-two-or-more-dependents) for those family members to 
continue their coverage from the 19th month through the 29th month.

    (c) A group health plan does not fail to comply with section 9802(b) 
(which generally prohibits an individual from being charged, on the 
basis of health status, a higher premium than that charged for similarly 
situated individuals enrolled in the plan) with respect to a qualified 
beneficiary entitled to the disability extension merely because the plan 
requires payment of an amount permitted under paragraph (b) of this Q&A-
1.
    Q-2: When is the applicable premium determined and when can a group 
health plan increase the amount it requires to be paid for COBRA 
continuation coverage?
    A-2: (a) The applicable premium for each determination period must 
be computed and fixed by a group health plan before the determination 
period begins. A determination period is any 12-month period selected by 
the plan, but it must be applied consistently from year to year. The 
determination period is a single period for any benefit package. Thus, 
each qualified beneficiary does not have a separate determination period 
beginning on the date (or anniversaries of the date) that

[[Page 390]]

COBRA continuation coverage begins for that qualified beneficiary.
    (b) During a determination period, a plan can increase the amount it 
requires to be paid for a qualified beneficiary's COBRA continuation 
coverage only in the following three cases:
    (1) The plan has previously charged less than the maximum amount 
permitted under Q&A-1 of this section and the increased amount required 
to be paid does not exceed the maximum amount permitted under Q&A-1 of 
this section;
    (2) The increase occurs during the disability extension and the 
increased amount required to be paid does not exceed the maximum amount 
permitted under paragraph (b) of Q&A-1 of this section; or
    (3) A qualified beneficiary changes the coverage being received (see 
paragraph (c) of this Q&A-2 for rules on how the amount the plan 
requires to be paid may or must change when a qualified beneficiary 
changes the coverage being received).
    (c) If a plan allows similarly situated active employees who have 
not experienced a qualifying event to change the coverage they are 
receiving, then the plan must also allow each qualified beneficiary to 
change the coverage being received on the same terms as the similarly 
situated active employees. (See Q&A-4 in Sec.  54.4980B-5.) If a 
qualified beneficiary changes coverage from one benefit package (or a 
group of benefit packages) to another benefit package (or another group 
of benefit packages), or adds or eliminates coverage for family members, 
then the following rules apply. If the change in coverage is to a 
benefit package, group of benefit packages, or coverage unit (such as 
family coverage, self-plus-one-dependent, or self-plus-two-or-more-
dependents) for which the applicable premium is higher, then the plan 
may increase the amount that it requires to be paid for COBRA 
continuation coverage to an amount that does not exceed the amount 
permitted under Q&A-1 of this section as applied to the new coverage. If 
the change in coverage is to a benefit package, group of benefit 
packages, or coverage unit (such as individual or self-plus-one-
dependent) for which the applicable premium is lower, then the plan 
cannot require the payment of an amount that exceeds the amount 
permitted under Q&A-1 of this section as applied to the new coverage.
    Q-3: Must a plan allow payment for COBRA continuation coverage to be 
made in monthly installments?
    A-3: Yes. A group health plan must allow payment for COBRA 
continuation coverage to be made in monthly installments. A group health 
plan is permitted to also allow the alternative of payment for COBRA 
continuation coverage being made at other intervals (for example, 
weekly, quarterly, or semiannually).
    Q-4: Is a plan required to allow a qualified beneficiary to choose 
to have the first payment for COBRA continuation coverage applied 
prospectively only?
    A-4: No. A plan is permitted to apply the first payment for COBRA 
continuation coverage to the period of coverage beginning immediately 
after the date on which coverage under the plan would have been lost on 
account of the qualifying event. Of course, if the group health plan 
allows a qualified beneficiary to waive COBRA continuation coverage for 
any period before electing to receive COBRA continuation coverage, the 
first payment is not applied to the period of the waiver.
    Q-5: What is timely payment for COBRA continuation coverage?
    A-5: (a) Except as provided in this paragraph (a) or in paragraph 
(b) or (d) of this Q&A-5, timely payment for a period of COBRA 
continuation coverage under a group health plan means payment that is 
made to the plan by the date that is 30 days after the first day of that 
period. Payment that is made to the plan by a later date is also 
considered timely payment if either--
    (1) Under the terms of the plan, covered employees or qualified 
beneficiaries are allowed until that later date to pay for their 
coverage for the period; or
    (2) Under the terms of an arrangement between the employer or 
employee organization and an insurance company, health maintenance 
organization, or other entity that provides

[[Page 391]]

plan benefits on the employer's or employee organization's behalf, the 
employer or employee organization is allowed until that later date to 
pay for coverage of similarly situated nonCOBRA beneficiaries for the 
period.
    (b) Notwithstanding paragraph (a) of this Q&A-5, a plan cannot 
require payment for any period of COBRA continuation coverage for a 
qualified beneficiary earlier than 45 days after the date on which the 
election of COBRA continuation coverage is made for that qualified 
beneficiary.
    (c) If, after COBRA continuation coverage has been elected for a 
qualified beneficiary, a provider of health care (such as a physician, 
hospital, or pharmacy) contacts the plan to confirm coverage of a 
qualified beneficiary for a period for which the plan has not yet 
received payment, the plan must give a complete response to the health 
care provider about the qualified beneficiary's COBRA continuation 
coverage rights, if any, described in paragraphs (a), (b), and (d) of 
this Q&A-5. For example, if the plan provides coverage during the 30- 
and 45-day grace periods described in paragraphs (a) and (b) of this 
Q&A-5 but cancels coverage retroactively if payment is not made by the 
end of the applicable grace period, then the plan must inform a provider 
with respect to a qualified beneficiary for whom payment has not been 
received that the qualified beneficiary is covered but that the coverage 
is subject to retroactive termination if timely payment is not made. 
Similarly, if the plan cancels coverage if it has not received payment 
by the first day of a period of coverage but retroactively reinstates 
coverage if payment is made by the end of the grace period for that 
period of coverage, then the plan must inform the provider that the 
qualified beneficiary currently does not have coverage but will have 
coverage retroactively to the first date of the period if timely payment 
is made. (See paragraph (b) of Q&A-3 in Sec.  54.4980B-6 for similar 
rules that the plan must follow in confirming coverage during the 
election period.)
    (d) If timely payment is made to the plan in an amount that is not 
significantly less than the amount the plan requires to be paid for a 
period of coverage, then the amount paid is deemed to satisfy the plan's 
requirement for the amount that must be paid, unless the plan notifies 
the qualified beneficiary of the amount of the deficiency and grants a 
reasonable period of time for payment of the deficiency to be made. For 
this purpose, as a safe harbor, 30 days after the date the notice is 
provided is deemed to be a reasonable period of time. An amount is not 
significantly less than the amount the plan requires to be paid for a 
period of coverage if and only if the shortfall is no greater than the 
lesser of the following two amounts:
    (1) Fifty dollars (or such other amount as the Commissioner may 
provide in a revenue ruling, notice, or other guidance published in the 
Internal Revenue Bulletin (see Sec.  601.601(d)(2)(ii) of this 
chapter)); or
    (2) 10 percent of the amount the plan requires to be paid.
    (e) Payment is considered made on the date on which it is sent to 
the plan.

[T.D. 8812, 64 FR 5186, Feb. 3, 1999, as amended by T.D. 8928, 66 FR 
1854, Jan. 10, 2001]



Sec.  54.4980B-9  Business reorganizations and employer withdrawals 
from multiemployer plans.

    The following questions-and-answers address who has the obligation 
to make COBRA continuation coverage available to affected qualified 
beneficiaries in the context of business reorganizations and employer 
withdrawals from multiemployer plans:
    Q-1: For purposes of this section, what are a business 
reorganization, a stock sale, and an asset sale?
    A-1: For purposes of this section:
    (a) A business reorganization is a stock sale or an asset sale.
    (b) A stock sale is a transfer of stock in a corporation that causes 
the corporation to become a different employer or a member of a 
different employer. (See Q&A-2 of Sec.  54.4980B-2, which defines 
employer to include all members of a controlled group of corporations.) 
Thus, for example, a sale or distribution of stock in a corporation that 
causes the corporation to cease to be a member of one controlled group 
of corporations, whether or not it becomes a member of another 
controlled group of corporations, is a stock sale.

[[Page 392]]

    (c) An asset sale is a transfer of substantial assets, such as a 
plant or division or substantially all the assets of a trade or 
business.
    (d) The rules of Sec.  1.414(b)-1 of this chapter apply in 
determining what constitutes a controlled group of corporations, and the 
rules of Sec. Sec.  1.414(c)-1 through 1.414(c)-5 of this chapter apply 
in determining what constitutes a group of trades or businesses under 
common control.
    Q-2: In the case of a stock sale, what are the selling group, the 
acquired organization, and the buying group?
    A-2: In the case of a stock sale--
    (a) The selling group is the controlled group of corporations, or 
the group of trades or businesses under common control, of which a 
corporation ceases to be a member as a result of the stock sale;
    (b) The acquired organization is the corporation that ceases to be a 
member of the selling group as a result of the stock sale; and
    (c) The buying group is the controlled group of corporations, or the 
group of trades or businesses under common control, of which the 
acquired organization becomes a member as a result of the stock sale. If 
the acquired organization does not become a member of such a group, the 
buying group is the acquired organization.
    Q-3: In the case of an asset sale, what are the selling group and 
the buying group?
    A-3: In the case of an asset sale--
    (a) The selling group is the controlled group of corporations or the 
group of trades or businesses under common control that includes the 
corporation or other trade or business that is selling the assets; and
    (b) The buying group is the controlled group of corporations or the 
group of trades or businesses under common control that includes the 
corporation or other trade or business that is buying the assets.
    Q-4: Who is an M&A qualified beneficiary?
    A-4: (a) Asset sales: In the case of an asset sale, an individual is 
an M&A qualified beneficiary if the individual is a qualified 
beneficiary whose qualifying event occurred prior to or in connection 
with the sale and who is, or whose qualifying event occurred in 
connection with, a covered employee whose last employment prior to the 
qualifying event was associated with the assets being sold.
    (b) Stock sales: In the case of a stock sale, an individual is an 
M&A qualified beneficiary if the individual is a qualified beneficiary 
whose qualifying event occurred prior to or in connection with the sale 
and who is, or whose qualifying event occurred in connection with, a 
covered employee whose last employment prior to the qualifying event was 
with the acquired organization.
    (c) In the case of a qualified beneficiary who has experienced more 
than one qualifying event with respect to her or his current right to 
COBRA continuation coverage, the qualifying event referred to in 
paragraphs (a) and (b) of this Q&A-4 is the first qualifying event.
    Q-5: In the case of a stock sale, is the sale a qualifying event 
with respect to a covered employee who is employed by the acquired 
organization before the sale and who continues to be employed by the 
acquired organization after the sale, or with respect to the spouse or 
dependent children of such a covered employee?
    A-5: No. A covered employee who continues to be employed by the 
acquired organization after the sale does not experience a termination 
of employment as a result of the sale. Accordingly, the sale is not a 
qualifying event with respect to the covered employee, or with respect 
to the covered employee's spouse or dependent children, regardless of 
whether they are provided with group health coverage after the sale, and 
neither the covered employee, nor the covered employee's spouse or 
dependent children, become qualified beneficiaries as a result of the 
sale.
    Q-6: In the case of an asset sale, is the sale a qualifying event 
with respect to a covered employee whose employment immediately before 
the sale was associated with the purchased assets, or with respect to 
the spouse or dependent children of such a covered employee who are 
covered under a group health plan of the selling group immediately 
before the sale?

[[Page 393]]

    A-6: (a) Yes, unless--
    (1) The buying group is a successor employer under paragraph (c) of 
Q&A-8 of this section or Q&A-2 of Sec.  54.4980B-2, and the covered 
employee is employed by the buying group immediately after the sale; or
    (2) The covered employee (or the spouse or any dependent child of 
the covered employee) does not lose coverage (within the meaning of 
paragraph (c) in Q&A-1 of Sec.  54.4980B-4) under a group health plan of 
the selling group after the sale.
    (b) Unless the conditions in paragraph (a)(1) or (2) of this Q&A-6 
are satisfied, such a covered employee experiences a termination of 
employment with the selling group as a result of the asset sale, 
regardless of whether the covered employee is employed by the buying 
group or whether the covered employee's employment is associated with 
the purchased assets after the sale. Accordingly, the covered employee, 
and the spouse and dependent children of the covered employee who lose 
coverage under a plan of the selling group in connection with the sale, 
are M&A qualified beneficiaries in connection with the sale.
    Q-7: In a business reorganization, are the buying group and the 
selling group permitted to allocate by contract the responsibility to 
make COBRA continuation coverage available to M&A qualified 
beneficiaries?
    A-7: Yes. Nothing in this section prohibits a selling group and a 
buying group from allocating to one or the other of the parties in a 
purchase agreement the responsibility to provide the coverage required 
under Sec. Sec.  54.4980B-1 through 54.4980B-10. However, if and to the 
extent that the party assigned this responsibility under the terms of 
the contract fails to perform, the party who has the obligation under 
Q&A-8 of this section to make COBRA continuation coverage available to 
M&A qualified beneficiaries continues to have that obligation.
    Q-8: Which group health plan has the obligation to make COBRA 
continuation coverage available to M&A qualified beneficiaries in a 
business reorganization?
    A-8: (a) In the case of a business reorganization (whether a stock 
sale or an asset sale), so long as the selling group maintains a group 
health plan after the sale, a group health plan maintained by the 
selling group has the obligation to make COBRA continuation coverage 
available to M&A qualified beneficiaries with respect to that sale. This 
Q&A-8 prescribes rules for cases in which the selling group ceases to 
provide any group health plan to any employee in connection with the 
sale. Paragraph (b) of this Q&A-8 contains these rules for stock sales, 
and paragraph (c) of this Q&A-8 contains these rules for asset sales. 
Neither a stock sale nor an asset sale has any effect on the COBRA 
continuation coverage requirements applicable to any group health plan 
for any period before the sale.
    (b)(1) In the case of a stock sale, if the selling group ceases to 
provide any group health plan to any employee in connection with the 
sale, a group health plan maintained by the buying group has the 
obligation to make COBRA continuation coverage available to M&A 
qualified beneficiaries with respect to that stock sale. A group health 
plan of the buying group has this obligation beginning on the later of 
the following two dates and continuing as long as the buying group 
continues to maintain a group health plan (but subject to the rules in 
Sec.  54.4980B-7, relating to the duration of COBRA continuation 
coverage)--
    (i) The date the selling group ceases to provide any group health 
plan to any employee; or
    (ii) The date of the stock sale.
    (2) The determination of whether the selling group's cessation of 
providing any group health plan to any employee is in connection with 
the stock sale is based on all of the relevant facts and circumstances. 
A group health plan of the buying group does not, as a result of the 
stock sale, have an obligation to make COBRA continuation coverage 
available to those qualified beneficiaries of the selling group who are 
not M&A qualified beneficiaries with respect to that sale.
    (c)(1) In the case of an asset sale, if the selling group ceases to 
provide any group health plan to any employee in

[[Page 394]]

connection with the sale and if the buying group continues the business 
operations associated with the assets purchased from the selling group 
without interruption or substantial change, then the buying group is a 
successor employer to the selling group in connection with that asset 
sale. A buying group does not fail to be a successor employer in 
connection with an asset sale merely because the asset sale takes place 
in connection with a proceeding in bankruptcy under title 11 of the 
United States Code. If the buying group is a successor employer, a group 
health plan maintained by the buying group has the obligation to make 
COBRA continuation coverage available to M&A qualified beneficiaries 
with respect to that asset sale. A group health plan of the buying group 
has this obligation beginning on the later of the following two dates 
and continuing as long as the buying group continues to maintain a group 
health plan (but subject to the rules in Sec.  54.4980B-7, relating to 
the duration of COBRA continuation coverage)--
    (i) The date the selling group ceases to provide any group health 
plan to any employee; or
    (ii) The date of the asset sale.
    (2) The determination of whether the selling group's cessation of 
providing any group health plan to any employee is in connection with 
the asset sale is based on all of the relevant facts and circumstances. 
A group health plan of the buying group does not, as a result of the 
asset sale, have an obligation to make COBRA continuation coverage 
available to those qualified beneficiaries of the selling group who are 
not M&A qualified beneficiaries with respect to that sale.
    (d) The rules of Q&A-1 through Q&A-7 of this section and this Q&A-8 
are illustrated by the following examples; in each example, each group 
health plan is subject to COBRA:

                           Stock Sale Examples

    Example 1. (i) Selling Group S consists of three corporations, A, B, 
and C. Buying Group P consists of two corporations, D and E. P enters 
into a contract to purchase all the stock of C from S effective July 1, 
2002. Before the sale of C, S maintains a single group health plan for 
the employees of A, B, and C (and their families). P maintains a single 
group health plan for the employees of D and E (and their families). 
Effective July 1, 2002, the employees of C (and their families) become 
covered under P's plan. On June 30, 2002, there are 48 qualified 
beneficiaries receiving COBRA continuation coverage under S's plan, 15 
of whom are M&A qualified beneficiaries with respect to the sale of C. 
(The other 33 qualified beneficiaries had qualifying events in 
connection with a covered employee whose last employment before the 
qualifying event was with either A or B.)
    (ii) Under these facts, S's plan continues to have the obligation to 
make COBRA continuation coverage available to the 15 M&A qualified 
beneficiaries under S's plan after the sale of C to P. The employees who 
continue in employment with C do not experience a qualifying event by 
virtue of P's acquisition of C. If they experience a qualifying event 
after the sale, then the group health plan of P has the obligation to 
make COBRA continuation coverage available to them.
    Example 2. (i) Selling Group S consists of three corporations, A, B, 
and C. Each of A, B, and C maintains a group health plan for its 
employees (and their families). Buying Group P consists of two 
corporations, D and E. P enters into a contract to purchase all of the 
stock of C from S effective July 1, 2002. As of June 30, 2002, there are 
14 qualified beneficiaries receiving COBRA continuation coverage under 
C's plan. C continues to employ all of its employees and continues to 
maintain its group health plan after being acquired by P on July 1, 
2002.
    (ii) Under these facts, C is an acquired organization and the 14 
qualified beneficiaries under C's plan are M&A qualified beneficiaries. 
A group health plan of S (that is, either the plan maintained by A or 
the plan maintained by B) has the obligation to make COBRA continuation 
coverage available to the 14 M&A qualified beneficiaries. S and P could 
negotiate to have C's plan continue to make COBRA continuation coverage 
available to the 14 M&A qualified beneficiaries. In such a case, neither 
A's plan nor B's plan would make COBRA continuation coverage available 
to the 14 M&A qualified beneficiaries unless C's plan failed to fulfill 
its contractual responsibility to make COBRA continuation coverage 
available to the M&A qualified beneficiaries. C's employees (and their 
spouses and dependent children) do not experience a qualifying event in 
connection with P's acquisition of C, and consequently no plan 
maintained by either P or S has any obligation to make COBRA 
continuation coverage available to C's employees (or their spouses or 
dependent children) in connection with the transfer of stock in C from S 
to P.
    Example 3. (i) The facts are the same as in Example 2, except that C 
ceases to employ two employees on June 30, 2002, and those

[[Page 395]]

two employees never become covered under P's plan.
    (ii) Under these facts, the two employees experience a qualifying 
event on June 30, 2002 because their termination of employment causes a 
loss of group health coverage. A group health plan of S (that is, either 
the plan maintained by A or the plan maintained by B) has the obligation 
to make COBRA continuation coverage available to the two employees (and 
to any spouse or dependent child of the two employees who loses coverage 
under C's plan in connection with the termination of employment of the 
two employees) because they are M&A qualified beneficiaries with respect 
to the sale of C.
    Example 4. (i) Selling Group S consists of three corporations, A, B, 
and C. Buying Group P consists of two corporations, D and E. P enters 
into a contract to purchase all of the stock of C from S effective July 
1, 2002. Before the sale of C, S maintains a single group health plan 
for the employees of A, B, and C (and their families). P maintains a 
single group health plan for the employees of D and E (and their 
families). Effective July 1, 2002, the employees of C (and their 
families) become covered under P's plan. On June 30, 2002, there are 25 
qualified beneficiaries receiving COBRA continuation coverage under S's 
plan, 20 of whom are M&A qualified beneficiaries with respect to the 
sale of C. (The other five qualified beneficiaries had qualifying events 
in connection with a covered employee whose last employment before the 
qualifying event was with either A or B.) S terminates its group health 
plan effective June 30, 2002 and begins to liquidate the assets of A and 
B and to lay off the employees of A and B.
    (ii) Under these facts, S ceases to provide a group health plan to 
any employee in connection with the sale of C to P. Thus, beginning July 
1, 2002 P's plan has the obligation to make COBRA continuation coverage 
available to the 20 M&A qualified beneficiaries, but P is not obligated 
to make COBRA continuation coverage available to the other 5 qualified 
beneficiaries with respect to S's plan as of June 30, 2002 or to any of 
the employees of A or B whose employment is terminated by S (or to any 
of those employees' spouses or dependent children).

                           Asset Sale Examples

    Example 5. (i) Selling Group S provides group health plan coverage 
to employees at each of its operating divisions. S sells the assets of 
one of its divisions to Buying Group P. Under the terms of the group 
health plan covering the employees at the division being sold, their 
coverage will end on the date of the sale. P hires all but one of those 
employees, gives them the same positions that they had with S before the 
sale, and provides them with coverage under a group health plan. 
Immediately before the sale, there are two qualified beneficiaries 
receiving COBRA continuation coverage under a group health plan of S 
whose qualifying events occurred in connection with a covered employee 
whose last employment prior to the qualifying event was associated with 
the assets sold to P.
    (ii) These two qualified beneficiaries are M&A qualified 
beneficiaries with respect to the asset sale to P. Under these facts, a 
group health plan of S retains the obligation to make COBRA continuation 
coverage available to these two M&A qualified beneficiaries. In 
addition, the one employee P does not hire as well as all of the 
employees P hires (and the spouses and dependent children of these 
employees) who were covered under a group health plan of S on the day 
before the sale are M&A qualified beneficiaries with respect to the 
sale. A group health plan of S also has the obligation to make COBRA 
continuation coverage available to these M&A qualified beneficiaries.
    Example 6. (i) Selling Group S provides group health plan coverage 
to employees at each of its operating divisions. S sells substantially 
all of the assets of all of its divisions to Buying Group P, and S 
ceases to provide any group health plan to any employee on the date of 
the sale. P hires all but one of S's employees on the date of the asset 
sale by S, gives those employees the same positions that they had with S 
before the sale, and continues the business operations of those 
divisions without substantial change or interruption. P provides these 
employees with coverage under a group health plan. Immediately before 
the sale, there are 10 qualified beneficiaries receiving COBRA 
continuation coverage under a group health plan of S whose qualifying 
events occurred in connection with a covered employee whose last 
employment prior to the qualifying event was associated with the assets 
sold to P.
    (ii) These 10 qualified beneficiaries are M&A qualified 
beneficiaries with respect to the asset sale to P. Under these facts, P 
is a successor employer described in paragraph (c) of this Q&A-8. Thus, 
a group health plan of P has the obligation to make COBRA continuation 
coverage available to these 10 M&A qualified beneficiaries.
    (iii) The one employee that P does not hire and the family members 
of that employee are also M&A qualified beneficiaries with respect to 
the sale. A group health plan of P also has the obligation to make COBRA 
continuation coverage available to these M&A qualified beneficiaries.
    (iv) The employees who continue in employment in connection with the 
asset sale (and their family members) and who were covered under a group 
health plan of S on the day before the sale are not M&A qualified 
beneficiaries because P is a successor employer to S in connection with 
the asset sale.

[[Page 396]]

Thus, no group health plan of P has any obligation to make COBRA 
continuation coverage available to these continuing employees with 
respect to the qualifying event that resulted from their losing coverage 
under S's plan in connection with the asset sale.
    Example 7. (i) Selling Group S provides group health plan coverage 
to employees at each of its two operating divisions. S sells the assets 
of one of its divisions to Buying Group P1. Under the terms of the group 
health plan covering the employees at the division being sold, their 
coverage will end on the date of the sale. P1 hires all but one of those 
employees, gives them the same positions that they had with S before the 
sale, and provides them with coverage under a group health plan.
    (ii) Under these facts, a group health plan of S has the obligation 
to make COBRA continuation coverage available to M&A qualified 
beneficiaries with respect to the sale to P1. (If an M&A qualified 
beneficiary first became covered under P1's plan after electing COBRA 
continuation coverage under S's plan, then S's plan could terminate the 
COBRA continuation coverage once the M&A qualified beneficiary became 
covered under P1's plan, provided that the remaining conditions of Q&A-2 
of Sec.  54.4980B-7 were satisfied.)
    (iii) Several months after the sale to P1, S sells the assets of its 
remaining division to Buying Group P2, and S ceases to provide any group 
health plan to any employee on the date of that sale. Thus, under Q&A-1 
of Sec.  54.4980B-7, S ceases to have an obligation to make COBRA 
continuation coverage available to any qualified beneficiary on the date 
of the sale to P2. P1 and P2 are unrelated organizations.
    (iv) Even if it was foreseeable that S would sell its remaining 
division to an unrelated third party after the sale to P1, under these 
facts the cessation of S to provide any group health plan to any 
employee on the date of the sale to P2 is not in connection with the 
asset sale to P1. Thus, even after the date S ceases to provide any 
group health plan to any employee, no group health plan of P1 has any 
obligation to make COBRA continuation coverage available to M&A 
qualified beneficiaries with respect to the asset sale to P1 by S. If P2 
is a successor employer under the rules of paragraph (c) of this Q&A-8 
and maintains one or more group health plans after the sale, then a 
group health plan of P2 would have an obligation to make COBRA 
continuation coverage available to M&A qualified beneficiaries with 
respect to the asset sale to P2 by S (but in such a case employees of S 
before the sale who continued working for P2 after the sale would not be 
M&A qualified beneficiaries). However, even in such a case, no group 
health plan of P2 would have an obligation to make COBRA continuation 
coverage available to M&A qualified beneficiaries with respect to the 
asset sale to P1 by S. Thus, under these facts, after S has ceased to 
provide any group health plan to any employee, no plan has an obligation 
to make COBRA continuation coverage available to M&A qualified 
beneficiaries with respect to the asset sale to P1.
    Example 8. (i) Selling Group S provides group health plan coverage 
to employees at each of its operating divisions. S sells substantially 
all of the assets of all of its divisions to Buying Group P. P hires 
most of S's employees on the date of the purchase of S's assets, retains 
those employees in the same positions that they had with S before the 
purchase, and continues the business operations of those divisions 
without substantial change or interruption. P provides these employees 
with coverage under a group health plan. S continues to employ a few 
employees for the principal purpose of winding up the affairs of S in 
preparation for liquidation. S continues to provide coverage under a 
group health plan to these few remaining employees for several weeks 
after the date of the sale and then ceases to provide any group health 
plan to any employee.
    (ii) Under these facts, the cessation by S to provide any group 
health plan to any employee is in connection with the asset sale to P. 
Because of this, and because P continued the business operations 
associated with those assets without substantial change or interruption, 
P is a successor employer to S with respect to the asset sale. Thus, a 
group health plan of P has the obligation to make COBRA continuation 
coverage available to M&A qualified beneficiaries with respect to the 
sale beginning on the date that S ceases to provide any group health 
plan to any employee. (A group health plan of S retains this obligation 
for the several weeks after the date of the sale until S ceases to 
provide any group health plan to any employee.)
    Q-9: Can the cessation of contributions by an employer to a 
multiemployer group health plan be a qualifying event?
    A-9: The cessation of contributions by an employer to a 
multiemployer group health plan is not itself a qualifying event, even 
though the cessation of contributions may cause current employees (and 
their spouses and dependent children) to lose coverage under the 
multiemployer plan. An event coinciding with the employer's cessation of 
contributions (such as a reduction of hours of employment in the case of 
striking employees) will constitute a qualifying event if it otherwise 
satisfies the requirements of Q&A-1 of Sec.  54.4980B-4.
    Q-10: If an employer stops contributing to a multiemployer group 
health

[[Page 397]]

plan, does the multiemployer plan have the obligation to make COBRA 
continuation coverage available to a qualified beneficiary who was 
receiving coverage under the multiemployer plan on the day before the 
cessation of contributions and who is, or whose qualifying event 
occurred in connection with, a covered employee whose last employment 
prior to the qualifying event was with the employer that has stopped 
contributing to the multiemployer plan?
    A-10: (a) In general, yes. (See Q&A-3 of Sec.  54.4980B-2 for a 
definition of multiemployer plan.) If, however, the employer that stops 
contributing to the multiemployer plan makes group health plan coverage 
available to (or starts contributing to another multiemployer plan that 
is a group health plan with respect to) a class of the employer's 
employees formerly covered under the multiemployer plan, the plan 
maintained by the employer (or the other multiemployer plan), from that 
date forward, has the obligation to make COBRA continuation coverage 
available to any qualified beneficiary who was receiving coverage under 
the multiemployer plan on the day before the cessation of contributions 
and who is, or whose qualifying event occurred in connection with, a 
covered employee whose last employment prior to the qualifying event was 
with the employer.
    (b) The rules of Q&A-9 of this section and this Q&A-10 are 
illustrated by the following examples; in each example, each group 
health plan is subject to COBRA:

    Example 1. (i) Employer Z employs a class of employees covered by a 
collective bargaining agreement and participating in multiemployer group 
health plan M. As required by the collective bargaining agreement, Z has 
been making contributions to M. Z experiences financial difficulties and 
stops making contributions to M but continues to employ all of the 
employees covered by the collective bargaining agreement. Z's cessation 
of contributions to M causes those employees (and their spouses and 
dependent children) to lose coverage under M. Z does not make group 
health plan coverage available to any of the employees covered by the 
collective bargaining agreement.
    (ii) After Z stops contributing to M, M continues to have the 
obligation to make COBRA continuation coverage available to any 
qualified beneficiary who experienced a qualifying event that preceded 
or coincided with the cessation of contributions to M and whose coverage 
under M on the day before the qualifying event was due to an employment 
affiliation with Z. The loss of coverage under M for those employees of 
Z who continue in employment (and the loss of coverage for their spouses 
and dependent children) does not constitute a qualifying event.
    Example 2. (i) The facts are the same as in Example 1 except that B, 
one of the employees covered under M before Z stops contributing to M, 
is transferred into management. Z maintains a group health plan for 
managers and B becomes eligible for coverage under the plan on the day 
of B's transfer.
    (ii) Under these facts, Z does not make group health plan coverage 
available to a class of employees formerly covered under M after B 
becomes eligible under Z's group health plan for managers. Accordingly, 
M continues to have the obligation to make COBRA continuation coverage 
available to any qualified beneficiary who experienced a qualifying 
event that preceded or coincided with the cessation of contributions to 
M and whose coverage under M on the day before the qualifying event was 
due to an employment affiliation with Z.
    Example 3. (i) Employer Y employs two classes of employees--skilled 
and unskilled laborers--covered by a collective bargaining agreement and 
participating in multiemployer group health plan M. As required by the 
collective bargaining agreement, Y has been making contributions to M. Y 
stops making contributions to M but continues to employ all the 
employees covered by the collective bargaining agreement. Y's cessation 
of contributions to M causes those employees (and their spouses and 
dependent children) to lose coverage under M. Y makes group health plan 
coverage available to the skilled laborers immediately after their 
coverage ceases under M, but Y does not make group health plan coverage 
available to any of the unskilled laborers.
    (ii) Under these facts, because Y makes group health plan coverage 
available to a class of employees previously covered under M immediately 
after both classes of employees lose coverage under M, Y alone has the 
obligation to make COBRA continuation coverage available to any 
qualified beneficiary who experienced a qualifying event that preceded 
or coincided with the cessation of contributions to M and whose coverage 
under M on the day before the qualifying event was due to an employment 
affiliation with Y, regardless of whether the employment affiliation was 
as a skilled or unskilled laborer. However, the loss of coverage under M 
for those employees of Y who continue in employment (and the loss of 
coverage for their spouses and dependent children) does not constitute a 
qualifying event.

[[Page 398]]

    Example 4. (i) Employer X employs a class of employees covered by a 
collective bargaining agreement and participating in multiemployer group 
health plan M. As required by the collective bargaining agreement, X has 
been making contributions to M. X experiences financial difficulties and 
is forced into bankruptcy by its creditors. X continues to employ all of 
the employees covered by the collective bargaining agreement. X also 
continues to make contributions to M until the current collective 
bargaining agreement expires, on June 30, 2001, and then X stops making 
contributions to M. X's employees (and their spouses and dependent 
children) lose coverage under M effective July 1, 2001. X does not enter 
into another collective bargaining agreement covering the class of 
employees covered by the expired collective bargaining agreement. 
Effective September 1, 2001, X establishes a group health plan covering 
the class of employees formerly covered by the collective bargaining 
agreement. The group health plan also covers their spouses and dependent 
children.
    (ii) Under these facts, M has the obligation to make COBRA 
continuation coverage available from July 1, 2001 until August 31, 2001, 
and the group health plan established by X has the obligation to make 
COBRA continuation coverage available from September 1, 2001 until the 
obligation ends (see Q&A-1 of Sec.  54.4980B-7) to any qualified 
beneficiary who experienced a qualifying event that preceded or 
coincided with the cessation of contributions to M and whose coverage 
under M on the day before the qualifying event was due to an employment 
affiliation with X. The loss of coverage under M for those employees of 
X who continue in employment (and the loss of coverage for their spouses 
and dependent children) does not constitute a qualifying event.
    Example 5. (i) Employer W employs a class of employees covered by a 
collective bargaining agreement and participating in multiemployer group 
health plan M. As required by the collective bargaining agreement, W has 
been making contributions to M. The employees covered by the collective 
bargaining agreement vote to decertify their current employee 
representative effective January 1, 2002 and vote to certify a new 
employee representative effective the same date. As a consequence, on 
January 1, 2002 they cease to be covered under M and commence to be 
covered under multiemployer group health plan N.
    (ii) Effective January 1, 2002, N has the obligation to make COBRA 
continuation coverage available to any qualified beneficiary who 
experienced a qualifying event that preceded or coincided with the 
cessation of contributions to M and whose coverage under M on the day 
before the qualifying event was due to an employment affiliation with W. 
The loss of coverage under M for those employees of W who continue in 
employment (and the loss of coverage for their spouses and dependent 
children) does not constitute a qualifying event.

[T.D. 8928, 66 FR 1855, Jan. 10, 2001]



Sec.  54.4980B-10  Interaction of FMLA and COBRA.

    The following questions-and-answers address how the taking of leave 
under the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. 2601-
2619) affects the COBRA continuation coverage requirements:
    Q-1: In what circumstances does a qualifying event occur if an 
employee does not return from leave taken under FMLA?
    A-1: (a) The taking of leave under FMLA does not constitute a 
qualifying event. A qualifying event under Q&A-1 of Sec.  54.4980B-4 
occurs, however, if--
    (1) An employee (or the spouse or a dependent child of the employee) 
is covered on the day before the first day of FMLA leave (or becomes 
covered during the FMLA leave) under a group health plan of the 
employee's employer;
    (2) The employee does not return to employment with the employer at 
the end of the FMLA leave; and
    (3) The employee (or the spouse or a dependent child of the 
employee) would, in the absence of COBRA continuation coverage, lose 
coverage under the group health plan before the end of the maximum 
coverage period.
    (b) However, the satisfaction of the three conditions in paragraph 
(a) of this Q&A-1 does not constitute a qualifying event if the employer 
eliminates, on or before the last day of the employee's FMLA leave, 
coverage under a group health plan for the class of employees (while 
continuing to employ that class of employees) to which the employee 
would have belonged if the employee had not taken FMLA leave.
    Q-2: If a qualifying event described in Q&A-1 of this section 
occurs, when does it occur, and how is the maximum coverage period 
measured?
    A-2: A qualifying event described in Q&A-1 of this section occurs on 
the last day of FMLA leave. (The determination of when FMLA leave ends 
is

[[Page 399]]

not made under the rules of this section. See the FMLA regulations, 29 
CFR Part 825 (Sec. Sec.  825.100-825.800).) The maximum coverage period 
(see Q&A-4 of Sec.  54.4980B-7) is measured from the date of the 
qualifying event (that is, the last day of FMLA leave). If, however, 
coverage under the group health plan is lost at a later date and the 
plan provides for the extension of the required periods (see paragraph 
(b) of Q&A-4 of Sec.  54.4980B-7), then the maximum coverage period is 
measured from the date when coverage is lost. The rules of this Q&A-2 
are illustrated by the following examples:

    Example 1. (i) Employee B is covered under the group health plan of 
Employer X on January 31, 2001. B takes FMLA leave beginning February 1, 
2001. B's last day of FMLA leave is 12 weeks later, on April 25, 2001, 
and B does not return to work with X at the end of the FMLA leave. If B 
does not elect COBRA continuation coverage, B will not be covered under 
the group health plan of X as of April 26, 2001.
    (ii) B experiences a qualifying event on April 25, 2001, and the 
maximum coverage period is measured from that date. (This is the case 
even if, for part or all of the FMLA leave, B fails to pay the employee 
portion of premiums for coverage under the group health plan of X and is 
not covered under X's plan. See Q&A-3 of this section.)
    Example 2. (i) Employee C and C's spouse are covered under the group 
health plan of Employer Y on August 15, 2001. C takes FMLA leave 
beginning August 16, 2001. C informs Y less than 12 weeks later, on 
September 28, 2001, that C will not be returning to work. Under the FMLA 
regulations, 29 CFR Part 825 (Sec. Sec.  825.100-825.800), C's last day 
of FMLA leave is September 28, 2001. C does not return to work with Y at 
the end of the FMLA leave. If C and C's spouse do not elect COBRA 
continuation coverage, they will not be covered under the group health 
plan of Y as of September 29, 2001.
    (ii) C and C's spouse experience a qualifying event on September 28, 
2001, and the maximum coverage period (generally 18 months) is measured 
from that date. (This is the case even if, for part or all of the FMLA 
leave, C fails to pay the employee portion of premiums for coverage 
under the group health plan of Y and C or C's spouse is not covered 
under Y's plan. See Q&A-3 of this section.)

    Q-3: If an employee fails to pay the employee portion of premiums 
for coverage under a group health plan during FMLA leave or declines 
coverage under a group health plan during FMLA leave, does this affect 
the determination of whether or when the employee has experienced a 
qualifying event?
    A-3: No. Any lapse of coverage under a group health plan during FMLA 
leave is irrelevant in determining whether a set of circumstances 
constitutes a qualifying event under Q&A-1 of this section or when such 
a qualifying event occurs under Q&A-2 of this section.
    Q-4: Is the application of the rules in Q&A-1 through Q&A-3 of this 
section affected by a requirement of state or local law to provide a 
period of coverage longer than that required under FMLA?
    A-4: No. Any state or local law that requires coverage under a group 
health plan to be maintained during a leave of absence for a period 
longer than that required under FMLA (for example, for 16 weeks of leave 
rather than for the 12 weeks required under FMLA) is disregarded for 
purposes of determining when a qualifying event occurs under Q&A-1 
through Q&A-3 of this section.
    Q-5: May COBRA continuation coverage be conditioned upon 
reimbursement of the premiums paid by the employer for coverage under a 
group health plan during FMLA leave?
    A-5: No. The U.S. Department of Labor has published rules describing 
the circumstances in which an employer may recover premiums it pays to 
maintain coverage, including family coverage, under a group health plan 
during FMLA leave from an employee who fails to return from leave. See 
29 CFR 825.213. Even if recovery of premiums is permitted under 29 CFR 
825.213, the right to COBRA continuation coverage cannot be conditioned 
upon the employee's reimbursement of the employer for premiums the 
employer paid to maintain coverage under a group health plan during FMLA 
leave.

[T.D. 8928, 66 FR 1855, Jan. 10, 2001]



Sec.  54.4980D-1  Requirement of return and time for filing of the excise tax 
under section 4980D.

    Q-1: If a person is liable for the excise tax under section 4980D, 
what form must the person file and what is the due date for the filing 
and payment of the excise tax?

[[Page 400]]

    A-1: (a) In general. See Sec. Sec.  54.6011-2 and 54.6151-1.
    (b) Due date for filing of return by employers. See Sec.  54.6071-
1(b)(1).
    (c) Due date for filing of return by multiemployer plans or multiple 
employer health plans. See Sec.  54.6071-1(b)(2).
    (d) Effective/applicability date. In the case of an employer or 
other person mentioned in paragraph (b) of this Q & A-1, the rules in 
this Q & A-1 are effective for taxable years beginning on or after 
January 1, 2010. In the case of a plan mentioned in paragraph (c) of 
this Q & A-1, the rules in this Q & A-1 are effective for plan years 
beginning on or after January 1, 2010.

[T.D. 9457, 74 FR 45997, Sept. 8, 2009]



Sec.  54.4980E-1  Requirement of return and time for filing of the excise tax 
under section 4980E.

    Q-1: If a person is liable for the excise tax under section 4980E, 
what form must the person file and what is the due date for the filing 
and payment of the excise tax?
    A-1: (a) In general. See Sec. Sec.  54.6011-2, 54.6151-1 and 
54.6071-1(c).
    (b) Effective/applicability date. The rules in this Q & A-1 are 
effective for plan years beginning on or after January 1, 2010.

[T.D. 9457, 74 FR 45997, Sept. 8, 2009]



Sec.  54.4980F-1  Notice requirements for certain pension plan amendments 
significantly reducing the rate of future benefit accrual.

    The following questions and answers concern the notification 
requirements imposed by 4980F of the Internal Revenue Code and section 
204(h) of ERISA relating to a plan amendment of an applicable pension 
plan that significantly reduces the rate of future benefit accrual or 
that eliminates or significantly reduces an early retirement benefit or 
retirement-type subsidy.

                            List of Questions

Q-1. What are the notice requirements of section 4980F(e) of the 
          Internal Revenue Code and section 204(h) of ERISA?
Q-2. What are the differences between section 4980F and section 204(h)?
Q-3. What is an ``applicable pension plan'' to which section 4980F and 
          section 204(h) apply?
Q-4. What is ``section 204(h) notice'' and what is a ``section 204(h) 
          amendment''?
Q-5. For which amendments is section 204(h) notice required?
Q-6. What is an amendment that reduces the rate of future benefit 
          accrual or reduces an early retirement benefit or retirement-
          type subsidy for purposes of determining whether section 
          204(h) notice is required?
Q-7. What plan provisions are taken into account in determining whether 
          an amendment is a section 204(h) amendment?
Q-8. What is the basic principle used in determining whether a reduction 
          in the rate of future benefit accrual or a reduction in an 
          early retirement benefit or retirement-type subsidy is 
          significant for purposes of section 4980F and section 204(h)?
Q-9. When must section 204(h) notice be provided?
Q-10. To whom must section 204(h) notice be provided?
Q-11. What information is required to be provided in a section 204(h) 
          notice?
Q-12. What special rules apply if participants can choose between the 
          old and new benefit formulas?
Q-13. How may section 204(h) notice be provided?
Q-14. What are the consequences if a plan administrator fails to provide 
          section 204(h) notice?
Q-15. What are some of the rules that apply with respect to the excise 
          tax under section 4980F?
Q-16. How do section 4980F and section 204(h) apply when a business is 
          sold?
Q-17. How are amendments to cease accruals and terminate a plan treated 
          under section 4980F and section 204(h)?
Q-18. What are the effective dates of section 4980F, section 204(h), as 
          amended by EGTRRA, and these regulations?

                          Questions and Answers

    Q-1. What are the notice requirements of section 4980F(e) of the 
Internal Revenue Code and section 204(h) of ERISA?
    A-1. (a) Requirements of Internal Revenue Code section 4980F(e) and 
ERISA section 204(h). Section 4980F of the Internal Revenue Code 
(section 4980F) and section 204(h) of the Employee Retirement Income 
Security Act of 1974, as amended (ERISA), 29 U.S.C. 1054(h) (section 
204(h)) each generally requires notice of an amendment to an applicable 
pension plan that either provides for a significant reduction in the 
rate of future benefit accrual or that eliminates or significantly 
reduces an early

[[Page 401]]

retirement benefit or retirement-type subsidy. The notice is required to 
be provided to plan participants and alternate payees who are applicable 
individuals (as defined in Q&A-10 of this section), to certain employee 
organizations, and to contributing employers under a multiemployer plan 
(as described in Q&A-10(a) of this section). The plan administrator must 
generally provide the notice before the effective date of the plan 
amendment. Q&A-9 of this section sets forth the time frames for 
providing notice, Q&A-11 of this section sets forth the content 
requirements for the notice, and Q&A-12 of this section contains special 
rules for cases in which participants can choose between the old and new 
benefit formulas.
    (b) Other notice requirements. Other provisions of law may require 
that certain parties be notified of a plan amendment. See, for example, 
sections 102 and 104 of ERISA, and the regulations thereunder, for 
requirements relating to summary plan descriptions and summaries of 
material modifications.
    Q-2. What are the differences between section 4980F and section 
204(h)?
    A-2. The notice requirements of section 4980F generally are parallel 
to the notice requirements of section 204(h), as amended by the Economic 
Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16 (115 
Stat. 38) (2001) (EGTRRA). However, the consequences of the failure to 
satisfy the requirements of the two provisions differ: Section 4980F 
imposes an excise tax on a failure to satisfy the notice requirements, 
while section 204(h)(6), as amended by EGTRRA, contains a special rule 
with respect to an egregious failure to satisfy the notice requirements. 
See Q&A-14 and Q&A-15 of this section. Except to the extent specifically 
indicated, these regulations apply both to section 4980F and to section 
204(h).
    Q-3. What is an ``applicable pension plan'' to which section 4980F 
and section 204(h) apply?
    A-3. (a) In general. Section 4980F and section 204(h) apply to an 
applicable pension plan. For purposes of section 4980F, an applicable 
pension plan means a defined benefit plan qualifying under section 
401(a) or 403(a) of the Internal Revenue Code, or an individual account 
plan that is subject to the funding standards of section 412 of the 
Internal Revenue Code. For purposes of section 204(h), an applicable 
pension plan means a defined benefit plan that is subject to part 2 of 
subtitle B of title I of ERISA, or an individual account plan that is 
subject to such part 2 and to the funding standards of section 412 of 
the Internal Revenue Code. Accordingly, individual account plans that 
are not subject to the funding standards of section 412 of the Internal 
Revenue Code, such as profit-sharing and stock bonus plans and contracts 
under section 403(b) of the Internal Revenue Code, are not applicable 
pension plans to which section 4980F or section 204(h) apply. Similarly, 
a defined benefit plan that neither qualifies under section 401(a) or 
403(a) of the Internal Revenue Code nor is subject to part 2 of subtitle 
B of title I of ERISA is not an applicable pension plan. Further, 
neither a governmental plan (within the meaning of section 414(d) of the 
Internal Revenue Code), nor a church plan (within the meaning of section 
414(e) of the Internal Revenue Code) with respect to which no election 
has been made under section 410(d) of the Internal Revenue Code is an 
applicable pension plan.
    (b) Section 204(h) notice not required for small plans covering no 
employees. Section 204(h) notice is not required for a plan under which 
no employees are participants covered under the plan, as described in 
Sec.  2510.3-3(b) of the Department of Labor regulations, and which has 
fewer than 100 participants.
    Q-4. What is ``section 204(h) notice'' and what is a ``section 
204(h) amendment''?
    A-4. (a) Section 204(h) notice is notice that complies with section 
4980F(e) of the Internal Revenue Code, section 204(h)(1) of ERISA, and 
this section.
    (b) A section 204(h) amendment is an amendment for which section 
204(h) notice is required under this section.
    Q-5. For which amendments is section 204(h) notice required?
    A-5. (a) Significant reduction in the rate of future benefit 
accrual. Section 204(h) notice is required for an amendment to an 
applicable pension plan

[[Page 402]]

that provides for a significant reduction in the rate of future benefit 
accrual.
    (b) Early retirement benefits and retirement-type subsidies. Section 
204(h) notice is also required for an amendment to an applicable pension 
plan that provides for the significant reduction of an early retirement 
benefit or retirement-type subsidy. For purposes of this section, early 
retirement benefit and retirement-type subsidy mean early retirement 
benefits and retirement-type subsidies within the meaning of section 
411(d)(6)(B)(i).
    (c) Elimination or cessation of benefits. For purposes of this 
section, the terms reduce or reduction include eliminate or cease or 
elimination or cessation.
    (d) Delegation of authority to Commissioner. The Commissioner may 
provide in revenue rulings, notices, or other guidance published in the 
Internal Revenue Bulletin (see Sec.  601.601(d)(2) of this chapter) that 
section 204(h) notice need not be provided for plan amendments otherwise 
described in paragraph (a) or (b) of this Q&A-5 that the Commissioner 
determines to be necessary or appropriate, as a result of changes in the 
law, to maintain compliance with the requirements of the Internal 
Revenue Code (including requirements for tax qualification), ERISA, or 
other applicable federal law.
    Q-6. What is an amendment that reduces the rate of future benefit 
accrual or reduces an early retirement benefit or retirement-type 
subsidy for purposes of determining whether section 204(h) notice is 
required?
    A-6. (a) In general. For purposes of determining whether section 
204(h) notice is required, an amendment reduces the rate of future 
benefit accrual or reduces an early retirement benefit or retirement-
type subsidy only as provided in paragraph (b) or (c) of this Q&A-6.
    (b) Reduction in rate of future benefit accrual--(1) Defined benefit 
plans. For purposes of section 4980F and section 204(h), an amendment to 
a defined benefit plan reduces the rate of future benefit accrual only 
if it is reasonably expected that the amendment will reduce the amount 
of the future annual benefit commencing at normal retirement age (or at 
actual retirement age, if later) for benefits accruing for a year. For 
this purpose, the annual benefit commencing at normal retirement age is 
the benefit payable in the form in which the terms of the plan express 
the accrued benefit (or, in the case of a plan in which the accrued 
benefit is not expressed in the form of an annual benefit commencing at 
normal retirement age, the benefit payable in the form of a single life 
annuity commencing at normal retirement age that is the actuarial 
equivalent of the accrued benefit expressed under the terms of the plan, 
as determined in accordance with section 411(c)(3) of the Internal 
Revenue Code).
    (2) Individual account plans. For purposes of section 4980F and 
section 204(h), an amendment to an individual account plan reduces the 
rate of future benefit accrual only if it is reasonably expected that 
the amendment will reduce the amount of contributions or forfeitures 
allocated for any future year. Changes in the investments or investment 
options under an individual account plan are not taken into account for 
this purpose.
    (3) Determination of rate of future benefit accrual. The rate of 
future benefit accrual for purposes of this paragraph (b) is determined 
without regard to optional forms of benefit within the meaning of Sec.  
1.411(d)-4, Q&A-1(b) of this chapter (other than the annual benefit 
described in paragraph (b)(1) of this Q&A-6). The rate of future benefit 
accrual is also determined without regard to ancillary benefits and 
other rights or features as defined in Sec.  1.401(a)(4)-4(e) of this 
chapter.
    (c) Reduction of early retirement benefits or retirement-type 
subsidies. For purposes of section 4980F and section 204(h), an 
amendment reduces an early retirement benefit or retirement-type subsidy 
only if it is reasonably expected that the amendment will eliminate or 
reduce an early retirement benefit or retirement-type subsidy.
    Q-7. What plan provisions are taken into account in determining 
whether an amendment is a section 204(h) amendment?
    A-7. (a) Plan provisions taken into account---(1) In general. All 
plan provisions that may affect the rate of future benefit accrual, 
early retirement benefits, or retirement-type subsidies of

[[Page 403]]

participants or alternate payees must be taken into account in 
determining whether an amendment is a section 204(h) amendment. For 
example, plan provisions that may affect the rate of future benefit 
accrual include the dollar amount or percentage of compensation on which 
benefit accruals are based; the definition of service or compensation 
taken into account in determining an employee's benefit accrual; the 
method of determining average compensation for calculating benefit 
accruals; the definition of normal retirement age in a defined benefit 
plan; the exclusion of current participants from future participation; 
benefit offset provisions; minimum benefit provisions; the formula for 
determining the amount of contributions and forfeitures allocated to 
participants' accounts in an individual account plan; in the case of a 
plan using permitted disparity under section 401(l) of the Internal 
Revenue Code, the amount of disparity between the excess benefit 
percentage or excess contribution percentage and the base benefit 
percentage or base contribution percentage (all as defined in section 
401(l) of the Internal Revenue Code); and the actuarial assumptions used 
to determine contributions under a target benefit plan (as defined in 
Sec.  1.401(a)(4)-8(b)(3)(i) of this chapter). Plan provisions that may 
affect early retirement benefits or retirement-type subsidies include 
the right to receive payment of benefits after severance from employment 
and before normal retirement age and actuarial factors used in 
determining optional forms for distribution of retirement benefits.
    (2) Provisions incorporated by reference in plan. If all or a part 
of a plan's rate of future benefit accrual, or an early retirement 
benefit or retirement-type subsidy provided under the plan, depends on 
provisions in another document that are referenced in the plan document, 
a change in the provisions of the other document is an amendment of the 
plan.
    (b) Plan provisions not taken into account--(1) In general. Plan 
provisions that do not affect the rate of future benefit accrual of 
participants or alternate payees are not taken into account in 
determining whether there has been a reduction in the rate of future 
benefit accrual.
    (2) Interaction with section 411(d)(6). Any benefit that is not a 
section 411(d)(6) protected benefit as described in Sec. Sec.  1.411(d)-
3(g)(14) and 1.411(d)-4, Q&A-1(d) of this chapter, or that is a section 
411(d)(6) protected benefit that may be eliminated or reduced as 
permitted under Sec.  1.411(d)-3(c), (d), or (f), or under Sec.  
1.411(d)-4, Q&A-2(a)(2), (a)(3), (b)(1), or (b)(2)(ii) through 
(b)(2)(xi) of this chapter, is not taken into account in determining 
whether an amendment is a section 204(h) amendment. Thus, for example, 
provisions relating to the right to make after-tax deferrals are not 
taken into account.
    (c) Examples. The following examples illustrate the rules in this 
Q&A-7:

    Example 1. (i) Facts. A defined benefit plan provides a normal 
retirement benefit equal to 50% of highest 5-year average pay multiplied 
by a fraction (not in excess of one), the numerator of which equals the 
number of years of participation in the plan and the denominator of 
which is 20. A plan amendment is adopted that changes the numerator or 
denominator of that fraction.
    (ii) Conclusion. The plan amendment must be taken into account in 
determining whether there has been a reduction in the rate of future 
benefit accrual.
    Example 2. (i) Facts. Plan C is a multiemployer defined benefit plan 
subject to several collective bargaining agreements. The specific 
benefit formula under Plan C that applies to an employee depends on the 
hourly rate of contribution of the employee's employer, which is set 
forth in the provisions of the collective bargaining agreements that are 
referenced in the Plan C document. Collective Bargaining Agreement A 
between Employer B and the union representing employees of Employer B is 
renegotiated to provide that the hourly contribution rate for an 
employee of B who is subject to the Collective Bargaining Agreement A 
will decrease. That decrease will result in a decrease in the rate of 
future benefit accrual for employees of B.
    (ii) Conclusion. Under paragraph (a)(2) of this Q&A-7, the change to 
Collective Bargaining Agreement A is a plan amendment that is a section 
204(h) amendment if the reduction in the rate of future benefit accrual 
is significant.

    Q-8. What is the basic principle used in determining whether a 
reduction in the rate of future benefit accrual or a

[[Page 404]]

reduction in an early retirement benefit or retirement-type subsidy is 
significant for purposes of section 4980F and section 204(h)?
    A-8. (a) General rule. Whether an amendment reducing the rate of 
future benefit accrual or eliminating or reducing an early retirement 
benefit or retirement-type subsidy provides for a reduction that is 
significant for purposes of section 4980F (and section 204(h) of ERISA) 
is determined based on reasonable expectations taking into account the 
relevant facts and circumstances at the time the amendment is adopted, 
or, if earlier, at the effective date of the amendment.
    (b) Application for determining significant reduction in the rate of 
future benefit accrual. For a defined benefit plan, the determination of 
whether an amendment provides for a significant reduction in the rate of 
future benefit accrual is made by comparing the amount of the annual 
benefit commencing at normal retirement age (or at actual retirement 
age, if later), as determined under Q&A-6(b)(1) of this section, under 
the terms of the plan as amended with the amount of the annual benefit 
commencing at normal retirement age (or at actual retirement age, if 
later), as determined under Q&A-6(b)(1) of this section, under the terms 
of the plan prior to amendment. For an individual account plan, the 
determination of whether an amendment provides for a significant 
reduction in the rate of future benefit accrual is made in accordance 
with Q&A-6(b)(2) of this section by comparing the amounts to be 
allocated in the future to participants' accounts under the terms of the 
plan as amended with the amounts to be allocated in the future to 
participants' accounts under the terms of the plan prior to amendment. 
An amendment to convert a money purchase pension plan to a profit-
sharing or other individual account plan that is not subject to section 
412 of the Internal Revenue Code is, in all cases, deemed to be an 
amendment that provides for a significant reduction in the rate of 
future benefit accrual.
    (c) Application to certain amendments reducing early retirement 
benefits or retirement-type subsidies. Section 204(h) notice is not 
required for an amendment that reduces an early retirement benefit or 
retirement-type subsidy if the amendment is permitted under the third 
sentence of section 411(d)(6)(B) of the Internal Revenue Code and 
paragraphs (c), (d), and (f) of Sec.  1.411(d)-3 of this chapter 
(relating to the elimination or reduction of benefits or subsidies which 
create significant burdens or complexities for the plan and plan 
participants unless the amendment adversely affects the rights of any 
participant in a more than de minimis manner). However, in determining 
whether an amendment reducing a retirement-type subsidy constitutes a 
significant reduction because it reduces a retirement-type subsidy as 
permitted under Sec.  1.411(d)-3(e)(6) of this chapter, the amendment is 
treated in the same manner as an amendment that limits the retirement-
type subsidy to benefits that accrue before the applicable amendment 
date (as defined at Sec.  1.411(d)-3(g)(4) of this chapter) with respect 
to each participant or alternate payee to whom the reduction is 
reasonably expected to apply.
    (d) Plan amendments reflecting a change in statutorily mandated 
minimum present value rules. If a defined benefit plan offers a 
distribution to which the minimum present value rules of section 
417(e)(3) apply (other than a payment to which section 411(a)(13)(A) 
applies) and the plan is amended to reflect the changes to the 
applicable interest rate and applicable mortality table in section 
417(e)(3) made by the Pension Protection Act of 2006, Public Law 109-780 
(120 Stat. 780) (PPA '06) (and no change is made in the dates on which 
the payment will be made), no section 204(h) notice is required to be 
provided.
    (e) Examples. The following examples illustrate the rules in this 
Q&A-8:

    Example 1. (i) Facts. Pension Plan A is a defined benefit plan that 
provides a rate of benefit accrual of 1% of highest-5 years pay 
multiplied by years of service, payable annually for life commencing at 
normal retirement age (or at actual retirement age, if later). An 
amendment to Plan A is adopted on August 1, 2009, effective January 1, 
2010, to provide that any participant who separates from service after 
December 31, 2009, and before January 1, 2015, will have the same number 
of years of service he or she would have had

[[Page 405]]

if his or her service continued to December 31, 2014.
    (ii) Conclusion. In this example, the effective date of the plan 
amendment is January 1, 2010. While the amendment will result in a 
reduction in the annual rate of future benefit accrual from 2011 through 
2014 (because, under the amendment, benefits based upon an additional 5 
years of service accrue on January 1, 2010, and no additional service is 
credited after January 1, 2010 until January 1, 2015), the amendment 
does not result in a reduction that is significant because the amount of 
the annual benefit commencing at normal retirement age (or at actual 
retirement age, if later) under the terms of the plan as amended is not 
under any conditions less than the amount of the annual benefit 
commencing at normal retirement age (or at actual retirement age, if 
later) to which any participant would have been entitled under the terms 
of the plan had the amendment not been made.
    Example 2. (i) Facts. The facts are the same as in Example 1, except 
that the 2009 amendment does not alter the plan provisions relating to a 
participant's number of years of service, but instead amends the plan's 
provisions relating to early retirement benefits. Before the amendment, 
the plan provides for distributions before normal retirement age to be 
actuarially reduced, but, if a participant retires after attainment of 
age 55 and completion of 10 years of service, the applicable early 
retirement reduction factor is 3% per year for the years between the 
ages 65 and 62 and 6% per year for the ages from 62 to 55. The amendment 
changes these provisions so that an actuarial reduction applies in all 
cases, but, in accordance with section 411(d)(6)(B), provides that no 
participant's early retirement benefit will be less than the amount 
provided under the plan as in effect on December 31, 2009 with respect 
to service before January 1, 2010. For participant X, the reduction is 
significant.
    (ii) Conclusion. The amendment will result in a reduction in a 
retirement-type subsidy provided under Plan A (i.e., Plan A's early 
retirement subsidy). Section 204(h) notice must be provided to 
participant X and any other participant for whom the reduction is 
significant and the notice must be provided at least 45 days before 
January 1, 2010 (or by such other date as may apply under Q&A-9 of this 
section).
    Example 3. (i) Facts. The facts are the same as in Example 2, except 
that, for participant X, the change does not go into effect for any 
annuity commencement date before January 1, 2011. Participant X 
continues employment through January 1, 2011.
    (ii) Conclusion. The conclusion is the same as in Example 2. Taking 
into account the rule in the second sentence of Q&A-8(c) of this 
section, the reduction that occurs for participant X on January 1, 2011, 
is treated as the same reduction that occurs under Example 2. 
Accordingly, assuming that the reduction is significant, section 204(h) 
notice must be provided to participant X at least 45 days before the 
January 1, 2010 effective date of the amendment (or by such other date 
as may apply under Q&A-9 of this section).

    Q-9. When must section 204(h) notice be provided?
    A-9. (a) 45-day general rule. Except as otherwise provided in this 
Q&A-9, section 204(h) notice must be provided at least 45 days before 
the effective date of any section 204(h) amendment. See paragraph (e) of 
this Q&A-9 for special rules for amendments permitting participant 
choice.
    (b) 15-day rule for small plans. Except for amendments described in 
paragraphs (d)(2) and (g) of this Q&A-9, section 204(h) notice must be 
provided at least 15 days before the effective date of any section 
204(h) amendment in the case of a small plan. For purposes of this 
section, a small plan is a plan that the plan administrator reasonably 
expects to have, on the effective date of the section 204(h) amendment, 
fewer than 100 participants who have an accrued benefit under the plan.
    (c) 15-day rule for multiemployer plans. Except for amendments 
described in paragraphs (d)(2) and (g) of this Q&A-9, section 204(h) 
notice must be provided at least 15 days before the effective date of 
any section 204(h) amendment in the case of a multiemployer plan. For 
purposes of this section, a multiemployer plan means a multiemployer 
plan as defined in section 414(f) of the Internal Revenue Code.
    (d) Special timing rule for business transactions--(1) 15-day rule 
for section 204(h) amendment in connection with an acquisition or 
disposition. Except for amendments described in paragraphs (d)(2) and 
(g) of this Q&A-9, if a section 204(h) amendment is adopted in 
connection with an acquisition or disposition, section 204(h) notice 
must be provided at least 15 days before the effective date of the 
section 204(h) amendment.
    (2) Later notice permitted for a section 204(h) amendment 
significantly reducing early retirement benefit or retirement-type 
subsidies in connection with certain plan transfers, mergers, or 
consolidations. If a section 204(h) amendment is adopted with respect to 
liabilities that are

[[Page 406]]

transferred to another plan in connection with a transfer, merger, or 
consolidation of assets or liabilities as described in section 414(l) of 
the Internal Revenue Code and Sec.  1.414(l)-1 of this chapter, the 
amendment is adopted in connection with an acquisition or disposition, 
and the amendment significantly reduces an early retirement benefit or 
retirement-type subsidy, but does not significantly reduce the rate of 
future benefit accrual, then section 204(h) notice must be provided no 
later than 30 days after the effective date of the section 204(h) 
amendment.
    (3) Definition of acquisition or disposition. For purposes of this 
paragraph (d), see Sec.  1.410(b)-2(f) of this chapter for the 
definition of acquisition or disposition.
    (e) Timing rule for amendments permitting participant choice. In 
general, section 204(h) notice of a section 204(h) amendment that 
provides applicable individuals with a choice between the old and the 
new benefit formulas (as described in Q&A-12 of this section) must be 
provided in accordance with the time period applicable under paragraphs 
(a) through (d) of this Q&A-9. See Q&A-12 of this section for additional 
guidance regarding section 204(h) notice in connection with participant 
choice.
    (f) Special timing rule for certain plans maintained by commercial 
airlines. See section 402 of PPA '06 for a special rule that applies to 
certain plans maintained by an employer that is a commercial passenger 
airline or the principal business of which is providing catering 
services to a commercial passenger airline. Under this special rule, 
section 204(h) notice must be provided at least 15 days before the 
effective date of the amendment.
    (g) Special timing rules relating to certain section 204(h) 
amendments that reduce section 411(d)(6) protected benefits--(1) Plan 
amendments permitted to reduce prior accruals. This paragraph (g) 
generally provides special rules with respect to a plan amendment that 
would not violate section 411(d)(6) even if the amendment were to reduce 
section 411(d)(6) protected benefits, which are limited to accrued 
benefits that are attributable to service before the applicable 
amendment date. For example, this paragraph (g) applies to amendments 
that are permitted to be effective retroactively under section 412(d)(2) 
of the Code (section 412(c)(8) for plan years beginning before January 
1, 2008), section 418D of the Code, section 418E of the Code, section 
4281 of ERISA, or section 1107 of PPA '06. See, generally, Sec.  
1.411(d)-3(a)(1).
    (2) General timing rule for amendments to which this paragraph (g) 
applies. For an amendment to which this paragraph (g) applies, the 
amendment is effective on the first date on which the plan is operated 
as if the amendment were in effect. Thus, except as otherwise provided 
in this paragraph (g), a section 204(h) notice for an amendment to which 
paragraph (a) of this section applies that is adopted after the 
effective date of the amendment must be provided, with respect to any 
applicable individual, at least 45 days before (or such other date as 
may apply under paragraph (b), (c), (d), or (f) of this Q&A-9) the date 
the amendment is put into operational effect.
    (3) Special rules for section 204(h) notices provided in connection 
with other disclosure requirements--(i) In general. Notwithstanding the 
requirements in this Q&A-9 and Q&A-11 of this section, if a plan 
provides one of the notices in paragraph (g)(3)(ii) of this Q&A-9, in 
accordance with the applicable timing and content rules for such notice, 
the plan is treated as timely providing a section 204(h) notice with 
respect to a section 204(h) amendment.
    (ii) Notice requirements. The notices in this paragraph (g)(3)(ii) 
are--
    (A) A notice required under any revenue ruling, notice, or other 
guidance published under the authority of the Commissioner in the 
Internal Revenue Bulletin to affected parties in connection with a 
retroactive plan amendment described in section 412(d)(2) (section 
412(c)(8) for plan years beginning before January 1, 2008);
    (B) A notice required under section 101(j) of ERISA if an amendment 
is adopted to comply with the benefit limitation requirements of section 
206(g) of ERISA (section 436 of the Code);
    (C) A notice required under section 432(b)(3)(D) of the Code for an 
amendment adopted to comply with the benefit restrictions under section 
432(f)(2);

[[Page 407]]

    (D) A notice required under section 418D, or section 4244A(b) of 
ERISA, for an amendment that reduces or eliminates accrued benefits 
attributable to employer contributions with respect to a multiemployer 
plan in reorganization;
    (E) A notice required under section 418E, or section 4245(e) of 
ERISA, relating to the effects of the insolvency status for a 
multiemployer plan; and
    (F) A notice required under section 4281 of ERISA for an amendment 
of a multiemployer plan reducing benefits pursuant to section 4281(c) of 
ERISA.
    (4) Delegation of authority to Commissioner. The Commissioner may 
provide special rules under section 4980F, in revenue rulings, notices, 
or other guidance published in the Internal Revenue Bulletin (see Sec.  
601.601(d)(2)(ii)(b) of this chapter), that the Commissioner determines 
to be necessary or appropriate with respect to a section 204(h) 
amendment--
    (A) That applies to benefits accrued before the applicable amendment 
date but that does not violate section 411(d)(6); or
    (B) For which there is a required notice relating to a reduction in 
benefits and such notice has timing and content requirements similar to 
a section 204(h) notice with respect to a significant reduction in the 
rate of future benefit accruals.
    Q-10. To whom must section 204(h) notice be provided?
    A-10. (a) In general. Section 204(h) notice must be provided to each 
applicable individual, to each employee organization representing 
participants who are applicable individuals, and, for plan years 
beginning after December 31, 2007, to each employer that has an 
obligation to contribute (within the meaning of section 4212(a) of 
ERISA) to a multiemployer plan. A special rule is provided in paragraph 
(d) of this Q&A-10.
    (b) Applicable individual. Applicable individual means each 
participant in the plan, and any alternate payee, whose rate of future 
benefit accrual under the plan is reasonably expected to be 
significantly reduced, or for whom an early retirement benefit or 
retirement-type subsidy under the plan may reasonably be expected to be 
significantly reduced, by the section 204(h) amendment. The 
determination is made with respect to individuals who are reasonably 
expected to be participants or alternate payees in the plan at the 
effective date of the section 204(h) amendment.
    (c) Alternate payee. Alternate payee means a beneficiary who is an 
alternate payee (within the meaning of section 414(p)(8) of the Internal 
Revenue Code) under an applicable qualified domestic relations order 
(within the meaning of section 414(p)(1)(A) of the Internal Revenue 
Code).
    (d) Designees. Section 204(h) notice may be provided to a person 
designated in writing by an applicable individual or by an employee 
organization representing participants who are applicable individuals, 
instead of being provided to that applicable individual or employee 
organization. Any designation of a representative made through an 
electronic method that satisfies standards similar to those of Q&A-
13(c)(1) of this section satisfies the requirement that a designation be 
in writing.
    (e) Facts and circumstances test. Whether a participant or alternate 
payee is an applicable individual is determined on a typical business 
day that is reasonably proximate to the time the section 204(h) notice 
is provided (or at the latest date for providing section 204(h) notice, 
if earlier), based on all relevant facts and circumstances.
    (f) Examples. The following examples illustrate the rules in this 
Q&A-10:

    Example 1. (i) Facts. A defined benefit plan requires an individual 
to complete 1 year of service to become a participant who can accrue 
benefits, and participants cease to accrue benefits under the plan at 
severance from employment with the employer. There are no alternate 
payees and employees are not represented by an employee organization. On 
November 18, 2004, the plan is amended effective as of January 1, 2005 
to reduce significantly the rate of future benefit accrual. Section 
204(h) notice is provided on November 1, 2004.
    (ii) Conclusion. Section 204(h) notice is only required to be 
provided to individuals who, based on the facts and circumstances on 
November 1, 2004, are reasonably expected to have completed at least 1 
year of service and to be employed by the employer on January 1, 2005.

[[Page 408]]

    Example 2. (i) Facts. The facts are the same as in Example 1, except 
that the sole effect of the plan amendment is to alter the pre-amendment 
plan provisions under which benefits payable to an employee who retires 
after 20 or more years of service are unreduced for commencement before 
normal retirement age. The amendment requires 30 or more years of 
service in order for benefits commencing before normal retirement age to 
be unreduced, but the amendment only applies for future benefit 
accruals.
    (ii) Conclusion. Section 204(h) notice is only required to be 
provided to individuals who, on January 1, 2005, have completed at least 
1 year of service but less than 30 years of service, are employed by the 
employer, have not attained normal retirement age, and will have 
completed 20 or more years of service before normal retirement age if 
their employment continues to normal retirement age.
    Example 3. (i) Facts. A plan is amended to reduce significantly the 
rate of future benefit accrual for all current employees who are 
participants. Based on the facts and circumstances, it is reasonable to 
expect that the amendment will not reduce the rate of future benefit 
accrual of former employees who are currently receiving benefits or of 
former employees who are entitled to deferred vested benefits.
    (ii) Conclusion. The plan administrator is not required to provide 
section 204(h) notice to any former employees.
    Example 4. (i) Facts. The facts are the same as in Example 3, except 
that the plan covers two groups of alternate payees. The alternate 
payees in the first group are entitled to a certain percentage or 
portion of the former spouse's accrued benefit and, for this purpose, 
the accrued benefit is determined at the time the former spouse begins 
receiving retirement benefits under the plan. The alternate payees in 
the second group are entitled to a certain percentage or portion of the 
former spouse's accrued benefit and, for this purpose, the accrued 
benefit was determined at the time the qualified domestic relations 
order was issued by the court.
    (ii) Conclusion. It is reasonable to expect that the benefits to be 
received by the second group of alternate payees will not be affected by 
any reduction in a former spouse's rate of future benefit accrual. 
Accordingly, the plan administrator is not required to provide section 
204(h) notice to the alternate payees in the second group.
    Example 5. (i) Facts. A plan covers hourly employees and salaried 
employees. The plan provides the same rate of benefit accrual for both 
groups. The employer amends the plan to reduce significantly the rate of 
future benefit accrual of the salaried employees only. At that time, it 
is reasonable to expect that only a small percentage of hourly employees 
will become salaried in the future.
    (ii) Conclusion. The plan administrator is not required to provide 
section 204(h) notice to the participants who are currently hourly 
employees.
    Example 6. (i) Facts. A plan covers employees in Division M and 
employees in Division N. The plan provides the same rate of benefit 
accrual for both groups. The employer amends the plan to reduce 
significantly the rate of future benefit accrual of employees in 
Division M. At that time, it is reasonable to expect that in the future 
only a small percentage of employees in Division N will be transferred 
to Division M.
    (ii) Conclusion. The plan administrator is not required to provide 
section 204(h) notice to the participants who are employees in Division 
N.
    Example 7. (i) Facts. The facts are the same facts as in Example 6, 
except that at the time the amendment is adopted, it is expected that 
thereafter Division N will be merged into Division M in connection with 
a corporate reorganization (and the employees in Division N will become 
subject to the plan's amended benefit formula applicable to the 
employees in Division M).
    (ii) Conclusion. In this case, the plan administrator must provide 
section 204(h) notice to the participants who are employees in Division 
M and to the participants who are employees in Division N.
    Example 8. (i) Facts. A plan is amended to reduce significantly the 
rate of future benefit accrual for all current employees who are 
participants. The plan amendment will be effective on January 1, 2004. 
The plan will provide the notice to applicable individuals on October 
31, 2003. In determining which current employees are applicable 
individuals, the plan administrator determines that October 1, 2003, is 
a typical business day that is reasonably proximate to the time the 
section 204(h) notice is provided.
    (ii) Conclusion. In this case, October 1, 2003 is a typical business 
day that satisfies the requirements of Q&A-10(e) of this section.

    Q-11. What information is required to be provided in a section 
204(h) notice?
    A-11. (a) Explanation of notice requirements--(1) In general. 
Section 204(h) notice must include sufficient information to allow 
applicable individuals to understand the effect of the plan amendment. 
In order to satisfy this rule, a plan administrator providing section 
204(h) notice must generally satisfy paragraphs (a)(2), (a)(3), (a)(4), 
(a)(5), and (a)(6) of this Q&A-11. See paragraph (g)(3) of Q&A-9 of this 
section for special rules relating to section 204(h) notices provided in 
connection with certain other written notices. See also paragraph (g)(4) 
of Q&A-9 of

[[Page 409]]

this section for a delegation of authority to the Commissioner to 
provide special rules.
    (2) Information in section 204(h) notice. The information in a 
section 204(h) notice must be written in a manner calculated to be 
understood by the average plan participant and to apprise the applicable 
individual of the significance of the notice.
    (3) Required narrative description of amendment--(i) Reduction in 
rate of future benefit accrual. In the case of an amendment reducing the 
rate of future benefit accrual, the notice must include a description of 
the benefit or allocation formula prior to the amendment, a description 
of the benefit or allocation formula under the plan as amended, and the 
effective date of the amendment.
    (ii) Reduction in early retirement benefit or retirement-type 
subsidy. In the case of an amendment that reduces an early retirement 
benefit or retirement-type subsidy (other than as a result of an 
amendment reducing the rate of future benefit accrual), the notice must 
describe how the early retirement benefit or retirement-type subsidy is 
calculated from the accrued benefit before the amendment, how the early 
retirement benefit or retirement-type subsidy is calculated from the 
accrued benefit after the amendment, and the effective date of the 
amendment. For example, if, for a plan with a normal retirement age of 
65, the change is from an unreduced normal retirement benefit at age 55 
to an unreduced normal retirement benefit at age 60 for benefits accrued 
in the future, with an actuarial reduction to apply for benefits accrued 
in the future to the extent that the early retirement benefit begins 
before age 60, the notice must state the change and specify the factors 
that apply in calculating the actuarial reduction (for example, a 5% per 
year reduction applies for early retirement before age 60).
    (4) Sufficient information to determine the approximate magnitude of 
reduction--(i) General rule. (A) Section 204(h) notice must include 
sufficient information for each applicable individual to determine the 
approximate magnitude of the expected reduction for that individual. 
Thus, in any case in which it is not reasonable to expect that the 
approximate magnitude of the reduction for each applicable individual 
will be reasonably apparent from the description of the amendment 
provided in accordance with paragraph (a)(3) of this Q&A-11, further 
information is required. The further information may be provided by 
furnishing additional narrative information or in other information that 
satisfies this paragraph of this section.
    (B) To the extent any expected reduction is not uniformly applicable 
to all participants, the notice must either identify the general classes 
of participants to whom the reduction is expected to apply, or by some 
other method include sufficient information to allow each applicable 
individual receiving the notice to determine which reductions are 
expected to apply to that individual.
    (ii) Illustrative examples--(A) Requirement generally. The 
requirement to include sufficient information for each applicable 
individual to determine the approximate magnitude of the expected 
reduction for that individual under (a)(4)(i)(A) of this Q&A-11 is 
deemed satisfied if the notice includes one or more illustrative 
examples showing the approximate magnitude of the reduction in the 
examples, as provided in this paragraph (a)(4)(ii). Illustrative 
examples are in any event required to be provided for any change from a 
traditional defined benefit formula to a cash balance formula or a 
change that results in a period of time during which there are no 
accruals (or minimal accruals) with regard to normal retirement benefits 
or an early retirement subsidy (a wear-away period).
    (B) Examples must bound the range of reductions. Where an amendment 
results in reductions that vary (either among participants, as would 
occur for an amendment converting a traditional defined benefit formula 
to a cash balance formula, or over time as to any individual 
participant, as would occur for an amendment that results in a wear-away 
period), the illustrative example(s) provided in accordance with this 
paragraph (a)(4)(ii) must show the approximate range of the reductions.

[[Page 410]]

However, any reductions that are likely to occur in only a de minimis 
number of cases are not required to be taken into account in determining 
the range of the reductions if a narrative statement is included to that 
effect and examples are provided that show the approximate range of the 
reductions in other cases. Amendments for which the maximum reduction 
occurs under identifiable circumstances, with proportionately smaller 
reductions in other cases, may be illustrated by one example 
illustrating the maximum reduction, with a statement that smaller 
reductions also occur. Further, assuming that the reduction varies from 
small to large depending on service or other factors, two illustrative 
examples may be provided showing the smallest likely reduction and the 
largest likely reduction.
    (C) Assumptions used in examples. The examples provided under this 
paragraph (a)(4)(ii) are not required to be based on any particular form 
of payment (such as a life annuity or a single sum), but may be based on 
whatever form appropriately illustrates the reduction. The examples 
generally may be based on any reasonable assumptions (for example, 
assumptions relating to the representative participant's age, years of 
service, and compensation, along with any interest rate and mortality 
table used in the illustrations, as well as salary scale assumptions 
used in the illustrations for amendments that alter the compensation 
taken into account under the plan), but the section 204(h) notice must 
identify those assumptions. However, if a plan's benefit provisions 
include a factor that varies over time (such as a variable interest 
rate), the determination of whether an amendment is reasonably expected 
to result in a wear-away period must be based on the value of the factor 
applicable under the plan at a time that is reasonably close to the date 
section 204(h) notice is provided, and any wear-away period that is 
solely a result of a future change in the variable factor may be 
disregarded. For example, to determine whether a wear-away occurs as a 
result of a section 204(h) amendment that converts a defined benefit 
plan to a cash balance pension plan that will credit interest based on a 
variable interest factor specified in the plan, the future interest 
credits must be projected based on the interest rate applicable under 
the variable factor at the time section 204(h) notice is provided.
    (D) Individual statements. This paragraph (a)(4)(ii) may be 
satisfied by providing a statement to each applicable individual 
projecting what that individual's future benefits are reasonably 
expected to be at various future dates and what that individual's future 
benefits would have been under the terms of the plan as in effect before 
the section 204(h) amendment, provided that the statement includes the 
same information required for examples under paragraphs (a)(4)(ii)(A) 
through (C) of this Q&A-11, including showing the approximate range of 
the reductions for the individual if the reductions vary over time and 
identification of the assumptions used in the projections.
    (5) No false or misleading information. A section 204(h) notice may 
not include materially false or misleading information (or omit 
information so as to cause the information provided to be misleading).
    (6) Additional information when reduction not uniform--(i) In 
general. If an amendment by its terms affects different classes of 
participants differently (e.g., one new benefit formula will apply to 
Division A and another to Division B), then the requirements of 
paragraph (a) of this Q&A-11 apply separately with respect to each such 
general class of participants. In addition, the notice must include 
sufficient information to enable an applicable individual who is a 
participant to understand which class he or she is a member of.
    (ii) Option for different section 204(h) notices. If a section 
204(h) amendment affects different classes of applicable individuals 
differently, the plan administrator may provide to differently affected 
classes of applicable individuals a section 204(h) notice appropriate to 
those individuals. Such section 204(h) notice may omit information that 
does not apply to the applicable individuals to whom it is furnished, 
but must identify the class or classes of applicable individuals to whom 
it is provided.

[[Page 411]]

    (b) Examples. The following examples illustrate the requirements 
paragraph (a) of this Q&A-11. In each example, it is assumed that the 
actual notice provided is written in a manner calculated to be 
understood by the average plan participant and to apprise the applicable 
individual of the significance of the notice in accordance with 
paragraph (a)(2) of this Q&A-11. The examples are as follows:

    Example 1. (i) Facts. Plan A provides that a participant is entitled 
to a normal retirement benefit of 2% of the participant's average pay 
over the 3 consecutive years for which the average is the highest 
(highest average pay) multiplied by years of service. Plan A is amended 
to provide that, effective January 1, 2004, the normal retirement 
benefit will be 2% of the participant's highest average pay multiplied 
by years of service before the effective date, plus 1% of the 
participant's highest average pay multiplied by years of service after 
the effective date. The plan administrator provides notice that states: 
``Under the Plan's current benefit formula, a participant's normal 
retirement benefit is 2% of the participant's average pay over the 3 
consecutive years for which the average is the highest multiplied by the 
participant's years of service. This formula is being changed by a plan 
amendment. Under the Plan as amended, a participant's normal retirement 
benefit will be the sum of 2% of the participant's average pay over the 
3 consecutive years for which the average is the highest multiplied by 
years of service before the January 1, 2004 effective date, plus 1% of 
the participant's average pay over the 3 consecutive years for which the 
average is the highest multiplied by the participant's years of service 
after December 31, 2003. This change is effective on January 1, 2004.'' 
The notice does not contain any additional information.
    (ii) Conclusion. The notice satisfies the requirements of paragraph 
(a) of this Q&A-11.
    Example 2. (i) Facts. Plan B provides that a participant is entitled 
to a normal retirement benefit at age 64 of 2.2% of the participant's 
career average pay multiplied by years of service. Plan B is amended to 
cease all accruals, effective January 1, 2004. The plan administrator 
provides notice that includes a description of the old benefit formula, 
a statement that, after December 31, 2003, no participant will earn any 
further accruals, and the effective date of the amendment. The notice 
does not contain any additional information.
    (ii) Conclusion. The notice satisfies the requirements of paragraph 
(a) of this Q&A-11.
    Example 3. (i) Facts. Plan C provides that a participant is entitled 
to a normal retirement benefit at age 65 of 2% of career average 
compensation multiplied by years of service. Plan C is amended to 
provide that the normal retirement benefit will be 1% of average pay 
over the 3 consecutive years for which the average is the highest 
multiplied by years of service. The amendment only applies to accruals 
for years of service after the amendment, so that each employee's 
accrued benefit is equal to the sum of the benefit accrued as of the 
effective date of the amendment plus the accrued benefit equal to the 
new formula applied to years of service beginning on or after the 
effective date. The plan administrator provides notice that describes 
the old and new benefit formulas and also explains that for an 
individual whose compensation increases over the individual's career 
such that the individual's highest 3-year average exceeds the 
individual's career average, the reduction will be less or there may be 
no reduction. The notice does not contain any additional information.
    (ii) Conclusion. The notice satisfies the requirements of paragraph 
(a) of this Q&A-11.
    Example 4. (i) Facts. (A) Plan D is a defined benefit pension plan 
under which each participant accrues a normal retirement benefit, as a 
life annuity beginning at the normal retirement age of 65, equal to the 
participant's number of years of service multiplied by 1.5 percent 
multiplied by the participant's average pay over the 3 consecutive years 
for which the average is the highest. Plan D provides early retirement 
benefits for former employees beginning at or after age 55 in the form 
of an early retirement annuity that is actuarially equivalent to the 
normal retirement benefit, with the reduction for early commencement 
based on reasonable actuarial assumptions that are specified in Plan D. 
Plan D provides for the suspension of benefits of participants who 
continue in employment beyond normal retirement age, in accordance with 
section 203(a)(3)(B) of ERISA and regulations thereunder issued by the 
Department of Labor. The pension of a participant who retires after age 
65 is calculated under the same normal retirement benefit formula, but 
is based on the participant's service credit and highest 3-year pay at 
the time of late retirement with any appropriate actuarial increases.
    (B) Plan D is amended, effective July 1, 2005, to change the formula 
for all future accruals to a cash balance formula under which the 
opening account balance for each participant on July 1, 2005, is zero, 
hypothetical pay credits equal to 5 percent of pay are credited to the 
account thereafter, and hypothetical interest is credited monthly based 
on the applicable interest rate under section 417(e)(3) of the Internal 
Revenue Code at the beginning of the quarter. Any participant who 
terminates employment with vested benefits can receive an actuarially 
equivalent annuity (based on the same reasonable actuarial assumptions 
that are specified in Plan D)

[[Page 412]]

commencing at any time after termination of employment and before the 
plan's normal retirement age of 65. The benefit resulting from the 
hypothetical account balance is in addition to the benefit accrued 
before July 1, 2005 (taking into account only service and highest 3-year 
pay before July 1, 2005), so that it is reasonably expected that no 
wear-away period will result from the amendment. The plan administrator 
expects that, as a general rule, depending on future pay increases and 
future interest rates, the rate of future benefit accrual after the 
conversion is higher for participants who accrue benefits before 
approximately age 50 and after approximately age 70, but is lower for 
participants who accrue benefits between approximately age 50 and age 
70.
    (C) The plan administrator of Plan D announces the conversion to a 
cash balance formula on May 16, 2005. The announcement is delivered to 
all participants and includes a written notice that describes the old 
formula, the new formula, and the effective date.
    (D) In addition, the notice states that the Plan D formula before 
the conversion provided a normal retirement benefit equal to the product 
of a participant's number of years of service multiplied by 1.5 percent 
multiplied by the participant's average pay over the 3 years for which 
the average is the highest (highest 3-year pay). The notice includes an 
example showing the normal retirement benefit that will be accrued after 
June 30, 2005 for a participant who is age 49 with 10 years of service 
at the time of the conversion. The plan administrator reasonably 
believes that such a participant is representative of the participants 
whose rate of future benefit accrual will be reduced as a result of the 
amendment. The example estimates that, if the participant continues 
employment to age 65, the participant's normal retirement benefit for 
service from age 49 to age 65 will be $657 per month for life. The 
example assumes that the participant's pay is $50,000 at age 49. The 
example states that the estimated $657 monthly pension accrues over the 
16-year period from age 49 to age 65 and that, based on assumed future 
pay increases, this amount annually would be 9.1 percent of the 
participant's highest 3-year pay at age 65, which over the 16 years from 
age 49 to age 65 averages 0.57 percent per year multiplied by the 
participant's highest 3-year pay. The example also states that the sum 
of the monthly annuity accrued before the conversion in the 10-year 
period from age 39 to age 49 plus the $657 monthly annuity estimated to 
be accrued over the 16-year period from age 49 to age 65 is $1,235 and 
that, based on assumed future increases in pay, this would be 17.1 
percent of the participant's highest 3-year pay at age 65, which over 
the employee's career from age 39 to age 65 averages 0.66 percent per 
year multiplied by the participant's highest 3-year pay. The notice also 
includes two other examples with similar information, one of which is 
intended to show the circumstances in which a small reduction may occur 
and the other of which shows the largest reduction that the plan 
administrator thinks is likely to occur. The notice states that the 
estimates are based on the assumption that pay increases annually after 
June 30, 2005, at a 4 percent rate. The notice also specifies that the 
applicable interest rate under section 417(e) for hypothetical interest 
credits after June 30, 2005 is assumed to be 6 percent, which is the 
section 417(e) of the Internal Revenue Code applicable interest rate 
under the plan for 2005.
    (ii) Conclusion. The information in the notice, as described in 
paragraph (i)(C) and (i)(D) of this Example 4, satisfies the 
requirements of paragraph (a)(3) of this Q&A-11 with respect to 
applicable individuals who are participants. The requirements of 
paragraph (a)(4) of this Q&A-11 are satisfied because, as noted in 
paragraph (i)(D) of this Example 4, the notice describes the old formula 
and describes the estimated future accruals under the new formula in 
terms that can be readily compared to the old formula, i.e., the notice 
states that the estimated $657 monthly pension accrued over the 16-year 
period from age 49 to age 65 averages 0.57 percent of the participant's 
highest 3-year pay at age 65. The requirement in paragraph (a)(4)(ii) of 
this Q&A-11 that the examples include sufficient information to be able 
to determine the approximate magnitude of the reduction would also be 
satisfied if the notice instead directly stated the amount of the 
monthly pension that would have accrued over the 16-year period from age 
49 to age 65 under the old formula.
    Example 5. (i) Facts. The facts are the same as in Example 4, except 
that, under the plan as in effect before the amendment, the early 
retirement pension for a participant who terminates employment after age 
55 with at least 20 years of service is equal to the normal retirement 
benefit without reduction from age 65 to age 62 and reduced by only 5 
percent per year for each year before age 62. As a result, early 
retirement benefits for such a participant constitute a retirement-type 
subsidy. The plan as in effect after the amendment provides an early 
retirement benefit equal to the sum of the early retirement benefit 
payable under the plan as in effect before the amendment taking into 
account only service and highest 3-year pay before July 1, 2005, plus an 
early retirement annuity that is actuarially equivalent to the account 
balance for service after June 30, 2005. The notice provided by the plan 
administrator describes the old early retirement annuity, the new early 
retirement annuity, and the effective date. The notice includes an 
estimate of the early retirement annuity payable to the illustrated 
participant for

[[Page 413]]

service after the conversion if the participant were to retire at age 59 
(which the plan administrator believes is a typical early retirement 
age) and elect to begin receiving an immediate early retirement annuity. 
The example states that the normal retirement benefit expected to be 
payable at age 65 as a result of service from age 49 to age 59 is $434 
per month for life beginning at age 65 and that the early retirement 
annuity expected to be payable as a result of service from age 49 to age 
59 is $270 per month for life beginning at age 59. The example states 
that the monthly early retirement annuity of $270 is 38 percent less 
than the monthly normal retirement benefit of $434, whereas a 15 percent 
reduction would have applied under the plan as in effect before the 
amendment. The notice also includes similar information for examples 
that show the smallest and largest reduction that the plan administrator 
thinks is likely to occur in the early retirement benefit. The notice 
also specifies the applicable interest rate, mortality table, and salary 
scale used in the example to calculate the early retirement reductions.
    (ii) Conclusion. The information in the notice, as described in 
paragraphs (i)(C) and (D) of Example 4 and paragraph (i) of this Example 
5, satisfies the requirements of paragraph (a)(3) of this Q&A-11 with 
respect to applicable individuals who are participants. The requirements 
of paragraph (a)(4) of this Q&A-11 are satisfied because, as noted in 
paragraph (i) of this Example 5, the notice describes the early 
retirement subsidy under the old formula and describes the estimated 
early retirement pension under the new formula in terms that can be 
readily compared to the old formula, i.e., the notice states that the 
monthly early retirement pension of $270 is 38 percent less than the 
monthly normal retirement benefit of $434, whereas a 15 percent 
reduction would have applied under the plan as in effect before the 
amendment. The requirements of paragraph (a)(4)(ii) of this Q&A-11 that 
the examples include sufficient information to be able to determine the 
approximate magnitude of the reduction would also be satisfied if the 
notice instead directly stated the amount of the monthly early 
retirement pension that would be payable at age 59 under the old 
formula.

    Q-12. What special rules apply if participants can choose between 
the old and new benefit formulas?
    A-12. In any case in which an applicable individual can choose 
between the benefit formula (including any early retirement benefit or 
retirement-type subsidy) in effect before the section 204(h) amendment 
(old formula) or the benefit formula in effect after the section 204(h) 
amendment (new formula), section 204(h) notice has not been provided 
unless the applicable individual has been provided the information 
required under Q&A-11 of this section, and has also been provided 
sufficient information to enable the individual to make an informed 
choice between the old and new benefit formulas. The information 
required under Q&A-11 of this section must be provided by the date 
otherwise required under Q&A-9 of this section. The information 
sufficient to enable the individual to make an informed choice must be 
provided within a period that is reasonably contemporaneous with the 
date by which the individual is required to make his or her choice and 
that allows sufficient advance notice to enable the individual to 
understand and consider the additional information before making that 
choice.
    Q-13. How may section 204(h) notice be provided?
    A-13. (a) Delivering section 204(h) notice. A plan administrator 
(including a person acting on behalf of the plan administrator, such as 
the employer or plan trustee) must provide section 204(h) notice through 
a method that results in actual receipt of the notice or the plan 
administrator must take appropriate and necessary measures reasonably 
calculated to ensure that the method for providing section 204(h) notice 
results in actual receipt of the notice. Section 204(h) notice must be 
provided either in the form of a paper document or in an electronic form 
that satisfies the requirements of paragraph (c) of this Q&A-13. First 
class mail to the last known address of the party is an acceptable 
delivery method. Likewise, hand delivery is acceptable. However, the 
posting of notice is not considered provision of section 204(h) notice. 
Section 204(h) notice may be enclosed with or combined with other notice 
provided by the employer or plan administrator (for example, a notice of 
intent to terminate under title IV of ERISA). Except as provided in 
paragraph (c) of this Q&A-13, a section 204(h) notice is deemed to have 
been provided on a date if it has been provided by the end of that day. 
When notice is delivered by first class mail, the notice is considered 
provided as of the date of the United States postmark

[[Page 414]]

stamped on the cover in which the document is mailed.
    (b) Example. The following example illustrates the provisions of 
paragraph (a) of this Q&A-13:

    Example. (i) Facts. Plan A is amended to reduce significantly the 
rate of future benefit accrual effective January 1, 2005. Under Q&A-9 of 
this section, section 204(h) notice is required to be provided at least 
45 days before the effective date of the amendment. The plan 
administrator causes section 204(h) notice to be mailed to all affected 
participants. The mailing is postmarked November 16, 2004.
    (ii) Conclusion. Because section 204(h) notice is given 45 days 
before the effective date of the plan amendment, it satisfies the timing 
requirement of Q&A-9 of this section.

    (c) New technologies--(1) General rule. A section 204(h) notice may 
be provided to an applicable individual through an electronic method 
(other than an oral communication or a recording of an oral 
communication), provided that all of the following requirements are 
satisfied:
    (i) Either the notice is actually received by the applicable 
individual or the plan administrator takes appropriate and necessary 
measures reasonably calculated to ensure that the method for providing 
section 204(h) notice results in actual receipt of the notice by the 
applicable individual.
    (ii) The section 204(h) notice is delivered using an electronic 
medium (other than an oral communication or a recording of an oral 
communication) under an electronic system that satisfies the applicable 
notice requirements of Sec.  1.401(a)-21.
    (iii) Special effective date. For plan years beginning prior to 
January 1, 2007, Q&A-13 of this section, as it appeared in the April 1, 
2006 edition of 26 CFR part 1, applies.
    (2) Examples. The following examples illustrate the requirement in 
paragraph (c)(1)(i) of this Q&A-13. In these examples, it is assumed 
that the notice satisfies the requirements in paragraphs (c)(1)(ii) of 
this section. The examples are as follows:

    Example 1. (i) Facts. On July 1, 2003, M, a plan administrator of 
Company N's plan, sends notice intended to constitute section 204(h) 
notice to A, an employee of Company N and a participant in the plan. The 
notice is sent through e-mail to A's e-mail address on Company N's 
electronic information system. Accessing Company N's electronic 
information system is not an integral part of A's duties. M sends the e-
mail with a request for a computer-generated notification that the 
message was received and opened. M receives notification indicating that 
the e-mail was received and opened by A on July 9, 2003.
    (ii) Conclusion. With respect to A, although M has failed to take 
appropriate and necessary measures reasonably calculated to ensure that 
the method for providing section 204(h) notice results in actual receipt 
of the notice, M satisfies the requirement of paragraph (c)(1)(i) of 
this Q&A-13 on July 9, 2003, which is when A actually receives the 
notice.
    Example 2. (i) Facts. On August 1, 2003, O, a plan administrator of 
Company P's plan, sends a notice intended to constitute section 204(h) 
notice of ERISA to B, who is an employee of Company P and a participant 
in Company P's plan. The notice is sent through e-mail to B's e-mail 
address on Company P's electronic information system. B has the ability 
to effectively access electronic documents from B's e-mail address on 
Company P's electronic information system and accessing the system is an 
integral part of B's duties.
    (ii) Conclusion. Because access to the system is an integral part of 
B's duties, O has taken appropriate and necessary measures reasonably 
calculated to ensure that the method for providing section 204(h) notice 
results in actual receipt of the notice. Thus, regardless of whether B 
actually accesses B's email on that date, O satisfies the requirement of 
paragraph (c)(1)(i) of this Q&A-13 on August 1, 2003, with respect to B.

    Q-14. What are the consequences if a plan administrator fails to 
provide section 204(h) notice?
    A-14. (a) Egregious failures--(1) Effect of egregious failure to 
provide section 204(h) notice. Section 204(h)(6)(A) of ERISA provides 
that, in the case of any egregious failure to meet the notice 
requirements with respect to any plan amendment, the plan provisions are 
applied so that all applicable individuals are entitled to the greater 
of the benefit to which they would have been entitled without regard to 
the amendment, or the benefit under the plan with regard to the 
amendment. For a special rule applicable in the case of a plan 
termination, see Q&A-17(b) of this section.
    (2) Definition of egregious failure. For purposes of section 204(h) 
of ERISA and this Q&A-14, there is an egregious failure to meet the 
notice requirements if a failure to provide required notice is

[[Page 415]]

within the control of the plan sponsor and is either an intentional 
failure or a failure, whether or not intentional, to provide most of the 
individuals with most of the information they are entitled to receive. 
For this purpose, an intentional failure includes any failure to 
promptly provide the required notice or information after the plan 
administrator discovers an unintentional failure to meet the 
requirements. A failure to give section 204(h) notice is deemed not to 
be egregious if the plan administrator reasonably determines, taking 
into account section 4980F, section 204(h), these regulations, other 
administrative pronouncements, and relevant facts and circumstances, 
that the reduction in the rate of future benefit accrual resulting from 
an amendment is not significant (as described in Q&A-8 of this section), 
or that an amendment does not significantly reduce an early retirement 
benefit or retirement-type subsidy.
    (3) Example. The following example illustrates the provisions of 
this paragraph (a):

    Example. (i) Facts. Plan A is amended to reduce significantly the 
rate of future benefit accrual effective January 1, 2003. Section 204(h) 
notice is required to be provided 45 days before January 1, 2003. Timely 
section 204(h) notice is provided to all applicable individuals (and to 
each employee organization representing participants who are applicable 
individuals), except that the employer intentionally fails to provide 
section 204(h) notice to certain participants until May 16, 2003.
    (ii) Conclusion. The failure to provide section 204(h) notice is 
egregious. Accordingly, for the period from January 1, 2003 through June 
30, 2003 (which is the date that is 45 days after May 16, 2003), all 
participants and alternate payees are entitled to the greater of the 
benefit to which they would have been entitled under Plan A as in effect 
before the amendment or the benefit under the plan as amended.

    (b) Effect of non-egregious failure to provide section 204(h) 
notice. If an egregious failure has not occurred, the amendment with 
respect to which section 204(h) notice is required may become effective 
with respect to all applicable individuals. However, see section 502 of 
ERISA for civil enforcement remedies. Thus, where there is a failure, 
whether or not egregious, to provide section 204(h) notice in accordance 
with this section, individuals may have recourse under section 502 of 
ERISA.
    (c) Excise taxes. See section 4980F and Q&A-15 of this section for 
excise taxes that may apply to a failure to notify applicable 
individuals of a pension plan amendment that provides for a significant 
reduction in the rate of future benefit accrual or eliminates or 
significantly reduces an early retirement benefit or retirement-type 
subsidy, regardless of whether or not the failure is egregious.
    Q-15. What are some of the rules that apply with respect to the 
excise tax under section 4980F?
    A-15. (a) Person responsible for excise tax. In the case of a plan 
other than a multiemployer plan, the employer is responsible for 
reporting and paying the excise tax. In the case of a multiemployer 
plan, the plan is responsible for reporting and paying the excise tax.
    (b) Excise tax inapplicable in certain cases. Under section 
4980F(c)(1) of the Internal Revenue Code, no excise tax is imposed on a 
failure for any period during which it is established to the 
satisfaction of the Commissioner that the employer (or other person 
responsible for the tax) exercised reasonable diligence, but did not 
know that the failure existed. Under section 4980F(c)(2) of the Internal 
Revenue Code, no excise tax applies to a failure to provide section 
204(h) notice if the employer (or other person responsible for the tax) 
exercised reasonable diligence and corrects the failure within 30 days 
after the employer (or other person responsible for the tax) first knew, 
or exercising reasonable diligence would have known, that such failure 
existed. For purposes of section 4980F(c)(1) of the Internal Revenue 
Code, a person has exercised reasonable diligence, but did not know that 
the failure existed if and only if--
    (1) The person exercised reasonable diligence in attempting to 
deliver section 204(h) notice to applicable individuals by the latest 
date permitted under this section; and
    (2) At the latest date permitted for delivery of section 204(h) 
notice, the person reasonably believes that section 204(h) notice was 
actually delivered to each applicable individual by that date.

[[Page 416]]

    (c) Example. The following example illustrates the provisions of 
paragraph (b) of this Q&A-15:

    Example. (i) Facts. Plan A is amended to reduce significantly the 
rate of future benefit accrual. The employer sends out a section 204(h) 
notice to all affected participants and other applicable individuals and 
to any employee organization representing applicable individuals, 
including actual delivery by hand to employees at worksites and by 
first-class mail for any other applicable individual and to any employee 
organization representing applicable individuals. However, although the 
employer exercises reasonable diligence in seeking to deliver the 
notice, the notice is not delivered to any participants at one worksite 
due to a failure of an overnight delivery service to provide the notice 
to appropriate personnel at that site for them to timely hand deliver 
the notice to affected employees. The error is discovered when the 
employer subsequently calls to confirm delivery. Appropriate section 
204(h) notice is then promptly delivered to all affected participants at 
the worksite.
    (ii) Conclusion. Because the employer exercised reasonable 
diligence, but did not know that a failure existed, no excise tax 
applies, assuming that participants at the worksite receive section 
204(h) notice within 30 days after the employer first knew, or 
exercising reasonable diligence would have known, that the failure 
occurred.

    Q-16. How do section 4980F and section 204(h) apply when a business 
is sold?
    A-16. (a) Generally. Whether section 204(h) notice is required in 
connection with the sale of a business depends on whether a plan 
amendment is adopted that significantly reduces the rate of future 
benefit accrual or significantly reduces an early retirement benefit or 
retirement-type subsidy.
    (b) Examples. The following examples illustrate the rules of this 
Q&A-16:

    Example 1. (i) Facts. Corporation Q maintains Plan A, a defined 
benefit plan that covers all employees of Corporation Q, including 
employees in its Division M. Plan A provides that participating 
employees cease to accrue benefits when they cease to be employees of 
Corporation Q. On January 1, 2006, Corporation Q sells all of the assets 
of Division M to Corporation R. Corporation R maintains Plan B, which 
covers all of the employees of Corporation R. Under the sale agreement, 
employees of Division M become employees of Corporation R on the date of 
the sale (and cease to be employees of Corporation Q), Corporation Q 
continues to maintain Plan A following the sale, and the employees of 
Division M become participants in Plan B.
    (ii) Conclusion. No section 204(h) notice is required because no 
plan amendment was adopted that reduced the rate of future benefit 
accrual. The employees of Division M who become employees of Corporation 
R ceased to accrue benefits under Plan A because their employment with 
Corporation Q terminated.
    Example 2. (i) Facts. Subsidiary Y is a wholly owned subsidiary of 
Corporation S. Subsidiary Y maintains Plan C, a defined benefit plan 
that covers employees of Subsidiary Y. Corporation S sells all of the 
stock of Subsidiary Y to Corporation T. At the effective date of the 
sale of the stock of Subsidiary Y, in accordance with the sale agreement 
between Corporation S and Corporation T, Subsidiary Y amends Plan C so 
that all benefit accruals cease.
    (ii) Conclusion. Section 204(h) notice is required to be provided 
because Subsidiary Y adopted a plan amendment that significantly reduced 
the rate of future benefit accrual in Plan C.
    Example 3. (i) Facts. As a result of an acquisition, Corporation U 
maintains two defined benefit plans: Plan D covers employees of Division 
N and Plan E covers the rest of the employees of Corporation U. Plan E 
provides a significantly lower rate of future benefit accrual than Plan 
D. Plan D is merged with Plan E, and all of the employees of Corporation 
U will accrue benefits under the merged plan in accordance with the 
benefit formula of former Plan E.
    (ii) Conclusion. Section 204(h) notice is required.
    Example 4. (i) Facts. The facts are the same as in Example 3, except 
that the rate of future benefit accrual in Plan E is not significantly 
lower. In addition, Plan D has a retirement-type subsidy that Plan E 
does not have and the Plan D employees' rights to the subsidy under the 
merged plan are limited to benefits accrued before the merger.
    (ii) Conclusion. Section 204(h) notice is required for any 
participants or beneficiaries for whom the reduction in the retirement-
type subsidy is significant (and for any employee organization 
representing such participants).
    Example 5. (i) Facts. Corporation V maintains several plans, 
including Plan F, which covers employees of Division P. Plan F provides 
that participating employees cease to accrue further benefits under the 
plan when they cease to be employees of Corporation V. Corporation V 
sells all of the assets of Division P to Corporation W, which maintains 
Plan G for its employees. Plan G provides a significantly lower rate of 
future benefit accrual than Plan F. Plan F is merged with Plan G as part 
of the sale, and employees of Division P who become employees of 
Corporation W will accrue benefits under the

[[Page 417]]

merged plan in accordance with the benefit formula of former Plan G.
    (ii) Conclusion. No section 204(h) notice is required because no 
plan amendment was adopted that reduces the rate of future benefit 
accrual or eliminates or significantly reduces an early retirement 
benefit or retirement-type subsidy. Under the terms of Plan F as in 
effect prior to the merger, employees of Division P cease to accrue any 
further benefits (including benefits with respect to early retirement 
benefits and any retirement-type subsidy) under Plan F after the date of 
the sale because their employment with Corporation V terminated.

    Q-17. How are amendments to cease accruals and terminate a plan 
treated under section 4980F and section 204(h)?
    A-17. (a) General rule--(1) Rule. An amendment providing for the 
cessation of benefit accruals on a specified future date and for the 
termination of a plan is subject to section 4980F and section 204(h).
    (2) Example. The following example illustrates the rule of paragraph 
(a)(1) of this Q&A-17:

    Example. (i) Facts. An employer adopts an amendment that provides 
for the cessation of benefit accruals under a defined benefit plan on 
December 31, 2003, and for the termination of the plan pursuant to title 
IV of ERISA as of a proposed termination date that is also December 31, 
2003. As part of the notice of intent to terminate required under title 
IV in order to terminate the plan, the plan administrator gives section 
204(h) notice of the amendment ceasing accruals, which states that 
benefit accruals will cease ``on December 31, 2003 whether or not the 
plan is terminated on that date.'' However, because all the requirements 
of title IV for a plan termination are not satisfied, the plan cannot be 
terminated until a date that is later than December 31, 2003.
    (ii) Conclusion. Nonetheless, because section 204(h) notice was 
given stating that the plan was amended to cease accruals on December 
31, 2003, section 204(h) does not prevent the amendment to cease 
accruals from being effective on December 31, 2003. The result would be 
the same had the section 204(h) notice informed the participants that 
the plan was amended to provide for a proposed termination date of 
December 31, 2003 and to provide that ``benefit accruals will cease on 
the proposed termination date whether or not the plan is terminated on 
that date.'' However, neither section 4980F nor section 204(h) would be 
satisfied with respect to the December 31, 2003 effective date if the 
section 204(h) notice had merely stated that benefit accruals would 
cease ``on the termination date'' or ``on the proposed termination 
date.''

    (3) Additional requirements under title IV of ERISA. See 29 CFR 
4041.23(b)(4) and 4041.43(b)(5) for special rules applicable to plans 
terminating under title IV of ERISA.
    (b) Terminations in accordance with title IV of ERISA. A plan that 
is terminated in accordance with title IV of ERISA is deemed to have 
satisfied section 4980F and section 204(h) not later than the 
termination date (or date of termination, as applicable) established 
under section 4048 of ERISA. Accordingly, neither section 4980F nor 
section 204(h) would in any event require that any additional benefits 
accrue after the effective date of the termination.
    (c) Amendment effective before termination date of a plan subject to 
title IV of ERISA. To the extent that an amendment providing for a 
significant reduction in the rate of future benefit accrual or a 
significant reduction in an early retirement benefit or retirement-type 
subsidy has an effective date that is earlier than the termination date 
(or date of termination, as applicable) established under section 4048 
of ERISA, that amendment is subject to section 4980F and section 204(h). 
Accordingly, the plan administrator must provide section 204(h) notice 
(either separately, with, or as part of the notice of intent to 
terminate) with respect to such an amendment.
    Q-18. What are the effective dates of section 4980F, section 204(h), 
as amended by EGTRRA, and these regulations?
    A-18. (a) Statutory effective date--(1) General rule. Section 4980F 
and section 204(h), as amended by EGTRRA, apply to plan amendments 
taking effect on or after June 7, 2001 (statutory effective date), which 
is the date of enactment of EGTRRA.
    (2) Transition rule. For amendments applying after the statutory 
effective date in paragraph (a)(1) of this Q&A-18 and prior to the 
regulatory effective date in paragraph (c) of this Q&A-18, the 
requirements of section 4980F(e)(2) and (3) of the Internal Revenue Code 
and section 204(h), as amended by EGTRRA, are treated as satisfied if 
the plan administrator makes a reasonable, good faith effort to comply 
with those requirements.

[[Page 418]]

    (3) Special notice rule--(i) In general. Notwithstanding Q&A-9 of 
this section, section 204(h) notice is not required by section 4980F(e) 
of the Internal Revenue Code or section 204(h), as amended by EGTRRA, to 
be provided prior to September 7, 2001 (the date that is three months 
after the date of enactment of EGTRRA).
    (ii) Reasonable notice. The requirements of section 4980F and 
section 204(h), as amended by EGTRRA, do not apply to any plan amendment 
that takes effect on or after June 7, 2001 if, before April 25, 2001, 
notice was provided to participants and beneficiaries adversely affected 
by the plan amendment (and their representatives) which was reasonably 
expected to notify them of the nature and effective date of the plan 
amendment. For purposes of this paragraph (a)(3)(ii), notice that 
complies with Sec.  1.411(d)-6 of this chapter, as it appeared in the 
April 1, 2001 edition of 26 CFR part 1, is deemed to be notice which was 
reasonably expected to notify participants and beneficiaries adversely 
affected by the plan amendment (and their representatives) of the nature 
and effective date of the plan amendment.
    (4) Special effective date for certain section 204(h) amendments 
made by plans of commercial airlines. Section 402 of PPA '06 applies to 
section 204(h) amendments adopted in plan years ending after August 17, 
2006.
    (5) Special effective date for rule relating to contributing 
employers. Section 502(c) of PPA '06, which amended section 4980F(e)(1) 
of the Internal Revenue Code, applies to section 204(h) amendments 
adopted in plan years beginning after December 31, 2007.
    (b) Regulatory effective date--(1) General effective date. Except as 
otherwise provided in this paragraph (b) of this section, Q&A-1 through 
Q&A-18 of this section apply to amendments with an effective date that 
is on or after September 1, 2003.
    (2) Effective date for Q&A-7(a)(2). Q&A-7(a)(2) of this section 
applies to amendments with an effective date that is on or after January 
1, 2004.
    (3) Effective dates for Q&A-9(g)(1), (g)(3), and (g)(4)--(i) General 
effective date. Except as otherwise provided in Q&A-18(b)(3)(ii) or 
(b)(3)(iii) of this section, Q&A-9(g)(1), (g)(3), and (g)(4) of this 
section apply to amendments that are effective on or after January 1, 
2008.
    (ii) Effective dates for Q&A-9(g)(2) and Q&A-7(b). Except as 
otherwise provided in Q&A-18(b)(3)(iii) of this section, Q&A-9(g)(2) and 
Q&A-7(b) of this section apply to section 204(h) amendments adopted in 
plan years beginning after July 1, 2008.
    (iii) Special rules for section 204(h) amendments to an applicable 
defined benefit plan. Except as otherwise provided in paragraph 
(b)(3)(i) or (b)(3)(ii) of this Q&A-18, with respect to any section 
204(h) notice provided in connection with a section 204(h) amendment to 
an applicable defined benefit plan within the meaning of section 
411(a)(13)(C)(i) to limit distributions as permitted under section 
411(a)(13)(A) for distributions made after August 17, 2006, that is made 
pursuant to section 701 of PPA '06, paragraphs (g)(1) and (g)(2) of Q&A-
9 of this section apply to amendments that are effective after December 
21, 2006. For such an amendment that is effective not later than 
December 31, 2008, section 204(h) notice does not fail to be timely if 
the notice is provided at least 30 days, rather than 45 days, before the 
date that the amendment is first effective.
    (c) Amendments taking effect prior to June 7, 2001. For rules 
applicable to amendments taking effect prior to June 7, 2001, see Sec.  
1.411(d)-6 of this chapter, as it appeared in the April 1, 2001 edition 
of 26 CFR part 1.

[T.D. 9052, 68 FR 17281, Apr. 9, 2003, as amended by T.D. 9219, 70 FR 
47126, Aug. 12, 2005; T.D. 9294, 71 FR 61888, Oct. 20, 2006; T.D. 9472, 
74 FR 61276, Nov. 24, 2009]



Sec.  54.4980G-0  Table of contents.

    This section contains the questions for Sec. Sec.  54.4980G-1, 
54.4980G-2, 54.4980G-3, 54.4980G-4, and 54.4980G-5.

 Sec.  54.4980G-1 Failure of employer to make comparable health savings 
                         account contributions.

    Q-1: What are the comparability rules that apply to employer 
contributions to Health Savings Accounts (HSAs)?
    Q-2: What are the categories of HDHP coverage for purposes of 
applying the comparability rules?

[[Page 419]]

    Q-3: What is the testing period for making comparable contributions 
to employees' HSAs?
    Q-4: How is the excise tax computed if employer contributions do not 
satisfy the comparability rules for a calendar year?

             Sec.  54.4980G-2 Employer contribution defined.

    Q-1: Do the comparability rules apply to amounts rolled over from an 
employee's HSA or Archer Medical Savings Account (Archer MSA)?
    Q-2: If an employee requests that his or her employer deduct after-
tax amounts from the employee's compensation and forward these amounts 
as employee contributions to the employee's HSA, do the comparability 
rules apply to these amounts?

          Sec.  54.4980G-3 Employee for comparability testing.

    Q-1: Do the comparability rules apply to contributions that an 
employer makes to the HSAs of independent contractors or self-employed 
individuals?
    Q-2: May a sole proprietor who is an eligible individual contribute 
to his or her own HSA without contributing to the HSAs of his or her 
employees who are eligible individuals?
    Q-3: Do the comparability rules apply to contributions by a 
partnership to a partner's HSA?
    Q-4: How are members of controlled groups treated when applying the 
comparability rules?
    Q-5: What are the categories of employees for comparability testing?
    Q-6: Are employees who are included in a unit of employees covered 
by a collective bargaining agreement comparable participating employees?
    Q-7: Is an employer permitted to make comparable contributions only 
to the HSAs of comparable participating employees who have coverage 
under the employer's HDHP?
    Q-8: If an employee and his or her spouse are eligible individuals 
who work for the same employer and one employee-spouse has family 
coverage for both employees under the employer's HDHP, must the employer 
make comparable contributions to the HSAs of both employees?
    Q-9: Does an employer that makes HSA contributions only for one 
class of non-collectively bargained employees who are eligible 
individuals, but not for another class of non-collectively bargained 
employees who are eligible individuals (for example, management v. non-
management) satisfy the requirement that the employer make comparable 
contributions?
    Q-10: If an employer contributes to the HSAs of former employees who 
are eligible individuals, do the comparability rules apply to these 
contributions?
    Q-11: Is an employer permitted to make comparable contributions only 
to the HSAs of comparable participating former employees who have 
coverage under the employer's HDHP?
    Q-12: If an employer contributes only to the HSAs of former 
employees who are eligible individuals with coverage under the 
employer's HDHP, must the employer make comparable contributions to the 
HSAs of former employees who are eligible individuals with coverage 
under the employer's HDHP because of an election under a COBRA 
continuation provision (as defined in section 9832(d)(1))?
    Q-13: How do the comparability rules apply if some employees have 
HSAs and other employees have Archer MSAs?

         Sec.  54.4980G-4 Calculating comparable contributions.

    Q-1: What are comparable contributions?
    Q-2: How does an employer comply with the comparability rules when 
some non-collectively bargained employees who are eligible individuals 
do not work for the employer during the entire calendar year?
    Q-3: How do the comparability rules apply to employer contributions 
to employees' HSAs if some non-collectively bargained employees work 
full-time during the entire calendar year, and other non-collectively 
bargained employees work full-time for less than the entire calendar 
year?
    Q-4: May an employer make contributions for the entire year to the 
HSAs of its employees who are eligible individuals at the beginning of 
the calendar year (i.e., on a pre-funded basis) instead of contributing 
on a pay-as-you-go or on a look-back basis?
    Q-5: Must an employer use the same contribution method as described 
in Q & A-2 and Q & A-4 of this section for all employees for any month 
during the calendar year?
    Q-6: How does an employer comply with the comparability rules if an 
employee has not established an HSA at the time the employer contributes 
to its employees' HSAs?
    Q-7: If an employer bases its contributions on a percentage of the 
HDHP deductible, how is the correct percentage or dollar amount 
computed?
    Q-8: Does an employer that contributes to the HSA of each comparable 
participating employee in an amount equal to the employee's HSA 
contribution or a percentage of the employee's HSA contribution 
(matching contributions) satisfy the rule that all comparable 
participating employees receive comparable contributions?
    Q-9: If an employer conditions contributions by the employer to an 
employee's HSA on an employee's participation in health assessments, 
disease management programs or wellness programs and makes the same 
contributions available to all employees who

[[Page 420]]

participate in the programs, do the contributions satisfy the 
comparability rules?
    Q-10: If an employer makes additional contributions to the HSAs of 
all comparable participating employees who have attained a specified age 
or who have worked for the employer for a specified number of years, do 
the contributions satisfy the comparability rules?
    Q-11: If an employer makes additional contributions to the HSAs of 
all comparable participating employees who are eligible to make the 
additional contributions (HSA catch-up contributions) under section 
223(b)(3), do the contributions satisfy the comparability rules?
    Q-12: If an employer's contributions to an employee's HSA result in 
non-comparable contributions, may the employer recoup the excess amount 
from the employee's HSA?
    Q-13: What constitutes a reasonable interest rate for purposes of 
making comparable contributions?
    Q-14: How does an employer comply with the comparability rules if an 
employee has not established an HSA by December 31st?
    Q-15: For any calendar year, may an employer accelerate part or all 
of its contributions for the entire year to the HSAs of employees who 
have incurred, during the calendar year, qualified medical expenses (as 
defined in section 223(d)(2)) exceeding the employer's cumulative HSA 
contributions at that time?
    Q-16: What is the effective date for the rules in Q & A-14 and Q & 
A-15 of this section?

Sec.  54.4980G-5 HSA comparability rules and cafeteria plans and waiver 
                             of excise tax.

    Q-1: If an employer makes contributions through a section 125 
cafeteria plan to the HSA of each employee who is an eligible 
individual, are the contributions subject to the comparability rules?
    Q-2: If an employer makes contributions through a cafeteria plan to 
the HSA of each employee who is an eligible individual in an amount 
equal to the amount of the employee's HSA contribution or a percentage 
of the amount of the employee's HSA contribution (i.e., matching 
contributions), are the contributions subject to the section 4980G 
comparability rules?
    Q-3: If under the employer's cafeteria plan, employees who are 
eligible individuals and who participate in health assessments, disease 
management programs or wellness programs receive an employer 
contribution to an HSA and the employees have the right to elect to make 
pre-tax salary reduction contributions to their HSAs, are the 
contributions subject to the comparability rules?
    Q-4: May all or part of the excise tax imposed under section 4980G 
be waived?

[T.D. 9277, 71 FR 43058, July 31, 2006; 71 FR 53967, Sept. 13, 2006, as 
amended by T.D. 9393, 73 FR 20795, Apr. 17, 2008]



Sec.  54.4980G-1  Failure of employer to make comparable 
health savings account contributions.

    Q-1: What are the comparability rules that apply to employer 
contributions to Health Savings Accounts (HSAs)?
    A-1: If an employer makes contributions to any employee's HSA, the 
employer must make comparable contributions to the HSAs of all 
comparable participating employees. See Q & A-1 in Sec.  54.4980G-4 for 
the definition of comparable contributions. Comparable participating 
employees are eligible individuals (as defined in section 223(c)(1)) who 
are in the same category of employees and who have the same category of 
high deductible health plan (HDHP) coverage. See sections 4980G(b) and 
4980E(d)(3). See section 223(c)(2) and (g) for the definition of an 
HDHP. See also Q & A-5 in Sec.  54.4980G-3 for the categories of 
employees and Q & A-2 of this section for the categories of HDHP 
coverage. But see Q & A-6 in Sec.  54.4980G-3 for treatment of 
collectively bargained employees and Q & A-1 in Sec.  54.4980G-6 for the 
rules allowing larger comparable contributions to nonhighly compensated 
employees.
    Q-2: What are the categories of HDHP coverage for purposes of 
applying the comparability rules?
    A-2: (a) In general. Generally, the categories of coverage are self-
only HDHP coverage and family HDHP coverage. Family HDHP coverage means 
any coverage other than self-only HDHP coverage. The comparability rules 
apply separately to self-only HDHP coverage and family HDHP coverage. In 
addition, if an HDHP has family coverage options meeting the 
descriptions listed in paragraph (b) of this Q & A-2, each such coverage 
option may be treated as a separate category of coverage and the 
comparability rules may be applied separately to each category. However, 
if the HDHP has more than one category that provides coverage for the 
same number of individuals, all such

[[Page 421]]

categories are treated as a single category for purposes of the 
comparability rules. Thus, the categories of ``employee plus spouse'' 
and ``employee plus dependent,'' each providing coverage for two 
individuals, are treated as the single category ``self plus one'' for 
comparability purposes. See, however, the final sentence of paragraph 
(a) of Q & A-1 of Sec.  54.4980G-4 for a special rule that applies if 
different amounts are contributed for different categories of family 
coverage. See also Sec.  54.4980G-6 for the rules allowing larger 
comparable contributions to nonhighly compensated employees.
    (b) HDHP Family coverage categories. The coverage categories are--
    (1) Self plus one;
    (2) Self plus two; and
    (3) Self plus three or more.
    (c) Examples. The rules of this Q & A-2 are illustrated by the 
following examples:

    Example 1. Employer A maintains an HDHP and contributes to the HSAs 
of eligible employees who elect coverage under the HDHP. The HDHP has 
self-only coverage and family coverage. Thus, the categories of coverage 
are self-only and family coverage. Employer A contributes $750 to the 
HSA of each eligible employee with self-only HDHP coverage and $1,000 to 
the HSA of each eligible employee with family HDHP coverage. Employer 
A's contributions satisfy the comparability rules.
    Example 2. (i) Employer B maintains an HDHP and contributes to the 
HSAs of eligible employees who elect coverage under the HDHP. The HDHP 
has the following coverage options:
    (A) Self-only;
    (B) Self plus spouse;
    (C) Self plus dependent;
    (D) Self plus spouse plus one dependent;
    (E) Self plus two dependents; and
    (F) Self plus spouse and two or more dependents.
    (ii) The self plus spouse category and the self plus dependent 
category constitute the same category of HDHP coverage (self plus one) 
and Employer B must make the same comparable contributions to the HSAs 
of all eligible individuals who are in either the self plus spouse 
category of HDHP coverage or the self plus dependent category of HDHP 
coverage. Likewise, the self plus spouse plus one dependent category and 
the self plus two dependents category constitute the same category of 
HDHP coverage (self plus two) and Employer B must make the same 
comparable contributions to the HSAs of all eligible individuals who are 
in either the self plus spouse plus one dependent category of HDHP 
coverage or the self plus two dependents category of HDHP coverage.
    Example 3. (i) Employer C maintains an HDHP and contributes to the 
HSAs of eligible employees who elect coverage under the HDHP. The HDHP 
has the following coverage options:
    (A) Self-only;
    (B) Self plus one;
    (C) Self plus two; and
    (D) Self plus three or more.
    (ii) Employer C contributes $500 to the HSA of each eligible 
employee with self-only HDHP coverage, $750 to the HSA of each eligible 
employee with self plus one HDHP coverage, $900 to the HSA of each 
eligible employee with self plus two HDHP coverage and $1,000 to the HSA 
of each eligible employee with self plus three or more HDHP coverage. 
Employer C's contributions satisfy the comparability rules.

    Q-3: What is the testing period for making comparable contributions 
to employees' HSAs?
    A-3: To satisfy the comparability rules, an employer must make 
comparable contributions for the calendar year to the HSAs of employees 
who are comparable participating employees. See section 4980G(a). See Q 
& A-3 and Q & A-4 in Sec.  54.4980G-4 for a discussion of HSA 
contribution methods.
    Q-4: How is the excise tax computed if employer contributions do not 
satisfy the comparability rules for a calendar year?
    A-4: (a) Computation of tax. If employer contributions do not 
satisfy the comparability rules for a calendar year, the employer is 
subject to an excise tax equal to 35% of the aggregate amount 
contributed by the employer to HSAs for that period.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-4:

    Example. During the 2007 calendar year, Employer D has 8 employees 
who are eligible individuals with self-only coverage under an HDHP 
provided by Employer D. The deductible for the HDHP is $2,000. For the 
2007 calendar year, Employer D contributes $2,000 each to the HSAs of 
two employees and $1,000 each to the HSAs of the other six employees, 
for total HSA contributions of $10,000. Employer D's contributions do 
not satisfy the comparability rules. Therefore, Employer D is subject to 
an excise tax of $3,500 (35% of $10,000) for its failure to make 
comparable contributions to its employees' HSAs.

[[Page 422]]

    Q-5: If a person is liable for the excise tax under section 4980G, 
what form must the person file and what is the due date for the filing 
and payment of the excise tax?
    A-5: (a) In general. Sec. Sec.  54.6011-2, 54.6151-1 and 54.6071-
1(d).
    (b) Effective/applicability date. The rules in this Q & A-5 are 
effective for employer contributions made for calendar years beginning 
on or after January 1, 2010.

[T.D. 9277, 71 FR 43058, July 31, 2006, as amended by T.D. 9457, 74 FR 
45997, Sept. 8, 2009]



Sec.  54.4980G-2  Employer contribution defined.

    Q-1: Do the comparability rules apply to amounts rolled over from an 
employee's HSA or Archer Medical Savings Account (Archer MSA)?
    A-1: No. The comparability rules do not apply to amounts rolled over 
from an employee's HSA or Archer MSA.
    Q-2: If an employee requests that his or her employer deduct after-
tax amounts from the employee's compensation and forward these amounts 
as employee contributions to the employee's HSA, do the comparability 
rules apply to these amounts?
    A-2: No. Section 106(d) provides that amounts contributed by an 
employer to an eligible employee's HSA shall be treated as employer-
provided coverage for medical expenses and are excludible from the 
employee's gross income up to the limit in section 223(b). After-tax 
employee contributions to an HSA are not subject to the comparability 
rules because they are not employer contributions under section 106(d).

[T.D. 9277, 71 FR 43058, July 31, 2006]



Sec.  54.4980G-3  Failure of employer to make comparable 
health savings account contributions.

    Q-1: Do the comparability rules apply to contributions that an 
employer makes to the HSAs of independent contractors or self-employed 
individuals?
    A-1: No. The comparability rules apply only to contributions that an 
employer makes to the HSAs of employees.
    Q-2: May a sole proprietor who is an eligible individual contribute 
to his or her own HSA without contributing to the HSAs of his or her 
employees who are eligible individuals?
    A-2: (a) Sole proprietor not an employee. Yes. The comparability 
rules apply only to contributions made by an employer to the HSAs of 
employees. Because a sole proprietor is not an employee, the 
comparability rules do not apply to contributions the sole proprietor 
makes to his or her own HSA. However, if a sole proprietor contributes 
to any employee's HSA, the sole proprietor must make comparable 
contributions to the HSAs of all comparable participating employees. In 
determining whether the comparability rules are satisfied, contributions 
that a sole proprietor makes to his or her own HSA are not taken into 
account.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-2:

    Example. In a calendar year, B, a sole proprietor is an eligible 
individual and contributes $1,000 to B's own HSA. B also contributes 
$500 for the same calendar year to the HSA of each employee who is an 
eligible individual. The comparability rules are not violated by B's 
$1,000 contribution to B's own HSA.

    Q-3: Do the comparability rules apply to contributions by a 
partnership to a partner's HSA?
    A-3: (a) Partner not an employee. No. Contributions by a partnership 
to a bona fide partner's HSA are not subject to the comparability rules 
because the contributions are not contributions by an employer to the 
HSA of an employee. The contributions are treated as either guaranteed 
payments under section 707(c) or distributions under section 731. 
However, if a partnership contributes to the HSAs of any employee who is 
not a partner, the partnership must make comparable contributions to the 
HSAs of all comparable participating employees.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-3:

    Example. (i) Partnership X is a limited partnership with three equal 
individual partners, A (a general partner), B (a limited partner), and C 
(a limited partner). C is to be paid $300 annually for services rendered 
to Partnership X in her capacity as a partner without regard to 
partnership income (a section 707(c) guaranteed payment). D and E are 
the only employees of Partnership X and are

[[Page 423]]

not partners in Partnership X. A, B, C, D, and E are eligible 
individuals and each has an HSA. During Partnership X's Year 1 taxable 
year, which is also a calendar year, Partnership X makes the following 
contributions--
    (A) A $300 contribution to each of A's and B's HSAs which are 
treated as section 731 distributions to A and B;
    (B) A $300 contribution to C's HSA in lieu of paying C the 
guaranteed payment directly; and
    (C) A $200 contribution to each of D's and E's HSAs, who are 
comparable participating employees.
    (ii) Partnership X's contributions to A's and B's HSAs are section 
731 distributions, which are treated as cash distributions. Partnership 
X's contribution to C's HSA is treated as a guaranteed payment under 
section 707(c). The contribution is not excludible from C's gross income 
under section 106(d) because the contribution is treated as a 
distributive share of partnership income for purposes of all Code 
sections other than sections 61(a) and 162(a), and a guaranteed payment 
to a partner is not treated as compensation to an employee. Thus, 
Partnership X's contributions to the HSAs of A, B, and C are not subject 
to the comparability rules. Partnership X's contributions to D's and E's 
HSAs are subject to the comparability rules because D and E are 
employees of Partnership X and are not partners in Partnership X. 
Partnership X's contributions satisfy the comparability rules.

    Q-4: How are members of controlled groups treated when applying the 
comparability rules?
    A-4: All persons or entities treated as a single employer under 
section 414 (b), (c), (m), or (o) are treated as one employer. See 
sections 4980G(b) and 4980E(e).
    Q-5: What are the categories of employees for comparability testing?
    A-5: (a) Categories. The categories of employees for comparability 
testing are as follows (but see Q & A-6 of this section for the 
treatment of collectively bargained employees and Q & A-1 of Sec.  
54.4980G-6 for a special rule for contributions made to the HSAs of 
nonhighly compensated employees)--
    (1) Current full-time employees;
    (2) Current part-time employees; and
    (3) Former employees (except for former employees with coverage 
under the employer's HDHP because of an election under a COBRA 
continuation provision (as defined in section 9832(d)(1)).
    (b) Part-time and full-time employees. For purposes of section 
4980G, part-time employees are customarily employed for fewer than 30 
hours per week and full-time employees are customarily employed for 30 
or more hours per week. See sections 4980G(b) and 4980E(d)(4)(A) and 
(B).
    (c) In general. Except as provided in Q & A-6 of this section, the 
categories of employees in paragraph (a) of this Q & A-5 are the 
exclusive categories of employees for comparability testing. An employer 
must make comparable contributions to the HSAs of all comparable 
participating employees (eligible individuals who are in the same 
category of employees with the same category of HDHP coverage) during 
the calendar year without regard to any classification other than these 
categories. For example, full-time eligible employees with self-only 
HDHP coverage and part-time eligible employees with self-only HDHP 
coverage are separate categories of employees and different amounts can 
be contributed to the HSAs for each of these categories. But see Sec.  
54.4980G-6 for a special rule for contributions made to the HSAs of 
nonhighly compensated employees.
    Q-6: Are employees who are included in a unit of employees covered 
by a collective bargaining agreement comparable participating employees?
    A-6: (a) In general. No. Collectively bargained employees who are 
covered by a bona fide collective bargaining agreement between employee 
representatives and one or more employers are not comparable 
participating employees, if health benefits were the subject of good 
faith bargaining between such employee representatives and such employer 
or employers. Former employees covered by a collective bargaining 
agreement also are not comparable participating employees.
    (b) Examples. The following examples illustrate the rules in 
paragraph (a) of this Q & A-6. The examples read as follows:

    Example 1. Employer A offers its employees an HDHP with a $1,500 
deductible for self-only coverage. Employer A has collectively bargained 
and non-collectively bargained employees. The collectively bargained 
employees are covered by a collective bargaining agreement under which 
health benefits were bargained in good faith. In the 2007

[[Page 424]]

calendar year, Employer A contributes $500 to the HSAs of all eligible 
non-collectively bargained employees with self-only coverage under 
Employer A's HDHP. Employer A does not contribute to the HSAs of the 
collectively bargained employees. Employer A's contributions to the HSAs 
of non-collectively bargained employees satisfy the comparability rules. 
The comparability rules do not apply to collectively bargained 
employees.
    Example 2. Employer B offers its employees an HDHP with a $1,500 
deductible for self-only coverage. Employer B has collectively bargained 
and non-collectively bargained employees. The collectively bargained 
employees are covered by a collective bargaining agreement under which 
health benefits were bargained in good faith. In the 2007 calendar year 
and in accordance with the terms of the collective bargaining agreement, 
Employer B contributes to the HSAs of all eligible collectively 
bargained employees. Employer B does not contribute to the HSAs of the 
non-collectively bargained employees. Employer B's contributions to the 
HSAs of collectively bargained employees are not subject to the 
comparability rules because the comparability rules do not apply to 
collectively bargained employees. Accordingly, Employer B's failure to 
contribute to the HSAs of the non-collectively bargained employees does 
not violate the comparability rules.
    Example 3. Employer C has two units of collectively bargained 
employees--unit Q and unit R--each covered by a collective bargaining 
agreement under which health benefits were bargained in good faith. In 
the 2007 calendar year and in accordance with the terms of the 
collective bargaining agreement, Employer C contributes to the HSAs of 
all eligible collectively bargained employees in unit Q. In accordance 
with the terms of the collective bargaining agreement, Employer C makes 
no HSA contributions for collectively bargained employees in unit R. 
Employer C's contributions to the HSAs of collectively bargained 
employees are not subject to the comparability rules because the 
comparability rules do not apply to collectively bargained employees.
    Example 4. Employer D has a unit of collectively bargained employees 
that are covered by a collective bargaining agreement under which health 
benefits were bargained in good faith. In accordance with the terms of 
the collective bargaining agreement, Employer D contributes an amount 
equal to a specified number of cents per hour for each hour worked to 
the HSAs of all eligible collectively bargained employees. Employer D's 
contributions to the HSAs of collectively bargained employees are not 
subject to the comparability rules because the comparability rules do 
not apply to collectively bargained employees.

    Q-7: Is an employer permitted to make comparable contributions only 
to the HSAs of comparable participating employees who have coverage 
under the employer's HDHP?
    A-7: (a) Employer-provided HDHP coverage. If during a calendar year, 
an employer contributes to the HSA of any employee who is an eligible 
individual covered under an HDHP provided by the employer, the employer 
is required to make comparable contributions to the HSAs of all 
comparable participating employees with coverage under any HDHP provided 
by the employer. An employer that contributes only to the HSAs of 
employees who are eligible individuals with coverage under the 
employer's HDHP is not required to make comparable contributions to HSAs 
of employees who are eligible individuals but are not covered under the 
employer's HDHP.
    (b) Non-employer provided HDHP coverage. An employer that 
contributes to the HSA of any employee who is an eligible individual 
with coverage under any HDHP that is not an HDHP provided by the 
employer, must make comparable contributions to the HSAs of all 
comparable participating employees whether or not covered under the 
employer's HDHP. An employer that makes a reasonable good faith effort 
to identify all comparable participating employees with non-employer 
provided HDHP coverage and makes comparable contributions to the HSAs of 
such employees satisfies the requirements in paragraph (b) of this Q & 
A-7.
    (c) Examples. The following examples illustrate the rules in this Q 
& A-7. None of the employees in the following examples are covered by a 
collective bargaining agreement. The examples read as follows:

    Example 1. In a calendar year, Employer E offers an HDHP to its 
full-time employees. Most full-time employees are covered under Employer 
E's HDHP and Employer E makes comparable contributions only to these 
employees' HSAs. Employee W, a full-time employee of Employer E and an 
eligible individual, is covered under an HDHP provided by the employer 
of W's spouse and not under Employer E's HDHP. Employer E is not 
required to make comparable contributions to W's HSA.

[[Page 425]]

    Example 2. In a calendar year, Employer F does not offer an HDHP. 
Several full-time employees of Employer F, who are eligible individuals, 
have HSAs. Employer F contributes to these employees' HSAs. Employer F 
must make comparable contributions to the HSAs of all full-time 
employees who are eligible individuals.
    Example 3. In a calendar year, Employer G offers an HDHP to its 
full-time employees. Most full-time employees are covered under Employer 
G's HDHP and Employer G makes comparable contributions to these 
employees' HSAs and also to the HSAs of full-time employees who are 
eligible individuals and who are not covered under Employer G's HDHP. 
Employee S, a full-time employee of Employer G and a comparable 
participating employee, is covered under an HDHP provided by the 
employer of S's spouse and not under Employer G's HDHP. Employer G must 
make comparable contributions to S's HSA.

    Q-8: If an employee and his or her spouse are eligible individuals 
who work for the same employer and one employee-spouse has family 
coverage for both employees under the employer's HDHP, must the employer 
make comparable contributions to the HSAs of both employees?
    A-8: (a) In general. If the employer makes contributions only to the 
HSAs of employees who are eligible individuals covered under its HDHP 
where only one employee-spouse has family coverage for both employees 
under the employer's HDHP, the employer is not required to contribute to 
the HSAs of both employee-spouses. The employer is required to 
contribute to the HSA of the employee-spouse with coverage under the 
employer's HDHP, but is not required to contribute to the HSA of the 
employee-spouse covered under the employer's HDHP by virtue of his or 
her spouse's coverage. However, if the employer contributes to the HSA 
of any employee who is an eligible individual with coverage under an 
HDHP that is not an HDHP provided by the employer, the employer must 
make comparable contributions to the HSAs of both employee-spouses if 
they are both eligible individuals. If an employer is required to 
contribute to the HSAs of both employee-spouses, the employer is not 
required to contribute amounts in excess of the annual contribution 
limits in section 223(b).
    (b) Examples. The following examples illustrate the rules in 
paragraph (a) of this Q & A-8. None of the employees in the following 
examples are covered by a collective bargaining agreement. The examples 
read as follows:

    Example 1. In a calendar year, Employer H offers an HDHP to its 
full-time employees. Most full-time employees are covered under Employer 
H's HDHP and Employer H makes comparable contributions only to these 
employees' HSAs. T and U are a married couple. Employee T, who is a 
full-time employee of Employer H and an eligible individual, has family 
coverage under Employer H's HDHP for T and T's spouse. Employee U, who 
is also a full-time employee of Employer H and an eligible individual, 
does not have coverage under Employer H's HDHP except as the spouse of 
Employee T. Employer H is required to make comparable contributions to 
T's HSA, but is not required to make comparable contributions to U's 
HSA.
    Example 2. In a calendar year, Employer J offers an HDHP to its 
full-time employees. Most full-time employees are covered under Employer 
J's HDHP and Employer J makes comparable contributions to these 
employees' HSAs and to the HSAs of full-time employees who are eligible 
individuals but are not covered under Employer J's HDHP. R and S are a 
married couple. Employee S, who is a full-time employee of Employer J 
and an eligible individual, has family coverage under Employer J's HDHP 
for S and S's spouse. Employee R, who is also a full-time employee of 
Employer J and an eligible individual, does not have coverage under 
Employer J's HDHP except as the spouse of Employee S. Employer J must 
make comparable contributions to S's HSA and to R's HSA.

    Q-9: Does an employer that makes HSA contributions only for one 
class of non-collectively bargained employees who are eligible 
individuals, but not for another class of non-collectively bargained 
employees who are eligible individuals (for example, management v. non-
management) satisfy the requirement that the employer make comparable 
contributions?
    A-9: (a) Different classes of employees. No. If the two classes of 
employees are comparable participating employees, the comparability 
rules are not satisfied. The only categories of employees for 
comparability purposes are current full-time employees, current part-
time employees, and former employees. Collectively bargained employees 
are not comparable participating employees.

[[Page 426]]

But see Q & A-1 in 54.4980G-5 on contributions made through a cafeteria 
plan. See Sec.  54.4980G-6 for a special rule for contributions made to 
the HSAs of nonhighly compensated employees.
    (b) Examples. The following examples illustrate the rules in 
paragraph (a) of this Q & A-9. None of the employees in the following 
examples are covered by a collective bargaining agreement. The examples 
read as follows:

    Example 1. In a calendar year, Employer K maintains an HDHP covering 
all management and non-management employees. Employer K contributes to 
the HSAs of non-management employees who are eligible individuals 
covered under its HDHP. Employer K does not contribute to the HSAs of 
its management employees who are eligible individuals covered under its 
HDHP. The comparability rules are not satisfied.
    Example 2. All of Employer L's employees are located in city X and 
city Y. In a calendar year, Employer L maintains an HDHP for all 
employees working in city X only. Employer L does not maintain an HDHP 
for its employees working in city Y. Employer L contributes $500 to the 
HSAs of city X employees who are eligible individuals with coverage 
under its HDHP. Employer L does not contribute to the HSAs of any of its 
city Y employees. The comparability rules are satisfied because none of 
the employees in city Y are covered under an HDHP of Employer L. 
(However, if any employees in city Y were covered by an HDHP of Employer 
L, Employer L could not fail to contribute to their HSAs merely because 
they work in a different city.)
    Example 3. Employer M has two divisions--division N and division O. 
In a calendar year, Employer M maintains an HDHP for employees working 
in division N and division O. Employer M contributes to the HSAs of 
division N employees who are eligible individuals with coverage under 
its HDHP. Employer M does not contribute to the HSAs of division O 
employees who are eligible individuals covered under its HDHP. The 
comparability rules are not satisfied.
    Q-10: If an employer contributes to the HSAs of former employees who 
are eligible individuals, do the comparability rules apply to these 
contributions?
    A-10: (a) Former employees. Yes. The comparability rules apply to 
contributions an employer makes to former employees' HSAs. Therefore, if 
an employer contributes to any former employee's HSA, it must make 
comparable contributions to the HSAs of all comparable participating 
former employees (former employees who are eligible individuals with the 
same category of HDHP coverage). However, an employer is not required to 
make comparable contributions to the HSAs of former employees with 
coverage under the employer's HDHP because of an election under a COBRA 
continuation provision (as defined in section 9832(d)(1)). See Q & A-5 
and Q & A-12 of this section. The comparability rules apply separately 
to former employees because they are a separate category of covered 
employee. See Q & A-5 of this section. Also, former employees who were 
covered by a collective bargaining agreement immediately before 
termination of employment are not comparable participating employees. 
See Q & A-6 of this section.
    (b) Locating former employees. An employer making comparable 
contributions to former employees must take reasonable actions to locate 
any missing comparable participating former employees. In general, such 
actions include the use of certified mail, the Internal Revenue Service 
Letter Forwarding Program or the Social Security Administration's Letter 
Forwarding Service.
    (c) Examples. The following examples illustrate the rules in 
paragraph (a) of this Q & A-10. None of the employees in the following 
examples are covered by a collective bargaining agreement. The examples 
read as follows:

    Example 1. In a calendar year, Employer N contributes $1,000 for the 
calendar year to the HSA of each current employee who is an eligible 
individual with coverage under any HDHP. Employer N does not contribute 
to the HSA of any former employee who is an eligible individual. 
Employer N's contributions satisfy the comparability rules.
    Example 2. In a calendar year, Employer O contributes to the HSAs of 
current employees and former employees who are eligible individuals 
covered under any HDHP. Employer O contributes $750 to the HSA of each 
current employee with self-only HDHP coverage and $1,000 to the HSA of 
each current employee with family HDHP coverage. Employer O also 
contributes $300 to the HSA of each former employee with self-only HDHP 
coverage and $400 to the HSA of each former employee with family HDHP 
coverage. Employer O's contributions satisfy the comparability rules.

    Q-11: Is an employer permitted to make comparable contributions only 
to

[[Page 427]]

the HSAs of comparable participating former employees who have coverage 
under the employer's HDHP?
    A-11: If during a calendar year, an employer contributes to the HSA 
of any former employee who is an eligible individual covered under an 
HDHP provided by the employer, the employer is required to make 
comparable contributions to the HSAs of all former employees who are 
comparable participating former employees with coverage under any HDHP 
provided by the employer. An employer that contributes only to the HSAs 
of former employees who are eligible individuals with coverage under the 
employer's HDHP is not required to make comparable contributions to the 
HSAs of former employees who are eligible individuals and who are not 
covered under the employer's HDHP. However, an employer that contributes 
to the HSA of any former employee who is an eligible individual with 
coverage under an HDHP that is not an HDHP of the employer, must make 
comparable contributions to the HSAs of all former employees who are 
eligible individuals whether or not covered under an HDHP of the 
employer.
    Q-12: If an employer contributes only to the HSAs of former 
employees who are eligible individuals with coverage under the 
employer's HDHP, must the employer make comparable contributions to the 
HSAs of former employees who are eligible individuals with coverage 
under the employer's HDHP because of an election under a COBRA 
continuation provision (as defined in section 9832(d)(1))?
    A-12: No. An employer that contributes only to the HSAs of former 
employees who are eligible individuals with coverage under the 
employer's HDHP is not required to make comparable contributions to the 
HSAs of former employees who are eligible individuals with coverage 
under the employer's HDHP because of an election under a COBRA 
continuation provision (as defined in section 9832(d)(1)).
    Q-13: How do the comparability rules apply if some employees have 
HSAs and other employees have Archer MSAs?
    A-13: (a) HSAs and Archer MSAs. The comparability rules apply 
separately to employees who have HSAs and employees who have Archer 
MSAs. However, if an employee has both an HSA and an Archer MSA, the 
employer may contribute to either the HSA or the Archer MSA, but not to 
both.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-13:

    Example. In a calendar year, Employer P contributes $600 to the 
Archer MSA of each employee who is an eligible individual and who has an 
Archer MSA. Employer P contributes $500 for the calendar year to the HSA 
of each employee who is an eligible individual and who has an HSA. If an 
employee has both an Archer MSA and an HSA, Employer P contributes to 
the employee's Archer MSA and not to the employee's HSA. Employee X has 
an Archer MSA and an HSA. Employer P contributes $600 for the calendar 
year to X's Archer MSA but does not contribute to X's HSA. Employer P's 
contributions satisfy the comparability rules.

[T.D. 9277, 71 FR 43058, July 31, 2006, as amended by T.D. 9457, 74 FR 
45998, Sept. 8, 2009]



Sec.  54.4980G-4  Calculating comparable contributions.

    Q-1: What are comparable contributions?
    A-1: (a) Definition. Contributions are comparable if, for each month 
in a calendar year, the contributions are either the same amount or the 
same percentage of the deductible under the HDHP for employees who are 
eligible individuals with the same category of coverage on the first day 
of that month. Employees with self-only HDHP coverage are tested 
separately from employees with family HDHP coverage. Similarly, 
employees with different categories of family HDHP coverage may be 
tested separately. See Q & A-2 in Sec.  54.4980G-1. An employer is not 
required to contribute the same amount or the same percentage of the 
deductible for employees who are eligible individuals with one category 
of HDHP coverage that it contributes for employees who are eligible 
individuals with a different category of HDHP coverage. For example, an 
employer that satisfies the comparability rules by contributing the same 
amount to the HSAs of all employees who are eligible individuals with 
family HDHP coverage is not required to contribute any amount to the 
HSAs of employees who

[[Page 428]]

are eligible individuals with self-only HDHP coverage, or to contribute 
the same percentage of the self-only HDHP deductible as the amount 
contributed with respect to family HDHP coverage. However, the 
contribution with respect to the self plus two category may not be less 
than the contribution with respect to the self plus one category and the 
contribution with respect to the self plus three or more category may 
not be less than the contribution with respect to the self plus two 
category. But see Q & A-1 of Sec.  54.4980G-6 for a special rule for 
contributions made to the HSAs of nonhighly compensated employees.
    (b) Examples. The following examples illustrate the rules in 
paragraph (a) of this Q & A-1. None of the employees in the following 
examples are covered by a collective bargaining agreement. The examples 
read as follows:

    Example 1. In the 2007 calendar year, Employer A offers its full-
time employees three health plans, including an HDHP with self-only 
coverage and a $2,000 deductible. Employer A contributes $1,000 for the 
calendar year to the HSA of each employee who is an eligible individual 
electing the self-only HDHP coverage. Employer A makes no HSA 
contributions for employees with family HDHP coverage or for employees 
who do not elect the employer's self-only HDHP. Employer A's HSA 
contributions satisfy the comparability rules.
    Example 2. In the 2007 calendar year, Employer B offers its 
employees an HDHP with a $3,000 deductible for self-only coverage and a 
$4,000 deductible for family coverage. Employer B contributes $1,000 for 
the calendar year to the HSA of each employee who is an eligible 
individual electing the self-only HDHP coverage. Employer B contributes 
$2,000 for the calendar year to the HSA of each employee who is an 
eligible individual electing the family HDHP coverage. Employer B's HSA 
contributions satisfy the comparability rules.
    Example 3. In the 2007 calendar year, Employer C offers its 
employees an HDHP with a $1,500 deductible for self-only coverage and a 
$3,000 deductible for family coverage. Employer C contributes $1,000 for 
the calendar year to the HSA of each employee who is an eligible 
individual electing the self-only HDHP coverage. Employer C contributes 
$1,000 for the calendar year to the HSA of each employee who is an 
eligible individual electing the family HDHP coverage. Employer C's HSA 
contributions satisfy the comparability rules.
    Example 4. In the 2007 calendar year, Employer D offers its 
employees an HDHP with a $1,500 deductible for self-only coverage and a 
$3,000 deductible for family coverage. Employer D contributes $1,500 for 
the calendar year to the HSA of each employee who is an eligible 
individual electing the self-only HDHP coverage. Employer D contributes 
$1,000 for the calendar year to the HSA of each employee who is an 
eligible individual electing the family HDHP coverage. Employer D's HSA 
contributions satisfy the comparability rules.
    Example 5. (i) In the 2007 calendar year, Employer E maintains two 
HDHPs. Plan A has a $2,000 deductible for self-only coverage and a 
$4,000 deductible for family coverage. Plan B has a $2,500 deductible 
for self-only coverage and a $4,500 deductible for family coverage. For 
the calendar year, Employer E makes contributions to the HSA of each 
full-time employee who is an eligible individual covered under Plan A of 
$600 for self-only coverage and $1,000 for family coverage. Employer E 
satisfies the comparability rules, if it makes either of the following 
contributions for the 2007 calendar year to the HSA of each full-time 
employee who is an eligible individual covered under Plan B--
    (A) $600 for each full-time employee with self-only coverage and 
$1,000 for each full-time employee with family coverage; or
    (B) $750 for each employee with self-only coverage and $1,125 for 
each employee with family coverage (the same percentage of the 
deductible Employer E contributes for full-time employees covered under 
Plan A, 30% of the deductible for self-only coverage and 25% of the 
deductible for family coverage).
    (ii) Employer E also makes contributions to the HSA of each part-
time employee who is an eligible individual covered under Plan A of $300 
for self-only coverage and $500 for family coverage. Employer E 
satisfies the comparability rules, if it makes either of the following 
contributions for the 2007 calendar year to the HSA of each part-time 
employee who is an eligible individual covered under Plan B--
    (A) $300 for each part-time employee with self-only coverage and 
$500 for each part-time employee with family coverage; or
    (B) $375 for each part-time employee with self-only coverage and 
$563 for each part-time employee with family coverage (the same 
percentage of the deductible Employer E contributes for part-time 
employees covered under Plan A, 15% of the deductible for self-only 
coverage and 12.5% of the deductible for family coverage).
    Example 6. (i) In the 2007 calendar year, Employer F maintains an 
HDHP. The HDHP has the following coverage options--
    (A) A $2,500 deductible for self-only coverage;
    (B) A $3,500 deductible for self plus one dependent (self plus one);

[[Page 429]]

    (C) A $3,500 deductible for self plus spouse (self plus one);
    (D) A $3,500 deductible for self plus spouse and one dependent (self 
plus two); and
    (E) A $3,500 deductible for self plus spouse and two or more 
dependents (self plus three or more).
    (ii) Employer F makes the following contributions for the calendar 
year to the HSA of each full-time employee who is an eligible individual 
covered under the HDHP--
    (A) $750 for self-only coverage;
    (B) $1,000 for self plus one dependent;
    (C) $1,000 for self plus spouse;
    (D) $1,500 for self plus spouse and one dependent; and
    (E) $2,000 for self plus spouse and two or more dependents.
    (iii) Employer F's HSA contributions satisfy the comparability 
rules.
    Example 7. (i) In a calendar year, Employer G offers its employees 
an HDHP and a health flexible spending arrangement (health FSA). The 
health FSA reimburses employees for medical expenses as defined in 
section 213(d). Some of Employer G's employees have coverage under the 
HDHP and the health FSA, some have coverage under the HDHP and their 
spouse's FSA, and some have coverage under the HDHP and are enrolled in 
Medicare. For the calendar year, Employer G contributes $500 to the HSA 
of each employee who is an eligible individual. No contributions are 
made to the HSAs of employees who have coverage under Employer G's 
health FSA or under a spouse's health FSA or who are enrolled in 
Medicare.
    (ii) The employees who have coverage under a health FSA (whether 
Employer H's or their spouse's FSA) or who are covered under Medicare 
are not eligible individuals. Specifically, the employees who have 
coverage under the health FSA or under a spouse's health FSA are not 
comparable participating employees because they are not eligible 
individuals under section 223(c)(1). Similarly, the employees who are 
enrolled in Medicare are not comparable participating employees because 
they are not eligible individuals under section 223(b)(7) and (c)(1). 
Therefore, employees who have coverage under the health FSA or under a 
spouse's health FSA and employees who are enrolled in Medicare are 
excluded from comparability testing. See sections 4980G(b) and 4980E. 
Employer G's contributions satisfy the comparability rules.

    Q-2: How does an employer comply with the comparability rules when 
some non-collectively bargained employees who are eligible individuals 
do not work for the employer during the entire calendar year?
    A-2: (a) In general. In determining whether the comparability rules 
are satisfied, an employer must take into account all full-time and 
part-time employees who were employees and eligible individuals for any 
month during the calendar year. (Full-time and part-time employees are 
tested separately. See Q & A-5 in Sec.  54.4980G-3.) There are two 
methods to comply with the comparability rules when some employees who 
are eligible individuals do not work for the employer during the entire 
calendar year; contributions may be made on a pay-as-you-go basis or on 
a look-back basis. See Q & A-9 through Q & A-11 in Sec.  54.4980G-3 for 
the rules regarding comparable contributions to the HSAs of former 
employees.
    (b) Contributions on a pay-as-you-go basis. An employer may comply 
with the comparability rules by contributing amounts at one or more 
dates during the calendar year to the HSAs of employees who are eligible 
individuals as of the first day of the month, if contributions are the 
same amount or the same percentage of the HDHP deductible for employees 
who are eligible individuals as of the first day of the month with the 
same category of coverage and are made at the same time. Contributions 
made at the employer's usual payroll interval for different groups of 
employees are considered to be made at the same time. For example, if 
salaried employees are paid monthly and hourly employees are paid bi-
weekly, an employer may contribute to the HSAs of hourly employees on a 
bi-weekly basis and to the HSAs of salaried employees on a monthly 
basis. An employer may change the amount that it contributes to the HSAs 
of employees at any point. However, the changed contribution amounts 
must satisfy the comparability rules.
    (c) Examples. The following examples illustrate the rules in 
paragraph (b) of this Q & A-2: The examples read as follows:

    Example 1. (i) Beginning on January 1st, Employer H contributes $50 
per month on the first day of each month to the HSA of each employee who 
is an eligible individual on that date. Employer H does not contribute 
to the HSAs of former employees. In mid-March of the same year, Employee 
X, an eligible individual, terminates employment after Employer H has 
contributed $150 to X's HSA. After X terminates employment, Employer H 
does not contribute additional

[[Page 430]]

amounts to X's HSA. In mid-April of the same year, Employer H hires 
Employee Y, an eligible individual, and contributes $50 to Y's HSA in 
May and $50 in June. Effective in July of the same year, Employer H 
stops contributing to the HSAs of all employees and makes no 
contributions to the HSA of any employee for the months of July through 
December. In August, Employer H hires Employee Z, an eligible 
individual. Employer H does not contribute to Z's HSA. After Z is hired, 
Employer H does not hire additional employees. As of the end of the 
calendar year, Employer H has made the following HSA contributions to 
its employees' HSAs--
    (A) Employer H contributed $150 to X's HSA;
    (B) Employer H contributed $100 to Y's HSA;
    (C) Employer H did not contribute to Z's HSA; and
    (D) Employer H contributed $300 to the HSA of each employee who was 
an eligible individual and employed by Employer J from January through 
June.
    (ii) Employer H's contributions satisfy the comparability rules.
    Example 2. In a calendar year, Employer J offers its employees an 
HDHP and contributes on a monthly pay-as-you-go basis to the HSAs of 
employees who are eligible individuals with coverage under Employer J's 
HDHP. In the calendar year, Employer J contributes $50 per month to the 
HSA of each employee with self-only HDHP coverage and $100 per month to 
the HSA of each employee with family HDHP coverage. From January 1st 
through March 31st of the calendar year, Employee X is an eligible 
individual with self-only HDHP coverage. From April 1st through December 
31st of the calendar year, X is an eligible individual with family HDHP 
coverage. For the months of January, February and March of the calendar 
year, Employer J contributes $50 per month to X's HSA. For the remaining 
months of the calendar year, Employer J contributes $100 per month to 
X's HSA. Employer J's contributions to X's HSA satisfy the comparibility 
rules.

    (d) Contributions on a look-back basis. An employer may also satisfy 
the comparability rules by determining comparable contributions for the 
calendar year at the end of the calendar year, taking into account all 
employees who were eligible individuals for any month during the 
calendar year and contributing the same percentage of the HDHP 
deductible or the same dollar amount to the HSAs of all employees with 
the same category of coverage for that month.
    (e) Examples. The following examples illustrate the rules in 
paragraph (d) of this Q & A-2. The examples read as follows:

    Example 1. In a calendar year, Employer K offers its employees an 
HDHP and contributes on a look-back basis to the HSAs of employees who 
are eligible individuals with coverage under Employer K's HDHP. Employer 
K contributes $600 ($50 per month) for the calendar year to the HSA of 
each employee with self-only HDHP coverage and $1,200 ($100 per month) 
for the calendar year to the HSA of each employee with family HDHP 
coverage. From January 1st through June 30th of the calendar year, 
Employee Y is an eligible individual with family HDHP coverage. From 
July 1st through December 31st, Y is an eligible individual with self-
only HDHP coverage. Employer K contributes $900 on a look-back basis for 
the calendar year to Y's HSA ($100) per month for the months of January 
through June and $50 per month for the months of July through December. 
Employer K's contributions to Y's HSA satisfy the comparability rules.
    Example 2. On December 31st, Employer L contributes $50 per month on 
a look-back basis to each employee's HSA for each month in the calendar 
year that the employee was an eligible individual. In mid-March of the 
same year, Employee T, an eligible individual, terminated employment. In 
mid-April of the same year, Employer L hired Employee U, who becomes an 
eligible individual as of May 1st and works for Employer L through 
December 31st. On December 31st, Employer L contributes $150 to Employee 
T's HSA and $400 to Employee U's HSA. Employer L's contributions satisfy 
the comparability rules.

    (f) Periods and dates for making contributions. With both the pay-
as-you-go method and the look-back method, an employer may establish, on 
a reasonable and consistent basis, periods for which contributions will 
be made (for example, a quarterly period covering three consecutive 
months in a calendar year) and the dates on which such contributions 
will be made for that designated period (for example, the first day of 
the quarter or the last day of the quarter in the case of an employer 
who has established a quarterly period for making contributions). An 
employer that makes contributions on a pay-as-you-go basis for a period 
covering more than one month will not fail to satisfy the comparability 
rules because an employee who terminates

[[Page 431]]

employment prior to the end of the period for which contributions were 
made has received more contributions on a monthly basis than employees 
who have worked the entire period. In addition, an employer that makes 
contributions on a pay-as-you-go basis for a period covering more than 
one month must make HSA contributions for any comparable participating 
employees hired after the date of initial funding for that period.
    (g) Example. The following example illustrates the rules in 
paragraph (f) of this Q & A-2:

    Example. Employer M has established, on a reasonable and consistent 
basis, a quarterly period for making contributions to the HSAs of 
eligible employees on a pay-as-you-go basis. Beginning on January 1st, 
Employer M contributes $150 for the first three months of the calendar 
year to the HSA of each employee who is an eligible individual on that 
date. On January 15th, Employee V, an eligible individual, terminated 
employment after Employer M has contributed $150 to V's HSA. On January 
15th, Employer M hired Employee W, who becomes an eligible individual as 
of February 1st. On April 1st, Employer M has contributed $100 to W's 
HSA for the two months (February and March) in the quarter period that 
Employee W was an eligible employee. Employer M's contributions satisfy 
the comparability rules.

    (h) Maximum contribution permitted for all employees who are 
eligible individuals during the last month of the taxable year. An 
employer may contribute up to the maximum annual contribution amount for 
the calendar year (based on the employees' HDHP coverage) to the HSAs of 
all employees who are eligible individuals on the first day of the last 
month of the employees' taxable year, including employees who worked for 
the employer for less than the entire calendar year and employees who 
became eligible individuals after January 1st of the calendar year. For 
example, such contribution may be made on behalf of an eligible 
individual who is hired after January 1st or an employee who becomes an 
eligible individual after January 1st. Employers are not required to 
provide more than a pro-rata contribution based on the number of months 
that an individual was an eligible individual and employed by the 
employer during the year. However, if an employer contributes more than 
a pro-rata amount for the calendar year to the HSA of any eligible 
individual who is hired after January 1st of the calendar year or any 
employee who becomes an eligible individual any time after January 1st 
of the calendar year, the employer must contribute that same amount on 
an equal and uniform basis to the HSAs of all comparable participating 
employees (as defined in Q & A-1 in Sec.  54.4980G-1) who are hired or 
become eligible individuals after January 1st of the calendar year. 
Likewise, if an employer contributes the maximum annual contribution 
amount for the calendar year to the HSA of any eligible individual who 
is hired after January 1st of the calendar year or any employee who 
becomes an eligible individual any time after January 1st of the 
calendar year, the employer must contribute the maximum annual 
contribution amount on an equal and uniform basis to the HSAs of all 
comparable participating employees (as defined in Q & A-1 in Sec.  
54.4980G-1) who are hired or become eligible individuals after January 
1st of the calendar year. An employer who makes the maximum calendar 
year contribution or more than a pro-rata contribution to the HSAs of 
employees who become eligible individuals after the first day of the 
calendar year or eligible individuals who are hired after the first day 
of the calendar year will not fail to satisfy comparability merely 
because some employees will have received more contributions on a 
monthly basis than employees who worked the entire calendar year.
    (i) Examples. The following examples illustrate the rules in 
paragraph (h) in this Q & A-2. In the following examples, no 
contributions are made through a section 125 cafeteria plan and none of 
the employees are covered by a collective bargaining agreement.

    Example 1. On January 1, 2010, Employer Q contributes $1,000 for the 
calendar year to the HSAs of employees who are eligible individuals with 
family HDHP coverage. In mid-March of the same year, Employer Q hires 
Employee A, an eligible individual with family HDHP coverage. On April 
1, 2010, Employer Q contributes $1,000 to the HSA of Employee A. In 
September of the same year, Employee B becomes an eligible individual 
with family HDHP coverage. On October 1, 2010, Employer G contributes 
$1,000 to the

[[Page 432]]

HSA of Employee B. Employer Q does not make any other contributions for 
the 2010 calendar year. Employer Q's contributions satisfy the 
comparability rules.
    Example 2. For the 2010 calendar year, Employer R only has two 
employees, Employee C and Employee D. Employee C, an eligible individual 
with family HDHP coverage, works for Employer R for the entire calendar 
year. Employee D, an eligible individual with family HDHP coverage works 
for Employer R from July 1st through December 31st. Employer R 
contributes $1,200 for the calendar year to the HSA of Employee C and 
$600 to the HSA of Employee D. Employer R does not make any other 
contributions for the 2010 calendar year. Employer R's contributions 
satisfy the comparability rules.

    (j) Effective/applicability date. The rules in paragraphs (h) and 
(i) of Q & A-2 are effective for employer contributions made for 
calendar years beginning on or after January 1, 2010.

    Q-3: How do the comparability rules apply to employer contributions 
to employees' HSAs if some non-collectively bargained employees work 
full-time during the entire calendar year, and other non-collectively 
bargained employees work full-time for less than the entire calendar 
year?
    A-3: Employer contributions to the HSAs of employees who work full-
time for less than twelve months satisfy the comparability rules if the 
contribution amount is comparable when determined on a month-to-month 
basis. For example, if the employer contributes $240 to the HSA of each 
full-time employee who works the entire calendar year, the employer must 
contribute $60 to the HSA of each full-time employee who works on the 
first day of each three months of the calendar year. The rules set forth 
in this Q & A-2 apply to employer contributions made on a pay-as-you-go 
basis or on a look-back basis as described in Q & A-3 of this section. 
See sections 4980G(b) and 4980E(d)(2)(B).
    Q-4: May an employer make contributions for the entire year to the 
HSAs of its employees who are eligible individuals at the beginning of 
the calendar year (on a pre-funded basis) instead of contributing on a 
pay-as-you-go or on a look-back basis?
    A-4: (a) Contributions on a pre-funded basis. Yes. An employer may 
make contributions for the entire year to the HSAs of its employees who 
are eligible individuals at the beginning of the calendar year. An 
employer that pre-funds the HSAs of its employees will not fail to 
satisfy the comparability rules because an employee who terminates 
employment prior to the end of the calendar year has received more 
contributions on a monthly basis than employees who work the entire 
calendar year. See Q & A-12 of this section. Under section 223(d)(1)(E), 
an account beneficiary's interest in an HSA is nonforfeitable. An 
employer must make comparable contributions for all employees who are 
comparable participating employees for any month during the calendar 
year, including employees who are eligible individuals hired after the 
date of initial funding. An employer that makes HSA contributions on a 
pre-funded basis may also contribute on a pre-funded basis to the HSAs 
of employees who are eligible individuals hired after the date of 
initial funding. Alternatively, an employer that has pre-funded the HSAs 
of comparable participating employees may contribute to the HSAs of 
employees who are eligible individuals hired after the date of initial 
funding on a pay-as-you-go basis or on a look-back basis. An employer 
that makes HSA contributions on a pre-funded basis must use the same 
contribution method for all employees who are eligible individuals hired 
after the date of initial funding.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-4:

    Example. (i) On January 1, Employer N contributes $1,200 for the 
calendar year on a pre-funded basis to the HSA of each employee who is 
an eligible individual. In mid-May, Employer N hires Employee B, who 
becomes an eligible individual as of June 1st. Therefore, Employer N is 
required to make comparable contributions to B's HSA beginning in June. 
Employer N satisfies the comparability rules with respect to 
contributions to B's HSA if it makes HSA contributions in any one of the 
following ways--
    (A) Pre-funding B's HSA by contributing $700 to B's HSA;
    (B) Contributing $100 per month on a pay-as-you-go basis to B's HSA; 
or
    (C) Contributing to B's HSA at the end of the calendar year taking 
into account each month that B was an eligible individual and employed 
by Employer M.

[[Page 433]]

    (ii) If Employer M hires additional employees who are eligible 
individuals after initial funding, it must use the same contribution 
method for these employees that it used to contribute to B's HSA.

    Q-5: Must an employer use the same contribution method as described 
in Q & A-2 and Q & A-4 of this section for all employees who were 
comparable participating employees for any month during the calendar 
year?
    A-5: Yes. If an employer makes comparable HSA contributions on a 
pay-as-you-go basis, it must do so for each employee who is a comparable 
participating employee as of the first day of the month. If an employer 
makes comparable contributions on a look-back basis, it must do so for 
each employee who was a comparable participating employee for any month 
during the calendar year. If an employer makes HSA contributions on a 
pre-funded basis, it must do so for all employees who are comparable 
participating employees at the beginning of the calendar year and must 
make comparable HSA contributions for all employees who are comparable 
participating employees for any month during the calendar year, 
including employees who are eligible individuals hired after the date of 
initial funding. See Q & A-4 of this section for rules regarding 
contributions for employees hired after initial funding.
    Q-6: How does an employer comply with the comparability rules if an 
employee has not established an HSA at the time the employer contributes 
to its employees' HSAs?
    A-6: (a) Employee has not established an HSA at the time the 
employer funds its employees' HSAs. If an employee has not established 
an HSA at the time the employer funds its employees' HSAs, the employer 
complies with the comparability rules by contributing comparable amounts 
plus reasonable interest to the employee's HSA when the employee 
establishes the HSA, taking into account each month that the employee 
was a comparable participating employee. See Q & A-13 of this section 
for rules regarding reasonable interest.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-6:

    Example. Beginning on January 1st, Employer O contributes $500 per 
calendar year on a pay-as-you-go basis to the HSA of each employee who 
is an eligible individual. Employee C is an eligible individual during 
the entire calendar year but does not establish an HSA until March. 
Notwithstanding C's delay in establishing an HSA, Employer O must make 
up the missed HSA contributions plus reasonable interest for January and 
February by April 15th of the following calendar year.
    Q-7: If an employer bases its contributions on a percentage of the 
HDHP deductible, how is the correct percentage or dollar amount 
computed?
    A-7: (a) Computing HSA contributions. The correct percentage is 
determined by rounding to the nearest 1/100th of a percentage point and 
the dollar amount is determined by rounding to the nearest whole dollar.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-7:

    Example. In this Example, assume that each HDHP provided by Employer 
P satisfies the definition of an HDHP for the 2007 calendar year. In the 
2007 calendar year, Employer P maintains two HDHPs. Plan A has a 
deductible of $3,000 for self-only coverage. Employer P contributes 
$1,000 for the calendar year to the HSA of each employee covered under 
Plan A. Plan B has a deductible of $3,500 for self-only coverage. 
Employer P satisfies the comparability rules if it makes either of the 
following contributions for the 2007 calendar year to the HSA of each 
employee who is an eligible individual with self-only coverage under 
Plan B--
    (i) $1,000; or
    (ii) $1,167 (33.33% of the deductible rounded to the nearest whole 
dollar amount).

    Q-8: Does an employer that contributes to the HSA of each comparable 
participating employee in an amount equal to the employee's HSA 
contribution or a percentage of the employee's HSA contribution 
(matching contributions) satisfy the rule that all comparable 
participating employees receive comparable contributions?
    A-8: No. If all comparable participating employees do not contribute 
the same amount to their HSAs and, consequently, do not receive 
comparable contributions to their HSAs, the comparability rules are not 
satisfied, notwithstanding that the employer offers

[[Page 434]]

to make available the same contribution amount to each comparable 
participating employee. But see Q & A-1 in Sec.  54.4980G-5 on 
contributions to HSAs made through a cafeteria plan.
    Q-9: If an employer conditions contributions by the employer to an 
employee's HSA on an employee's participation in health assessments, 
disease management programs or wellness programs and makes the same 
contributions available to all employees who participate in the 
programs, do the contributions satisfy the comparability rules?
    A-9: No. If all comparable participating employees do not elect to 
participate in all the programs and consequently, all comparable 
participating employees do not receive comparable contributions to their 
HSAs, the employer contributions fail to satisfy the comparability 
rules. But see Q & A-1 in Sec.  54.4980G-5 on contributions made to HSAs 
through a cafeteria plan.
    Q-10: If an employer makes additional contributions to the HSAs of 
all comparable participating employees who have attained a specified age 
or who have worked for the employer for a specified number of years, do 
the contributions satisfy the comparability rules?
    A-10: No. If all comparable participating employees do not meet the 
age or length of service requirement, all comparable participating 
employees do not receive comparable contributions to their HSAs and the 
employer contributions fail to satisfy the comparability rules.
    Q-11: If an employer makes additional contributions to the HSAs of 
all comparable participating employees who are eligible to make the 
additional contributions (HSA catch-up contributions) under section 
223(b)(3), do the contributions satisfy the comparability rules?
    A-11: No. If all comparable participating employees are not eligible 
to make the additional HSA contributions under section 223(b)(3), all 
comparable participating employees do not receive comparable 
contributions to their HSAs, and the employer contributions fail to 
satisfy the comparability rules.
    Q-12: If an employer's contributions to an employee's HSA result in 
non-comparable contributions, may the employer recoup the excess amount 
from the employee's HSA?
    A-12: No. An employer may not recoup from an employee's HSA any 
portion of the employer's contribution to the employee's HSA. Under 
section 223(d)(1)(E), an account beneficiary's interest in an HSA is 
nonforfeitable. However, an employer may make additional HSA 
contributions to satisfy the comparability rules. An employer may 
contribute up until April 15th following the calendar year in which the 
non-comparable contributions were made. An employer that makes 
additional HSA contributions to correct non-comparable contributions 
must also contribute reasonable interest. However, an employer is not 
required to contribute amounts in excess of the annual contribution 
limits in section 223(b). See Q & A-13 of this section for rules 
regarding reasonable interest.
    Q-13: What constitutes a reasonable interest rate for purposes of 
making comparable contributions?
    A-13: The determination of whether a rate of interest used by an 
employer is reasonable will be based on all of the facts and 
circumstances. If an employer calculates interest using the Federal 
short-term rate as determined by the Secretary in accordance with 
section 1274(d), the employer is deemed to use a reasonable interest 
rate.
    Q-14: Does an employer fail to satisfy the comparability rules for a 
calendar year if the employer fails to make contributions with respect 
to eligible employees because the employee has not established an HSA or 
because the employer does not know that the employee has established an 
HSA?
    A-14: (a) In general. An employer will not fail to satisfy the 
comparability rules for a calendar year (Year 1) merely because the 
employer fails to make contributions with respect to an eligible 
employee because the employee has not established an HSA or because the 
employer does not know that the employee has established an HSA, if--
    (1) The employer provides timely written notice to all such eligible 
employees that it will make comparable contributions for Year 1 for 
eligible employees who, by the last day of February of the following 
calendar year

[[Page 435]]

(Year 2), both establish an HSA and notify the employer (in accordance 
with a procedure specified in the notice) that they have established an 
HSA; and
    (2) For each such eligible employee who establishes an HSA and so 
notifies the employer on or before the last day of February of Year 2, 
the employer contributes to the HSA for Year 1 comparable amounts 
(taking into account each month that the employee was a comparable 
participating employee) plus reasonable interest by April 15th of Year 
2.
    (b) Notice. The notice described in paragraph (a) of this Q & A-14 
must be provided to each eligible employee who has not established an 
HSA by December 31 of Year 1 or if the employer does not know if the 
employee established an HSA. The employer may provide the notice to 
other employees as well. However, if an employee has earlier notified 
the employer that he or she has established an HSA, or if the employer 
has previously made contributions to that employee's HSA, the employer 
may not condition making comparable contributions on receipt of any 
additional notice from that employee. For each calendar year, a notice 
is deemed to be timely if the employer provides the notice no earlier 
than 90 days before the first HSA employer contribution for that 
calendar year and no later than January 15 of the following calendar 
year.
    (c) Model notice. Employers may use the following sample language as 
a basis in preparing their own notices.

Notice to Employees Regarding Employer Contributions to HSAs:

    This notice explains how you may be eligible to receive 
contributions from [employer] if you are covered by a High Deductible 
Health Plan (HDHP). [Employer] provides contributions to the Health 
Savings Account (HSA) of each employee who is [insert employer's 
eligibility requirements for HSA contributions] (``eligible employee''). 
If you are an eligible employee, you must do the following in order to 
receive an employer contribution:
    (1) Establish an HSA on or before the last day in February of 
[insert year after the year for which the contribution is being made] 
and;
    (2) Notify [insert name and contact information for appropriate 
person to be contacted] of your HSA account information on or before the 
last day in February of [insert year after year for which the 
contribution is being made]. [Specify the HSA account information that 
the employee must provide (e.g., account number, name and address of 
trustee or custodian, etc.) and the method by which the employee must 
provide this account information (e.g., in writing, by e-mail, on a 
certain form, etc.)].
    If you establish your HSA on or before the last day of February in 
[insert year after year for which the contribution is being made] and 
notify [employer] of your HSA account information, you will receive your 
HSA contributions, plus reasonable interest, for [insert year for which 
contribution is being made] by April 15 of [insert year after year for 
which contribution is being made]. If, however, you do not establish 
your HSA or you do not notify us of your HSA account information by the 
deadline, then we are not required to make any contributions to your HSA 
for [insert applicable year]. You may notify us that you have 
established an HSA by sending an [e-mail or] a written notice to [insert 
name, title and, if applicable, e-mail address]. If you have any 
questions about this notice, you can contact [insert name and title] at 
[insert telephone number or other contact information].

    (d) [Reserved]
    (e) Electronic delivery. An employer may furnish the notice required 
under this section electronically in accordance with Sec.  1.401(a)-21 
of this chapter.
    (f) Examples. The following examples illustrate the rules in this Q 
& A-14:

    Example 1. In a calendar year, Employer Q contributes to the HSAs of 
current employees who are eligible individuals covered under any HDHP. 
For the 2009 calendar year, Employer Q contributes $50 per month on the 
first day of each month, beginning January 1st, to the HSA of each 
employee who is an eligible employee on that date. For the 2009 calendar 
year, Employer Q provides written notice satisfying the content 
requirements of this Q & A-14 on October 16, 2008 to all employees 
regarding the availability of HSA contributions for eligible employees. 
For eligible employees who are hired after October 16, 2008, Employer Q 
provides such a notice no later than January 15, 2010. Employer Q's 
notice satisfies the notice timing requirements in paragraph (a)(1) of 
this Q & A-14.
    Example 2. Employer R's written cafeteria plan permits employees to 
elect to make pre-tax salary reduction contributions to their HSAs. 
Employees making this election have the right to receive cash or other 
taxable benefits in lieu of their HSA pre-tax contribution. Employer R 
automatically contributes a non-elective matching contribution to the 
HSA of each employee who makes a pre-tax HSA contribution. Because 
Employer R's HSA contributions are made

[[Page 436]]

through the cafeteria plan, the comparability requirements do not apply 
to the HSA contributions made by Employer R. Consequently, Employer R is 
not required to provide written notice to its employees regarding the 
availability of this matching HSA contribution. See Q & A-1 in Sec.  
54.4980G-5 for treatment of HSA contributions made through a cafeteria 
plan.
    Example 3. In a calendar year, Employer S maintains an HDHP and only 
contributes to the HSAs of eligible employees who elect coverage under 
its HDHP. For the 2009 calendar year, Employer S employs ten eligible 
employees and all ten employees have elected coverage under Employer S's 
HDHP and have established HSAs. For the 2009 calendar year, Employer S 
makes comparable contributions to the HSAs of all ten employees. 
Employer S satisfies the comparability rules. Thus, Employer S is not 
required to provide written notice to its employees regarding the 
availability of HSA contributions for eligible employees.
    Example 4. In a calendar year, Employer T contributes to the HSAs of 
current full-time employees with family coverage under any HDHP. For the 
2009 calendar year, Employer T provides timely written notice satisfying 
the content requirements of this section to all employees regardless of 
HDHP coverage. Employer T makes identical monthly contributions to all 
eligible employees (meaning full time employees with family HDHP 
coverage) that establish HSAs. Employer T contributes comparable amounts 
(taking into account each month that the employee was a comparable 
participating employee) plus reasonable interest to the HSAs of the 
eligible employees that establish HSAs and provide the necessary 
information after the end of the year but on or before the last day of 
February, 2010. Employer T makes no contribution to the HSAs of 
employees that do not establish an HSA or that do not provide the 
necessary information on or before the last day of February, 2010. 
Employer T satisfies the comparability requirements.
    Example 5. For the 2009 calendar year, Employer V contributes to the 
HSAs of current full time employees with family coverage under any HDHP. 
Employer V has 500 current full time employees. As of the date for 
Employer V's first HSA contribution for the 2009 calendar year, 450 
eligible employees have established HSAs. Employer V provides timely 
written notice satisfying the content requirements of this section only 
to those 50 eligible employees who have not established HSAs. Employer V 
makes identical quarterly contributions to the 450 eligible employees 
who established HSAs. By April 15, 2010, Employer V contributes 
comparable amounts to the other eligible employees who establish HSAs 
and provide the necessary information on or before the last day of 
February, 2010. Employer V makes no contribution to the HSAs of eligible 
employees that do not establish an HSA or that do not provide the 
necessary information on or before the last day of February, 2010. 
Employer V satisfies the comparability rules.

    Q-15: For any calendar year, may an employer accelerate part or all 
of its contributions for the entire year to the HSAs of employees who 
have incurred, during the calendar year, qualified medical expenses (as 
defined in section 223(d)(2)) exceeding the employer's cumulative HSA 
contributions at that time?
    A-15: (a) In general. Yes. For any calendar year, an employer may 
accelerate part or all of its contributions for the entire year to the 
HSAs of employees who have incurred, during the calendar year, qualified 
medical expenses exceeding the employer's cumulative HSA contributions 
at that time. If an employer accelerates contributions to the HSA of any 
such eligible employee, all accelerated contributions must be available 
throughout the calendar year on an equal and uniform basis to all such 
eligible employees. Employers must establish reasonable uniform methods 
and requirements for accelerated contributions and the determination of 
medical expenses.
    (b) Satisfying comparability. An employer that accelerates 
contributions to the HSAs of its employees will not fail to satisfy the 
comparability rules because employees who incur qualifying medical 
expenses exceeding the employer's cumulative HSA contributions at that 
time have received more contributions in a given period than comparable 
employees who do not incur such expenses, provided that all comparable 
employees receive the same amount or the same percentage for the 
calendar year. Also, an employer that accelerates contributions to the 
HSAs of its employees will not fail to satisfy the comparability rules 
because an employee who terminates employment prior to the end of the 
calendar year has received more contributions on a monthly basis than 
employees who work the entire calendar year. An employer is not required 
to contribute reasonable interest on either accelerated or non-
accelerated HSA contributions. But see Q & A-6 and Q &

[[Page 437]]

A-12 of this section for when reasonable interest must be paid.
    Q-16: What is the effective date for the rules in Q & A-14 and Q & 
A-15 of this section?
    A-16: These regulations apply to employer contributions made for 
calendar years beginning on or after January 1, 2009.

[T.D. 9277, 71 FR 43058, July 31, 2006; 71 FR 53967, Sept. 13, 2006, as 
amended by T.D. 9393, 73 FR 20795, Apr. 17, 2008; T.D. 9457, 74 FR 
45998, Sept. 8, 2009]



Sec.  54.4980G-5  HSA comparability rules and cafeteria plans 
and waiver of excise tax.

    Q-1: If an employer makes contributions through a section 125 
cafeteria plan to the HSA of each employee who is an eligible 
individual, are the contributions subject to the comparability rules?
    A-1: (a) In general. No. The comparability rules do not apply to HSA 
contributions that an employer makes through a section 125 cafeteria 
plan. However, contributions to an HSA made through a cafeteria plan are 
subject to the section 125 nondiscrimination rules (eligibility rules, 
contributions and benefits tests and key employee concentration tests). 
See section 125(b), (c) and (g) and the regulations thereunder.
    (b) Contributions made through a section 125 cafeteria plan. 
Employer contributions to employees' HSAs are made through a section 125 
cafeteria plan and are subject to the section 125 cafeteria plan 
nondiscrimination rules and not the comparability rules if under the 
written cafeteria plan, the employees have the right to elect to receive 
cash or other taxable benefits in lieu of all or a portion of an HSA 
contribution (meaning that all or a portion of the HSA contributions are 
available as pre-tax salary reduction amounts), regardless of whether an 
employee actually elects to contribute any amount to the HSA by salary 
reduction.
    Q-2: If an employer makes contributions through a cafeteria plan to 
the HSA of each employee who is an eligible individual in an amount 
equal to the amount of the employee's HSA contribution or a percentage 
of the amount of the employee's HSA contribution (matching 
contributions), are the contributions subject to the section 4980G 
comparability rules?
    A-2: No. The comparability rules do not apply to HSA contributions 
that an employer makes through a section 125 cafeteria plan. Thus, where 
matching contributions are made by an employer through a cafeteria plan, 
the contributions are not subject to the comparability rules of section 
4980G. However, contributions, including matching contributions, to an 
HSA made under a cafeteria plan are subject to the section 125 
nondiscrimination rules (eligibility rules, contributions and benefits 
tests and key employee concentration tests). See Q & A-1 of this 
section.
    Q-3: If under the employer's cafeteria plan, employees who are 
eligible individuals and who participate in health assessments, disease 
management programs or wellness programs receive an employer 
contribution to an HSA and the employees have the right to elect to make 
pre-tax salary reduction contributions to their HSAs, are the 
contributions subject to the comparability rules?
    A-3: (a) In general. No. The comparability rules do not apply to 
employer contributions to an HSA made through a cafeteria plan. See Q & 
A-1 of this section.
    (b) Examples. The following examples illustrate the rules in this 
Sec.  54.4980G-5. The examples read as follows:

    Example 1. Employer A's written cafeteria plan permits employees to 
elect to make pre-tax salary reduction contributions to their HSAs. 
Employees making this election have the right to receive cash or other 
taxable benefits in lieu of their HSA pre-tax contribution. The section 
125 cafeteria plan nondiscrimination rules and not the comparability 
rules apply because the HSA contributions are made through the cafeteria 
plan.
    Example 2. Employer B's written cafeteria plan permits employees to 
elect to make pre-tax salary reduction contributions to their HSAs. 
Employees making this election have the right to receive cash or other 
taxable

[[Page 438]]

benefits in lieu of their HSA pre-tax contribution. Employer B 
automatically contributes a non-elective matching contribution or seed 
money to the HSA of each employee who makes a pre-tax HSA contribution. 
The section 125 cafeteria plan nondiscrimination rules and not the 
comparability rules apply to Employer B's HSA contributions because the 
HSA contributions are made through the cafeteria plan.
    Example 3. Employer C's written cafeteria plan permits employees to 
elect to make pre-tax salary reduction contributions to their HSAs. 
Employees making this election have the right to receive cash or other 
taxable benefits in lieu of their HSA pre-tax contribution. Employer C 
makes a non-elective contribution to the HSAs of all employees who 
complete a health risk assessment and participate in Employer C's 
wellness program. Employees do not have the right to receive cash or 
other taxable benefits in lieu of Employer C's non-elective 
contribution. The section 125 cafeteria plan nondiscrimination rules and 
not the comparability rules apply to Employer C's HSA contributions 
because the HSA contributions are made through the cafeteria plan.
    Example 4. Employer D's written cafeteria plan permits employees to 
elect to make pre-tax salary reduction contributions to their HSAs. 
Employees making this election have the right to receive cash or other 
taxable benefits in lieu of their HSA pre-tax contribution. Employees 
participating in the plan who are eligible individuals receive automatic 
employer contributions to their HSAs. Employees make no election with 
respect to Employer D's contribution and do not have the right to 
receive cash or other taxable benefits in lieu of Employer D's 
contribution but are permitted to make their own pre-tax salary 
reduction contributions to fund their HSAs. The section 125 cafeteria 
plan nondiscrimination rules and not the comparability rules apply to 
Employer D's HSA contributions because the HSA contributions are made 
through the cafeteria plan.

    Q-4: May all or part of the excise tax imposed under section 4980G 
be waived?
    A-4: In the case of a failure which is due to reasonable cause and 
not to willful neglect, all or a portion of the excise tax imposed under 
section 4980G may be waived to the extent that the payment of the tax 
would be excessive relative to the failure involved. See sections 
4980G(b) and 4980E(c).

[T.D. 9277, 71 FR 43058, July 31, 2006]



Sec.  54.4980G-6  Special rule for contributions made to the HSAs 
of nonhighly compensated employees.

    Q-1: May an employer make larger contributions to the HSAs of 
nonhighly compensated employees than to the HSAs of highly compensated 
employees?
    A-1: Yes. Employers may make larger HSA contributions for nonhighly 
compensated employees who are comparable participating employees than 
for highly compensated employees who are comparable participating 
employees. See Q & A-1 in Sec.  54.4980G-1 for the definition of 
comparable participating employee. For purposes of this section, highly 
compensated employee is defined under section 414(q). Nonhighly 
compensated employees are employees that are not highly compensated 
employees. The comparability rules continue to apply with respect to 
contributions to the HSAs of all nonhighly compensated employees. 
Employers must make comparable contributions for the calendar year to 
the HSA of each nonhighly compensated employee who is a comparable 
participating employee.
    Q-2: May an employer make larger contributions to the HSAs of highly 
compensated employees than to the HSAs of nonhighly compensated 
employees?
    A-2: (a) In general. No. Employer contributions to HSAs for highly 
compensated employees who are comparable participating employees may not 
be larger than employer HSA contributions for nonhighly compensated 
employees who are comparable participating employees. The comparability 
rules continue to apply with respect to contributions to the HSAs of all 
highly compensated employees. Employers must make comparable 
contributions for the calendar year to the HSA of each highly 
compensated comparable participating employee. See Q & A-1 in Sec.  
54.4980G-1 for the definition of comparable participating employee.
    (b) Examples. The following examples illustrate the rules in Q & A-1 
and Q & A-2 of this section. No contributions are made through a section 
125 cafeteria plan and none of the employees in the following examples 
are covered by a collective bargaining agreement. All

[[Page 439]]

of the employees in the following examples have the same HDHP deductible 
for the same category of coverage.

    Example 1. In 2010, Employer A contributes $1,000 for the calendar 
year to the HSA of each full-time nonhighly compensated employee who is 
an eligible individual with self-only HDHP coverage. Employer A makes no 
contribution to the HSA of any full-time highly compensated employee who 
is an eligible individual with self-only HDHP coverage. Employer A's HSA 
contributions for calendar year 2010 satisfy the comparability rules.
    Example 2. In 2010, Employer B contributes $2,000 for the calendar 
year to the HSA of each full-time nonhighly compensated employee who is 
an eligible individual with self-only HDHP coverage. Employer B also 
contributes $1,000 for the calendar year to the HSA of each full-time 
highly compensated employee who is an eligible individual with self-only 
HDHP coverage. Employer B's HSA contributions for calendar year 2010 
satisfy the comparability rules.
    Example 3. In 2010, Employer C contributes $1,000 for the calendar 
year to the HSA of each full-time nonhighly compensated employee who is 
an eligible individual with self-only HDHP coverage. Employer C 
contributes $2,000 for the calendar year to the HSA of each full-time 
highly compensated employee who is an eligible individual with self-only 
HDHP coverage. Employer C's HSA contributions for calendar year 2010 do 
not satisfy the comparability rules.
    Example 4. In 2010, Employer D contributes $1,000 for the calendar 
year to the HSA of each full-time nonhighly compensated employee who is 
an eligible individual with self-only HDHP coverage. Employer D also 
contributes $1,000 to the HSA of each full-time highly compensated 
employee who is an eligible individual with self-only HDHP coverage. In 
addition, the employer contributes an additional $500 to the HSA of each 
nonhighly compensated employee who participates in a wellness program. 
The nonhighly compensated employees did not receive comparable 
contributions, and, therefore, Employer D's HSA contributions for 
calendar year 2010 do not satisfy the comparability rules.
    Example 5. In 2010, Employer E contributes $1,000 for the calendar 
year to the HSA of each full-time non-management nonhighly compensated 
employee who is an eligible individual with family HDHP coverage. 
Employer E also contributes $500 for the calendar year to the HSA of 
each full-time management nonhighly compensated employee who is an 
eligible individual with family HDHP coverage. The nonhighly compensated 
employees did not receive comparable contributions, and, therefore, 
Employer E's HSA contributions for calendar year 2010 do not satisfy the 
comparability rules.

    Q-3: May an employer make larger HSA contributions for employees 
with self plus two HDHP coverage than employees with self plus one HDHP 
coverage even if the employees with self plus two are all highly 
compensated employees and the employees with self plus one are all 
nonhighly compensated employees?
    A-3: (a) Yes. Q & A-1 in Sec.  54.4980G-4 provides that an 
employer's contribution with respect to the self plus two category of 
HDHP coverage may not be less than the contribution with respect to the 
self plus one category and the contribution with respect to the self 
plus three or more category may not be less than the contribution with 
respect to the self plus two category. Therefore, the comparability 
rules are not violated if an employer makes a larger HSA contribution 
for the self plus two category of HDHP coverage than to self plus one 
coverage, even if the employees with self plus two coverage are all 
highly compensated employees and the employees with self plus one 
coverage are all nonhighly compensated employees. Likewise, the 
comparability rules are not violated if an employer makes a larger HSA 
contribution for the self plus three category of HDHP coverage than to 
self plus two coverage, even if the employees with self plus three 
coverage are all highly compensated employees and the employees with 
self plus two coverage are all nonhighly compensated employees.
    (b) Example. The following example illustrates the rules in 
paragraph (a) of this Q & A-3. In the following example, no 
contributions are made through a section 125 cafeteria plan and none of 
the employees are covered by a collective bargaining agreement.

    Example. In 2010, Employer F contributes $1,000 for the calendar 
year to the HSA of each full-time employee who is an eligible individual 
with self plus one HDHP coverage. Employer F contributes $1,500 for the 
calendar year to the HSA of each employee who is an eligible individual 
with self plus two HDHP coverage. The deductible for both the self plus 
one HDHP and the self plus two HDHP is $2,000. Employee A, an eligible 
individual, is a nonhighly compensated employee with self plus one 
coverage. Employee B, an eligible individual, is a highly compensated

[[Page 440]]

employee with self plus two coverage. For the 2010 calendar year, 
Employer F contributes $1,000 to Employee A's HSA and $1,500 to Employee 
B's HSA. Employer F's HSA contributions satisfy the comparability rules.

    Q-4:What is the effective date for the rules in this section?
    A-4: The rules in this section are effective for employer 
contributions made for calendar years beginning on or after January 1, 
2010.

[T.D. 9457, 74 FR 45998, Sept. 8, 2009]



Sec.  54.4980G-7  Special comparability rules for qualified HSA distributions 
contributed to HSAs on or after December 20, 2006 and before January 1, 2012.

    Q-1 How do the comparability rules of section 4980G apply to 
qualified HSA distributions under section 106(e)(2)?
    A-1:The comparability rules of section 4980G do not apply to amounts 
contributed to employee HSAs through qualified HSA distributions. 
However, in order to satisfy the comparability rules, if an employer 
offers qualified HSA distributions, as defined in section 106(e)(2), to 
any employee who is an eligible individual covered under any HDHP, the 
employer must offer qualified HSA distributions to all employees who are 
eligible individuals covered under any HDHP. However, if an employer 
offers qualified HSA distributions only to employees who are eligible 
individuals covered under the employer's HDHP, the employer is not 
required to offer qualified HSA distributions to employees who are 
eligible individuals but are not covered under the employer's HDHP.
    Q-2: What is the effective date for the rules in this section?
    A-2: The rules in this section are effective for are effective for 
employer contributions made for calendar years beginning on or after 
January 1, 2010.

[T.D. 9457, 74 FR 45999, Sept. 8, 2009]



Sec.  54.4980H-0  Table of contents.

    This section lists the table of contents for Sec. Sec.  54.4980H-1 
through 54.4980H-6.

                      Sec.  54.4980H-1 Definitions.

    (a) Definitions.
    (1) Administrative period.
    (2) Advance credit payment.
    (3) Affordable Care Act.
    (4) Applicable large employer.
    (5) Applicable large employer member.
    (6) Applicable premium tax credit.
    (7) Bona fide volunteer.
    (8) Calendar month.
    (9) Church, or a convention or association of churches.
    (10) Collective bargaining agreement.
    (11) Cost-sharing reduction.
    (12) Dependent.
    (13) Educational organization.
    (14) Eligible employer-sponsored plan.
    (15) Employee.
    (16) Employer.
    (17) Employment break period.
    (18) Exchange.
    (19) Federal poverty line.
    (20) Form W-2 wages.
    (21) Full-time employee.
    (22) Full-time equivalent employee (FTE).
    (23) Government entity.
    (24) Hour of service.
    (25) Initial measurement period.
    (26) Limited non-assessment period for certain employees.
    (27) Minimum essential coverage.
    (28) Minimum value.
    (29) Month.
    (30) New employee.
    (31) Ongoing employee.
    (32) Part-time employee.
    (33) Period of employment.
    (34) Person.
    (35) Plan year.
    (36) Predecessor employer.
    (37) Qualified health plan.
    (38) Seasonal employee.
    (39) Seasonal worker.
    (40) Section 1411 certification.
    (41) Section 4980H(a) applicable payment amount.
    (42) Section 4980H(b) applicable payment amount.
    (43) Self-only coverage.
    (44) Special unpaid leave.
    (45) Stability period.
    (46) Standard measurement period.
    (47) Start date.
    (48) United States.
    (49) Variable hour employee.
    (50) Week.
    (b) Effective/applicability date.

Sec.  54.4980H-2 Applicable large employer and applicable large employer 
                                 member.

    (a) In general.
    (b) Determining applicable large employer status.
    (1) In general.
    (2) Seasonal worker exception.
    (3) Employers not in existence in preceding calendar year.
    (4) Special rules for government entities, churches, and conventions 
and associations of churches.

[[Page 441]]

    (5) Transition rule for an employer's first year as an applicable 
large employer.
    (c) Full-time equivalent employees (FTEs).
    (1) In general.
    (2) Calculating the number of FTEs.
    (d) Examples.
    (e) Additional guidance.
    (f) Effective/applicability date.

            Sec.  54.4980H-3 Determining full-time employees.

    (a) In general.
    (b) Hours of service.
    (1) In general.
    (2) Hourly employees calculation.
    (3) Non-hourly employees calculation.
    (c) Monthly measurement method.
    (1) In general.
    (2) Employee first otherwise eligible for an offer of coverage.
    (3) Use of weekly periods.
    (4) Employees rehired after termination of employment or resuming 
service after other absence.
    (5) Examples.
    (d) Look-back measurement method.
    (1) Ongoing employees.
    (2) New non-variable hour, new non-seasonal and new non-part-time 
employees.
    (3) New variable hour employees, new seasonal employees, and new 
part-time employees.
    (4) Transition from new variable hour employee, new seasonal 
employee, or new part-time employee to ongoing employee.
    (5) Examples.
    (6) Employees rehired after termination of employment or resuming 
service after other absence.
    (e) Use of the look-back measurement method and the monthly 
measurement method for different categories of employees.
    (f) Changes in employment status resulting in a change in full-time 
employee determination method.
    (1) Change in employment status from a position to which a look-back 
measurement method applies to a position to which the monthly 
measurement method applies, or vice versa.
    (2) Special rule for certain employees to whom minimum value 
coverage has been continuously offered.
    (g) Nonpayment or late payment of premiums.
    (h) Additional guidance.
    (i) Effective/applicability date.

      Sec.  54.4980H-4 Assessable payments under section 4980H(a).

    (a) In general.
    (b) Offer of coverage.
    (1) In general.
    (2) Offer of coverage on behalf of another entity.
    (c) Partial calendar month.
    (d) Application to applicable large employer member.
    (e) Allocated reduction of 30 full-time employees.
    (f) Example.
    (g) Additional guidance.
    (h) Effective/applicability date.

      Sec.  54.4980H-5 Assessable payments under section 4980H(b).

    (a) In general.
    (b) Offer of coverage.
    (c) Partial calendar month.
    (d) Applicability to applicable large employer member.
    (e) Affordability.
    (1) In general.
    (2) Affordability safe harbors for section 4980H(b) purposes.
    (f) Additional guidance.
    (g) Effective/applicability date.

             Sec.  54.4980H-6 Administration and procedure.

    (a) In general.
    (b) Effective/applicability date.

[T.D. 9655, 79 FR 8577, Feb. 12, 2014]



Sec.  54.4980H-1  Definitions.

    (a) Definitions. The definitions in this section apply only for 
purposes of this section and Sec. Sec.  54.4980H-2 through 54.4980H-6.
    (1) Administrative period. The term administrative period means an 
optional period, selected by an applicable large employer member, of no 
longer than 90 days beginning immediately following the end of a 
measurement period and ending immediately before the start of the 
associated stability period. The administrative period also includes the 
period between a new employee's start date and the beginning of the 
initial measurement period, if the initial measurement period does not 
begin on the employee's start date.
    (2) Advance credit payment. The term advance credit payment means an 
advance payment of the premium tax credit as provided in Affordable Care 
Act section 1412 (42 U.S.C. 18082).
    (3) Affordable Care Act. The term Affordable Care Act means the 
Patient Protection and Affordable Care Act, Public Law 111-148 (124 
Stat. 119 (2010)), and the Health Care and Education Reconciliation Act 
of 2010, Public Law 111-152 (124 Stat. 1029 (2010)), as amended by the 
Medicare and Medicaid Extenders Act of 2010, Public Law 111-309

[[Page 442]]

(124 Stat. 3285 (2010)), the Comprehensive 1099 Taxpayer Protection and 
Repayment of Exchange Subsidy Overpayments Act of 2011, Public Law 112-9 
(125 Stat. 36 (2011)), the Department of Defense and Full-Year 
Continuing Appropriations Act, 2011, Public Law 112-10 (125 Stat. 38 
(2011)), and the 3% Withholding Repeal and Job Creation Act, Public Law 
112-56 (125 Stat. 711 (2011)).
    (4) Applicable large employer. The term applicable large employer 
means, with respect to a calendar year, an employer that employed an 
average of at least 50 full-time employees (including full-time 
equivalent employees) on business days during the preceding calendar 
year. For rules relating to the determination of applicable large 
employer status, see Sec.  54.4980H-2.
    (5) Applicable large employer member. The term applicable large 
employer member means a person that, together with one or more other 
persons, is treated as a single employer that is an applicable large 
employer. For this purpose, if a person, together with one or more other 
persons, is treated as a single employer that is an applicable large 
employer on any day of a calendar month, that person is an applicable 
large employer member for that calendar month. If the applicable large 
employer comprises one person, that one person is the applicable large 
employer member. An applicable large employer member does not include a 
person that is not an employer or only an employer of employees with no 
hours of service for the calendar year. For rules for government 
entities, and churches, or conventions or associations of churches, see 
Sec.  54.4980H-2(b)(4).
    (6) Applicable premium tax credit. The term applicable premium tax 
credit means any premium tax credit that is allowed or paid under 
section 36B and any advance payment of such credit.
    (7) Bona fide volunteer. The term bona fide volunteer means an 
employee of a government entity or an organization described in section 
501(c) that is exempt from taxation under section 501(a) whose only 
compensation from that entity or organization is in the form of--
    (i) Reimbursement for (or reasonable allowance for) reasonable 
expenses incurred in the performance of services by volunteers, or
    (ii) Reasonable benefits (including length of service awards), and 
nominal fees, customarily paid by similar entities in connection with 
the performance of services by volunteers.
    (8) Calendar month. The term calendar month means one of the 12 full 
months named in the calendar, such as January, February, or March.
    (9) Church or a convention or association of churches. The term 
church or a convention or association of churches has the same meaning 
as provided in Sec.  1.170A-9(b).
    (10) Collective bargaining agreement. The term collective bargaining 
agreement means an agreement that the Secretary of Labor determines to 
be a collective bargaining agreement, provided that the health benefits 
provided under the collective bargaining agreement are the subject of 
good faith bargaining between employee representatives and one or more 
employers, and the agreement between employee representatives and one or 
more employers satisfies section 7701(a)(46).
    (11) Cost-sharing reduction. The term cost-sharing reduction means a 
cost-sharing reduction and any advance payment of the reduction as 
defined under section 1402 of the Affordable Care Act and 45 CFR 155.20.
    (12) Dependent. The term dependent means a child (as defined in 
section 152(f)(1) but excluding a stepson, stepdaughter or an eligible 
foster child (and excluding any individual who is excluded from the 
definition of dependent under section 152 by operation of section 
152(b)(3))) of an employee who has not attained age 26. A child attains 
age 26 on the 26th anniversary of the date the child was born. A child 
is a dependent for purposes of section 4980H for the entire calendar 
month during which he or she attains age 26. Absent knowledge to the 
contrary, applicable large employer members may rely on an employee's 
representation about that employee's children and the ages of those 
children. The term dependent does not include the spouse of an employee.
    (13) Educational organization. The term educational organization 
means an entity described in Sec.  1.170A-9(c)(1),

[[Page 443]]

whether or not described in section 501(c)(3) and tax-exempt under 
section 501(a). Thus, the term educational organization includes taxable 
entities, tax-exempt entities and government entities.
    (14) Eligible employer-sponsored plan. The term eligible employer-
sponsored plan has the same meaning as provided under section 
5000A(f)(2) and the regulations thereunder and any other applicable 
guidance.
    (15) Employee. The term employee means an individual who is an 
employee under the common-law standard. See Sec.  31.3401(c)-1(b). For 
purposes of this paragraph (a)(15), a leased employee (as defined in 
section 414(n)(2)), a sole proprietor, a partner in a partnership, a 2-
percent S corporation shareholder, or a worker described in section 3508 
is not an employee.
    (16) Employer. The term employer means the person that is the 
employer of an employee under the common-law standard. See Sec.  
31.3121(d)-1(c). For purposes of determining whether an employer is an 
applicable large employer, all persons treated as a single employer 
under section 414(b), (c), (m), or (o) are treated as a single employer. 
Thus, all employees of a controlled group of entities under section 
414(b) or (c), an affiliated service group under section 414(m), or an 
entity in an arrangement described under section 414(o), are taken into 
account in determining whether the members of the controlled group or 
affiliated service group together are an applicable large employer. For 
purposes of determining applicable large employer status, the term 
employer also includes a predecessor employer (see paragraph (a)(36) of 
this section) and a successor employer.
    (17) Employment break period. The term employment break period means 
a period of at least four consecutive weeks (disregarding special unpaid 
leave), measured in weeks, during which an employee of an educational 
organization is not credited with hours of service for an applicable 
large employer.
    (18) Exchange. The term Exchange means an Exchange as defined in 45 
CFR 155.20.
    (19) Federal poverty line. The term federal poverty line means for a 
plan year any of the poverty guidelines (updated periodically in the 
Federal Register by the Secretary of Health and Human Services under the 
authority of 42 U.S.C. 9902(2)) in effect within six months before the 
first day of the plan year of the applicable large employer member's 
health plan, as selected by the applicable large employer member.
    (20) Form W-2 wages. The term Form W-2 wages with respect to an 
employee refers to the amount of wages as defined under section 3401(a) 
for the applicable calendar year (required to be reported in Box 1 of 
the Form W-2 (Wage and Tax Statement)) received from an applicable large 
employer.
    (21) Full-time employee--(i) In general. The term full-time employee 
means, with respect to a calendar month, an employee who is employed an 
average of at least 30 hours of service per week with an employer. For 
rules on the determination of whether an employee is a full-time 
employee, including a description of the look-back measurement method 
and the monthly measurement method, see Sec.  54.4980H-3. The look-back 
measurement method for identifying full-time employees is available only 
for purposes of determining and computing liability under section 4980H 
and not for the purpose of determining status as an applicable large 
employer under Sec.  54.4980H-2.
    (ii) Monthly equivalency. Except as otherwise provided in paragraph 
(a)(21)(iii) of this section, 130 hours of service in a calendar month 
is treated as the monthly equivalent of at least 30 hours of service per 
week, and this 130 hours of service monthly equivalency applies for both 
the look-back measurement method and the monthly measurement method for 
determining full-time employee status.
    (iii) Determination of full-time employee status using weekly rule 
under the monthly measurement method. Under the optional weekly rule set 
forth in Sec.  54.4980H-3(c)(3), full-time employee status for certain 
calendar months is based on hours of service over four weekly periods 
and for certain other calendar months is based on hours of service over 
five weekly periods. With respect to a month with four weekly

[[Page 444]]

periods, an employee with at least 120 hours of service is a full-time 
employee, and with respect to a month with five weekly periods, an 
employee with at least 150 hours of service is a full-time employee. For 
purposes of this rule, the seven continuous calendar days that 
constitute a week (for example Sunday through Saturday) must be 
consistently applied for all calendar months of the calendar year.
    (22) Full-time equivalent employee (FTE). The term full-time 
equivalent employee, or FTE, means a combination of employees, each of 
whom individually is not treated as a full-time employee because he or 
she is not employed on average at least 30 hours of service per week 
with an employer, who, in combination, are counted as the equivalent of 
a full-time employee solely for purposes of determining whether the 
employer is an applicable large employer. For rules on the method for 
determining the number of an employer's full-time equivalent employees, 
or FTEs, see Sec.  54.4980H-2(c).
    (23) Government entity. The term government entity means the 
government of the United States, any State or political subdivision 
thereof, any Indian tribal government (as defined in section 
7701(a)(40)) or subdivision of an Indian tribal government (determined 
in accordance with section 7871(d)), or any agency or instrumentality of 
any of the foregoing.
    (24) Hour of service--(i) In general. The term hour of service means 
each hour for which an employee is paid, or entitled to payment, for the 
performance of duties for the employer; and each hour for which an 
employee is paid, or entitled to payment by the employer for a period of 
time during which no duties are performed due to vacation, holiday, 
illness, incapacity (including disability), layoff, jury duty, military 
duty or leave of absence (as defined in 29 CFR 2530.200b-2(a)). For the 
rules for determining an employee's hours of service, see Sec.  
54.4980H-3.
    (ii) Excluded hours--(A) Bona fide volunteers. The term hour of 
service does not include any hour for services performed as a bona fide 
volunteer.
    (B) Work-study program. The term hour of service does not include 
any hour for services to the extent those services are performed as part 
of a Federal Work-Study Program as defined under 34 CFR 675 or a 
substantially similar program of a State or political subdivision 
thereof.
    (C) Services outside the United States. The term hour of service 
does not include any hour for services to the extent the compensation 
for those services constitutes income from sources without the United 
States (within the meaning of sections 861 through 863 and the 
regulations thereunder).
    (iii) Service for other applicable large employer members. In 
determining hours of service and status as a full-time employee for all 
purposes under section 4980H, an hour of service for one applicable 
large employer member is treated as an hour of service for all other 
applicable large employer members for all periods during which the 
applicable large employer members are part of the same group of 
employers forming an applicable large employer.
    (25) Initial measurement period. The term initial measurement period 
means a period selected by an applicable large employer member of at 
least three consecutive months but not more than 12 consecutive months 
used by the applicable large employer as part of the look-back 
measurement method in Sec.  54.4980H-3(d).
    (26) Limited non-assessment period for certain employees. References 
to the limited non-assessment period for certain employees refers to the 
limited period during which an employer will not be subject to an 
assessable payment under section 4980H(a), and in certain cases section 
4980H(b), with respect to an employee as set forth in--
    (i) Section 54.4980H-2(b)(5) (regarding the transition rule for an 
employer's first year as an applicable large employer),
    (ii) Section 54.4980H-3(c)(2) (regarding the application of section 
4980H for the three full calendar month period beginning with the first 
full calendar month in which an employee is first otherwise eligible for 
an offer of coverage under the monthly measurement method),
    (iii) Section 54.4980H-3(d)(2)(iii) (regarding the application of 
section 4980H during the initial three full calendar months of 
employment for an employee reasonably expected to be a

[[Page 445]]

full-time employee at the start date, under the look-back measurement 
method),
    (iv) Section 54.4980H-3(d)(3)(iii) (regarding the application of 
section 4980H during the initial measurement period to a new variable 
hour employee, seasonal employee or part-time employee determined to be 
employed on average at least 30 hours of service per week, under the 
look-back measurement method),
    (v) Section 54.4980H-3(d)(3)(vii) (regarding the application of 
section 4980H following an employee's change in employment status to a 
full-time employee during the initial measurement period, under the 
look-back measurement method), and
    (vi) Section 54.4980H-4(c) and Sec.  54.4980H-5(c) (regarding the 
application of section 4980H to the calendar month in which an 
employee's start date occurs on a day other than the first day of the 
calendar month).
    (27) Minimum essential coverage. The term minimum essential 
coverage, or MEC, has the same meaning as provided in section 5000A(f) 
and any regulations or other guidance thereunder.
    (28) Minimum value. The term minimum value has the same meaning as 
provided in section 36B(c)(2)(C)(ii) and any regulations or other 
guidance thereunder.
    (29) Month. The term month means--
    (i) A calendar month as defined in paragraph (a)(8) of this section, 
or
    (ii) The period that begins on any date following the first day of a 
calendar month and that ends on the immediately preceding date in the 
immediately following calendar month (for example, from February 2 to 
March 1 or from December 15 to January 14).
    (30) New employee. Under the look-back measurement method, the term 
new employee means an employee who has been employed by an applicable 
large employer for less than one complete standard measurement period; 
for treatment of the employee as a new employee or continuing employee 
under the look-back measurement method following a period for which no 
hours of service are earned, see the rehire and continuing employee 
rules at Sec.  54.4980H-3(d)(6). Under the monthly measurement method, 
the term new employee means an employee who either has not previously 
been employed by the applicable large employer or has previously been 
employed by the applicable large employer but is treated as a new 
employee under the rehire and continuing employee rules at Sec.  
54.4980H-3(c)(4).
    (31) Ongoing employee. The term ongoing employee means an employee 
who has been employed by an applicable large employer member for at 
least one complete standard measurement period. For the treatment of an 
ongoing employee as a new employee or continuing employee following a 
period for which no hours of service are earned, see the rehire and 
continuing employee rules at Sec.  54.4980H-3(d)(6).
    (32) Part-time employee. The term part-time employee means a new 
employee who the applicable large employer member reasonably expects to 
be employed on average less than 30 hours of service per week during the 
initial measurement period, based on the facts and circumstances at the 
employee's start date. Whether an employer's determination that a new 
employee is a part-time employee is reasonable is based on the facts and 
circumstances at the employee's start date. Factors to consider in 
determining a new employee's full-time employee status are set forth in 
Sec.  54.4980H-3(d)(2)(ii).
    (33) Period of employment. The term period of employment means the 
period of time beginning on the first date for which an employee is 
credited with an hour of service for an applicable large employer 
(including any member of that applicable large employer) and ending on 
the last date on which the employee is credited with an hour of service 
for that applicable large employer, both dates inclusive. An employee 
may have one or more periods of employment with the same applicable 
large employer.
    (34) Person. The term person has the same meaning as provided in 
section 7701(a)(1) and the regulations thereunder.
    (35) Plan year. A plan year must be twelve consecutive months, 
unless a short plan year of less than twelve consecutive months is 
permitted for a valid business purpose. A plan year is permitted to 
begin on any day of a year

[[Page 446]]

and must end on the preceding day in the immediately following year (for 
example, a plan year that begins on October 15, 2015, must end on 
October 14, 2016). A calendar year plan year is a period of twelve 
consecutive months beginning on January 1 and ending on December 31 of 
the same calendar year. Once established, a plan year is effective for 
the first plan year and for all subsequent plan years, unless changed, 
provided that such change will only be recognized if made for a valid 
business purpose. A change in the plan year is not permitted if a 
principal purpose of the change in plan year is to circumvent the rules 
of section 4980H or these regulations.
    (36) Predecessor employer. [Reserved]
    (37) Qualified health plan. The term qualified health plan means a 
qualified health plan as defined in Affordable Care Act section 1301(a) 
(42 U.S.C. 18021(a)), but does not include a catastrophic plan described 
in Affordable Care Act section 1302(e) (42 U.S.C. 18022(e)).
    (38) Seasonal employee. The term seasonal employee means an employee 
who is hired into a position for which the customary annual employment 
is six months or less.
    (39) Seasonal worker. The term seasonal worker means a worker who 
performs labor or services on a seasonal basis as defined by the 
Secretary of Labor, including (but not limited to) workers covered by 29 
CFR 500.20(s)(1), and retail workers employed exclusively during holiday 
seasons. Employers may apply a reasonable, good faith interpretation of 
the term seasonal worker and a reasonable good faith interpretation of 
29 CFR 500.20(s)(1) (including as applied by analogy to workers and 
employment positions not otherwise covered under 29 CFR 500.20(s)(1)).
    (40) Section 1411 Certification. The term Section 1411 Certification 
means the certification received as part of the process established by 
the Secretary of Health and Human Services under which an employee is 
certified to the employer under section 1411 of the Affordable Care Act 
as having enrolled for a calendar month in a qualified health plan with 
respect to which an applicable premium tax credit or cost-sharing 
reduction is allowed or paid with respect to the employee.
    (41) Section 4980H(a) applicable payment amount. The term section 
4980H(a) applicable payment amount means, with respect to any calendar 
month, 1/12 of $2,000, adjusted for inflation in accordance with section 
4980H(c)(5) and any applicable guidance thereunder.
    (42) Section 4980H(b) applicable payment amount. The term section 
4980H(b) applicable payment amount means, with respect to any calendar 
month, 1/12 of $3,000, adjusted for inflation in accordance with section 
4980H(c)(5) and any applicable guidance thereunder.
    (43) Self-only coverage. The term self-only coverage means health 
insurance coverage provided to only one individual, generally the 
employee.
    (44) Special unpaid leave. The term special unpaid leave means--
    (i) Unpaid leave that is subject to the Family and Medical Leave Act 
of 1993 (FMLA), Public Law 103-3, 29 U.S.C. 2601 et seq.;
    (ii) Unpaid leave that is subject to the Uniformed Services 
Employment and Reemployment Rights Act of 1994 (USERRA), Public Law 103-
353, 38 U.S.C. 4301 et seq.; or
    (iii) Unpaid leave on account of jury duty.
    (45) Stability period. The term stability period means a period 
selected by an applicable large employer member that immediately 
follows, and is associated with, a standard measurement period or an 
initial measurement period (and, if elected by the employer, the 
administrative period associated with that standard measurement period 
or initial measurement period), and is used by the applicable large 
employer member as part of the look-back measurement method in Sec.  
54.4980H-3(d).
    (46) Standard measurement period. The term standard measurement 
period means a period of at least three but not more than 12 consecutive 
months that is used by an applicable large employer member as part of 
the look-back measurement method in Sec.  54.4980H-3(d). See Sec.  
54.4980H-3(d)(1)(ii) for rules on the use of payroll periods that 
include the beginning and end dates of the measurement period.

[[Page 447]]

    (47) Start date. The term start date means the first date on which 
an employee is required to be credited with an hour of service with an 
employer. For rules relating to when, following a period for which an 
employee does not earn an hour of service, that employee may be treated 
as a new employee with a new start date rather than a continuing 
employee, see the rehire and continuing employee rules at Sec.  
54.4980H-3(c)(4) and Sec.  54.4980H-3(d)(6).
    (48) United States. The term United States means United States as 
defined in section 7701(a)(9).
    (49) Variable hour employee--(i) In general. The term variable hour 
employee means an employee if, based on the facts and circumstances at 
the employee's start date, the applicable large employer member cannot 
determine whether the employee is reasonably expected to be employed on 
average at least 30 hours of service per week during the initial 
measurement period because the employee's hours are variable or 
otherwise uncertain.
    (ii) Factors--(A) In general. Factors to consider in determining 
whether it can be determined that the employee is reasonably expected to 
be (or reasonably expected not to be) employed on average at least 30 
hours of service per week during the initial measurement period include, 
but are not limited to, whether the employee is replacing an employee 
who was a full-time employee or a variable hour employee, the extent to 
which the hours of service of employees in the same or comparable 
positions have actually varied above and below an average of 30 hours of 
service per week during recent measurement periods, and whether the job 
was advertised, or otherwise communicated to the new employee or 
otherwise documented (for example, through a contract or job 
description) as requiring hours of service that would average at least 
30 hours of service per week, less than 30 hours of service per week, or 
may vary above and below an average of 30 hours of service per week. 
These factors are only relevant for a particular new employee if the 
employer has no reason to anticipate that the facts and circumstances 
related to that new employee will be different. In all cases, no single 
factor is determinative. For purposes of determining whether an employee 
is a variable hour employee, the applicable large employer member may 
not take into account the likelihood that the employee may terminate 
employment with the applicable large employer (including any member of 
the applicable large employer) before the end of the initial measurement 
period.
    (B) Additional factors for an employee hired by an employer for 
temporary placement at an unrelated entity. In the case of an individual 
who, under all the facts and circumstances, is the employee of an entity 
(referred to solely for purposes of this paragraph (a)(49) as a 
``temporary staffing firm'') that hired such individual for temporary 
placement at an unrelated entity that is not the common law employer, 
additional factors to consider to determine whether the employee is 
reasonably expected to be (or reasonably expected not to be) employed by 
the temporary staffing firm on average at least 30 hours of service per 
week during the initial measurement period include, but are not limited 
to, whether other employees in the same position of employment with the 
temporary staffing firm, as part of their continuing employment, retain 
the right to reject temporary placements that the temporary staffing 
firm offers the employee; typically have periods during which no offer 
of temporary placement is made; typically are offered temporary 
placements for differing periods of time; and typically are offered 
temporary placements that do not extend beyond 13 weeks.
    (C) Educational organizations. An employer that is an educational 
organization cannot take into account the potential for, or likelihood 
of, an employment break period in determining its expectation of future 
hours of service.
    (iii) Application only for look-back measurement method. The term 
variable hour employee is used as a category of employees under the 
look-back measurement method and is not relevant to the monthly 
measurement method.
    (50) Week. The term week means any period of seven consecutive 
calendar days applied consistently by the applicable large employer 
member.

[[Page 448]]

    (b) Effective/applicability date. This section is applicable for 
periods after December 31, 2014.

[T.D. 9655, 79 FR 8577, Feb. 12, 2014]



Sec.  54.4980H-2  Applicable large employer and applicable 
large employer member.

    (a) In general. Section 4980H applies to an applicable large 
employer and to all of the applicable large employer members that 
comprise that applicable large employer.
    (b) Determining applicable large employer status--(1) In general. An 
employer's status as an applicable large employer for a calendar year is 
determined by taking the sum of the total number of full-time employees 
(including any seasonal workers) for each calendar month in the 
preceding calendar year and the total number of FTEs (including any 
seasonal workers) for each calendar month in the preceding calendar 
year, and dividing by 12. The result, if not a whole number, is then 
rounded to the next lowest whole number. If the result of this 
calculation is less than 50, the employer is not an applicable large 
employer for the current calendar year. If the result of this 
calculation is 50 or more, the employer is an applicable large employer 
for the current calendar year, unless the seasonal worker exception in 
paragraph (b)(2) of this section applies.
    (2) Seasonal worker exception. If the sum of an employer's full-time 
employees and FTEs exceeds 50 for 120 days or less during the preceding 
calendar year, and the employees in excess of 50 who were employed 
during that period of no more than 120 days are seasonal workers, the 
employer is not considered to employ more than 50 full-time employees 
(including FTEs) and the employer is not an applicable large employer 
for the current calendar year. In the case of an employer that was not 
in existence on any business day during the preceding calendar year, if 
the employer reasonably expects that the sum of its full-time employees 
and FTEs for the current calendar year will exceed 50 for 120 days or 
less during the calendar year, and that the employees in excess of 50 
who will be employed during that period of no more than 120 days will be 
seasonal workers, the employer is not an applicable large employer for 
the current calendar year. For purposes of this paragraph (b)(2) only, 
four calendar months may be treated as the equivalent of 120 days. The 
four calendar months and the 120 days are not required to be 
consecutive.
    (3) Employers not in existence in preceding calendar year. An 
employer not in existence throughout the preceding calendar year is an 
applicable large employer for the current calendar year if the employer 
is reasonably expected to employ an average of at least 50 full-time 
employees (taking into account FTEs) on business days during the current 
calendar year and it actually employs an average of at least 50 full-
time employees (taking into account FTEs) on business days during the 
calendar year. An employer is treated as not having been in existence 
throughout the prior calendar year only if the employer was not in 
existence on any business day in the prior calendar year. See paragraph 
(b)(2) of this section for the application of the seasonal worker 
exception to employers not in existence in the preceding calendar year.
    (4) Special rules for government entities, churches, and conventions 
and associations of churches. [Reserved]
    (5) Transition rule for an employer's first year as an applicable 
large employer. With respect to an employee who was not offered coverage 
by the employer at any point during the prior calendar year, if the 
applicable large employer offers coverage to the employee on or before 
April 1 of the first calendar year for which the employer is an 
applicable large employer, the employer will not be subject to an 
assessable payment under section 4980H by reason of its failure to offer 
coverage to the employee for January through March of that year, 
provided that this relief applies only with respect to potential 
liability under section 4980H(b) (for January through March of the first 
calendar year for which the employer is an applicable large employer) if 
the coverage offered by April 1 provides minimum value. If the employer 
does not offer coverage to the employee by April 1, the employer may be 
subject to a section 4980H(a) assessable payment with respect January 
through March of

[[Page 449]]

the first calendar year for which the employer is an applicable large 
employer in addition to any later calendar months for which coverage was 
not offered. If the employer offers coverage to the employee by April 1 
that does not provided minimum value, the employer may be subject to a 
section 4980H(b) assessable payment with respect to the employee for 
January through March of the first calendar year for which the employer 
is an applicable large employer in addition to any later calendar months 
for which coverage does not provide minimum value or is not affordable. 
This rule applies only during the first year that an employer is an 
applicable large employer (and would not apply if, for example, the 
employer falls below the 50 full-time employee (plus FTE) threshold for 
a subsequent calendar year and then increases employment and becomes an 
applicable large employer again).
    (c) Full-time equivalent employees (FTEs)--(1) In general. In 
determining whether an employer is an applicable large employer, the 
number of FTEs it employed during the preceding calendar year is taken 
into account. All employees (including seasonal workers) who were not 
employed on average at least 30 hours of service per week for a calendar 
month in the preceding calendar year are included in calculating the 
employer's FTEs for that calendar month.
    (2) Calculating the number of FTEs. The number of FTEs for each 
calendar month in the preceding calendar year is determined by 
calculating the aggregate number of hours of service for that calendar 
month for employees who were not full-time employees (but not more than 
120 hours of service for any employee) and dividing that number by 120. 
In determining the number of FTEs for each calendar month, fractions are 
taken into account; an employer may round the number of FTEs for each 
calendar month to the nearest one hundredth.
    (d) Examples. The following examples illustrate the rules of 
paragraphs (a) through (c) of this section. In these examples, hours of 
service are computed following the rules set forth in Sec.  54.4980H-3, 
and references to years refer to calendar years unless otherwise 
specified. The employers in Example 2 through Example 6 are each the 
sole applicable large employer member of the applicable large employer, 
as determined under section 414(b), (c), (m), and (o).

    Example 1 (Applicable large employer/controlled group). (i) Facts. 
For all of 2015 and 2016, Corporation Z owns 100 percent of all classes 
of stock of Corporation Y and Corporation X. Corporation Z has no 
employees at any time in 2015. For every calendar month in 2015, 
Corporation Y has 40 full-time employees and Corporation X has 60 full-
time employees. Corporations Z, Y, and X are a controlled group of 
corporations under section 414(b).
    (ii) Conclusion. Because Corporations Z, Y and X have a combined 
total of 100 full-time employees during 2015, Corporations Z, Y, and X 
together are an applicable large employer for 2016. Each of Corporations 
Z, Y and X is an applicable large employer member for 2016.
    Example 2 (Applicable large employer with FTEs). (i) Facts. During 
each calendar month of 2015, Employer W has 20 full-time employees each 
of whom averages 35 hours of service per week, 40 employees each of whom 
averages 90 hours of service per calendar month, and no seasonal 
workers.
    (ii) Conclusion. Each of the 20 employees who average 35 hours of 
service per week count as one full-time employee for each calendar 
month. To determine the number of FTEs for each calendar month, the 
total hours of service of the employees who are not full-time employees 
(but not more than 120 hours of service per employee) are aggregated and 
divided by 120. The result is that the employer has 30 FTEs for each 
calendar month (40 x 90 = 3,600, and 3,600 / 120 = 30). Because Employer 
W has 50 full-time employees (the sum of 20 full-time employees and 30 
FTEs) during each calendar month in 2015, and because the seasonal 
worker exception is not applicable, Employer W is an applicable large 
employer for 2016.
    Example 3 (Seasonal worker exception). (i) Facts. During 2015, 
Employer V has 40 full-time employees for the entire calendar year, none 
of whom are seasonal workers. In addition, Employer V also has 80 
seasonal workers who are full-time employees and who work for Employer V 
from September through December 2015. Employer V has no FTEs during 
2015.
    (ii) Conclusion. Before applying the seasonal worker exception, 
Employer V has 40 full-time employees during each of eight calendar 
months of 2015, and 120 full-time employees during each of four calendar 
months of 2015, resulting in an average of 66.67 full-

[[Page 450]]

time employees for the year. However, Employer V's workforce exceeded 50 
full-time employees (counting seasonal workers) for no more than four 
calendar months (treated as the equivalent of 120 days) in calendar year 
2015, and the number of full-time employees would be less than 50 during 
those months if seasonal workers were disregarded. Accordingly, because 
after application of the seasonal worker exception described in 
paragraph (b)(2) of this section Employer V is not considered to employ 
more than 50 full-time employees, Employer V is not an applicable large 
employer for 2016.
    Example 4 (Seasonal workers and other FTEs). (i) Facts. Same facts 
as Example 3, except that Employer V has 20 FTEs in August, some of whom 
are seasonal workers.
    (ii) Conclusion. The seasonal worker exception described in 
paragraph (b)(2) of this section does not apply if the number of an 
employer's full-time employees (including seasonal workers) and FTEs 
exceeds 50 for more than 120 days during the calendar year. Because 
Employer V has at least 50 full-time employees for a period greater than 
four calendar months (treated as the equivalent of 120 days) during 
2015, the exception described in paragraph (b)(2) of this section does 
not apply. Employer V averaged 68 full-time employees in 2015: [(40 x 7) 
+ (60 x 1) + (120 x 4)] / 12 = 68.33, and accordingly, Employer V is an 
applicable large employer for calendar year 2016.
    Example 5 (New employer). (i) Facts. Corporation S is incorporated 
on January 1, 2016. On January 1, 2016, Corporation S has three 
employees. However, prior to incorporation, Corporation S's owners 
purchased a factory intended to open within two calendar months of 
incorporation and to employ approximately 100 full-time employees. By 
March 15, 2016, Corporation S has more than 75 full-time employees.
    (ii) Conclusion. Because Corporation S can reasonably be expected to 
employ on average at least 50 full-time employees on business days 
during 2016, and actually employs an average of at least 50 full-time 
employees on business days during 2016, Corporation S is an applicable 
large employer (and an applicable large employer member) for calendar 
year 2016.
    Example 6 (First year as applicable large employer). (i) Facts. As 
of January 1, 2015, Employer R has been in existence for several years 
and did not average 50 or more full-time employees (including FTEs) on 
business days during 2014. Employer R averages 50 or more full-time 
employees on business days during 2015, so that for 2016 Employer R is 
an applicable large employer, for the first time. For all the calendar 
months of 2016, Employer R has the same 60 full-time employees. Employer 
R offered 20 of those full-time employees healthcare coverage during 
2015, and offered those same employees coverage providing minimum value 
for 2016. With respect to the 40 full-time employees who were not 
offered coverage during 2015, Employer R offers coverage providing 
minimum value for calendar months April 2016 through December 2016.
    (ii) Conclusion. For the 40 full-time employees not offered coverage 
during 2015 and offered coverage providing minimum value for the 
calendar months April 2016 through December 2016, the failure to offer 
coverage during the calendar months January 2016 through March 2016 will 
not result in an assessable payment under section 4980H with respect to 
those employees for those three calendar months. For those same 40 full-
time employees, the offer of coverage during the calendar months April 
2016 through December 2016 may result in an assessable payment under 
section 4980H(b) with respect to any employee for any calendar month for 
which the offer is not affordable and for which Employer R has received 
a Section 1411 Certification. For the other 20 full-time employees, the 
offer of coverage during 2016 may result in an assessable payment under 
section 4980H(b) for any calendar month if the offer is not affordable 
and Employer R has received a Section 1411 Certification with respect to 
the employee who received the offer of coverage. For all calendar months 
of 2016, Employer R will not be subject to an assessable payment under 
section 4980H(a).

    (e) Additional guidance. With respect to an employer's status as an 
applicable large employer, the Commissioner may prescribe additional 
guidance of general applicability, published in the Internal Revenue 
Bulletin (see Sec.  601.601(d)(2)(ii)(b) of this chapter).
    (f) Effective/applicability date. This section is applicable for 
periods after December 31, 2014.

[T.D. 9655, 79 FR 8577, Feb. 12, 2014]



Sec.  54.4980H-3  Determining full-time employees.

    (a) In general. This section sets forth the rules for determining 
hours of service and status as a full-time employee for purposes of 
section 4980H. These regulations provide two methods for determining 
full-time employee status--the monthly measurement method, set forth in 
paragraph (c) of this section, and the look-back measurement method, set 
forth in paragraph (d) of this section. The monthly measurement method 
applies for purposes of determining and calculating liability under 
section 4980H(a) and (b), as well as, with respect to paragraph (c)(1) 
of

[[Page 451]]

this section, determination of applicable large employer status (except 
with respect to the weekly rule under the monthly measurement method). 
The look-back measurement method applies solely for purposes of 
determining and calculating liability under section 4980H(a) and (b) 
(and not for purposes of determining status as an applicable large 
employer). See Sec.  54.4980H-1(a)(21) for the definition of full-time 
employee. The rules set forth in this section prescribe the minimum 
standards for determining status as a full-time employee for purposes of 
section 4980H; treatment of additional employees as full-time employees 
for other purposes does not affect section 4980H liability if those 
employees are not full-time employees under the look-back measurement 
method or the monthly measurement method.
    (b) Hours of service--(1) In general. The following rules on the 
calculation of hours of service apply for purposes of applying both the 
look-back measurement method and the monthly measurement method.
    (2) Hourly employees calculation. Under the look-back measurement 
method and the monthly measurement method, for employees paid on an 
hourly basis, an employer must calculate actual hours of service from 
records of hours worked and hours for which payment is made or due.
    (3) Non-hourly employees calculation--(i) In general. Except as 
otherwise provided, under the look-back measurement method and the 
monthly measurement method, for employees paid on a non-hourly basis, an 
employer must calculate hours of service by using one of the following 
methods:
    (A) Using actual hours of service from records of hours worked and 
hours for which payment is made or due;
    (B) Using a days-worked equivalency whereby the employee is credited 
with eight hours of service for each day for which the employee would be 
required to be credited with at least one hour of service in accordance 
with paragraph (b)(2) of this section; or
    (C) Using a weeks-worked equivalency whereby the employee is 
credited with 40 hours of service for each week for which the employee 
would be required to be credited with at least one hour of service in 
accordance with paragraph (b)(2) of this section.
    (ii) Change in method. An employer must use one of the three methods 
in paragraph (b)(3)(i) of this section for calculating the hours of 
service for non-hourly employees. An employer is not required to use the 
same method for all non-hourly employees, and may apply different 
methods for different categories of non-hourly employees, provided the 
categories are reasonable and consistently applied. Similarly, an 
applicable large employer member is not required to apply the same 
methods as other applicable large employer members of the same 
applicable large employer for the same or different categories of non-
hourly employees, provided that in each case the categories are 
reasonable and consistently applied by the applicable large employer 
member. An employer may change the method of calculating the hours of 
service of non-hourly employees (or of one or more categories of non-
hourly employees) for each calendar year.
    (iii) Prohibited use of equivalencies. The number of hours of 
service calculated using the days-worked or weeks-worked equivalency 
must reflect generally the hours actually worked and the hours for which 
payment is made or due. An employer is not permitted to use the days-
worked equivalency or the weeks-worked equivalency if the result is to 
substantially understate an employee's hours of service in a manner that 
would cause that employee not to be treated as a full-time employee, or 
if the result is to understate the hours of service of a substantial 
number of employees (even if no particular employee's hours of service 
are understated substantially and even if the understatement would not 
cause the employee to not be treated as a full-time employee). For 
example, as to the former, an employer may not use a days-worked 
equivalency in the case of an employee who generally works three 10-hour 
days per week, because the equivalency would substantially understate 
the employee's hours of service as 24 hours of service per week, which 
would result in the employee being treated as not a full-time employee.

[[Page 452]]

    (c) Monthly measurement method--(1) In general. Under the monthly 
measurement method, an applicable large employer member determines each 
employee's status as a full-time employee by counting the employee's 
hours of service for each calendar month. See Sec.  54.4980H-1(a)(21) 
for the definition of full-time employee. This paragraph (c)(1) (except 
with respect to the weekly rule) applies for purposes of the 
determination of status as an applicable large employer; paragraphs 
(c)(2) through (4) of this section do not apply for purposes of the 
determination of status as an applicable large employer. For rules 
regarding the use of the look-back measurement method and the monthly 
measurement method for different categories of employees, see paragraph 
(e) of this section.
    (2) Employee first otherwise eligible for an offer of coverage. The 
rule in this paragraph (c)(2) applies with respect to an employee who, 
in a calendar month, first becomes otherwise eligible to be offered 
coverage under a group health plan of an employer using the monthly 
measurement method with respect to that employee. For purposes of this 
paragraph (c)(2), an employee is otherwise eligible to be offered 
coverage under a group health plan for a calendar month if, pursuant to 
the terms of the plan as in effect for that calendar month, the employee 
meets all conditions to be offered coverage under the plan for that 
calendar month, other than the completion of a waiting period, within 
the meaning of Sec.  54.9801-2, and an employee is first otherwise 
eligible if the employee has not previously been eligible or otherwise 
eligible for an offer of coverage under a group health plan of the 
employer during the employee's period of employment. An employer is not 
subject to an assessable payment under section 4980H(a) with respect to 
an employee for each calendar month during the period of three full 
calendar months beginning with the first full calendar month in which 
the employee is otherwise eligible for an offer of coverage under a 
group health plan of the employer, provided that the employee is offered 
coverage no later than the first day of the first calendar month 
immediately following the three-month period if the employee is still 
employed on that day. If the coverage for which the employee is 
otherwise eligible during the three-month period, and which the employee 
actually is offered on the day following that three-month period if 
still employed, provides minimum value, the employer also will not be 
subject to an assessable payment under section 4980H(b) with respect to 
that employee for the three-month period. This rule cannot apply more 
than once per period of employment of an employee. If an employee 
terminates employment and returns under circumstances that would 
constitute a rehire as set forth in paragraph (c)(4) of this section, 
the rule in this paragraph (c)(2) may apply again.
    (3) Use of weekly periods. With respect to a category of employees 
for whom an employer uses the monthly measurement method, an employer 
may determine full-time employee status for a calendar month based on 
hours of service over a period that:
    (i) Begins on the first day of the week that includes the first day 
of the calendar month, provided that the period over which hours of 
service are measured does not include the week in which falls the last 
day of the calendar month (unless that week ends with the last day of 
the calendar month, in which case it is included); or
    (ii) begins on the first day of the week immediately subsequent to 
the week that includes the first day of the calendar month (unless the 
week begins on the first day of the calendar month, in which case it is 
included), provided the period over which hours of service are measured 
includes the week in which falls the last day of the calendar month.
    (4) Employees rehired after termination of employment or resuming 
service after other absence--(i) Treatment as a new employee after a 
period of absence for employees of employers other than educational 
organizations. Except as provided in paragraph (c)(4)(ii) of this 
section (related to rules for employers that are educational 
organizations), an employee who resumes providing services to (or is 
otherwise credited with an hour of service for) an applicable large 
employer after a period during which the individual was not credited 
with

[[Page 453]]

any hours of service may be treated as having terminated employment and 
having been rehired, and therefore may be treated as a new employee upon 
the resumption of services only if the employee did not have an hour of 
service for the applicable large employer for a period of at least 13 
consecutive weeks immediately preceding the resumption of services. The 
rule set forth in this paragraph (c)(4)(i) applies solely for the 
purpose of determining whether the employee, upon the resumption of 
services, is treated as a new employee or as a continuing employee, and 
does not determine whether the employee is treated as a continuing full-
time employee (for example, an employee on leave) or a terminated 
employee for some or all of the period during which no hours of service 
are credited.
    (ii) Treatment as a new employee after a period of absence for 
employees of educational organizations. With respect to an employer that 
is an educational organization, an employee who resumes providing 
services to (or is otherwise credited with an hour of service for) an 
applicable large employer after a period during which the individual was 
not credited with any hours of service may be treated as having 
terminated employment and having been rehired, and therefore may be 
treated as a new employee upon the resumption of services, only if the 
employee did not have an hour of service for the applicable large 
employer for a period of at least 26 consecutive weeks immediately 
preceding the resumption of services. The rule set forth in this 
paragraph (c)(4)(ii) applies solely for the purpose of determining 
whether the employee, upon the resumption of services, is treated as a 
new employee or as a continuing employee, and does not determine whether 
the employee is treated as a continuing full-time employee (for example, 
an employee on leave) or a terminated employee for some or all of the 
period during which no hours of service are credited.
    (iii) Averaging method for special unpaid leave and employment break 
periods. The averaging method for periods of special unpaid leave and 
employment break periods does not apply under the monthly measurement 
method, regardless of whether the employer is (or is not) an educational 
organization.
    (iv) Treatment of continuing employee. The rule set forth in 
paragraph (c)(2) of this section applies to an employee treated as a 
continuing employee in the same way that it applies to an employee who 
has not experienced a period with no hours of service. A continuing 
employee treated as a full-time employee is treated as offered coverage 
upon resumption of services if the employee is offered coverage as of 
the first day that employee is credited with an hour of service, or, if 
later, as soon as administratively practicable. For this purpose, 
offering coverage by no later than the first day of the calendar month 
following resumption of services is deemed to be as soon as 
administratively practicable.
    (v) Rule of parity. For purposes of determining the period after 
which an employee may be treated as having terminated employment and 
having been rehired, an applicable large employer may choose a period, 
measured in weeks, of at least four consecutive weeks during which the 
employee was not credited with any hours of service that exceeds the 
number of weeks of that employee's period of employment with the 
applicable large employer immediately preceding the period that is 
shorter than 13 weeks (for an employee of an educational organization 
employer, a period that is shorter than 26 weeks).
    (vi) International transfers. An employer may treat an employee as 
having terminated employment if the employee transfers to a position at 
the same applicable large employer (including a different applicable 
large employer member that is part of the same applicable large 
employer) if the position is anticipated to continue indefinitely or for 
at least 12 months and if substantially all of the compensation will 
constitute income from sources without the United States (within the 
meaning of sections 861 through 863 and the regulations thereunder). 
With respect to an employee transferring from a position that was 
anticipated to continue indefinitely or for at least 12 months and in 
which substantially all of the compensation for the hours of service 
constitutes income from

[[Page 454]]

sources without the United States (within the meaning of sections 861 
through 863 and the regulations thereunder) to a position at the same 
applicable large employer (including a different applicable large 
employer member that is part of the same applicable large employer) with 
respect to which substantially all of the compensation will constitute 
U.S. source income, the employer may treat that employee as a new hire 
to the extent consistent with the rules related to rehired employees as 
set forth in paragraph (c)(4) of this section.
    (5) Examples. The following examples illustrate the rules of 
paragraphs (c)(1) through (4) of this section. In each example, the 
employer is an applicable large employer with 200 full-time employees 
(including FTEs) that uses the monthly measurement method to identify 
full-time employees and offers coverage only to employees who are full-
time employees (and their dependents).

    Example 1 (Monthly measurement method--employee first otherwise 
eligible for an offer of coverage). (i) Facts. Employer Z uses the 
monthly measurement method. Employer Z hires Employee A on January 1, 
2016. For each calendar month in 2016, Employee A averages 20 hours of 
service per week and is not eligible (or otherwise eligible) for an 
offer of coverage under the group health plan of Employer Z. Effective 
January 1, 2017, Employee A is promoted to a position that is eligible 
for an offer of coverage under a group health plan of Employer Z, 
following completion of a 90-day waiting period. For January 2017 
through March 2017, Employee A meets all of the conditions for 
eligibility under the group health plan, other than completion of the 
waiting period. The coverage that would have been offered to Employee A 
under the terms of the plan, but for the waiting period, during those 
three months would have provided minimum value. Effective April 1, 2017, 
Employer Z offers Employee A coverage that provides minimum value. 
Employee A averages 40 hours of service per week for each calendar month 
in 2017.
    (ii) Conclusion. Because Employer Z offers minimum value coverage to 
Employee A no later than the first day following the period of three 
full calendar months beginning with the first full calendar month in 
which Employee A is otherwise eligible for an offer of coverage under a 
group health plan of Employer Z, Employer Z is not subject to an 
assessable payment for January 2017 through March 2017 under section 
4980H by reason of its failure to offer coverage to Employee A during 
those months. For calendar months after March 2017, an offer of minimum 
value coverage may result in an assessable payment under section 
4980H(b) with respect to Employee A for any month for which the offer is 
not affordable and for which Employer Z has received a Section 1411 
Certification. Employer Z is not subject to an assessable payment under 
section 4980H by reason of its failure to offer coverage to Employee A 
during each month of 2016 because for each month of 2016, Employee A was 
not a full-time employee.
    Example 2 (Rehire rules under monthly measurement method for 
employers that are not educational organizations). (i) Facts. Same as 
Example 1, except that Employee A has zero hours of service during a 
nine week period of unpaid leave (that constitutes special unpaid leave) 
beginning on June 25, 2017, and ending on August 26, 2017. As a result 
of the nine week period during which Employee A has zero hours of 
service, Employee A averages less than 30 hours of service per week for 
July 2017 and August 2017. Employee A averages more than 30 hours of 
service per week for each month between and including September 2017 
through December 2017. Employer Z does not use the rule of parity, set 
forth in paragraph (c)(4)(v) of this section, and Employer Z is not an 
educational organization.
    (ii) Conclusion. Because Employee A resumes providing services for 
Employer Z after a period during which the employee was not credited 
with any hours of service of less than 13 consecutive weeks, Employer Z 
may not treat Employee A as having terminated employment and having been 
rehired. Therefore, Employer Z may not treat Employee A as a new 
employee upon the resumption of services, and, accordingly, Employer Z 
may not again apply the rule set forth in paragraph (c)(2) of this 
section. Although the nine consecutive weeks of zero hours of service 
constitute special unpaid leave, the averaging method for periods of 
special unpaid leave does not apply under the monthly measurement 
method. Therefore, Employer Z may treat Employee A as a non-full-time 
employee for July 2017 and August 2017.
    Example 3 (Use of weekly rule). (i) Facts. Employer Y uses the 
monthly measurement method in combination with the weekly rule for 
purposes of determining whether an employee is a full-time employee for 
a particular calendar month. For purposes of applying the weekly rule, 
Employer Y uses the period of Sunday through Saturday as a week and 
includes the week that includes the first day of a calendar month and 
excludes the week that includes the last day of a calendar month (except 
in any case in which the last day of the calendar month occurs on a 
Saturday). Employer Y measures hours of service for the five weeks from 
Sunday, December 27, 2015, through Saturday,

[[Page 455]]

January 30, 2016, to determine an employee's full-time employee status 
for January 2016, for the four weeks from Sunday, January 31, 2016, 
through Saturday, February 27, 2016, to determine an employee's status 
for February 2016, and the four weeks from Sunday, February 28, 2016, 
through Saturday, March 26, 2016, to determine an employee's status for 
March 2016. For January 2016, Employer Y treats an employee as a full-
time employee if the employee has at least 150 hours of service (30 
hours per week x 5 weeks). For February 2016 and March 2016, Employer Y 
treats an employee as a full-time employee if the employee has at least 
120 hours of service (30 hours per week x 4 weeks).
    (ii) Conclusion. Employer Y has correctly applied the weekly rule as 
part of the monthly measurement method for determining each employee's 
status as a full-time employee for the months January, February, and 
March 2016.

    (d) Look-back measurement method--(1) Ongoing employees--(i) In 
general. Under the look-back measurement method for ongoing employees, 
an applicable large employer determines each ongoing employee's full-
time employee status by looking back at the standard measurement period. 
The applicable large employer member determines the months in which the 
standard measurement period starts and ends, provided that the 
determination must be made on a uniform and consistent basis for all 
employees in the same category (see paragraph (d)(1)(v) of this section 
for a list of permissible categories). For example, if an applicable 
large employer member chooses a standard measurement period of 12 
months, the applicable large employer member could choose to make it the 
calendar year, a non-calendar plan year, or a different 12-month period, 
such as one that ends shortly before the start of the plan's annual open 
enrollment period. If the applicable large employer member determines 
that an employee was employed on average at least 30 hours of service 
per week during the standard measurement period, then the applicable 
large employer member must treat the employee as a full-time employee 
during a subsequent stability period, regardless of the employee's 
number of hours of service during the stability period, so long as he or 
she remains an employee.
    (ii) Use of payroll periods. For payroll periods that are one week, 
two weeks, or semi-monthly in duration, an employer is permitted to 
treat as a measurement period a period that ends on the last day of the 
payroll period preceding the payroll period that includes the date that 
would otherwise be the last day of the measurement period, provided that 
the measurement period begins on the first day of the payroll period 
that includes the date that would otherwise be the first day of the 
measurement period. An employer may also treat as a measurement period a 
period that begins on the first day of the payroll period that follows 
the payroll period that includes the date that would otherwise be the 
first day of the measurement period, provided that the measurement 
period ends on the last day of the payroll period that includes the date 
that would otherwise be the last day of the measurement period. For 
example, an employer using the calendar year as a measurement period 
could exclude the entire payroll period that included January 1 (the 
beginning of the year) if it included the entire payroll period that 
included December 31 (the end of that same year), or, alternatively, 
could exclude the entire payroll period that included December 31 of a 
calendar year if it included the entire payroll period that included 
January 1 of that calendar year.
    (iii) Employee determined to be employed an average of at least 30 
hours of service per week. An employee who was employed on average at 
least 30 hours of service per week during the standard measurement 
period must be treated as a full-time employee for a stability period 
that begins immediately after the standard measurement period and any 
applicable administrative period. The stability period must be at least 
six consecutive calendar months but no shorter in duration than the 
standard measurement period.
    (iv) Employee determined not to be employed on average at least 30 
hours of service per week. If an employee was not employed an average of 
at least 30 hours of service per week during the standard measurement 
period, the applicable large employer member may treat the employee as 
not a full-time employee during the stability period that follows, but 
is not longer than, the

[[Page 456]]

standard measurement period. The stability period must begin immediately 
after the end of the measurement period and any applicable 
administrative period.
    (v) Permissible employee categories. Different applicable large 
employer members of the same applicable large employer may use 
measurement periods and stability periods that differ either in length 
or in their starting or ending dates. In addition, subject to the rules 
governing the relationship between the length of the measurement period 
and the stability period, applicable large employer members may use 
measurement periods and stability periods that differ either in length 
or in their starting and ending dates for--
    (A) Collectively bargained employees and non-collectively bargained 
employees,
    (B) Each group of collectively bargained employees covered by a 
separate collective bargaining agreement,
    (C) Salaried employees and hourly employees, and
    (D) Employees whose primary places of employment are in different 
States.
    (vi) Optional administrative period. An applicable large employer 
member may provide for an administrative period that begins immediately 
after the end of a standard measurement period and that ends immediately 
before the associated stability period; however, any administrative 
period between the standard measurement period and the stability period 
for ongoing employees may neither reduce nor lengthen the measurement 
period or the stability period. The administrative period following the 
standard measurement period may last up to 90 days. To prevent this 
administrative period from creating a period during which coverage is 
not available, the administrative period must overlap with the prior 
stability period, so that, during any such administrative period 
applicable to ongoing employees following a standard measurement period, 
ongoing employees who are enrolled in coverage because of their status 
as full-time employees based on a prior measurement period must continue 
to be covered through the administrative period. Applicable large 
employer members may use administrative periods that differ in length 
for the categories of employees identified in paragraph (d)(1)(v) of 
this section.
    (vii) Change in employment status. Except as provided in paragraph 
(f)(2) of this section, if an ongoing employee experiences a change in 
employment status before the end of a stability period, the change will 
not affect the application of the classification of the employee as a 
full-time employee (or not a full-time employee) for the remaining 
portion of the stability period. For example, if an ongoing employee in 
a certain position of employment is not treated as a full-time employee 
during a stability period because the employee's hours of service during 
the prior measurement period were insufficient for full-time-employee 
treatment, and the employee experiences a change in employment status 
that involves an increased level of hours of service, the treatment of 
the employee as a non-full-time employee during the remainder of the 
stability period is unaffected. Similarly, if an ongoing employee in a 
certain position of employment is treated as a full-time employee during 
a stability period because the employee's hours of service during the 
prior measurement period were sufficient for full-time-employee 
treatment, and the employee experiences a change in employment status 
that involves a lower level of hours of service, the treatment of the 
employee as a full-time employee during the remainder of the stability 
period is unaffected.

    (viii) Example. The following example illustrates the application of 
paragraph (d)(1) of this section:
    (A) Facts. Employer Z is an applicable large employer member and 
computes hours of service following the rules in this paragraph (d)(1). 
Employer Z chooses to use a 12-month stability period that begins 
January 1 and a 12-month standard measurement period that begins October 
15. Consistent with the terms of Employer Z's group health plan, only 
employees classified as full-time employees using the look-back 
measurement method are eligible for coverage. Employer Z chooses to use 
an administrative period between the end of the standard measurement 
period (October 14) and the beginning of the

[[Page 457]]

stability period (January 1) to determine which employees were employed 
on average 30 hours of service per week during the measurement period, 
notify them of their eligibility for the plan for the calendar year 
beginning on January 1 and of the coverage available under the plan, 
answer questions and collect materials from employees, and enroll those 
employees who elect coverage in the plan. Previously-determined full-
time employees already enrolled in coverage continue to be offered 
coverage through the administrative period. Employee A and Employee B 
have been employed by Employer Z for several years, continuously from 
their start date. Employee A was employed on average 30 hours of service 
per week during the standard measurement period that begins October 15, 
2015, and ends October 14, 2016, and for all prior standard measurement 
periods. Employee B also was employed on average 30 hours of service per 
week for all prior standard measurement periods, but averaged less than 
30 hours of service per week during the standard measurement period that 
begins October 15, 2015, and ends October 14, 2016.
    (B) Conclusions. Because Employee A was employed for the entire 
standard measurement period that begins October 15, 2015, and ends 
October 14, 2016, Employee A is an ongoing employee with respect to the 
stability period running from January 1, 2017, through December 31, 
2017. Because Employee A was employed on average 30 hours of service per 
week during that standard measurement period, Employee A is offered 
coverage for the entire 2017 stability period (including the 
administrative period from October 15, 2017, through December 31, 2017). 
Because Employee A was employed on average 30 hours of service per week 
during the prior standard measurement period, Employee A is offered 
coverage for the entire 2016 stability period and, if enrolled, would 
continue such coverage during the administrative period from October 15, 
2016, through December 31, 2016. Because Employee B was employed for the 
entire standard measurement period that begins October 15, 2015, and 
ends October 14, 2016, Employee B is also an ongoing employee with 
respect to the stability period in 2017. Because Employee B was not a 
full-time employee based on hours of service during this standard 
measurement period, Employee B is not offered coverage for the stability 
period in 2017 (including the administrative period from October 15, 
2017, through December 31, 2017). However, because Employee B was 
employed on average 30 hours of service per week during the prior 
standard measurement period, Employee B is offered coverage through the 
end of the 2016 stability period and, if enrolled, would continue such 
coverage during the administrative period from October 15, 2016, through 
December 31, 2016. Employer Z complies with the standards of paragraph 
(d)(1) of this section because the standard measurement period is no 
longer than 12 months, the stability period for ongoing employees who 
are full-time employees based on hours of service during the standard 
measurement period is not shorter than the standard measurement period, 
the stability period for ongoing employees who are not full-time 
employees based on hours of service during the standard measurement 
period is no longer than the standard measurement period, and the 
administrative period is no longer than 90 days.

    (2) New non-variable hour, new non-seasonal and new non-part-time 
employees--(i) In general. For a new employee who is reasonably expected 
at the employee's start date to be a full-time employee (and is not a 
seasonal employee), an applicable large employer member determines such 
employee's status as a full-time employee based on the employee's hours 
of service for each calendar month. If the employee's hours of service 
for the calendar month equal or exceed an average of 30 hours of service 
per week, the employee is a full-time employee for that calendar month. 
Once a new employee who is reasonably expected at the employee's start 
date to be a full-time employee (and is not a seasonal employee) becomes 
an ongoing employee, the rules set forth in paragraph (d)(1) of this 
section apply for determining full-time employee status.
    (ii) Factors for determining full-time employee status. Whether an 
employer's determination that a new employee

[[Page 458]]

(who is not a seasonal employee) is a full-time employee or is not a 
full-time employee is reasonable is based on the facts and circumstances 
at the employee's start date. Factors to consider in determining whether 
a new employee who is not a seasonal employee is reasonably expected at 
the employee's start date to be a full-time employee include, but are 
not limited to, whether the employee is replacing an employee who was 
(or was not) a full-time employee, the extent to which hours of service 
of ongoing employees in the same or comparable positions have varied 
above and below an average of 30 hours of service per week during recent 
measurement periods, and whether the job was advertised, or otherwise 
communicated to the new hire or otherwise documented (for example, 
through a contract or job description), as requiring hours of service 
that would average 30 (or more) hours of service per week or less than 
30 hours of service per week. In all cases, no single factor is 
determinative. An educational organization employer cannot take into 
account the potential for, or likelihood of, an employment break period 
in determining its expectation of future hours of service.
    (iii) Application of section 4980H to initial full three calendar 
months of employment. Notwithstanding paragraph (d)(2)(i) of this 
section, with respect to an employee who is reasonably expected at his 
or her start date to be a full-time employee (and is not a seasonal 
employee), the employer will not be subject to an assessable payment 
under section 4980H(a) for any calendar month of the three-month period 
beginning with the first day of the first full calendar month of 
employment if, for the calendar month, the employee is otherwise 
eligible for an offer of coverage under a group health plan of the 
employer, provided that the employee is offered coverage by the employer 
no later than the first day of the fourth full calendar month of 
employment if the employee is still employed on that day. If the offer 
of coverage for which the employee is otherwise eligible during the 
first three full calendar months of employment, and which the employee 
actually is offered by the first day of the fourth month if still 
employed, provides minimum value, the employer also will not be subject 
to an assessable payment under section 4980H(b) with respect to that 
employee for the first three full calendar months of employment. For 
purposes of this paragraph (d)(2)(iii), an employee is otherwise 
eligible to be offered coverage under a group health plan for a calendar 
month if, pursuant to the terms of the plan as in effect for that 
calendar month, the employee meets all conditions to be offered coverage 
under the plan for that calendar month, other than the completion of a 
waiting period, within the meaning of Sec.  54.9801-2.
    (3) New variable hour employees, new seasonal employees, and new 
part-time employees--(i) In general. For new variable hour employees, 
new seasonal employees, and new part-time employees, applicable large 
employer members are permitted to determine whether the new employee is 
a full-time employee using an initial measurement period of no less than 
three consecutive months and no more than 12 consecutive months (as 
selected by the applicable large employer member) that begins on the 
employee's start date or on any date up to and including the first day 
of the first calendar month following the employee's start date (or on 
the first day of the first payroll period starting on or after the 
employee's start date, if later, as set forth in paragraph (d)(3)(ii) of 
this section). The applicable large employer member measures the new 
employee's hours of service during the initial measurement period and 
determines whether the employee was employed on average at least 30 
hours of service per week during this period. The stability period for 
such employees must be the same length as the stability period for 
ongoing employees.
    (ii) Use of payroll periods. An applicable large employer member may 
apply the payroll period rule set forth in paragraph (d)(1)(ii) of this 
section for purposes of determining an initial measurement period, 
provided that the initial measurement period must begin on the start 
date or any date during the period beginning with the employee's start 
date and ending with the

[[Page 459]]

later of the first day of the first calendar month following the 
employee's start date and the first day of the first payroll period that 
starts after the employee's start date. As set forth in paragraph 
(d)(1)(ii) of this section, the use of payroll periods for purposes of 
determining the initial measurement period applies for payroll periods 
that are one week, two weeks, or semi-monthly in duration.
    (iii) Employees determined to be employed on average at least 30 
hours of service per week. If a new variable hour employee, new seasonal 
employee, or new part-time employee has on average at least 30 hours of 
service per week during the initial measurement period, the applicable 
large employer member must treat the employee as a full-time employee 
during the stability period that begins after the initial measurement 
period (and any associated administrative period). The stability period 
must be a period of at least six consecutive calendar months that is no 
shorter in duration than the initial measurement period. The stability 
period must begin immediately after the end of the measurement period 
and any applicable administrative period. With respect to an employee 
who has on average at least 30 hours of service per week during the 
initial measurement period, the employer will not be subject to an 
assessable payment under section 4980H(a) for any calendar month during 
the initial measurement period and any associated administrative period 
if, for the calendar month, the employee is otherwise eligible for an 
offer of coverage under a group health plan of the employer, provided 
that the employee is offered coverage by the employer no later than the 
first day of the associated stability period if the employee is still 
employed on that day. If the offer of coverage for which the employee is 
otherwise eligible during the initial measurement period, and which the 
employee actually is offered by the first day of the stability period if 
still employed, provides minimum value, the employer also will not be 
subject to an assessable payment under section 4980H(b) with respect to 
that employee during the initial measurement period and any associated 
administrative period. For purposes of this paragraph (d)(3)(iii), an 
employee is otherwise eligible to be offered coverage under a group 
health plan for a month if, pursuant to the terms of the plan as in 
effect for that calendar month, the employee meets all conditions to be 
offered coverage under the plan for that month, other than the 
completion of a waiting period, within the meaning of Sec.  54.9801-2.
    (iv) Employees determined not to be employed on average at least 30 
hours of service per week. If a new variable hour employee, new seasonal 
employee, or new part-time employee does not have on average at least 30 
hours of service per week during the initial measurement period, the 
applicable large employer member may treat the employee as not a full-
time employee during the stability period that follows the initial 
measurement period. Except as provided in paragraph (d)(4)(iv) of this 
section, the stability period for such employees must not be more than 
one month longer than the initial measurement period and must not exceed 
the remainder of the first entire standard measurement period (plus any 
associated administrative period) for which a variable hour employee, 
seasonal employee, or part-time employee has been employed. The 
stability period must begin immediately after the end of the measurement 
period and any applicable administrative period.
    (v) Permissible differences in measurement or stability periods for 
different categories of employees. Subject to the rules governing the 
relationship between the length of the measurement period and the 
stability period, with respect to a new variable hour employee, new 
seasonal employee, or new part-time employee, applicable large employer 
members may use measurement periods and stability periods that differ 
either in length or in their starting and ending dates for the 
categories of employees identified in paragraph (d)(1)(v) of this 
section.
    (vi) Optional administrative period--(A) In general. Subject to the 
limits in paragraph (d)(3)(vi)(B) of this section, an applicable large 
employer member may apply an administrative period in connection with an 
initial measurement period and before the start of the stability period. 
This administrative

[[Page 460]]

period must not exceed 90 days in total. For this purpose, the 
administrative period includes all periods between the start date of a 
new variable hour employee, new seasonal employee, or new part-time 
employee and the date the employee is first offered coverage under the 
applicable large employer member's group health plan, other than the 
initial measurement period. Thus, for example, if the applicable large 
employer member begins the initial measurement period on the first day 
of the first month following a new employee's start date, the period 
between the employee's start date and the first day of the next month 
must be taken into account in applying the 90-day limit on the 
administrative period. Similarly, if there is a period between the end 
of the initial measurement period and the date the employee is first 
offered coverage under the plan, that period must be taken into account 
in applying the 90-day limit on the administrative period. Applicable 
large employer members may use administrative periods that differ in 
length for the categories of employees identified in paragraph (d)(1)(v) 
of this section.
    (B) Limit on combined length of initial measurement period and 
administrative period. In addition to the specific limits on the initial 
measurement period (which must not exceed 12 months) and the 
administrative period (which must not exceed 90 days), there is a limit 
on the combined length of the initial measurement period and the 
administrative period applicable to a new variable hour employee, new 
seasonal employee, or new part-time employee. Specifically, the initial 
measurement period and administrative period together cannot extend 
beyond the last day of the first calendar month beginning on or after 
the first anniversary of the employee's start date. For example, if an 
applicable large employer member uses a 12-month initial measurement 
period for a new variable hour employee, and begins that initial 
measurement period on the first day of the first calendar month 
following the employee's start date, the period between the end of the 
initial measurement period and the offer of coverage to a new variable 
hour employee who is a full-time employee based on hours of service 
during the initial measurement period must not exceed one month.
    (vii) Change in employment status during the initial measurement 
period--(A) In general. If a new variable hour employee, new seasonal 
employee, or new part-time employee experiences a change in employment 
status before the end of the initial measurement period such that, if 
the employee had begun employment in the new position or status, the 
employee would have reasonably been expected to be employed on average 
at least 30 hours of service per week (or, if applicable, would not have 
been a seasonal employee and would have been expected to be employed on 
average at least 30 hours of service per week), the rules set forth in 
the remainder of this paragraph (d)(3)(vii) apply. With respect to an 
employee described in this paragraph (d)(3)(vii) and subject to the 
rules in the next sentence, the employer will not be subject to an 
assessable payment under section 4980H for the period before the first 
day of the fourth full calendar month following the change in employment 
status (or, if earlier and the employee averages 30 or more hours of 
service per week during the initial measurement period, the first day of 
the first month following the end of the initial measurement period 
(including any optional administrative period associated with the 
initial measurement period)). An employer will not be subject to an 
assessable payment under section 4980H(a) with respect to an employee 
described in this paragraph (d)(3)(vii) for any calendar month during 
the period described in the prior sentence if, for the calendar month, 
the employee is otherwise eligible for an offer of coverage under a 
group health plan of the employer, provided that the employee is offered 
coverage by the employer no later than the end of the period described 
in the prior sentence if the employee is still employed on that date; if 
the offer of coverage for which the employee is otherwise eligible 
during the period described in the prior sentence, and which the 
employee is actually offered by the first day after the end of that 
period if still employed, provides minimum value, the employer also will

[[Page 461]]

not be subject to an assessable payment under section 4980H(b) with 
respect to that employee during that period. For purposes of this 
paragraph (d)(3)(vii), an employee is otherwise eligible to be offered 
coverage under a group health plan for a calendar month if, pursuant to 
the terms of the plan as in effect for that calendar month, the employee 
meets all conditions to be offered coverage under the plan for that 
calendar month, other than the completion of a waiting period, within 
the meaning of Sec.  54.9801-2.
    (B) Example. The following example illustrates the provisions of 
paragraph (d)(3)(vii) of this section. In the following example, the 
applicable large employer member has 200 full-time employees and offers 
all of its full-time employees (and their dependents) the opportunity to 
enroll in minimum essential coverage under an eligible employer-
sponsored plan. The coverage is affordable within the meaning of section 
36B(c)(2)(C)(i) (or is treated as affordable under one of the 
affordability safe harbors described in Sec.  54.4980H-5) and provides 
minimum value.

    Example (Change in employment status from variable hour employee to 
full-time employee). (i) Facts. For new variable hour employees, 
Employer Z uses a 12-month initial measurement period that begins on the 
start date and applies an administrative period from the end of the 
initial measurement period through the end of the first calendar month 
beginning on or after the end of the initial measurement period. For new 
variable hour employees, Employer Z offers coverage no later than the 
first day of the fourteenth month after the start date if an employee 
averages 30 or more hours of service per week during the initial 
measurement period. Employer Z hires Employee A on May 10, 2015. 
Employee A's initial measurement period runs from May 10, 2015, through 
May 9, 2016, with the optional administrative period ending June 30, 
2016. At Employee A's May 10, 2015, start date, Employee A is a variable 
hour employee. On September 15, 2015, Employer Z promotes Employee A to 
a position that can reasonably be expected to average at least 30 hours 
of service per week. For October 2015 through December 2015, Employee A 
is otherwise eligible for an offer of coverage that provides minimum 
value, and, on January 1, 2016, Employee A is offered coverage by the 
employer that provides minimum value.
    (ii) Conclusion. Employer Z will not be subject to an assessable 
payment under section 4980H(a) with respect to Employee A for October 
2015, November 2015, or December 2015, because for each of those months 
Employee A is otherwise eligible for an offer of coverage and because 
Employee A is offered coverage by January 1, 2016 (the date that is the 
earlier of the first day of the fourth calendar month following the 
change in employment status (January 1, 2016) or the first day of the 
calendar month after the end of the initial measurement period plus the 
optional administrative period (July 1, 2016)). Because the coverage 
offered on January 1, 2016, provides minimum value, Employer Z also will 
not be subject to an assessable payment under section 4980H(b) with 
respect to Employee A for October 2015, November 2015, or December 2015.

    (4) Transition from new variable hour employee, new seasonal 
employee, or new part-time employee to ongoing employee--(i) In general. 
Once a new variable hour employee, new seasonal employee, or new part-
time employee has been employed for an entire standard measurement 
period, the applicable large employer member must test the employee for 
full-time employee status, beginning with that standard measurement 
period, at the same time and under the same conditions as apply to other 
ongoing employees. Accordingly, for example, an applicable large 
employer member with a calendar year standard measurement period that 
also uses a one-year initial measurement period beginning on the 
employee's start date would test a new employee whose start date is 
April 12 for full-time employee status first based on the initial 
measurement period (April 12 of the year including the start date 
through April 11 of the following year) and again based on the calendar 
year standard measurement period (if the employee continues in 
employment for that entire standard measurement period) beginning on 
January 1 of the year after the start date.
    (ii) Employee determined to be employed an average of at least 30 
hours of service per week. An employee who was employed an average of at 
least 30 hours of service per week during an initial measurement period 
or standard measurement period must be treated as a full-time employee 
for the entire associated stability period. This is the case even if the 
employee was employed an average of at least 30 hours of service

[[Page 462]]

per week during the initial measurement period but was not employed an 
average of at least 30 hours of service per week during the overlapping 
or immediately following standard measurement period. In that case, the 
applicable large employer member may treat the employee as not a full-
time employee only after the end of the stability period associated with 
the initial measurement period. Thereafter, the applicable large 
employer member must determine the employee's status as a full-time 
employee in the same manner as it determines such status in the case of 
its other ongoing employees as described in paragraph (d)(1) of this 
section.
    (iii) Employee determined not to be employed an average of at least 
30 hours of service per week. If the employee was not employed an 
average of at least 30 hours of service per week during the initial 
measurement period, but was employed at least 30 hours of service per 
week during the overlapping or immediately following standard 
measurement period, the employee must be treated as a full-time employee 
for the entire stability period that corresponds to that standard 
measurement period (even if that stability period begins before the end 
of the stability period associated with the initial measurement period). 
Thereafter, the applicable large employer member must determine the 
employee's status as a full-time employee in the same manner as it 
determines such status in the case of its other ongoing employees as 
described in paragraph (d)(1) of this section.
    (iv) Treatment during periods between stability periods. If there is 
a period between the end of the stability period associated with the 
initial measurement period and the beginning of the stability period 
associated with the first full standard measurement period during which 
an employee is employed, the treatment as a full-time employee or not a 
full-time employee that applies during the stability period associated 
with the initial measurement period continues to apply until the 
beginning of the stability period associated with the first full 
standard measurement period during which the employee is employed.
    (5) Examples. The following examples illustrate the look-back 
measurement methods described in paragraphs (d)(1), (d)(3) and (d)(4) of 
this section. In all of the following examples, the applicable large 
employer member has 200 full-time employees and offers all of its full-
time employees (and their dependents) the opportunity to enroll in 
minimum essential coverage under an eligible employer-sponsored plan. 
The coverage is affordable within the meaning of section 36B(c)(2)(C)(i) 
(or is treated as affordable coverage under one of the affordability 
safe harbors described in Sec.  54.4980H-5) and provides minimum value. 
In Example 1 through Example 8, the new employee is a new variable hour 
employee, and the employer has chosen to use a 12-month standard 
measurement period for ongoing employees starting October 15 and a 12-
month stability period associated with that standard measurement period 
starting January 1. (Thus, during the administrative period from October 
15 through December 31 of each calendar year, the employer continues to 
offer coverage to employees who qualified for coverage for that entire 
calendar year based upon having an average of at least 30 hours of 
service per week during the prior standard measurement period.) In 
Example 9 and Example 10, the new employee is a new variable hour 
employee, and the employer uses a six-month standard measurement period, 
starting each May 1 and November 1, with six-month stability periods 
associated with those standard measurement periods starting January 1 
and July 1. In Example 12, Example 13, and Example 14, the employer is 
in the trade or business of providing temporary workers to numerous 
clients that are unrelated to the employer and to one another; the 
employer is the common law employer of the temporary workers based on 
all of the facts and circumstances; the employer offers health plan 
coverage only to full-time employees (including temporary workers who 
are full-time employees) and their dependents; and the employer uses a 
12-month initial measurement period for new variable hour employees that 
begins on the start

[[Page 463]]

date and applies an administrative period from the end of the initial 
measurement period through the end of the first calendar month beginning 
after the end of the initial measurement period.

    Example 1 (12-Month initial measurement period followed by 1 + 
partial month administrative period). (i) Facts. For new variable hour 
employees, Employer Z uses a 12-month initial measurement period that 
begins on the start date and applies an administrative period from the 
end of the initial measurement period through the end of the first 
calendar month beginning on or after the end of the initial measurement 
period. Employer Z hires Employee A on May 10, 2015. Employee A's 
initial measurement period runs from May 10, 2015, through May 9, 2016. 
Employee A has an average of 30 hours of service per week during this 
initial measurement period. Employer Z offers coverage that provides 
minimum value to Employee A for a stability period that runs from July 
1, 2016, through June 30, 2017. For each calendar month during the 
period beginning with June 2015 and ending with June 2016, Employee A is 
otherwise eligible for an offer of coverage with respect to the coverage 
that is offered to Employee A on July 1, 2016.
    (ii) Conclusion. Employer Z uses an initial measurement period that 
does not exceed 12 months; an administrative period totaling not more 
than 90 days; and a combined initial measurement period and 
administrative period that does not last beyond the final day of the 
first calendar month beginning on or after the one-year anniversary of 
Employee A's start date. Accordingly, Employer Z complies with the 
standards for the initial measurement period and stability periods for a 
new variable hour employee. Employer Z will not be subject to an 
assessable payment under section 4980H(a) with respect to Employee A for 
any calendar month from June 2015 through June 2016 because, for each 
month during that period, Employee A is otherwise eligible for an offer 
of coverage and because coverage is offered no later than the end of the 
initial measurement period plus the associated administrative period 
(July 1, 2016). Employer Z will not be subject to an assessable payment 
under section 4980H(b) with respect to Employee A for any calendar month 
from June 2015 through June 2016 because the coverage Employer Z offers 
to Employee A provides minimum value. Employer Z will not be subject to 
an assessable payment under section 4980H(a) or (b) with respect to 
Employee A for May 2015 because an applicable large employer member is 
not subject to an assessable payment under section 4980H with respect to 
an employee for the calendar month in which falls the employee's start 
date if the start date is on a date other than the first day of the 
calendar month. Employer Z must test Employee A again based on the 
period from October 15, 2015, through October 14, 2016 (Employer Z's 
first standard measurement period that begins after Employee A's start 
date).
    Example 2 (11-Month initial measurement period followed by 2 + 
partial month administrative period). (i) Facts. Same as Example 1, 
except that Employer Z uses an 11-month initial measurement period that 
begins on the start date and applies an administrative period from the 
end of the initial measurement period until the end of the second 
calendar month beginning after the end of the initial measurement 
period. Employee A's initial measurement period runs from May 10, 2015, 
through April 9, 2016. The administrative period associated with 
Employee A's initial measurement period ends on June 30, 2016. Employee 
A has an average of 30 hours of service per week during this initial 
measurement period.
    (ii) Conclusion. Same as Example 1.
    Example 3 (11-Month initial measurement period preceded by partial 
month administrative period and followed by 2-month administrative 
period). (i) Facts. Same as Example 1, except that Employer Z uses an 
11-month initial measurement period that begins on the first day of the 
first calendar month beginning after the start date and applies an 
administrative period that runs from the end of the initial measurement 
period through the end of the second calendar month beginning on or 
after the end of the initial measurement period. Employee A's initial 
measurement period runs from June 1, 2015, through April 30, 2016. The 
administrative period associated with Employee A's initial measurement 
period ends on June 30, 2016. Employee A has an average of 30 hours of 
service per week during this initial measurement period.
    (ii) Conclusion. Same as Example 1.
    Example 4 (12-Month initial measurement period preceded by partial 
month administrative period and followed by 2-month administrative 
period). (i) Facts. For new variable hour employees, Employer Z uses a 
12-month initial measurement period that begins on the first day of the 
first month following the start date and applies an administrative 
period that runs from the end of the initial measurement period through 
the end of the second calendar month beginning on or after the end of 
the initial measurement period. Employer Z hires Employee A on May 10, 
2015. Employee A's initial measurement period runs from June 1, 2015, 
through May 31, 2016. Employee A has an average of 30 hours of service 
per week during this initial measurement period. Employer Z offers 
coverage to Employee A for a stability period that runs from August 1, 
2016, through July 31, 2017.

[[Page 464]]

    (ii) Conclusion. Employer Z does not satisfy the standards for the 
look-back measurement method in paragraph (d)(3)(vi)(B) of this section 
because the combination of the initial partial month delay, the 12-month 
initial measurement period, and the two month administrative period 
means that the coverage offered to Employee A does not become effective 
until after the first day of the second calendar month following the 
first anniversary of Employee A's start date. Accordingly, Employer Z is 
potentially subject to an assessable payment under section 4980H for 
each full calendar month during the initial measurement period and 
associated administrative period.
    Example 5 (Continuous full-time employee). (i) Facts. Same as 
Example 1; in addition, Employer Z tests Employee A again based on 
Employee A's hours of service from October 15, 2015, through October 14, 
2016 (Employer Z's first standard measurement period that begins after 
Employee A's start date), determines that Employee A has an average of 
30 hours of service per week during that period, and offers Employee A 
coverage for July 1, 2017, through December 31, 2017. (Employee A 
already has an offer of coverage for the period of January 1, 2017, 
through June 30, 2017, because that period is covered by the initial 
stability period following the initial measurement period, during which 
Employee A was determined to be a full-time employee.)
    (ii) Conclusion. Employer Z is not subject to any payment under 
section 4980H for any calendar month during 2017 with respect to 
Employee A.
    Example 6 (Initially full-time employee, becomes non-full-time 
employee). (i) Facts. Same as Example 1; in addition, Employer Z tests 
Employee A again based on Employee A's hours of service from October 15, 
2015, through October 14, 2016 (Employer Z's first standard measurement 
period that begins after Employee A's start date), and determines that 
Employee A has an average of 28 hours of service per week during that 
period. Employer Z continues to offer coverage to Employee A through 
June 30, 2017 (the end of the stability period based on the initial 
measurement period during which Employee A was determined to be a full-
time employee), but does not offer coverage to Employee A for the period 
of July 1, 2017, through December 31, 2017.
    (ii) Conclusion. Employer Z is not subject to any payment under 
section 4980H for any calendar month during 2017 with respect to 
Employee A.
    Example 7 (Initially non-full-time employee). (i) Facts. Same as 
Example 1, except that Employee A has an average of 28 hours of service 
per week during the initial measurement period (May 10, 2015, through 
May 9, 2016), and Employer Z does not offer coverage to Employee A for 
any calendar month in 2016.
    (ii) Conclusion. From Employee A's start date through the end of 
2016, Employer Z is not subject to any payment under section 4980H with 
respect to Employee A, because Employer Z complies with the standards 
for the measurement and stability periods for a new variable hour 
employee with respect to Employee A and because under those standards, 
Employee A is not a full-time employee for any month during 2016.
    Example 8 (Initially non-full-time employee, becomes full-time 
employee). (i) Facts. Same as Example 7; in addition, Employer Z tests 
Employee A again based on Employee A's hours of service from October 15, 
2015, through October 14, 2016 (Employer Z's first standard measurement 
period that begins after Employee A's start date), determines that 
Employee A has an average of 30 hours of service per week during this 
standard measurement period, and offers coverage to Employee A for 2017.
    (ii) Conclusion. Employer Z is not subject to any payment under 
section 4980H for any calendar month during 2017 with respect to 
Employee A.
    Example 9 (Initially full-time employee). (i) Facts. For new 
variable hour employees, Employer Y uses a six-month initial measurement 
period that begins on the start date and applies an administrative 
period that runs from the end of the initial measurement period through 
the end of the first full calendar month beginning after the end of the 
initial measurement period. Employer Y hires Employee B on May 10, 2015. 
Employee B's initial measurement period runs from May 10, 2015, through 
November 9, 2015, during which Employee B has an average of 30 hours of 
service per week. Employer Y offers coverage that provides minimum value 
to Employee B for a stability period that runs from January 1, 2016, 
through June 30, 2016. For each calendar month during the period from 
June 2015 through December 2015, Employee B is otherwise eligible for an 
offer of coverage with respect to the coverage that is offered to 
Employee B on January 1, 2016.
    (ii) Conclusion. Employer Y uses an initial measurement period that 
does not exceed 12 months; an administrative period totaling not more 
than 90 days; and a combined initial measurement period and 
administrative period that does not extend beyond the final day of the 
first calendar month beginning on or after the one-year anniversary of 
Employee B's start date. Employer Y complies with the standards for the 
measurement and stability periods for a new variable hour employee with 
respect to Employee B. Employer Y is not subject to an assessable 
payment under section 4980H(a) with respect to Employee B for any 
calendar month from June 2015 through December 2015 because, for each 
month during that period, Employee B is otherwise eligible for an offer 
of coverage and because Employee B is offered coverage

[[Page 465]]

no later than the end of the initial measurement period plus the 
associated administrative period (January 1, 2016). Employer Y is not 
subject to an assessable payment under section 4980H(b) with respect to 
Employee B for any calendar month from June 2015 through December 2015 
because the coverage Employer Y offers to Employee B no later than 
January 1, 2016, provides minimum value. Employer Y is not subject to an 
assessable payment under section 4980H(a) or (b) with respect to 
Employee B for May 2015 because an applicable large employer member is 
not subject to an assessable payment under section 4980H with respect to 
an employee for the calendar month in which falls the employee's start 
date if the start date is on a date other than the first day of the 
calendar month. Employer Y must test Employee B again based on Employee 
B's hours of service during the period from November 1, 2015, through 
April 30, 2016 (Employer Y's first standard measurement period that 
begins after Employee B's start date).
    Example 10 (Initially full-time employee, becomes non-full-time 
employee). (i) Facts. Same as Example 9; in addition, Employer Y tests 
Employee B again based on Employee B's hours of service during the 
period from November 1, 2015, through April 30, 2016 (Employer Y's first 
standard measurement period that begins after Employee B's start date), 
during which period Employee B has an average of 28 hours of service per 
week. Employer Y continues to offer coverage to Employee B through June 
30, 2016 (the end of the initial stability period based on the initial 
measurement period during which Employee B has an average of 30 hours of 
service per week), but does not offer coverage to Employee B from July 
1, 2016, through December 31, 2016.
    (ii) Conclusion. Employer Y is not subject to any payment under 
section 4980H with respect to Employee B for any calendar month during 
2016.
    Example 11 (Seasonal employee, 12-month initial measurement period; 
1 + partial month administrative period). (i) Facts. Employer X offers 
health plan coverage only to full-time employees (and their dependents). 
Employer X uses a 12-month initial measurement period for new seasonal 
employees that begins on the start date and applies an administrative 
period from the end of the initial measurement period through the end of 
the first calendar month beginning after the end of the initial 
measurement period. Employer X hires Employee C, a ski instructor, on 
November 15, 2015, with an anticipated season during which Employee C 
will work running through March 15, 2016. Employee C's initial 
measurement period runs from November 15, 2015, through November 14, 
2016.
    (ii) Conclusion. Employer X determines that Employee C is a seasonal 
employee because Employee C is hired into a position for which the 
customary annual employment is six months or less. Accordingly, Employer 
X may treat Employee C as a seasonal employee during the initial 
measurement period.
    Example 12 (Variable hour employee; temporary staffing firm). (i) 
Facts. Employer W hires Employee D on January 1, 2015, in a position 
under which Employer W will offer assignments to Employee D to provide 
services in temporary placements at clients of Employer W, and employees 
of Employer W in the same position as Employee D, as part of their 
continuing employment, retain the right to reject an offer of placement. 
Employees of Employer W in the same position of employment as Employee D 
typically perform services for a particular client for 40 hours of 
service per week for a period of less than 13 weeks, and for each 
employee there are typically periods in a calendar year during which 
Employer W does not have an assignment to offer the employee. At the 
time Employee D is hired by Employer W, Employer W has no reason to 
anticipate that Employee D's position of employment will differ from the 
typical employee in the same position.
    (ii) Conclusion. Employer W cannot determine whether Employee D is 
reasonably expected to average at least 30 hours of service per week for 
the 12-month initial measurement period. Accordingly, Employer W may 
treat Employee D as a variable hour employee during the initial 
measurement period.
    Example 13 (Variable hour employee; temporary staffing firm). (i) 
Facts. Employer V hires Employee E on January 1, 2015, in a position 
under which Employer V will offer assignments to Employee E to provide 
services in temporary placements at clients of Employer V. Employees of 
Employer V in the same position of employment as Employee E typically 
are offered assignments of varying hours of service per week (so that 
some weeks of the assignment typically result in more than 30 hours of 
service per week and other weeks of the assignment typically result in 
less than 30 hours of service per week). Although a typical employee in 
the same position of employment as Employee E rarely fails to have an 
offer of an assignment for any period during the calendar year, 
employees of Employer V in the same position of employment, as part of 
their continuing employment, retain the right to reject an offer of 
placement, and typically refuse one or more offers of placement and do 
not perform services for periods ranging from four to twelve weeks 
during a calendar year. At the time Employee E is hired by Employer V, 
Employer V has no reason to anticipate that Employee E's position of 
employment will differ from the typical employee in the same position.

[[Page 466]]

    (ii) Conclusion. Employer V cannot determine whether Employee E is 
reasonably expected to average at least 30 hours of service per week for 
the 12-month initial measurement period. Accordingly, Employer V may 
treat Employee E as a variable hour employee during the initial 
measurement period.
    Example 14 (Variable hour employee; temporary staffing firm). (i) 
Facts. Employer T hires Employee F on January 1, 2015, in a position 
under which Employer T will offer assignments to Employee F to provide 
services in temporary placements at clients of Employer T. Employees of 
Employer T in the same position typically are offered assignments of 40 
or more hours of service per week for periods expected to last for 
periods of three months to 12 months, subject to a request for renewal 
by the client. Employees of Employer T in similar positions to Employee 
F are typically offered and take new positions immediately upon 
cessation of a placement. At the time Employee F is hired by Employer T, 
Employer T has no reason to anticipate that Employee F's position of 
employment will differ from the typical employee in the same position.
    (ii) Conclusion. Employer T must assume that Employee F will be 
employed by Employer T and available for an offer of temporary placement 
for the entire initial measurement period. Under that assumption, 
Employer T would reasonably determine that Employee F is reasonably 
expected to average at least 30 hours of service per week for the 12-
month initial measurement period. Accordingly, Employer T may not treat 
Employee F as a variable hour employee during the initial measurement 
period.
    Example 15 (Variable hour employee). (i) Facts. Employee G is hired 
on an hourly basis by Employer S to fill in for employees who are absent 
and to provide additional staffing at peak times. Employer S expects 
that Employee G will average 30 hours of service per week or more for 
Employee G's first few months of employment, while assigned to a 
specific project, but also reasonably expects that the assignments will 
be of unpredictable duration, that there will be periods of 
unpredictable duration between assignments, that the hours per week 
required by subsequent assignments will vary, and that Employee G will 
not necessarily be available for all assignments.
    (ii) Conclusion. Employer S cannot determine whether Employee G is 
reasonably expected to average at least 30 hours of service per week for 
the initial measurement period. Accordingly, Employer S may treat 
Employee G as a variable hour employee during the initial measurement 
period.
    Example 16 (Period between initial stability period and standard 
stability period). (i) Facts. Employer R uses an 11-month initial 
measurement period for new variable hour, new seasonal, and new part-
time employees with an administrative period that lasts from the end of 
the initial measurement period through the last day of the first 
calendar month beginning on or after the first anniversary of the 
employee's start date. Employer R uses a standard measurement period of 
October 15 through October 14, and an administrative period of October 
15 through December 31. Employee H is hired as a variable hour employee 
on October 20, 2015, with an initial measurement period of October 20, 
2015, through September 19, 2016, and an administrative period lasting 
through November 30, 2016. Employee H is a full-time employee based on 
the hours of service in the initial measurement period, and Employee H's 
stability period for the initial measurement period is December 1, 2016, 
through November 30, 2017. Employee H's first full standard measurement 
period begins on October 15, 2016, with an associated stability period 
beginning on January 1, 2018. The standard measurement period beginning 
on October 15, 2015, does not apply to Employee H because Employee H is 
not hired until October 20, 2015.
    (ii) Conclusion. For the period after the stability period 
associated with the initial measurement period and before the stability 
period associated with Employee H's first full standard measurement 
period (that is December 1, 2017, through December 31, 2017), Employer R 
must treat Employee H as a full-time employee because the treatment as a 
full-time employee (or not a full-time employee) that applies during the 
stability period associated with the initial measurement period 
continues to apply until the beginning of the stability period 
associated with the first full standard measurement period during which 
the employee is employed.

    (6) Employees rehired after termination of employment or resuming 
service after other absence--(i) Treatment as a new employee after a 
period of absence for employees of employers other than educational 
organizations--(A) In general. The rules in this paragraph (d)(6)(i) 
apply to employers that are not educational organizations. For rules 
relating to employers that are educational organizations, see paragraph 
(d)(6)(ii) of this section. An employee who resumes providing services 
to (or is otherwise credited with an hour of service for) an applicable 
large employer that is not an educational organization after a period 
during which the employee was not credited with any hours of service may 
be treated as having terminated employment and having been rehired, and 
therefore may be treated

[[Page 467]]

as a new employee upon the resumption of services, only if the employee 
did not have an hour of service for the applicable large employer for a 
period of at least 13 consecutive weeks immediately preceding the 
resumption of services. The rule set forth in this paragraph (d)(6)(i) 
applies solely for the purpose of determining whether the employee, upon 
the resumption of services, is treated as a new employee or as a 
continuing employee, and does not determine whether the employee is 
treated as a continuing full-time employee or a terminated employee 
during the period during which no hours of service are credited.
    (B) Averaging method for special unpaid leave. For purposes of 
applying the look-back measurement method described in paragraph (d) of 
this section to an employee who is not treated as a new employee under 
paragraph (d)(6)(i) of this section, the employer determines the 
employee's average hours of service for a measurement period by 
computing the average after excluding any special unpaid leave during 
that measurement period and by using that average as the average for the 
entire measurement period. Alternatively, for purposes of determining 
the employee's average hours of service for the measurement period, the 
employer may choose to treat the employee as credited with hours of 
service for any periods of special unpaid leave during that measurement 
period at a rate equal to the average weekly rate at which the employee 
was credited with hours of service during the weeks in the measurement 
period that are not part of a period of special unpaid leave. There is 
no limit on the number of hours of service required to be excluded or 
credited (as the case may be) with respect to special unpaid leave. For 
purposes of this paragraph (d)(6)(i)(B), in computing the average weekly 
rate, employers are permitted to use any reasonable method if applied on 
a consistent basis. In addition, if an employee's average weekly rate 
under this paragraph (d)(6)(i)(B) is computed for a measurement period 
and that measurement period is shorter than six months, the six-month 
period ending with the close of the measurement period is used to 
compute the average hours of service.
    (C) Averaging rules for employment break periods for employers other 
than educational organizations. The averaging rule for employment break 
periods described in paragraph (d)(6)(ii)(B) of this section applies 
only to educational organizations and does not apply to other employers.
    (ii) Treatment as a new employee after a period of absence for 
employees of employers that are educational organizations--(A) In 
general. The rules of this paragraph (d)(6)(ii) apply only to employers 
that are educational institutions. An employee who resumes providing 
services to (or is otherwise credited with an hour of service for) an 
applicable large employer that is an educational organization after a 
period during which the employee was not credited with any hours of 
service may be treated as having terminated employment and having been 
rehired, and therefore may be treated as a new employee upon the 
resumption of services, only if the employee did not have an hour of 
service for the applicable large employer for a period of at least 26 
consecutive weeks immediately preceding the resumption of services. The 
rule set forth in this paragraph (d)(6)(ii)(A) applies solely for the 
purpose of determining whether the employee, upon the resumption of 
services, is treated as a new employee or as a continuing employee, and 
does not determine whether the employee is treated as a continuing full-
time employee or a terminated employee during the period during which no 
hours of service are credited.
    (B) Averaging method for special unpaid leave and employment break 
periods. For purposes of applying the look-back measurement method 
described in paragraph (d) of this section to an employee who is not 
treated as a new employee under paragraph (d)(6)(ii)(A) of this section, 
an educational organization employer determines the employee's average 
hours of service for a measurement period by computing the average after 
excluding any special unpaid leave and any employment break period 
during that measurement period and by using that average as the average 
for the entire measurement period.

[[Page 468]]

Alternatively, for purposes of determining the employee's average hours 
of service for the measurement period, the employer may choose to treat 
the employee as credited with hours of service for any periods of 
special unpaid leave and any employment break period during that 
measurement period at a rate equal to the average weekly rate at which 
the employee was credited with hours of service during the weeks in the 
measurement period that are not part of a period of special unpaid leave 
or an employment break period. Notwithstanding the preceding two 
sentences, no more than 501 hours of service during employment break 
periods in a calendar year are required to be excluded (under the first 
sentence) or credited (under the second sentence) by an educational 
organization, provided that this 501-hour limit does not apply to hours 
of service required to be excluded or credited in respect of special 
unpaid leave. In applying the preceding sentence, an employer that uses 
the method described in the first sentence of this paragraph 
(d)(6)(ii)(B) determines the number of hours excluded by multiplying the 
average weekly rate for the measurement period (determined as in the 
second sentence of this paragraph (d)(6)(ii)(B)) by the number of weeks 
in the employment break period. For purposes of this paragraph 
(d)(6)(ii)(B), in computing the average weekly rate, employers are 
permitted to use any reasonable method if applied on a consistent basis. 
In addition, if an employee's average weekly rate under this paragraph 
(d)(6)(ii)(B) is being computed for a measurement period and that 
measurement period is shorter than six months, the six-month period 
ending with the close of the measurement period is used to compute the 
average hours of service.
    (iii) Treatment of continuing employee. Under the look-back 
measurement method, an employee treated as a continuing employee 
retains, upon resumption of services, the status that employee had with 
respect to the application of any stability period (for example, if the 
continuing employee returns during a stability period in which the 
employee is treated as a full-time employee, the employee is treated as 
a full-time employee upon return and through the end of that stability 
period). For purposes of the preceding sentence, a continuing employee 
treated as a full-time employee is treated as offered coverage upon 
resumption of services if the employee is offered coverage as of the 
first day that employee is credited with an hour of service, or, if 
later, as soon as administratively practicable. For this purpose, 
offering coverage by no later than the first day of the calendar month 
following resumption of services is deemed to be as soon as 
administratively practicable. If a continuing employee returns during a 
stability period in which the employee is treated as a full-time 
employee and the employer previously made the employee an offer of 
coverage with respect to the entire stability period and the employee 
declined the offer, the employer will continue to be treated as having 
offered coverage for that stability period and the employer need not 
make a new offer of coverage for the remainder of the ongoing stability 
period due to the employee's resumption of services.
    (iv) Rule of parity. For purposes of determining the period after 
which an employee may be treated as having terminated employment and 
having been rehired, an applicable large employer may choose a period, 
measured in weeks, of at least four consecutive weeks during which the 
employee was not credited with any hours of service that exceeds the 
number of weeks of that employee's period of employment with the 
applicable large employer immediately preceding the period and that is 
shorter than 13 weeks (for an employee of an educational organization 
employer, a period that is shorter than 26 weeks). For purposes of the 
preceding sentence, the duration of the immediately preceding period of 
employment is determined after application to that period of employment 
of the averaging methods described in paragraphs (d)(6)(i)(B) and 
(d)(6)(ii)(B) of this section (relating to employment break periods and 
special unpaid leave), if applicable.
    (v) International transfers. An employer may treat an employee as 
having terminated employment if the employee transfers to a position at 
the

[[Page 469]]

same applicable large employer (including a different applicable large 
employer member that is part of the same applicable large employer) if 
the position is anticipated to continue indefinitely or for at least 12 
months and if substantially all of the compensation will constitute 
income from sources without the United States (within the meaning of 
sections 861 through 863 and the regulations thereunder). With respect 
to an employee transferring from a position that was anticipated to 
continue indefinitely or for at least 12 months and in which 
substantially all of the compensation for the hours of service 
constitutes income from sources without the United States (within the 
meaning of sections 861 through 863 and the regulations thereunder) to a 
position at the same applicable large employer (including a different 
applicable large employer member that is part of the same applicable 
large employer) with respect to which substantially all of the 
compensation will constitute U.S. source income, the employer may treat 
that employee as a new hire to the extent consistent with the rules 
related to rehired employees in paragraph (d)(6) of this section.
    (vi) Anti-abuse rule. For purposes of this paragraph (d)(6), any 
hour of service is disregarded if the hour of service is credited, or 
the services giving rise to the crediting of the hour of service are 
requested or required of the employee, for a purpose of avoiding or 
undermining the application of the employee rehire rules under paragraph 
(d)(6) of this section, or the application of the averaging method for 
employment break periods under paragraph (d)(6)(ii)(B) of this section. 
For example, if an employee of an educational organization would 
otherwise have a period with no hours of service to which the rules 
under paragraph (d)(6)(ii)(B) of this section would apply, but for the 
employer's request or requirement that the employee perform one or more 
hours of service for a purpose of avoiding the application of those 
rules, any such hours of service for the week are disregarded, and the 
rules under paragraph (d)(6)(ii)(B) of this section will apply.
    (vii) Examples. The following examples illustrate the provisions of 
paragraph (d)(6) of this section. All employers in these examples are 
applicable large employer members with 200 full-time employees 
(including full-time equivalent employees), each is in a different 
applicable large employer group, and each determines full-time employee 
status under the look-back measurement method. None of the periods 
during which an employee is not credited with an hour of service for an 
employer involve special unpaid leave or the employee being credited 
with hours of service for any applicable large employer member in the 
same applicable large employer as the employer.

    Example 1. (i) Facts. As of April 1, 2015, Employee A has been an 
employee of Employer Z (which is not an educational organization) for 10 
years. On April 1, 2015, Employee A terminates employment and is not 
credited with an hour of service until June 1, 2015, when Employer Z 
rehires Employee A and Employee A continues as an employee through 
December 31, 2015, which is the close of the measurement period as 
applied by Employer Z.
    (ii) Conclusion. Because the period for which Employee A is not 
credited with any hours of service is not longer than Employee A's prior 
period of employment and is less than 13 weeks, Employee A is not 
treated as having terminated employment and been rehired for purposes of 
determining whether Employee A is treated as a new employee upon 
resumption of services. Therefore, Employee A's hours of service prior 
to termination are required to be taken into account for purposes of the 
measurement period, and Employee A's period with no hours of service is 
taken into account as a period of zero hours of service during the 
measurement period.
    Example 2. (i) Facts. Same facts as Example 1, except that Employee 
A is rehired on December 1, 2015.
    (ii) Conclusion. Because the period during which Employee A is not 
credited with an hour of service for Employer Z exceeds 13 weeks, 
Employee A is treated as having terminated employment on April 1, 2015, 
and having been rehired as a new employee on December 1, 2015, for 
purposes of determining Employee A's full-time employee status. Because 
Employee A is treated as a new employee, Employee A's hours of service 
prior to termination are not taken into account for purposes of the 
measurement period, and the period between termination and rehire with 
no hours of service is not taken into account in the new measurement 
period that begins after the employee is rehired.

[[Page 470]]

    Example 3. (i) Facts. Employee B is employed by Employer Y, an 
educational organization. Employee B is employed for 38 hours of service 
per week on average from September 7, 2014, through May 23, 2015, and 
then does not provide services (and is not otherwise credited with an 
hour of service) during the summer break when the school is generally 
not in session. Employee B resumes providing services for Employer Y on 
September 7, 2015, when the new school year begins.
    (ii) Conclusion. Because the period from May 24, 2015 through 
September 5, 2015 (a total of 15 weeks), during which Employee B is not 
credited with an hour of service does not exceed 26 weeks, and also does 
not exceed the number of weeks of Employee B's immediately preceding 
period of employment, Employee B is not treated as having terminated 
employment on May 24, 2015, and having been rehired on September 6, 
2015. Also, for purposes of determining Employee B's average hours of 
service per week for the measurement period, Employee B is credited, 
under the averaging method for employment break periods applicable to 
educational organizations, as having an average of 38 hours of service 
per week for the 15 weeks between May 24, 2015 and September 5, 2015, 
during which Employee B otherwise was credited with no hours of service. 
However, Employer Y is not required to credit more than 501 hours of 
service for the employment break period (15 weeks x 38 hours = 570 
hours).
    Example 4. (i) Facts. Same facts as Example 3, except that Employee 
B does not resume providing services for Employer Y until December 5, 
2015.
    (ii) Conclusion. Because the period from May 24, 2015 through 
December 5, 2015, exceeds 26 weeks, Employee B may be treated as having 
terminated employment on May 24, 2015, and having been rehired on 
December 5, 2015. Because Employee B is treated as a new employee on 
December 5, 2015, Employee B's hours of service prior to termination are 
not taken into account for purposes of the measurement period, and the 
period between termination and rehire with no hours of service is not 
taken into account in the new measurement period that begins after 
Employee B is rehired. The averaging method for employment break periods 
applicable to educational organizations does not apply because Employee 
B is treated as a new employee rather than a continuing employee as of 
the date of resumption of services.

    (e) Use of the look-back measurement method and the monthly 
measurement method for different categories of employees. Different 
applicable large employer members of the same applicable large employer 
may use different methods of determining full-time employee status (that 
is, either the monthly measurement method or the look-back measurement 
method). In addition, an applicable large employer member may use either 
the monthly measurement method or the look-back measurement method for 
each of the categories of employees set forth in paragraphs (d)(1)(v) 
and (d)(3)(v) of this section, and is not required to use the same 
method for all categories.
    (f) Changes in employment status resulting in a change in full-time 
employee determination method--(1) Change in employment status from a 
position to which a look-back measurement method applies to a position 
to which the monthly measurement method applies, or vice versa--(i) 
Change from look-back measurement method to monthly measurement method. 
For an employee transferring from a position under which the look-back 
measurement method is used to determine the employee's status as a full-
time employee, to a position under which the monthly measurement method 
is used to determine the employee's status as a full-time employee, the 
following rules apply:
    (A) For an employee who at the time of the change of position is in 
a stability period under which the employee is treated as a full-time 
employee, the employer must continue to treat the employee as a full-
time employee through the end of the stability period;
    (B) For an employee who at the time of the change of position is in 
a stability period under which the employee is not treated as a full-
time employee, the employer may continue to treat the employee as not a 
full-time employee through the end of the stability period, or may apply 
the monthly measurement method set forth in paragraph (c) of this 
section through the end of the stability period beginning with any 
calendar month including the calendar month in which the change in 
employment status occurs or any subsequent calendar month;
    (C) For the stability period associated with the measurement period 
during which the change in employment status occurs, the employer must 
treat the employee as a full-time employee for any calendar month during 
which the employee either would be treated

[[Page 471]]

as a full-time employee under the stability period that would have 
applied based on the measurement period in which the change in 
employment status occurred or would be treated as a full-time employee 
under the monthly measurement method; and
    (D) For any calendar month subsequent to the stability period 
identified in paragraph (f)(1)(i)(C) of this section, the monthly 
measurement method applies for determination of the employee's status as 
a full-time employee.
    (ii) Change from monthly measurement method to look-back measurement 
method. For an employee who is transferring from a position under which 
the monthly measurement method is used to determine the employee's 
status as a full-time employee, to a position under which a look-back 
measurement method is used to determine the employee's status as a full-
time employee, the following rules apply:
    (A) For the remainder of the applicable stability period during 
which the change in employment status occurs, the employer must continue 
to use the monthly measurement method to determine the employee's status 
as a full-time employee unless the employee's hours of service prior to 
the change in employment status would have resulted in the employee 
being treated as a full-time employee during the stability period in 
which the change in employment status occurs, in which case the employer 
must treat the employee as a full-time employee for that stability 
period;
    (B) For the applicable stability period following the measurement 
period during which the change in employment status occurs, the employer 
must treat the employee as a full-time employee for any calendar month 
during which the employee either would be treated as a full-time 
employee based on the measurement period during which the change in 
employment status occurs or would be treated as a full-time employee 
under the monthly measurement method; and
    (C) For any calendar month subsequent to the stability period 
identified in paragraph (f)(1)(ii)(B) of this section, the look-back 
measurement method applies for determination of the employee's status as 
a full-time employee.
    (iii) Examples. The following examples illustrate the rules of this 
paragraph (f). In each example, the employer is an applicable large 
employer with 200 full-time employees (including FTEs). For each 
example, the employer uses the monthly measurement method for 
determining whether a salaried employee is a full-time employee, and the 
look-back measurement method for determining whether an hourly employee 
is a full-time employee with a measurement period from October 15 
through October 14 of the following calendar year, and a stability 
period from January 1 through December 31. In each case, the relevant 
employee has been employed continuously for several years.

    Example 1 (Look-back measurement method to monthly measurement 
method). Employee A is an hourly employee. Based on Employee A's hours 
of service from October 15, 2015, through October 14, 2016, Employee A 
is treated as a full-time employee from January 1, 2017, through 
December 31, 2017. On July 1, 2017, Employee A transfers from a position 
as an hourly employee to a position as a salaried employee. For the 
months July 2017 through December 2017, Employee A must be treated as a 
full-time employee. Employee A is employed for hours of service from 
October 15, 2016, through October 14, 2017, such that under the 
applicable look-back measurement method Employee A would be treated as a 
full-time employee for the period of January 1, 2018, through December 
31, 2018. Accordingly, Employee A must be treated as a full-time 
employee for the calendar year 2018. For calendar year 2019, the 
determination of whether Employee A is a full-time employee is made 
under the monthly measurement method.
    Example 2 (Look-back measurement method to monthly measurement 
method). Same facts as Example 1, except that based on Employee A's 
hours of service from October 15, 2015, through October 14, 2016, 
Employee A is not treated as a full-time employee from January 1, 2017, 
through December 31, 2017. For the months July 2017 through December 
2017, Employer Z may either treat Employee A as not a full-time employee 
or apply the monthly measurement method to determine Employee A's status 
as a full-time employee. Employee A is employed for hours of service 
from October 15, 2016, through October 14, 2017, such that under the 
applicable look-back measurement method Employee A would be treated as a 
full-time employee for the period of January 1, 2018, through December 
31, 2018. Employee A must be treated as a full-time employee for the 
calendar year

[[Page 472]]

2018. For calendar year 2019, the determination of whether Employee A is 
a full-time employee is made under the monthly measurement method.
    Example 3 (Look-back measurement method to monthly measurement 
method). Same facts as Example 1, except that Employee A is employed for 
hours of service from October 15, 2016, through October 14, 2017, such 
that under the applicable look-back measurement method Employee A would 
not be treated as a full-time employee for the period of January 1, 
2018, through December 31, 2018. For the calendar year 2018, Employer Z 
must treat Employee A as a full-time employee only for calendar months 
during which Employee A would be a full-time employee under the monthly 
measurement method. For calendar year 2019, the determination of whether 
Employee A is a full-time employee is made under the monthly measurement 
method.
    Example 4 (Monthly measurement method to look-back measurement 
method). Employee B is a salaried employee of Employer Y. On July 1, 
2017, Employee B transfers to an hourly employee position. Based on 
Employee B's hours of service from October 15, 2015, through October 14, 
2016, Employee B would have been treated as a full-time employee for the 
stability period from January 1, 2017, through December 31, 2017, had 
the look-back measurement method applicable to hourly employees applied 
to Employee B for the entire stability period. For the calendar months 
January 2017 through June 2017 (prior to Employee B's change to hourly 
employee status), Employee B's status as a full-time employee is 
determined using the monthly measurement method. For the calendar months 
July 2017 through December 2017, Employer Y must treat Employee B as a 
full-time employee because Employee B would have been treated as a full-
time employee during that portion of the stability period had the look-
back measurement method applied to Employee B for that entire stability 
period. Employee B is employed for hours of service from October 15, 
2016, through October 14, 2017, such that under the applicable look-back 
measurement method Employee B would be treated as a full-time employee 
for the period January 1, 2018, through December 31, 2018. Accordingly, 
Employee B must be treated as a full-time employee for the calendar year 
2018. For calendar year 2019, the determination of whether Employee B is 
a full-time employee is made under the applicable look-back measurement 
method.
    Example 5 (Monthly measurement method to look-back measurement 
method). Same facts as Example 4, except that based on Employee B's 
hours of service from October 15, 2015, through October 14, 2016, 
Employee B would not have been treated as a full-time employee from 
January 1, 2017, through December 31, 2017. For the calendar months of 
2017, Employer Y applies the monthly measurement method to determine 
Employee B's status as a full-time employee. Employee B is employed for 
hours of service from October 15, 2016, through October 14, 2017, such 
that under the applicable look-back measurement method Employee B would 
be treated as a full-time employee for the period January 1, 2018, 
through December 31, 2018. Accordingly, Employee B must be treated as a 
full-time employee for the calendar year 2018. For calendar year 2019, 
the determination of whether Employee B is a full-time employee is made 
under the applicable look-back measurement method.
    Example 6 (Monthly measurement method to look-back measurement 
method). Same facts as Example 4, except that Employee B is employed for 
hours of service from October 15, 2016, through October 14, 2017, such 
that under the applicable look-back measurement method Employee B would 
not be treated as a full-time employee for the period of January 1, 
2018, through December 31, 2018. For the calendar year 2018, Employer Y 
must treat Employee B as a full-time employee only for calendar months 
during which Employee B would be a full-time employee under the monthly 
measurement method.

    (2) Special rule for certain employees to whom minimum value 
coverage has been continuously offered--(i) In general. Notwithstanding 
the rules in paragraphs (e) and (f) of this section, an employer using 
the look-back measurement method to determine the full-time employee 
status of an employee may apply the monthly measurement method to that 
employee beginning on the first day of the fourth full calendar month 
following the calendar month in which the employee experiences a change 
in employment status such that, if the employee had begun employment in 
the new position or status, the employee would have reasonably been 
expected not to be employed on average at least 30 hours of service per 
week (for example, the employee has changed to a part-time position of 
only 20 hours of service per week). This rule only applies with respect 
to an employee to whom the applicable large employer member offered 
minimum value coverage by the first day of the calendar month following 
the employee's initial three full calendar months of employment through 
the calendar

[[Page 473]]

month in which the change in employment status described in this 
paragraph (f)(2) occurs, and only if the employee actually averages less 
than 30 hours of service per week for each of the three full calendar 
months following the change in employment status. For the three full 
calendar months between the employee's change in employment status and 
the application of the monthly measurement method, the employee's full-
time employee status is determined based on the employee's status during 
the applicable stability period(s). Under this rule, an employer may 
apply the monthly measurement method to an employee even if the employer 
does not apply the monthly measurement method to the other employees in 
the same category of employees under paragraph (d)(1)(v) or (d)(3)(v) of 
this section (for example, under this method an employer could apply the 
monthly measurement method to an hourly employee, even if the employer 
uses the look-back measurement method to determine full-time employee 
status of all other hourly employees). The employer may continue to 
apply the monthly measurement method through the end of the first full 
measurement period (and any associated administrative period) that would 
have applied had the employee remained under the applicable look-back 
measurement method.
    (ii) Examples. The following examples illustrate the rule of 
paragraphs (f)(2) of this section. In each example, the employer is an 
applicable large employer with 200 full-time employees (including FTEs).

    Example 1 (New variable hour employee, no delay in coverage, becomes 
non-full-time employee). (i) Facts. Employer Z, an applicable large 
employer, uses the look-back measurement method to determine the full-
time employee status for all of its employees. On May 10, 2015, Employer 
Z hired Employee A who is a variable hour employee. Although Employee A 
is a new variable hour employee, so that Employer Z could wait until the 
end of an initial measurement period to offer coverage to Employee A 
without an assessable payment under section 4980H with respect to 
Employee A, Employer Z offers coverage that provides minimum value to 
Employee A on September 1, 2015. For its ongoing employees, Employer Z 
has chosen to use a 12-month standard measurement period starting 
October 15 and a 12-month stability period associated with that standard 
measurement period starting January 1. Employee A continues in 
employment with Employer Z for over five years and averages more than 30 
hours of service per week for all measurement periods through the 
measurement period ending October 14, 2020. On February 12, 2021, 
Employee A experiences a change in position of employment with Employer 
Z to a position under which Employer Z reasonably expects Employee A to 
average less than 30 hours of service per week. For the calendar months 
after February 2021, Employee A averages less than 30 hours of service 
per week. Employer Z offered Employee A coverage that provided minimum 
value continuously from September 1, 2015, through May 31, 2021. 
Effective June 1, 2021, Employer Z elects to apply the monthly 
measurement method to determine Employee A's status as a full-time 
employee for the remainder of the stability period ending December 31, 
2021, and the calendar year 2022 (which is through the end of the first 
full measurement period following the change in employment status plus 
the associated administrative period). Applying the stability period 
beginning January 1, 2021, Employer Z treats Employee A as a full-time 
employee for each calendar month from January 2021 through May 2021. 
Applying the monthly measurement method, for each calendar month from 
June 2021 through December 2022, Employer Z treats Employee A as not a 
full-time employee.
    (ii) Conclusion. Because Employer Z offered coverage that provided 
minimum value to Employee A from no later than the first day of the 
fourth full calendar month following Employee A's start date through the 
calendar month in which the change in employment status occurred, and 
because Employee A did not average 30 hours of service per week for any 
of the three calendar months immediately following Employee A's change 
in employment status to an employee not reasonably expected to average 
30 hours of service per week, Employer Z may use the monthly measurement 
method to determine the full-time employee status of Employee A 
beginning on the first day of the fourth month following the change in 
employment status (June 1, 2021) through the end of the first full 
measurement period (plus any associated administrative period) 
immediately following the change in employment status (December 31, 
2022). Because Employee A did not average at least 30 hours of service 
per week for any calendar month from June 2021 through December 2022, 
Employer Z has properly treated Employee A as not a full-time employee 
for those calendar months.
    Example 2 (New full-time employee, no delay in coverage, becomes 
non-full-time employee). (i) Facts. Same facts as Example 1, except that

[[Page 474]]

at Employee A's start date, Employer Z reasonably expects that Employee 
A will average at least 30 hours of service per week. Accordingly, 
Employer Z offers coverage to Employee A beginning on September 1, 2015, 
and offers coverage continuously to Employee A for all calendar months 
through May 2021.
    (ii) Conclusion. Same as Example 1.

    (g) Nonpayment or late payment of premiums. An applicable large 
employer member will not be treated as failing to offer to a full-time 
employee (and his or her dependents) the opportunity to enroll in 
minimum essential coverage under an eligible employer-sponsored plan for 
an employee whose coverage under the plan is terminated during the 
coverage period solely due to the employee failing to make a timely 
payment of the employee portion of the premium. This treatment continues 
only through the end of the coverage period (typically the plan year). 
For this purpose, the rules in Sec.  54.4980B-8, Q&A-5(a), (c), (d) and 
(e) apply under this section to the payment for coverage with respect to 
a full-time employee in the same manner that they apply to payment for 
COBRA continuation coverage under Sec.  54.4980B-8.
    (h) Additional guidance. With respect to the determination of full-
time employee status, including determination of hours of service, the 
Commissioner may prescribe additional guidance of general applicability, 
published in the Internal Revenue Bulletin (see Sec.  
601.601(d)(2)(ii)(b) of this chapter).
    (i) Effective/applicability date. This section is applicable for 
periods after December 31, 2014.

[T.D. 9655, 79 FR 8577, Feb. 12, 2014]



Sec.  54.4980H-4  Assessable payments under section 4980H(a).

    (a) In general. If an applicable large employer member fails to 
offer to its full-time employees (and their dependents) the opportunity 
to enroll in minimum essential coverage under an eligible employer-
sponsored plan for any calendar month, and the applicable large employer 
member has received a Section 1411 Certification with respect to at 
least one full-time employee, an assessable payment is imposed. For the 
calendar month, the applicable large employer member will owe an 
assessable payment equal to the product of the section 4980H(a) 
applicable payment amount and the number of full-time employees of the 
applicable large employer member (other than employees in a limited non-
assessment period for certain employees and as adjusted in accordance 
with paragraph (e) of this section). For purposes of this paragraph (a), 
an applicable large employer member is treated as offering such coverage 
to its full-time employees (and their dependents) for a calendar month 
if, for that month, it offers such coverage to all but five percent (or, 
if greater, five) of its full-time employees (provided that an employee 
is treated as having been offered coverage only if the employer also 
offers coverage to that employee's dependents). For purposes of the 
preceding sentence, an employee in a limited non-assessment period for 
certain employees is not included in the calculation.
    (b) Offer of coverage--(1) In general. An applicable large employer 
member will not be treated as having made an offer of coverage to a 
full-time employee for a plan year if the employee does not have an 
effective opportunity to elect to enroll in the coverage at least once 
with respect to the plan year, or does not have an effective opportunity 
to decline to enroll if the coverage offered does not provide minimum 
value or requires an employee contribution for any calendar month of 
more than 9.5 percent of a monthly amount determined as the federal 
poverty line for a single individual for the applicable calendar year, 
divided by 12. For this purpose, the applicable federal poverty line is 
the federal poverty line for the 48 contiguous states and the District 
of Columbia. Whether an employee has an effective opportunity to enroll 
or to decline to enroll is determined based on all the relevant facts 
and circumstances, including adequacy of notice of the availability of 
the offer of coverage, the period of time during which acceptance of the 
offer of coverage may be made, and any other conditions on the offer. An 
employee's election of coverage from a prior year that continues for the 
next plan year unless the employee affirmatively

[[Page 475]]

elects to opt out of the plan constitutes an offer of coverage for 
purposes of section 4980H.
    (2) Offer of coverage on behalf of another entity. For purposes of 
section 4980H, an offer of coverage by one applicable large employer 
member to an employee for a calendar month is treated as an offer of 
coverage by all applicable large employer members for that calendar 
month. In addition, an offer of coverage made to an employee on behalf 
of a contributing employer under a multiemployer or single employer 
Taft-Hartley plan or multiple employer welfare arrangement (MEWA) is 
treated as made by the employer. For an offer of coverage to an employee 
performing services for an employer that is a client of a staffing firm, 
in cases in which the staffing firm is not the common law employer of 
the individual and the staffing firm makes an offer of coverage to the 
employee on behalf of the client employer under a plan established or 
maintained by the staffing firm, the offer is treated as made by the 
client employer for purposes of section 4980H only if the fee the client 
employer would pay to the staffing firm for an employee enrolled in 
health coverage under the plan is higher than the fee the client 
employer would pay the staffing firm for the same employee if that 
employee did not enroll in health coverage under the plan.
    (c) Partial calendar month. If an applicable large employer member 
fails to offer coverage to a full-time employee for any day of a 
calendar month, that employee is treated as not offered coverage during 
that entire month, regardless of whether the employer uses the payroll 
period rule set forth in Sec.  54.4980H-3(d)(1)(ii) or the weekly rule 
set forth in Sec.  54.4980H-3(c)(3) to determine full-time employee 
status for the calendar month. However, in a calendar month in which the 
employment of a full-time employee terminates, if the employee would 
have been offered coverage for the entire calendar month had the 
employee been employed for the entire calendar month, the employee is 
treated as having been offered coverage for that entire calendar month. 
In addition, an applicable large employer member is not subject to an 
assessable payment under section 4980H with respect to an employee for 
the calendar month in which the employee's start date occurs if the 
start date is on a date other than the first day of the calendar month, 
and, in addition, with respect to the calendar month in which the start 
date occurs, such an employee is not included for purposes of the 
calculation of any potential liability under section 4980H(a).
    (d) Application to applicable large employer member. The liability 
for an assessable payment under section 4980H(a) for a calendar month 
with respect to a full-time employee applies solely to the applicable 
large employer member that was the employer of that employee for that 
calendar month. For an employee who was an employee of more than one 
applicable large employer member of the same applicable large employer 
during a calendar month, the liability for the assessable payment under 
section 4980H(a) for a calendar month applies to the applicable large 
employer member for whom the employee has the greatest number of hours 
of service for that calendar month (if the employee has an equal number 
of hours of service for two or more applicable large employer members of 
the same applicable large employer for the calendar month, those 
applicable large employer members can treat one of those members as the 
employer of that employee for that calendar month for purposes of this 
section, and if the members do not select one member, or select in an 
inconsistent manner, the IRS will select a member to be treated as the 
employer of that employee for purposes of the assessable payment 
determination). For a calendar month, an applicable large employer 
member may be liable for an assessable payment under section 4980H(a) or 
under section 4980H(b), but will not be liable for an assessable payment 
under both section 4980H(a) and section 4980H(b).
    (e) Allocated reduction of 30 full-time employees. For purposes of 
the liability calculation under paragraph (a) of this section, with 
respect to each calendar month, an applicable large employer member's 
number of full-time employees is reduced by that member's allocable 
share of 30. The applicable large

[[Page 476]]

employer member's allocation is equal to 30 allocated ratably among all 
members of the applicable large employer on the basis of the number of 
full-time employees employed by each applicable large employer member 
during the calendar month (after application of the rules of paragraph 
(d) of this section addressing employees who work for more than one 
applicable large employer member during a calendar month). If an 
applicable large employer member's total allocation is not a whole 
number, the allocation is rounded to the next highest whole number. This 
rounding rule may result in the aggregate reduction for the entire group 
of applicable large employer members exceeding 30.
    (f) Example. The following example illustrates the provisions of 
paragraphs (a) and (e) of this section.

    Example. (i) Facts. Applicable large employer member Z and 
applicable large employer member Y are the two members of an applicable 
large employer. Applicable large employer member Z employs 40 full-time 
employees in each calendar month of 2017. Applicable large employer 
member Y employs 35 full-time employees in each calendar month of 2017. 
Assume that for 2017, the applicable payment amount for a calendar month 
is $2,000 divided by 12. Applicable large employer member Z does not 
sponsor an eligible employer-sponsored plan for any calendar month of 
2017, and receives a Section 1411 Certification for 2017 with respect to 
at least one of its full-time employees. Applicable large employer 
member Y sponsors an eligible employer-sponsored plan under which all of 
its full-time employees are eligible for minimum essential coverage.
    (ii) Conclusion. Pursuant to section 4980H(a) and this section, 
applicable large employer member Z is subject to an assessable payment 
under section 4980H(a) for 2017 of $48,000, which is equal to 24 x 
$2,000 (40 full-time employees reduced by 16 (its allocable share of the 
30-employee offset ((40/75) x 30 = 16)) and then multiplied by $2,000). 
Applicable large employer member Y is not subject to an assessable 
payment under section 4980H(a) for 2017.

    (g) Additional guidance. With respect to assessable payments under 
section 4980H(a), the Commissioner may prescribe additional guidance of 
general applicability, published in the Internal Revenue Bulletin (see 
Sec.  601.601(d)(2)(ii)(b) of this chapter).
    (h) Effective/applicability date. This section is applicable for 
periods after December 31, 2014.

[T.D. 9655, 79 FR 8577, Feb. 12, 2014]



Sec.  54.4980H-5  Assessable payments under section 4980H(b).

    (a) In general. If an applicable large employer member offers to its 
full-time employees (and their dependents) the opportunity to enroll in 
minimum essential coverage under an eligible employer-sponsored plan for 
any calendar month (including an offer of coverage to all but five 
percent or less (or, if greater, five or less) of its full-time 
employees (provided that an employee is treated as having been offered 
coverage only if the employer also offers coverage to that employee's 
dependents)) and the applicable large employer member has received a 
Section 1411 Certification with respect to one or more full-time 
employees of the applicable large employer member, then there is imposed 
on the applicable large employer member an assessable payment equal to 
the product of the number of full-time employees of the applicable large 
employer member for which it has received a Section 1411 Certification 
(minus the number of those employees in a limited non-assessment period 
for certain employees and the number of other employees who were offered 
the opportunity to enroll in minimum essential coverage under an 
eligible employer-sponsored plan that satisfied minimum value and met 
one or more of the affordability safe harbors described in paragraph (e) 
of this section) and the section 4980H(b) applicable payment amount. 
Notwithstanding the foregoing, the aggregate amount of assessable 
payment determined under this paragraph (a) with respect to all 
employees of an applicable large employer member for any calendar month 
may not exceed the product of the section 4980H(a) applicable payment 
amount and the number of full-time employees of the applicable large 
employer member during that calendar month (reduced by the applicable 
large employer member's ratable allocation of the 30 employee reduction 
under Sec.  54.4980H-4(e)).

[[Page 477]]

    (b) Offer of coverage. For purposes of this section, the same rules 
with respect to an offer of coverage for purposes of section 4980H(a) 
apply. See Sec.  54.4980H-4.
    (c) Partial calendar month. If an applicable large employer member 
fails to offer coverage to a full-time employee for any day of a 
calendar month, that employee is treated as not offered coverage during 
that entire month, regardless of whether the employer uses the payroll 
period rule set forth in Sec.  54.4980H-3(d)(1)(ii) or the weekly rule 
set forth in Sec.  54.4980H-3(c)(3) to determine full-time employee 
status for the calendar month. However, in a calendar month in which a 
full-time employee's employment terminates, if the employee would have 
been offered coverage if the employee had been employed for the entire 
month, the employee is treated as having been offered coverage during 
that month. Also, an applicable large employer member is not subject to 
an assessable payment under section 4980H with respect to an employee 
for the calendar month in which the employee's start date occurs if the 
start date is on a date other than the first day of the calendar month.
    (d) Applicability to applicable large employer member. The liability 
for an assessable payment under section 4980H(b) for a calendar month 
with respect to a full-time employee applies solely to the applicable 
large employer member that was the employer of that employee for that 
calendar month. For an employee who was a full-time employee of more 
than one applicable large employer member during that calendar month, 
the liability for the assessable payment under section 4980H(b) for a 
calendar month applies to the applicable large employer member for whom 
the employee has the greatest number of hours of service for that 
calendar month (if the employee has an equal number of hours of service 
for two or more applicable large employer members for the calendar 
month, those applicable large employer members can treat one of those 
members as the employer of that employee for that calendar month for 
purposes of this paragraph (d), and if the members do not select one 
member, or select in an inconsistent manner, the IRS will select a 
member to be treated as the employer of that employee for purposes of 
the assessable payment determination). For a calendar month, an 
applicable large employer member may be liable for an assessable payment 
under section 4980H(a) or under section 4980H(b), but will not be liable 
for an assessable payment under both section 4980H(a) and section 
4980H(b).
    (e) Affordability--(1) In general. An employee who is offered 
coverage by an applicable large employer member may be eligible for an 
applicable premium tax credit or cost-sharing reduction if that offer of 
coverage is not affordable within the meaning of section 36B(c)(2)(C)(i) 
and the regulations thereunder.
    (2) Affordability safe harbors for section 4980H(b) purposes. The 
affordability safe harbors set forth in paragraph (e)(2)(ii) through 
(iv) of this section apply solely for purposes of section 4980H(b), so 
that an applicable large employer member that offers minimum essential 
coverage providing minimum value will not be subject to an assessable 
payment under section 4980H(b) with respect to any employee receiving 
the applicable premium tax credit or cost-sharing reduction for a period 
for which the coverage is determined to be affordable under the 
requirements of an affordability safe harbor. This rule applies even if 
the applicable large employer member's offer of coverage that meets the 
requirements of an affordability safe harbor is not affordable for a 
particular employee under section 36B(c)(2)(C)(i) and an applicable 
premium tax credit or cost-sharing reduction is allowed or paid with 
respect to that employee.
    (i) Conditions of using an affordability safe harbor. An applicable 
large employer member may use one or more of the affordability safe 
harbors described in this paragraph (e)(2) only if the employer offers 
its full-time employees and their dependents the opportunity to enroll 
in minimum essential coverage under an eligible employer-sponsored plan 
that provides minimum value with respect to the self-only coverage 
offered to the employee. Use of any of the safe harbors is optional for 
an applicable large employer member,

[[Page 478]]

and an applicable large employer member may choose to apply the safe 
harbors for any reasonable category of employees, provided it does so on 
a uniform and consistent basis for all employees in a category. 
Reasonable categories generally include specified job categories, nature 
of compensation (hourly or salary), geographic location, and similar 
bona fide business criteria. An enumeration of employees by name or 
other specific criteria having substantially the same effect as an 
enumeration by name is not considered a reasonable category.
    (ii) Form W-2 safe harbor--(A) Full-year offer of coverage. An 
employer will not be subject to an assessable payment under section 
4980H(b) with respect to a full-time employee if that employee's 
required contribution for the calendar year for the employer's lowest 
cost self-only coverage that provides minimum value during the entire 
calendar year (excluding COBRA or other continuation coverage except 
with respect to an active employee eligible for continuation coverage) 
does not exceed 9.5 percent of that employee's Form W-2 wages from the 
employer (and any other member of the same applicable large employer 
that also pays wages to that employee) for the calendar year. 
Application of this safe harbor is determined after the end of the 
calendar year and on an employee-by-employee basis, taking into account 
the Form W-2 wages and the required employee contribution for that year. 
In addition, to qualify for this safe harbor, the employee's required 
contribution must remain a consistent amount or percentage of all Form 
W-2 wages during the calendar year (or during the plan year for plans 
with non-calendar year plan years) so that an applicable large employer 
member is not permitted to make discretionary adjustments to the 
required employee contribution for a pay period. A periodic contribution 
that is based on a consistent percentage of all Form W-2 wages may be 
subject to a dollar limit specified by the employer.
    (B) Adjustment for partial-year offer of coverage. For an employee 
not offered coverage for an entire calendar year, the Form W-2 safe 
harbor is applied by adjusting the Form W-2 wages to reflect the period 
for which coverage was offered, then determining whether the employee's 
required contribution for the employer's lowest cost self-only coverage 
that provides minimum value, totaled for the periods during which 
coverage was offered, does not exceed 9.5 percent of the adjusted amount 
of Form W-2 wages. To adjust Form W-2 wages for this purpose, the Form 
W-2 wages are multiplied by a fraction equal to the number of calendar 
months for which coverage was offered over the number of calendar months 
in the employee's period of employment with the employer during the 
calendar year. For this purpose, if coverage is offered during at least 
one day during the calendar month, or the employee is employed for at 
least one day during the calendar month, the entire calendar month is 
counted in determining the applicable fraction.
    (iii) Rate of pay safe harbor. An applicable large employer member 
satisfies the rate of pay safe harbor with respect to an hourly employee 
for a calendar month if the employee's required contribution for the 
calendar month for the applicable large employer member's lowest cost 
self-only coverage that provides minimum value does not exceed 9.5 
percent of an amount equal to 130 hours multiplied by the lower of the 
employee's hourly rate of pay as of the first day of the coverage period 
(generally the first day of the plan year) or the employee's lowest 
hourly rate of pay during the calendar month. An applicable large 
employer member satisfies the rate of pay safe harbor with respect to a 
non-hourly employee for a calendar month if the employee's required 
contribution for the calendar month for the applicable large employer 
member's lowest cost self-only coverage that provides minimum value does 
not exceed 9.5 percent of the employee's monthly salary, as of the first 
day of the coverage period (instead of 130 multiplied by the hourly rate 
of pay); provided that if the monthly salary is reduced, including due 
to a reduction in work hours, the safe harbor is not available, and, 
solely for purposes of this paragraph (e)(2)(iii), an applicable large 
employer member may

[[Page 479]]

use any reasonable method for converting payroll periods to monthly 
salary. For this purpose, if coverage is offered during at least one day 
during the calendar month, the entire calendar month is counted both for 
purposes of determining the assumed income for the calendar month and 
for determining the employee's share of the premium for the calendar 
month.
    (iv) Federal poverty line safe harbor. An applicable large employer 
member satisfies the federal poverty line safe harbor with respect to an 
employee for a calendar month if the employee's required contribution 
for the calendar month for the applicable large employer member's lowest 
cost self-only coverage that provides minimum value does not exceed 9.5 
percent of a monthly amount determined as the federal poverty line for a 
single individual for the applicable calendar year, divided by 12. For 
this purpose, if coverage is offered during at least one day during the 
calendar month, the entire calendar month is counted both for purposes 
of determining the monthly amount for the calendar month and for 
determining the employee's share of the premium for the calendar month. 
For this purpose, the applicable federal poverty line is the federal 
poverty line for the State in which the employee is employed.
    (v) Examples. The following examples illustrate the application of 
the affordability safe harbors described in this paragraph (e)(2). In 
each example, each employer is an applicable large employer member with 
200 full-time employees (including full-time equivalent employees).

    Example 1 (Form W-2 wages safe harbor). (i) Facts. Employee A is 
employed by Employer Z consistently from January 1, 2015, through 
December 31, 2015. In addition, Employer Z offers Employee A and his 
dependents minimum essential coverage during that period that provides 
minimum value. The employee contribution for self-only coverage is $100 
per calendar month, or $1,200 for the calendar year. For 2015, Employee 
A's Form W-2 wages with respect to employment with Employer Z are 
$24,000.
    (ii) Conclusion. Because the employee contribution for 2015 is less 
than 9.5 percent of Employee A's Form W-2 wages for 2015, the coverage 
offered is treated as affordable with respect to Employee A for 2015 
($1,200 is 5 percent of $24,000).
    Example 2 (Form W-2 wages safe harbor). (i) Facts. Employee B is 
employed by Employer Y from January 1, 2015, through September 30, 2015. 
In addition, Employer Y offers Employee B and his dependents minimum 
essential coverage during that period that provides minimum value. The 
employee contribution for self-only coverage is $100 per calendar month, 
or $900 for Employee B's period of employment. For 2015, Employee B's 
Form W-2 wages with respect to employment with Employer Y are $18,000. 
For purposes of applying the affordability safe harbor, the Form W-2 
wages are multiplied by 9/9 (9 calendar months of coverage offered over 
9 months of employment during the calendar year) or 1. Accordingly, 
affordability is determined by comparing the adjusted Form W-2 wages 
($18,000) to the employee contribution for the period for which coverage 
was offered ($900).
    (ii) Conclusion. Because the employee contribution for 2015 is less 
than 9.5 percent of Employee B's adjusted Form W-2 wages for 2015, the 
coverage offered is treated as affordable with respect to Employee B for 
2015 ($900 is 5 percent of $18,000).
    Example 3 (Form W-2 wages safe harbor). (i) Facts. Employee C is 
employed by Employer X from May 15, 2015, through December 31, 2015. In 
addition, Employer X offers Employee C and her dependents minimum 
essential coverage during the period from August 1, 2015, through 
December 31, 2015, that provides minimum value. The employee 
contribution for self-only coverage is $100 per calendar month, or $500 
for Employee C's period of employment. For 2015, Employee C's Form W-2 
wages with respect to employment with Employer X are $15,000. For 
purposes of applying the affordability safe harbor, the Form W-2 wages 
are multiplied by 5/8 (5 calendar months of coverage offered over 8 
months of employment during the calendar year). Accordingly, 
affordability is determined by comparing the adjusted Form W-2 wages 
($9,375 or $15,000 x 5/8) to the employee contribution for the period 
for which coverage was offered ($500).
    (ii) Conclusion. Because the employee contribution of $500 is less 
than 9.5 percent of $9,375 (Employee C's adjusted Form W-2 wages for 
2015), the coverage offered is treated as affordable with respect to 
Employee C for 2015 ($500 is 5.33 percent of $9,375).
    Example 4 (Rate of pay safe harbor). (i) Facts. Employer W offers 
its full-time employees and their dependents minimum essential coverage 
that provides minimum value. For the 2016 calendar year, Employer W is 
using the rate of pay safe harbor to establish premium contribution 
amounts for full-time employees paid at a rate of $7.25 per hour (the 
minimum wage in Employer W's jurisdiction) for each calendar month of 
the entire 2016 calendar year. Employer W can apply the affordability 
safe harbor by using

[[Page 480]]

an assumed monthly income amount that is based on an assumed 130 hours 
of service multiplied by $7.25 per hour ($942.50 per calendar month). To 
satisfy the safe harbor, Employer W would set the employee monthly 
contribution amount at a rate that does not exceed 9.5 percent of the 
assumed monthly income of $942.50. Employer W sets the employee 
contribution for self-only coverage at $85 per calendar month for 2016.
    (ii) Conclusion. Because $85 is less than 9.5 percent of the 
employee's assumed monthly income at a $7.25 rate of pay, the coverage 
offered is treated as affordable under the rate of pay safe harbor for 
each calendar month of 2016 ($85 is 9.01 percent of $942.50).
    Example 5 (Rate of pay safe harbor). (i) Facts. Employee E is 
employed by Employer V from May 1, 2015, through December 31, 2015. 
Employer V offers Employee E and her dependents minimum essential 
coverage from May 1, 2015, through December 31, 2015, that provides 
minimum value. The employee contribution for self-only coverage is $100 
per calendar month. From May 1, 2015, through October 31, 2015, Employee 
E is paid at a rate of $10 per hour. From November 1, 2015, through 
December 31, 2015, Employee E is paid at a rate of $12 per hour. For 
purposes of applying the affordability safe harbor for the calendar 
months May 2015 through October 2015, Employer V may assume that 
Employee E earned $1,300 per calendar month (130 hours of service 
multiplied by $10 (which is the lower of the employee's hourly rate of 
pay at the beginning of the coverage period ($10) and the lowest hourly 
rate of pay for the calendar month ($10)). Accordingly, affordability is 
determined by comparing the assumed income ($1,300 per month) to the 
employee contribution ($100 per calendar month). For the calendar months 
November 2015 through December 2015, Employer V may assume that Employee 
E earned $1,300 per calendar month (130 hours of service multiplied by 
$10 (which is the lower of the employee's hourly rate of pay at the 
beginning of the coverage period ($10) and the lowest hourly rate of pay 
for the calendar month ($12)). Accordingly, affordability is determined 
by comparing the assumed income ($1,300 per month) to the employee 
contribution ($100 per calendar month).
    (ii) Conclusion. Because $100 is less than 9.5 percent of Employee 
E's assumed monthly income for each calendar month from May 2015 through 
December 2015, the coverage offered is treated as affordable with 
respect to Employee E for May 2015 through December 2015 ($100 is 7.69 
percent of $1,300).
    Example 6 (Federal poverty line safe harbor). (i) Facts. Employee F 
is employed by Employer T from January 1, 2015, through December 31, 
2015. In addition, Employer T offers Employee F and his dependents 
minimum essential coverage during that period that provides minimum 
value. Employer T uses the look-back measurement method. Under that 
measurement method as applied by Employer T, Employee F is treated as a 
full-time employee for the entire calendar year 2015. Employee F is 
regularly credited with 35 hours of service per week but is credited 
with only 20 hours of service during the month of March 2015 and only 15 
hours of service during the month of August 2015. Assume for this 
purpose that the federal poverty line for 2015 for an individual is 
$11,670. With respect to Employee F, Employer T sets the monthly 
employee contribution for employee single-only coverage for each 
calendar month of 2015 at $92.39 (9.5 percent of $11,670, divided by 
12).
    (ii) Conclusion. Regardless of Employee F's actual wages for any 
calendar month in 2015, including the months of March 2015 and August 
2015, when Employee F has lower wages because of significantly lower 
hours of service, the coverage under the plan is treated as affordable 
with respect to Employee F, because the employee contribution does not 
exceed 9.5 percent of the federal poverty line.

    (f) Additional guidance. With respect to assessable payments under 
section 4980H(b), including the determination of whether an offer of 
coverage is affordable for purposes of section 4980H, the Commissioner 
may prescribe additional guidance of general applicability, published in 
the Internal Revenue Bulletin (see Sec.  601.601(d)(2)(ii)(b) of this 
chapter).
    (g) Effective/applicability date. This section is applicable for 
periods after December 31, 2014.

[T.D. 9655, 79 FR 8577, Feb. 12, 2014]



Sec.  54.4980H-6  Administration and procedure.

    (a) In general. [Reserved]
    (b) Effective/applicability date. This section is applicable for 
periods after December 31, 2014.

[T.D. 9655, 79 FR 8577, Feb. 12, 2014]



Sec.  54.6011-1  General requirement of return, statement, or list.

    (a) Minimum funding standards or excess contributions for self-
employed individuals and section 403(b)(7)(A) custodial accounts. Any 
employer or individual liable for tax under section 4971, 4972 or 
4973(a)(2) (for a custodial account under section 403(b)(7)(A)) shall 
file an annual return on Form 5330 and shall include therein the 
information required by such form and the instructions issued with 
respect thereto.

[[Page 481]]

    (b) Tax on prohibited transactions. Every disqualified person (as 
defined in section 4975(e)(2)) liable for the tax imposed under section 
4975(a) with respect to a prohibited transaction shall file an annual 
return on Form 5330 and shall include therein the information required 
by such form and the instructions issued with respect thereto. The 
annual return on Form 5330 shall be filed with respect to each 
prohibited transaction and for each taxable year (or part thereof) of 
the disqualified person in the taxable period (as defined in section 
4975(f)(2)) beginning on the date on which such prohibited transaction 
occurs.
    (c) Entity manager tax on prohibited tax shelter transactions--(1) 
In general. Any entity manager of a tax-exempt entity described in 
section 4965(c)(4), (c)(5), (c)(6), or (c)(7) who is liable for tax 
under section 4965(a)(2) shall file a return on Form 5330, ``Return of 
Excise Taxes Related to Employee Benefit Plans,'' on or before the 15th 
day of the fifth month following the close of such entity manager's 
taxable year during which the entity entered into the prohibited tax 
shelter transaction, and shall include therein the information required 
by such form and the instructions issued with respect thereto.
    (2) Transition rule. A Form 5330, ``Return of Excise Taxes Related 
to Employee Benefit Plans,'' for an excise tax under section 4965 that 
was due on or before October 4, 2007, will be deemed to have been filed 
on the due date if it was filed by October 4, 2007, and if the section 
4965 tax that was required to be reported on that Form 5330 was paid by 
October 4, 2007.
    (d) Effective/applicability date. Paragraph (c) of this section is 
applicable on July 6, 2007.

[T.D. 7838, 47 FR 44249, Oct. 7, 1982, as amended by T.D. 9334, 72 FR 
36873, July 6, 2007; T.D. 9492, 75 FR 38708, July 6, 2010; 75 FR 46845, 
Aug. 4, 2010]



Sec.  54.6011-1T  General requirement of return, statement, 
or list (temporary).

    (a) Tax on reversions of qualified plan assets to employer. Every 
employer liable for the tax imposed under section 4980(a) with respect 
to an employer reversion (as defined in section 4980(c)(2)) shall file a 
quarterly return on Form 5330 and shall include therein the information 
required by such form and the instructions issued with respect thereto. 
The quarterly return on Form 5330 shall be filed with respect to 
employer reversions from each qualified plan (as defined in section 
4980(c)(1)).
    (b) [Reserved]

[T.D. 8133, 52 FR 10563, Apr. 2, 1987, as amended by T.D. 9334, 72 FR 
36873, July 6, 2007; 72 FR 45895, Aug. 16, 2007; T.D. 9492, 75 FR 38709, 
July 6, 2010]



Sec.  54.6011-2  General requirement of return, statement, or list.

    Effective for any Form 8928 that is due on or after January 1, 2010, 
any person liable for tax under section 4980B, 4980D, 4980E, or 4980G of 
the Code shall file a return with respect to the tax on Form 8928. The 
return must include the information required by Form 8928 and the 
instructions issued with respect to it.

[T.D. 9457, 74 FR 45999, Sept. 8, 2009]



Sec.  54.6011-4  Requirement of statement disclosing participation 
in certain transactions by taxpayers.

    (a) In general. If a transaction is identified as a listed 
transaction or a transaction of interest as defined in Sec.  1.6011-4 of 
this chapter by the Commissioner in published guidance (see Sec.  
601.601(d)(2)(ii)(b) of this chapter), and the listed transaction or 
transaction of interest involves an excise tax under chapter 43 of 
subtitle D of the Internal Revenue Code (relating to qualified pension, 
etc., plans) the transaction must be disclosed in the manner stated in 
such published guidance.
    (b) Effective/applicability date. This section applies to listed 
transactions entered into on or after January 1, 2003. This section 
applies to transactions of interest entered into on or after November 2, 
2006.

[T.D. 9350, 72 FR 43154, Aug. 3, 2007]



Sec.  54.6060-1  Reporting requirements for tax return preparers.

    (a) In general. A person that employs one or more tax return 
preparers to prepare a return or claim for refund under Chapter 43 of 
subtitle D of the Internal Revenue Code, other than for

[[Page 482]]

the person, at any time during a return period, shall satisfy the record 
keeping and inspection requirements in the manner stated in Sec.  
1.6060-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  54.6061-1  Signing of returns and other documents.

    Effective for any Form 8928 that is due on or after January 1, 2010, 
any return, statement, or other document required to be made with 
respect to a tax imposed by section 4980B, 4980D, 4980E, or 4980G of the 
Code or the regulations under section 4980B, 4980D, 4980E, or 4980G must 
be signed by the person required to file the return, statement, or other 
document, or by the persons required or duly authorized to sign in 
accordance with the regulations, forms, or instructions prescribed with 
respect to such return, statement, or document. An individual's 
signature on such return, statement, or other document shall be prima 
facie evidence that the individual is authorized to sign the return, 
statement, or other document.

[T.D. 9457, 74 FR 46000, Sept. 8, 2009]



Sec.  54.6071-1  Time for filing returns.

    (a) Returns under section 4980B. (1) Due date for filing of return 
by employers or other persons responsible for benefits under a group 
health plan. If the person liable for the excise tax is an employer or 
other person responsible for providing or administering benefits under a 
group health plan (such as an insurer or a third party administrator), 
the return required by Sec.  54.6011-2 must be filed on or before the 
due date for filing the person's income tax return and must reflect the 
portion of the noncompliance period for each failure under section 4980B 
that falls during the person's taxable year. An extension to file the 
person's income tax return does not extend the date for filing Form 
8928.
    (2) Due date for filing of return by multiemployer plans. If the 
person liable for the excise tax is a multiemployer plan, the return 
required by Sec.  54.6011-2 must be filed on or before the last day of 
the seventh month following the end of the plan's plan year. The filing 
of Form 8928 by a plan must reflect the portion of the noncompliance 
period for each failure under section 4980B that falls during the plan's 
plan year.
    (b) Returns under section 4980D. (1) Due date for filing of return 
by employers. If the person liable for the excise tax is an employer, 
the return required by Sec.  54.6011-2 must be filed on or before the 
due date for filing the employer's income tax return and must reflect 
the portion of the noncompliance period for each failure under chapter 
100 that falls during the employer's taxable year. An extension to file 
the employer's income tax return does not extend the date for filing 
Form 8928.
    (2) Due date for filing of return by multiemployer plans or multiple 
employer health plans. If the person liable for the excise tax is a 
multiemployer plan or a specified multiple employer health plan, the 
return required by Sec.  54.6011-2 must be filed on or before the last 
day of the seventh month following the end of the plan's plan year. The 
filing of Form 8928 by a plan must reflect the portion of the 
noncompliance period for each failure under chapter 100 that falls 
during the plan's plan year.
    (c) Returns under section 4980E. Any employer who is liable for the 
excise tax under section 4980E must report this tax by filing the return 
required by Sec.  54.6011-2 on or before the 15th day of the fourth 
month following the calendar year in which the noncomparable 
contributions were made.
    (d) Returns under section 4980G. Any employer who is liable for the 
excise tax under section 4980E must report this tax by filing the return 
required by Sec.  54.6011-2 on or before the 15th day of the fourth 
month following the calendar year in which the noncomparable 
contributions were made. See Q & A-4 of Sec.  54.4980G-1 for the rules 
on computation of the excise tax under section 4980G.
    (e) Effective/applicability date: The rules in this section are 
effective for any Form 8928 that is due on or after January 1, 2010.

[T.D. 9457, 74 FR 46000, Sept. 8, 2009]

[[Page 483]]



Sec.  54.6081-1  Automatic extension of time for filing returns 
for certain excise taxes under Chapter 43.

    (a) In general. An employer, other person or health plan that is 
required to file a return on Form 8928, ``Return of Certain Excise Taxes 
Under Chapter 43 of the Internal Revenue Code,'' will be allowed an 
automatic 6-month extension of time to file the return after the date 
prescribed for filing the return if the employer, other person or health 
plan files an application under this section in accordance with 
paragraph (b) of this section.
    (b) Requirements. To satisfy this paragraph (b), an employer, other 
person or health plan must--
    (1) Submit a complete application on Form 7004, ``Application for 
Automatic Extension of Time To File Certain Business Income Tax, 
Information, and Other Returns,'' or in any other manner prescribed by 
the Commissioner;
    (2) File the application on or before the date prescribed for filing 
the return with the Internal Revenue Service office designated in the 
application's instructions; and
    (3) Remit the amount of the properly estimated unpaid tax liability 
on or before the date prescribed for payment.
    (c) No extension of time for the payment of tax. An automatic 
extension of time for filing a return granted under paragraph (a) of 
this section will not extend the time for payment of any tax due on such 
return.
    (d) Termination of automatic extension. The Commissioner may 
terminate an automatic extension at any time by mailing to the employer, 
other person, or health plan a notice of termination at least 10 days 
prior to the termination date designated in such notice. The 
Commissioner must mail the notice of termination to the address shown on 
the Form 7004 or to the estate or trust's last known address. For 
further guidance regarding the definition of last known address, see 
Sec.  301.6212-2 of this chapter.
    (e) Penalties. See section 6651 for failure to file a pension excise 
tax return or failure to pay the amount shown as tax on the return.
    (f) Effective/applicability date. This section is applicable for 
applications for an automatic extension of time to file a return due 
under chapter 43, filed on or after June 24, 2011.

[T.D. 9531, 76 FR 36999, June 24, 2011]



Sec.  54.6091-1  Place for filing excise tax returns 
under section 4980B, 4980D, 4980E, or 4980G.

    Effective for any Form 8928 that is due on or after January 1, 2010, 
the return required by Sec.  54.6011-2 must be filed at the place 
specified in the forms and instructions provided by the Internal Revenue 
Service.

[T.D. 9457, 74 FR 46000, Sept. 8, 2009]



Sec.  54.6107-1  Tax return preparer must furnish copy of return 
or claims for refund to taxpayer and must retain a copy or record.

    (a) In general. A person who is a signing tax return preparer of any 
return or claim for refund of tax under Chapter 43 of subtitle D of the 
Internal Revenue Code, shall furnish a completed copy of the return or 
claim for refund to the taxpayer, and retain a completed copy or record 
in the manner stated in Sec.  1.6107-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  54.6109-1  Tax return preparers furnishing identifying numbers 
for returns or claims for refund filed.

    (a) In general. Each tax return or claim for refund of tax under 
Chapter 43 of subtitle D prepared by one or more signing tax return 
preparers must include the identifying number of the preparer required 
by Sec.  1.6695-1(b) of this chapter to sign the return or claim for 
refund in the manner stated in Sec.  1.6109-2 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed after December 31, 
2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  54.6151-1  Time and place for paying of tax shown on returns.

    Effective for any Form 8928 that is due on or after January 1, 2010, 
the tax shown on any return which is imposed under section 4980B, 4980D, 
4980E or

[[Page 484]]

4980G shall, without assessment or notice and demand, be paid to the 
internal revenue officer with whom the return is filed at the time and 
place for filing such return (determined without regard to any extension 
of time for filing the return). For provisions relating to the time and 
place for filing such return, see Sec. Sec.  54.6071-1 and 54.6091-1.

[T.D. 9457, 74 FR 46000, Sept. 8, 2009]



Sec.  54.6694-1  Section 6694 penalties applicable to tax return preparer.

    (a) In general. For general definitions regarding section 6694 
penalties applicable to preparers of tax returns or claims for refund of 
tax under Chapter 43 of subtitle D, see Sec.  1.6694-1 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed, and advice provided, 
after December 31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  54.6694-2  Penalties for understatement due to an unreasonable position.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under Chapter 43 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties under section 
6694(a) of the Code in the manner stated in Sec.  1.6694-2 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  54.6694-3  Penalty for understatement due to willful, reckless, 
or intentional conduct.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of excise tax under chapter 43 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties under section 
6694(b) of the Code in the manner stated in Sec.  1.6694-3 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78458, Dec. 22, 2008]



Sec.  54.6694-4  Extension of period of collection when tax return preparer 
pays 15 percent of a penalty for understatement of taxpayer's liability 
and certain other procedural matters.

    (a) In general. For rules relating to the extension of period of 
collection when a tax return preparer who prepared a return or claim for 
refund for tax under chapter 43 of subtitle D of the Internal Revenue 
Code pays 15 percent of a penalty for understatement of taxpayer's 
liability, and procedural matters relating to the investigation, 
assessment and collection of the penalties under section 6694(a) and 
(b), the rules under Sec.  1.6694-4 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  54.6695-1  Other assessable penalties with respect to the preparation 
of tax returns for other persons.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under chapter 43 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties for failure 
to furnish a copy to the taxpayer under section 6695(a) of the Code, 
failure to sign the return under section 6695(b) of the Code, failure to 
furnish an identification number under section 6695(c) of the Code, 
failure to retain a copy or list under section 6695(d) of the Code, 
failure to file a correct information return under section 6695(e) of 
the Code, and negotiation of a check under section 6695(f) of the Code, 
in the manner stated in Sec.  1.6695-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]

[[Page 485]]



Sec.  54.6696-1  Claims for credit or refund by tax return preparers.

    (a) In general. For rules for claims for credit or refund by a tax 
return preparer who prepared a return or claim for refund for excise tax 
under chapter 43 of subtitle D of the Internal Revenue Code, the rules 
under Sec.  1.6696-1 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  54.7701-1  Tax return preparer.

    (a) In general. For the definition of a tax return preparer, see 
Sec.  301.7701-15 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  54.9801-1  Basis and scope.

    (a) Statutory basis. This section and sections 54.9801-2 through 
54.9801-6, 54.9802-1, 54.9802-2, 54.9802-3T, 54.9811-1, 54.9812-1T, 
54.9831-1, and 54.9833-1 (portability sections) implement Chapter 100 of 
Subtitle K of the Internal Revenue Code of 1986.
    (b) Scope. A group health plan or health insurance issuer offering 
group health insurance coverage may provide greater rights to 
participants and beneficiaries than those set forth in the portability 
and market reform sections of this part 54. This part 54 sets forth 
minimum requirements for group health plans and group health insurance 
issuers offering group health insurance coverage concerning certain 
consumer protections of the Health Insurance Portability and 
Accountability Act (HIPAA), including special enrollment periods and the 
prohibition against discrimination based on a health factor, as amended 
by the Patient Protection and Affordable Care Act (Affordable Care Act). 
Other consumer protection provisions, including other protections 
provided by the Affordable Care Act and the Mental Health Parity and 
Addiction Equity Act, are set forth in this part 54.
    (c) Similar requirements under the Employee Retirement Income 
Security Act and the Public Health Service Act. Sections 701, 702, 703, 
711, 712, 732, and 733 of the Employee Retirement Income Security Act of 
1974 and sections 2701, 2702, 2704, 2705, 2721, and 2791 of the Public 
Health Service Act impose requirements similar to those imposed under 
Chapter 100 of Subtitle K with respect to health insurance issuers 
offering group health insurance coverage. See 29 CFR part 2590 and 45 
CFR parts 144, 146, and 148. See also part B of title XXVII of the 
Public Health Service Act and 45 CFR part 148 for other rules applicable 
to health insurance offered in the individual market (defined in Sec.  
54.9801-2).

[T.D. 9166, 69 FR 78746, Dec. 30, 2004, as amended by T.D. 9299, 71 FR 
75056, Dec. 13, 2006; T.D. 9427, 73 FR 62419, Oct. 20, 2008; T.D. 9464, 
74 FR 51678, Oct. 7, 2009; T.D. 9656, 79 FR 10303, Feb. 24, 2014]



Sec.  54.9801-2  Definitions.

    Unless otherwise provided, the definitions in this section govern in 
applying the provisions of sections 9801 through 9815 and 9831 through 
9833.
    Affiliation period means a period of time that must expire before 
health insurance coverage provided by an HMO becomes effective, and 
during which the HMO is not required to provide benefits.
    COBRA definitions:
    (1) COBRA means title X of the Consolidated Omnibus Budget 
Reconciliation Act of 1985, as amended.
    (2) COBRA continuation coverage means coverage, under a group health 
plan, that satisfies an applicable COBRA continuation provision.
    (3) COBRA continuation provision means section 4980B (other than 
paragraph (f)(1) of section 4980B insofar as it relates to pediatric 
vaccines), sections 601-608 of ERISA, or title XXII of the PHS Act.
    (4) Exhaustion of COBRA continuation coverage means that an 
individual's COBRA continuation coverage ceases for any reason other 
than either failure of the individual to pay premiums on a timely basis, 
or for cause (such as making a fraudulent claim or an intentional 
misrepresentation of a material fact in connection with the plan). An

[[Page 486]]

individual is considered to have exhausted COBRA continuation coverage 
if such coverage ceases--
    (i) Due to the failure of the employer or other responsible entity 
to remit premiums on a timely basis;
    (ii) When the individual no longer resides, lives, or works in the 
service area of an HMO or similar program (whether or not within the 
choice of the individual) and there is no other COBRA continuation 
coverage available to the individual; or
    (iii) When the individual incurs a claim that would meet or exceed a 
lifetime limit on all benefits and there is no other COBRA continuation 
coverage available to the individual.
    Condition means a medical condition.
    Creditable coverage means creditable coverage within the meaning of 
Sec.  54.9801-4(a).
    Dependent means any individual who is or may become eligible for 
coverage under the terms of a group health plan because of a 
relationship to a participant.
    Employee Retirement Income Security Act of 1974 (ERISA) means the 
Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. 
1001 et seq.).
    Enroll means to become covered for benefits under a group health 
plan (that is, when coverage becomes effective), without regard to when 
the individual may have completed or filed any forms that are required 
in order to become covered under the plan. For this purpose, an 
individual who has health coverage under a group health plan is enrolled 
in the plan regardless of whether the individual elects coverage, the 
individual is a dependent who becomes covered as a result of an election 
by a participant, or the individual becomes covered without an election.
    Enrollment date means the first day of coverage or, if there is a 
waiting period, the first day of the waiting period. If an individual 
receiving benefits under a group health plan changes benefit packages, 
or if the plan changes group health insurance issuers, the individual's 
enrollment date does not change.
    Excepted benefits means the benefits described as excepted in Sec.  
54.9831(c).
    First day of coverage means, in the case of an individual covered 
for benefits under a group health plan, the first day of coverage under 
the plan and, in the case of an individual covered by health insurance 
coverage in the individual market, the first day of coverage under the 
policy or contract.
    Genetic information has the meaning given the term in Sec.  54.9802-
3T(a)(3).
    Group health insurance coverage means health insurance coverage 
offered in connection with a group health plan. Individual health 
insurance coverage reimbursed by the arrangements described in 29 CFR 
2510.3-1(l) is not offered in connection with a group health plan, and 
is not group health insurance coverage, provided all the conditions in 
29 CFR 2510.3-1(l) are satisfied.
    Group health plan or plan means a group health plan within the 
meaning of Sec.  54.9831-1(a).
    Group market means the market for health insurance coverage offered 
in connection with a group health plan. (However, certain very small 
plans may be treated as being in the individual market, rather than the 
group market; see the definition of individual market in this section.)
    Health insurance coverage means benefits consisting of medical care 
(provided directly, through insurance or reimbursement, or otherwise) 
under any hospital or medical service policy or certificate, hospital or 
medical service plan contract, or HMO contract offered by a health 
insurance issuer. Health insurance coverage includes group health 
insurance coverage, individual health insurance coverage, and short-
term, limited-duration insurance. However, benefits described in Sec.  
54.9831(c)(2) are not treated as benefits consisting of medical care.
    Health insurance issuer or issuer means an insurance company, 
insurance service, or insurance organization (including an HMO) that is 
required to be licensed to engage in the business of insurance in a 
State and that is subject to State law that regulates insurance (within 
the meaning of section 514(b)(2) of ERISA). Such term does not include a 
group health plan.
    Health maintenance organization or HMO means--

[[Page 487]]

    (1) A federally qualified health maintenance organization (as 
defined in section 1301(a) of the PHS Act);
    (2) An organization recognized under State law as a health 
maintenance organization; or
    (3) A similar organization regulated under State law for solvency in 
the same manner and to the same extent as such a health maintenance 
organization.
    Individual health insurance coverage means health insurance coverage 
offered to individuals in the individual market, but does not include 
short-term, limited-duration insurance. Individual health insurance 
coverage can include dependent coverage.
    Individual market means the market for health insurance coverage 
offered to individuals other than in connection with a group health 
plan. Unless a State elects otherwise in accordance with section 
2791(e)(1)(B)(ii) of the PHS Act, such term also includes coverage 
offered in connection with a group health plan that has fewer than two 
participants who are current employees on the first day of the plan 
year.
    Issuer means a health insurance issuer.
    Late enrollee means an individual whose enrollment in a plan is a 
late enrollment.
    Late enrollment means enrollment of an individual under a group 
health plan other than on the earliest date on which coverage can become 
effective for the individual under the terms of the plan; or through 
special enrollment. (For rules relating to special enrollment, see Sec.  
54.9801-6.) If an individual ceases to be eligible for coverage under a 
plan, and then subsequently becomes eligible for coverage under the 
plan, only the individual's most recent period of eligibility is taken 
into account in determining whether the individual is a late enrollee 
under the plan with respect to the most recent period of coverage. 
Similar rules apply if an individual again becomes eligible for coverage 
following a suspension of coverage that applied generally under the 
plan.
    Medical care has the meaning given such term by section 213(d), 
determined without regard to section 213(d)(1)(C) and so much of section 
213(d)(1)(D) as relates to qualified long-term care insurance.
    Medical condition or condition means any condition, whether physical 
or mental, including, but not limited to, any condition resulting from 
illness, injury (whether or not the injury is accidental), pregnancy, or 
congenital malformation. However, genetic information is not a 
condition.
    Participant means participant within the meaning of section 3(7) of 
ERISA.
    Placement, or being placed, for adoption means the assumption and 
retention of a legal obligation for total or partial support of a child 
by a person with whom the child has been placed in anticipation of the 
child's adoption. The child's placement for adoption with such person 
ends upon the termination of such legal obligation.
    Plan year means the year that is designated as the plan year in the 
plan document of a group health plan, except that if the plan document 
does not designate a plan year or if there is no plan document, the plan 
year is--
    (1) The deductible or limit year used under the plan;
    (2) If the plan does not impose deductibles or limits on a yearly 
basis, then the plan year is the policy year;
    (3) If the plan does not impose deductibles or limits on a yearly 
basis, and either the plan is not insured or the insurance policy is not 
renewed on an annual basis, then the plan year is the employer's taxable 
year; or
    (4) In any other case, the plan year is the calendar year.
    Preexisting condition exclusion means a limitation or exclusion of 
benefits (including a denial of coverage) based on the fact that the 
condition was present before the effective date of coverage (or if 
coverage is denied, the date of the denial) under a group health plan or 
group or individual health insurance coverage (or other coverage 
provided to Federally eligible individuals pursuant to 45 CFR part 148), 
whether or not any medical advice, diagnosis, care, or treatment was 
recommended or received before that day. A preexisting condition 
exclusion includes any limitation or exclusion of benefits (including a 
denial of coverage) applicable to an individual as a result of 
information

[[Page 488]]

relating to an individual's health status before the individual's 
effective date of coverage (or if coverage is denied, the date of the 
denial) under a group health plan, or group or individual health 
insurance coverage (or other coverage provided to Federally eligible 
individuals pursuant to 45 CFR part 148), such as a condition identified 
as a result of a pre-enrollment questionnaire or physical examination 
given to the individual, or review of medical records relating to the 
pre-enrollment period.
    Public health plan means public health plan within the meaning of 
Sec.  54.9801-4(a)(1)(ix).
    Public Health Service Act (PHS Act) means the Public Health Service 
Act (42 U.S.C. 201, et seq.).
    Short-term, limited-duration insurance means health insurance 
coverage provided pursuant to a contract with an issuer that:
    (1) Has an expiration date specified in the contract that is less 
than 12 months after the original effective date of the contract and, 
taking into account renewals or extensions, has a duration of no longer 
than 36 months in total;
    (2) With respect to policies having a coverage start date before 
January 1, 2019, displays prominently in the contract and in any 
application materials provided in connection with enrollment in such 
coverage in at least 14 point type the language in the following Notice 
1, excluding the heading ``Notice 1,'' with any additional information 
required by applicable state law:

                                Notice 1:

    This coverage is not required to comply with certain federal market 
requirements for health insurance, principally those contained in the 
Affordable Care Act. Be sure to check your policy carefully to make sure 
you are aware of any exclusions or limitations regarding coverage of 
preexisting conditions or health benefits (such as hospitalization, 
emergency services, maternity care, preventive care, prescription drugs, 
and mental health and substance use disorder services). Your policy 
might also have lifetime and/or annual dollar limits on health benefits. 
If this coverage expires or you lose eligibility for this coverage, you 
might have to wait until an open enrollment period to get other health 
insurance coverage. Also, this coverage is not ``minimum essential 
coverage.'' If you don't have minimum essential coverage for any month 
in 2018, you may have to make a payment when you file your tax return 
unless you qualify for an exemption from the requirement that you have 
health coverage for that month.

    (3) With respect to policies having a coverage start date on or 
after January 1, 2019, displays prominently in the contract and in any 
application materials provided in connection with enrollment in such 
coverage in at least 14 point type the language in the following Notice 
2, excluding the heading ``Notice 2,'' with any additional information 
required by applicable state law:

                                Notice 2:

    This coverage is not required to comply with certain federal market 
requirements for health insurance, principally those contained in the 
Affordable Care Act. Be sure to check your policy carefully to make sure 
you are aware of any exclusions or limitations regarding coverage of 
preexisting conditions or health benefits (such as hospitalization, 
emergency services, maternity care, preventive care, prescription drugs, 
and mental health and substance use disorder services). Your policy 
might also have lifetime and/or annual dollar limits on health benefits. 
If this coverage expires or you lose eligibility for this coverage, you 
might have to wait until an open enrollment period to get other health 
insurance coverage.

    (4) If a court holds the 36-month maximum duration provision set 
forth in paragraph (1) of this definition or its applicability to any 
person or circumstances invalid, the remaining provisions and their 
applicability to other people or circumstances shall continue in effect.
    Significant break in coverage means a significant break in coverage 
within the meaning of Sec.  54.9801-4(b)(2)(iii).
    Special enrollment means enrollment in a group health plan under the 
rights described in Sec.  54.9801-6 or in group health insurance 
coverage under the rights described in 29 CFR 2590.701-6 or 45 CFR 
146.117.
    State health benefits risk pool means a State health benefits risk 
pool within the meaning of Sec.  54.9801-4(a)(1)(vii).
    Travel insurance means insurance coverage for personal risks 
incident to planned travel, which may include, but

[[Page 489]]

is not limited to, interruption or cancellation of trip or event, loss 
of baggage or personal effects, damages to accommodations or rental 
vehicles, and sickness, accident, disability, or death occurring during 
travel, provided that the health benefits are not offered on a stand-
alone basis and are incidental to other coverage. For this purpose, the 
term travel insurance does not include major medical plans that provide 
comprehensive medical protection for travelers with trips lasting 6 
months or longer, including, for example, those working overseas as an 
expatriate or military personnel being deployed.
    Waiting period means waiting period within the meaning of Sec.  
54.9815-2708(b).

[T.D. 9166, 69 FR 78746, Dec. 30, 2004, as amended by T.D. 9299, 71 FR 
75056, Dec. 13, 2006; T.D. 9427, 73 FR 62420, Oct. 20, 2008; T.D. 9464, 
74 FR 51678, Oct. 7, 2009; T.D. 9491, 75 FR 37222, June 28, 2010; T.D. 
9656, 79 FR 10304, Feb. 24, 2014; T.D. 9744, 80 FR 72238, Nov. 18, 2015; 
T.D. 9791, 81 FR 75324, Oct. 31, 2016; T.D. 9837, 83 FR 38241, Aug. 3, 
2018; T.D. 9867, 84 FR 28987, June 20, 2019]



Sec.  54.9801-3  Limitations on preexisting condition exclusion period.

    (a) Preexisting condition exclusion defined. (1) A preexisting 
condition exclusion means a preexisting condition exclusion within the 
meaning of Sec.  54.9801-2.
    (2) Examples. The rules of this paragraph (a)(1) are illustrated by 
the following examples:

    Example 1. (i) Facts. A group health plan provides benefits solely 
through an insurance policy offered by Issuer S. At the expiration of 
the policy, the plan switches coverage to a policy offered by Issuer T. 
Issuer T's policy excludes benefits for any prosthesis if the body part 
was lost before the effective date of coverage under the policy.
    (ii) Conclusion. In this Example 1, the exclusion of benefits for 
any prosthesis if the body part was lost before the effective date of 
coverage is a preexisting condition exclusion because it operates to 
exclude benefits for a condition based on the fact that the condition 
was present before the effective date of coverage under the policy. The 
exclusion of benefits, therefore, is prohibited.
    Example 2. (i) Facts. A group health plan provides coverage for 
cosmetic surgery in cases of accidental injury, but only if the injury 
occurred while the individual was covered under the plan.
    (ii) Conclusion. In this Example 2, the plan provision excluding 
cosmetic surgery benefits for individuals injured before enrolling in 
the plan is a preexisting condition exclusion because it operates to 
exclude benefits relating to a condition based on the fact that the 
condition was present before the effective date of coverage. The plan 
provision, therefore, is prohibited.
    Example 3. (i) Facts. A group health plan provides coverage for the 
treatment of diabetes, generally not subject to any requirement to 
obtain an approval for a treatment plan. However, if an individual was 
diagnosed with diabetes before the effective date of coverage under the 
plan, diabetes coverage is subject to a requirement to obtain approval 
of a treatment plan in advance.
    (ii) Conclusion. In this Example 3, the requirement to obtain 
advance approval of a treatment plan is a preexisting condition 
exclusion because it limits benefits for a condition based on the fact 
that the condition was present before the effective date of coverage. 
The plan provision, therefore, is prohibited.
    Example 4. (i) Facts. A group health plan provides coverage for 
three infertility treatments. The plan counts against the three-
treatment limit benefits provided under prior health coverage.
    (ii) Conclusion. In this Example 4, counting benefits for a specific 
condition provided under prior health coverage against a treatment limit 
for that condition is a preexisting condition exclusion because it 
operates to limit benefits for a condition based on the fact that the 
condition was present before the effective date of coverage. The plan 
provision, therefore, is prohibited.
    Example 5. (i) Facts. When an individual's coverage begins under a 
group health plan, the individual generally becomes eligible for all 
benefits. However, benefits for pregnancy are not available until the 
individual has been covered under the plan for 12 months.
    (ii) Conclusion. In this Example 5, the requirement to be covered 
under the plan for 12 months to be eligible for pregnancy benefits is a 
subterfuge for a preexisting condition exclusion because it is designed 
to exclude benefits for a condition (pregnancy) that arose before the 
effective date of coverage. The plan provision, therefore, is 
prohibited.
    Example 6. (i) Facts. A group health plan provides coverage for 
medically necessary items and services, generally including treatment of 
heart conditions. However, the plan does not cover those same items and 
services when used for treatment of congenital heart conditions.
    (ii) Conclusion. In this Example 6, the exclusion of coverage for 
treatment of congenital heart conditions is a preexisting condition 
exclusion because it operates to exclude benefits relating to a 
condition based on the fact that the condition was present before the 
effective date of coverage. The plan provision, therefore, is 
prohibited.

[[Page 490]]

    Example 7. (i) Facts. A group health plan generally provides 
coverage for medically necessary items and services. However, the plan 
excludes coverage for the treatment of cleft palate.
    (ii) Conclusion. In this Example 7, the exclusion of coverage for 
treatment of cleft palate is not a preexisting condition exclusion 
because the exclusion applies regardless of when the condition arose 
relative to the effective date of coverage. The plan provision, 
therefore, is not prohibited. (But see 45 CFR 147.150, which may require 
coverage of cleft palate as an essential health benefit for health 
insurance coverage in the individual or small group market, depending on 
the essential health benefits benchmark plan as defined in 45 CFR 
156.20).
    Example 8. (i) Facts. A group health plan provides coverage for 
treatment of cleft palate, but only if the individual being treated has 
been continuously covered under the plan from the date of birth.
    (ii) Conclusion. In this Example 8, the exclusion of coverage for 
treatment of cleft palate for individuals who have not been covered 
under the plan from the date of birth operates to exclude benefits in 
relation to a condition based on the fact that the condition was present 
before the effective date of coverage. The plan provision, therefore, is 
prohibited.

    (b) General rules. See section 2704 of the Public Health Service 
Act, incorporated into section 9815 of the Code, and its implementing 
regulations for rules prohibiting the imposition of a preexisting 
condition exclusion.

[T.D. 9166, 69 FR 78746, Dec. 30, 2004, as amended by T.D. 9491, 75 FR 
37223, June 28, 2010; T.D. 9656, 79 FR 10304, Feb. 24, 2014; T.D. 9744, 
80 FR 72238, Nov. 18, 2015]



Sec.  54.9801-4  Rules relating to creditable coverage.

    (a) General rules--(1) Creditable coverage. For purposes of this 
section, except as provided in paragraph (a)(2) of this section, the 
term creditable coverage means coverage of an individual under any of 
the following:
    (i) A group health plan as defined in Sec.  54.9831-1(a).
    (ii) Health insurance coverage as defined in Sec.  54.9801-2 
(whether or not the entity offering the coverage is subject to Chapter 
100 of Subtitle K, and without regard to whether the coverage is offered 
in the group market, the individual market, or otherwise).
    (iii) Part A or B of title XVIII of the Social Security Act 
(Medicare).
    (iv) Title XIX of the Social Security Act (Medicaid), other than 
coverage consisting solely of benefits under section 1928 of the Social 
Security Act (the program for distribution of pediatric vaccines).
    (v) Title 10 U.S.C. Chapter 55 (medical and dental care for members 
and certain former members of the uniformed services, and for their 
dependents; for purposes of title 10 U.S.C. Chapter 55, uniformed 
services means the armed forces and the Commissioned Corps of the 
National Oceanic and Atmospheric Administration and of the Public Health 
Service).
    (vi) A medical care program of the Indian Health Service or of a 
tribal organization.
    (vii) A State health benefits risk pool. For purposes of this 
section, a State health benefits risk pool means--
    (A) An organization qualifying under section 501(c)(26);
    (B) A qualified high risk pool described in section 2744(c)(2) of 
the PHS Act; or
    (C) Any other arrangement sponsored by a State, the membership 
composition of which is specified by the State and which is established 
and maintained primarily to provide health coverage for individuals who 
are residents of such State and who, by reason of the existence or 
history of a medical condition--
    (1) Are unable to acquire medical care coverage for such condition 
through insurance or from an HMO, or
    (2) Are able to acquire such coverage only at a rate which is 
substantially in excess of the rate for such coverage through the 
membership organization.
    (viii) A health plan offered under title 5 U.S.C. Chapter 89 (the 
Federal Employees Health Benefits Program).
    (ix) A public health plan. For purposes of this section, a public 
health plan means any plan established or maintained by a State, the 
U.S. government, a foreign country, or any political subdivision of a 
State, the U.S. government, or a foreign country that provides health 
coverage to individuals who are enrolled in the plan.
    (x) A health benefit plan under section 5(e) of the Peace Corps Act 
(22 U.S.C. 2504(e)).

[[Page 491]]

    (xi) Title XXI of the Social Security Act (State Children's Health 
Insurance Program).
    (2) Excluded coverage. Creditable coverage does not include coverage 
of solely excepted benefits (described in Sec.  54.9831-1).
    (b) Counting creditable coverage rules superseded by prohibition on 
preexisting condition exclusion. See section 2704 of the Public Health 
Service Act, incorporated into section 9815 of the Code, and its 
implementing regulations for rules prohibiting the imposition of a 
preexisting condition exclusion.

[T.D. 9166, 69 FR 78746, Dec. 30, 2004, as amended by T.D. 9656, 79 FR 
10304, Feb. 24, 2014]



Sec.  54.9801-5  Evidence of creditable coverage.

    (a) In general. The rules for providing certificates of creditable 
coverage and demonstrating creditable coverage have been superseded by 
the prohibition on preexisting condition exclusions. See section 2704 of 
the Public Health Service Act, incorporated into section 9815 of the 
Code, and its implementing regulations for rules prohibiting the 
imposition of a preexisting condition exclusion.
    (b) Applicability. The provisions of this section apply beginning 
December 31, 2014.

[T.D. 9656, 79 FR 10305, Feb. 24, 2014]



Sec.  54.9801-6  Special enrollment periods.

    (a) Special enrollment for certain individuals who lose coverage--
(1) In general. A group health plan is required to permit current 
employees and dependents (as defined in Sec.  54.9801-2) who are 
described in paragraph (a)(2) of this section to enroll for coverage 
under the terms of the plan if the conditions in paragraph (a)(3) of 
this section are satisfied. The special enrollment rights under this 
paragraph (a) apply without regard to the dates on which an individual 
would otherwise be able to enroll under the plan. (See section 701(f)(1) 
of ERISA and section 2701(f)(1) of the PHS Act, under which this 
obligation is also imposed on a health insurance issuer offering group 
health insurance coverage.)
    (2) Individuals eligible for special enrollment--(i) When employee 
loses coverage. A current employee and any dependents (including the 
employee's spouse) each are eligible for special enrollment in any 
benefit package under the plan (subject to plan eligibility rules 
conditioning dependent enrollment on enrollment of the employee) if--
    (A) The employee and the dependents are otherwise eligible to enroll 
in the benefit package;
    (B) When coverage under the plan was previously offered, the 
employee had coverage under any group health plan or health insurance 
coverage; and
    (C) The employee satisfies the conditions of paragraph (a)(3)(i), 
(ii), or (iii) of this section and, if applicable, paragraph (a)(3)(iv) 
of this section.
    (ii) When dependent loses coverage--(A) A dependent of a current 
employee (including the employee's spouse) and the employee each are 
eligible for special enrollment in any benefit package under the plan 
(subject to plan eligibility rules conditioning dependent enrollment on 
enrollment of the employee) if--
    (1) The dependent and the employee are otherwise eligible to enroll 
in the benefit package;
    (2) When coverage under the plan was previously offered, the 
dependent had coverage under any group health plan or health insurance 
coverage; and
    (3) The dependent satisfies the conditions of paragraph (a)(3)(i), 
(ii), or (iii) of this section and, if applicable, paragraph (a)(3)(iv) 
of this section.
    (B) However, the plan is not required to enroll any other dependent 
unless that dependent satisfies the criteria of this paragraph 
(a)(2)(ii), or the employee satisfies the criteria of paragraph 
(a)(2)(i) of this section.
    (iii) Examples. The rules of this paragraph (a)(2) are illustrated 
by the following examples:

    Example 1. (i) Facts. Individual A works for Employer X. A, A's 
spouse, and A's dependent children are eligible but not enrolled for 
coverage under X's group health plan. A's spouse works for Employer Y 
and at the time coverage was offered under X's plan, A was enrolled in 
coverage under Y's plan. Then, A loses eligibility for coverage under 
Y's plan.

[[Page 492]]

    (ii) Conclusion. In this Example 1, because A satisfies the 
conditions for special enrollment under paragraph (a)(2)(i) of this 
section, A, A's spouse, and A's dependent children are eligible for 
special enrollment under X's plan.
    Example 2. (i) Facts. Individual A and A's spouse are eligible but 
not enrolled for coverage under Group Health Plan P maintained by A's 
employer. When A was first presented with an opportunity to enroll A and 
A's spouse, they did not have other coverage. Later, A and A's spouse 
enroll in Group Health Plan Q maintained by the employer of A's spouse. 
During a subsequent open enrollment period in P, A and A's spouse did 
not enroll because of their coverage under Q. They then lose eligibility 
for coverage under Q.
    (ii) Conclusion. In this Example 2, because A and A's spouse were 
covered under Q when they did not enroll in P during open enrollment, 
they satisfy the conditions for special enrollment under paragraphs 
(a)(2)(i) and (ii) of this section. Consequently, A and A's spouse are 
eligible for special enrollment under P.
    Example 3. (i) Facts. Individual B works for Employer X. B and B's 
spouse are eligible but not enrolled for coverage under X's group health 
plan. B's spouse works for Employer Y and at the time coverage was 
offered under X's plan, B's spouse was enrolled in self-only coverage 
under Y's group health plan. Then, B's spouse loses eligibility for 
coverage under Y's plan.
    (ii) Conclusion. In this Example 3, because B's spouse satisfies the 
conditions for special enrollment under paragraph (a)(2)(ii) of this 
section, both B and B's spouse are eligible for special enrollment under 
X's plan.
    Example 4. (i) Facts. Individual A works for Employer X. X maintains 
a group health plan with two benefit packages--an HMO option and an 
indemnity option. Self-only and family coverage are available under both 
options. A enrolls for self-only coverage in the HMO option. A's spouse 
works for Employer Y and was enrolled for self-only coverage under Y's 
plan at the time coverage was offered under X's plan. Then, A's spouse 
loses coverage under Y's plan. A requests special enrollment for A and 
A's spouse under the plan's indemnity option.
    (ii) Conclusion. In this Example 4, because A's spouse satisfies the 
conditions for special enrollment under paragraph (a)(2)(ii) of this 
section, both A and A's spouse can enroll in either benefit package 
under X's plan. Therefore, if A requests enrollment in accordance with 
the requirements of this section, the plan must allow A and A's spouse 
to enroll in the indemnity option.

    (3) Conditions for special enrollment--(i) Loss of eligibility for 
coverage. In the case of an employee or dependent who has coverage that 
is not COBRA continuation coverage, the conditions of this paragraph 
(a)(3)(i) are satisfied at the time the coverage is terminated as a 
result of loss of eligibility (regardless of whether the individual is 
eligible for or elects COBRA continuation coverage). Loss of eligibility 
under this paragraph (a)(3)(i) does not include a loss due to the 
failure of the employee or dependent to pay premiums on a timely basis 
or termination of coverage for cause (such as making a fraudulent claim 
or an intentional misrepresentation of a material fact in connection 
with the plan). Loss of eligibility for coverage under this paragraph 
(a)(3)(i) includes (but is not limited to)--
    (A) Loss of eligibility for coverage as a result of legal 
separation, divorce, cessation of dependent status (such as attaining 
the maximum age to be eligible as a dependent child under the plan), 
death of an employee, termination of employment, reduction in the number 
of hours of employment, and any loss of eligibility for coverage after a 
period that is measured by reference to any of the foregoing;
    (B) In the case of coverage offered through an HMO, or other 
arrangement, in the individual market that does not provide benefits to 
individuals who no longer reside, live, or work in a service area, loss 
of coverage because an individual no longer resides, lives, or works in 
the service area (whether or not within the choice of the individual);
    (C) In the case of coverage offered through an HMO, or other 
arrangement, in the group market that does not provide benefits to 
individuals who no longer reside, live, or work in a service area, loss 
of coverage because an individual no longer resides, lives, or works in 
the service area (whether or not within the choice of the individual), 
and no other benefit package is available to the individual; and
    (D) A situation in which a plan no longer offers any benefits to the 
class of similarly situated individuals (as described in Sec.  54.9802-
1(d)) that includes the individual.
    (ii) Termination of employer contributions. In the case of an 
employee or dependent who has coverage that is not

[[Page 493]]

COBRA continuation coverage, the conditions of this paragraph (a)(3)(ii) 
are satisfied at the time employer contributions towards the employee's 
or dependent's coverage terminate. Employer contributions include 
contributions by any current or former employer that was contributing to 
coverage for the employee or dependent.
    (iii) Exhaustion of COBRA continuation coverage. In the case of an 
employee or dependent who has coverage that is COBRA continuation 
coverage, the conditions of this paragraph (a)(3)(iii) are satisfied at 
the time the COBRA continuation coverage is exhausted. For purposes of 
this paragraph (a)(3)(iii), an individual who satisfies the conditions 
for special enrollment of paragraph (a)(3)(i) of this section, does not 
enroll, and instead elects and exhausts COBRA continuation coverage 
satisfies the conditions of this paragraph (a)(3)(iii). (Exhaustion of 
COBRA continuation coverage is defined in Sec.  54.9801-2.)
    (iv) Written statement. A plan may require an employee declining 
coverage (for the employee or any dependent of the employee) to state in 
writing whether the coverage is being declined due to other health 
coverage only if, at or before the time the employee declines coverage, 
the employee is provided with notice of the requirement to provide the 
statement (and the consequences of the employee's failure to provide the 
statement). If a plan requires such a statement, and an employee does 
not provide it, the plan is not required to provide special enrollment 
to the employee or any dependent of the employee under this paragraph 
(a)(3). A plan must treat an employee as having satisfied the plan 
requirement permitted under this paragraph (a)(3)(iv) if the employee 
provides a written statement that coverage was being declined because 
the employee or dependent had other coverage; a plan cannot require 
anything more for the employee to satisfy the plan's requirement to 
provide a written statement. (For example, the plan cannot require that 
the statement be notarized.)
    (v) The rules of this paragraph (a)(3) are illustrated by the 
following examples:

    Example 1. (i) Facts. Individual D enrolls in a group health plan 
maintained by Employer Y. At the time D enrolls, Y pays 70 percent of 
the cost of employee coverage and D pays the rest. Y announces that 
beginning January 1, Y will no longer make employer contributions 
towards the coverage. Employees may maintain coverage, however, if they 
pay the total cost of the coverage.
    (ii) Conclusion. In this Example 1, employer contributions towards 
D's coverage ceased on January 1 and the conditions of paragraph 
(a)(3)(ii) of this section are satisfied on this date (regardless of 
whether D elects to pay the total cost and continue coverage under Y's 
plan).
    Example 2. (i) Facts. A group health plan provides coverage through 
two options--Option 1 and Option 2. Employees can enroll in either 
option only within 30 days of hire or on January 1 of each year. 
Employee A is eligible for both options and enrolls in Option 1. 
Effective July 1 the plan terminates coverage under Option 1 and the 
plan does not create an immediate open enrollment opportunity into 
Option 2.
    (ii) Conclusion. In this Example 2, A has experienced a loss of 
eligibility for coverage that satisfies paragraph (a)(3)(i) of this 
section, and has satisfied the other conditions for special enrollment 
under paragraph (a)(2)(i) of this section. Therefore, if A satisfies the 
other conditions of this paragraph (a), the plan must permit A to enroll 
in Option 2 as a special enrollee. (A may also be eligible to enroll in 
another group health plan, such as a plan maintained by the employer of 
A's spouse, as a special enrollee.) The outcome would be the same if 
Option 1 was terminated by an issuer and the plan made no other coverage 
available to A.
    Example 3. (i) Facts. Individual C is covered under a group health 
plan maintained by Employer X. While covered under X's plan, C was 
eligible for but did not enroll in a plan maintained by Employer Z, the 
employer of C's spouse. C terminates employment with X and loses 
eligibility for coverage under X's plan. C has a special enrollment 
right to enroll in Z's plan, but C instead elects COBRA continuation 
coverage under X's plan. C exhausts COBRA continuation coverage under 
X's plan and requests special enrollment in Z's plan.
    (ii) Conclusion. In this Example 3, C has satisfied the conditions 
for special enrollment under paragraph (a)(3)(iii) of this section, and 
has satisfied the other conditions for special enrollment under 
paragraph (a)(2)(i) of this section. The special enrollment right that C 
had into Z's plan immediately after the loss of eligibility for coverage 
under X's plan was an offer of coverage under Z's plan. When C later 
exhausts COBRA coverage under X's plan, C has a second special 
enrollment right in Z's plan.


[[Page 494]]


    (4) Applying for special enrollment and effective date of coverage. 
(i) A plan or issuer must allow an employee a period of at least 30 days 
after an event described in paragraph (a)(3) of this section to request 
enrollment (for the employee or the employee's dependent).
    (ii) Coverage must begin no later than the first day of the first 
calendar month beginning after the date the plan or issuer receives the 
request for special enrollment.
    (b) Special enrollment with respect to certain dependent 
beneficiaries--(1) In general. A group health plan that makes coverage 
available with respect to dependents is required to permit individuals 
described in paragraph (b)(2) of this section to be enrolled for 
coverage in a benefit package under the terms of the plan. Paragraph 
(b)(3) of this section describes the required special enrollment period 
and the date by which coverage must begin. The special enrollment rights 
under this paragraph (b) apply without regard to the dates on which an 
individual would otherwise be able to enroll under the plan. (See 29 CFR 
2590.701-6(b) and 45 CFR 146.117(b), under which this obligation is also 
imposed on a health insurance issuer offering group health insurance 
coverage.)
    (2) Individuals eligible for special enrollment. An individual is 
described in this paragraph (b)(2) if the individual is otherwise 
eligible for coverage in a benefit package under the plan and if the 
individual is described in paragraph (b)(2)(i), (ii), (iii), (iv), (v), 
or (vi) of this section.
    (i) Current employee only. A current employee is described in this 
paragraph (b)(2)(i) if a person becomes a dependent of the individual 
through marriage, birth, adoption, or placement for adoption.
    (ii) Spouse of a participant only. An individual is described in 
this paragraph (b)(2)(ii) if either--
    (A) The individual becomes the spouse of a participant; or
    (B) The individual is a spouse of a participant and a child becomes 
a dependent of the participant through birth, adoption, or placement for 
adoption.
    (iii) Current employee and spouse. A current employee and an 
individual who is or becomes a spouse of such an employee, are described 
in this paragraph (b)(2)(iii) if either--
    (A) The employee and the spouse become married; or
    (B) The employee and spouse are married and a child becomes a 
dependent of the employee through birth, adoption, or placement for 
adoption.
    (iv) Dependent of a participant only. An individual is described in 
this paragraph (b)(2)(iv) if the individual is a dependent (as defined 
in Sec.  54.9801-2) of a participant and the individual has become a 
dependent of the participant through marriage, birth, adoption, or 
placement for adoption.
    (v) Current employee and a new dependent. A current employee and an 
individual who is a dependent of the employee, are described in this 
paragraph (b)(2)(v) if the individual becomes a dependent of the 
employee through marriage, birth, adoption, or placement for adoption.
    (vi) Current employee, spouse, and a new dependent. A current 
employee, the employee's spouse, and the employee's dependent are 
described in this paragraph (b)(2)(vi) if the dependent becomes a 
dependent of the employee through marriage, birth, adoption, or 
placement for adoption.
    (3) Applying for special enrollment and effective date of coverage--
(i) Request. A plan must allow an individual a period of at least 30 
days after the date of the marriage, birth, adoption, or placement for 
adoption (or, if dependent coverage is not generally made available at 
the time of the marriage, birth, adoption, or placement for adoption, a 
period of at least 30 days after the date the plan makes dependent 
coverage generally available) to request enrollment (for the individual 
or the individual's dependent).
    (ii) Reasonable procedures for special enrollment. [Reserved]
    (iii) Date coverage must begin--(A) Marriage. In the case of 
marriage, coverage must begin no later than the first day of the first 
calendar month beginning after the date the plan (or any issuer offering 
health insurance coverage under the plan) receives the request for 
special enrollment.
    (B) Birth, adoption, or placement for adoption. Coverage must begin 
in the

[[Page 495]]

case of a dependent's birth on the date of birth and in the case of a 
dependent's adoption or placement for adoption no later than the date of 
such adoption or placement for adoption (or, if dependent coverage is 
not made generally available at the time of the birth, adoption, or 
placement for adoption, the date the plan makes dependent coverage 
available).
    (4) Examples. The rules of this paragraph (b) are illustrated by the 
following examples:

    Example 1. (i) Facts. An employer maintains a group health plan that 
offers all employees employee-only coverage, employee-plus-spouse 
coverage, or family coverage. Under the terms of the plan, any employee 
may elect to enroll when first hired (with coverage beginning on the 
date of hire) or during an annual open enrollment period held each 
December (with coverage beginning the following January 1). Employee A 
is hired on September 3. A is married to B, and they have no children. 
On March 15 in the following year a child C is born to A and B. Before 
that date, A and B have not been enrolled in the plan.
    (ii) Conclusion. In this Example 1, the conditions for special 
enrollment of an employee with a spouse and new dependent under 
paragraph (b)(2)(vi) of this section are satisfied. If A satisfies the 
conditions of paragraph (b)(3) of this section for requesting enrollment 
timely, the plan will satisfy this paragraph (b) if it allows A to 
enroll either with employee-only coverage, with employee-plus-spouse 
coverage (for A and B), or with family coverage (for A, B, and C). The 
plan must allow whatever coverage is chosen to begin on March 15, the 
date of C's birth.
    Example 2. (i) Facts. Individual D works for Employer X. X maintains 
a group health plan with two benefit packages--an HMO option and an 
indemnity option. Self-only and family coverage are available under both 
options. D enrolls for self-only coverage in the HMO option. Then, a 
child, E, is placed for adoption with D. Within 30 days of the placement 
of E for adoption, D requests enrollment for D and E under the plan's 
indemnity option.
    (ii) Conclusion. In this Example 2, D and E satisfy the conditions 
for special enrollment under paragraphs (b)(2)(v) and (b)(3) of this 
section. Therefore, the plan must allow D and E to enroll in the 
indemnity coverage, effective as of the date of the placement for 
adoption.

    (c) Notice of special enrollment. At or before the time an employee 
is initially offered the opportunity to enroll in a group health plan, 
the plan must furnish the employee with a notice of special enrollment 
that complies with the requirements of this paragraph (c).
    (1) Description of special enrollment rights. The notice of special 
enrollment must include a description of special enrollment rights. The 
following model language may be used to satisfy this requirement:

    If you are declining enrollment for yourself or your dependents 
(including your spouse) because of other health insurance or group 
health plan coverage, you may be able to enroll yourself and your 
dependents in this plan if you or your dependents lose eligibility for 
that other coverage (or if the employer stops contributing towards your 
or your dependents' other coverage). However, you must request 
enrollment within [insert ``30 days'' or any longer period that applies 
under the plan] after your or your dependents' other coverage ends (or 
after the employer stops contributing toward the other coverage).
    In addition, if you have a new dependent as a result of marriage, 
birth, adoption, or placement for adoption, you may be able to enroll 
yourself and your dependents. However, you must request enrollment 
within [insert ``30 days'' or any longer period that applies under the 
plan] after the marriage, birth, adoption, or placement for adoption.
    To request special enrollment or obtain more information, contact 
[insert the name, title, telephone number, and any additional contact 
information of the appropriate plan representative].

    (2) Additional information that may be required. The notice of 
special enrollment must also include, if applicable, the notice 
described in paragraph (a)(3)(iv) of this section (the notice required 
to be furnished to an individual declining coverage if the plan requires 
the reason for declining coverage to be in writing).
    (d) Treatment of special enrollees--(1) If an individual requests 
enrollment while the individual is entitled to special enrollment under 
either paragraph (a) or (b) of this section, the individual is a special 
enrollee, even if the request for enrollment coincides with a late 
enrollment opportunity under the plan. Therefore, the individual cannot 
be treated as a late enrollee.
    (2) Special enrollees must be offered all the benefit packages 
available to similarly situated individuals who enroll when first 
eligible. For this purpose, any difference in benefits or cost-

[[Page 496]]

sharing requirements for different individuals constitutes a different 
benefit package. In addition, a special enrollee cannot be required to 
pay more for coverage than a similarly situated individual who enrolls 
in the same coverage when first eligible.
    (3) The rules of this section are illustrated by the following 
example:

    Example 2. (i) Facts. Employer Y maintains a group health plan that 
has an enrollment period for late enrollees every November 1 through 
November 30 with coverage effective the following January 1. On October 
18, Individual B loses coverage under another group health plan and 
satisfies the requirements of paragraphs (a)(2), (3), and (4) of this 
section. B submits a completed application for coverage on November 2.
    (ii) Conclusion. In this Example, B is a special enrollee. 
Therefore, even though B's request for enrollment coincides with an open 
enrollment period, B's coverage is required to be made effective no 
later than December 1 (rather than the plan's January 1 effective date 
for late enrollees).

[T.D. 9166, 69 FR 78746, Dec. 30, 2004, as amended by T.D. 9656, 79 FR 
10305, Feb. 24, 2014]



Sec.  54.9802-1  Prohibiting discrimination against participants 
and beneficiaries based on a health factor.

    (a) Health factors. (1) The term health factor means, in relation to 
an individual, any of the following health status-related factors:
    (i) Health status;
    (ii) Medical condition (including both physical and mental 
illnesses), as defined in Sec.  54.9801-2;
    (iii) Claims experience;
    (iv) Receipt of health care;
    (v) Medical history;
    (vi) Genetic information, as defined in Sec.  54.9802-3T.
    (vii) Evidence of insurability; or
    (viii) Disability.
    (2) Evidence of insurability includes--
    (i) Conditions arising out of acts of domestic violence; and
    (ii) Participation in activities such as motorcycling, snowmobiling, 
all-terrain vehicle riding, horseback riding, skiing, and other similar 
activities.
    (3) The decision whether health coverage is elected for an 
individual (including the time chosen to enroll, such as under special 
enrollment or late enrollment) is not, itself, within the scope of any 
health factor. (However, under Sec.  54.9801-6, a plan must treat 
special enrollees the same as similarly situated individuals who are 
enrolled when first eligible.)
    (b) Prohibited discrimination in rules for eligibility--(1) In 
general. (i) A group health plan, and a health insurance issuer offering 
health insurance coverage in connection with a group health plan, may 
not establish any rule for eligibility (including continued eligibility) 
of any individual to enroll for benefits under the terms of the plan or 
group health insurance coverage that discriminates based on any health 
factor that relates to that individual or a dependent of that 
individual. This rule is subject to the provisions of paragraph (b)(2) 
of this section (explaining how this rule applies to benefits), 
paragraph (d) of this section (containing rules for establishing groups 
of similarly situated individuals), paragraph (e) of this section 
(relating to nonconfinement, actively-at-work, and other service 
requirements), paragraph (f) of this section (relating to wellness 
programs), and paragraph (g) of this section (permitting favorable 
treatment of individuals with adverse health factors).
    (ii) For purposes of this section, rules for eligibility include, 
but are not limited to, rules relating to--
    (A) Enrollment;
    (B) The effective date of coverage;
    (C) Waiting (or affiliation) periods;
    (D) Late and special enrollment;
    (E) Eligibility for benefit packages (including rules for 
individuals to change their selection among benefit packages);
    (F) Benefits (including rules relating to covered benefits, benefit 
restrictions, and cost-sharing mechanisms such as coinsurance, 
copayments, and deductibles), as described in paragraphs (b)(2) and (3) 
of this section;
    (G) Continued eligibility; and
    (H) Terminating coverage (including disenrollment) of any individual 
under the plan.
    (iii) The rules of this paragraph (b)(1) are illustrated by the 
following examples:

    Example 1. (i) Facts. An employer sponsors a group health plan that 
is available to all employees who enroll within the first 30 days

[[Page 497]]

of their employment. However, employees who do not enroll within the 
first 30 days cannot enroll later unless they pass a physical 
examination.
    (ii) Conclusion. In this Example 1, the requirement to pass a 
physical examination in order to enroll in the plan is a rule for 
eligibility that discriminates based on one or more health factors and 
thus violates this paragraph (b)(1).
    Example 2. (i) Facts. Under an employer's group health plan, 
employees who enroll during the first 30 days of employment (and during 
special enrollment periods) may choose between two benefit packages: An 
indemnity option and an HMO option. However, employees who enroll during 
late enrollment are permitted to enroll only in the HMO option and only 
if they provide evidence of good health.
    (ii) Conclusion. In this Example 2, the requirement to provide 
evidence of good health in order to be eligible for late enrollment in 
the HMO option is a rule for eligibility that discriminates based on one 
or more health factors and thus violates this paragraph (b)(1). However, 
if the plan did not require evidence of good health but limited late 
enrollees to the HMO option, the plan's rules for eligibility would not 
discriminate based on any health factor, and thus would not violate this 
paragraph (b)(1), because the time an individual chooses to enroll is 
not, itself, within the scope of any health factor.
    Example 3. (i) Facts. Under an employer's group health plan, all 
employees generally may enroll within the first 30 days of employment. 
However, individuals who participate in certain recreational activities, 
including motorcycling, are excluded from coverage.
    (ii) Conclusion. In this Example 3, excluding from the plan 
individuals who participate in recreational activities, such as 
motorcycling, is a rule for eligibility that discriminates based on one 
or more health factors and thus violates this paragraph (b)(1).
    Example 4. (i) Facts. A group health plan applies for a group health 
policy offered by an issuer. As part of the application, the issuer 
receives health information about individuals to be covered under the 
plan. Individual A is an employee of the employer maintaining the plan. 
A and A's dependents have a history of high health claims. Based on the 
information about A and A's dependents, the issuer excludes A and A's 
dependents from the group policy it offers to the employer.
    (ii) Conclusion. See Example 4 in 29 CFR 2590.702(b)(1) and 45 CFR 
146.121(b)(1) for a conclusion that the exclusion by the issuer of A and 
A's dependents from coverage is a rule for eligibility that 
discriminates based on one or more health factors and violates rules 
under 29 CFR 2590.702(b)(1) and 45 CFR 146.121(b)(1) similar to the 
rules under this paragraph (b)(1). (If the employer is a small employer 
under 45 CFR 144.103 (generally, an employer with 50 or fewer 
employees), the issuer also may violate 45 CFR 146.150, which requires 
issuers to offer all the policies they sell in the small group market on 
a guaranteed available basis to all small employers and to accept every 
eligible individual in every small employer group.) If the plan provides 
coverage through this policy and does not provide equivalent coverage 
for A and A's dependents through other means, the plan violates this 
paragraph (b)(1).

    (2) Application to benefits--(i) General rule--(A) Under this 
section, a group health plan is not required to provide coverage for any 
particular benefit to any group of similarly situated individuals.
    (B) However, benefits provided under a plan must be uniformly 
available to all similarly situated individuals (as described in 
paragraph (d) of this section). Likewise, any restriction on a benefit 
or benefits must apply uniformly to all similarly situated individuals 
and must not be directed at individual participants or beneficiaries 
based on any health factor of the participants or beneficiaries 
(determined based on all the relevant facts and circumstances). Thus, 
for example, a plan may limit or exclude benefits in relation to a 
specific disease or condition, limit or exclude benefits for certain 
types of treatments or drugs, or limit or exclude benefits based on a 
determination of whether the benefits are experimental or not medically 
necessary, but only if the benefit limitation or exclusion applies 
uniformly to all similarly situated individuals and is not directed at 
individual participants or beneficiaries based on any health factor of 
the participants or beneficiaries. In addition, a plan or issuer may 
require the satisfaction of a deductible, copayment, coinsurance, or 
other cost-sharing requirement in order to obtain a benefit if the limit 
or cost-sharing requirement applies uniformly to all similarly situated 
individuals and is not directed at individual participants or 
beneficiaries based on any health factor of the participants or 
beneficiaries. In the case of a cost-sharing requirement, see also 
paragraph (b)(2)(ii) of this section,

[[Page 498]]

which permits variances in the application of a cost-sharing mechanism 
made available under a wellness program. (Whether any plan provision or 
practice with respect to benefits complies with this paragraph (b)(2)(i) 
does not affect whether the provision or practice is permitted under 
ERISA, the Affordable Care Act (including the requirements related to 
essential health benefits), the Americans With Disabilities Act, or any 
other law, whether State or Federal.)
    (C) For purposes of this paragraph (b)(2)(i), a plan amendment 
applicable to all individuals in one or more groups of similarly 
situated individuals under the plan and made effective no earlier than 
the first day of the first plan year after the amendment is adopted is 
not considered to be directed at any individual participants or 
beneficiaries.
    (D) The rules of this paragraph (b)(2)(i) are illustrated by the 
following examples:

    Example 1. (i) Facts. A group health plan applies a $10,000 annual 
limit on a specific covered benefit that is not an essential health 
benefit to each participant or beneficiary covered under the plan. The 
limit is not directed at individual participants or beneficiaries.
    (ii) Conclusion. In this Example 1, the limit does not violate this 
paragraph (b)(2)(i) because coverage of the specific, non-essential 
health benefit up to $10,000 is available uniformly to each participant 
and beneficiary under the plan and because the limit is applied 
uniformly to all participants and beneficiaries and is not directed at 
individual participants or beneficiaries.
    Example 2. (i) Facts. A group health plan has a $500 deductible on 
all benefits for participants covered under the plan. Participant B 
files a claim for the treatment of AIDS. At the next corporate board 
meeting of the plan sponsor, the claim is discussed. Shortly thereafter, 
the plan is modified to impose a $2,000 deductible on benefits for the 
treatment of AIDS, effective before the beginning of the next plan year.
    (ii) Conclusion. The facts of this Example 2 strongly suggest that 
the plan modification is directed at B based on B's claim. Absent 
outweighing evidence to the contrary, the plan violates this paragraph 
(b)(2)(i).
    Example 3. (i) A group health plan applies for a group health policy 
offered by an issuer. Individual C is covered under the plan and has an 
adverse health condition. As part of the application, the issuer 
receives health information about the individuals to be covered, 
including information about C's adverse health condition. The policy 
form offered by the issuer generally provides benefits for the adverse 
health condition that C has, but in this case the issuer offers the plan 
a policy modified by a rider that excludes benefits for C for that 
condition. The exclusionary rider is made effective the first day of the 
next plan year.
    (ii) Conclusion. See Example 3 in 29 CFR 2590.702(b)(2)(i) and 45 
CFR 146.121(b)(2)(i) for a conclusion that the issuer violates rules 
under 29 CFR 2590.702(b)(2)(i) and 45 CFR 146.121(b)(2)(i) similar to 
the rules under this paragraph (b)(2)(i) because benefits for C's 
condition are available to other individuals in the group of similarly 
situated individuals that includes C but are not available to C. Thus, 
the benefits are not uniformly available to all similarly situated 
individuals. Even though the exclusionary rider is made effective the 
first day of the next plan year, because the rider does not apply to all 
similarly situated individuals, the issuer violates the rules under 29 
CFR 2590.702(b)(2)(i) and 45 CFR 146.121(b)(2)(i). If the plan provides 
coverage through this policy and does not provide equivalent coverage 
for C through other means, the plan violates this paragraph (b)(2)(i).
    Example 4. (i) Facts. A group health plan has a $2,000 lifetime 
limit for the treatment of temporomandibular joint syndrome (TMJ). The 
limit is applied uniformly to all similarly situated individuals and is 
not directed at individual participants or beneficiaries.
    (ii) Conclusion. In this Example 4, the limit does not violate this 
paragraph (b)(2)(i) because $2,000 of benefits for the treatment of TMJ 
are available uniformly to all similarly situated individuals and a plan 
may limit benefits covered in relation to a specific disease or 
condition if the limit applies uniformly to all similarly situated 
individuals and is not directed at individual participants or 
beneficiaries. (However, applying a lifetime limit on TMJ may violate 
PHS Act section 2711 and its implementing regulations, if TMJ coverage 
is an essential health benefit, depending on the essential health 
benefits benchmark plan as defined in 45 CFR 156.20. This example does 
not address whether the plan provision is permissible under any other 
applicable law, including PHS Act section 2711 or the Americans with 
Disabilities Act.)
    Example 5. (i) Facts. A group health plan applies a $2 million 
lifetime limit on all benefits. However, the $2 million lifetime limit 
is reduced to $10,000 for any participant or beneficiary covered under 
the plan who has a congenital heart defect.
    (ii) Conclusion. In this Example 5, the lower lifetime limit for 
participants and beneficiaries with a congenital heart defect violates 
this paragraph (b)(2)(i) because benefits under the plan are not 
uniformly available to all similarly situated individuals and the

[[Page 499]]

plan's lifetime limit on benefits does not apply uniformly to all 
similarly situated individuals. Additionally, this plan provision is 
prohibited under PHS Act section 2711 and its implementing regulations 
because it imposes a lifetime limit on essential health benefits.
    Example 6. (i) Facts. A group health plan limits benefits for 
prescription drugs to those listed on a drug formulary. The limit is 
applied uniformly to all similarly situated individuals and is not 
directed at individual participants or beneficiaries.
    (ii) Conclusion. In this Example 6, the exclusion from coverage of 
drugs not listed on the drug formulary does not violate this paragraph 
(b)(2)(i) because benefits for prescription drugs listed on the 
formulary are uniformly available to all similarly situated individuals 
and because the exclusion of drugs not listed on the formulary applies 
uniformly to all similarly situated individuals and is not directed at 
individual participants or beneficiaries.
    Example 7. (i) Facts. Under a group health plan, doctor visits are 
generally subject to a $250 annual deductible and 20 percent coinsurance 
requirement. However, prenatal doctor visits are not subject to any 
deductible or coinsurance requirement. These rules are applied uniformly 
to all similarly situated individuals and are not directed at individual 
participants or beneficiaries.
    (ii) Conclusion. In this Example 7, imposing different deductible 
and coinsurance requirements for prenatal doctor visits and other visits 
does not violate this paragraph (b)(2)(i) because a plan may establish 
different deductibles or coinsurance requirements for different services 
if the deductible or coinsurance requirement is applied uniformly to all 
similarly situated individuals and is not directed at individual 
participants or beneficiaries.

    (ii) Exception for wellness programs. A group health plan may vary 
benefits, including cost-sharing mechanisms (such as a deductible, 
copayment, or coinsurance), based on whether an individual has met the 
standards of a wellness program that satisfies the requirements of 
paragraph (f) of this section.
    (iii) Specific rule relating to source-of-injury exclusions--(A) If 
a group health plan generally provides benefits for a type of injury, 
the plan may not deny benefits otherwise provided for treatment of the 
injury if the injury results from an act of domestic violence or a 
medical condition (including both physical and mental health 
conditions). This rule applies in the case of an injury resulting from a 
medical condition even if the condition is not diagnosed before the 
injury.
    (B) The rules of this paragraph (b)(2)(iii) are illustrated by the 
following examples:

    Example 1. (i) Facts. A group health plan generally provides 
medical/surgical benefits, including benefits for hospital stays, that 
are medically necessary. However, the plan excludes benefits for self-
inflicted injuries or injuries sustained in connection with attempted 
suicide. Because of depression, Individual D attempts suicide. As a 
result, D sustains injuries and is hospitalized for treatment of the 
injuries. Under the exclusion, the plan denies D benefits for treatment 
of the injuries.
    (ii) Conclusion. In this Example 1, the suicide attempt is the 
result of a medical condition (depression). Accordingly, the denial of 
benefits for the treatments of D's injuries violates the requirements of 
this paragraph (b)(2)(iii) because the plan provision excludes benefits 
for treatment of an injury resulting from a medical condition.
    Example 2. (i) Facts. A group health plan provides benefits for head 
injuries generally. The plan also has a general exclusion for any injury 
sustained while participating in any of a number of recreational 
activities, including bungee jumping. However, this exclusion does not 
apply to any injury that results from a medical condition (nor from 
domestic violence). Participant E sustains a head injury while bungee 
jumping. The injury did not result from a medical condition (nor from 
domestic violence). Accordingly, the plan denies benefits for E's head 
injury.
    (ii) Conclusion. In this Example 2, the plan provision that denies 
benefits based on the source of an injury does not restrict benefits 
based on an act of domestic violence or any medical condition. 
Therefore, the provision is permissible under this paragraph (b)(2)(iii) 
and does not violate this section. (However, if the plan did not allow E 
to enroll in the plan (or applied different rules for eligibility to E) 
because E frequently participates in bungee jumping, the plan would 
violate paragraph (b)(1) of this section.)

    (c) Prohibited discrimination in premiums or contributions--(1) In 
general--(i) A group health plan may not require an individual, as a 
condition of enrollment or continued enrollment under the plan, to pay a 
premium or contribution that is greater than the premium or contribution 
for a similarly situated individual (described in paragraph (d) of this 
section) enrolled in the plan based on any health factor that relates to 
the individual or a dependent of the individual.

[[Page 500]]

    (ii) Discounts, rebates, payments in kind, and any other premium 
differential mechanisms are taken into account in determining an 
individual's premium or contribution rate. (For rules relating to cost-
sharing mechanisms, see paragraph (b)(2) of this section (addressing 
benefits).)
    (2) Rules relating to premium rates--(i) Group rating based on 
health factors not restricted under this section. Nothing in this 
section restricts the aggregate amount that an employer may be charged 
for coverage under a group health plan. But see Sec.  54.9802-3T(b), 
which prohibits adjustments in group premium or contribution rates based 
on genetic information.
    (ii) List billing based on a health factor prohibited. However, a 
group health plan may not quote or charge an employer (or an individual) 
a different premium for an individual in a group of similarly situated 
individuals based on a health factor. (But see paragraph (g) of this 
section permitting favorable treatment of individuals with adverse 
health factors.)
    (iii) Examples. The rules of this paragraph (c)(2) are illustrated 
by the following examples:

    Example 1. (i) Facts. An employer sponsors a group health plan and 
purchases coverage from a health insurance issuer. In order to determine 
the premium rate for the upcoming plan year, the issuer reviews the 
claims experience of individuals covered under the plan. The issuer 
finds that Individual F had significantly higher claims experience than 
similarly situated individuals in the plan. The issuer quotes the plan a 
higher per-participant rate because of F's claims experience.
    (ii) Conclusion. See Example 1 in 29 CFR 2590.702(c)(2) and 45 CFR 
146.121(c)(2) for a conclusion that the issuer does not violate the 
provisions of 29 CFR 2590.702(c)(2) and 45 CFR 146.121(c)(2) similar to 
the provisions of this paragraph (c)(2) because the issuer blends the 
rate so that the employer is not quoted a higher rate for F than for a 
similarly situated individual based on F's claims experience. (However, 
those examples conclude that if the issuer used genetic information in 
computing the group rate, it would violate 29 CFR 2590.702-1(b) or 45 
CFR 146.122(b).)
    Example 2. (i) Facts. Same facts as Example 1, except that the 
issuer quotes the employer a higher premium rate for F, because of F's 
claims experience, than for a similarly situated individual.
    (ii) Conclusion. See Example 2 in 29 CFR 2590.702(c)(2) and 45 CFR 
146.121(c)(2) for a conclusion that the issuer violates provisions of 29 
CFR 2590.702(c)(2) and 45 CFR 146.121(c)(2) similar to the provisions of 
this paragraph (c)(2). Moreover, even if the plan purchased the policy 
based on the quote but did not require a higher participant contribution 
for F than for a similarly situated individual, see Example 2 in 29 CFR 
2590.702(c)(2) and 45 CFR 146.121(c)(2) for a conclusion that the issuer 
would still violate 29 CFR 2590.702(c)(2) and 45 CFR 146.121(c)(2) (but 
in such a case the plan would not violate this paragraph (c)(2)).

    (3) Exception for wellness programs. Notwithstanding paragraphs 
(c)(1) and (2) of this section, a plan may vary the amount of premium or 
contribution it requires similarly situated individuals to pay based on 
whether an individual has met the standards of a wellness program that 
satisfies the requirements of paragraph (f) of this section.
    (d) Similarly situated individuals. The requirements of this section 
apply only within a group of individuals who are treated as similarly 
situated individuals. A plan may treat participants as a group of 
similarly situated individuals separate from beneficiaries. In addition, 
participants may be treated as two or more distinct groups of similarly 
situated individuals and beneficiaries may be treated as two or more 
distinct groups of similarly situated individuals in accordance with the 
rules of this paragraph (d). Moreover, if individuals have a choice of 
two or more benefit packages, individuals choosing one benefit package 
may be treated as one or more groups of similarly situated individuals 
distinct from individuals choosing another benefit package.
    (1) Participants. Subject to paragraph (d)(3) of this section, a 
plan may treat participants as two or more distinct groups of similarly 
situated individuals if the distinction between or among the groups of 
participants is based on a bona fide employment-based classification 
consistent with the employer's usual business practice. Whether an 
employment-based classification is bona fide is determined on the basis 
of all the relevant facts and circumstances. Relevant facts and 
circumstances include whether the employer uses the classification for 
purposes independent of qualification for

[[Page 501]]

health coverage (for example, determining eligibility for other employee 
benefits or determining other terms of employment). Subject to paragraph 
(d)(3) of this section, examples of classifications that, based on all 
the relevant facts and circumstances, may be bona fide include full-time 
versus part-time status, different geographic location, membership in a 
collective bargaining unit, date of hire, length of service, current 
employee versus former employee status, and different occupations. 
However, a classification based on any health factor is not a bona fide 
employment-based classification, unless the requirements of paragraph 
(g) of this section are satisfied (permitting favorable treatment of 
individuals with adverse health factors).
    (2) Beneficiaries--(i) Subject to paragraph (d)(3) of this section, 
a plan may treat beneficiaries as two or more distinct groups of 
similarly situated individuals if the distinction between or among the 
groups of beneficiaries is based on any of the following factors:
    (A) A bona fide employment-based classification of the participant 
through whom the beneficiary is receiving coverage;
    (B) Relationship to the participant (for example, as a spouse or as 
a dependent child);
    (C) Marital status;
    (D) With respect to children of a participant, age or student 
status; or
    (E) Any other factor if the factor is not a health factor.
    (ii) Paragraph (d)(2)(i) of this section does not prevent more 
favorable treatment of individuals with adverse health factors in 
accordance with paragraph (g) of this section.
    (3) Discrimination directed at individuals. Notwithstanding 
paragraphs (d)(1) and (2) of this section, if the creation or 
modification of an employment or coverage classification is directed at 
individual participants or beneficiaries based on any health factor of 
the participants or beneficiaries, the classification is not permitted 
under this paragraph (d), unless it is permitted under paragraph (g) of 
this section (permitting favorable treatment of individuals with adverse 
health factors). Thus, if an employer modified an employment-based 
classification to single out, based on a health factor, individual 
participants and beneficiaries and deny them health coverage, the new 
classification would not be permitted under this section.
    (4) Examples. The rules of this paragraph (d) are illustrated by the 
following examples:

    Example 1. (i) Facts. An employer sponsors a group health plan for 
full-time employees only. Under the plan (consistent with the employer's 
usual business practice), employees who normally work at least 30 hours 
per week are considered to be working full-time. Other employees are 
considered to be working part-time. There is no evidence to suggest that 
the classification is directed at individual participants or 
beneficiaries.
    (ii) Conclusion. In this Example 1, treating the full-time and part-
time employees as two separate groups of similarly situated individuals 
is permitted under this paragraph (d) because the classification is bona 
fide and is not directed at individual participants or beneficiaries.
    Example 2. (i) Facts. Under a group health plan, coverage is made 
available to employees, their spouses, and their children. However, 
coverage is made available to a child only if the child is under age 26 
(or under age 29 if the child is continuously enrolled full-time in an 
institution of higher learning (full-time students)). There is no 
evidence to suggest that these classifications are directed at 
individual participants or beneficiaries.
    (ii) Conclusion. In this Example 2, treating spouses and children 
differently by imposing an age limitation on children, but not on 
spouses, is permitted under this paragraph (d). Specifically, the 
distinction between spouses and children is permitted under paragraph 
(d)(2) of this section and is not prohibited under paragraph (d)(3) of 
this section because it is not directed at individual participants or 
beneficiaries. It is also permissible to treat children who are under 
age 26 (or full-time students under age 29) as a group of similarly 
situated individuals separate from those who are age 26 or older (or age 
29 or older if they are not full-time students) because the 
classification is permitted under paragraph (d)(2) of this section and 
is not directed at individual participants or beneficiaries.
    Example 3. (i) Facts. A university sponsors a group health plan that 
provides one health benefit package to faculty and another health 
benefit package to other staff. Faculty and staff are treated 
differently with respect to other employee benefits such as retirement 
benefits and leaves of absence. There is no evidence to suggest that the 
distinction is directed at individual participants or beneficiaries.

[[Page 502]]

    (ii) Conclusion. In this Example 3, the classification is permitted 
under this paragraph (d) because there is a distinction based on a bona 
fide employment-based classification consistent with the employer's 
usual business practice and the distinction is not directed at 
individual participants and beneficiaries.
    Example 4. (i) Facts. An employer sponsors a group health plan that 
is available to all current employees. Former employees may also be 
eligible, but only if they complete a specified number of years of 
service, are enrolled under the plan at the time of termination of 
employment, and are continuously enrolled from that date. There is no 
evidence to suggest that these distinctions are directed at individual 
participants or beneficiaries.
    (ii) Conclusion. In this Example 4, imposing additional eligibility 
requirements on former employees is permitted because a classification 
that distinguishes between current and former employees is a bona fide 
employment-based classification that is permitted under this paragraph 
(d), provided that it is not directed at individual participants or 
beneficiaries. In addition, it is permissible to distinguish between 
former employees who satisfy the service requirement and those who do 
not, provided that the distinction is not directed at individual 
participants or beneficiaries. (However, former employees who do not 
satisfy the eligibility criteria may, nonetheless, be eligible for 
continued coverage pursuant to a COBRA continuation provision or similar 
State law.)
    Example 5. (i) Facts. An employer sponsors a group health plan that 
provides the same benefit package to all seven employees of the 
employer. Six of the seven employees have the same job title and 
responsibilities, but Employee G has a different job title and different 
responsibilities. After G files an expensive claim for benefits under 
the plan, coverage under the plan is modified so that employees with G's 
job title receive a different benefit package that includes a higher 
deductible than in the benefit package made available to the other six 
employees.
    (ii) Conclusion. Under the facts of this Example 5, changing the 
coverage classification for G based on the existing employment 
classification for G is not permitted under this paragraph (d) because 
the creation of the new coverage classification for G is directed at G 
based on one or more health factors.

    (e) Nonconfinement and actively-at-work provisions--(1) 
Nonconfinement provisions--(i) General rule. Under the rules of 
paragraphs (b) and (c) of this section, a plan may not establish a rule 
for eligibility (as described in paragraph (b)(1)(ii) of this section) 
or set any individual's premium or contribution rate based on whether an 
individual is confined to a hospital or other health care institution. 
In addition, under the rules of paragraphs (b) and (c) of this section, 
a plan may not establish a rule for eligibility or set any individual's 
premium or contribution rate based on an individual's ability to engage 
in normal life activities, except to the extent permitted under 
paragraphs (e)(2)(ii) and (3) of this section (permitting plans, under 
certain circumstances, to distinguish among employees based on the 
performance of services).
    (ii) Examples. The rules of this paragraph (e)(1) are illustrated by 
the following examples:

    Example 1. (i) Facts. Under a group health plan, coverage for 
employees and their dependents generally becomes effective on the first 
day of employment. However, coverage for a dependent who is confined to 
a hospital or other health care institution does not become effective 
until the confinement ends.
    (ii) Conclusion. In this Example 1, the plan violates this paragraph 
(e)(1) because the plan delays the effective date of coverage for 
dependents based on confinement to a hospital or other health care 
institution.
    Example 2. (i) Facts. In previous years, a group health plan has 
provided coverage through a group health insurance policy offered by 
Issuer M. However, for the current year, the plan provides coverage 
through a group health insurance policy offered by Issuer N. Under 
Issuer N's policy, items and services provided in connection with the 
confinement of a dependent to a hospital or other health care 
institution are not covered if the confinement is covered under an 
extension of benefits clause from a previous health insurance issuer.
    (ii) Conclusion. See Example 2 in 29 CFR 2590.702(e)(1) and 45 CFR 
146.121(e)(1) for a conclusion that Issuer N violates provisions of 29 
CFR 2590.702(e)(1) and 45 CFR 146.121(e)(1) similar to the provisions of 
this paragraph (e)(1) because the group health insurance coverage 
restricts benefits based on whether a dependent is confined to a 
hospital or other health care institution that is covered under an 
extension of benefits from a previous issuer. See Example 2 in 29 CFR 
2590.702(e)(1) and 45 CFR 146.121(e)(1) for the additional conclusions 
that under State law Issuer M may also be responsible for providing 
benefits to such a dependent; and that in a case in which Issuer N has 
an obligation under 29 CFR 2590.702(e)(1) or 45 CFR 146.121(e)(1) to 
provide benefits and Issuer M has an obligation under State law to 
provide benefits, any State laws designed to prevent more than 100% 
reimbursement, such as

[[Page 503]]

State coordination-of-benefits laws, continue to apply.

    (2) Actively-at-work and continuous service provisions--(i) General 
rule--(A) Under the rules of paragraphs (b) and (c) of this section and 
subject to the exception for the first day of work described in 
paragraph (e)(2)(ii) of this section, a plan may not establish a rule 
for eligibility (as described in paragraph (b)(1)(ii) of this section) 
or set any individual's premium or contribution rate based on whether an 
individual is actively at work (including whether an individual is 
continuously employed), unless absence from work due to any health 
factor (such as being absent from work on sick leave) is treated, for 
purposes of the plan, as being actively at work.
    (B) The rules of this paragraph (e)(2)(i) are illustrated by the 
following examples:

    Example 1. (i) Facts. Under a group health plan, an employee 
generally becomes eligible to enroll 30 days after the first day of 
employment. However, if the employee is not actively at work on the 
first day after the end of the 30-day period, then eligibility for 
enrollment is delayed until the first day the employee is actively at 
work.
    (ii) Conclusion. In this Example 1, the plan violates this paragraph 
(e)(2) (and thus also violates paragraph (b) of this section). However, 
the plan would not violate paragraph (e)(2) or (b) of this section if, 
under the plan, an absence due to any health factor is considered being 
actively at work.
    Example 2. (i) Facts. Under a group health plan, coverage for an 
employee becomes effective after 90 days of continuous service; that is, 
if an employee is absent from work (for any reason) before completing 90 
days of service, the beginning of the 90-day period is measured from the 
day the employee returns to work (without any credit for service before 
the absence).
    (ii) Conclusion. In this Example 2, the plan violates this paragraph 
(e)(2) (and thus also paragraph (b) of this section) because the 90-day 
continuous service requirement is a rule for eligibility based on 
whether an individual is actively at work. However, the plan would not 
violate this paragraph (e)(2) or paragraph (b) of this section if, under 
the plan, an absence due to any health factor is not considered an 
absence for purposes of measuring 90 days of continuous service. (In 
addition, any eligibility provision that is time-based must comply with 
the requirements of PHS Act section 2708 and its implementing 
regulations.)

    (ii) Exception for the first day of work--(A) Notwithstanding the 
general rule in paragraph (e)(2)(i) of this section, a plan may 
establish a rule for eligibility that requires an individual to begin 
work for the employer sponsoring the plan (or, in the case of a 
multiemployer plan, to begin a job in covered employment) before 
coverage becomes effective, provided that such a rule for eligibility 
applies regardless of the reason for the absence.
    (B) The rules of this paragraph (e)(2)(ii) are illustrated by the 
following examples:

    Example 1. (i) Facts. Under the eligibility provision of a group 
health plan, coverage for new employees becomes effective on the first 
day that the employee reports to work. Individual H is scheduled to 
begin work on August 3. However, H is unable to begin work on that day 
because of illness. H begins working on August 4, and H's coverage is 
effective on August 4.
    (ii) Conclusion. In this Example 1, the plan provision does not 
violate this section. However, if coverage for individuals who do not 
report to work on the first day they were scheduled to work for a reason 
unrelated to a health factor (such as vacation or bereavement) becomes 
effective on the first day they were scheduled to work, then the plan 
would violate this section.
    Example 2. (i) Facts. Under a group health plan, coverage for new 
employees becomes effective on the first day of the month following the 
employee's first day of work, regardless of whether the employee is 
actively at work on the first day of the month. Individual J is 
scheduled to begin work on March 24. However, J is unable to begin work 
on March 24 because of illness. J begins working on April 7 and J's 
coverage is effective May 1.
    (ii) Conclusion. In this Example 2, the plan provision does not 
violate this section. However, as in Example 1, if coverage for 
individuals absent from work for reasons unrelated to a health factor 
became effective despite their absence, then the plan would violate this 
section.

    (3) Relationship to plan provisions defining similarly situated 
individuals--(i) Notwithstanding the rules of paragraphs (e)(1) and (2) 
of this section, a plan may establish rules for eligibility or set any 
individual's premium or contribution rate in accordance with the rules 
relating to similarly situated individuals in paragraph (d) of this 
section. Accordingly, a plan may distinguish in rules for eligibility 
under the

[[Page 504]]

plan between full-time and part-time employees, between permanent and 
temporary or seasonal employees, between current and former employees, 
and between employees currently performing services and employees no 
longer performing services for the employer, subject to paragraph (d) of 
this section. However, other Federal or State laws (including the COBRA 
continuation provisions and the Family and Medical Leave Act of 1993) 
may require an employee or the employee's dependents to be offered 
coverage and set limits on the premium or contribution rate even though 
the employee is not performing services.
    (ii) The rules of this paragraph (e)(3) are illustrated by the 
following examples:

    Example 1. (i) Facts. Under a group health plan, employees are 
eligible for coverage if they perform services for the employer for 30 
or more hours per week or if they are on paid leave (such as vacation, 
sick, or bereavement leave). Employees on unpaid leave are treated as a 
separate group of similarly situated individuals in accordance with the 
rules of paragraph (d) of this section.
    (ii) Conclusion. In this Example 1, the plan provisions do not 
violate this section. However, if the plan treated individuals 
performing services for the employer for 30 or more hours per week, 
individuals on vacation leave, and individuals on bereavement leave as a 
group of similarly situated individuals separate from individuals on 
sick leave, the plan would violate this paragraph (e) (and thus also 
would violate paragraph (b) of this section) because groups of similarly 
situated individuals cannot be established based on a health factor 
(including the taking of sick leave) under paragraph (d) of this 
section.
    Example 2. (i) Facts. To be eligible for coverage under a bona fide 
collectively bargained group health plan in the current calendar 
quarter, the plan requires an individual to have worked 250 hours in 
covered employment during the three-month period that ends one month 
before the beginning of the current calendar quarter. The distinction 
between employees working at least 250 hours and those working less than 
250 hours in the earlier three-month period is not directed at 
individual participants or beneficiaries based on any health factor of 
the participants or beneficiaries.
    (ii) Conclusion. In this Example 2, the plan provision does not 
violate this section because, under the rules for similarly situated 
individuals allowing full-time employees to be treated differently than 
part-time employees, employees who work at least 250 hours in a three-
month period can be treated differently than employees who fail to work 
250 hours in that period. The result would be the same if the plan 
permitted individuals to apply excess hours from previous periods to 
satisfy the requirement for the current quarter.
    Example 3. (i) Facts. Under a group health plan, coverage of an 
employee is terminated when the individual's employment is terminated, 
in accordance with the rules of paragraph (d) of this section. Employee 
B has been covered under the plan. B experiences a disabling illness 
that prevents B from working. B takes a leave of absence under the 
Family and Medical Leave Act of 1993. At the end of such leave, B 
terminates employment and consequently loses coverage under the plan. 
(This termination of coverage is without regard to whatever rights the 
employee (or members of the employee's family) may have for COBRA 
continuation.)
    (ii) Conclusion. In this Example 3, the plan provision terminating 
B's coverage upon B's termination of employment does not violate this 
section.
    Example 4. (i) Facts. Under a group health plan, coverage of an 
employee is terminated when the employee ceases to perform services for 
the employer sponsoring the plan, in accordance with the rules of 
paragraph (d) of this section. Employee C is laid off for three months. 
When the layoff begins, C's coverage under the plan is terminated. (This 
termination of coverage is without regard to whatever rights the 
employee (or members of the employee's family) may have for COBRA 
continuation coverage.)
    (ii) Conclusion. In this Example 4, the plan provision terminating 
C's coverage upon the cessation of C's performance of services does not 
violate this section.

    (f) Nondiscriminatory wellness programs--in general. A wellness 
program is a program of health promotion or disease prevention. 
Paragraphs (b)(2)(ii) and (c)(3) of this section provide exceptions to 
the general prohibitions against discrimination based on a health factor 
for plan provisions that vary benefits (including cost-sharing 
mechanisms) or the premium or contribution for similarly situated 
individuals in connection with a wellness program that satisfies the 
requirements of this paragraph (f).
    (1) Definitions. The definitions in this paragraph (f)(1) govern in 
applying the provisions of this paragraph (f).
    (i) Reward. Except where expressly provided otherwise, references in 
this section to an individual obtaining a reward include both obtaining 
a reward

[[Page 505]]

(such as a discount or rebate of a premium or contribution, a waiver of 
all or part of a cost-sharing mechanism, an additional benefit, or any 
financial or other incentive) and avoiding a penalty (such as the 
absence of a premium surcharge or other financial or nonfinancial 
disincentive). References in this section to a plan providing a reward 
include both providing a reward (such as a discount or rebate of a 
premium or contribution, a waiver of all or part of a cost-sharing 
mechanism, an additional benefit, or any financial or other incentive) 
and imposing a penalty (such as a surcharge or other financial or 
nonfinancial disincentive).
    (ii) Participatory wellness programs. If none of the conditions for 
obtaining a reward under a wellness program is based on an individual 
satisfying a standard that is related to a health factor (or if a 
wellness program does not provide a reward), the wellness program is a 
participatory wellness program. Examples of participatory wellness 
programs are:
    (A) A program that reimburses employees for all or part of the cost 
for membership in a fitness center.
    (B) A diagnostic testing program that provides a reward for 
participation in that program and does not base any part of the reward 
on outcomes.
    (C) A program that encourages preventive care through the waiver of 
the copayment or deductible requirement under a group health plan for 
the costs of, for example, prenatal care or well-baby visits. (Note 
that, with respect to non-grandfathered plans, Sec.  54.9815-2713T 
requires benefits for certain preventive health services without the 
imposition of cost sharing.)
    (D) A program that reimburses employees for the costs of 
participating, or that otherwise provides a reward for participating, in 
a smoking cessation program without regard to whether the employee quits 
smoking.
    (E) A program that provides a reward to employees for attending a 
monthly, no-cost health education seminar.
    (F) A program that provides a reward to employees who complete a 
health risk assessment regarding current health status, without any 
further action (educational or otherwise) required by the employee with 
regard to the health issues identified as part of the assessment. (See 
also Sec.  54.9802-3T for rules prohibiting collection of genetic 
information.)
    (iii) Health-contingent wellness programs. A health-contingent 
wellness program is a program that requires an individual to satisfy a 
standard related to a health factor to obtain a reward (or requires an 
individual to undertake more than a similarly situated individual based 
on a health factor in order to obtain the same reward). A health-
contingent wellness program may be an activity-only wellness program or 
an outcome-based wellness program.
    (iv) Activity-only wellness programs. An activity-only wellness 
program is a type of health-contingent wellness program that requires an 
individual to perform or complete an activity related to a health factor 
in order to obtain a reward but does not require the individual to 
attain or maintain a specific health outcome. Examples include walking, 
diet, or exercise programs, which some individuals may be unable to 
participate in or complete (or have difficulty participating in or 
completing) due to a health factor, such as severe asthma, pregnancy, or 
a recent surgery. See paragraph (f)(3) of this section for requirements 
applicable to activity-only wellness programs.
    (v) Outcome-based wellness programs. An outcome-based wellness 
program is a type of health-contingent wellness program that requires an 
individual to attain or maintain a specific health outcome (such as not 
smoking or attaining certain results on biometric screenings) in order 
to obtain a reward. To comply with the rules of this paragraph (f), an 
outcome-based wellness program typically has two tiers. That is, for 
individuals who do not attain or maintain the specific health outcome, 
compliance with an educational program or an activity may be offered as 
an alternative to achieve the same reward. This alternative pathway, 
however, does not mean that the overall program, which has an outcome-
based component, is not an outcome-based wellness program. That is, if a 
measurement, test, or screening is used as

[[Page 506]]

part of an initial standard and individuals who meet the standard are 
granted the reward, the program is considered an outcome-based wellness 
program. For example, if a wellness program tests individuals for 
specified medical conditions or risk factors (including biometric 
screening such as testing for high cholesterol, high blood pressure, 
abnormal body mass index, or high glucose level) and provides a reward 
to individuals identified as within a normal or healthy range for these 
medical conditions or risk factors, while requiring individuals who are 
identified as outside the normal or healthy range (or at risk) to take 
additional steps (such as meeting with a health coach, taking a health 
or fitness course, adhering to a health improvement action plan, 
complying with a walking or exercise program, or complying with a health 
care provider's plan of care) to obtain the same reward, the program is 
an outcome-based wellness program. See paragraph (f)(4) of this section 
for requirements applicable to outcome-based wellness programs.
    (2) Requirement for participatory wellness programs. A participatory 
wellness program, as described in paragraph (f)(1)(ii) of this section, 
does not violate the provisions of this section only if participation in 
the program is made available to all similarly situated individuals, 
regardless of health status.
    (3) Requirements for activity-only wellness programs. A health-
contingent wellness program that is an activity-only wellness program, 
as described in paragraph (f)(1)(iv) of this section, does not violate 
the provisions of this section only if all of the following requirements 
are satisfied:
    (i) Frequency of opportunity to qualify. The program must give 
individuals eligible for the program the opportunity to qualify for the 
reward under the program at least once per year.
    (ii) Size of reward. The reward for the activity-only wellness 
program, together with the reward for other health-contingent wellness 
programs with respect to the plan, must not exceed the applicable 
percentage (as defined in paragraph (f)(5) of this section) of the total 
cost of employee-only coverage under the plan. However, if, in addition 
to employees, any class of dependents (such as spouses, or spouses and 
dependent children) may participate in the wellness program, the reward 
must not exceed the applicable percentage of the total cost of the 
coverage in which an employee and any dependents are enrolled. For 
purposes of this paragraph (f)(3)(ii), the cost of coverage is 
determined based on the total amount of employer and employee 
contributions towards the cost of coverage for the benefit package under 
which the employee is (or the employee and any dependents are) receiving 
coverage.
    (iii) Reasonable design. The program must be reasonably designed to 
promote health or prevent disease. A program satisfies this standard if 
it has a reasonable chance of improving the health of, or preventing 
disease in, participating individuals, and it is not overly burdensome, 
is not a subterfuge for discriminating based on a health factor, and is 
not highly suspect in the method chosen to promote health or prevent 
disease. This determination is based on all the relevant facts and 
circumstances.
    (iv) Uniform availability and reasonable alternative standards. The 
full reward under the activity-only wellness program must be available 
to all similarly situated individuals.
    (A) Under this paragraph (f)(3)(iv), a reward under an activity-only 
wellness program is not available to all similarly situated individuals 
for a period unless the program meets both of the following 
requirements:
    (1) The program allows a reasonable alternative standard (or waiver 
of the otherwise applicable standard) for obtaining the reward for any 
individual for whom, for that period, it is unreasonably difficult due 
to a medical condition to satisfy the otherwise applicable standard; and
    (2) The program allows a reasonable alternative standard (or waiver 
of the otherwise applicable standard) for obtaining the reward for any 
individual for whom, for that period, it is medically inadvisable to 
attempt to satisfy the otherwise applicable standard.

[[Page 507]]

    (B) While plans and issuers are not required to determine a 
particular reasonable alternative standard in advance of an individual's 
request for one, if an individual is described in either paragraph 
(f)(3)(iv)(A)(1) or (2) of this section, a reasonable alternative 
standard must be furnished by the plan or issuer upon the individual's 
request or the condition for obtaining the reward must be waived.
    (C) All the facts and circumstances are taken into account in 
determining whether a plan or issuer has furnished a reasonable 
alternative standard, including but not limited to the following:
    (1) If the reasonable alternative standard is completion of an 
educational program, the plan or issuer must make the educational 
program available or assist the employee in finding such a program 
(instead of requiring an individual to find such a program unassisted), 
and may not require an individual to pay for the cost of the program.
    (2) The time commitment required must be reasonable (for example, 
requiring attendance nightly at a one-hour class would be unreasonable).
    (3) If the reasonable alternative standard is a diet program, the 
plan or issuer is not required to pay for the cost of food but must pay 
any membership or participation fee.
    (4) If an individual's personal physician states that a plan 
standard (including, if applicable, the recommendations of the plan's 
medical professional) is not medically appropriate for that individual, 
the plan or issuer must provide a reasonable alternative standard that 
accommodates the recommendations of the individual's personal physician 
with regard to medical appropriateness. Plans and issuers may impose 
standard cost sharing under the plan or coverage for medical items and 
services furnished pursuant to the physician's recommendations.
    (D) To the extent that a reasonable alternative standard under an 
activity-only wellness program is, itself, an activity-only wellness 
program, it must comply with the requirements of this paragraph (f)(3) 
in the same manner as if it were an initial program standard. (Thus, for 
example, if a plan or issuer provides a walking program as a reasonable 
alternative standard to a running program, individuals for whom it is 
unreasonably difficult due to a medical condition to complete the 
walking program (or for whom it is medically inadvisable to attempt to 
complete the walking program) must be provided a reasonable alternative 
standard to the walking program.) To the extent that a reasonable 
alternative standard under an activity-only wellness program is, itself, 
an outcome-based wellness program, it must comply with the requirements 
of paragraph (f)(4) of this section, including paragraph (f)(4)(iv)(D).
    (E) If reasonable under the circumstances, a plan or issuer may seek 
verification, such as a statement from an individual's personal 
physician, that a health factor makes it unreasonably difficult for the 
individual to satisfy, or medically inadvisable for the individual to 
attempt to satisfy, the otherwise applicable standard of an activity-
only wellness program. Plans and issuers may seek verification with 
respect to requests for a reasonable alternative standard for which it 
is reasonable to determine that medical judgment is required to evaluate 
the validity of the request.
    (v) Notice of availability of reasonable alternative standard. The 
plan or issuer must disclose in all plan materials describing the terms 
of an activity-only wellness program the availability of a reasonable 
alternative standard to qualify for the reward (and, if applicable, the 
possibility of waiver of the otherwise applicable standard), including 
contact information for obtaining a reasonable alternative standard and 
a statement that recommendations of an individual's personal physician 
will be accommodated. If plan materials merely mention that such a 
program is available, without describing its terms, this disclosure is 
not required. Sample language is provided in paragraph (f)(6) of this 
section, as well as in certain examples of this section.
    (vi) Example. The provisions of this paragraph (f)(3) are 
illustrated by the following example:

    Example. (i) Facts. A group health plan provides a reward to 
individuals who participate in a reasonable specified walking program. 
If it is unreasonably difficult due to a medical

[[Page 508]]

condition for an individual to participate (or if it is medically 
inadvisable for an individual to attempt to participate), the plan will 
waive the walking program requirement and provide the reward. All 
materials describing the terms of the walking program disclose the 
availability of the waiver.
    (ii) Conclusion. In this Example, the program satisfies the 
requirements of paragraph (f)(3)(iii) of this section because the 
walking program is reasonably designed to promote health and prevent 
disease. The program satisfies the requirements of paragraph (f)(3)(iv) 
of this section because the reward under the program is available to all 
similarly situated individuals. It accommodates individuals for whom it 
is unreasonably difficult to participate in the walking program due to a 
medical condition (or for whom it would be medically inadvisable to 
attempt to participate) by providing them with the reward even if they 
do not participate in the walking program (that is, by waiving the 
condition). The plan also complies with the disclosure requirement of 
paragraph (f)(3)(v) of this section. Thus, the plan satisfies paragraphs 
(f)(3)(iii), (iv), and (v) of this section.

    (4) Requirements for outcome-based wellness programs. A health-
contingent wellness program that is an outcome-based wellness program, 
as described in paragraph (f)(1)(v) of this section, does not violate 
the provisions of this section only if all of the following requirements 
are satisfied:
    (i) Frequency of opportunity to qualify. The program must give 
individuals eligible for the program the opportunity to qualify for the 
reward under the program at least once per year.
    (ii) Size of reward. The reward for the outcome-based wellness 
program, together with the reward for other health-contingent wellness 
programs with respect to the plan, must not exceed the applicable 
percentage (as defined in paragraph (f)(5) of this section) of the total 
cost of employee-only coverage under the plan. However, if, in addition 
to employees, any class of dependents (such as spouses, or spouses and 
dependent children) may participate in the wellness program, the reward 
must not exceed the applicable percentage of the total cost of the 
coverage in which an employee and any dependents are enrolled. For 
purposes of this paragraph (f)(4)(ii), the cost of coverage is 
determined based on the total amount of employer and employee 
contributions towards the cost of coverage for the benefit package under 
which the employee is (or the employee and any dependents are) receiving 
coverage.
    (iii) Reasonable design. The program must be reasonably designed to 
promote health or prevent disease. A program satisfies this standard if 
it has a reasonable chance of improving the health of, or preventing 
disease in, participating individuals, and it is not overly burdensome, 
is not a subterfuge for discriminating based on a health factor, and is 
not highly suspect in the method chosen to promote health or prevent 
disease. This determination is based on all the relevant facts and 
circumstances. To ensure that an outcome-based wellness program is 
reasonably designed to improve health and does not act as a subterfuge 
for underwriting or reducing benefits based on a health factor, a 
reasonable alternative standard to qualify for the reward must be 
provided to any individual who does not meet the initial standard based 
on a measurement, test, or screening that is related to a health factor, 
as explained in paragraph (f)(4)(iv) of this section.
    (iv) Uniform availability and reasonable alternative standards. The 
full reward under the outcome-based wellness program must be available 
to all similarly situated individuals.
    (A) Under this paragraph (f)(4)(iv), a reward under an outcome-based 
wellness program is not available to all similarly situated individuals 
for a period unless the program allows a reasonable alternative standard 
(or waiver of the otherwise applicable standard) for obtaining the 
reward for any individual who does not meet the initial standard based 
on the measurement, test, or screening, as described in this paragraph 
(f)(4)(iv).
    (B) While plans and issuers are not required to determine a 
particular reasonable alternative standard in advance of an individual's 
request for one, if an individual is described in paragraph 
(f)(4)(iv)(A) of this section, a reasonable alternative standard must be 
furnished by the plan or issuer upon the individual's request or the 
condition for obtaining the reward must be waived.
    (C) All the facts and circumstances are taken into account in 
determining

[[Page 509]]

whether a plan or issuer has furnished a reasonable alternative 
standard, including but not limited to the following:
    (1) If the reasonable alternative standard is completion of an 
educational program, the plan or issuer must make the educational 
program available or assist the employee in finding such a program 
(instead of requiring an individual to find such a program unassisted), 
and may not require an individual to pay for the cost of the program.
    (2) The time commitment required must be reasonable (for example, 
requiring attendance nightly at a one-hour class would be unreasonable).
    (3) If the reasonable alternative standard is a diet program, the 
plan or issuer is not required to pay for the cost of food but must pay 
any membership or participation fee.
    (4) If an individual's personal physician states that a plan 
standard (including, if applicable, the recommendations of the plan's 
medical professional) is not medically appropriate for that individual, 
the plan or issuer must provide a reasonable alternative standard that 
accommodates the recommendations of the individual's personal physician 
with regard to medical appropriateness. Plans and issuers may impose 
standard cost sharing under the plan or coverage for medical items and 
services furnished pursuant to the physician's recommendations.
    (D) To the extent that a reasonable alternative standard under an 
outcome-based wellness program is, itself, an activity-only wellness 
program, it must comply with the requirements of paragraph (f)(3) of 
this section in the same manner as if it were an initial program 
standard. To the extent that a reasonable alternative standard under an 
outcome-based wellness program is, itself, another outcome-based 
wellness program, it must comply with the requirements of this paragraph 
(f)(4), subject to the following special rules:
    (1) The reasonable alternative standard cannot be a requirement to 
meet a different level of the same standard without additional time to 
comply that takes into account the individual's circumstances. For 
example, if the initial standard is to achieve a BMI less than 30, the 
reasonable alternative standard cannot be to achieve a BMI less than 31 
on that same date. However, if the initial standard is to achieve a BMI 
less than 30, a reasonable alternative standard for the individual could 
be to reduce the individual's BMI by a small amount or small percentage, 
over a realistic period of time, such as within a year.
    (2) An individual must be given the opportunity to comply with the 
recommendations of the individual's personal physician as a second 
reasonable alternative standard to meeting the reasonable alternative 
standard defined by the plan or issuer, but only if the physician joins 
in the request. The individual can make a request to involve a personal 
physician's recommendations at any time and the personal physician can 
adjust the physician's recommendations at any time, consistent with 
medical appropriateness.
    (E) It is not reasonable to seek verification, such as a statement 
from an individual's personal physician, under an outcome-based wellness 
program that a health factor makes it unreasonably difficult for the 
individual to satisfy, or medically inadvisable for the individual to 
attempt to satisfy, the otherwise applicable standard as a condition of 
providing a reasonable alternative to the initial standard. However, if 
a plan or issuer provides an alternative standard to the otherwise 
applicable measurement, test, or screening that involves an activity 
that is related to a health factor, then the rules of paragraph (f)(3) 
of this section for activity-only wellness programs apply to that 
component of the wellness program and the plan or issuer may, if 
reasonable under the circumstances, seek verification that it is 
unreasonably difficult due to a medical condition for an individual to 
perform or complete the activity (or it is medically inadvisable to 
attempt to perform or complete the activity). (For example, if an 
outcome-based wellness program requires participants to maintain a 
certain healthy weight and provides a diet and exercise program for 
individuals who do not meet the targeted weight, a plan or issuer may 
seek verification, as described in paragraph

[[Page 510]]

(f)(3)(iv)(D) of this section, if reasonable under the circumstances, 
that a second reasonable alternative standard is needed for certain 
individuals because, for those individuals, it would be unreasonably 
difficult due to a medical condition to comply, or medically inadvisable 
to attempt to comply, with the diet and exercise program, due to a 
medical condition.)
    (v) Notice of availability of reasonable alternative standard. The 
plan or issuer must disclose in all plan materials describing the terms 
of an outcome-based wellness program, and in any disclosure that an 
individual did not satisfy an initial outcome-based standard, the 
availability of a reasonable alternative standard to qualify for the 
reward (and, if applicable, the possibility of waiver of the otherwise 
applicable standard), including contact information for obtaining a 
reasonable alternative standard and a statement that recommendations of 
an individual's personal physician will be accommodated. If plan 
materials merely mention that such a program is available, without 
describing its terms, this disclosure is not required. Sample language 
is provided in paragraph (f)(6) of this section, as well as in certain 
examples of this section.
    (vi) Examples. The rules of this paragraph (f)(4) are illustrated by 
the following examples:

    Example 1--Cholesterol screening with reasonable alternative 
standard to work with personal physician. (i) Facts. A group health plan 
offers a reward to participants who achieve a count under 200 on a total 
cholesterol test. If a participant does not achieve the targeted 
cholesterol count, the plan allows the participant to develop an 
alternative cholesterol action plan in conjunction with the 
participant's personal physician that may include recommendations for 
medication and additional screening. The plan allows the physician to 
modify the standards, as medically necessary, over the year. (For 
example, if a participant develops asthma or depression, requires 
surgery and convalescence, or some other medical condition or 
consideration makes completion of the original action plan inadvisable 
or unreasonably difficult, the physician may modify the original action 
plan.) All plan materials describing the terms of the program include 
the following statement: ``Your health plan wants to help you take 
charge of your health. Rewards are available to all employees who 
participate in our Cholesterol Awareness Wellness Program. If your total 
cholesterol count is under 200, you will receive the reward. If not, you 
will still have an opportunity to qualify for the reward. We will work 
with you and your doctor to find a Health Smart program that is right 
for you.'' In addition, when any individual participant receives 
notification that his or her cholesterol count is 200 or higher, the 
notification includes the following statement: ``Your plan offers a 
Health Smart program under which we will work with you and your doctor 
to try to lower your cholesterol. If you complete this program, you will 
qualify for a reward. Please contact us at [contact information] to get 
started.''
    (ii) Conclusion. In this Example 1, the program is an outcome-based 
wellness program because the initial standard requires an individual to 
attain or maintain a specific health outcome (a certain cholesterol 
level) to obtain a reward. The program satisfies the requirements of 
paragraph (f)(4)(iii) of this section because the cholesterol program is 
reasonably designed to promote health and prevent disease. The program 
satisfies the requirements of paragraph (f)(4)(iv) of this section 
because it makes available to all participants who do not meet the 
cholesterol standard a reasonable alternative standard to qualify for 
the reward. Lastly, the plan also discloses in all materials describing 
the terms of the program and in any disclosure that an individual did 
not satisfy the initial outcome-based standard the availability of a 
reasonable alternative standard (including contact information and the 
individual's ability to involve his or her personal physician), as 
required by paragraph (f)(4)(v) of this section. Thus, the program 
satisfies the requirements of paragraphs (f)(4)(iii), (iv), and (v) of 
this section.
    Example 2--Cholesterol screening with plan alternative and no 
opportunity for personal physician involvement. (i) Facts. Same facts as 
Example 1, except that the wellness program's physician or nurse 
practitioner (rather than the individual's personal physician) 
determines the alternative cholesterol action plan. The plan does not 
provide an opportunity for a participant's personal physician to modify 
the action plan if it is not medically appropriate for that individual.
    (ii) Conclusion. In this Example 2, the wellness program does not 
satisfy the requirements of paragraph (f)(4)(iii) of this section 
because the program does not accommodate the recommendations of the 
participant's personal physician with regard to medical appropriateness, 
as required under paragraph (f)(4)(iv)(C)(3) of this section. Thus, the 
program is not reasonably designed under paragraph (f)(4)(iii) of this 
section and is not available to all similarly situated individuals under 
paragraph (f)(4)(iv) of this section. The notice also does not provide 
all the content required under paragraph (f)(4)(v) of this section.

[[Page 511]]

    Example 3--Cholesterol screening with plan alternative that can be 
modified by personal physician. (i) Facts. Same facts as Example 2, 
except that if a participant's personal physician disagrees with any 
part of the action plan, the personal physician may modify the action 
plan at any time, and the plan discloses this to participants.
    (ii) Conclusion. In this Example 3, the wellness program satisfies 
the requirements of paragraph (f)(4)(iii) of this section because the 
participant's personal physician may modify the action plan determined 
by the wellness program's physician or nurse practitioner at any time if 
the physician states that the recommendations are not medically 
appropriate, as required under paragraph (f)(4)(iv)(C)(3) of this 
section. Thus, the program is reasonably designed under paragraph 
(f)(4)(iii) of this section and is available to all similarly situated 
individuals under paragraph (f)(4)(iv) of this section. The notice, 
which includes a statement that recommendations of an individual's 
personal physician will be accommodated, also complies with paragraph 
(f)(4)(v) of this section.
    Example 4--BMI screening with walking program alternative. (i) 
Facts. A group health plan will provide a reward to participants who 
have a body mass index (BMI) that is 26 or lower, determined shortly 
before the beginning of the year. Any participant who does not meet the 
target BMI is given the same discount if the participant complies with 
an exercise program that consists of walking 150 minutes a week. Any 
participant for whom it is unreasonably difficult due to a medical 
condition to comply with this walking program (and any participant for 
whom it is medically inadvisable to attempt to comply with the walking 
program) during the year is given the same discount if the participant 
satisfies an alternative standard that is reasonable taking into 
consideration the participant's medical situation, is not unreasonably 
burdensome or impractical to comply with, and is otherwise reasonably 
designed based on all the relevant facts and circumstances. All plan 
materials describing the terms of the wellness program include the 
following statement: ``Fitness is Easy! Start Walking! Your health plan 
cares about your health. If you are considered overweight because you 
have a BMI of over 26, our Start Walking program will help you lose 
weight and feel better. We will help you enroll. (* *If your doctor says 
that walking isn't right for you, that's okay too. We will work with you 
(and, if you wish, your own doctor) to develop a wellness program that 
is.)'' Participant E is unable to achieve a BMI that is 26 or lower 
within the plan's timeframe and receives notification that complies with 
paragraph (f)(4)(v) of this section. Nevertheless, it is unreasonably 
difficult due to a medical condition for E to comply with the walking 
program. E proposes a program based on the recommendations of E's 
physician. The plan agrees to make the same discount available to E that 
is available to other participants in the BMI program or the alternative 
walking program, but only if E actually follows the physician's 
recommendations.
    (ii) Conclusion. In this Example 4, the program is an outcome-based 
wellness program because the initial standard requires an individual to 
attain or maintain a specific health outcome (a certain BMI level) to 
obtain a reward. The program satisfies the requirements of paragraph 
(f)(4)(iii) of this section because it is reasonably designed to promote 
health and prevent disease. The program also satisfies the requirements 
of paragraph (f)(4)(iv) of this section because it makes available to 
all individuals who do not satisfy the BMI standard a reasonable 
alternative standard to qualify for the reward (in this case, a walking 
program that is not unreasonably burdensome or impractical for 
individuals to comply with and that is otherwise reasonably designed 
based on all the relevant facts and circumstances). In addition, the 
walking program is, itself, an activity-only standard and the plan 
complies with the requirements of paragraph (f)(3) of this section 
(including the requirement of paragraph (f)(3)(iv) that, if there are 
individuals for whom it is unreasonably difficult due to a medical 
condition to comply, or for whom it is medically inadvisable to attempt 
to comply, with the walking program, the plan provide a reasonable 
alternative to those individuals). Moreover, the plan satisfies the 
requirements of paragraph (f)(4)(v) of this section because it 
discloses, in all materials describing the terms of the program and in 
any disclosure that an individual did not satisfy the initial outcome-
based standard, the availability of a reasonable alternative standard 
(including contact information and the individual's option to involve 
his or her personal physician) to qualify for the reward or the 
possibility of waiver of the otherwise applicable standard. Thus, the 
program satisfies the requirements of paragraphs (f)(4)(iii), (iv), and 
(v) of this section.
    Example 5--BMI screening with alternatives available to either lower 
BMI or meet personal physician's recommendations. (i) Facts. Same facts 
as Example 4 except that, with respect to any participant who does not 
meet the target BMI, instead of a walking program, the participant is 
expected to reduce BMI by one point. At any point during the year upon 
request, any individual can obtain a second reasonable alternative 
standard, which is compliance with the recommendations of the 
participant's personal physician regarding weight, diet, and exercise as 
set forth in a treatment plan that the physician recommends or to which 
the physician agrees. The participant's personal physician is permitted 
to change or adjust the treatment

[[Page 512]]

plan at any time and the option of following the participant's personal 
physician's recommendations is clearly disclosed.
    (ii) Conclusion. In this Example 5, the reasonable alternative 
standard to qualify for the reward (the alternative BMI standard 
requiring a one-point reduction) does not make the program unreasonable 
under paragraph (f)(4)(iii) or (iv) of this section because the program 
complies with paragraph (f)(4)(iv)(C)(4) of this section by allowing a 
second reasonable alternative standard to qualify for the reward 
(compliance with the recommendations of the participant's personal 
physician, which can be changed or adjusted at any time). Accordingly, 
the program continues to satisfy the applicable requirements of 
paragraph (f) of this section.
    Example 6--Tobacco use surcharge with smoking cessation program 
alternative. (i) Facts. In conjunction with an annual open enrollment 
period, a group health plan provides a premium differential based on 
tobacco use, determined using a health risk assessment. The following 
statement is included in all plan materials describing the tobacco 
premium differential: ``Stop smoking today! We can help! If you are a 
smoker, we offer a smoking cessation program. If you complete the 
program, you can avoid this surcharge.'' The plan accommodates 
participants who smoke by facilitating their enrollment in a smoking 
cessation program that requires participation at a time and place that 
are not unreasonably burdensome or impractical for participants, and 
that is otherwise reasonably designed based on all the relevant facts 
and circumstances, and discloses contact information and the 
individual's option to involve his or her personal physician. The plan 
pays for the cost of participation in the smoking cessation program. Any 
participant can avoid the surcharge for the plan year by participating 
in the program, regardless of whether the participant stops smoking, but 
the plan can require a participant who wants to avoid the surcharge in a 
subsequent year to complete the smoking cessation program again.
    (ii) Conclusion. In this Example 6, the premium differential 
satisfies the requirements of paragraphs (f)(4)(iii), (iv), and (v). The 
program is an outcome-based wellness program because the initial 
standard for obtaining a reward is dependent on the results of a health 
risk assessment (a measurement, test, or screening). The program is 
reasonably designed under paragraph (f)(4)(iii) because the plan 
provides a reasonable alternative standard (as required under paragraph 
(f)(4)(iv) of this section) to qualify for the reward to all tobacco 
users (a smoking cessation program). The plan discloses, in all 
materials describing the terms of the program, the availability of the 
reasonable alternative standard (including contact information and the 
individual's option to involve his or her personal physician). Thus, the 
program satisfies the requirements of paragraphs (f)(4)(iii), (iv), and 
(v) of this section.
    Example 7--Tobacco use surcharge with alternative program requiring 
actual cessation. (i) Facts. Same facts as Example 6, except the plan 
does not provide participant F with the reward in subsequent years 
unless F actually stops smoking after participating in the tobacco 
cessation program.
    (ii) Conclusion. In this Example 7, the program is not reasonably 
designed under paragraph (f)(4)(iii) of this section and does not 
provide a reasonable alternative standard as required under paragraph 
(f)(4)(iv) of this section. The plan cannot cease to provide a 
reasonable alternative standard merely because the participant did not 
stop smoking after participating in a smoking cessation program. The 
plan must continue to offer a reasonable alternative standard whether it 
is the same or different (such as a new recommendation from F's personal 
physician or a new nicotine replacement therapy).
    Example 8--Tobacco use surcharge with smoking cessation program 
alternative that is not reasonable. (i) Facts. Same facts as Example 6, 
except the plan does not facilitate participant F's enrollment in a 
smoking cessation program. Instead the plan advises F to find a program, 
pay for it, and provide a certificate of completion to the plan.
    (ii) Conclusion. In this Example 8, the requirement for F to find 
and pay for F's own smoking cessation program means that the alternative 
program is not reasonable. Accordingly, the plan has not offered a 
reasonable alternative standard that complies with paragraphs 
(f)(4)(iii) and (iv) of this section and the program fails to satisfy 
the requirements of paragraph (f) of this section.

    (5) Applicable percentage--(i) For purposes of this paragraph (f), 
the applicable percentage is 30 percent, except that the applicable 
percentage is increased by an additional 20 percentage points (to 50 
percent) to the extent that the additional percentage is in connection 
with a program designed to prevent or reduce tobacco use.
    (ii) The provisions of this paragraph (f)(5) are illustrated by the 
following examples:

    Example 1. (i) Facts. An employer sponsors a group health plan. The 
annual premium for employee-only coverage is $6,000 (of which the 
employer pays $4,500 per year and the employee pays $1,500 per year). 
The plan offers employees a health-contingent wellness program with 
several components, focused on exercise, blood sugar, weight, 
cholesterol, and blood pressure. The reward for compliance is an annual 
premium rebate of $600.

[[Page 513]]

    (ii) Conclusion. In this Example 1, the reward for the wellness 
program, $600, does not exceed the applicable percentage of 30 percent 
of the total annual cost of employee-only coverage, $1,800. ($6,000 x 
30% = $1,800.)
    Example 2. (i) Facts. Same facts as Example 1, except the wellness 
program is exclusively a tobacco prevention program. Employees who have 
used tobacco in the last 12 months and who are not enrolled in the 
plan's tobacco cessation program are charged a $1,000 premium surcharge 
(in addition to their employee contribution towards the coverage). 
(Those who participate in the plan's tobacco cessation program are not 
assessed the $1,000 surcharge.)
    (ii) Conclusion. In this Example 2, the reward for the wellness 
program (absence of a $1,000 surcharge), does not exceed the applicable 
percentage of 50 percent of the total annual cost of employee-only 
coverage, $3,000. ($6,000 x 50% = $3,000.)
    Example 3. (i) Facts. Same facts as Example 1, except that, in 
addition to the $600 reward for compliance with the health-contingent 
wellness program, the plan also imposes an additional $2,000 tobacco 
premium surcharge on employees who have used tobacco in the last 12 
months and who are not enrolled in the plan's tobacco cessation program. 
(Those who participate in the plan's tobacco cessation program are not 
assessed the $2,000 surcharge.)
    (ii) Conclusion. In this Example 3, the total of all rewards 
(including absence of a surcharge for participating in the tobacco 
program) is $2,600 ($600 + $2,000 = $2,600), which does not exceed the 
applicable percentage of 50 percent of the total annual cost of 
employee-only coverage ($3,000); and, tested separately, the $600 reward 
for the wellness program unrelated to tobacco use does not exceed the 
applicable percentage of 30 percent of the total annual cost of 
employee-only coverage ($1,800).
    Example 4. (i) Facts. An employer sponsors a group health plan. The 
total annual premium for employee-only coverage (including both employer 
and employee contributions towards the coverage) is $5,000. The plan 
provides a $250 reward to employees who complete a health risk 
assessment, without regard to the health issues identified as part of 
the assessment. The plan also offers a Healthy Heart program, which is a 
health-contingent wellness program, with an opportunity to earn a $1,500 
reward.
    (ii) Conclusion. In this Example 4, even though the total reward for 
all wellness programs under the plan is $1,750 ($250 + $1,500 = $1,750, 
which exceeds the applicable percentage of 30 percent of the cost of the 
annual premium for employee-only coverage ($5,000 x 30% = $1,500)), only 
the reward offered for compliance with the health-contingent wellness 
program ($1,500) is taken into account in determining whether the rules 
of this paragraph (f)(5) are met. (The $250 reward is offered in 
connection with a participatory wellness program and therefore is not 
taken into account.) Accordingly, the health-contingent wellness program 
offers a reward that does not exceed the applicable percentage of 30 
percent of the total annual cost of employee-only coverage.

    (6) Sample language. The following language, or substantially 
similar language, can be used to satisfy the notice requirement of 
paragraphs (f)(3)(v) or (f)(4)(v) of this section: ``Your health plan is 
committed to helping you achieve your best health. Rewards for 
participating in a wellness program are available to all employees. If 
you think you might be unable to meet a standard for a reward under this 
wellness program, you might qualify for an opportunity to earn the same 
reward by different means. Contact us at [insert contact information] 
and we will work with you (and, if you wish, with your doctor) to find a 
wellness program with the same reward that is right for you in light of 
your health status.''
    (g) More favorable treatment of individuals with adverse health 
factors permitted--(1) In rules for eligibility. (i) Nothing in this 
section prevents a group health plan from establishing more favorable 
rules for eligibility (described in paragraph (b)(1) of this section) 
for individuals with an adverse health factor, such as disability, than 
for individuals without the adverse health factor. Moreover, nothing in 
this section prevents a plan from charging a higher premium or 
contribution with respect to individuals with an adverse health factor 
if they would not be eligible for the coverage were it not for the 
adverse health factor. (However, other laws, including State insurance 
laws, may set or limit premium rates; these laws are not affected by 
this section.)
    (ii) The rules of this paragraph (g)(1) are illustrated by the 
following examples:

    Example 1. (i) Facts. An employer sponsors a group health plan that 
generally is available to employees, spouses of employees, and dependent 
children until age 26. However, dependent children who are disabled are 
eligible for coverage beyond age 26.
    (ii) Conclusion. In this Example 1, the plan provision allowing 
coverage for disabled dependent children beyond age 26 satisfies this

[[Page 514]]

paragraph (g)(1) (and thus does not violate this section).
    Example 2. (i) Facts. An employer sponsors a group health plan, 
which is generally available to employees (and members of the employee's 
family) until the last day of the month in which the employee ceases to 
perform services for the employer. The plan generally charges employees 
$50 per month for employee-only coverage and $125 per month for family 
coverage. However, an employee who ceases to perform services for the 
employer by reason of disability may remain covered under the plan until 
the last day of the month that is 12 months after the month in which the 
employee ceased to perform services for the employer. During this 
extended period of coverage, the plan charges the employee $100 per 
month for employee-only coverage and $250 per month for family coverage. 
(This extended period of coverage is without regard to whatever rights 
the employee (or members of the employee's family) may have for COBRA 
continuation coverage.)
    (ii) Conclusion. In this Example 2, the plan provision allowing 
extended coverage for disabled employees and their families satisfies 
this paragraph (g)(1) (and thus does not violate this section). In 
addition, the plan is permitted, under this paragraph (g)(1), to charge 
the disabled employees a higher premium during the extended period of 
coverage.
    Example 3. (i) Facts. To comply with the requirements of a COBRA 
continuation provision, a group health plan generally makes COBRA 
continuation coverage available for a maximum period of 18 months in 
connection with a termination of employment but makes the coverage 
available for a maximum period of 29 months to certain disabled 
individuals and certain members of the disabled individual's family. 
Although the plan generally requires payment of 102 percent of the 
applicable premium for the first 18 months of COBRA continuation 
coverage, the plan requires payment of 150 percent of the applicable 
premium for the disabled individual's COBRA continuation coverage during 
the disability extension if the disabled individual would not be 
entitled to COBRA continuation coverage but for the disability.
    (ii) Conclusion. In this Example 3, the plan provision allowing 
extended COBRA continuation coverage for disabled individuals satisfies 
this paragraph (g)(1) (and thus does not violate this section). In 
addition, the plan is permitted, under this paragraph (g)(1), to charge 
the disabled individuals a higher premium for the extended coverage if 
the individuals would not be eligible for COBRA continuation coverage 
were it not for the disability. (Similarly, if the plan provided an 
extended period of coverage for disabled individuals pursuant to State 
law or plan provision rather than pursuant to a COBRA continuation 
coverage provision, the plan could likewise charge the disabled 
individuals a higher premium for the extended coverage.)

    (2) In premiums or contributions--(i) Nothing in this section 
prevents a group health plan from charging individuals a premium or 
contribution that is less than the premium (or contribution) for 
similarly situated individuals if the lower charge is based on an 
adverse health factor, such as disability.
    (ii) The rules of this paragraph (g)(2) are illustrated by the 
following example:

    Example. (i) Facts. Under a group health plan, employees are 
generally required to pay $50 per month for employee-only coverage and 
$125 per month for family coverage under the plan. However, employees 
who are disabled receive coverage (whether employee-only or family 
coverage) under the plan free of charge.
    (ii) Conclusion. In this Example, the plan provision waiving premium 
payment for disabled employees is permitted under this paragraph (g)(2) 
(and thus does not violate this section).

    (h) No effect on other laws. Compliance with this section is not 
determinative of compliance with any provision of ERISA (including the 
COBRA continuation provisions) or any other State or Federal law, such 
as the Americans with Disabilities Act. Therefore, although the rules of 
this section would not prohibit a plan from treating one group of 
similarly situated individuals differently from another (such as 
providing different benefit packages to current and former employees), 
other Federal or State laws may require that two separate groups of 
similarly situated individuals be treated the same for certain purposes 
(such as making the same benefit package available to COBRA qualified 
beneficiaries as is made available to active employees). In addition, 
although this section generally does not impose new disclosure 
obligations on plans, this section does not affect any other laws, 
including those that require accurate disclosures and prohibit 
intentional misrepresentation.

[[Page 515]]

    (i) Applicability dates. This section applies for plan years 
beginning on or after July 1, 2007.

[T.D. 9298, 71 FR 75030, Dec. 13, 2006; 72 FR 7929, Feb. 22, 2007, as 
amended by T.D. 9464, 74 FR 51678, Oct. 7, 2009; T.D. 9620, 78 FR 33176, 
June 3, 2013; T.D. 9656, 79 FR 10305, Feb. 24, 2014]



Sec.  54.9802-2  Special rules for certain church plans.

    (a) Exception for certain church plans--(1) Church plans in general. 
A church plan described in paragraph (b) of this section is not treated 
as failing to meet the requirements of section 9802 or Sec.  54.9802-1 
solely because the plan requires evidence of good health for coverage of 
individuals under plan provisions described in paragraph (b)(2) or (3) 
of this section.
    (2) Health insurance issuers. See sections 2702 and 2721(b)(1)(B) of 
the Public Health Service Act (42 U.S.C. 300gg-2 and 300gg-21(b)(1)(B)) 
and 45 CFR 146.121, which require health insurance issuers providing 
health insurance coverage under a church plan that is a group health 
plan to comply with nondiscrimination requirements similar to those that 
church plans are required to comply with under section 9802 and Sec.  
54.9802-1 except that those nondiscrimination requirements do not 
include an exception for health insurance issuers comparable to the 
exception for church plans under section 9802(c) and this section.
    (b) Church plans to which this section applies--(1) Church plans 
with certain coverage provisions in effect on July 15, 1997. This 
section applies to any church plan (as defined in section 414(e)) for a 
plan year if, on July 15, 1997 and at all times thereafter before the 
beginning of the plan year, the plan contains either the provisions 
described in paragraph (b)(2) of this section or the provisions 
described in paragraph (b)(3) of this section.
    (2) Plan provisions applicable to individuals employed by employers 
of 10 or fewer employees and self-employed individuals. (i) A plan 
contains the provisions described in this paragraph (b)(2) if it 
requires evidence of good health of both--
    (A) Any employee of an employer of 10 or fewer employees (determined 
without regard to section 414(e)(3)(C), under which a church or 
convention or association of churches is treated as the employer); and
    (B) Any self-employed individual.
    (ii) A plan does not contain the provisions described in this 
paragraph (b)(2) if the plan contains only one of the provisions 
described in this paragraph (b)(2). Thus, for example, a plan that 
requires evidence of good health of any self-employed individual, but 
not of any employee of an employer with 10 or fewer employees, does not 
contain the provisions described in this paragraph (b)(2). Moreover, a 
plan does not contain the provision described in paragraph (b)(2)(i)(A) 
of this section if the plan requires evidence of good health of any 
employee of an employer of fewer than 10 (or greater than 10) employees. 
Thus, for example, a plan does not contain the provision described in 
paragraph (b)(2)(i)(A) of this section if the plan requires evidence of 
good health of any employee of an employer with five or fewer employees.
    (3) Plan provisions applicable to individuals who enroll after the 
first 90 days of initial eligibility. (i) A plan contains the provisions 
described in this paragraph (b)(3) if it requires evidence of good 
health of any individual who enrolls after the first 90 days of initial 
eligibility under the plan.
    (ii) A plan does not contain the provisions described in this 
paragraph (b)(3) if it provides for a longer (or shorter) period than 90 
days. Thus, for example, a plan requiring evidence of good health of any 
individual who enrolls after the first 120 days of initial eligibility 
under the plan does not contain the provisions described in this 
paragraph (b)(3).
    (c) Examples. The rules of this section are illustrated by the 
following examples:

    Example 1. (i) Facts. A church organization maintains two church 
plans for entities affiliated with the church. One plan is a group 
health plan that provides health coverage to all employees (including 
ministers and lay workers) of any affiliated church entity that has more 
than 10 employees. The other plan is Plan O, which is a group health 
plan that is not funded through insurance coverage and that provides 
health coverage to any employee (including ministers and lay workers) of 
any affiliated church entity that has 10 or

[[Page 516]]

fewer employees and any self-employed individual affiliated with the 
church (including a self-employed minister of the church). Plan O 
requires evidence of good health in order for any individual of a church 
entity that has 10 or fewer employees to be covered and in order for any 
self-employed individual to be covered. On July 15, 1997 and at all 
times thereafter before the beginning of the plan year, Plan O has 
contained all the preceding provisions.
    (ii) Conclusion. In this Example 1, because Plan O contains the plan 
provisions described in paragraph (b)(2) of this section and because 
those provisions were in the plan on July 15, 1997 and at all times 
thereafter before the beginning of the plan year, Plan O will not be 
treated as failing to meet the requirements of section 9802 or Sec.  
54.9802-1 for the plan year solely because the plan requires evidence of 
good health for coverage of the individuals described in those plan 
provisions.
    Example 2. (i) Facts. A church organization maintains Plan P, which 
is a church plan that is not funded through insurance coverage and that 
is a group health plan providing health coverage to individuals employed 
by entities affiliated with the church and self-employed individuals 
affiliated with the church (such as ministers). On July 15, 1997 and at 
all times thereafter before the beginning of the plan year, Plan P has 
required evidence of good health for coverage of any individual who 
enrolls after the first 90 days of initial eligibility under the plan.
    (ii) Conclusion. In this Example 2, because Plan P contains the plan 
provisions described in paragraph (b)(3) of this section and because 
those provisions were in the plan on July 15, 1997 and at all times 
thereafter before the beginning of the plan year, Plan P will not be 
treated as failing to meet the requirements of section 9802 or Sec.  
54.9802-1 for the plan year solely because the plan requires evidence of 
good health for coverage of individuals enrolling after the first 90 
days of initial eligibility under the plan.

    (d) Applicability date. This section is applicable to plan years 
beginning on or after July 1, 2007.

[T.D. 9299, 71 FR 75056, Dec. 13, 2006]



Sec.  54.9802-3T  Additional requirements prohibiting discrimination 
based on genetic information (temporary).

    (a) Definitions. Unless otherwise provided, the definitions in this 
paragraph (a) govern in applying the provisions of this section.
    (1) Collect means, with respect to information, to request, require, 
or purchase such information.
    (2) Family member means, with respect to an individual --
    (i) A dependent (as defined for purposes of Sec.  54.9801-2) of the 
individual; or
    (ii) Any other person who is a first-degree, second-degree, third-
degree, or fourth-degree relative of the individual or of a dependent of 
the individual. Relatives by affinity (such as by marriage or adoption) 
are treated the same as relatives by consanguinity (that is, relatives 
who share a common biological ancestor). In determining the degree of 
the relationship, relatives by less than full consanguinity (such as 
half-siblings, who share only one parent) are treated the same as 
relatives by full consanguinity (such as siblings who share both 
parents).
    (A) First-degree relatives include parents, spouses, siblings, and 
children.
    (B) Second-degree relatives include grandparents, grandchildren, 
aunts, uncles, nephews, and nieces.
    (C) Third-degree relatives include great-grandparents, great-
grandchildren, great aunts, great uncles, and first cousins.
    (D) Fourth-degree relatives include great-great grandparents, great-
great grandchildren, and children of first cousins.
    (3) Genetic information means--
    (i) Subject to paragraphs (a)(3)(ii) and (a)(3)(iii) of this 
section, with respect to an individual, information about--
    (A) The individual's genetic tests (as defined in paragraph (a)(5) 
of this section);
    (B) The genetic tests of family members of the individual;
    (C) The manifestation (as defined in paragraph (a)(6) of this 
section) of a disease or disorder in family members of the individual; 
or
    (D) Any request for, or receipt of, genetic services (as defined in 
paragraph (a)(4) of this section), or participation in clinical research 
which includes genetic services, by the individual or any family member 
of the individual.
    (ii) The term genetic information does not include information about 
the sex or age of any individual.
    (iii) The term genetic information includes--
    (A) With respect to a pregnant woman (or a family member of the

[[Page 517]]

pregnant woman), genetic information of any fetus carried by the 
pregnant woman; and
    (B) With respect to an individual (or a family member of the 
individual) who is utilizing an assisted reproductive technology, 
genetic information of any embryo legally held by the individual or 
family member.
    (4) Genetic services means--
    (i) A genetic test, as defined in paragraph (a)(5) of this section;
    (ii) Genetic counseling (including obtaining, interpreting, or 
assessing genetic information); or
    (iii) Genetic education.
    (5)(i) Genetic test means an analysis of human DNA, RNA, 
chromosomes, proteins, or metabolites, if the analysis detects 
genotypes, mutations, or chromosomal changes. However, a genetic test 
does not include an analysis of proteins or metabolites that is directly 
related to a manifested disease, disorder, or pathological condition. 
Accordingly, a test to determine whether an individual has a BRCA1 or 
BRCA2 variant is a genetic test. Similarly, a test to determine whether 
an individual has a genetic variant associated with hereditary 
nonpolyposis colorectal cancer is a genetic test. However, an HIV test, 
complete blood count, cholesterol test, liver function test, or test for 
the presence of alcohol or drugs is not a genetic test.
    (ii) The rules of this paragraph (a)(5) are illustrated by the 
following example:

    Example. (i) Facts. Individual A is a newborn covered under a group 
health plan. A undergoes a phenylketonuria (PKU) screening, which 
measures the concentration of a metabolite, phenylalanine, in A's blood. 
In PKU, a mutation occurs in the phenylalanine hydroxylase (PAH) gene 
which contains instructions for making the enzyme needed to break down 
the amino acid phenylalanine. Individuals with the mutation, who have a 
deficiency in the enzyme to break down phenylalanine, have high 
concentrations of phenylalanine.
    (ii) Conclusion. In this Example, the PKU screening is a genetic 
test with respect to A because the screening is an analysis of 
metabolites that detects a genetic mutation.
    (6)(i) Manifestation or manifested means, with respect to a disease, 
disorder, or pathological condition, that an individual has been or 
could reasonably be diagnosed with the disease, disorder, or 
pathological condition by a health care professional with appropriate 
training and expertise in the field of medicine involved. For purposes 
of this section, a disease, disorder, or pathological condition is not 
manifested if a diagnosis is based principally on genetic information.
    (ii) The rules of this paragraph (a)(6) are illustrated by the 
following examples:

    Example 1. (i) Facts. Individual A has a family medical history of 
diabetes. A begins to experience excessive sweating, thirst, and 
fatigue. A's physician examines A and orders blood glucose testing 
(which is not a genetic test). Based on the physician's examination, A's 
symptoms, and test results that show elevated levels of blood glucose, 
A's physician diagnoses A as having adult onset diabetes mellitus (Type 
2 diabetes).
    (ii) Conclusion. In this Example 1, A has been diagnosed by a health 
care professional with appropriate training and expertise in the field 
of medicine involved. The diagnosis is not based principally on genetic 
information. Thus, Type 2 diabetes is manifested with respect to A.
    Example 2. (i) Facts. Individual B has several family members with 
colon cancer. One of them underwent genetic testing which detected a 
mutation in the MSH2 gene associated with hereditary nonpolyposis 
colorectal cancer (HNPCC). B's physician, a health care professional 
with appropriate training and expertise in the field of medicine 
involved, recommends that B undergo a targeted genetic test to look for 
the specific mutation found in B's relative to determine if B has an 
elevated risk for cancer. The genetic test with respect to B showed that 
B also carries the mutation and is at increased risk to develop 
colorectal and other cancers associated with HNPCC. B has a colonoscopy 
which indicates no signs of disease, and B has no symptoms.
    (ii) Conclusion. In this Example 2, because B has no signs or 
symptoms of colorectal cancer, B has not been and could not reasonably 
be diagnosed with HNPCC. Thus, HNPCC is not manifested with respect to 
B.
    Example 3. (i) Facts. Same facts as Example 2, except that B's 
colonoscopy and subsequent tests indicate the presence of HNPCC. Based 
on the colonoscopy and subsequent test results, B's physician makes a 
diagnosis of HNPCC.
    (ii) Conclusion. In this Example 3, HNPCC is manifested with respect 
to B because a health care professional with appropriate training and 
expertise in the field of medicine involved has made a diagnosis that is 
not based principally on genetic information.

[[Page 518]]

    Example 4. (i) Facts. Individual C has a family member that has been 
diagnosed with Huntington's Disease. A genetic test indicates that C has 
the Huntington's Disease gene variant. At age 42, C begins suffering 
from occasional moodiness and disorientation, symptoms which are 
associated with Huntington's Disease. C is examined by a neurologist (a 
physician with appropriate training and expertise for diagnosing 
Huntington's Disease). The examination includes a clinical neurological 
exam. The results of the examination do not support a diagnosis of 
Huntington's Disease.
    (ii) Conclusion. In this Example 4, C is not and could not 
reasonably be diagnosed with Huntington's Disease by a health care 
professional with appropriate training and expertise. Therefore, 
Huntington's Disease is not manifested with respect to C.
    Example 5. (i) Facts. Same facts as Example 4, except that C 
exhibits additional neurological and behavioral symptoms, and the 
results of the examination support a diagnosis of Huntington's Disease 
with respect to C.
    (ii) Conclusion. In this Example 5, C could reasonably be diagnosed 
with Huntington's Disease by a health care professional with appropriate 
training and expertise. Therefore, Huntington's Disease is manifested 
with respect to C.

    (7) Underwriting purposes has the meaning given in paragraph (d)(1) 
of this section.
    (b) No group-based discrimination based on genetic information--(1) 
In general. For purposes of this section, a group health plan must not 
adjust premium or contribution amounts for any employer, or any group of 
similarly situated individuals under the plan, on the basis of genetic 
information. For this purpose, ``similarly situated individuals'' are 
those described in Sec.  54.9802-1(d).
    (2) Rule of construction. Nothing in paragraph (b)(1) of this 
section (or in paragraph (d)(1) or (d)(2) of this section) limits the 
ability of a group health plan to increase the premium for an employer 
or for a group of similarly situated individuals under the plan based on 
the manifestation of a disease or disorder of an individual who is 
enrolled in the plan. In such a case, however, the manifestation of a 
disease or disorder in one individual cannot also be used as genetic 
information about other group members to further increase the premium 
for an employer or a group of similarly situated individuals under the 
plan.
    (3) Examples. The rules of this paragraph (b) are illustrated by the 
following examples:

    Example 1. (i) Facts. An employer sponsors a group health plan that 
provides coverage through a health insurance issuer. In order to 
determine the premium rate for the upcoming plan year, the issuer 
reviews the claims experience of individuals covered under the plan and 
other health status information of the individuals, including genetic 
information. The issuer finds that three individuals covered under the 
plan had unusually high claims experience. In addition, the issuer finds 
that the genetic information of two other individuals indicates the 
individuals have a higher probability of developing certain illnesses 
although the illnesses are not manifested at this time. The issuer 
quotes the plan a higher per-participant rate because of both the 
genetic information and the higher claims experience.
    (ii) Conclusion. See Example 1 in 29 CFR 2590.702-1(b)(3) or 45 CFR 
146.122(b)(3) for a conclusion that the issuer violates the provisions 
of 29 CFR 2590.702-1(b) or 45 CFR 146.122(b) similar to the requirements 
of this paragraph (b) because the issuer adjusts the premium based on 
genetic information. However, if the adjustment related solely to claims 
experience, the adjustment would not violate the requirements of 29 CFR 
2590.702-1 or 45 CFR 146.122 similar to the requirements of this section 
(nor would it violate the requirements of paragraph (c) of 29 CFR 
2590.702 or 45 CFR 146.121 similar to the requirements of paragraph (c) 
of Sec.  54.9802-1, which prohibits discrimination in individual 
premiums or contributions based on a health factor but permits increases 
in the group rate based on a health factor).
    Example 2. (i) Facts. An employer sponsors a group health plan that 
provides coverage through a health insurance issuer. In order to 
determine the premium rate for the upcoming plan year, the issuer 
reviews the claims experience of individuals covered under the plan and 
other health status information of the individuals, including genetic 
information. The issuer finds that Employee A has made claims for 
treatment of polycystic kidney disease. A also has two dependent 
children covered under the plan. The issuer quotes the plan a higher 
per-participant rate because of both A's claims experience and the 
family medical history of A's children (that is, the fact that A has the 
disease).
    (ii) Conclusion. See Example 2 in 29 CFR 2590.702-1(b)(3) or 45 CFR 
146.122(b)(3) for a conclusion that the issuer violates the provisions 
of 29 CFR 2590.702-1(b) or 45 CFR 146.122(b) similar to the requirements 
of this

[[Page 519]]

paragraph (b) because, by taking the likelihood that A's children may 
develop polycystic kidney disease into account in computing the rate for 
the plan, the issuer adjusts the premium based on genetic information 
relating to a condition that has not been manifested in A's children. 
However, the issuer does not violate the requirements of 29 CFR 
2590.702-1(b) or 45 CFR 146.122(b) similar to the requirements of this 
paragraph (b) by increasing the premium based on A's claims experience.

    (c) Limitation on requesting or requiring genetic testing--(1) 
General rule. Except as otherwise provided in this paragraph (c), a 
group health plan must not request or require an individual or a family 
member of the individual to undergo a genetic test.
    (2) Health care professional may recommend a genetic test. Nothing 
in paragraph (c)(1) of this section limits the authority of a health 
care professional who is providing health care services to an individual 
to request that the individual undergo a genetic test.
    (3) Examples. The rules of paragraphs (c)(1) and (c)(2) of this 
section are illustrated by the following examples:

    Example 1. (i) Facts. Individual A goes to a physician for a routine 
physical examination. The physician reviews A's family medical history 
and A informs the physician that A's mother has been diagnosed with 
Huntington's Disease. The physician advises A that Huntington's Disease 
is hereditary and recommends that A undergo a genetic test.
    (ii) Conclusion. In this Example 1, the physician is a health care 
professional who is providing health care services to A. Therefore, the 
physician's recommendation that A undergo the genetic test does not 
violate this paragraph (c).
    Example 2. (i) Facts. Individual B is covered by a health 
maintenance organization (HMO). B is a child being treated for leukemia. 
B's physician, who is employed by the HMO, is considering a treatment 
plan that includes six-mercaptopurine, a drug for treating leukemia in 
most children. However, the drug could be fatal if taken by a small 
percentage of children with a particular gene variant. B's physician 
recommends that B undergo a genetic test to detect this variant before 
proceeding with this course of treatment.
    (ii) Conclusion. In this Example 2, even though the physician is 
employed by the HMO, the physician is nonetheless a health care 
professional who is providing health care services to B. Therefore, the 
physician's recommendation that B undergo the genetic test does not 
violate this paragraph (c).

    (4) Determination regarding payment--(i) In general. As provided in 
this paragraph (c)(4), nothing in paragraph (c)(1) of this section 
precludes a plan from obtaining and using the results of a genetic test 
in making a determination regarding payment. For this purpose, 
``payment'' has the meaning given such term in 45 CFR 164.501 of the 
privacy regulations issued under the Health Insurance Portability and 
Accountability Act. Thus, if a plan conditions payment for an item or 
service based on its medical appropriateness and the medical 
appropriateness of the item or service depends on the genetic makeup of 
a patient, then the plan is permitted to condition payment for the item 
or service on the outcome of a genetic test. The plan may also refuse 
payment if the patient does not undergo the genetic test.
    (ii) Limitation. A plan is permitted to request only the minimum 
amount of information necessary to make a determination regarding 
payment. The minimum amount of information necessary is determined in 
accordance with the minimum necessary standard in 45 CFR 164.502(b) of 
the privacy regulations issued under the Health Insurance Portability 
and Accountability Act.
    (iii) Examples. See paragraph (e) of this section for examples 
illustrating the rules of this paragraph (c)(4), as well as other 
provisions of this section.
    (5) Research exception. Notwithstanding paragraph (c)(1) of this 
section, a plan may request, but not require, that a participant or 
beneficiary undergo a genetic test if all of the conditions of this 
paragraph (c)(5) are met:
    (i) Research in accordance with Federal regulations and applicable 
State or local law or regulations. The plan makes the request pursuant 
to research, as defined in 45 CFR 46.102(d), that complies with 45 CFR 
Part 46 or equivalent Federal regulations, and any applicable State or 
local law or regulations for the protection of human subjects in 
research.
    (ii) Written request for participation in research. The plan makes 
the request in writing, and the request clearly indicates to each 
participant or beneficiary (or, in the case of a minor child, to the 
legal guardian of the beneficiary) that--

[[Page 520]]

    (A) Compliance with the request is voluntary; and
    (B) Noncompliance will have no effect on eligibility for benefits 
(as described in Sec.  54.9802-1(b)(1)) or premium or contribution 
amounts.
    (iii) Prohibition on underwriting. No genetic information collected 
or acquired under this paragraph (c)(5) can be used for underwriting 
purposes (as described in paragraph (d)(1) of this section).
    (iv) Notice to Federal agencies. The plan completes a copy of the 
``Notice of Research Exception under the Genetic Information 
Nondiscrimination Act'' authorized by the Secretary and provides the 
notice to the address specified in the instructions thereto.
    (d) Prohibitions on collection of genetic information--(1) For 
underwriting purposes--(i) General rule. A group health plan must not 
collect (as defined in paragraph (a)(1) of this section) genetic 
information for underwriting purposes. See paragraph (e) of this section 
for examples illustrating the rules of this paragraph (d)(1), as well as 
other provisions of this section.
    (ii) Underwriting purposes defined. Subject to paragraph (d)(1)(iii) 
of this section, underwriting purposes means, with respect to any group 
health plan, or health insurance coverage offered in connection with a 
group health plan--
    (A) Rules for, or determination of, eligibility (including 
enrollment and continued eligibility) for benefits under the plan or 
coverage as described in Sec.  54.9802-1(b)(1)(ii) (including changes in 
deductibles or other cost-sharing mechanisms in return for activities 
such as completing a health risk assessment or participating in a 
wellness program);
    (B) The computation of premium or contribution amounts under the 
plan or coverage (including discounts, rebates, payments in kind, or 
other premium differential mechanisms in return for activities such as 
completing a health risk assessment or participating in a wellness 
program);
    (C) The application of any preexisting condition exclusion under the 
plan or coverage; and
    (D) Other activities related to the creation, renewal, or 
replacement of a contract of health insurance or health benefits.
    (iii) Medical appropriateness. If an individual seeks a benefit 
under a group health plan, the plan may limit or exclude the benefit 
based on whether the benefit is medically appropriate, and the 
determination of whether the benefit is medically appropriate is not 
within the meaning of underwriting purposes. Accordingly, if an 
individual seeks a benefit under the plan and the plan conditions the 
benefit based on its medical appropriateness and the medical 
appropriateness of the benefit depends on genetic information of the 
individual, then the plan is permitted to condition the benefit on the 
genetic information. A plan is permitted to request only the minimum 
amount of genetic information necessary to determine medical 
appropriateness. The plan may deny the benefit if the patient does not 
provide the genetic information required to determine medical 
appropriateness. If an individual is not seeking a benefit, the medical 
appropriateness exception of this paragraph (d)(1)(iii) to the 
definition of underwriting purposes does not apply. See paragraph (e) of 
this section for examples illustrating the medical appropriateness 
provisions of this paragraph (d)(1)(iii), as well as other provisions of 
this section.
    (2) Prior to or in connection with enrollment--(i) In general. A 
group health plan must not collect genetic information with respect to 
any individual prior to that individual's effective date of coverage 
under that plan, nor in connection with the rules for eligibility (as 
defined in Sec.  54.9802-1(b)(1)(ii)) that apply to that individual. 
Whether or not an individual's information is collected prior to that 
individual's effective date of coverage is determined at the time of 
collection.
    (ii) Incidental collection exception--(A) In general. If a group 
health plan obtains genetic information incidental to the collection of 
other information concerning any individual, the collection is not a 
violation of this paragraph (d)(2), as long as the collection is not for 
underwriting purposes in violation of paragraph (d)(1) of this section.
    (B) Limitation. The incidental collection exception of this 
paragraph

[[Page 521]]

(d)(2)(ii) does not apply in connection with any collection where it is 
reasonable to anticipate that health information will be received, 
unless the collection explicitly states that genetic information should 
not be provided.
    (3) Examples. The rules of this paragraph (d) are illustrated by the 
following examples:

    Example 1. (i) Facts. A group health plan provides a premium 
reduction to enrollees who complete a health risk assessment. The health 
risk assessment is requested to be completed after enrollment. Whether 
or not it is completed or what responses are given on it has no effect 
on an individual's enrollment status, or on the enrollment status of 
members of the individual's family. The health risk assessment includes 
questions about the individual's family medical history.
    (ii) Conclusion. In this Example 1, the health risk assessment 
includes a request for genetic information (that is, the individual's 
family medical history). Because completing the health risk assessment 
results in a premium reduction, the request for genetic information is 
for underwriting purposes. Consequently, the request violates the 
prohibition on the collection of genetic information in paragraph (d)(1) 
of this section.
    Example 2. (i) Facts. The same facts as Example 1, except there is 
no premium reduction or any other reward for completing the health risk 
assessment.
    (ii) Conclusion. In this Example 2, the request is not for 
underwriting purposes, nor is it prior to or in connection with 
enrollment. Therefore, it does not violate the prohibition on the 
collection of genetic information in this paragraph (d).
    Example 3. (i) Facts. A group health plan requests that enrollees 
complete a health risk assessment prior to enrollment, and includes 
questions about the individual's family medical history. There is no 
reward or penalty for completing the health risk assessment.
    (ii) Conclusion. In this Example 3, because the health risk 
assessment includes a request for genetic information (that is, the 
individual's family medical history), and requests the information prior 
to enrollment, the request violates the prohibition on the collection of 
genetic information in paragraph (d)(2) of this section. Moreover, 
because it is a request for genetic information, it is not an incidental 
collection under paragraph (d)(2)(ii) of this section.
    Example 4. (i) Facts. The facts are the same as in Example 1, except 
there is no premium reduction or any other reward given for completion 
of the health risk assessment. However, certain people completing the 
health risk assessment may become eligible for additional benefits under 
the plan by being enrolled in a disease management program based on 
their answers to questions about family medical history. Other people 
may become eligible for the disease management program based solely on 
their answers to questions about their individual medical history.
    (ii) Conclusion. In this Example 4, the request for information 
about an individual's family medical history could result in the 
individual being eligible for benefits for which the individual would 
not otherwise be eligible. Therefore, the questions about family medical 
history on the health risk assessment are a request for genetic 
information for underwriting purposes and are prohibited under this 
paragraph (d). Although the plan conditions eligibility for the disease 
management program based on determinations of medical appropriateness, 
the exception for determinations of medical appropriateness does not 
apply because the individual is not seeking benefits.
    Example 5. (i) Facts. A group health plan requests enrollees to 
complete two distinct health risk assessments (HRAs) after and unrelated 
to enrollment. The first HRA instructs the individual to answer only for 
the individual and not for the individual's family. The first HRA does 
not ask about any genetic tests the individual has undergone or any 
genetic services the individual has received. The plan offers a reward 
for completing the first HRA. The second HRA asks about family medical 
history and the results of genetic tests the individual has undergone. 
The plan offers no reward for completing the second HRA and the 
instructions make clear that completion of the second HRA is wholly 
voluntary and will not affect the reward given for completion of the 
first HRA.
    (ii) Conclusion. In this Example 5, no genetic information is 
collected in connection with the first HRA, which offers a reward, and 
no benefits or other rewards are conditioned on the request for genetic 
information in the second HRA. Consequently, the request for genetic 
information in the second HRA is not for underwriting purposes, and the 
two HRAs do not violate the prohibition on the collection of genetic 
information in this paragraph (d).
    Example 6. (i) Facts. A group health plan waives its annual 
deductible for enrollees who complete an HRA. The HRA is requested to be 
completed after enrollment. Whether or not the HRA is completed or what 
responses are given on it has no effect on an individual's enrollment 
status, or on the enrollment status of members of the individual's 
family. The HRA does not include any direct questions about the 
individual's genetic information (including family medical history). 
However, the last question reads, ``Is there anything else relevant to 
your

[[Page 522]]

health that you would like us to know or discuss with you?''
    (ii) Conclusion. In this Example 6, the plan's request for medical 
information does not explicitly state that genetic information should 
not be provided. Therefore, any genetic information collected in 
response to the question is not within the incidental collection 
exception and is prohibited under this paragraph (d).
    Example 7. (i) Facts. Same facts as Example 6, except that the last 
question goes on to state, ``In answering this question, you should not 
include any genetic information. That is, please do not include any 
family medical history or any information related to genetic testing, 
genetic services, genetic counseling, or genetic diseases for which you 
believe you may be at risk.''
    (ii) Conclusion. In this Example 7, the plan's request for medical 
information explicitly states that genetic information should not be 
provided. Therefore, any genetic information collected in response to 
the question is within the incidental collection exception. However, the 
plan may not use any genetic information it obtains incidentally for 
underwriting purposes.
    Example 8. (i) Facts. Issuer M acquires Issuer N. M requests N's 
records, stating that N should not provide genetic information and 
should review the records to excise any genetic information. N assembles 
the data requested by M and, although N reviews it to delete genetic 
information, the data from a specific region included some individuals' 
family medical history. Consequently, M receives genetic information 
about some of N's covered individuals.
    (ii) Conclusion. In this Example 8, M's request for health 
information explicitly stated that genetic information should not be 
provided. See Example 8 in 29 CFR 2590.702-1(d)(3) or 45 CFR 
146.122(d)(3) for a conclusion that the collection of genetic 
information was within the incidental collection exception of 29 CFR 
2590.702-1(d)(2)(ii) or 45 CFR 146.122(d)(ii) similar to the incidental 
exception of paragraph (d)(2)(ii) of this section. See Example 8 in 29 
CFR 2590.702-1(d)(3) or 45 CFR 146.122(d)(3) also for a caveat that M 
may not use the genetic information it obtained incidentally for 
underwriting purposes.

    (e) Examples regarding determinations of medical appropriateness. 
The application of the rules of paragraphs (c) and (d) of this section 
to plan determinations of medical appropriateness is illustrated by the 
following examples:

    Example 1. (i) Facts. Individual A's group health plan covers 
genetic testing for celiac disease for individuals who have family 
members with this condition. After A's son is diagnosed with celiac 
disease, A undergoes a genetic test and promptly submits a claim for the 
test to A's issuer for reimbursement. The issuer asks A to provide the 
results of the genetic test before the claim is paid.
    (ii) Conclusion. See Example 1 in 29 CFR 2590.702-1(e) or 45 CFR 
146.122(e) for a conclusion under the rules of paragraph (c)(4) of 29 
CFR 2590.702-1 or 45 CFR 146.122 similar to the rules of paragraph 
(c)(4) of this section that the issuer is permitted to request only the 
minimum amount of information necessary to make a decision regarding 
payment. Because the results of the test are not necessary for the 
issuer to make a decision regarding the payment of A's claim, the 
conclusion in Example 1 in 29 CFR 2590.702-1(e) or 45 CFR 146.122(e) 
concludes that the issuer's request for the results of the genetic test 
violates paragraph (c) of 29 CFR 2590.702-1 or 45 CFR 146.122 similar to 
paragraph (c) of this section.
    Example 2. (i) Facts. Individual B's group health plan covers a 
yearly mammogram for participants and beneficiaries starting at age 40, 
or at age 30 for those with increased risk for breast cancer, including 
individuals with BRCA1 or BRCA2 gene mutations. B is 33 years old and 
has the BRCA2 mutation. B undergoes a mammogram and promptly submits a 
claim to B's plan for reimbursement. Following an established policy, 
the plan asks B for evidence of increased risk of breast cancer, such as 
the results of a genetic test or a family history of breast cancer, 
before the claim for the mammogram is paid. This policy is applied 
uniformly to all similarly situated individuals and is not directed at 
individuals based on any genetic information.
    (ii) Conclusion. In this Example 2, the plan does not violate 
paragraphs (c) or (d) of this section. Under paragraph (c), the plan is 
permitted to request and use the results of a genetic test to make a 
determination regarding payment, provided the plan requests only the 
minimum amount of information necessary. Because the medical 
appropriateness of the mammogram depends on the genetic makeup of the 
patient, the minimum amount of information necessary includes the 
results of the genetic test. Similarly, the plan does not violate 
paragraph (d) of this section because the plan is permitted to request 
genetic information in making a determination regarding the medical 
appropriateness of a claim if the genetic information is necessary to 
make the determination (and if the genetic information is not used for 
underwriting purposes).
    Example 3. (i) Facts. Individual C was previously diagnosed with and 
treated for breast cancer, which is currently in remission. In 
accordance with the recommendation of C's physician, C has been taking a 
regular dose of tamoxifen to help prevent a recurrence. C's group health 
plan adopts a new policy requiring patients taking tamoxifen to undergo 
a genetic test to ensure that tamoxifen is

[[Page 523]]

medically appropriate for their genetic makeup. In accordance with, at 
the time, the latest scientific research, tamoxifen is not helpful in up 
to 7 percent of breast cancer patients, those with certain variations of 
the gene for making the CYP2D6 enzyme. If a patient has a 
gene variant making tamoxifen not medically appropriate, the plan does 
not pay for the tamoxifen prescription.
    (ii) Conclusion. In this Example 3, the plan does not violate 
paragraph (c) of this section if it conditions future payments for the 
tamoxifen prescription on C's undergoing a genetic test to determine 
what genetic markers C has for making the CYP2D6 enzyme. Nor 
does the plan violate paragraph (c) of this section if the plan refuses 
future payment if the results of the genetic test indicate that 
tamoxifen is not medically appropriate for C.
    Example 4. (i) Facts. A group health plan offers a diabetes disease 
management program to all similarly situated individuals for whom it is 
medically appropriate based on whether the individuals have or are at 
risk for diabetes. The program provides enhanced benefits related only 
to diabetes for individuals who qualify for the program. The plan sends 
out a notice to all participants that describes the diabetes disease 
management program and explains the terms for eligibility. Individuals 
interested in enrolling in the program are advised to contact the plan 
to demonstrate that they have diabetes or that they are at risk for 
diabetes. For individuals who do not currently have diabetes, genetic 
information may be used to demonstrate that an individual is at risk.
    (ii) Conclusion. In this Example 4, the plan may condition benefits 
under the disease management program upon a showing by an individual 
that the individual is at risk for diabetes, even if such showing may 
involve genetic information, provided that the plan requests genetic 
information only when necessary to make a determination regarding 
whether the disease management program is medically appropriate for the 
individual and only requests the minimum amount of information necessary 
to make that determination.
    Example 5. (i) Facts. Same facts as Example 4, except that the plan 
includes a questionnaire that asks about the occurrence of diabetes in 
members of the individual's family as part of the notice describing the 
disease management program.
    (ii) Conclusion. In this Example 5, the plan violates the 
requirements of paragraph (d)(1) of this section because the requests 
for genetic information are not limited to those situations in which it 
is necessary to make a determination regarding whether the disease 
management program is medically appropriate for the individuals.
    Example 6. (i) Facts. Same facts as Example 4, except the disease 
management program provides an enhanced benefit in the form of a lower 
annual deductible to individuals under the program; the lower deductible 
applies with respect to all medical expenses incurred by the individual. 
Thus, whether or not a claim relates to diabetes, the individual is 
provided with a lower deductible based on the individual providing the 
plan with genetic information.
    (ii) Conclusion. In this Example 6, because the enhanced benefits 
include benefits not related to the determination of medical 
appropriateness, making available the enhanced benefits is within the 
meaning of underwriting purposes. Accordingly, the plan may not request 
or require genetic information (including family history information) in 
determining eligibility for enhanced benefits under the program because 
such a request would be for underwriting purposes and would violate 
paragraph (d)(1) of this section.

    (f) Effective/applicability date. This section applies for plan 
years beginning on or after December 7, 2009.
    (g) Expiration date. This section expires on or before October 1, 
2012.

[T.D. 9464, 74 FR 51678, Oct. 7, 2009]



Sec.  54.9802-4  Special Rule Allowing Integration of Health 
Reimbursement Arrangements (HRAs) and Other Account-Based Group Health Plans 
with Individual Health Insurance Coverage and Medicare and Prohibiting 
Discrimination In HRAs and Other Account-Based Group Health Plans.

    (a) Scope. This section applies to health reimbursement arrangements 
(HRAs) and other account-based group health plans, as defined in Sec.  
54.9815-2711(d)(6)(i) of this chapter. For ease of reference, the term 
``HRA'' is used in this section to include other account-based group 
health plans. For related regulations, see 26 CFR 1.36B-2(c)(3)(i) and 
(c)(5), 29 CFR 2510.3-1(l), and 45 CFR 155.420.
    (b) Purpose. This section provides the conditions that an HRA must 
satisfy in order to be integrated with individual health insurance 
coverage for purposes of Public Health Service Act (PHS Act) sections 
2711 and 2713 and Sec.  54.9815-2711(d)(4) of this chapter (referred to 
as an individual coverage HRA). This section also allows an individual 
coverage HRA to be integrated with Medicare for purposes of PHS Act 
sections 2711 and 2713 and Sec.  54.9815-2711(d)(4), subject

[[Page 524]]

to the conditions provided in this section (see paragraph (e) of this 
section). Some of the conditions set forth in this section specifically 
relate to compliance with PHS Act sections 2711 and 2713 and some relate 
to the effect of having or being offered an individual coverage HRA on 
eligibility for the premium tax credit under section 36B. In addition, 
this section provides conditions that an individual coverage HRA must 
satisfy in order to comply with the nondiscrimination provisions in 
section 9802 and PHS Act section 2705 (which is incorporated in section 
9815) and that are consistent with the provisions of the Patient 
Protection and Affordable Care Act, Public Law 111-148 (124 Stat. 119 
(2010)), and the Health Care and Education Reconciliation Act of 2010, 
Public Law 111-152 (124 Stat. 1029 (2010)), each as amended, that are 
designed to create a competitive individual market. These conditions are 
intended to prevent an HRA plan sponsor from intentionally or 
unintentionally, directly or indirectly, steering any participants or 
dependents with adverse health factors away from its traditional group 
health plan, if any, and toward individual health insurance coverage.
    (c) General rule. An HRA will be considered to be integrated with 
individual health insurance coverage for purposes of PHS Act sections 
2711 and 2713 and Sec.  54.9815-2711(d)(4) of this chapter and will not 
be considered to discriminate in violation of section 9802 and PHS Act 
section 2705 solely because it is integrated with individual health 
insurance coverage, provided that the conditions of this paragraph (c) 
are satisfied. See paragraph (e) of this section for how these 
conditions apply to an individual coverage HRA integrated with Medicare. 
For purposes of this section, medical care expenses means medical care 
expenses as defined in Sec.  54.9815-2711(d)(6)(ii) of this chapter and 
Exchange means Exchange as defined in 45 CFR 155.20.
    (1) Enrollment in individual health insurance coverage--(i) In 
general. The HRA must require that the participant and any dependent(s) 
are enrolled in individual health insurance coverage that is subject to 
and complies with the requirements in PHS Act section 2711 (and Sec.  
54.9815-2711(a)(2) of this chapter) and PHS Act section 2713 (and Sec.  
54.9815-2713(a)(1) of this chapter), for each month that the 
individual(s) are covered by the HRA. For purposes of this paragraph 
(c), all individual health insurance coverage, except for individual 
health insurance coverage that consists solely of excepted benefits, is 
treated as being subject to and complying with PHS Act sections 2711 and 
2713. References to individual health insurance coverage in this 
paragraph (c) do not include individual health insurance coverage that 
consists solely of excepted benefits.
    (ii) Forfeiture. The HRA must provide that if any individual covered 
by the HRA ceases to be covered by individual health insurance coverage, 
the HRA will not reimburse medical care expenses that are incurred by 
that individual after the individual health insurance coverage ceases. 
In addition, if the participant and all dependents covered by the 
participant's HRA cease to be covered by individual health insurance 
coverage, the participant must forfeit the HRA. In either case, the HRA 
must reimburse medical care expenses incurred by the individual prior to 
the cessation of individual health insurance coverage to the extent the 
medical care expenses are otherwise covered by the HRA, but the HRA may 
limit the period to submit medical care expenses for reimbursement to a 
reasonable specified time period. If a participant or dependent loses 
coverage under the HRA for a reason other than cessation of individual 
health insurance coverage, COBRA and other continuation coverage 
requirements may apply.
    (iii) Grace periods and retroactive termination of individual health 
insurance coverage. In the event an individual is initially enrolled in 
individual health insurance coverage and subsequently timely fails to 
pay premiums for the coverage, with the result that the individual is in 
a grace period, the individual is considered to be enrolled in 
individual health insurance coverage for purposes of this paragraph 
(c)(1) and the individual coverage HRA must reimburse medical care 
expenses incurred by the individual during that time period to the 
extent the medical

[[Page 525]]

care expenses are otherwise covered by the HRA. If the individual fails 
to pay the applicable premium(s) by the end of the grace period and the 
coverage is cancelled or terminated, including retroactively, or if the 
individual health insurance coverage is cancelled or terminated 
retroactively for some other reason (for example, a rescission), an 
individual coverage HRA must require that a participant notify the HRA 
that coverage has been cancelled or terminated and the date on which the 
cancellation or termination is effective. After the individual coverage 
HRA has received the notice of cancellation or termination, the HRA may 
not reimburse medical care expenses incurred on and after the date the 
individual health insurance coverage was cancelled or terminated, which 
is considered to be the date of termination of coverage under the HRA.
    (2) No traditional group health plan may be offered to same 
participants. To the extent a plan sponsor offers any class of employees 
(as defined in paragraph (d) of this section) an individual coverage 
HRA, the plan sponsor may not also offer a traditional group health plan 
to the same class of employees, except as provided in paragraph (d)(5) 
of this section. For purposes of this section, a traditional group 
health plan is any group health plan other than either an account-based 
group health plan or a group health plan that consists solely of 
excepted benefits. Therefore, a plan sponsor may not offer a choice 
between an individual coverage HRA or a traditional group health plan to 
any participant or dependent.
    (3) Same terms requirement--(i) In general. If a plan sponsor offers 
an individual coverage HRA to a class of employees described in 
paragraph (d) of this section, the HRA must be offered on the same terms 
to all participants within the class, except as provided in paragraphs 
(c)(3)(ii) through (vi) and (d)(5) of this section.
    (ii) Carryover amounts, salary reduction arrangements, and transfer 
amounts. Amounts that are not used to reimburse medical care expenses 
for any plan year that are made available to participants in later plan 
years are disregarded for purposes of determining whether an HRA is 
offered on the same terms, provided that the method for determining 
whether participants have access to unused amounts in future years, and 
the methodology and formula for determining the amounts of unused funds 
which they may access in future years, is the same for all participants 
in a class of employees. In addition, the ability to pay the portion of 
the premium for individual health insurance coverage that is not covered 
by the HRA, if any, by using a salary reduction arrangement under 
section 125 is considered to be a term of the HRA for purposes of this 
paragraph (c)(3). Therefore, an HRA is not provided on the same terms 
unless the salary reduction arrangement, if made available to any 
participant in a class of employees, is made available on the same terms 
to all participants (other than former employees, as defined in 
paragraph (c)(3)(iv) of this section) in the class of employees. 
Further, to the extent that a participant in an individual coverage HRA 
was previously covered by another HRA and the current individual 
coverage HRA makes available amounts that were not used to reimburse 
medical care expenses under the prior HRA (transferred amounts), the 
transferred amounts are disregarded for purposes of determining whether 
the HRA is offered on the same terms, provided that if the HRA makes 
available transferred amounts, it does so on the same terms for all 
participants in the class of employees.
    (iii) Permitted variation. An HRA does not fail to be provided on 
the same terms solely because the maximum dollar amount made available 
to participants in a class of employees to reimburse medical care 
expenses for any plan year increases in accordance with paragraph 
(c)(3)(iii)(A) or (B) of this section.
    (A) Variation due to number of dependents. An HRA does not fail to 
be provided on the same terms to participants in a class of employees 
solely because the maximum dollar amount made available to those 
participants to reimburse medical care expenses for any plan year 
increases as the number of the participant's dependents who are covered 
under the HRA increases, so

[[Page 526]]

long as the same maximum dollar amount attributable to the increase in 
family size is made available to all participants in that class of 
employees with the same number of dependents covered by the HRA.
    (B) Variation due to age. An HRA does not fail to be provided on the 
same terms to participants in a class of employees solely because the 
maximum dollar amount made available under the terms of the HRA to those 
participants to reimburse medical care expenses for any plan year 
increases as the age of the participant increases, so long as the 
requirements in paragraphs (c)(3)(iii)(B)(1) and (2) of this section are 
satisfied. For the purpose of this paragraph (c)(3)(iii)(B), the plan 
sponsor may determine the age of the participant using any reasonable 
method for a plan year, so long as the plan sponsor determines each 
participant's age for the purpose of this paragraph (c)(3)(iii)(B) using 
the same method for all participants in the class of employees for the 
plan year and the method is determined prior to the plan year.
    (1) The same maximum dollar amount attributable to the increase in 
age is made available to all participants who are the same age.
    (2) The maximum dollar amount made available to the oldest 
participant(s) is not more than three times the maximum dollar amount 
made available to the youngest participant(s).
    (iv) Former employees. An HRA does not fail to be treated as 
provided on the same terms if the plan sponsor offers the HRA to some, 
but not all, former employees within a class of employees. However, if a 
plan sponsor offers the HRA to one or more former employees within a 
class of employees, the HRA must be offered to the former employee(s) on 
the same terms as to all other employees within the class, except as 
provided in paragraph (c)(3)(ii) of this section. For purposes of this 
section, a former employee is an employee who is no longer performing 
services for the employer.
    (v) New employees or new dependents. For a participant whose 
coverage under the HRA becomes effective later than the first day of the 
plan year, the HRA does not fail to be treated as being provided on the 
same terms to the participant if the maximum dollar amount made 
available to the participant either is the same as the maximum dollar 
amount made available to participants in the participant's class of 
employees whose coverage became effective as of the first day of the 
plan year, or is pro-rated consistent with the portion of the plan year 
in which the participant is covered by the HRA. Similarly, if the HRA 
provides for variation in the maximum amount made available to 
participants in a class of employees based on the number of a 
participant's dependents covered by the HRA, and the number of a 
participant's dependents covered by the HRA changes during a plan year 
(either increasing or decreasing), the HRA does not fail to be treated 
as being provided on the same terms to the participant if the maximum 
dollar amount made available to the participant either is the same as 
the maximum dollar amount made available to participants in the 
participant's class of employees who had the same number of dependents 
covered by the HRA on the first day of the plan year or is pro-rated for 
the remainder of the plan year after the change in the number of the 
participant's dependents covered by the HRA consistent with the portion 
of the plan year in which that number of dependents are covered by the 
HRA. The method the HRA uses to determine amounts made available for 
participants whose coverage under the HRA is effective later than the 
first day of the plan year or who have changes in the number of 
dependents covered by the HRA during a plan year must be the same for 
all participants in the class of employees and the method must be 
determined prior to the beginning of the plan year.
    (vi) HSA-compatible HRAs. An HRA does not fail to be treated as 
provided on the same terms if the plan sponsor offers participants in a 
class of employees a choice between an HSA-compatible individual 
coverage HRA and an individual coverage HRA that is not HSA compatible, 
provided both types of HRAs are offered to all participants in the class 
of employees on the same

[[Page 527]]

terms. For the purpose of this paragraph (c)(3)(vi), an HSA-compatible 
individual coverage HRA is an individual coverage HRA that is limited in 
accordance with applicable guidance under section 223 such that an 
individual covered by such an HRA is not disqualified from being an 
eligible individual under section 223.
    (vii) Examples. The following examples illustrate the provisions of 
this paragraph (c)(3), without taking into account the provisions of 
paragraph (d) of this section. In each example, the HRA is an individual 
coverage HRA that has a calendar year plan year and may reimburse any 
medical care expenses, including premiums for individual health 
insurance coverage (except as provided in paragraph (c)(3)(vii)(E) of 
this section (Example 5)). Further, in each example, assume the HRA is 
offered on the same terms, except as otherwise specified in the example 
and that no participants or dependents are Medicare beneficiaries.
    (A) Example 1: Carryover amounts permitted--(1) Facts. For 2020 and 
again for 2021, Plan Sponsor A offers all employees $7,000 each in an 
HRA, and the HRA provides that amounts that are unused at the end of a 
plan year may be carried over to the next plan year, with no 
restrictions on the use of the carryover amounts compared to the use of 
newly available amounts. At the end of 2020, some employees have used 
all of the funds in their HRAs, while other employees have balances 
remaining that range from $500 to $1,750 that are carried over to 2021 
for those employees.
    (2) Conclusion. The same terms requirement of this paragraph (c)(3) 
is satisfied in this paragraph (c)(3)(vii)(A) (Example 1) for 2020 
because Plan Sponsor A offers all employees the same amount, $7,000, in 
an HRA for that year. The same terms requirement is also satisfied for 
2021 because Plan Sponsor A again offers all employees the same amount 
for that year, and the carryover amounts that some employees have are 
disregarded in applying the same terms requirement because the amount of 
the carryover for each employee (that employee's balance) and each 
employee's access to the carryover amounts is based on the same terms.
    (B) Example 2: Employees hired after the first day of the plan 
year--(1) Facts. For 2020, Plan Sponsor B offers all employees employed 
on January 1, 2020, $7,000 each in an HRA for the plan year. Employees 
hired after January 1, 2020, are eligible to enroll in the HRA with an 
effective date of the first day of the month following their date of 
hire, as long as they have enrolled in individual health insurance 
coverage effective on or before that date, and the amount offered to 
these employees is pro-rated based on the number of months remaining in 
the plan year, including the month which includes their coverage 
effective date.
    (2) Conclusion. The same terms requirement of this paragraph (c)(3) 
is satisfied in this paragraph (c)(3)(vii)(B) (Example 2) for 2020 
because Plan Sponsor B offers all employees employed on the first day of 
the plan year the same amount, $7,000, in an HRA for that plan year and 
all employees hired after January 1, 2020, a pro-rata amount based on 
the portion of the plan year during which they are enrolled in the HRA.
    (C) Example 3: HRA amounts offered vary based on number of 
dependents--(1) Facts. For 2020, Plan Sponsor C offers its employees the 
following amounts in an HRA: $1,500, if the employee is the only 
individual covered by the HRA; $3,500, if the employee and one dependent 
are covered by the HRA; and $5,000, if the employee and more than one 
dependent are covered by the HRA.
    (2) Conclusion. The same terms requirement of this paragraph (c)(3) 
is satisfied in this paragraph (c)(3)(vii)(C) (Example 3) because 
paragraph (c)(3)(iii)(A) of this section allows the maximum dollar 
amount made available in an HRA to increase as the number of the 
participant's dependents covered by the HRA increases and Plan Sponsor C 
makes the same amount available to each employee with the same number of 
dependents covered by the HRA.
    (D) Example 4: HRA amounts offered vary based on increases in 
employees' ages--(1) Facts. For 2020, Plan Sponsor D offers its 
employees the following

[[Page 528]]

amounts in an HRA: $1,000 each for employees age 25 to 35; $2,000 each 
for employees age 36 to 45; $2,500 each for employees age 46 to 55; and 
$4,000 each for employees over age 55.
    (2) Conclusion. The same terms requirement of this paragraph (c)(3) 
is not satisfied in this paragraph (c)(3)(vii)(D) (Example 4) because 
the terms of the HRA provide the oldest participants (those over age 55) 
with more than three times the amount made available to the youngest 
participants (those ages 25 to 35), in violation of paragraph 
(c)(3)(iii)(B)(2) of this section.
    (E) Example 5: Application of same terms requirement to premium only 
HRA--(1) Facts. For 2020, Plan Sponsor E offers its employees an HRA 
that reimburses only premiums for individual health insurance coverage, 
up to $10,000 for the year. Employee A enrolls in individual health 
insurance coverage with a $5,000 premium for the year and is reimbursed 
$5,000 from the HRA. Employee B enrolls in individual health insurance 
coverage with an $8,000 premium for the year and is reimbursed $8,000 
from the HRA.
    (2) Conclusion. The same terms requirement of this paragraph (c)(3) 
is satisfied in this paragraph (c)(3)(vii)(E) (Example 5) because Plan 
Sponsor E offers the HRA on the same terms to all employees, 
notwithstanding that some employees receive a greater amount of 
reimbursement than others based on the cost of the individual health 
insurance coverage selected by the employee.
    (4) Opt out. Under the terms of the HRA, a participant who is 
otherwise eligible for coverage must be permitted to opt out of and 
waive future reimbursements on behalf of the participant and all 
dependents eligible for the HRA from the HRA once, and only once, with 
respect to each plan year. The HRA may establish timeframes for 
enrollment in (and opting out of) the HRA but, in general, the 
opportunity to opt out must be provided in advance of the first day of 
the plan year. For participants who become eligible to participate in 
the HRA on a date other than the first day of the plan year (or who 
become eligible fewer than 90 days prior to the plan year or for whom 
the notice under paragraph (c)(6) of this section is required to be 
provided as set forth in paragraph (c)(6)(i)(C) of this section), or for 
a dependent who newly becomes eligible during the plan year, this 
opportunity must be provided during the applicable HRA enrollment 
period(s) established by the HRA for these individuals. Further, under 
the terms of the HRA, upon termination of employment, for a participant 
who is covered by the HRA, either the remaining amounts in the HRA must 
be forfeited or the participant must be permitted to permanently opt out 
of and waive future reimbursements from the HRA on behalf of the 
participant and all dependents covered by the HRA.
    (5) Reasonable procedures for coverage substantiation--(i) 
Substantiation of individual health insurance coverage for the plan 
year. The HRA must implement, and comply with, reasonable procedures to 
substantiate that participants and each dependent covered by the HRA 
are, or will be, enrolled in individual health insurance coverage for 
the plan year (or for the portion of the plan year the individual is 
covered by the HRA, if applicable). The HRA may establish the date by 
which this substantiation must be provided, but, in general, the date 
may be no later than the first day of the plan year. However, for a 
participant who is not eligible to participate in the HRA on the first 
day of the plan year (or who becomes eligible fewer than 90 days prior 
to the plan year or for whom the notice under paragraph (c)(6) of this 
section is required to be provided as set forth in paragraph 
(c)(6)(i)(C) of this section), the HRA may establish the date by which 
this substantiation must be provided, but that date may be no later than 
the date the HRA coverage begins. Similarly, for a participant who adds 
a new dependent during the plan year, the HRA may establish the date by 
which this substantiation must be provided, but the date may be no later 
than the date the HRA coverage for the new dependent begins; however, to 
the extent the dependent's coverage under the HRA is effective 
retroactively, the HRA may establish a reasonable time by which this 
substantiation is required, but must require it be provided before the 
HRA will reimburse any

[[Page 529]]

medical care expense for the newly added dependent. The reasonable 
procedures an HRA may use to implement the substantiation requirement 
set forth in this paragraph (c)(5)(i) may include a requirement that a 
participant substantiate enrollment by providing either:
    (A) A document from a third party (for example, the issuer or an 
Exchange) showing that the participant and any dependents covered by the 
HRA are, or will be, enrolled in individual health insurance coverage 
(for example, an insurance card or an explanation of benefits document 
pertaining to the relevant time period or documentation from the 
Exchange showing that the individual has completed the application and 
plan selection); or
    (B) An attestation by the participant stating that the participant 
and dependent(s) covered by the HRA are, or will be, enrolled in 
individual health insurance coverage, the date coverage began or will 
begin, and the name of the provider of the coverage.
    (ii) Coverage substantiation with each request for reimbursement of 
medical care expenses. Following the initial substantiation of coverage, 
with each new request for reimbursement of an incurred medical care 
expense for the same plan year, the HRA may not reimburse a participant 
for any medical care expenses unless, prior to each reimbursement, the 
participant substantiates that the individual on whose behalf medical 
care expenses are requested to be reimbursed continues to be enrolled in 
individual health insurance coverage for the month during which the 
medical care expenses were incurred. The HRA must implement, and comply 
with, reasonable procedures to satisfy this requirement. This 
substantiation may be in the form of a written attestation by the 
participant, which may be part of the form used to request 
reimbursement, or a document from a third party (for example, a health 
insurance issuer) showing that the participant or the dependent, if 
applicable, are or were enrolled in individual health insurance coverage 
for the applicable month.
    (iii) Reliance on substantiation. For purposes of this paragraph 
(c)(5), an HRA may rely on the participant's documentation or 
attestation unless the HRA, its plan sponsor, or any other entity acting 
in an official capacity on behalf of the HRA has actual knowledge that 
any individual covered by the HRA is not, or will not be, enrolled in 
individual health insurance coverage for the plan year (or applicable 
portion of the plan year) or the month, as applicable.
    (6) Notice requirement--(i) Timing. The HRA must provide a written 
notice to each participant:
    (A) At least 90 calendar days before the beginning of each plan year 
for any participant who is not described in either paragraph 
(c)(6)(i)(B) or (C) of this section;
    (B) No later than the date on which the HRA may first take effect 
for the participant, for any participant who is not eligible to 
participate at the beginning of the plan year (or is not eligible to 
participate at the time the notice is provided at least 90 calendar days 
before the beginning of the plan year pursuant to paragraph (c)(6)(i)(A) 
of this section); or
    (C) No later than the date on which the HRA may first take effect 
for the participant, for any participant who is employed by an employer 
that is first established less than 120 days before the beginning of the 
first plan year of the HRA; this paragraph (c)(6)(i)(C) applies only 
with respect to the first plan year of the HRA.
    (ii) Content. The notice must include all the information described 
in this paragraph (c)(6)(ii) (and may include any additional information 
that does not conflict with that information). To the extent that the 
Departments of the Treasury, Labor and Health and Human Services provide 
model notice language for certain elements of this required notice, HRAs 
are permitted, but not required, to use the model language.
    (A) A description of the terms of the HRA, including the maximum 
dollar amount available for each participant (including the self-only 
HRA amount available for the plan year (or the maximum dollar amount 
available for the plan year if the HRA provides for reimbursements up to 
a single dollar amount regardless of whether a participant has self-only 
or other than self-

[[Page 530]]

only coverage)), any rules regarding the proration of the maximum dollar 
amount applicable to any participant (or dependent, if applicable) who 
is not eligible to participate in the HRA for the entire plan year, 
whether (and which of) the participant's dependents are eligible for the 
HRA, a statement that there are different kinds of HRAs (including a 
qualified small employer health reimbursement arrangement) and the HRA 
being offered is an individual coverage HRA, a statement that the HRA 
requires the participant and any covered dependents to be enrolled in 
individual health insurance coverage (or Medicare Part A and B or 
Medicare Part C, if applicable), a statement that the coverage in which 
the participant and any covered dependents must be enrolled cannot be 
short-term, limited-duration insurance or consist solely of excepted 
benefits, if the HRA is subject to the Employee Retirement Income 
Security Act (ERISA), a statement that individual health insurance 
coverage in which the participant and any covered dependents are 
enrolled is not subject to ERISA, if the conditions under 29 CFR 2510.3-
1(l) are satisfied, the date as of which coverage under the HRA may 
first become effective (both for participants whose coverage will become 
effective on the first day of the plan year and for participants whose 
HRA coverage may become effective at a later date), the dates on which 
the HRA plan year begins and ends, and the dates on which the amounts 
newly made available under the HRA will be made available.
    (B) A statement of the right of the participant to opt out of and 
waive future reimbursements from the HRA, as set forth under paragraph 
(c)(4) of this section.
    (C) A description of the potential availability of the premium tax 
credit if the participant opts out of and waives future reimbursements 
from the HRA and the HRA is not affordable for one or more months under 
Sec.  1.36B-2(c)(5) of this chapter, a statement that even if the 
participant opts out of and waives future reimbursements from an HRA, 
the offer will prohibit the participant (and, potentially, the 
participant's dependents) from receiving a premium tax credit for the 
participant's coverage (or the dependent's coverage, if applicable) on 
an Exchange for any month that the HRA is affordable under Sec.  1.36B-
2(c)(5) of this chapter, a statement describing how the participant may 
find assistance with determining affordability, a statement that, if the 
participant is a former employee, the offer of the HRA does not render 
the participant (or the participant's dependents, if applicable) 
ineligible for the premium tax credit regardless of whether it is 
affordable under Sec.  1.36B-2(c)(5) of this chapter, and a statement 
that if the participant or dependent is enrolled in Medicare, he or she 
is ineligible for the premium tax credit without regard to the offer or 
acceptance of the HRA;
    (D) A statement that if the participant accepts the HRA, the 
participant may not claim a premium tax credit for the participant's 
Exchange coverage for any month the HRA may be used to reimburse medical 
care expenses of the participant, and a premium tax credit may not be 
claimed for the Exchange coverage of the participant's dependents for 
any month the HRA may be used to reimburse medical care expenses of the 
dependents.
    (E) A statement that the participant must inform any Exchange to 
which the participant applies for advance payments of the premium tax 
credit of the availability of the HRA; the self-only HRA amount 
available for the HRA plan year (or the maximum dollar amount available 
for the plan year if the HRA provides for reimbursements up to a single 
dollar amount regardless of whether a participant has self-only or other 
than self-only coverage) as set forth in the written notice in 
accordance with paragraph (c)(6)(ii)(A) of this section; whether the HRA 
is also available to the participant's dependents and if so, which ones; 
the date as of which coverage under the HRA may first become effective; 
the date on which the plan year begins and the date on which it ends; 
and whether the participant is a current employee or former employee.
    (F) A statement that the participant should retain the written 
notice because it may be needed to determine whether the participant is 
allowed a

[[Page 531]]

premium tax credit on the participant's individual income tax return.
    (G) A statement that the HRA may not reimburse any medical care 
expense unless the substantiation requirement set forth in paragraph 
(c)(5)(ii) of this section is satisfied and a statement that the 
participant must also provide the substantiation required by paragraph 
(c)(5)(i) of this section.
    (H) A statement that if the individual health insurance coverage (or 
coverage under Medicare Part A and B or Medicare Part C) of a 
participant or dependent ceases, the HRA will not reimburse any medical 
care expenses that are incurred by the participant or dependent, as 
applicable, after the coverage ceases, and a statement that the 
participant must inform the HRA if the participant's or dependent's 
individual health insurance coverage (or coverage under Medicare Part A 
and B or Medicare Part C) is cancelled or terminated retroactively and 
the date on which the cancellation or termination is effective.
    (I) The contact information (including a phone number) for an 
individual or a group of individuals who participants may contact in 
order to receive additional information regarding the HRA. The plan 
sponsor may determine which individual or group of individuals is best 
suited to be the specified contact.
    (J) A statement of availability of a special enrollment period to 
enroll in or change individual health insurance coverage, through or 
outside of an Exchange, for the participant and any dependents who newly 
gain access to the HRA and are not already covered by the HRA.
    (d) Classes of employees--(1) In general. This paragraph (d) sets 
forth the rules for determining classes of employees. Paragraph (d)(2) 
of this section sets forth the specific classes of employees; paragraph 
(d)(3) of this section sets forth a minimum class size requirement that 
applies in certain circumstances; paragraph (d)(4) of this section sets 
forth rules regarding the definition of ``full-time employees,'' ``part-
time employees,'' and ``seasonal employees''; paragraph (d)(5) of this 
section sets forth a special rule for new hires; and paragraph (d)(6) of 
this section addresses student premium reduction arrangements. For 
purposes of this section, including determining classes under this 
paragraph (d), the employer is the common law employer and is determined 
without regard to the rules under sections 414(b), (c), (m), and (o) 
that would treat the common law employer as a single employer with 
certain other entities.
    (2) List of classes. Participants may be treated as belonging to a 
class of employees based on whether they are, or are not, included in 
the classes described in this paragraph (d)(2). If the individual 
coverage HRA is offered to former employees, former employees are 
considered to be in the same class in which they were included 
immediately before separation from service. Before each plan year, a 
plan sponsor must determine for the plan year which classes of employees 
it intends to treat separately and the definition of the relevant 
class(es) it will apply, to the extent these regulations permit a 
choice. After the classes and the definitions of the classes are 
established for a plan year, a plan sponsor may not make changes to the 
classes of employees or the definitions of those relevant classes with 
respect to that plan year.
    (i) Full-time employees, defined at the election of the plan sponsor 
to mean either full-time employees under section 4980H (and Sec.  
54.4980H-1(a)(21) of this chapter) or employees who are not part-time 
employees (as described in Sec.  1.105-11(c)(2)(iii)(C) of this 
chapter);
    (ii) Part-time employees, defined at the election of the plan 
sponsor to mean either employees who are not full-time employees under 
section 4980H (and under Sec.  54.4980H-1(a)(21) of this chapter (which 
defines full-time employee)) or employees who are part-time employees as 
described in Sec.  1.105-11(c)(2)(iii)(C) of this chapter;
    (iii) Employees who are paid on a salary basis;
    (iv) Non-salaried employees (such as, for example, hourly 
employees);
    (v) Employees whose primary site of employment is in the same rating 
area as defined in 45 CFR 147.102(b);
    (vi) Seasonal employees, defined at the election of the plan sponsor 
to mean seasonal employees as described

[[Page 532]]

in either Sec.  54.4980H-1(a)(38) or Sec.  1.105-11(c)(2)(iii)(C) of 
this chapter;
    (vii) Employees included in a unit of employees covered by a 
particular collective bargaining agreement (or an appropriate related 
participation agreement) in which the plan sponsor participates (as 
described in Sec.  1.105-11(c)(2)(iii)(D) of this chapter);
    (viii) Employees who have not satisfied a waiting period for 
coverage (if the waiting period complies with Sec.  54.9815-2708 of this 
chapter);
    (ix) Non-resident aliens with no U.S.-based income (as described in 
Sec.  1.105-11(c)(2)(iii)(E) of this chapter);
    (x) Employees who, under all the facts and circumstances, are 
employees of an entity that hired the employees for temporary placement 
at an entity that is not the common law employer of the employees and 
that is not treated as a single employer with the entity that hired the 
employees for temporary placement under section 414(b), (c), (m), or 
(o); or
    (xi) A group of participants described as a combination of two or 
more of the classes of employees set forth in paragraphs (d)(2)(i) 
through (x) of this section.
    (3) Minimum class size requirement--(i) In general. If a class of 
employees is subject to the minimum class size requirement as set forth 
in this paragraph (d)(3), the class must consist of at least a minimum 
number of employees (as described in paragraphs (d)(3)(iii) and (iv) of 
this section), otherwise, the plan sponsor may not treat that class as a 
separate class of employees. Paragraph (d)(3)(ii) of this section sets 
forth the circumstances in which the minimum class size requirement 
applies to a class of employees, paragraph (d)(3)(iii) of this section 
sets forth the rules for determining the applicable class size minimum, 
and paragraph (d)(3)(iv) of this section sets forth the rules for a plan 
sponsor to determine if it satisfies the minimum class size requirement 
with respect to a class of employees.
    (ii) Circumstances in which minimum class size requirement applies--
(A) The minimum class size requirement applies only if a plan sponsor 
offers a traditional group health plan to one or more classes of 
employees and offers an individual coverage HRA to one or more other 
classes of employees.
    (B) The minimum class size requirement does not apply to a class of 
employees offered a traditional group health plan or a class of 
employees offered no coverage.
    (C) The minimum class size requirement applies to a class of 
employees offered an individual coverage HRA if the class is full-time 
employees, part-time employees, salaried employees, non-salaried 
employees, or employees whose primary site of employment is in the same 
rating area (described in paragraph (d)(2)(i), (ii), (iii), (iv), or (v) 
of this section, respectively, and referred to collectively as the 
applicable classes or individually as an applicable class), except that:
    (1) In the case of the class of employees whose primary site of 
employment is in the same rating area (as described in paragraph 
(d)(2)(v) of this section), the minimum class size requirement does not 
apply if the geographic area defining the class is a State or a 
combination of two or more entire States; and
    (2) In the case of the classes of employees that are full-time 
employees and part-time employees (as described in paragraphs (d)(2)(i) 
and (ii) of this section, respectively), the minimum class size 
requirement applies only to those classes (and the classes are only 
applicable classes) if the employees in one such class are offered a 
traditional group health plan while the employees in the other such 
class are offered an individual coverage HRA. In such a case, the 
minimum class size requirement applies only to the class offered an 
individual coverage HRA.
    (D) A class of employees offered an individual coverage HRA is also 
subject to the minimum class size requirement if the class is a class of 
employees created by combining at least one of the applicable classes 
(as defined in paragraph (d)(3)(ii)(C) of this section) with any other 
class, except that the minimum class size requirement shall not apply to 
a class that is the result of a combination of one of the applicable 
classes and a class of employees who have not satisfied a waiting period 
(as described in paragraph (d)(2)(viii) of this section).

[[Page 533]]

    (iii) Determination of the applicable class size minimum--(A) In 
general. The minimum number of employees that must be in a class of 
employees that is subject to the minimum class size requirement (the 
applicable class size minimum) is determined prior to the beginning of 
the plan year for each plan year of the individual coverage HRA and is:
    (1) 10, for an employer with fewer than 100 employees;
    (2) A number, rounded down to a whole number, equal to 10 percent of 
the total number of employees, for an employer with 100 to 200 
employees; and
    (3) 20, for an employer with more than 200 employees.
    (B) Determining employer size. For purposes of this paragraph 
(d)(3), the number of employees of an employer is determined in advance 
of the plan year of the HRA based on the number of employees that the 
employer reasonably expects to employ on the first day of the plan year.
    (iv) Determining if a class satisfies the applicable class size 
minimum. For purposes of this paragraph (d)(3), whether a class of 
employees satisfies the applicable class size minimum for a plan year of 
the individual coverage HRA is based on the number of employees in the 
class offered the individual coverage HRA as of the first day of the 
plan year. Therefore, this determination is not based on the number of 
employees that actually enroll in the individual coverage HRA, and this 
determination is not affected by changes in the number of employees in 
the class during the plan year.
    (4) Consistency requirement. For any plan year, a plan sponsor may 
define ``full-time employee,'' ``part-time employee,'' and ``seasonal 
employee'' in accordance with the relevant provisions of sections 105(h) 
or 4980H, as set forth in paragraphs (d)(2)(i), (ii), and (vi) of this 
section, if:
    (i) To the extent applicable under the HRA for the plan year, each 
of the three classes of employees are defined in accordance with section 
105(h) or each of the three classes of employees are defined in 
accordance with section 4980H for the plan year; and
    (ii) The HRA plan document sets forth the applicable definitions 
prior to the beginning of the plan year to which the definitions will 
apply.
    (5) Special rule for new hires--(i) In general. Notwithstanding 
paragraphs (c)(2) and (3) of this section, a plan sponsor that offers a 
traditional group health plan to a class of employees may prospectively 
offer the employees in that class of employees who are hired on or after 
a certain future date (the new hire date) an individual coverage HRA 
(with this group of employees referred to as the new hire subclass), 
while continuing to offer employees in that class of employees who are 
hired before the new hire date a traditional group health plan (with the 
rule set forth in this sentence referred to as the special rule for new 
hires). For the new hire subclass, the individual coverage HRA must be 
offered on the same terms to all participants within the subclass, in 
accordance with paragraph (c)(3) of this section. In accordance with 
paragraph (c)(2) of this section, a plan sponsor may not offer a choice 
between an individual coverage HRA or a traditional group health plan to 
any employee in the new hire subclass or to any employee in the class 
who is not a member of the new hire subclass.
    (ii) New hire date. A plan sponsor may set the new hire date for a 
class of employees prospectively as any date on or after January 1, 
2020. A plan sponsor may set different new hire dates prospectively for 
separate classes of employees.
    (iii) Discontinuation of use of special rule for new hires and 
multiple applications of the special rule for new hires. A plan sponsor 
may discontinue use of the special rule for new hires at any time for 
any class of employees. In that case, the new hire subclass is no longer 
treated as a separate subclass of employees. In the event a plan sponsor 
applies the special rule for new hires to a class of employees and later 
discontinues use of the rule to the class of employees, the plan sponsor 
may later apply the rule if the application of the rule would be 
permitted under the

[[Page 534]]

rules for initial application of the special rule for new hires. If a 
plan sponsor, in accordance with the requirements for the special rule 
for new hires, applies the rule to a class of employees subsequent to 
any prior application and discontinuance of the rule to that class, the 
new hire date must be prospective.
    (iv) Application of the minimum class size requirement under the 
special rule for new hires. The minimum class size requirement set forth 
in paragraph (d)(3) of this section does not apply to the new hire 
subclass. However, if a plan sponsor subdivides the new hire subclass 
subsequent to creating the new hire subclass, the minimum class size 
requirement set forth in paragraph (d)(3) of this section applies to any 
class of employees created by subdividing the new hire subclass, if the 
minimum class size requirement otherwise applies.
    (6) Student employees offered student premium reduction 
arrangements. For purposes of this section, if an institution of higher 
education (as defined in the Higher Education Act of 1965) offers a 
student employee a student premium reduction arrangement, the employee 
is not considered to be part of the class of employees to which the 
employee would otherwise belong. For the purpose of this paragraph 
(d)(6) and paragraph (f)(1) of this section, a student premium reduction 
arrangement is defined as any program offered by an institution of 
higher education under which the cost of insured or self-insured student 
health coverage is reduced for certain students through a credit, 
offset, reimbursement, stipend or similar arrangement. A student 
employee offered a student premium reduction arrangement is also not 
counted for purposes of determining the applicable class size minimum 
under paragraph (d)(3)(iii) of this section. If a student employee is 
not offered a student premium reduction arrangement (including if the 
student employee is offered an individual coverage HRA instead), the 
student employee is considered to be part of the class of employees to 
which the employee otherwise belongs and is counted for purposes of 
determining the applicable class size minimum under paragraph 
(d)(3)(iii) of this section.
    (e) Integration of Individual Coverage HRAs with Medicare--(1) 
General rule. An individual coverage HRA will be considered to be 
integrated with Medicare (and deemed to comply with PHS Act sections 
2711 and 2713 and Sec.  54.9815-2711(d)(4) of this chapter), provided 
that the conditions of paragraph (c) of this section are satisfied, 
subject to paragraph (e)(2) of this section. Nothing in this section 
requires that a participant and his or her dependents all have the same 
type of coverage; therefore, an individual coverage HRA may be 
integrated with Medicare for some individuals and with individual health 
insurance coverage for others, including, for example, a participant 
enrolled in Medicare Part A and B or Part C and his or her dependents 
enrolled in individual health insurance coverage.
    (2) Application of conditions in paragraph (c) of this section--(i) 
In general. Except as provided in paragraph (e)(2)(ii) of this section, 
in applying the conditions of paragraph (c) of this section with respect 
to integration with Medicare, a reference to ``individual health 
insurance coverage'' is deemed to refer to coverage under Medicare Part 
A and B or Part C. References in this section to integration of an HRA 
with Medicare refer to integration of an individual coverage HRA with 
Medicare Part A and B or Part C.
    (ii) Exceptions. For purposes of the statement regarding ERISA under 
the notice content element under paragraph (c)(6)(ii)(A) of this section 
and the statement regarding the availability of a special enrollment 
period under the notice content element under paragraph (c)(6)(ii)(J) of 
this section, the term individual health insurance coverage means only 
individual health insurance coverage and does not also mean coverage 
under Medicare Part A and B or Part C.
    (f) Examples--(1) Examples regarding classes and the minimum class 
size requirement. The following examples illustrate the provisions of 
paragraph (c)(3) of this section, taking into account the provisions of 
paragraphs (d)(1) through (4) and (d)(6) of this section. In each 
example, the HRA is an

[[Page 535]]

individual coverage HRA that may reimburse any medical care expenses, 
including premiums for individual health insurance coverage and it is 
assumed that no participants or dependents are Medicare beneficiaries.
    (i) Example 1: Collectively bargained employees offered traditional 
group health plan; non-collectively bargained employees offered HRA--(A) 
Facts. For 2020, Plan Sponsor A offers its employees covered by a 
collective bargaining agreement a traditional group health plan (as 
required by the collective bargaining agreement) and all other employees 
(non-collectively bargained employees) each an HRA on the same terms.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(i) (Example 1) 
because collectively bargained and non-collectively bargained employees 
may be treated as different classes of employees, one of which may be 
offered a traditional group health plan and the other of which may be 
offered an individual coverage HRA, and Plan Sponsor A offers the HRA on 
the same terms to all participants who are non-collectively bargained 
employees. The minimum class size requirement does not apply to this 
paragraph (f)(1)(i) (Example 1) even though Plan Sponsor A offers one 
class a traditional group health plan and one class the HRA because 
collectively bargained and non-collectively bargained employees are not 
applicable classes that are subject to the minimum class size 
requirement.
    (ii) Example 2: Collectively bargained employees in one unit offered 
traditional group health plan and in another unit offered HRA--(A) 
Facts. For 2020, Plan Sponsor B offers its employees covered by a 
collective bargaining agreement with Local 100 a traditional group 
health plan (as required by the collective bargaining agreement), and 
its employees covered by a collective bargaining agreement with Local 
200 each an HRA on the same terms (as required by the collective 
bargaining agreement).
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(ii) (Example 2) 
because the employees covered by the collective bargaining agreements 
with the two separate bargaining units (Local 100 and Local 200) may be 
treated as two different classes of employees and Plan Sponsor B offers 
an HRA on the same terms to the participants covered by the agreement 
with Local 200. The minimum class size requirement does not apply to 
this paragraph (f)(1)(ii) (Example 2) even though Plan Sponsor B offers 
the Local 100 employees a traditional group health plan and the Local 
200 employees an HRA because collectively bargained employees are not 
applicable classes that are subject to the minimum class size 
requirement.
    (iii) Example 3: Employees in a waiting period offered no coverage; 
other employees offered an HRA--(A) Facts. For 2020, Plan Sponsor C 
offers its employees who have completed a waiting period that complies 
with the requirements for waiting periods in Sec.  54.9815-2708 of this 
chapter each an HRA on the same terms and does not offer coverage to its 
employees who have not completed the waiting period.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(iii) (Example 3) 
because employees who have completed a waiting period and employees who 
have not completed a waiting period may be treated as different classes 
and Plan Sponsor C offers the HRA on the same terms to all participants 
who have completed the waiting period. The minimum class size 
requirement does not apply to this paragraph (f)(1)(iii) (Example 3) 
because Plan Sponsor C does not offer at least one class of employees a 
traditional group health plan and because the class of employees who 
have not completed a waiting period and the class of employees who have 
completed a waiting period are not applicable classes that are subject 
to the minimum class size requirement.
    (iv) Example 4: Employees in a waiting period offered an HRA; other 
employees offered a traditional group health plan--(A) Facts. For 2020, 
Plan Sponsor D offers its employees who have completed a waiting period 
that complies with the requirements for waiting periods in

[[Page 536]]

Sec.  54.9815-2708 of this chapter a traditional group health plan and 
offers its employees who have not completed the waiting period each an 
HRA on the same terms.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(iv) (Example 4) 
because employees who have completed a waiting period and employees who 
have not completed a waiting period may be treated as different classes 
and Plan Sponsor D offers an HRA on the same terms to all participants 
who have not completed the waiting period. The minimum class size 
requirement does not apply to this paragraph (f)(1)(iv) (Example 4) even 
though Plan Sponsor D offers employees who have completed a waiting 
period a traditional group health plan and employees who have not 
completed a waiting period an HRA because the class of employees who 
have not completed a waiting period is not an applicable class that is 
subject to the minimum class size requirement (nor is the class made up 
of employees who have completed the waiting period).
    (v) Example 5: Staffing firm employees temporarily placed with 
customers offered an HRA; other employees offered a traditional group 
health plan--(A) Facts. Plan Sponsor E is a staffing firm that places 
certain of its employees on temporary assignments with customers that 
are not the common law employers of Plan Sponsor E's employees or 
treated as a single employer with Plan Sponsor E under section 414(b), 
(c), (m), or (o) (unrelated entities); other employees work in Plan 
Sponsor E's office managing the staffing business (non-temporary 
employees). For 2020, Plan Sponsor E offers its employees who are on 
temporary assignments with customers each an HRA on the same terms. All 
other employees are offered a traditional group health plan.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(v) (Example 5) 
because the employees who are hired for temporary placement at an 
unrelated entity and non-temporary employees of Plan Sponsor E may be 
treated as different classes of employees and Plan Sponsor E offers an 
HRA on the same terms to all participants temporarily placed with 
customers. The minimum class size requirement does not apply to this 
paragraph (f)(1)(v) (Example 5) even though Plan Sponsor E offers one 
class a traditional group health plan and one class the HRA because the 
class of employees hired for temporary placement is not an applicable 
class that is subject to the minimum class size requirement (nor is the 
class made up of non-temporary employees).
    (vi) Example 6: Staffing firm employees temporarily placed with 
customers in rating area 1 offered an HRA; other employees offered a 
traditional group health plan--(A) Facts. The facts are the same as in 
paragraph (f)(1)(v) of this section (Example 5), except that Plan 
Sponsor E has work sites in rating area 1 and rating area 2, and it 
offers its 10 employees on temporary assignments with a work site in 
rating area 1 an HRA on the same terms. Plan Sponsor E has 200 other 
employees in rating areas 1 and 2, including its non-temporary employees 
in rating areas 1 and 2 and its employees on temporary assignments with 
a work site in rating area 2, all of whom are offered a traditional 
group health plan.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is not satisfied in this paragraph (f)(1)(vi) (Example 6) 
because, even though the employees who are temporarily placed with 
customers generally may be treated as employees of a different class, 
because Plan Sponsor E is also using a rating area to identify the class 
offered the HRA (which is an applicable class for the minimum class size 
requirement) and is offering one class the HRA and another class the 
traditional group health plan, the minimum class size requirement 
applies to the class offered the HRA, and the class offered the HRA 
fails to satisfy the minimum class size requirement. Because Plan 
Sponsor E employs 210 employees, the applicable class size minimum is 
20, and the HRA is offered to only 10 employees.
    (vii) Example 7: Employees in State 1 offered traditional group 
health plan; employees in State 2 offered HRA--(A) Facts. Plan Sponsor F 
employs 45 employees whose work site is in State 1 and 7 employees whose 
primary site of

[[Page 537]]

employment is in State 2. For 2020, Plan Sponsor F offers its 45 
employees in State 1 a traditional group health plan, and each of its 7 
employees in State 2 an HRA on the same terms.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(vii) (Example 7) 
because Plan Sponsor F offers the HRA on the same terms to all employees 
with a work site in State 2 and that class is a permissible class under 
paragraph (d) of this section. This is because employees whose work 
sites are in different rating areas may be considered different classes 
and a plan sponsor may create a class of employees by combining classes 
of employees, including by combining employees whose work site is in one 
rating area with employees whose work site is in a different rating 
area, or by combining all employees whose work site is in a state. The 
minimum class size requirement does not apply to this paragraph 
(f)(1)(vii) (Example 7) because the minimum class size requirement does 
not apply if the geographic area defining a class of employees is a 
state or a combination of two or more entire states.
    (viii) Example 8: Full-time seasonal employees offered HRA; all 
other full-time employees offered traditional group health plan; part-
time employees offered no coverage--(A) Facts. Plan Sponsor G employs 6 
full-time seasonal employees, 75 full-time employees who are not 
seasonal employees, and 5 part-time employees. For 2020, Plan Sponsor G 
offers each of its 6 full-time seasonal employees an HRA on the same 
terms, its 75 full-time employees who are not seasonal employees a 
traditional group health plan, and offers no coverage to its 5 part-time 
employees.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(viii) (Example 8) 
because full-time seasonal employees and full-time employees who are not 
seasonal employees may be considered different classes and Plan Sponsor 
G offers the HRA on the same terms to all full-time seasonal employees. 
The minimum class size requirement does not apply to the class offered 
the HRA in this paragraph (f)(1)(viii) (Example 8) because part-time 
employees are not offered coverage and full-time employees are not an 
applicable class subject to the minimum class size requirement if part-
time employees are not offered coverage.
    (ix) Example 9: Full-time employees in rating area 1 offered 
traditional group health plan; full-time employees in rating area 2 
offered HRA; part-time employees offered no coverage--(A) Facts. Plan 
Sponsor H employs 17 full-time employees and 10 part-time employees 
whose work site is in rating area 1 and 552 full-time employees whose 
work site is in rating area 2. For 2020, Plan Sponsor H offers its 17 
full-time employees in rating area 1 a traditional group health plan and 
each of its 552 full-time employees in rating area 2 an HRA on the same 
terms. Plan Sponsor H offers no coverage to its 10 part-time employees 
in rating area 1. Plan Sponsor H reasonably expects to employ 569 
employees on the first day of the HRA plan year.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(ix) (Example 9) 
because employees whose work sites are in different rating areas may be 
considered different classes and Plan Sponsor H offers the HRA on the 
same terms to all full-time employees in rating area 2. The minimum 
class size requirement applies to the class offered the HRA in this 
paragraph (f)(1)(ix) (Example 9) because the minimum class size 
requirement applies to a class based on a geographic area unless the 
geographic area is a state or a combination of two or more entire 
states. However, the minimum class size requirement applies only to the 
class offered the HRA, and Plan Sponsor H offers the HRA to the 552 
full-time employees in rating area 2 on the first day of the plan year, 
satisfying the minimum class size requirement (because the applicable 
class size minimum for Plan Sponsor H is 20).
    (x) Example 10: Employees in rating area 1 offered HRA; employees in 
rating area 2 offered traditional group health plan--(A) Facts. The 
facts are the same as in paragraph (f)(1)(ix) of this section (Example 
9) except that Plan Sponsor H offers its 17 full-time employees in 
rating area 1 the HRA and offers its 552

[[Page 538]]

full-time employees in rating area 2 the traditional group health plan.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is not satisfied in this paragraph (f)(1)(x) (Example 10) 
because, even though employees whose work sites are in different rating 
areas generally may be considered different classes and Plan Sponsor H 
offers the HRA on the same terms to all participants in rating area 1, 
the HRA fails to satisfy the minimum class size requirement. 
Specifically, the minimum class size requirement applies to this 
paragraph (f)(1)(x) (Example 10) because the minimum class size 
requirement applies to a class based on a geographic area unless the 
geographic area is a state or a combination of two or more entire 
states. Further, the applicable class size minimum for Plan Sponsor H is 
20 employees, and the HRA is only offered to the 17 full-time employees 
in rating area 1 on the first day of the HRA plan year.
    (xi) Example 11: Employees in State 1 and rating area 1 of State 2 
offered HRA; employees in all other rating areas of State 2 offered 
traditional group healthplan--(A) Facts. For 2020, Plan Sponsor I offers 
an HRA on the same terms to a total of 200 employees it employs with 
work sites in State 1 and in rating area 1 of State 2. Plan Sponsor I 
offers a traditional group health plan to its 150 employees with work 
sites in other rating areas in State 2. Plan Sponsor I reasonably 
expects to employ 350 employees on the first day of the HRA plan year.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(xi) (Example 11). 
Plan Sponsor I may treat all of the employees with a work site in State 
1 and rating area 1 of State 2 as a class of employees because employees 
whose work sites are in different rating areas may be considered 
different classes and a plan sponsor may create a class of employees by 
combining classes of employees, including by combining employees whose 
work site is in one rating area with a class of employees whose work 
site is in a different rating area. The minimum class size requirement 
applies to the class of employees offered the HRA (made up of employees 
in State 1 and in rating area 1 of State 2) because the minimum class 
size requirement applies to a class based on a geographic area unless 
the geographic area is a state or a combination of two or more entire 
states. In this case, the class is made up of a state plus a rating area 
which is not the entire state. However, this class satisfies the minimum 
class size requirement because the applicable class size minimum for 
Plan Sponsor I is 20, and Plan Sponsor I offered the HRA to 200 
employees on the first day of the plan year.
    (xii) Example 12: Salaried employees offered a traditional group 
health plan; hourly employees offered an HRA--(A) Facts. Plan Sponsor J 
has 163 salaried employees and 14 hourly employees. For 2020, Plan 
Sponsor J offers its 163 salaried employees a traditional group health 
plan and each of its 14 hourly employees an HRA on the same terms. Plan 
Sponsor J reasonably expects to employ 177 employees on the first day of 
the HRA plan year.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is not satisfied in this paragraph (f)(1)(xii) (Example 12) 
because, even though salaried and hourly employees generally may be 
considered different classes and Plan Sponsor J offers the HRA on the 
same terms to all hourly employees, the HRA fails to satisfy the minimum 
class size requirement. Specifically, the minimum class size requirement 
applies in this paragraph (f)(1)(xii) (Example 12) because employees who 
are paid on a salaried basis and employees who are not paid on a 
salaried basis are applicable classes subject to the minimum class size 
requirement. Because Plan Sponsor J reasonably expects to employ between 
100 and 200 employees on the first day of the plan year, the applicable 
class size minimum is 10 percent, rounded down to a whole number. Ten 
percent of 177 total employees, rounded down to a whole number is 17, 
and the HRA is offered to only 14 hourly employees.
    (xiii) Example 13: Part-time employees and full-time employees 
offered different HRAs; no traditional group health plan offered--(A) 
Facts. Plan Sponsor K has 50 full-time employees and 7 part-time

[[Page 539]]

employees. For 2020, Plan Sponsor K offers its 50 full-time employees 
$2,000 each in an HRA otherwise provided on the same terms and each of 
its 7 part-time employees $500 in an HRA otherwise provided on the same 
terms. Plan Sponsor K reasonably expects to employ 57 employees on the 
first day of the HRA plan year.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(xiii) (Example 13) 
because full-time employees and part-time employees may be treated as 
different classes and Plan Sponsor K offers an HRA on the same terms to 
all the participants in each class. The minimum class size requirement 
does not apply to either the full-time class or the part-time class 
because (although in certain circumstances the minimum class size 
requirement applies to a class of full-time employees and a class of 
part-time employees) Plan Sponsor K does not offer any class of 
employees a traditional group health plan, and the minimum class size 
requirement applies only when, among other things, at least one class of 
employees is offered a traditional group health plan while another class 
is offered an HRA.
    (xiv) Example 14: No employees offered an HRA--(A) Facts. The facts 
are the same facts as in paragraph (f)(1)(xiii) of this section (Example 
13), except that Plan Sponsor K offers its full-time employees a 
traditional group health plan and does not offer any group health plan 
(either a traditional group health plan or an HRA) to its part-time 
employees.
    (B) Conclusion. The regulations set forth under this section do not 
apply to Plan Sponsor K because Plan Sponsor K does not offer an 
individual coverage HRA to any employee.
    (xv) Example 15: Full-time employees offered traditional group 
health plan; part-time employees offered HRA--(A) Facts. The facts are 
the same as in paragraph (f)(1)(xiii) of this section (Example 13), 
except that Plan Sponsor K offers its full-time employees a traditional 
group health plan and offers each of its part-time employees $500 in an 
HRA and otherwise on the same terms.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is not satisfied in this paragraph (f)(1)(xv) (Example 15) 
because, even though the full-time employees and the part-time employees 
generally may be treated as different classes, in this paragraph 
(f)(1)(xv) (Example 15), the minimum class size requirement applies to 
the part-time employees, and it is not satisfied. Specifically, the 
minimum class size requirement applies to the part-time employees 
because that requirement applies to an applicable class offered an HRA 
when one class is offered a traditional group health plan while another 
class is offered an HRA, and to the part-time and full-time employee 
classes when one of those classes is offered a traditional group health 
plan while the other is offered an HRA. Because Plan Sponsor K 
reasonably expects to employ fewer than 100 employees on the first day 
of the HRA plan year, the applicable class size minimum for Plan Sponsor 
K is 10 employees, but Plan Sponsor K offered the HRA only to its 7 
part-time employees.
    (xvi) Example 16: Satisfying minimum class size requirement based on 
employees offered HRA--(A) Facts. Plan Sponsor L employs 78 full-time 
employees and 12 part-time employees. For 2020, Plan Sponsor L offers 
its 78 full-time employees a traditional group health plan and each of 
its 12 part-times employees an HRA on the same terms. Only 6 part-time 
employees enroll in the HRA. Plan Sponsor L reasonably expects to employ 
fewer than 100 employees on the first day of the HRA plan year.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(xvi) (Example 16) 
because full-time employees and part-time employees may be treated as 
different classes, Plan Sponsor L offers an HRA on the same terms to all 
the participants in the part-time class, and the minimum class size 
requirement is satisfied. Specifically, whether a class of employees 
satisfies the applicable class size minimum is determined as of the 
first day of the plan year based on the number of employees in a class 
that is offered an HRA, not on the number of employees who enroll in the 
HRA. The applicable class size minimum for Plan Sponsor L

[[Page 540]]

is 10 employees, and Plan Sponsor L offered the HRA to its 12 part-time 
employees.
    (xvii) Example 17: Student employees offered student premium 
reduction arrangements and same terms requirement--(A) Facts. Plan 
Sponsor M is an institution of higher education that offers each of its 
part-time employees an HRA on the same terms, except that it offers its 
part-time employees who are student employees a student premium 
reduction arrangement, and the student premium reduction arrangement 
provides different amounts to different part-time student employees.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(1)(xvii) (Example 17) 
because Plan Sponsor M offers the HRA on the same terms to its part-time 
employees who are not students and because the part-time student 
employees offered a student premium reduction arrangement (and their 
varying HRAs) are not taken into account as part-time employees for 
purposes of determining whether a class of employees is offered an HRA 
on the same terms.
    (xiii) Example 18: Student employees offered student premium 
reduction arrangements and minimum class size requirement--(A) Facts. 
Plan Sponsor N is an institution of higher education with 25 hourly 
employees. Plan Sponsor N offers 15 of its hourly employees, who are 
student employees, a student premium reduction arrangement and it wants 
to offer its other 10 hourly employees an HRA for 2022. Plan Sponsor N 
offers its salaried employees a traditional group health plan. Plan 
Sponsor N reasonably expects to have 250 employees on the first day of 
the 2022 HRA plan year, 15 of which will have offers of student premium 
reduction arrangements.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is not satisfied in this paragraph (f)(1)(xviii) (Example 
18). The minimum class size requirement will apply to the class of 
hourly employees to which Plan Sponsor N wants to offer the HRA because 
Plan Sponsor N offers a class of employees a traditional group health 
plan and another class the HRA, and the minimum class size requirement 
generally applies to a class of hourly employees offered an HRA. Plan 
Sponsor N's applicable class size minimum is 20 because Plan Sponsor N 
reasonably expects to employ 235 employees on the first day of the plan 
year (250 employees minus 15 employees receiving a student premium 
reduction arrangement). Plan Sponsor N may not offer the HRA to its 
hourly employees because the 10 employees offered the HRA as of the 
first day of the plan year does not satisfy the applicable class size 
minimum.
    (2) Examples regarding special rule for new hires. The following 
examples illustrate the provisions of paragraph (c)(3) of this section, 
taking into account the provisions of paragraph (d) of this section, in 
particular the special rule for new hires under paragraph (d)(5) of this 
section. In each example, the HRA is an individual coverage HRA that has 
a calendar year plan year and may reimburse any medical care expenses, 
including premiums for individual health insurance coverage. The 
examples also assume that no participants or dependents are Medicare 
beneficiaries.
    (i) Example 1: Application of special rule for new hires to all 
employees--(A) Facts. For 2021, Plan Sponsor A offers all employees a 
traditional group health plan. For 2022, Plan Sponsor A offers all 
employees hired on or after January 1, 2022, an HRA on the same terms 
and continues to offer the traditional group health plan to employees 
hired before that date. On the first day of the 2022 plan year, Plan 
Sponsor A has 2 new hires who are offered the HRA.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(2)(i) (Example 1) 
because, under the special rule for new hires in paragraph (d)(5) of 
this section, the employees newly hired on and after January 1, 2022, 
may be treated as a new hire subclass, Plan Sponsor A offers the HRA on 
the same terms to all participants in the new hire subclass, and the 
minimum class size requirement does not apply to the new hire subclass.
    (ii) Example 2: Application of special rule for new hires to full-
time employees--(A) Facts. For 2021, Plan Sponsor B offers a traditional 
group health plan to its full-time employees and does not

[[Page 541]]

offer any coverage to its part-time employees. For 2022, Plan Sponsor B 
offers full-time employees hired on or after January 1, 2022, an HRA on 
the same terms, continues to offer its full-time employees hired before 
that date a traditional group health plan, and continues to offer no 
coverage to its part-time employees. On the first day of the 2022 plan 
year, Plan Sponsor B has 2 new hire, full-time employees who are offered 
the HRA.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(2)(ii) (Example 2) 
because, under the special rule for new hires in paragraph (d)(5) of 
this section, the full-time employees newly hired on and after January 
1, 2022, may be treated as a new hire subclass and Plan Sponsor B offers 
the HRA on the same terms to all participants in the new hire subclass. 
The minimum class size requirement does not apply to the new hire 
subclass.
    (iii) Example 3: Special rule for new hires impermissibly applied 
retroactively--(A) Facts. For 2025, Plan Sponsor C offers a traditional 
group health plan to its full-time employees. For 2026, Plan Sponsor C 
wants to offer an HRA to its full-time employees hired on and after 
January 1, 2023, while continuing to offer a traditional group health 
plan to its full-time employees hired before January 1, 2023.
    (B) Conclusion. The special rule for new hires under paragraph 
(d)(5) of this section does not apply in this paragraph (f)(2)(iii) 
(Example 3) because the rule must be applied prospectively. That is, 
Plan Sponsor C may not, in 2026, choose to apply the special rule for 
new hires retroactive to 2023. If Plan Sponsor C were to offer an HRA in 
this way, it would fail to satisfy the conditions under paragraphs 
(c)(2) and (3) of this section because the new hire subclass would not 
be treated as a subclass for purposes of applying those rules and, 
therefore, all full-time employees would be treated as one class to 
which either a traditional group health plan or an HRA could be offered, 
but not both.
    (iv) Example 4: Permissible second application of the special rule 
for new hires to the same class of employees--(A) Facts. For 2021, Plan 
Sponsor D offers all of its full-time employees a traditional group 
health plan. For 2022, Plan Sponsor D applies the special rule for new 
hires and offers an HRA on the same terms to all employees hired on and 
after January 1, 2022, and continues to offer a traditional group health 
plan to full-time employees hired before that date. For 2025, Plan 
Sponsor D discontinues use of the special rule for new hires, and again 
offers all full-time employees a traditional group health plan. In 2030, 
Plan Sponsor D decides to apply the special rule for new hires to the 
full-time employee class again, offering an HRA to all full-time 
employees hired on and after January 1, 2030, on the same terms, while 
continuing to offer employees hired before that date a traditional group 
health plan.
    (B) Conclusion. Plan Sponsor D has permissibly applied the special 
rule for new hires and is in compliance with the requirements of 
paragraphs (c)(2) and (3) of this section.
    (v) Example 5: Impermissible second application of the special rule 
for new hires to the same class of employees--(A) Facts. The facts are 
the same as in paragraph (f)(2)(iv) of this section (Example 4), except 
that for 2025, Plan Sponsor D discontinues use of the special rule for 
new hires by offering all full-time employees an HRA on the same terms. 
Further, for 2030, Plan Sponsor D wants to continue to offer an HRA on 
the same terms to all full-time employees hired before January 1, 2030, 
and to offer all full-time employees hired on or after January 1, 2030, 
an HRA in a different amount.
    (B) Conclusion. Plan Sponsor D may not apply the special rule for 
new hires for 2030 to the class of full-time employees being offered an 
HRA because the special rule for new hires may only be applied to a 
class that is being offered a traditional group health plan.
    (vi) Example 6: New full-time employees offered different HRAs in 
different rating areas--(A) Facts. Plan Sponsor E has work sites in 
rating area 1, rating area 2, and rating area 3. For 2021, Plan Sponsor 
E offers its full-time employees a traditional group health plan. For 
2022, Plan Sponsor E offers its full-time employees hired on or after 
January 1, 2022, in rating area 1 an HRA of $3,000, its full-time 
employees hired on or

[[Page 542]]

after January 1, 2022, in rating area 2 an HRA of $5,000, and its full-
time employees hired on or after January 1, 2022, in rating area 3 an 
HRA of $7,000. Within each class offered an HRA, Plan Sponsor E offers 
the HRA on the same terms. Plan Sponsor E offers its full-time employees 
hired prior to January 1, 2022, in each of those classes a traditional 
group health plan. On the first day of the 2022 plan year, there is one 
new hire, full-time employee in rating area 1, three new hire, full-time 
employees in rating area 2, and 10 new hire-full-time employees in 
rating area 3.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(2)(vi) (Example 6) 
because, under the special rule for new hires in paragraph (d)(5) of 
this section, the full-time employees in each of the three rating areas 
newly hired on and after January 1, 2022, may be treated as three new 
hire subclasses and Plan Sponsor E offers the HRA on the same terms to 
all participants in the new hire subclasses. Further, the minimum class 
size requirement does not apply to the new hire subclasses.
    (vii) Example 7: New full-time employee class subdivided based on 
rating area--(A) Facts. Plan Sponsor F offers its full-time employees 
hired on or after January 1, 2022, an HRA on the same terms and it 
continues to offer its full-time employees hired before that date a 
traditional group health plan. Plan Sponsor F offers no coverage to its 
part-time employees. For the 2025 plan year, Plan Sponsor F wants to 
subdivide the full-time new hire subclass so that those whose work site 
is in rating area 1 will be offered the traditional group health plan 
and those whose work site is in rating area 2 will continue to receive 
the HRA. Plan Sponsor F reasonably expects to employ 219 employees on 
January 1, 2025. As of January 1, 2025, Plan Sponsor F has 15 full-time 
employees whose work site in in rating area 2 and who were hired between 
January 1, 2022, and January 1, 2025.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is not satisfied in this paragraph (f)(2)(vii) (Example 7) 
because the new hire subclass has been subdivided in a manner that is 
subject to the minimum class size requirement, and the class offered the 
HRA fails to satisfy the minimum class size requirement. Specifically, 
once the new hire subclass is subdivided the general rules for applying 
the minimum class size requirement apply to the employees offered the 
HRA in the new hire subclass. In this case, because the subdivision of 
the new hire full-time subclass is based on rating areas; a class based 
on rating areas is an applicable class subject to the minimum class size 
requirement; and the employees in one rating area are to be offered the 
HRA, while the employees in the other rating area are offered the 
traditional group health plan, the minimum class size requirement would 
apply on and after the date of the subdivision. Further, the minimum 
class size requirement would not be satisfied, because the applicable 
class size minimum for Plan Sponsor F would be 20, and only 15 employees 
in rating area 2 would be offered the HRA.
    (viii) Example 8: New full-time employee class subdivided based on 
state--(A) Facts. The facts are the same as in paragraph (f)(2)(vii) of 
this section (Example 7), except that for the 2025 plan year, Plan 
Sponsor F intends to subdivide the new hire, full-time class so that 
those in State 1 will be offered the traditional group health plan and 
those in State 2 will each be offered an HRA on the same terms.
    (B) Conclusion. The same terms requirement of paragraph (c)(3) of 
this section is satisfied in this paragraph (f)(2)(viii) (Example 8) 
because even though the new hire subclass has been subdivided, it has 
been subdivided in a manner that is not subject to the minimum class 
size requirement as the subdivision is based on the entire state.
    (ix) Example 9: New full-time employees and part-time employees 
offered HRA--(A) Facts. In 2021, Plan Sponsor G offers its full-time 
employees a traditional group health plan and does not offer coverage to 
its part-time employees. For the 2022 plan year, Plan Sponsor G offers 
its full-time employees hired on or after January 1, 2022, and all of 
its part-time employees, including those hired before January 1, 2022, 
and those hired on and after January 1, 2022, an

[[Page 543]]

HRA on the same terms, and it continues to offer its full-time employees 
hired before January 1, 2022, a traditional group health plan.
    (B) Conclusion. The minimum class size requirement applies to the 
part-time employees offered the HRA in 2022 because the class is being 
offered an HRA; the special rule for new hires does not apply (because 
this class was not previously offered a traditional group health plan) 
and so it is not a new hire subclass exempt from the minimum class size 
requirement; another class of employees (that is, full-time hired before 
January 1, 2022) are being offered a traditional group health plan; and 
the part-time employee class is generally an applicable classes that is 
subject to the minimum class size requirement. However, because the 
full-time, new hire subclass is based on the special rule for new hires, 
the minimum class size requirement does not apply to full-time new hires 
offered an HRA in 2022.
    (g) Applicability date. This section applies to plan years beginning 
on or after January 1, 2020.

[T.D. 9867, 84 FR 28987, June 20, 2019]



Sec.  54.9811-1  Standards relating to benefits for mothers and newborns.

    (a) Hospital length of stay--(1) General rule. Except as provided in 
paragraph (a)(5) of this section, a group health plan that provides 
benefits for a hospital length of stay in connection with childbirth for 
a mother or her newborn may not restrict benefits for the stay to less 
than--
    (i) 48 hours following a vaginal delivery; or
    (ii) 96 hours following a delivery by cesarean section.
    (2) When stay begins--(i) Delivery in a hospital. If delivery occurs 
in a hospital, the hospital length of stay for the mother or newborn 
child begins at the time of delivery (or in the case of multiple births, 
at the time of the last delivery).
    (ii) Delivery outside a hospital. If delivery occurs outside a 
hospital, the hospital length of stay begins at the time the mother or 
newborn is admitted as a hospital inpatient in connection with 
childbirth. The determination of whether an admission is in connection 
with childbirth is a medical decision to be made by the attending 
provider.
    (3) Examples. The rules of paragraphs (a)(1) and (2) of this section 
are illustrated by the following examples. In each example, the group 
health plan provides benefits for hospital lengths of stay in connection 
with childbirth and is subject to the requirements of this section, as 
follows:

    Example 1. (i) Facts. A pregnant woman covered under a group health 
plan goes into labor and is admitted to the hospital at 10 p.m. on June 
11. She gives birth by vaginal delivery at 6 a.m. on June 12.
    (ii) Conclusion. In this Example 1, the 48-hour period described in 
paragraph (a)(1)(i) of this section ends at 6 a.m. on June 14.
    Example 2. (i) Facts. A woman covered under a group health plan 
gives birth at home by vaginal delivery. After the delivery, the woman 
begins bleeding excessively in connection with the childbirth and is 
admitted to the hospital for treatment of the excessive bleeding at 7 
p.m. on October 1.
    (ii) Conclusion. In this Example 2, the 48-hour period described in 
paragraph (a)(1)(i) of this section ends at 7 p.m. on October 3.
    Example 3. (i) Facts. A woman covered under a group health plan 
gives birth by vaginal delivery at home. The child later develops 
pneumonia and is admitted to the hospital. The attending provider 
determines that the admission is not in connection with childbirth.
    (ii) Conclusion. In this Example 3, the hospital length-of-stay 
requirements of this section do not apply to the child's admission to 
the hospital because the admission is not in connection with childbirth.

    (4) Authorization not required--(i) In general. A plan may not 
require that a physician or other health care provider obtain 
authorization from the plan, or from a health insurance issuer offering 
health insurance coverage under the plan, for prescribing the hospital 
length of stay specified in paragraph (a)(1) of this section. (See also 
paragraphs (b)(2) and (c)(3) of this section for rules and examples 
regarding other authorization and certain notice requirements.)
    (ii) Example. The rule of this paragraph (a)(4) is illustrated by 
the following example:

    Example. (i) Facts. In the case of a delivery by cesarean section, a 
group health plan subject to the requirements of this section 
automatically provides benefits for any hospital length of stay of up to 
72 hours. For any longer stay, the plan requires an attending

[[Page 544]]

provider to complete a certificate of medical necessity. The plan then 
makes a determination, based on the certificate of medical necessity, 
whether a longer stay is medically necessary.
    (ii) Conclusion. In this Example, the requirement that an attending 
provider complete a certificate of medical necessity to obtain 
authorization for the period between 72 hours and 96 hours following a 
delivery by cesarean section is prohibited by this paragraph (a)(4).

    (5) Exceptions--(i) Discharge of mother. If a decision to discharge 
a mother earlier than the period specified in paragraph (a)(1) of this 
section is made by an attending provider, in consultation with the 
mother, the requirements of paragraph (a)(1) of this section do not 
apply for any period after the discharge.
    (ii) Discharge of newborn. If a decision to discharge a newborn 
child earlier than the period specified in paragraph (a)(1) of this 
section is made by an attending provider, in consultation with the 
mother (or the newborn's authorized representative), the requirements of 
paragraph (a)(1) of this section do not apply for any period after the 
discharge.
    (iii) Attending provider defined. For purposes of this section, 
attending provider means an individual who is licensed under applicable 
state law to provide maternity or pediatric care and who is directly 
responsible for providing maternity or pediatric care to a mother or 
newborn child. Therefore, a plan, hospital, managed care organization, 
or other issuer is not an attending provider.
    (iv) Example. The rules of this paragraph (a)(5) are illustrated by 
the following example:

    Example. (i) Facts. A pregnant woman covered under a group health 
plan subject to the requirements of this section goes into labor and is 
admitted to a hospital. She gives birth by cesarean section. On the 
third day after the delivery, the attending provider for the mother 
consults with the mother, and the attending provider for the newborn 
consults with the mother regarding the newborn. The attending providers 
authorize the early discharge of both the mother and the newborn. Both 
are discharged approximately 72 hours after the delivery. The plan pays 
for the 72-hour hospital stays.
    (ii) Conclusion. In this Example, the requirements of this paragraph 
(a) have been satisfied with respect to the mother and the newborn. If 
either is readmitted, the hospital stay for the readmission is not 
subject to this section.

    (b) Prohibitions--(1) With respect to mothers--(i) In general. A 
group health plan may not--
    (A) Deny a mother or her newborn child eligibility or continued 
eligibility to enroll or renew coverage under the terms of the plan 
solely to avoid the requirements of this section; or
    (B) Provide payments (including payments-in-kind) or rebates to a 
mother to encourage her to accept less than the minimum protections 
available under this section.
    (ii) Examples. The rules of this paragraph (b)(1) are illustrated by 
the following examples. In each example, the group health plan is 
subject to the requirements of this section, as follows:

    Example 1. (i) Facts. A group health plan provides benefits for at 
least a 48-hour hospital length of stay following a vaginal delivery. If 
a mother and newborn covered under the plan are discharged within 24 
hours after the delivery, the plan will waive the copayment and 
deductible.
    (ii) Conclusion. In this Example 1, because waiver of the copayment 
and deductible is in the nature of a rebate that the mother would not 
receive if she and her newborn remained in the hospital, it is 
prohibited by this paragraph (b)(1). (In addition, the plan violates 
paragraph (b)(2) of this section because, in effect, no copayment or 
deductible is required for the first portion of the stay and a double 
copayment and a deductible are required for the second portion of the 
stay.)
    Example 2. (i) Facts. A group health plan provides benefits for at 
least a 48-hour hospital length of stay following a vaginal delivery. In 
the event that a mother and her newborn are discharged earlier than 48 
hours and the discharges occur after consultation with the mother in 
accordance with the requirements of paragraph (a)(5) of this section, 
the plan provides for a follow-up visit by a nurse within 48 hours after 
the discharges to provide certain services that the mother and her 
newborn would otherwise receive in the hospital.
    (ii) Conclusion. In this Example 2, because the follow-up visit does 
not provide any services beyond what the mother and her newborn would 
receive in the hospital, coverage for the follow-up visit is not 
prohibited by this paragraph (b)(1).

    (2) With respect to benefit restrictions--(i) In general. Subject to 
paragraph (c)(3) of this section, a group health plan may not restrict 
the benefits for

[[Page 545]]

any portion of a hospital length of stay specified in paragraph (a) of 
this section in a manner that is less favorable than the benefits 
provided for any preceding portion of the stay.
    (ii) Example. The rules of this paragraph (b)(2) are illustrated by 
the following example:

    Example. (i) Facts. A group health plan subject to the requirements 
of this section provides benefits for hospital lengths of stay in 
connection with childbirth. In the case of a delivery by cesarean 
section, the plan automatically pays for the first 48 hours. With 
respect to each succeeding 24-hour period, the participant or 
beneficiary must call the plan to obtain precertification from a 
utilization reviewer, who determines if an additional 24-hour period is 
medically necessary. If this approval is not obtained, the plan will not 
provide benefits for any succeeding 24-hour period.
    (ii) Conclusion. In this Example, the requirement to obtain 
precertification for the two 24-hour periods immediately following the 
initial 48-hour stay is prohibited by this paragraph (b)(2) because 
benefits for the latter part of the stay are restricted in a manner that 
is less favorable than benefits for a preceding portion of the stay. 
(However, this section does not prohibit a plan from requiring 
precertification for any period after the first 96 hours.) In addition, 
the requirement to obtain precertification from the plan based on 
medical necessity for a hospital length of stay within the 96-hour 
period would also violate paragraph (a) of this section.

    (3) With respect to attending providers. A group health plan may not 
directly or indirectly--
    (i) Penalize (for example, take disciplinary action against or 
retaliate against), or otherwise reduce or limit the compensation of, an 
attending provider because the provider furnished care to a participant 
or beneficiary in accordance with this section; or
    (ii) Provide monetary or other incentives to an attending provider 
to induce the provider to furnish care to a participant or beneficiary 
in a manner inconsistent with this section, including providing any 
incentive that could induce an attending provider to discharge a mother 
or newborn earlier than 48 hours (or 96 hours) after delivery.
    (c) Construction. With respect to this section, the following rules 
of construction apply:
    (1) Hospital stays not mandatory. This section does not require a 
mother to--
    (i) Give birth in a hospital; or
    (ii) Stay in the hospital for a fixed period of time following the 
birth of her child.
    (2) Hospital stay benefits not mandated. This section does not apply 
to any group health plan that does not provide benefits for hospital 
lengths of stay in connection with childbirth for a mother or her 
newborn child.
    (3) Cost-sharing rules--(i) In general. This section does not 
prevent a group health plan from imposing deductibles, coinsurance, or 
other cost-sharing in relation to benefits for hospital lengths of stay 
in connection with childbirth for a mother or a newborn under the plan 
or coverage, except that the coinsurance or other cost-sharing for any 
portion of the hospital length of stay specified in paragraph (a) of 
this section may not be greater than that for any preceding portion of 
the stay.
    (ii) Examples. The rules of this paragraph (c)(3) are illustrated by 
the following examples. In each example, the group health plan is 
subject to the requirements of this section, as follows:

    Example 1. (i) Facts. A group health plan provides benefits for at 
least a 48-hour hospital length of stay in connection with vaginal 
deliveries. The plan covers 80 percent of the cost of the stay for the 
first 24-hour period and 50 percent of the cost of the stay for the 
second 24-hour period. Thus, the coinsurance paid by the patient 
increases from 20 percent to 50 percent after 24 hours.
    (ii) Conclusion. In this Example 1, the plan violates the rules of 
this paragraph (c)(3) because coinsurance for the second 24-hour period 
of the 48-hour stay is greater than that for the preceding portion of 
the stay. (In addition, the plan also violates the similar rule in 
paragraph (b)(2) of this section.)
    Example 2. (i) Facts. A group health plan generally covers 70 
percent of the cost of a hospital length of stay in connection with 
childbirth. However, the plan will cover 80 percent of the cost of the 
stay if the participant or beneficiary notifies the plan of the 
pregnancy in advance of admission and uses whatever hospital the plan 
may designate.
    (ii) Conclusion. In this Example 2, the plan does not violate the 
rules of this paragraph (c)(3) because the level of benefits provided 
(70 percent or 80 percent) is consistent throughout the 48-hour (or 96-
hour) hospital length of stay required under paragraph (a) of this 
section. (In addition, the plan does

[[Page 546]]

not violate the rules in paragraph (a)(4) or (b)(2) of this section.)

    (4) Compensation of attending provider. This section does not 
prevent a group health plan from negotiating with an attending provider 
the level and type of compensation for care furnished in accordance with 
this section (including paragraph (b) of this section).
    (d) Notice requirement. See 29 CFR 2520.102-3(u) for rules relating 
to a disclosure requirement imposed under section 711(d) of ERISA (29 
U.S.C. 1181) on certain group health plans that provide benefits for 
hospital lengths of stay in connection with childbirth.
    (e) Applicability in certain states--(1) Health insurance coverage. 
The requirements of section 9811 and this section do not apply with 
respect to health insurance coverage offered in connection with a group 
health plan if there is a state law regulating the coverage that meets 
any of the following criteria:
    (i) The state law requires the coverage to provide for at least a 
48-hour hospital length of stay following a vaginal delivery and at 
least a 96-hour hospital length of stay following a delivery by cesarean 
section.
    (ii) The state law requires the coverage to provide for maternity 
and pediatric care in accordance with guidelines that relate to care 
following childbirth established by the American College of 
Obstetricians and Gynecologists, the American Academy of Pediatrics, or 
any other established professional medical association.
    (iii) The state law requires, in connection with the coverage for 
maternity care, that the hospital length of stay for such care is left 
to the decision of (or is required to be made by) the attending provider 
in consultation with the mother. State laws that require the decision to 
be made by the attending provider with the consent of the mother satisfy 
the criterion of this paragraph (e)(1)(iii).
    (2) Group health plans--(i) Fully-insured plans. For a group health 
plan that provides benefits solely through health insurance coverage, if 
the state law regulating the health insurance coverage meets any of the 
criteria in paragraph (e)(1) of this section, then the requirements of 
section 9811 and this section do not apply.
    (ii) Self-insured plans. For a group health plan that provides all 
benefits for hospital lengths of stay in connection with childbirth 
other than through health insurance coverage, the requirements of 
section 9811 and this section apply.
    (iii) Partially-insured plans. For a group health plan that provides 
some benefits through health insurance coverage, if the state law 
regulating the health insurance coverage meets any of the criteria in 
paragraph (e)(1) of this section, then the requirements of section 9811 
and this section apply only to the extent the plan provides benefits for 
hospital lengths of stay in connection with childbirth other than 
through health insurance coverage.
    (3) Preemption provisions under section 731(a) of ERISA. See 29 CFR 
2590.711(e)(3) for a rule providing that the preemption provisions 
contained in section 731(a)(1) of ERISA and 29 CFR 2590.731(a) do not 
supersede a state law if the state law is described in paragraph (e)(1) 
of 29 CFR 2590.711 (which is substantially similar to paragraph (e)(1) 
of this section).
    (4) Examples. The rules of this paragraph (e) are illustrated by the 
following examples:

    Example 1. (i) Facts. A group health plan buys group health 
insurance coverage in a state that requires that the coverage provide 
for at least a 48-hour hospital length of stay following a vaginal 
delivery and at least a 96-hour hospital length of stay following a 
delivery by cesarean section.
    (ii) Conclusion. In this Example 1, the coverage is subject to state 
law, and the requirements of section 9811 and this section do not apply.
    Example 2. (i) Facts. A self-insured group health plan covers 
hospital lengths of stay in connection with childbirth in a state that 
requires health insurance coverage to provide for maternity and 
pediatric care in accordance with guidelines that relate to care 
following childbirth established by the American College of 
Obstetricians and Gynecologists and the American Academy of Pediatrics.
    (ii) Conclusion. In this Example 2, even though the state law 
satisfies the criterion of paragraph (e)(1)(ii) of this section, because 
the plan provides benefits for hospital lengths of stay in connection 
with childbirth other than through health insurance coverage, the plan 
is subject to the requirements of section 9811 and this section.


[[Page 547]]


    (f) Effective/applicability date. This section applies to group 
health plans for plan years beginning on or after January 1, 2009.

[T.D. 9427, 73 FR 62420, Oct. 20, 2008]



Sec.  54.9812-1  Parity in mental health and substance use disorder benefits.

    (a) Meaning of terms. For purposes of this section, except where the 
context clearly indicates otherwise, the following terms have the 
meanings indicated:
    Aggregate lifetime dollar limit means a dollar limitation on the 
total amount of specified benefits that may be paid under a group health 
plan (or health insurance coverage offered in connection with such a 
plan) for any coverage unit.
    Annual dollar limit means a dollar limitation on the total amount of 
specified benefits that may be paid in a 12-month period under a group 
health plan (or health insurance coverage offered in connection with 
such a plan) for any coverage unit.
    Coverage unit means coverage unit as described in paragraph 
(c)(1)(iv) of this section.
    Cumulative financial requirements are financial requirements that 
determine whether or to what extent benefits are provided based on 
accumulated amounts and include deductibles and out-of-pocket maximums. 
(However, cumulative financial requirements do not include aggregate 
lifetime or annual dollar limits because these two terms are excluded 
from the meaning of financial requirements.)
    Cumulative quantitative treatment limitations are treatment 
limitations that determine whether or to what extent benefits are 
provided based on accumulated amounts, such as annual or lifetime day or 
visit limits.
    Financial requirements include deductibles, copayments, coinsurance, 
or out-of-pocket maximums. Financial requirements do not include 
aggregate lifetime or annual dollar limits.
    Medical/surgical benefits means benefits with respect to items or 
services for medical conditions or surgical procedures, as defined under 
the terms of the plan or health insurance coverage and in accordance 
with applicable Federal and State law, but does not include mental 
health or substance use disorder benefits. Any condition defined by the 
plan or coverage as being or as not being a medical/surgical condition 
must be defined to be consistent with generally recognized independent 
standards of current medical practice (for example, the most current 
version of the International Classification of Diseases (ICD) or State 
guidelines).
    Mental health benefits means benefits with respect to items or 
services for mental health conditions, as defined under the terms of the 
plan or health insurance coverage and in accordance with applicable 
Federal and State law. Any condition defined by the plan or coverage as 
being or as not being a mental health condition must be defined to be 
consistent with generally recognized independent standards of current 
medical practice (for example, the most current version of the 
Diagnostic and Statistical Manual of Mental Disorders (DSM), the most 
current version of the ICD, or State guidelines).
    Substance use disorder benefits means benefits with respect to items 
or services for substance use disorders, as defined under the terms of 
the plan or health insurance coverage and in accordance with applicable 
Federal and State law. Any disorder defined by the plan as being or as 
not being a substance use disorder must be defined to be consistent with 
generally recognized independent standards of current medical practice 
(for example, the most current version of the DSM, the most current 
version of the ICD, or State guidelines).
    Treatment limitations include limits on benefits based on the 
frequency of treatment, number of visits, days of coverage, days in a 
waiting period, or other similar limits on the scope or duration of 
treatment. Treatment limitations include both quantitative treatment 
limitations, which are expressed numerically (such as 50 outpatient 
visits per year), and nonquantitative treatment limitations, which 
otherwise limit the scope or duration of benefits for treatment under a 
plan or coverage. (See paragraph (c)(4)(ii) of this section

[[Page 548]]

for an illustrative list of nonquantitative treatment limitations.) A 
permanent exclusion of all benefits for a particular condition or 
disorder, however, is not a treatment limitation for purposes of this 
definition.
    (b) Parity requirements with respect to aggregate lifetime and 
annual dollar limits. This paragraph (b) details the application of the 
parity requirements with respect to aggregate lifetime and annual dollar 
limits. This paragraph (b) does not address the provisions of PHS Act 
section 2711, as incorporated in ERISA section 715 and Code section 
9815, which prohibit imposing lifetime and annual limits on the dollar 
value of essential health benefits.
    (1) General--(i) General parity requirement. A group health plan (or 
health insurance coverage offered by an issuer in connection with a 
group health plan) that provides both medical/surgical benefits and 
mental health or substance use disorder benefits must comply with 
paragraph (b)(2), (b)(3), or (b)(5) of this section.
    (ii) Exception. The rule in paragraph (b)(1)(i) of this section does 
not apply if a plan (or health insurance coverage) satisfies the 
requirements of paragraph (f) or (g) of this section (relating to 
exemptions for small employers and for increased cost).
    (2) Plan with no limit or limits on less than one-third of all 
medical/surgical benefits. If a plan (or health insurance coverage) does 
not include an aggregate lifetime or annual dollar limit on any medical/
surgical benefits or includes an aggregate lifetime or annual dollar 
limit that applies to less than one-third of all medical/surgical 
benefits, it may not impose an aggregate lifetime or annual dollar 
limit, respectively, on mental health or substance use disorder 
benefits.
    (3) Plan with a limit on at least two-thirds of all medical/surgical 
benefits. If a plan (or health insurance coverage) includes an aggregate 
lifetime or annual dollar limit on at least two-thirds of all medical/
surgical benefits, it must either--
    (i) Apply the aggregate lifetime or annual dollar limit both to the 
medical/surgical benefits to which the limit would otherwise apply and 
to mental health or substance use disorder benefits in a manner that 
does not distinguish between the medical/surgical benefits and mental 
health or substance use disorder benefits; or
    (ii) Not include an aggregate lifetime or annual dollar limit on 
mental health or substance use disorder benefits that is less than the 
aggregate lifetime or annual dollar limit, respectively, on medical/
surgical benefits. (For cumulative limits other than aggregate lifetime 
or annual dollar limits, see paragraph (c)(3)(v) of this section 
prohibiting separately accumulating cumulative financial requirements or 
cumulative quantitative treatment limitations.)
    (4) Determining one-third and two-thirds of all medical/surgical 
benefits. For purposes of this paragraph (b), the determination of 
whether the portion of medical/surgical benefits subject to an aggregate 
lifetime or annual dollar limit represents one-third or two-thirds of 
all medical/surgical benefits is based on the dollar amount of all plan 
payments for medical/surgical benefits expected to be paid under the 
plan for the plan year (or for the portion of the plan year after a 
change in plan benefits that affects the applicability of the aggregate 
lifetime or annual dollar limits). Any reasonable method may be used to 
determine whether the dollar amount expected to be paid under the plan 
will constitute one-third or two-thirds of the dollar amount of all plan 
payments for medical/surgical benefits.
    (5) Plan not described in paragraph (b)(2) or (b)(3) of this 
section--(i) In general. A group health plan (or health insurance 
coverage) that is not described in paragraph (b)(2) or (b)(3) of this 
section with respect to aggregate lifetime or annual dollar limits on 
medical/surgical benefits, must either--
    (A) Impose no aggregate lifetime or annual dollar limit, as 
appropriate, on mental health or substance use disorder benefits; or
    (B) Impose an aggregate lifetime or annual dollar limit on mental 
health or substance use disorder benefits that is no less than an 
average limit calculated for medical/surgical benefits in the following 
manner. The average

[[Page 549]]

limit is calculated by taking into account the weighted average of the 
aggregate lifetime or annual dollar limits, as appropriate, that are 
applicable to the categories of medical/surgical benefits. Limits based 
on delivery systems, such as inpatient/outpatient treatment or normal 
treatment of common, low-cost conditions (such as treatment of normal 
births), do not constitute categories for purposes of this paragraph 
(b)(5)(i)(B). In addition, for purposes of determining weighted 
averages, any benefits that are not within a category that is subject to 
a separately-designated dollar limit under the plan are taken into 
account as a single separate category by using an estimate of the upper 
limit on the dollar amount that a plan may reasonably be expected to 
incur with respect to such benefits, taking into account any other 
applicable restrictions under the plan.
    (ii) Weighting. For purposes of this paragraph (b)(5), the weighting 
applicable to any category of medical/surgical benefits is determined in 
the manner set forth in paragraph (b)(4) of this section for determining 
one-third or two-thirds of all medical/surgical benefits.
    (c) Parity requirements with respect to financial requirements and 
treatment limitations--(1) Clarification of terms--(i) Classification of 
benefits. When reference is made in this paragraph (c) to a 
classification of benefits, the term ``classification'' means a 
classification as described in paragraph (c)(2)(ii) of this section.
    (ii) Type of financial requirement or treatment limitation. When 
reference is made in this paragraph (c) to a type of financial 
requirement or treatment limitation, the reference to type means its 
nature. Different types of financial requirements include deductibles, 
copayments, coinsurance, and out-of-pocket maximums. Different types of 
quantitative treatment limitations include annual, episode, and lifetime 
day and visit limits. See paragraph (c)(4)(ii) of this section for an 
illustrative list of nonquantitative treatment limitations.
    (iii) Level of a type of financial requirement or treatment 
limitation. When reference is made in this paragraph (c) to a level of a 
type of financial requirement or treatment limitation, level refers to 
the magnitude of the type of financial requirement or treatment 
limitation. For example, different levels of coinsurance include 20 
percent and 30 percent; different levels of a copayment include $15 and 
$20; different levels of a deductible include $250 and $500; and 
different levels of an episode limit include 21 inpatient days per 
episode and 30 inpatient days per episode.
    (iv) Coverage unit. When reference is made in this paragraph (c) to 
a coverage unit, coverage unit refers to the way in which a plan (or 
health insurance coverage) groups individuals for purposes of 
determining benefits, or premiums or contributions. For example, 
different coverage units include self-only, family, and employee-plus-
spouse.
    (2) General parity requirement--(i) General rule. A group health 
plan (or health insurance coverage offered by an issuer in connection 
with a group health plan) that provides both medical/surgical benefits 
and mental health or substance use disorder benefits may not apply any 
financial requirement or treatment limitation to mental health or 
substance use disorder benefits in any classification that is more 
restrictive than the predominant financial requirement or treatment 
limitation of that type applied to substantially all medical/surgical 
benefits in the same classification. Whether a financial requirement or 
treatment limitation is a predominant financial requirement or treatment 
limitation that applies to substantially all medical/surgical benefits 
in a classification is determined separately for each type of financial 
requirement or treatment limitation. The application of the rules of 
this paragraph (c)(2) to financial requirements and quantitative 
treatment limitations is addressed in paragraph (c)(3) of this section; 
the application of the rules of this paragraph (c)(2) to nonquantitative 
treatment limitations is addressed in paragraph (c)(4) of this section.
    (ii) Classifications of benefits used for applying rules--(A) In 
general. If a plan (or health insurance coverage) provides mental health 
or substance use disorder benefits in any classification of benefits 
described in this paragraph (c)(2)(ii), mental health or substance

[[Page 550]]

use disorder benefits must be provided in every classification in which 
medical/surgical benefits are provided. In determining the 
classification in which a particular benefit belongs, a plan (or health 
insurance issuer) must apply the same standards to medical/surgical 
benefits and to mental health or substance use disorder benefits. To the 
extent that a plan (or health insurance coverage) provides benefits in a 
classification and imposes any separate financial requirement or 
treatment limitation (or separate level of a financial requirement or 
treatment limitation) for benefits in the classification, the rules of 
this paragraph (c) apply separately with respect to that classification 
for all financial requirements or treatment limitations (illustrated in 
examples in paragraph (c)(2)(ii)(C) of this section). The following 
classifications of benefits are the only classifications used in 
applying the rules of this paragraph (c):
    (1) Inpatient, in-network. Benefits furnished on an inpatient basis 
and within a network of providers established or recognized under a plan 
or health insurance coverage. See special rules for plans with multiple 
network tiers in paragraph (c)(3)(iii) of this section.
    (2) Inpatient, out-of-network. Benefits furnished on an inpatient 
basis and outside any network of providers established or recognized 
under a plan or health insurance coverage. This classification includes 
inpatient benefits under a plan (or health insurance coverage) that has 
no network of providers.
    (3) Outpatient, in-network. Benefits furnished on an outpatient 
basis and within a network of providers established or recognized under 
a plan or health insurance coverage. See special rules for office visits 
and plans with multiple network tiers in paragraph (c)(3)(iii) of this 
section.
    (4) Outpatient, out-of-network. Benefits furnished on an outpatient 
basis and outside any network of providers established or recognized 
under a plan or health insurance coverage. This classification includes 
outpatient benefits under a plan (or health insurance coverage) that has 
no network of providers. See special rules for office visits in 
paragraph (c)(3)(iii) of this section.
    (5) Emergency care. Benefits for emergency care.
    (6) Prescription drugs. Benefits for prescription drugs. See special 
rules for multi-tiered prescription drug benefits in paragraph 
(c)(3)(iii) of this section.
    (B) Application to out-of-network providers. See paragraph 
(c)(2)(ii)(A) of this section, under which a plan (or health insurance 
coverage) that provides mental health or substance use disorder benefits 
in any classification of benefits must provide mental health or 
substance use disorder benefits in every classification in which 
medical/surgical benefits are provided, including out-of-network 
classifications.
    (C) Examples. The rules of this paragraph (c)(2)(ii) are illustrated 
by the following examples. In each example, the group health plan is 
subject to the requirements of this section and provides both medical/
surgical benefits and mental health and substance use disorder benefits.

    Example 1. (i) Facts. A group health plan offers inpatient and 
outpatient benefits and does not contract with a network of providers. 
The plan imposes a $500 deductible on all benefits. For inpatient 
medical/surgical benefits, the plan imposes a coinsurance requirement. 
For outpatient medical/surgical benefits, the plan imposes copayments. 
The plan imposes no other financial requirements or treatment 
limitations.
    (ii) Conclusion. In this Example 1, because the plan has no network 
of providers, all benefits provided are out-of-network. Because 
inpatient, out-of-network medical/surgical benefits are subject to 
separate financial requirements from outpatient, out-of-network medical/
surgical benefits, the rules of this paragraph (c) apply separately with 
respect to any financial requirements and treatment limitations, 
including the deductible, in each classification.
    Example 2. (i) Facts. A plan imposes a $500 deductible on all 
benefits. The plan has no network of providers. The plan generally 
imposes a 20 percent coinsurance requirement with respect to all 
benefits, without distinguishing among inpatient, outpatient, emergency 
care, or prescription drug benefits. The plan imposes no other financial 
requirements or treatment limitations.
    (ii) Conclusion. In this Example 2, because the plan does not impose 
separate financial requirements (or treatment limitations) based on 
classification, the rules of this paragraph (c) apply with respect to 
the deductible and the coinsurance across all benefits.

[[Page 551]]

    Example 3. (i) Facts. Same facts as Example 2, except the plan 
exempts emergency care benefits from the 20 percent coinsurance 
requirement. The plan imposes no other financial requirements or 
treatment limitations.
    (ii) Conclusion. In this Example 3, because the plan imposes 
separate financial requirements based on classifications, the rules of 
this paragraph (c) apply with respect to the deductible and the 
coinsurance separately for--
    (A) Benefits in the emergency care classification; and
    (B) All other benefits.
    Example 4. (i) Facts. Same facts as Example 2, except the plan also 
imposes a preauthorization requirement for all inpatient treatment in 
order for benefits to be paid. No such requirement applies to outpatient 
treatment.
    (ii) Conclusion. In this Example 4, because the plan has no network 
of providers, all benefits provided are out-of-network. Because the plan 
imposes a separate treatment limitation based on classifications, the 
rules of this paragraph (c) apply with respect to the deductible and 
coinsurance separately for--
    (A) Inpatient, out-of-network benefits; and
    (B) All other benefits.

    (3) Financial requirements and quantitative treatment limitations--
(i) Determining ``substantially all'' and ``predominant''--(A) 
Substantially all. For purposes of this paragraph (c), a type of 
financial requirement or quantitative treatment limitation is considered 
to apply to substantially all medical/surgical benefits in a 
classification of benefits if it applies to at least two-thirds of all 
medical/surgical benefits in that classification. (For this purpose, 
benefits expressed as subject to a zero level of a type of financial 
requirement are treated as benefits not subject to that type of 
financial requirement, and benefits expressed as subject to a 
quantitative treatment limitation that is unlimited are treated as 
benefits not subject to that type of quantitative treatment limitation.) 
If a type of financial requirement or quantitative treatment limitation 
does not apply to at least two-thirds of all medical/surgical benefits 
in a classification, then that type cannot be applied to mental health 
or substance use disorder benefits in that classification.
    (B) Predominant--(1) If a type of financial requirement or 
quantitative treatment limitation applies to at least two-thirds of all 
medical/surgical benefits in a classification as determined under 
paragraph (c)(3)(i)(A) of this section, the level of the financial 
requirement or quantitative treatment limitation that is considered the 
predominant level of that type in a classification of benefits is the 
level that applies to more than one-half of medical/surgical benefits in 
that classification subject to the financial requirement or quantitative 
treatment limitation.
    (2) If, with respect to a type of financial requirement or 
quantitative treatment limitation that applies to at least two-thirds of 
all medical/surgical benefits in a classification, there is no single 
level that applies to more than one-half of medical/surgical benefits in 
the classification subject to the financial requirement or quantitative 
treatment limitation, the plan (or health insurance issuer) may combine 
levels until the combination of levels applies to more than one-half of 
medical/surgical benefits subject to the financial requirement or 
quantitative treatment limitation in the classification. The least 
restrictive level within the combination is considered the predominant 
level of that type in the classification. (For this purpose, a plan may 
combine the most restrictive levels first, with each less restrictive 
level added to the combination until the combination applies to more 
than one-half of the benefits subject to the financial requirement or 
treatment limitation.)
    (C) Portion based on plan payments. For purposes of this paragraph 
(c), the determination of the portion of medical/surgical benefits in a 
classification of benefits subject to a financial requirement or 
quantitative treatment limitation (or subject to any level of a 
financial requirement or quantitative treatment limitation) is based on 
the dollar amount of all plan payments for medical/surgical benefits in 
the classification expected to be paid under the plan for the plan year 
(or for the portion of the plan year after a change in plan benefits 
that affects the applicability of the financial requirement or 
quantitative treatment limitation).
    (D) Clarifications for certain threshold requirements. For any 
deductible, the dollar amount of plan payments includes all plan 
payments with respect to claims that would be subject to the

[[Page 552]]

deductible if it had not been satisfied. For any out-of-pocket maximum, 
the dollar amount of plan payments includes all plan payments associated 
with out-of-pocket payments that are taken into account towards the out-
of-pocket maximum as well as all plan payments associated with out-of-
pocket payments that would have been made towards the out-of-pocket 
maximum if it had not been satisfied. Similar rules apply for any other 
thresholds at which the rate of plan payment changes. (See also PHS Act 
section 2707(b) and Affordable Care Act section 1302(c), which establish 
limitations on annual deductibles for non-grandfathered health plans in 
the small group market and annual limitations on out-of-pocket maximums 
for all non-grandfathered health plans.)
    (E) Determining the dollar amount of plan payments. Subject to 
paragraph (c)(3)(i)(D) of this section, any reasonable method may be 
used to determine the dollar amount expected to be paid under a plan for 
medical/surgical benefits subject to a financial requirement or 
quantitative treatment limitation (or subject to any level of a 
financial requirement or quantitative treatment limitation).
    (ii) Application to different coverage units. If a plan (or health 
insurance coverage) applies different levels of a financial requirement 
or quantitative treatment limitation to different coverage units in a 
classification of medical/surgical benefits, the predominant level that 
applies to substantially all medical/surgical benefits in the 
classification is determined separately for each coverage unit.
    (iii) Special rules--(A) Multi-tiered prescription drug benefits. If 
a plan (or health insurance coverage) applies different levels of 
financial requirements to different tiers of prescription drug benefits 
based on reasonable factors determined in accordance with the rules in 
paragraph (c)(4)(i) of this section (relating to requirements for 
nonquantitative treatment limitations) and without regard to whether a 
drug is generally prescribed with respect to medical/surgical benefits 
or with respect to mental health or substance use disorder benefits, the 
plan (or health insurance coverage) satisfies the parity requirements of 
this paragraph (c) with respect to prescription drug benefits. 
Reasonable factors include cost, efficacy, generic versus brand name, 
and mail order versus pharmacy pick-up.
    (B) Multiple network tiers. If a plan (or health insurance coverage) 
provides benefits through multiple tiers of in-network providers (such 
as an in-network tier of preferred providers with more generous cost-
sharing to participants than a separate in-network tier of participating 
providers), the plan may divide its benefits furnished on an in-network 
basis into sub-classifications that reflect network tiers, if the 
tiering is based on reasonable factors determined in accordance with the 
rules in paragraph (c)(4)(i) of this section (such as quality, 
performance, and market standards) and without regard to whether a 
provider provides services with respect to medical/surgical benefits or 
mental health or substance use disorder benefits. After the sub-
classifications are established, the plan or issuer may not impose any 
financial requirement or treatment limitation on mental health or 
substance use disorder benefits in any sub-classification that is more 
restrictive than the predominant financial requirement or treatment 
limitation that applies to substantially all medical/surgical benefits 
in the sub-classification using the methodology set forth in paragraph 
(c)(3)(i) of this section.
    (C) Sub-classifications permitted for office visits, separate from 
other outpatient services. For purposes of applying the financial 
requirement and treatment limitation rules of this paragraph (c), a plan 
or issuer may divide its benefits furnished on an outpatient basis into 
the two sub-classifications described in this paragraph (c)(3)(iii)(C). 
After the sub-classifications are established, the plan or issuer may 
not impose any financial requirement or quantitative treatment 
limitation on mental health or substance use disorder benefits in any 
sub-classification that is more restrictive than the predominant 
financial requirement or quantitative treatment limitation that applies 
to substantially all medical/surgical benefits in the sub-classification 
using the methodology set forth in paragraph

[[Page 553]]

(c)(3)(i) of this section. Sub-classifications other than these special 
rules, such as separate sub-classifications for generalists and 
specialists, are not permitted. The two sub-classifications permitted 
under this paragraph (c)(3)(iii)(C) are:
    (1) Office visits (such as physician visits), and
    (2) All other outpatient items and services (such as outpatient 
surgery, facility charges for day treatment centers, laboratory charges, 
or other medical items).
    (iv) Examples. The rules of paragraphs (c)(3)(i), (c)(3)(ii), and 
(c)(3)(iii) of this section are illustrated by the following examples. 
In each example, the group health plan is subject to the requirements of 
this section and provides both medical/surgical benefits and mental 
health and substance use disorder benefits.

    Example 1. (i) Facts. For inpatient, out-of-network medical/surgical 
benefits, a group health plan imposes five levels of coinsurance. Using 
a reasonable method, the plan projects its payments for the upcoming 
year as follows:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Coinsurance rate...............           0%          10%          15%          20%          30%  Total.
Projected payments.............        $200x        $100x        $450x        $100x        $150x  $1,000x.
Percent of total plan costs....          20%          10%          45%          10%          15%
Percent subject to coinsurance           N/A        12.5%       56.25%        12.5%       18.75%  ..............
 level.                                       (100x/800x)  (450x/800x)  (100x/800x)  (150x/800x)
----------------------------------------------------------------------------------------------------------------


The plan projects plan costs of $800x to be subject to coinsurance 
($100x + $450x + $100x + $150x = $800x). Thus, 80 percent ($800x/
$1,000x) of the benefits are projected to be subject to coinsurance, and 
56.25 percent of the benefits subject to coinsurance are projected to be 
subject to the 15 percent coinsurance level.
    (ii) Conclusion. In this Example 1, the two-thirds threshold of the 
substantially all standard is met for coinsurance because 80 percent of 
all inpatient, out-of-network medical/surgical benefits are subject to 
coinsurance. Moreover, the 15 percent coinsurance is the predominant 
level because it is applicable to more than one-half of inpatient, out-
of-network medical/surgical benefits subject to the coinsurance 
requirement. The plan may not impose any level of coinsurance with 
respect to inpatient, out-of-network mental health or substance use 
disorder benefits that is more restrictive than the 15 percent level of 
coinsurance.
    Example 2. (i) Facts. For outpatient, in-network medical/surgical 
benefits, a plan imposes five different copayment levels. Using a 
reasonable method, the plan projects payments for the upcoming year as 
follows:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Copayment amount...............           $0          $10          $15          $20          $50  Total.
Projected payments.............        $200x        $200x        $200x        $300x        $100x  $1,000x.
Percent of total plan costs....          20%          20%          20%          30%          10%
Percent subject to copayments..          N/A          25%          25%        37.5%        12.5%  ..............
                                              (200x/800x)  (200x/800x)  (300x/800x)  (100x/800x)
----------------------------------------------------------------------------------------------------------------


The plan projects plan costs of $800x to be subject to copayments ($200x 
+ $200x + $300x + $100x = $800x). Thus, 80 percent ($800x/$1,000x) of 
the benefits are projected to be subject to a copayment.
    (ii) Conclusion. In this Example 2, the two-thirds threshold of the 
substantially all standard is met for copayments because 80 percent of 
all outpatient, in-network medical/surgical benefits are subject to a 
copayment. Moreover, there is no single level that applies to more than 
one-half of medical/surgical benefits in the classification subject to a 
copayment (for the $10 copayment, 25%; for the $15 copayment, 25%; for 
the $20 copayment, 37.5%; and for the $50 copayment, 12.5%). The plan 
can combine any levels of copayment, including the highest levels, to 
determine the predominant level that can be applied to mental health or 
substance use disorder benefits. If the plan combines the highest levels 
of copayment, the combined projected payments for the two highest 
copayment levels, the $50 copayment and the $20 copayment, are not more 
than one-half of the outpatient, in-network medical/surgical benefits 
subject to a copayment because they are exactly one-half ($300x + $100x 
= $400x; $400x/$800x = 50%). The combined projected payments for the 
three highest copayment

[[Page 554]]

levels--the $50 copayment, the $20 copayment, and the $15 copayment--are 
more than one-half of the outpatient, in-network medical/surgical 
benefits subject to the copayments ($100x + $300x + $200x = $600x; 
$600x/$800x = 75%). Thus, the plan may not impose any copayment on 
outpatient, in-network mental health or substance use disorder benefits 
that is more restrictive than the least restrictive copayment in the 
combination, the $15 copayment.
    Example 3. (i) Facts. A plan imposes a $250 deductible on all 
medical/surgical benefits for self-only coverage and a $500 deductible 
on all medical/surgical benefits for family coverage. The plan has no 
network of providers. For all medical/surgical benefits, the plan 
imposes a coinsurance requirement. The plan imposes no other financial 
requirements or treatment limitations.
    (ii) Conclusion. In this Example 3, because the plan has no network 
of providers, all benefits are provided out-of-network. Because self-
only and family coverage are subject to different deductibles, whether 
the deductible applies to substantially all medical/surgical benefits is 
determined separately for self-only medical/surgical benefits and family 
medical/surgical benefits. Because the coinsurance is applied without 
regard to coverage units, the predominant coinsurance that applies to 
substantially all medical/surgical benefits is determined without regard 
to coverage units.
    Example 4. (i) Facts. A plan applies the following financial 
requirements for prescription drug benefits. The requirements are 
applied without regard to whether a drug is generally prescribed with 
respect to medical/surgical benefits or with respect to mental health or 
substance use disorder benefits. Moreover, the process for certifying a 
particular drug as ``generic'', ``preferred brand name'', ``non-
preferred brand name'', or ``specialty'' complies with the rules of 
paragraph (c)(4)(i) of this section (relating to requirements for 
nonquantitative treatment limitations).

----------------------------------------------------------------------------------------------------------------
                                                   Tier 1           Tier 2           Tier 3           Tier 4
----------------------------------------------------------------------------------------------------------------
                                                                                 Non-preferred
                                                                                   brand name
                                                               Preferred brand    drugs (which
              Tier description                 Generic drugs      name drugs    may have Tier 1  Specialty drugs
                                                                                   or Tier 2
                                                                                 alternatives)
----------------------------------------------------------------------------------------------------------------
Percent paid by plan........................             90%              80%              60%              50%
----------------------------------------------------------------------------------------------------------------

    (ii) Conclusion. In this Example 4, the financial requirements that 
apply to prescription drug benefits are applied without regard to 
whether a drug is generally prescribed with respect to medical/surgical 
benefits or with respect to mental health or substance use disorder 
benefits; the process for certifying drugs in different tiers complies 
with paragraph (c)(4) of this section; and the bases for establishing 
different levels or types of financial requirements are reasonable. The 
financial requirements applied to prescription drug benefits do not 
violate the parity requirements of this paragraph (c)(3).
    Example 5. (i) Facts. A plan has two-tiers of network of providers: 
a preferred provider tier and a participating provider tier. Providers 
are placed in either the preferred tier or participating tier based on 
reasonable factors determined in accordance with the rules in paragraph 
(c)(4)(i) of this section, such as accreditation, quality and 
performance measures (including customer feedback), and relative 
reimbursement rates. Furthermore, provider tier placement is determined 
without regard to whether a provider specializes in the treatment of 
mental health conditions or substance use disorders, or medical/surgical 
conditions. The plan divides the in-network classifications into two 
sub-classifications (in-network/preferred and in-network/participating). 
The plan does not impose any financial requirement or treatment 
limitation on mental health or substance use disorder benefits in either 
of these sub-classifications that is more restrictive than the 
predominant financial requirement or treatment limitation that applies 
to substantially all medical/surgical benefits in each sub-
classification.
    (ii) Conclusion. In this Example 5, the division of in-network 
benefits into sub-classifications that reflect the preferred and 
participating provider tiers does not violate the parity requirements of 
this paragraph (c)(3).
    Example 6. (i) Facts. With respect to outpatient, in-network 
benefits, a plan imposes a $25 copayment for office visits and a 20 
percent coinsurance requirement for outpatient surgery. The plan divides 
the outpatient, in-network classification into two sub-classifications 
(in-network office visits and all other outpatient, in-network items and 
services). The plan or issuer does not impose any financial requirement 
or quantitative treatment limitation on mental health or substance use 
disorder benefits in either of these sub-classifications that is more 
restrictive than the predominant financial requirement or quantitative 
treatment limitation that applies to substantially all medical/surgical 
benefits in each sub-classification.

[[Page 555]]

    (ii) Conclusion. In this Example 6, the division of outpatient, in-
network benefits into sub-classifications for office visits and all 
other outpatient, in-network items and services does not violate the 
parity requirements of this paragraph (c)(3).
    Example 7. (i) Facts. Same facts as Example 6, but for purposes of 
determining parity, the plan divides the outpatient, in-network 
classification into outpatient, in-network generalists and outpatient, 
in-network specialists.
    (ii) Conclusion. In this Example 7, the division of outpatient, in-
network benefits into any sub-classifications other than office visits 
and all other outpatient items and services violates the requirements of 
paragraph (c)(3)(iii)(C) of this section.

    (v) No separate cumulative financial requirements or cumulative 
quantitative treatment limitations--(A) A group health plan (or health 
insurance coverage offered in connection with a group health plan) may 
not apply any cumulative financial requirement or cumulative 
quantitative treatment limitation for mental health or substance use 
disorder benefits in a classification that accumulates separately from 
any established for medical/surgical benefits in the same 
classification.
    (B) The rules of this paragraph (c)(3)(v) are illustrated by the 
following examples:

    Example 1. (i) Facts. A group health plan imposes a combined annual 
$500 deductible on all medical/surgical, mental health, and substance 
use disorder benefits.
    (ii) Conclusion. In this Example 1, the combined annual deductible 
complies with the requirements of this paragraph (c)(3)(v).
    Example 2. (i) Facts. A plan imposes an annual $250 deductible on 
all medical/surgical benefits and a separate annual $250 deductible on 
all mental health and substance use disorder benefits.
    (ii) Conclusion. In this Example 2, the separate annual deductible 
on mental health and substance use disorder benefits violates the 
requirements of this paragraph (c)(3)(v).
    Example 3. (i) Facts. A plan imposes an annual $300 deductible on 
all medical/surgical benefits and a separate annual $100 deductible on 
all mental health or substance use disorder benefits.
    (ii) Conclusion. In this Example 3, the separate annual deductible 
on mental health and substance use disorder benefits violates the 
requirements of this paragraph (c)(3)(v).
    Example 4. (i) Facts. A plan generally imposes a combined annual 
$500 deductible on all benefits (both medical/surgical benefits and 
mental health and substance use disorder benefits) except prescription 
drugs. Certain benefits, such as preventive care, are provided without 
regard to the deductible. The imposition of other types of financial 
requirements or treatment limitations varies with each classification. 
Using reasonable methods, the plan projects its payments for medical/
surgical benefits in each classification for the upcoming year as 
follows:

----------------------------------------------------------------------------------------------------------------
                                                                     Benefits                         Percent
                         Classification                             subject to    Total benefits    subject to
                                                                    deductible                      deductible
----------------------------------------------------------------------------------------------------------------
Inpatient, in-network...........................................         $1,800x         $2,000x              90
Inpatient, out-of-network.......................................          1,000x          1,000x             100
Outpatient, in-network..........................................          1,400x          2,000x              70
Outpatient, out-of-network......................................          1,880x          2,000x              94
Emergency care..................................................            300x            500x              60
----------------------------------------------------------------------------------------------------------------

    (ii) Conclusion. In this Example 4, the two-thirds threshold of the 
substantially all standard is met with respect to each classification 
except emergency care because in each of those other classifications at 
least two-thirds of medical/surgical benefits are subject to the $500 
deductible. Moreover, the $500 deductible is the predominant level in 
each of those other classifications because it is the only level. 
However, emergency care mental health and substance use disorder 
benefits cannot be subject to the $500 deductible because it does not 
apply to substantially all emergency care medical/surgical benefits.

    (4) Nonquantitative treatment limitations--(i) General rule. A group 
health plan (or health insurance coverage) may not impose a 
nonquantitative treatment limitation with respect to mental health or 
substance use disorder benefits in any classification unless, under the 
terms of the plan (or health insurance coverage) as written and in 
operation, any processes, strategies, evidentiary standards, or other 
factors used in applying the nonquantitative treatment limitation to 
mental health or substance use disorder benefits in the classification 
are

[[Page 556]]

comparable to, and are applied no more stringently than, the processes, 
strategies, evidentiary standards, or other factors used in applying the 
limitation with respect to medical/surgical benefits in the 
classification.
    (ii) Illustrative list of nonquantitative treatment limitations. 
Nonquantitative treatment limitations include--
    (A) Medical management standards limiting or excluding benefits 
based on medical necessity or medical appropriateness, or based on 
whether the treatment is experimental or investigative;
    (B) Formulary design for prescription drugs;
    (C) For plans with multiple network tiers (such as preferred 
providers and participating providers), network tier design;
    (D) Standards for provider admission to participate in a network, 
including reimbursement rates;
    (E) Plan methods for determining usual, customary, and reasonable 
charges;
    (F) Refusal to pay for higher-cost therapies until it can be shown 
that a lower-cost therapy is not effective (also known as fail-first 
policies or step therapy protocols);
    (G) Exclusions based on failure to complete a course of treatment; 
and
    (H) Restrictions based on geographic location, facility type, 
provider specialty, and other criteria that limit the scope or duration 
of benefits for services provided under the plan or coverage.
    (iii) Examples. The rules of this paragraph (c)(4) are illustrated 
by the following examples. In each example, the group health plan is 
subject to the requirements of this section and provides both medical/
surgical benefits and mental health and substance use disorder benefits.

    Example 1. (i) Facts. A plan requires prior authorization from the 
plan's utilization reviewer that a treatment is medically necessary for 
all inpatient medical/surgical benefits and for all inpatient mental 
health and substance use disorder benefits. In practice, inpatient 
benefits for medical/surgical conditions are routinely approved for 
seven days, after which a treatment plan must be submitted by the 
patient's attending provider and approved by the plan. On the other 
hand, for inpatient mental health and substance use disorder benefits, 
routine approval is given only for one day, after which a treatment plan 
must be submitted by the patient's attending provider and approved by 
the plan.
    (ii) Conclusion. In this Example 1, the plan violates the rules of 
this paragraph (c)(4) because it is applying a stricter nonquantitative 
treatment limitation in practice to mental health and substance use 
disorder benefits than is applied to medical/surgical benefits.
    Example 2. (i) Facts. A plan applies concurrent review to inpatient 
care where there are high levels of variation in length of stay (as 
measured by a coefficient of variation exceeding 0.8). In practice, the 
application of this standard affects 60 percent of mental health 
conditions and substance use disorders, but only 30 percent of medical/
surgical conditions.
    (ii) Conclusion. In this Example 2, the plan complies with the rules 
of this paragraph (c)(4) because the evidentiary standard used by the 
plan is applied no more stringently for mental health and substance use 
disorder benefits than for medical/surgical benefits, even though it 
results in an overall difference in the application of concurrent review 
for mental health conditions or substance use disorders than for 
medical/surgical conditions.
    Example 3. (i) Facts. A plan requires prior approval that a course 
of treatment is medically necessary for outpatient, in-network medical/
surgical, mental health, and substance use disorder benefits and uses 
comparable criteria in determining whether a course of treatment is 
medically necessary. For mental health and substance use disorder 
treatments that do not have prior approval, no benefits will be paid; 
for medical/surgical treatments that do not have prior approval, there 
will only be a 25 percent reduction in the benefits the plan would 
otherwise pay.
    (ii) Conclusion. In this Example 3, the plan violates the rules of 
this paragraph (c)(4). Although the same nonquantitative treatment 
limitation--medical necessity--is applied both to mental health and 
substance use disorder benefits and to medical/surgical benefits for 
outpatient, in-network services, it is not applied in a comparable way. 
The penalty for failure to obtain prior approval for mental health and 
substance use disorder benefits is not comparable to the penalty for 
failure to obtain prior approval for medical/surgical benefits.
    Example 4. (i) Facts. A plan generally covers medically appropriate 
treatments. For both medical/surgical benefits and mental health and 
substance use disorder benefits, evidentiary standards used in 
determining whether a treatment is medically appropriate (such as the 
number of visits or days of coverage) are based on recommendations

[[Page 557]]

made by panels of experts with appropriate training and experience in 
the fields of medicine involved. The evidentiary standards are applied 
in a manner that is based on clinically appropriate standards of care 
for a condition.
    (ii) Conclusion. In this Example 4, the plan complies with the rules 
of this paragraph (c)(4) because the processes for developing the 
evidentiary standards used to determine medical appropriateness and the 
application of these standards to mental health and substance use 
disorder benefits are comparable to and are applied no more stringently 
than for medical/surgical benefits. This is the result even if the 
application of the evidentiary standards does not result in similar 
numbers of visits, days of coverage, or other benefits utilized for 
mental health conditions or substance use disorders as it does for any 
particular medical/surgical condition.
    Example 5. (i) Facts. A plan generally covers medically appropriate 
treatments. In determining whether prescription drugs are medically 
appropriate, the plan automatically excludes coverage for antidepressant 
drugs that are given a black box warning label by the Food and Drug 
Administration (indicating the drug carries a significant risk of 
serious adverse effects). For other drugs with a black box warning 
(including those prescribed for other mental health conditions and 
substance use disorders, as well as for medical/surgical conditions), 
the plan will provide coverage if the prescribing physician obtains 
authorization from the plan that the drug is medically appropriate for 
the individual, based on clinically appropriate standards of care.
    (ii) Conclusion. In this Example 5, the plan violates the rules of 
this paragraph (c)(4). Although the standard for applying a 
nonquantitative treatment limitation is the same for both mental health 
and substance use disorder benefits and medical/surgical benefits--
whether a drug has a black box warning--it is not applied in a 
comparable manner. The plan's unconditional exclusion of antidepressant 
drugs given a black box warning is not comparable to the conditional 
exclusion for other drugs with a black box warning.
    Example 6. (i) Facts. An employer maintains both a major medical 
plan and an employee assistance program (EAP). The EAP provides, among 
other benefits, a limited number of mental health or substance use 
disorder counseling sessions. Participants are eligible for mental 
health or substance use disorder benefits under the major medical plan 
only after exhausting the counseling sessions provided by the EAP. No 
similar exhaustion requirement applies with respect to medical/surgical 
benefits provided under the major medical plan.
    (ii) Conclusion. In this Example 6, limiting eligibility for mental 
health and substance use disorder benefits only after EAP benefits are 
exhausted is a nonquantitative treatment limitation subject to the 
parity requirements of this paragraph (c). Because no comparable 
requirement applies to medical/surgical benefits, the requirement may 
not be applied to mental health or substance use disorder benefits.
    Example 7. (i) Facts. Training and State licensing requirements 
often vary among types of providers. A plan applies a general standard 
that any provider must meet the highest licensing requirement related to 
supervised clinical experience under applicable State law in order to 
participate in the plan's provider network. Therefore, the plan requires 
master's-level mental health therapists to have post-degree, supervised 
clinical experience but does not impose this requirement on master's-
level general medical providers because the scope of their licensure 
under applicable State law does require clinical experience. In 
addition, the plan does not require post-degree, supervised clinical 
experience for psychiatrists or Ph.D. level psychologists since their 
licensing already requires supervised training.
    (ii) Conclusion. In this Example 7, the plan complies with the rules 
of this paragraph (c)(4). The requirement that master's-level mental 
health therapists must have supervised clinical experience to join the 
network is permissible, as long as the plan consistently applies the 
same standard to all providers even though it may have a disparate 
impact on certain mental health providers.
    Example 8. (i) Facts. A plan considers a wide array of factors in 
designing medical management techniques for both mental health and 
substance use disorder benefits and medical/surgical benefits, such as 
cost of treatment; high cost growth; variability in cost and quality; 
elasticity of demand; provider discretion in determining diagnosis, or 
type or length of treatment; clinical efficacy of any proposed treatment 
or service; licensing and accreditation of providers; and claim types 
with a high percentage of fraud. Based on application of these factors 
in a comparable fashion, prior authorization is required for some (but 
not all) mental health and substance use disorder benefits, as well as 
for some medical/surgical benefits, but not for others. For example, the 
plan requires prior authorization for: outpatient surgery; speech, 
occupational, physical, cognitive and behavioral therapy extending for 
more than six months; durable medical equipment; diagnostic imaging; 
skilled nursing visits; home infusion therapy; coordinated home care; 
pain management; high-risk prenatal care; delivery by cesarean section; 
mastectomy; prostate cancer treatment; narcotics prescribed for more 
than seven days; and all inpatient services beyond 30 days. The evidence 
considered in developing its medical management techniques

[[Page 558]]

includes consideration of a wide array of recognized medical literature 
and professional standards and protocols (including comparative 
effectiveness studies and clinical trials). This evidence and how it was 
used to develop these medical management techniques is also well 
documented by the plan.
    (ii) Conclusion. In this Example 8, the plan complies with the rules 
of this paragraph (c)(4). Under the terms of the plan as written and in 
operation, the processes, strategies, evidentiary standards, and other 
factors considered by the plan in implementing its prior authorization 
requirement with respect to mental health and substance use disorder 
benefits are comparable to, and applied no more stringently than, those 
applied with respect to medical/surgical benefits.
    Example 9. (i) Facts. A plan generally covers medically appropriate 
treatments. The plan automatically excludes coverage for inpatient 
substance use disorder treatment in any setting outside of a hospital 
(such as a freestanding or residential treatment center). For inpatient 
treatment outside of a hospital for other conditions (including 
freestanding or residential treatment centers prescribed for mental 
health conditions, as well as for medical/surgical conditions), the plan 
will provide coverage if the prescribing physician obtains authorization 
from the plan that the inpatient treatment is medically appropriate for 
the individual, based on clinically appropriate standards of care.
    (ii) Conclusion. In this Example 9, the plan violates the rules of 
this paragraph (c)(4). Although the same nonquantitative treatment 
limitation--medical appropriateness--is applied to both mental health 
and substance use disorder benefits and medical/surgical benefits, the 
plan's unconditional exclusion of substance use disorder treatment in 
any setting outside of a hospital is not comparable to the conditional 
exclusion of inpatient treatment outside of a hospital for other 
conditions.
    Example 10. (i) Facts. A plan generally provides coverage for 
medically appropriate medical/surgical benefits as well as mental health 
and substance use disorder benefits. The plan excludes coverage for 
inpatient, out-of-network treatment of chemical dependency when obtained 
outside of the State where the policy is written. There is no similar 
exclusion for medical/surgical benefits within the same classification.
    (ii) Conclusion. In this Example 10, the plan violates the rules of 
this paragraph (c)(4). The plan is imposing a nonquantitative treatment 
limitation that restricts benefits based on geographic location. Because 
there is no comparable exclusion that applies to medical/surgical 
benefits, this exclusion may not be applied to mental health or 
substance use disorder benefits.
    Example 11. (i) Facts. A plan requires prior authorization for all 
outpatient mental health and substance use disorder services after the 
ninth visit and will only approve up to five additional visits per 
authorization. With respect to outpatient medical/surgical benefits, the 
plan allows an initial visit without prior authorization. After the 
initial visit, the plan pre-approves benefits based on the individual 
treatment plan recommended by the attending provider based on that 
individual's specific medical condition. There is no explicit, 
predetermined cap on the amount of additional visits approved per 
authorization.
    (ii) Conclusion. In this Example 11, the plan violates the rules of 
this paragraph (c)(4). Although the same nonquantitative treatment 
limitation--prior authorization to determine medical appropriateness--is 
applied to both mental health and substance use disorder benefits and 
medical/surgical benefits for outpatient services, it is not applied in 
a comparable way. While the plan is more generous with respect to the 
number of visits initially provided without pre-authorization for mental 
health benefits, treating all mental health conditions and substance use 
disorders in the same manner, while providing for individualized 
treatment of medical conditions, is not a comparable application of this 
nonquantitative treatment limitation.

    (5) Exemptions. The rules of this paragraph (c) do not apply if a 
group health plan (or health insurance coverage) satisfies the 
requirements of paragraph (f) or (g) of this section (relating to 
exemptions for small employers and for increased cost).
    (d) Availability of plan information--(1) Criteria for medical 
necessity determinations. The criteria for medical necessity 
determinations made under a group health plan with respect to mental 
health or substance use disorder benefits (or health insurance coverage 
offered in connection with the plan with respect to such benefits) must 
be made available by the plan administrator (or the health insurance 
issuer offering such coverage) to any current or potential participant, 
beneficiary, or contracting provider upon request.
    (2) Reason for any denial. The reason for any denial under a group 
health plan (or health insurance coverage offered in connection with 
such plan) of reimbursement or payment for services with respect to 
mental health or substance use disorder benefits in the case of any 
participant or beneficiary must be made available by the plan 
administrator (or the health insurance issuer

[[Page 559]]

offering such coverage) to the participant or beneficiary in accordance 
with this paragraph (d)(2).
    (i) Plans subject to ERISA. If a plan is subject to ERISA, it must 
provide the reason for the claim denial in a form and manner consistent 
with the requirements of 29 CFR 2560.503-1 for group health plans.
    (ii) Plans not subject to ERISA. If a plan is not subject to ERISA, 
upon the request of a participant or beneficiary the reason for the 
claim denial must be provided within a reasonable time and in a 
reasonable manner. For this purpose, a plan that follows the 
requirements of 29 CFR 2560.503-1 for group health plans complies with 
the requirements of this paragraph (d)(2)(ii).
    (3) Provisions of other law. Compliance with the disclosure 
requirements in paragraphs (d)(1) and (d)(2) of this section is not 
determinative of compliance with any other provision of applicable 
Federal or State law. In particular, in addition to those disclosure 
requirements, provisions of other applicable law require disclosure of 
information relevant to medical/surgical, mental health, and substance 
use disorder benefits. For example, ERISA section 104 and 29 CFR 
2520.104b-1 provide that, for plans subject to ERISA, instruments under 
which the plan is established or operated must generally be furnished to 
plan participants within 30 days of request. Instruments under which the 
plan is established or operated include documents with information on 
medical necessity criteria for both medical/surgical benefits and mental 
health and substance use disorder benefits, as well as the processes, 
strategies, evidentiary standards, and other factors used to apply a 
nonquantitative treatment limitation with respect to medical/surgical 
benefits and mental health or substance use disorder benefits under the 
plan. In addition, 29 CFR 2560.503-1 and 29 CFR 2590.715-2719 set forth 
rules regarding claims and appeals, including the right of claimants (or 
their authorized representative) upon appeal of an adverse benefit 
determination (or a final internal adverse benefit determination) to be 
provided upon request and free of charge, reasonable access to and 
copies of all documents, records, and other information relevant to the 
claimant's claim for benefits. This includes documents with information 
on medical necessity criteria for both medical/surgical benefits and 
mental health and substance use disorder benefits, as well as the 
processes, strategies, evidentiary standards, and other factors used to 
apply a nonquantitative treatment limitation with respect to medical/
surgical benefits and mental health or substance use disorder benefits 
under the plan.
    (e) Applicability--(1) Group health plans. The requirements of this 
section apply to a group health plan offering medical/surgical benefits 
and mental health or substance use disorder benefits. If, under an 
arrangement or arrangements to provide medical care benefits by an 
employer or employee organization (including for this purpose a joint 
board of trustees of a multiemployer trust affiliated with one or more 
multiemployer plans), any participant (or beneficiary) can 
simultaneously receive coverage for medical/surgical benefits and 
coverage for mental health or substance use disorder benefits, then the 
requirements of this section (including the exemption provisions in 
paragraph (g) of this section) apply separately with respect to each 
combination of medical/surgical benefits and of mental health or 
substance use disorder benefits that any participant (or beneficiary) 
can simultaneously receive from that employer's or employee 
organization's arrangement or arrangements to provide medical care 
benefits, and all such combinations are considered for purposes of this 
section to be a single group health plan.
    (2) Health insurance issuers. The requirements of this section apply 
to a health insurance issuer offering health insurance coverage for 
mental health or substance use disorder benefits in connection with a 
group health plan subject to paragraph (e)(1) of this section.
    (3) Scope. This section does not--
    (i) Require a group health plan (or health insurance issuer offering 
coverage in connection with a group health plan) to provide any mental 
health benefits or substance use disorder benefits, and the provision of

[[Page 560]]

benefits by a plan (or health insurance coverage) for one or more mental 
health conditions or substance use disorders does not require the plan 
or health insurance coverage under this section to provide benefits for 
any other mental health condition or substance use disorder;
    (ii) Require a group health plan (or health insurance issuer 
offering coverage in connection with a group health plan) that provides 
coverage for mental health or substance use disorder benefits only to 
the extent required under PHS Act section 2713 to provide additional 
mental health or substance use disorder benefits in any classification 
in accordance with this section; or
    (iii) Affect the terms and conditions relating to the amount, 
duration, or scope of mental health or substance use disorder benefits 
under the plan (or health insurance coverage) except as specifically 
provided in paragraphs (b) and (c) of this section.
    (4) Coordination with EHB requirements. Nothing in paragraph (f) or 
(g) of this section changes the requirements of 45 CFR 147.150 and 45 
CFR 156.115, providing that a health insurance issuer offering non-
grandfathered health insurance coverage in the individual or small group 
market providing mental health and substance use disorder services, 
including behavioral health treatment services, as part of essential 
health benefits required under 45 CFR 156.110(a)(5) and 156.115(a), must 
comply with the provisions of 45 CFR 146.136 to satisfy the requirement 
to provide essential health benefits.
    (f) Small employer exemption--(1) In general. The requirements of 
this section do not apply to a group health plan (or health insurance 
issuer offering coverage in connection with a group health plan) for a 
plan year of a small employer. For purposes of this paragraph (f), the 
term small employer means, in connection with a group health plan with 
respect to a calendar year and a plan year, an employer who employed an 
average of at least two (or one in the case of an employer residing in a 
State that permits small groups to include a single individual) but not 
more than 50 employees on business days during the preceding calendar 
year. See section 9831(a) and Sec.  54.9831-1(b), which provide that 
this section (and certain other sections) does not apply to any group 
health plan for any plan year if, on the first day of the plan year, the 
plan has fewer than two participants who are current employees.
    (2) Rules in determining employer size. For purposes of paragraph 
(f)(1) of this section--
    (i) All persons treated as a single employer under subsections (b), 
(c), (m), and (o) of section 414 are treated as one employer;
    (ii) If an employer was not in existence throughout the preceding 
calendar year, whether it is a small employer is determined based on the 
average number of employees the employer reasonably expects to employ on 
business days during the current calendar year; and
    (iii) Any reference to an employer for purposes of the small 
employer exemption includes a reference to a predecessor of the 
employer.
    (g) Increased cost exemption--(1) In general. If the application of 
this section to a group health plan (or health insurance coverage 
offered in connection with such plans) results in an increase for the 
plan year involved of the actual total cost of coverage with respect to 
medical/surgical benefits and mental health and substance use disorder 
benefits as determined and certified under paragraph (g)(3) of this 
section by an amount that exceeds the applicable percentage described in 
paragraph (g)(2) of this section of the actual total plan costs, the 
provisions of this section shall not apply to such plan (or coverage) 
during the following plan year, and such exemption shall apply to the 
plan (or coverage) for one plan year. An employer or issuer may elect to 
continue to provide mental health and substance use disorder benefits in 
compliance with this section with respect to the plan or coverage 
involved regardless of any increase in total costs.
    (2) Applicable percentage. With respect to a plan or coverage, the 
applicable percentage described in this paragraph (g) is--
    (i) 2 percent in the case of the first plan year in which this 
section is applied to the plan or coverage; and

[[Page 561]]

    (ii) 1 percent in the case of each subsequent plan year.
    (3) Determinations by actuaries--(i) Determinations as to increases 
in actual costs under a plan or coverage that are attributable to 
implementation of the requirements of this section shall be made and 
certified by a qualified and licensed actuary who is a member in good 
standing of the American Academy of Actuaries. All such determinations 
must be based on the formula specified in paragraph (g)(4) of this 
section and shall be in a written report prepared by the actuary.
    (ii) The written report described in paragraph (g)(3)(i) of this 
section shall be maintained by the group health plan or health insurance 
issuer, along with all supporting documentation relied upon by the 
actuary, for a period of six years following the notification made under 
paragraph (g)(6) of this section.
    (4) Formula. The formula to be used to make the determination under 
paragraph (g)(3)(i) of this section is expressed mathematically as 
follows:

[(E1 - E0)/T0] - D  k

    (i) E1 is the actual total cost of coverage with respect 
to mental health and substance use disorder benefits for the base 
period, including claims paid by the plan or issuer with respect to 
mental health and substance use disorder benefits and administrative 
costs (amortized over time) attributable to providing these benefits 
consistent with the requirements of this section.
    (ii) E0 is the actual total cost of coverage with respect 
to mental health and substance use disorder benefits for the length of 
time immediately before the base period (and that is equal in length to 
the base period), including claims paid by the plan or issuer with 
respect to mental health and substance use disorder benefits and 
administrative costs (amortized over time) attributable to providing 
these benefits.
    (iii) T0 is the actual total cost of coverage with 
respect to all benefits during the base period.
    (iv) k is the applicable percentage of increased cost specified in 
paragraph (g)(2) of this section that will be expressed as a fraction 
for purposes of this formula.
    (v) D is the average change in spending that is calculated by 
applying the formula (E1-E0)/T0 to 
mental health and substance use disorder spending in each of the five 
prior years and then calculating the average change in spending.
    (5) Six month determination. If a group health plan or health 
insurance issuer seeks an exemption under this paragraph (g), 
determinations under paragraph (g)(3) of this section shall be made 
after such plan or coverage has complied with this section for at least 
the first 6 months of the plan year involved.
    (6) Notification. A group health plan or health insurance issuer 
that, based on the certification described under paragraph (g)(3) of 
this section, qualifies for an exemption under this paragraph (g), and 
elects to implement the exemption, must notify participants and 
beneficiaries covered under the plan, the Secretary, and the appropriate 
State agencies of such election.
    (i) Participants and beneficiaries--(A) Content of notice. The 
notice to participants and beneficiaries must include the following 
information:
    (1) A statement that the plan or issuer is exempt from the 
requirements of this section and a description of the basis for the 
exemption.
    (2) The name and telephone number of the individual to contact for 
further information.
    (3) The plan or issuer name and plan number (PN).
    (4) The plan administrator's name, address, and telephone number.
    (5) For single-employer plans, the plan sponsor's name, address, and 
telephone number (if different from paragraph (g)(6)(i)(A)(3) of this 
section) and the plan sponsor's employer identification number (EIN).
    (6) The effective date of such exemption.
    (7) A statement regarding the ability of participants and 
beneficiaries to contact the plan administrator or health insurance 
issuer to see how benefits may be affected as a result of the plan's or 
issuer's election of the exemption.
    (8) A statement regarding the availability, upon request and free of 
charge, of a summary of the information on which the exemption is based

[[Page 562]]

(as required under paragraph (g)(6)(i)(D) of this section).
    (B) Use of summary of material reductions in covered services or 
benefits. A plan or issuer may satisfy the requirements of paragraph 
(g)(6)(i)(A) of this section by providing participants and beneficiaries 
(in accordance with paragraph (g)(6)(i)(C) of this section) with a 
summary of material reductions in covered services or benefits 
consistent with 29 CFR 2520.104b-3(d) that also includes the information 
specified in paragraph (g)(6)(i)(A) of this section. However, in all 
cases, the exemption is not effective until 30 days after notice has 
been sent.
    (C) Delivery. The notice described in this paragraph (g)(6)(i) is 
required to be provided to all participants and beneficiaries. The 
notice may be furnished by any method of delivery that satisfies the 
requirements of section 104(b)(1) of ERISA (29 U.S.C. 1024(b)(1)) and 
its implementing regulations (for example, first-class mail). If the 
notice is provided to the participant and any beneficiaries at the 
participant's last known address, then the requirements of this 
paragraph (g)(6)(i) are satisfied with respect to the participant and 
all beneficiaries residing at that address. If a beneficiary's last 
known address is different from the participant's last known address, a 
separate notice is required to be provided to the beneficiary at the 
beneficiary's last known address.
    (D) Availability of documentation. The plan or issuer must make 
available to participants and beneficiaries (or their representatives), 
on request and at no charge, a summary of the information on which the 
exemption was based. (For purposes of this paragraph (g), an individual 
who is not a participant or beneficiary and who presents a notice 
described in paragraph (g)(6)(i) of this section is considered to be a 
representative. A representative may request the summary of information 
by providing the plan a copy of the notice provided to the participant 
under paragraph (g)(6)(i) of this section with any personally 
identifiable information redacted.) The summary of information must 
include the incurred expenditures, the base period, the dollar amount of 
claims incurred during the base period that would have been denied under 
the terms of the plan or coverage absent amendments required to comply 
with paragraphs (b) and (c) of this section, the administrative costs 
related to those claims, and other administrative costs attributable to 
complying with the requirements of this section. In no event should the 
summary of information include any personally identifiable information.
    (ii) Federal agencies--(A) Content of notice. The notice to the 
Secretary must include the following information:
    (1) A description of the number of covered lives under the plan (or 
coverage) involved at the time of the notification, and as applicable, 
at the time of any prior election of the cost exemption under this 
paragraph (g) by such plan (or coverage);
    (2) For both the plan year upon which a cost exemption is sought and 
the year prior, a description of the actual total costs of coverage with 
respect to medical/surgical benefits and mental health and substance use 
disorder benefits; and
    (3) For both the plan year upon which a cost exemption is sought and 
the year prior, the actual total costs of coverage with respect to 
mental health and substance use disorder benefits under the plan.
    (B) Reporting with respect to church plans. A church plan (as 
defined in section 414(e)) claiming the exemption of this paragraph (g) 
for any benefit package, must provide notice to the Department of the 
Treasury. This requirement is satisfied if the plan sends a copy, to the 
address designated by the Secretary in generally applicable guidance, of 
the notice described in paragraph (g)(6)(ii)(A) of this section 
identifying the benefit package to which the exemption applies.
    (C) Reporting with respect to ERISA plans. See 29 CFR 
2590.712(g)(6)(ii) for delivery with respect to ERISA plans.
    (iii) Confidentiality. A notification to the Secretary under this 
paragraph (g)(6) shall be confidential. The Secretary shall make 
available, upon request and not more than on an annual basis, an 
anonymous itemization of each notification that includes--

[[Page 563]]

    (A) A breakdown of States by the size and type of employers 
submitting such notification; and
    (B) A summary of the data received under paragraph (g)(6)(ii) of 
this section.
    (iv) Audits. The Secretary may audit the books and records of a 
group health plan or a health insurance issuer relating to an exemption, 
including any actuarial reports, during the 6 year period following 
notification of such exemption under paragraph (g)(6) of this section. A 
State agency receiving a notification under paragraph (g)(6) of this 
section may also conduct such an audit with respect to an exemption 
covered by such notification.
    (h) Sale of nonparity health insurance coverage. A health insurance 
issuer may not sell a policy, certificate, or contract of insurance that 
fails to comply with paragraph (b) or (c) of this section, except to a 
plan for a year for which the plan is exempt from the requirements of 
this section because the plan meets the requirements of paragraph (f) or 
(g) of this section.
    (i) Applicability dates--(1) In general. Except as provided in 
paragraph (i)(2) of this section, this section applies to group health 
plans and health insurance issuers offering group health insurance 
coverage on the first day of the first plan year beginning on or after 
July 1, 2014.
    (2) Special effective date for certain collectively-bargained plans. 
For a group health plan maintained pursuant to one or more collective 
bargaining agreements ratified before October 3, 2008, the requirements 
of this section do not apply to the plan (or health insurance coverage 
offered in connection with the plan) for plan years beginning before the 
date on which the last of the collective bargaining agreements 
terminates (determined without regard to any extension agreed to after 
October 3, 2008).

[T.D. 9640, 78 FR 68266, Nov. 13, 2013]



Sec.  54.9815-1251  Preservation of right to maintain existing coverage.

    (a) Definition of grandfathered health plan coverage--(1) In 
general--(i) Grandfathered health plan coverage means coverage provided 
by a group health plan, or a health insurance issuer, in which an 
individual was enrolled on March 23, 2010 (for as long as it maintains 
that status under the rules of this section). A group health plan or 
group health insurance coverage does not cease to be grandfathered 
health plan coverage merely because one or more (or even all) 
individuals enrolled on March 23, 2010 cease to be covered, provided 
that the plan or group health insurance coverage has continuously 
covered someone since March 23, 2010 (not necessarily the same person, 
but at all times at least one person). In addition, subject to the 
limitation set forth in paragraph (a)(1)(ii) of this section, a group 
health plan (and any health insurance coverage offered in connection 
with the group health plan) does not cease to be a grandfathered health 
plan merely because the plan (or its sponsor) enters into a new policy, 
certificate, or contract of insurance after March 23, 2010 (for example, 
a plan enters into a contract with a new issuer or a new policy is 
issued with an existing issuer). For purposes of this section, a plan or 
health insurance coverage that provides grandfathered health plan 
coverage is referred to as a grandfathered health plan. The rules of 
this section apply separately to each benefit package made available 
under a group health plan or health insurance coverage. Accordingly, if 
any benefit package relinquishes grandfather status, it will not affect 
the grandfather status of the other benefit packages.
    (ii) Changes in group health insurance coverage. Subject to 
paragraphs (f) and (g)(2) of this section, if a group health plan 
(including a group health plan that was self-insured on March 23, 2010) 
or its sponsor enters into a new policy, certificate, or contract of 
insurance after March 23, 2010 that is effective before November 15, 
2010, then the plan ceases to be a grandfathered health plan.
    (2) Disclosure of grandfather status--(i) To maintain status as a 
grandfathered health plan, a plan or health insurance coverage must 
include a statement that the plan or coverage believes it is a 
grandfathered health plan within the meaning of section 1251 of the 
Patient Protection and Affordable Care Act, and must provide contact 
information for questions and complaints, in any

[[Page 564]]

summary of benefits provided under the plan.
    (ii) The following model language can be used to satisfy this 
disclosure requirement:

    This [group health plan or health insurance issuer] believes this 
[plan or coverage] is a ``grandfathered health plan'' under the Patient 
Protection and Affordable Care Act (the Affordable Care Act). As 
permitted by the Affordable Care Act, a grandfathered health plan can 
preserve certain basic health coverage that was already in effect when 
that law was enacted. Being a grandfathered health plan means that your 
[plan or policy] may not include certain consumer protections of the 
Affordable Care Act that apply to other plans, for example, the 
requirement for the provision of preventive health services without any 
cost sharing. However, grandfathered health plans must comply with 
certain other consumer protections in the Affordable Care Act, for 
example, the elimination of lifetime dollar limits on benefits.
    Questions regarding which protections apply and which protections do 
not apply to a grandfathered health plan and what might cause a plan to 
change from grandfathered health plan status can be directed to the plan 
administrator at [insert contact information]. [For ERISA plans, insert: 
You may also contact the Employee Benefits Security Administration, U.S. 
Department of Labor at 1-866-444-3272 or www.dol.gov/ebsa/healthreform. 
This Web site has a table summarizing which protections do and do not 
apply to grandfathered health plans.] [For individual market policies 
and nonfederal governmental plans, insert: You may also contact the U.S. 
Department of Health and Human Services at www.healthcare.gov.]

    (3)(i) Documentation of plan or policy terms on March 23, 2010. To 
maintain status as a grandfathered health plan, a group health plan, or 
group health insurance coverage, must, for as long as the plan or health 
insurance coverage takes the position that it is a grandfathered health 
plan--
    (A) Maintain records documenting the terms of the plan or health 
insurance coverage in connection with the coverage in effect on March 
23, 2010, and any other documents necessary to verify, explain, or 
clarify its status as a grandfathered health plan; and
    (B) Make such records available for examination upon request.
    (ii) Change in group health insurance coverage. To maintain status 
as a grandfathered health plan, a group health plan that enters into a 
new policy, certificate, or contract of insurance must provide to the 
new health insurance issuer (and the new health insurance issuer must 
require) documentation of plan terms (including benefits, cost sharing, 
employer contributions, and annual dollar limits) under the prior health 
coverage sufficient to determine whether a change causing a cessation of 
grandfathered health plan status under paragraph (g)(1) of this section 
has occurred.
    (4) Family members enrolling after March 23, 2010. With respect to 
an individual who is enrolled in a group health plan or health insurance 
coverage on March 23, 2010, grandfathered health plan coverage includes 
coverage of family members of the individual who enroll after March 23, 
2010 in the grandfathered health plan coverage of the individual.
    (b) Allowance for new employees to join current plan-- (1) In 
general. Subject to paragraph (b)(2) of this section, a group health 
plan (including health insurance coverage provided in connection with 
the group health plan) that provided coverage on March 23, 2010 and has 
retained its status as a grandfathered health plan (consistent with the 
rules of this section, including paragraph (g) of this section) is 
grandfathered health plan coverage for new employees (whether newly 
hired or newly enrolled) and their families enrolling in the plan after 
March 23, 2010. Further, the addition of a new contributing employer or 
new group of employees of an existing contributing employer to a 
grandfathered multiemployer health plan will not affect the plan's 
grandfather status.
    (2) Anti-abuse rules--(i) Mergers and acquisitions. If the principal 
purpose of a merger, acquisition, or similar business restructuring is 
to cover new individuals under a grandfathered health plan, the plan 
ceases to be a grandfathered health plan.
    (ii) Change in plan eligibility. A group health plan or health 
insurance coverage (including a benefit package under a group health 
plan) ceases to be a grandfathered health plan if--
    (A) Employees are transferred into the plan or health insurance 
coverage (the transferee plan) from a plan or

[[Page 565]]

health insurance coverage under which the employees were covered on 
March 23, 2010 (the transferor plan);
    (B) Comparing the terms of the transferee plan with those of the 
transferor plan (as in effect on March 23, 2010) and treating the 
transferee plan as if it were an amendment of the transferor plan would 
cause a loss of grandfather status under the provisions of paragraph 
(g)(1) of this section; and
    (C) There was no bona fide employment-based reason to transfer the 
employees into the transferee plan. For this purpose, changing the terms 
or cost of coverage is not a bona fide employment-based reason.
    (iii) Illustrative list of bona fide employment-based reasons. For 
purposes of paragraph (b)(2)(ii)(C) of this section, bona fide 
employment-based reasons include--
    (A) When a benefit package is being eliminated because the issuer is 
exiting the market;
    (B) When a benefit package is being eliminated because the issuer no 
longer offers the product to the employer;
    (C) When low or declining participation by plan participants in the 
benefit package makes it impractical for the plan sponsor to continue to 
offer the benefit package;
    (D) When a benefit package is eliminated from a multiemployer plan 
as agreed upon as part of the collective bargaining process; or
    (E) When a benefit package is eliminated for any reason and multiple 
benefit packages covering a significant portion of other employees 
remain available to the employees being transferred.
    (3) Examples. The rules of this paragraph (b) are illustrated by the 
following examples:

    Example 1. (i) Facts. A group health plan offers two benefit 
packages on March 23, 2010, Options F and G. During a subsequent open 
enrollment period, some of the employees enrolled in Option F on March 
23, 2010 switch to Option G.
    (ii) Conclusion. In this Example 1, the group health coverage 
provided under Option G remains a grandfathered health plan under the 
rules of paragraph (b)(1) of this section because employees previously 
enrolled in Option F are allowed to enroll in Option G as new employees.
    Example 2. (i) Facts. A group health plan offers two benefit 
packages on March 23, 2010, Options H and I. On March 23, 2010, Option H 
provides coverage only for employees in one manufacturing plant. 
Subsequently, the plant is closed, and some employees in the closed 
plant are moved to another plant. The employer eliminates Option H and 
the employees that are moved are transferred to Option I. If instead of 
transferring employees from Option H to Option I, Option H was amended 
to match the terms of Option I, then Option H would cease to be a 
grandfathered health plan.
    (ii) Conclusion. In this Example 2, the plan has a bona fide 
employment-based reason to transfer employees from Option H to Option I. 
Therefore, Option I does not cease to be a grandfathered health plan.

    (c) General grandfathering rule--(1) Except as provided in 
paragraphs (d) and (e) of this section, subtitles A and C of title I of 
the Patient Protection and Affordable Care Act (and the amendments made 
by those subtitles, and the incorporation of those amendments into ERISA 
section 715 and Internal Revenue Code section 9815) do not apply to 
grandfathered health plan coverage. Accordingly, the provisions of PHS 
Act sections 2701, 2702, 2703, 2705, 2706, 2707, 2709 (relating to 
coverage for individuals participating in approved clinical trials, as 
added by section 10103 of the Patient Protection and Affordable Care 
Act), 2713, 2715A, 2716, 2717, 2719, and 2719A, as added or amended by 
the Patient Protection and Affordable Care Act, do not apply to 
grandfathered health plans. (In addition, see 45 CFR 147.140(c), which 
provides that the provisions of PHS Act section 2704, and PHS Act 
section 2711 insofar as it relates to annual dollar limits, do not apply 
to grandfathered health plans that are individual health insurance 
coverage.)
    (2) To the extent not inconsistent with the rules applicable to a 
grandfathered health plan, a grandfathered health plan must comply with 
the requirements of the PHS Act, ERISA, and the Internal Revenue Code 
applicable prior to the changes enacted by the Patient Protection and 
Affordable Care Act.
    (d) Provisions applicable to all grandfathered health plans. The 
provisions of PHS Act section 2711 insofar as it relates to lifetime 
dollar limits, and the provisions of PHS Act sections 2712,

[[Page 566]]

2714, 2715, and 2718, apply to grandfathered health plans for plan years 
beginning on or after September 23, 2010. The provisions of PHS Act 
section 2708 apply to grandfathered health plans for plan years 
beginning on or after January 1, 2014.
    (e) Applicability of PHS Act sections 2704, 2711, and 2714 to 
grandfathered group health plans and group health insurance coverage--
(1) The provisions of PHS Act section 2704 as it applies with respect to 
enrollees who are under 19 years of age, and the provisions of PHS Act 
section 2711 insofar as it relates to annual dollar limits, apply to 
grandfathered health plans that are group health plans (including group 
health insurance coverage) for plan years beginning on or after 
September 23, 2010. The provisions of PHS Act section 2704 apply 
generally to grandfathered health plans that are group health plans 
(including group health insurance coverage) for plan years beginning on 
or after January 1, 2014.
    (2) For plan years beginning before January 1, 2014, the provisions 
of PHS Act section 2714 apply in the case of an adult child with respect 
to a grandfathered health plan that is a group health plan only if the 
adult child is not eligible to enroll in an eligible employer-sponsored 
health plan (as defined in section 5000A(f)(2) of the Internal Revenue 
Code) other than a grandfathered health plan of a parent. For plan years 
beginning on or after January 1, 2014, the provisions of PHS Act section 
2714 apply with respect to a grandfathered health plan that is a group 
health plan without regard to whether an adult child is eligible to 
enroll in any other coverage.
    (f) Effect on collectively bargained plans--In general. In the case 
of health insurance coverage maintained pursuant to one or more 
collective bargaining agreements between employee representatives and 
one or more employers that was ratified before March 23, 2010, the 
coverage is grandfathered health plan coverage at least until the date 
on which the last of the collective bargaining agreements relating to 
the coverage that was in effect on March 23, 2010 terminates. Any 
coverage amendment made pursuant to a collective bargaining agreement 
relating to the coverage that amends the coverage solely to conform to 
any requirement added by subtitles A and C of title I of the Patient 
Protection and Affordable Care Act (and the amendments made by those 
subtitles, and the incorporation of those amendments into ERISA section 
715 and Internal Revenue Code section 9815) is not treated as a 
termination of the collective bargaining agreement. After the date on 
which the last of the collective bargaining agreements relating to the 
coverage that was in effect on March 23, 2010 terminates, the 
determination of whether health insurance coverage maintained pursuant 
to a collective bargaining agreement is grandfathered health plan 
coverage is made under the rules of this section other than this 
paragraph (f) (comparing the terms of the health insurance coverage 
after the date the last collective bargaining agreement terminates with 
the terms of the health insurance coverage that were in effect on March 
23, 2010).
    (g) Maintenance of grandfather status--(1) Changes causing cessation 
of grandfather status. Subject to paragraphs (g)(2) and (3) of this 
section, the rules of this paragraph (g)(1) describe situations in which 
a group health plan or health insurance coverage ceases to be a 
grandfathered health plan. A plan or coverage will cease to be a 
grandfathered health plan when an amendment to plan terms that results 
in a change described in this paragraph (g)(1) becomes effective, 
regardless of when the amendment was adopted. Once grandfather status is 
lost, it cannot be regained.
    (i) Elimination of benefits. The elimination of all or substantially 
all benefits to diagnose or treat a particular condition causes a group 
health plan or health insurance coverage to cease to be a grandfathered 
health plan. For this purpose, the elimination of benefits for any 
necessary element to diagnose or treat a condition is considered the 
elimination of all or substantially all benefits to diagnose or treat a 
particular condition. Whether or not a plan or coverage has eliminated 
substantially all benefits to diagnose or treat a particular condition 
must be determined based on all the facts and circumstances, taking into 
account the

[[Page 567]]

items and services provided for a particular condition under the plan on 
March 23, 2010, as compared to the benefits offered at the time the plan 
or coverage makes the benefit change effective.
    (ii) Increase in percentage cost-sharing requirement. Any increase, 
measured from March 23, 2010, in a percentage cost-sharing requirement 
(such as an individual's coinsurance requirement) causes a group health 
plan or health insurance coverage to cease to be a grandfathered health 
plan.
    (iii) Increase in a fixed-amount cost-sharing requirement other than 
a copayment. Any increase in a fixed-amount cost-sharing requirement 
other than a copayment (for example, deductible or out-of-pocket limit), 
determined as of the effective date of the increase, causes a group 
health plan or health insurance coverage to cease to be a grandfathered 
health plan, if the total percentage increase in the cost-sharing 
requirement measured from March 23, 2010 exceeds the maximum percentage 
increase (as defined in paragraph (g)(4)(ii) of this section).
    (iv) Increase in a fixed-amount copayment. Any increase in a fixed-
amount copayment, determined as of the effective date of the increase, 
and determined for each copayment level if a plan has different 
copayment levels for different categories of services, causes a group 
health plan or health insurance coverage to cease to be a grandfathered 
health plan, if the total increase in the copayment measured from March 
23, 2010 exceeds the greater of:
    (A) An amount equal to $5 increased by medical inflation, as defined 
in paragraph (g)(4)(i) of this section (that is, $5 times medical 
inflation, plus $5); or
    (B) The maximum percentage increase (as defined in paragraph 
(g)(4)(ii) of this section), determined by expressing the total increase 
in the copayment as a percentage.
    (v) Decrease in contribution rate by employers and employee 
organizations--(A) Contribution rate based on cost of coverage. A group 
health plan or group health insurance coverage ceases to be a 
grandfathered health plan if the employer or employee organization 
decreases its contribution rate based on cost of coverage (as defined in 
paragraph (g)(4)(iii)(A) of this section) towards the cost of any tier 
of coverage for any class of similarly situated individuals (as 
described in Sec.  54.9802(d)) by more than 5 percentage points below 
the contribution rate for the coverage period that includes March 23, 
2010.
    (B) Contribution rate based on a formula. A group health plan or 
group health insurance coverage ceases to be a grandfathered health plan 
if the employer or employee organization decreases its contribution rate 
based on a formula (as defined in paragraph (g)(4)(iii)(B) of this 
section) towards the cost of any tier of coverage for any class of 
similarly situated individuals (as described in Sec.  54.9802(d)) by 
more than 5 percent below the contribution rate for the coverage period 
that includes March 23,
    (vi) Changes in annual limits--(A) Addition of an annual limit. A 
group health plan, or group health insurance coverage, that, on March 
23, 2010, did not impose an overall annual or lifetime limit on the 
dollar value of all benefits ceases to be a grandfathered health plan if 
the plan or health insurance coverage imposes an overall annual limit on 
the dollar value of benefits. (But see Sec.  54.9815-2711, which 
prohibits all annual dollar limits on essential health benefits for plan 
years beginning on or after January 1, 2014).
    (B) Decrease in limit for a plan or coverage with only a lifetime 
limit. A group health plan, or group health insurance coverage, that, on 
March 23, 2010, imposed an overall lifetime limit on the dollar value of 
all benefits but no overall annual limit on the dollar value of all 
benefits ceases to be a grandfathered health plan if the plan or health 
insurance coverage adopts an overall annual limit at a dollar value that 
is lower than the dollar value of the lifetime limit on March 23, 2010. 
(But see Sec.  54.9815-2711, which prohibits all annual dollar limits on 
essential health benefits for plan years beginning on or after January 
1, 2014).
    (C) Decrease in limit for a plan or coverage with an annual limit. A 
group health plan, or group health insurance coverage, that, on March 
23, 2010, imposed an overall annual limit on the dollar value of all 
benefits ceases to be

[[Page 568]]

a grandfathered health plan if the plan or health insurance coverage 
decreases the dollar value of the annual limit (regardless of whether 
the plan or health insurance coverage also imposed an overall lifetime 
limit on March 23, 2010 on the dollar value of all benefits). (But see 
Sec.  54.9815-2711, which prohibits all annual dollar limits on 
essential health benefits for plan years beginning on or after January 
1, 2014).
    (2) Transitional rules--(i) Changes made prior to March 23, 2010. If 
a group health plan or health insurance issuer makes the following 
changes to the terms of the plan or health insurance coverage, the 
changes are considered part of the terms of the plan or health insurance 
coverage on March 23, 2010 even though they were not effective at that 
time and such changes do not cause a plan or health insurance coverage 
to cease to be a grandfathered health plan:
    (A) Changes effective after March 23, 2010 pursuant to a legally 
binding contract entered into on or before March 23, 2010;
    (B) Changes effective after March 23, 2010 pursuant to a filing on 
or before March 23, 2010 with a State insurance department; or
    (C) Changes effective after March 23, 2010 pursuant to written 
amendments to a plan that were adopted on or before March 23, 2010.
    (ii) Changes made after March 23, 2010 and adopted prior to issuance 
of regulations. If, after March 23, 2010, a group health plan or health 
insurance issuer makes changes to the terms of the plan or health 
insurance coverage and the changes are adopted prior to June 14, 2010, 
the changes will not cause the plan or health insurance coverage to 
cease to be a grandfathered health plan if the changes are revoked or 
modified effective as of the first day of the first plan year (in the 
individual market, policy year) beginning on or after September 23, 
2010, and the terms of the plan or health insurance coverage on that 
date, as modified, would not cause the plan or coverage to cease to be a 
grandfathered health plan under the rules of this section, including 
paragraph (g)(1) of this section. For this purpose, changes will be 
considered to have been adopted prior to June 14, 2010 if:
    (A) The changes are effective before that date;
    (B) The changes are effective on or after that date pursuant to a 
legally binding contract entered into before that date;
    (C) The changes are effective on or after that date pursuant to a 
filing before that date with a State insurance department; or
    (D) The changes are effective on or after that date pursuant to 
written amendments to a plan that were adopted before that date.
    (3) Special rule for certain grandfathered high deductible health 
plans. With respect to a grandfathered group health plan or group health 
insurance coverage that is a high deductible health plan within the 
meaning of section 223(c)(2), increases to fixed-amount cost-sharing 
requirements made effective on or after June 15, 2021 that otherwise 
would cause a loss of grandfather status will not cause the plan or 
coverage to relinquish its grandfather status, but only to the extent 
such increases are necessary to maintain its status as a high deductible 
health plan under section 223(c)(2)(A).
    (4) Definitions--(i) Medical inflation defined. For purposes of this 
paragraph (g), the term medical inflation means the increase since March 
2010 in the overall medical care component of the Consumer Price Index 
for All Urban Consumers (CPI-U) (unadjusted) published by the Department 
of Labor using the 1982-1984 base of 100. For purposes of this paragraph 
(g)(4)(i), the increase in the overall medical care component is 
computed by subtracting 387.142 (the overall medical care component of 
the CPI-U (unadjusted) published by the Department of Labor for March 
2010, using the 1982-1984 base of 100) from the index amount for any 
month in the 12 months before the new change is to take effect and then 
dividing that amount by 387.142.
    (ii) Maximum percentage increase defined. For purposes of this 
paragraph (g), the term maximum percentage increase means:

[[Page 569]]

    (A) With respect to increases for a group health plan and group 
health insurance coverage made effective on or after March 23, 2010, and 
before June 15, 2021, medical inflation (as defined in paragraph 
(g)(4)(i) of this section), expressed as a percentage, plus 15 
percentage points; and
    (B) With respect to increases for a group health plan and group 
health insurance coverage made effective on or after June 15, 2021, the 
greater of:
    (1) Medical inflation (as defined in paragraph (g)(4)(i) of this 
section), expressed as a percentage, plus 15 percentage points; or
    (2) The portion of the premium adjustment percentage, as defined in 
45 CFR 156.130(e), that reflects the relative change between 2013 and 
the calendar year prior to the effective date of the increase (that is, 
the premium adjustment percentage minus 1), expressed as a percentage, 
plus 15 percentage points.
    (iii) Contribution rate defined. For purposes of paragraph (g)(1)(v) 
of this section:
    (A) Contribution rate based on cost of coverage. The term 
contribution rate based on cost of coverage means the amount of 
contributions made by an employer or employee organization compared to 
the total cost of coverage, expressed as a percentage. The total cost of 
coverage is determined in the same manner as the applicable premium is 
calculated under the COBRA continuation provisions of section 604 of 
ERISA, section 4980B(f)(4) of the Internal Revenue Code, and section 
2204 of the PHS Act. In the case of a self-insured plan, contributions 
by an employer or employee organization are equal to the total cost of 
coverage minus the employee contributions towards the total cost of 
coverage.
    (B) Contribution rate based on a formula. The term contribution rate 
based on a formula means, for plans that, on March 23, 2010, made 
contributions based on a formula (such as hours worked or tons of coal 
mined), the formula.
    (5) Examples. The rules of this paragraph (g) are illustrated by the 
following examples:

    Example 1. (i) Facts. On March 23, 2010, a grandfathered health plan 
has a coinsurance requirement of 20% for inpatient surgery. The plan is 
subsequently amended to increase the coinsurance requirement to 25%.
    (ii) Conclusion. In this Example 1, the increase in the coinsurance 
requirement from 20% to 25% causes the plan to cease to be a 
grandfathered health plan.
    Example 2. (i) Facts. Before March 23, 2010, the terms of a group 
health plan provide benefits for a particular mental health condition, 
the treatment for which is a combination of counseling and prescription 
drugs. Subsequently, the plan eliminates benefits for counseling.
    (ii) Conclusion. In this Example 2, the plan ceases to be a 
grandfathered health plan because counseling is an element that is 
necessary to treat the condition. Thus the plan is considered to have 
eliminated substantially all benefits for the treatment of the 
condition.
    Example 3. (i) Facts. On March 23, 2010, a grandfathered group 
health plan has a copayment requirement of $30 per office visit for 
specialists. The plan is subsequently amended to increase the copayment 
requirement to $40, effective before June 15, 2021. Within the 12-month 
period before the $40 copayment takes effect, the greatest value of the 
overall medical care component of the CPI-U (unadjusted) is 475.
    (ii) Conclusion. In this Example 3, the increase in the copayment 
from $30 to $40, expressed as a percentage, is 33.33% (40-30 = 10; 10 / 
30 = 0.3333; 0.3333 = 33.33%). Medical inflation (as defined in 
paragraph (g)(4)(i) of this section) from March 2010 is 0.2269 (475-
387.142 = 87.858; 87.858 / 387.142 = 0.2269). The maximum percentage 
increase permitted is 37.69% (0.2269 = 22.69%; 22.69% + 15% = 37.69%). 
Because 33.33% does not exceed 37.69%, the change in the copayment 
requirement at that time does not cause the plan to cease to be a 
grandfathered health plan.
    Example 4. (i) Facts. Same facts as Example 3 of this paragraph 
(g)(5), except the grandfathered group health plan subsequently 
increases the $40 copayment requirement to $45 for a later plan year, 
effective before June 15, 2021. Within the 12-month period before the 
$45 copayment takes effect, the greatest value of the overall medical 
care component of the CPI-U (unadjusted) is 485.
    (ii) Conclusion. In this Example 4, the increase in the copayment 
from $30 (the copayment that was in effect on March 23, 2010) to $45, 
expressed as a percentage, is 50% (45-30 = 15; 15 / 30 = 0.5; 0.5 = 
50%). Medical inflation (as defined in paragraph (g)(4)(i) of this 
section) from March 2010 is 0.2527 (485-387.142 = 97.858; 97.858 / 
387.142 = 0.2527). The increase that would cause a plan to cease to be a 
grandfathered health plan under paragraph (g)(1)(iv) of this section is 
the greater of the maximum percentage increase of 40.27% (0.2527 = 
25.27%; 25.27% + 15% = 40.27%), or

[[Page 570]]

$6.26 (5 x 0.2527 = $1.26; $1.26 + $5 = $6.26). Because 50% exceeds 
40.27% and $15 exceeds $6.26, the change in the copayment requirement at 
that time causes the plan to cease to be a grandfathered health plan.
    Example 5. (i) Facts. Same facts as Example 4 of this paragraph 
(g)(5), except the grandfathered group health plan increases the 
copayment requirement to $45, effective after June 15, 2021. The 
greatest value of the overall medical care component of the CPI-U 
(unadjusted) in the preceding 12-month period is still 485. In the 
calendar year that includes the effective date of the increase, the 
applicable portion of the premium adjustment percentage is 36%.
    (ii) Conclusion. In this Example 5, the grandfathered health plan 
may increase the copayment by the greater of: Medical inflation, 
expressed as a percentage, plus 15 percentage points; or the applicable 
portion of the premium adjustment percentage for the calendar year that 
includes the effective date of the increase, plus 15 percentage points. 
The latter amount is greater because it results in a 51% maximum 
percentage increase (36% + 15% = 51%) and, as demonstrated in Example 4 
of this paragraph (g)(5), determining the maximum percentage increase 
using medical inflation yields a result of 40.27%. The increase in the 
copayment, expressed as a percentage, is 50% (45-30 = 15; 15 / 30 = 0.5; 
0.5 = 50%). Because the 50% increase in the copayment is less than the 
51% maximum percentage increase, the change in the copayment requirement 
at that time does not cause the plan to cease to be a grandfathered 
health plan.
    Example 6. (i) Facts. On March 23, 2010, a grandfathered group 
health plan has a copayment of $10 per office visit for primary care 
providers. The plan is subsequently amended to increase the copayment 
requirement to $15, effective before June 15, 2021. Within the 12-month 
period before the $15 copayment takes effect, the greatest value of the 
overall medical care component of the CPI-U (unadjusted) is 415.
    (ii) Conclusion. In this Example 6, the increase in the copayment, 
expressed as a percentage, is 50% (15-10 = 5; 5 / 10 = 0.5; 0.5 = 50%). 
Medical inflation (as defined in paragraph (g)(4)(i) of this section) 
from March 2010 is 0.0720 (415.0-387.142 = 27.858; 27.858 / 387.142 = 
0.0720). The increase that would cause a group plan to cease to be a 
grandfathered health plan under paragraph (g)(1)(iv) of this section is 
the greater of the maximum percentage increase of 22.20% (0.0720 = 
7.20%; 7.20% + 15% = 22.20%), or $5.36 ($5 x 0.0720 = $0.36; $0.36 + $5 
= $5.36). The $5 increase in copayment in this Example 6 would not cause 
the plan to cease to be a grandfathered health plan pursuant to 
paragraph (g)(1)(iv) of this section, which would permit an increase in 
the copayment of up to $5.36.
    Example 7. (i) Facts. Same facts as Example 6 of this paragraph 
(g)(5), except on March 23, 2010, the grandfathered health plan has no 
copayment ($0) for office visits for primary care providers. The plan is 
subsequently, amended to increase the copayment requirement to $5, 
effective before June 15, 2021.
    (ii) Conclusion. In this Example 7, medical inflation (as defined in 
paragraph (g)(4)(i) of this section) from March 2010 is 0.0720 (415.0-
387.142 = 27.858; 27.858 / 387.142 = 0.0720). The increase that would 
cause a plan to cease to be a grandfathered health plan under paragraph 
(g)(1)(iv)(A) of this section is $5.36 ($5 x 0.0720 = $0.36; $0.36 + $5 
= $5.36). The $5 increase in copayment in this Example 7 is less than 
the amount calculated pursuant to paragraph (g)(1)(iv)(A) of this 
section of $5.36. Thus, the $5 increase in copayment does not cause the 
plan to cease to be a grandfathered health plan.
    Example 8. (i) Facts. On March 23, 2010, a self-insured group health 
plan provides two tiers of coverage--self-only and family. The employer 
contributes 80% of the total cost of coverage for self-only and 60% of 
the total cost of coverage for family. Subsequently, the employer 
reduces the contribution to 50% for family coverage, but keeps the same 
contribution rate for self-only coverage.
    (ii) Conclusion. In this Example 8, the decrease of 10 percentage 
points for family coverage in the contribution rate based on cost of 
coverage causes the plan to cease to be a grandfathered health plan. The 
fact that the contribution rate for self-only coverage remains the same 
does not change the result.
    Example 9. (i) Facts. On March 23, 2010, a self-insured 
grandfathered health plan has a COBRA premium for the 2010 plan year of 
$5,000 for self-only coverage and $12,000 for family coverage. The 
required employee contribution for the coverage is $1,000 for self-only 
coverage and $4,000 for family coverage. Thus, the contribution rate 
based on cost of coverage for 2010 is 80% ((5,000-1,000)/5,000) for 
self-only coverage and 67% ((12,000-4,000)/12,000) for family coverage. 
For a subsequent plan year, the COBRA premium is $6,000 for self-only 
coverage and $15,000 for family coverage. The employee contributions for 
that plan year are $1,200 for self-only coverage and $5,000 for family 
coverage. Thus, the contribution rate based on cost of coverage is 80% 
((6,000-1,200)/6,000) for self-only coverage and 67% ((15,000-5,000)/
15,000) for family coverage.
    (ii) Conclusion. In this Example 9, because there is no change in 
the contribution rate based on cost of coverage, the plan retains its 
status as a grandfathered health plan. The result would be the same if 
all or part of the employee contribution was made pre-tax through a 
cafeteria plan under section 125.

[[Page 571]]

    Example 10. (i) Facts. A group health plan not maintained pursuant 
to a collective bargaining agreement offers three benefit packages on 
March 23, 2010. Option F is a self-insured option. Options G and H are 
insured options. Beginning July 1, 2013, the plan increases coinsurance 
under Option H from 10% to 15%.
    (ii) Conclusion. In this Example 10, the coverage under Option H is 
not grandfathered health plan coverage as of July 1, 2013, consistent 
with the rule in paragraph (g)(1)(ii) of this section. Whether the 
coverage under Options F and G is grandfathered health plan coverage is 
determined separately under the rules of this paragraph (g).
    Example 11. (i) Facts. A group health plan that is a grandfathered 
health plan and also a high deductible health plan within the meaning of 
section 223(c)(2) had a $2,400 deductible for family coverage on March 
23, 2010. The plan is subsequently amended after June 15, 2021 to 
increase the deductible limit by the amount that is necessary to comply 
with the requirements for a plan to qualify as a high deductible health 
plan under section 223(c)(2)(A), but that exceeds the maximum percentage 
increase.
    (ii) Conclusion. In this Example 11, the increase in the deductible 
at that time does not cause the plan to cease to be a grandfathered 
health plan because the increase was necessary for the plan to continue 
to satisfy the definition of a high deductible health plan under section 
223(c)(2)(A).

[T.D. 9744, 80 FR 72238, Nov. 18, 2015, as amended by T.D. 9928, 85 FR 
81116, Dec. 15, 2020]



Sec.  54.9815-2704  Prohibition of preexisting condition exclusions.

    (a) No preexisting condition exclusions. A group health plan, or a 
health insurance issuer offering group health insurance coverage, may 
not impose any preexisting condition exclusion (as defined in Sec.  
54.9801-2).
    (b) Examples. The rules of paragraph (a) of this section are 
illustrated by the following examples (for additional examples 
illustrating the definition of a preexisting condition exclusion, see 
Sec.  54.9801-3(a)(2)):

    Example 1. (i) Facts. A group health plan provides benefits solely 
through an insurance policy offered by Issuer P. At the expiration of 
the policy, the plan switches coverage to a policy offered by Issuer N. 
N's policy excludes benefits for oral surgery required as a result of a 
traumatic injury if the injury occurred before the effective date of 
coverage under the policy.
    (ii) Conclusion. In this Example 1, the exclusion of benefits for 
oral surgery required as a result of a traumatic injury if the injury 
occurred before the effective date of coverage is a preexisting 
condition exclusion because it operates to exclude benefits for a 
condition based on the fact that the condition was present before the 
effective date of coverage under the policy. Therefore, such an 
exclusion is prohibited.
    Example 2. (i) Facts. Individual C applies for individual health 
insurance coverage with Issuer M. M denies C's application for coverage 
because a pre-enrollment physical revealed that C has type 2 diabetes.
    (ii) Conclusion. See Example 2 in 45 CFR 147.108(a)(2) for a 
conclusion that M's denial of C's application for coverage is a 
preexisting condition exclusion because a denial of an application for 
coverage based on the fact that a condition was present before the date 
of denial is an exclusion of benefits based on a preexisting condition. 
Therefore, such an exclusion is prohibited.

    (c) Applicability date. The provisions of this section are 
applicable to group health plans and health insurance issuers for plan 
years beginning on or after January 1, 2017. Until the applicability 
date for this regulation, plans and issuers are required to continue to 
comply with the interim final regulations promulgated by the Department 
of Labor at 29 CFR part 2590, contained in the 29 CFR, parts 1927 to 
end, edition revised as of July 1, 2015.

[T.D. 9744, 80 FR 72243, Nov. 18, 2015]



Sec.  54.9815-2705  Prohibiting discrimination against participants 
and beneficiaries based on a health factor.

    (a) In general. A group health plan and a health insurance issuer 
offering group health insurance coverage must comply with the 
requirements of Sec.  54.9802-1.
    (b) Applicability date. This section is applicable to group health 
plans and health insurance issuers offering group health insurance 
coverage for plan years beginning on or after January 1, 2014.

[T.D. 9620, 78 FR 33181, June 3, 2013]



Sec.  54.9815-2708  Prohibition on waiting periods that exceed 90 days.

    (a) General rule. A group health plan, and a health insurance issuer 
offering group health insurance coverage, must not apply any waiting 
period that exceeds 90 days, in accordance with the rules of this 
section. If, under the

[[Page 572]]

terms of a plan, an individual can elect coverage that would begin on a 
date that is not later than the end of the 90-day waiting period, this 
paragraph (a) is considered satisfied. Accordingly, in that case, a plan 
or issuer will not be considered to have violated this paragraph (a) 
solely because individuals take, or are permitted to take, additional 
time (beyond the end of the 90-day waiting period) to elect coverage.
    (b) Waiting period defined. For purposes of this part, a waiting 
period is the period that must pass before coverage for an individual 
who is otherwise eligible to enroll under the terms of a group health 
plan can become effective. If an individual enrolls as a late enrollee 
(as defined under Sec.  54.9801-2) or special enrollee (as described in 
Sec.  54.9801-6), any period before such late or special enrollment is 
not a waiting period.
    (c) Relation to a plan's eligibility criteria--(1) In general. 
Except as provided in paragraphs (c)(2) and (c)(3) of this section, 
being otherwise eligible to enroll under the terms of a group health 
plan means having met the plan's substantive eligibility conditions 
(such as, for example, being in an eligible job classification, 
achieving job-related licensure requirements specified in the plan's 
terms, or satisfying a reasonable and bona fide employment-based 
orientation period). Moreover, except as provided in paragraphs (c)(2) 
and (c)(3) of this section, nothing in this section requires a plan 
sponsor to offer coverage to any particular individual or class of 
individuals (including, for example, part-time employees). Instead, this 
section prohibits requiring otherwise eligible individuals to wait more 
than 90 days before coverage is effective. See also section 4980H of the 
Code and its implementing regulations for an applicable large employer's 
shared responsibility to provide health coverage to full-time employees.
    (2) Eligibility conditions based solely on the lapse of time. 
Eligibility conditions that are based solely on the lapse of a time 
period are permissible for no more than 90 days.
    (3) Other conditions for eligibility. Other conditions for 
eligibility under the terms of a group health plan are generally 
permissible under PHS Act section 2708, unless the condition is designed 
to avoid compliance with the 90-day waiting period limitation, 
determined in accordance with the rules of this paragraph (c)(3).
    (i) Application to variable-hour employees in cases in which a 
specified number of hours of service per period is a plan eligibility 
condition. If a group health plan conditions eligibility on an employee 
regularly having a specified number of hours of service per period (or 
working full-time), and it cannot be determined that a newly-hired 
employee is reasonably expected to regularly work that number of hours 
per period (or work full-time), the plan may take a reasonable period of 
time, not to exceed 12 months and beginning on any date between the 
employee's start date and the first day of the first calendar month 
following the employee's start date, to determine whether the employee 
meets the plan's eligibility condition. Except in cases in which a 
waiting period that exceeds 90 days is imposed in addition to a 
measurement period, the time period for determining whether such an 
employee meets the plan's eligibility condition will not be considered 
to be designed to avoid compliance with the 90-day waiting period 
limitation if coverage is made effective no later than 13 months from 
the employee's start date plus, if the employee's start date is not the 
first day of a calendar month, the time remaining until the first day of 
the next calendar month.
    (ii) Cumulative service requirements. If a group health plan or 
health insurance issuer conditions eligibility on an employee's having 
completed a number of cumulative hours of service, the eligibility 
condition is not considered to be designed to avoid compliance with the 
90-day waiting period limitation if the cumulative hours-of-service 
requirement does not exceed 1,200 hours.
    (iii) Limitation on orientation periods. To ensure that an 
orientation period is not used as a subterfuge for the passage of time, 
or designed to avoid compliance with the 90-day waiting period 
limitation, an orientation period is permitted only if it does not 
exceed one month. For this purpose, one month is determined by adding 
one calendar month and subtracting one calendar

[[Page 573]]

day, measured from an employee's start date in a position that is 
otherwise eligible for coverage. For example, if an employee's start 
date in an otherwise eligible position is May 3, the last permitted day 
of the orientation period is June 2. Similarly, if an employee's start 
date in an otherwise eligible position is October 1, the last permitted 
day of the orientation period is October 31. If there is not a 
corresponding date in the next calendar month upon adding a calendar 
month, the last permitted day of the orientation period is the last day 
of the next calendar month. For example, if the employee's start date is 
January 30, the last permitted day of the orientation period is February 
28 (or February 29 in a leap year). Similarly, if the employee's start 
date is August 31, the last permitted day of the orientation period is 
September 30.
    (d) Application to rehires. A plan or issuer may treat an employee 
whose employment has terminated and who then is rehired as newly 
eligible upon rehire and, therefore, required to meet the plan's 
eligibility criteria and waiting period anew, if reasonable under the 
circumstances (for example, the termination and rehire cannot be a 
subterfuge to avoid compliance with the 90-day waiting period 
limitation).
    (e) Counting days. Under this section, all calendar days are counted 
beginning on the enrollment date (as defined in Sec.  54.9801-2), 
including weekends and holidays. A plan or issuer that imposes a 90-day 
waiting period may, for administrative convenience, choose to permit 
coverage to become effective earlier than the 91st day if the 91st day 
is a weekend or holiday.
    (f) Examples. The rules of this section are illustrated by the 
following examples:

    Example 1. (i) Facts. A group health plan provides that full-time 
employees are eligible for coverage under the plan. Employee A begins 
employment as a full-time employee on January 19.
    (ii) Conclusion. In this Example 1, any waiting period for A would 
begin on January 19 and may not exceed 90 days. Coverage under the plan 
must become effective no later than April 19 (assuming February lasts 28 
days).
    Example 2. (i) Facts. A group health plan provides that only 
employees with job title M are eligible for coverage under the plan. 
Employee B begins employment with job title L on January 30.
    (ii) Conclusion. In this Example 2, B is not eligible for coverage 
under the plan, and the period while B is working with job title L and 
therefore not in an eligible class of employees, is not part of a 
waiting period under this section.
    Example 3. (i) Facts. Same facts as in Example 2, except that B 
transfers to a new position with job title M on April 11.
    (ii) Conclusion. In this Example 3, B becomes eligible for coverage 
on April 11, but for the waiting period. Any waiting period for B begins 
on April 11 and may not exceed 90 days; therefore, coverage under the 
plan must become effective no later than July 10.
    Example 4. (i) Facts. A group health plan provides that only 
employees who have completed specified training and achieved specified 
certifications are eligible for coverage under the plan. Employee C is 
hired on May 3 and meets the plan's eligibility criteria on September 
22.
    (ii) Conclusion. In this Example 4, C becomes eligible for coverage-
on September 22, but for the waiting period. Any waiting period for C 
would begin on September 22 and may not exceed 90 days; therefore, 
coverage under the plan must become effective no later than December 21.
    Example 5. (i) Facts. A group health plan provides that employees 
are eligible for coverage after one year of service.
    (ii) Conclusion. In this Example 5, the plan's eligibility condition 
is based solely on the lapse of time and, therefore, is impermissible 
under paragraph (c)(2) of this section because it exceeds 90 days.
    Example 6. (i) Facts. Employer V's group health plan provides for 
coverage to begin on the first day of the first payroll period on or 
after the date an employee is hired and completes the applicable 
enrollment forms. Enrollment forms are distributed on an employee's 
start date and may be completed within 90 days. Employee D is hired and 
starts on October 31, which is the first day of a pay period. D 
completes the enrollment forms and submits them on the 90th day after 
D's start date, which is January 28. Coverage is made effective 7 days 
later, February 4, which is the first day of the next pay period.
    (ii) Conclusion. In this Example 6, under the terms of V's plan, 
coverage may become effective as early as October 31, depending on when 
D completes the applicable enrollment forms. Under the terms of the 
plan, when coverage becomes effective depends solely on the length of 
time taken by D to complete the enrollment materials. Therefore, under 
the terms of the plan, D may elect coverage that would begin on a date 
that does not exceed the 90-day waiting period limitation, and the plan 
complies with this section.
    Example 7. (i) Facts. Under Employer W's group health plan, only 
employees who are

[[Page 574]]

full-time (defined under the plan as regularly averaging 30 hours of 
service per week) are eligible for coverage. Employee E begins 
employment for Employer W on November 26 of Year 1. E's hours are 
reasonably expected to vary, with an opportunity to work between 20 and 
45 hours per week, depending on shift availability and E's availability. 
Therefore, it cannot be determined at E's start date that E is 
reasonably expected to work full-time. Under the terms of the plan, 
variable-hour employees, such as E, are eligible to enroll in the plan 
if they are determined to be a full-time employee after a measurement 
period of 12 months that begins on the employee's start date. Coverage 
is made effective no later than the first day of the first calendar 
month after the applicable enrollment forms are received. E's 12-month 
measurement period ends November 25 of Year 2. E is determined to be a 
full-time employee and is notified of E's plan eligibility. If E then 
elects coverage, E's first day of coverage will be January 1 of Year 3.
    (ii) Conclusion. In this Example 7, the measurement period is 
permissible because it is not considered to be designed to avoid 
compliance with the 90-day waiting period limitation. The plan may use a 
reasonable period of time to determine whether a variable-hour employee 
is a full-time employee, provided that (a) the period of time is no 
longer than 12 months; (b) the period of time begins on a date between 
the employee's start date and the first day of the next calendar month 
(inclusive); (c) coverage is made effective no later than 13 months from 
E's start date plus, if the employee's start date is not the first day 
of a calendar month, the time remaining until the first day of the next 
calendar month; and (d) in addition to the measurement period, no more 
than 90 days elapse prior to the employee's eligibility for coverage.
    Example 8. (i) Facts. Employee F begins working 25 hours per week 
for Employer X on January 6 and is considered a part-time employee for 
purposes of X's group health plan. X sponsors a group health plan that 
provides coverage to part-time employees after they have completed a 
cumulative 1,200 hours of service. F satisfies the plan's cumulative 
hours of service condition on December 15.
    (ii) Conclusion. In this Example 8, the cumulative hours of service 
condition with respect to part-time employees is not considered to be 
designed to avoid compliance with the 90-day waiting period limitation. 
Accordingly, coverage for F under the plan must begin no later than the 
91st day after F completes 1,200 hours. (If the plan's cumulative hours-
of-service requirement was more than 1,200 hours, the requirement would 
be considered to be designed to avoid compliance with the 90-day waiting 
period limitation.)
    Example 9. (i) Facts. A multiemployer plan operating pursuant to an 
arms-length collective bargaining agreement has an eligibility provision 
that allows employees to become eligible for coverage by working a 
specified number of hours of covered employment for multiple 
contributing employers. The plan aggregates hours in a calendar quarter 
and then, if enough hours are earned, coverage begins the first day of 
the next calendar quarter. The plan also permits coverage to extend for 
the next full calendar quarter, regardless of whether an employee's 
employment has terminated.
    (ii) Conclusion. In this Example 9, these eligibility provisions are 
designed to accommodate a unique operating structure, and, therefore, 
are not considered to be designed to avoid compliance with the 90-day 
waiting period limitation, and the plan complies with this section.
    Example 10. (i) Facts. Employee G retires at age 55 after 30 years 
of employment with Employer Y with no expectation of providing further 
services to Employer Y. Three months later, Y recruits G to return to 
work as an employee providing advice and transition assistance for G's 
replacement under a one-year employment contract. Y's plan imposes a 90-
day waiting period from an employee's start date before coverage becomes 
effective.
    (ii) Conclusion. In this Example 10, Y's plan may treat G as newly 
eligible for coverage under the plan upon rehire and therefore may 
impose the 90-day waiting period with respect to G for coverage offered 
in connection with G's rehire.
    Example 11. (i) Facts. Employee H begins working full time for 
Employer Z on October 16. Z sponsors a group health plan, under which 
full time employees are eligible for coverage after they have 
successfully completed a bona fide one-month orientation period. H 
completes the orientation period on November 15.
    (ii) Conclusion. In this Example 11, the orientation period is not 
considered a subterfuge for the passage of time and is not considered to 
be designed to avoid compliance with the 90-day waiting period 
limitation. Accordingly, plan coverage for H must begin no later than 
February 14, which is the 91st day after H completes the orientation 
period. (If the orientation period was longer than one month, it would 
be considered to be a subterfuge for the passage of time and designed to 
avoid compliance with the 90-day waiting period limitation. Accordingly 
it would violate the rules of this section.)

    (g) Special rule for health insurance issuers. To the extent 
coverage under a group health plan is insured by a health insurance 
issuer, the issuer is

[[Page 575]]

permitted to rely on the eligibility information reported to it by the 
employer (or other plan sponsor) and will not be considered to violate 
the requirements of this section with respect to its administration of 
any waiting period, if both of the following conditions are satisfied:
    (1) The issuer requires the plan sponsor to make a representation 
regarding the terms of any eligibility conditions or waiting periods 
imposed by the plan sponsor before an individual is eligible to become 
covered under the terms of the plan (and requires the plan sponsor to 
update this representation with any changes), and
    (2) The issuer has no specific knowledge of the imposition of a 
waiting period that would exceed the permitted 90-day period.
    (h) No effect on other laws. Compliance with this section is not 
determinative of compliance with any other provision of State or Federal 
law (including ERISA, the Code, or other provisions of the Patient 
Protection and Affordable Care Act). See e.g., Sec.  54.9802-1, which 
prohibits discrimination in eligibility for coverage based on a health 
factor and section 4980H, which generally requires applicable large 
employers to offer coverage to full-time employees and their dependents 
or make an assessable payment.
    (i) Applicability date. The provisions of this section apply for 
plan years beginning on or after January 1, 2015. See section 1251 of 
the Affordable Care Act, as amended by section 10103 of the Affordable 
Care Act and section 2301 of the Health Care and Education 
Reconciliation Act, and its implementing regulations providing that the 
prohibition on waiting periods exceeding 90 days applies to all group 
health plans and group health insurance issuers, including grandfathered 
health plans.

[T.D. 9656, 79 FR 10306, Feb. 24, 2014, as amended by T.D. 9671, 79 FR 
35947, June 25, 2014]



Sec.  54.9815-2711  No lifetime or annual limits.

    (a) Prohibition--(1) Lifetime limits. Except as provided in 
paragraph (b) of this section, a group health plan, or a health 
insurance issuer offering group health insurance coverage, may not 
establish any lifetime limit on the dollar amount of essential health 
benefits for any individual, whether provided in-network or out-of-
network.
    (2) Annual limits--(i) General rule. Except as provided in 
paragraphs (a)(2)(ii) and (b) of this section, a group health plan, or a 
health insurance issuer offering group health insurance coverage, may 
not establish any annual limit on the dollar amount of essential health 
benefits for any individual, whether provided in-network or out-of-
network.
    (ii) Exception for health flexible spending arrangements. A health 
flexible spending arrangement (as defined in section 106(c)(2) of the 
Internal Revenue Code) offered through a cafeteria plan pursuant to 
section 125 of the Internal Revenue Code is not subject to the 
requirement in paragraph (a)(2)(i) of this section.
    (b) Construction--(1) Permissible limits on specific covered 
benefits. The rules of this section do not prevent a group health plan, 
or a health insurance issuer offering group health insurance coverage, 
from placing annual or lifetime dollar limits with respect to any 
individual on specific covered benefits that are not essential health 
benefits to the extent that such limits are otherwise permitted under 
applicable Federal or State law. (The scope of essential health benefits 
is addressed in paragraph (c) of this section).
    (2) Condition-based exclusions. The rules of this section do not 
prevent a group health plan, or a health insurance issuer offering group 
health insurance coverage, from excluding all benefits for a condition. 
However, if any benefits are provided for a condition, then the 
requirements of this section apply. Other requirements of Federal or 
State law may require coverage of certain benefits.
    (c) Definition of essential health benefits. The term ``essential 
health benefits'' means essential health benefits under section 1302(b) 
of the Patient Protection and Affordable Care Act and applicable 
regulations. For the purpose of this section, a group health plan or a 
health insurance issuer that is not required to provide essential health 
benefits under section 1302(b) must define ``essential health benefits'' 
in a

[[Page 576]]

manner that is consistent with the following:
    (1) For plan years beginning before January 1, 2020, one of the EHB-
benchmark plans applicable in a State under 45 CFR 156.110, and 
including coverage of any additional required benefits that are 
considered essential health benefits consistent with 45 CFR 
155.170(a)(2), or one of the three Federal Employees Health Benefits 
Program (FEHBP) plan options as defined by 45 CFR 156.100(a)(3), 
supplemented as necessary, to satisfy the standards in 45 CFR 156.110; 
or
    (2) For plan years beginning on or after January 1, 2020, an EHB-
benchmark plan selected by a State in accordance with the available 
options and requirements for EHB-benchmark plan selection at 45 CFR 
156.111, including an EHB-benchmark plan in a State that takes no action 
to change its EHB-benchmark plan and thus retains the EHB-benchmark plan 
applicable in that State for the prior year in accordance with 45 CFR 
156.111(d)(1), and including coverage of any additional required 
benefits that are considered essential health benefits consistent with 
45 CFR 155.170(a)(2).
    (d) Health reimbursement arrangements (HRAs) and other account-based 
group health plans--(1) In general. If an HRA or other account-based 
group health plan is integrated with another group health plan or 
individual health insurance coverage and the other group health plan or 
individual health insurance coverage, as applicable, separately is 
subject to and satisfies the requirements in PHS Act section 2711 and 
paragraph (a)(2) of this section, the fact that the benefits under the 
HRA or other account-based group health plan are limited does not cause 
the HRA or other account-based group health plan to fail to satisfy the 
requirements of PHS Act section 2711 and paragraph (a)(2) of this 
section. Similarly, if an HRA or other account-based group health plan 
is integrated with another group health plan or individual health 
insurance coverage and the other group health plan or individual health 
insurance coverage, as applicable, separately is subject to and 
satisfies the requirements in PHS Act section 2713 and Sec.  54.9815-
2713(a)(1) of this chapter, the fact that the benefits under the HRA or 
other account-based group health plan are limited does not cause the HRA 
or other account-based group health plan to fail to satisfy the 
requirements of PHS Act section 2713 and Sec.  54.9815-2713(a)(1) of 
this chapter. For the purpose of this paragraph (d), all individual 
health insurance coverage, except for coverage that consists solely of 
excepted benefits, is treated as being subject to and complying with PHS 
Act sections 2711 and 2713.
    (2) Requirements for an HRA or other account-based group health plan 
to be integrated with another group health plan. An HRA or other 
account-based group health plan is integrated with another group health 
plan for purposes of PHS Act section 2711 and paragraph (a)(2) of this 
section if it satisfies the requirements under one of the integration 
methods set forth in paragraph (d)(2)(i) or (ii) of this section. For 
purposes of the integration methods under which an HRA or other account-
based group health plan is integrated with another group health plan, 
integration does not require that the HRA or other account-based group 
health plan and the other group health plan with which it is integrated 
share the same plan sponsor, the same plan document or governing 
instruments, or file a single Form 5500, if applicable. An HRA or other 
account-based group health plan integrated with another group health 
plan for purposes of PHS Act section 2711 and paragraph (a)(2) of this 
section may not be used to purchase individual health insurance coverage 
unless that coverage consists solely of excepted benefits, as defined in 
45 CFR 148.220.
    (i) Method for integration with a group health plan: Minimum value 
not required. An HRA or other account-based group health plan is 
integrated with another group health plan for purposes of this paragraph 
(d) if:
    (A) The plan sponsor offers a group health plan (other than the HRA 
or other account-based group health plan) to the employee that does not 
consist solely of excepted benefits;
    (B) The employee receiving the HRA or other account-based group 
health plan is actually enrolled in a group health plan (other than the 
HRA or other account-based group health plan)

[[Page 577]]

that does not consist solely of excepted benefits, regardless of whether 
the plan is offered by the same plan sponsor (referred to as non-HRA 
group coverage);
    (C) The HRA or other account-based group health plan is available 
only to employees who are enrolled in non-HRA group coverage, regardless 
of whether the non-HRA group coverage is offered by the plan sponsor of 
the HRA or other account-based group health plan (for example, the HRA 
may be offered only to employees who do not enroll in an employer's 
group health plan but are enrolled in other non-HRA group coverage, such 
as a group health plan maintained by the employer of the employee's 
spouse);
    (D) The benefits under the HRA or other account-based group health 
plan are limited to reimbursement of one or more of the following--co-
payments, co-insurance, deductibles, and premiums under the non-HRA 
group coverage, as well as medical care expenses that do not constitute 
essential health benefits as defined in paragraph (c) of this section; 
and
    (E) Under the terms of the HRA or other account-based group health 
plan, an employee (or former employee) is permitted to permanently opt 
out of and waive future reimbursements from the HRA or other account-
based group health plan at least annually and, upon termination of 
employment, either the remaining amounts in the HRA or other account-
based group health plan are forfeited or the employee is permitted to 
permanently opt out of and waive future reimbursements from the HRA or 
other account-based group health plan (see paragraph (d)(3) of this 
section for additional rules regarding forfeiture and waiver).
    (ii) Method for integration with another group health plan: Minimum 
value required. An HRA or other account-based group health plan is 
integrated with another group health plan for purposes of this paragraph 
(d) if:
    (A) The plan sponsor offers a group health plan (other than the HRA 
or other account-based group health plan) to the employee that provides 
minimum value pursuant to section 36B(c)(2)(C)(ii) (and its implementing 
regulations and applicable guidance);
    (B) The employee receiving the HRA or other account-based group 
health plan is actually enrolled in a group health plan (other than the 
HRA or other account-based group health plan) that provides minimum 
value pursuant to section 36B(c)(2)(C)(ii) (and applicable guidance), 
regardless of whether the plan is offered by the plan sponsor of the HRA 
or other account-based group health plan (referred to as non-HRA MV 
group coverage);
    (C) The HRA or other account-based group health plan is available 
only to employees who are actually enrolled in non-HRA MV group 
coverage, regardless of whether the non-HRA MV group coverage is offered 
by the plan sponsor of the HRA or other account-based group health plan 
(for example, the HRA may be offered only to employees who do not enroll 
in an employer's group health plan but are enrolled in other non-HRA MV 
group coverage, such as a group health plan maintained by an employer of 
the employee's spouse); and
    (D) Under the terms of the HRA or other account-based group health 
plan, an employee (or former employee) is permitted to permanently opt 
out of and waive future reimbursements from the HRA or other account-
based group health plan at least annually, and, upon termination of 
employment, either the remaining amounts in the HRA or other account-
based group health plan are forfeited or the employee is permitted to 
permanently opt out of and waive future reimbursements from the HRA or 
other account-based group health plan (see paragraph (d)(3) of this 
section for additional rules regarding forfeiture and waiver).
    (3) Forfeiture. For purposes of integration under paragraphs 
(d)(2)(i)(E) and (d)(2)(ii)(D) of this section, forfeiture or waiver 
occurs even if the forfeited or waived amounts may be reinstated upon a 
fixed date, a participant's death, or the earlier of the two events (the 
reinstatement event). For the purpose of this paragraph (d)(3), coverage 
under an HRA or other account-based group health plan is considered 
forfeited or waived prior to a reinstatement event only if the 
participant's election to forfeit or waive is irrevocable, meaning that, 
beginning on the

[[Page 578]]

effective date of the election and through the date of the reinstatement 
event, the participant and the participant's beneficiaries have no 
access to amounts credited to the HRA or other account-based group 
health plan. This means that upon and after reinstatement, the 
reinstated amounts under the HRA or other account-based group health 
plan may not be used to reimburse or pay medical care expenses incurred 
during the period after forfeiture and prior to reinstatement.
    (4) Requirements for an HRA or other account-based group health plan 
to be integrated with individual health insurance coverage or Medicare 
Part A and B or Medicare Part C. An HRA or other account-based group 
health plan is integrated with individual health insurance coverage or 
Medicare Part A and B or Medicare Part C (and treated as complying with 
PHS Act sections 2711 and 2713) if the HRA or other account-based group 
health plan satisfies the requirements of Sec.  54.9802-4(c) of this 
chapter (as modified by Sec.  54.9802-4(e), for HRAs or other account-
based group health plans integrated with Medicare Part A and B or 
Medicare Part C).
    (5) Integration with Medicare Part B and D. For employers that are 
not required to offer their non-HRA group health plan coverage to 
employees who are Medicare beneficiaries, an HRA or other account-based 
group health plan that may be used to reimburse premiums under Medicare 
Part B or D may be integrated with Medicare (and deemed to comply with 
PHS Act sections 2711 and 2713) if the following requirements are 
satisfied with respect to employees who would be eligible for the 
employer's non-HRA group health plan but for their eligibility for 
Medicare (and the integration rules under paragraphs (d)(2)(i) and (ii) 
of this section continue to apply to employees who are not eligible for 
Medicare):
    (i) The plan sponsor offers a group health plan (other than the HRA 
or other account-based group health plan and that does not consist 
solely of excepted benefits) to employees who are not eligible for 
Medicare;
    (ii) The employee receiving the HRA or other account-based group 
health plan is actually enrolled in Medicare Part B or D;
    (iii) The HRA or other account-based group health plan is available 
only to employees who are enrolled in Medicare Part B or D; and
    (iv) The HRA or other account-based group health plan complies with 
paragraphs (d)(2)(i)(E) and (d)(2)(ii)(D) of this section.
    (6) Definitions. The following definitions apply for purposes of 
this section.
    (i) Account-based group health plan. An account-based group health 
plan is an employer-provided group health plan that provides 
reimbursements of medical care expenses with the reimbursement subject 
to a maximum fixed dollar amount for a period. An HRA is a type of 
account-based group health plan. An account-based group health plan does 
not include a qualified small employer health reimbursement arrangement, 
as defined in section 9831(d)(2).
    (ii) Medical care expenses. Medical care expenses means expenses for 
medical care as defined under section 213(d).
    (e) Applicability date. The provisions of this section are 
applicable to group health plans and health insurance issuers for plan 
years beginning on or after January 1, 2020. Until the applicability 
date for this section, plans and issuers are required to continue to 
comply with the corresponding sections of 26 CFR part 54, contained in 
the 26 CFR, subchapter D, revised as of April 1, 2018.

[T.D. 9744, 80 FR 72243, Nov. 18, 2015, as amended by T.D. 9791, 81 FR 
75324, Oct. 31, 2016; T.D. 9867, 84 FR 28997, June 20, 2019]



Sec.  54.9815-2712  Rules regarding rescissions.

    (a) Prohibition on rescissions--(1) A group health plan, or a health 
insurance issuer offering group health insurance coverage, must not 
rescind coverage under the plan, or under the policy, certificate, or 
contract of insurance, with respect to an individual (including a group 
to which the individual belongs or family coverage in which the 
individual is included) once the individual is covered under the plan or 
coverage, unless the individual (or a person seeking coverage on behalf 
of the individual) performs an act, practice, or omission that 
constitutes

[[Page 579]]

fraud, or makes an intentional misrepresentation of material fact, as 
prohibited by the terms of the plan or coverage. A group health plan, or 
a health insurance issuer offering group health insurance coverage, must 
provide at least 30 days advance written notice to each participant who 
would be affected before coverage may be rescinded under this paragraph 
(a)(1), regardless of whether the coverage is insured or self-insured, 
or whether the rescission applies to an entire group or only to an 
individual within the group. (The rules of this paragraph (a)(1) apply 
regardless of any contestability period that may otherwise apply.)
    (2) For purposes of this section, a rescission is a cancellation or 
discontinuance of coverage that has retroactive effect. For example, a 
cancellation that treats a policy as void from the time of the 
individual's or group's enrollment is a rescission. As another example, 
a cancellation that voids benefits paid up to a year before the 
cancellation is also a rescission for this purpose. A cancellation or 
discontinuance of coverage is not a rescission if--
    (i) The cancellation or discontinuance of coverage has only a 
prospective effect;
    (ii) The cancellation or discontinuance of coverage is effective 
retroactively to the extent it is attributable to a failure to timely 
pay required premiums or contributions (including COBRA premiums) 
towards the cost of coverage;
    (iii) The cancellation or discontinuance of coverage is initiated by 
the individual (or by the individual's authorized representative) and 
the sponsor, employer, plan, or issuer does not, directly or indirectly, 
take action to influence the individual's decision to cancel or 
discontinue coverage retroactively or otherwise take any adverse action 
or retaliate against, interfere with, coerce, intimidate, or threaten 
the individual; or
    (iv) The cancellation or discontinuance of coverage is initiated by 
the Exchange pursuant to 45 CFR 155.430 (other than under paragraph 
(b)(2)(iii)).
    (3) The rules of this paragraph (a) are illustrated by the following 
examples:

    Example 1. (i) Facts. Individual A seeks enrollment in an insured 
group health plan. The plan terms permit rescission of coverage with 
respect to an individual if the individual engages in fraud or makes an 
intentional misrepresentation of a material fact. The plan requires A to 
complete a questionnaire regarding A's prior medical history, which 
affects setting the group rate by the health insurance issuer. The 
questionnaire complies with the other requirements of this part. The 
questionnaire includes the following question: ``Is there anything else 
relevant to your health that we should know?'' A inadvertently fails to 
list that A visited a psychologist on two occasions, six years 
previously. A is later diagnosed with breast cancer and seeks benefits 
under the plan. On or around the same time, the issuer receives 
information about A's visits to the psychologist, which was not 
disclosed in the questionnaire.
    (ii) Conclusion. In this Example 1, the plan cannot rescind A's 
coverage because A's failure to disclose the visits to the psychologist 
was inadvertent. Therefore, it was not fraudulent or an intentional 
misrepresentation of material fact.

    Example 2. (i) Facts. An employer sponsors a group health plan that 
provides coverage for employees who work at least 30 hours per week. 
Individual B has coverage under the plan as a full-time employee. The 
employer reassigns B to a part-time position. Under the terms of the 
plan, B is no longer eligible for coverage. The plan mistakenly 
continues to provide health coverage, collecting premiums from B and 
paying claims submitted by B. After a routine audit, the plan discovers 
that B no longer works at least 30 hours per week. The plan rescinds B's 
coverage effective as of the date that B changed from a full-time 
employee to a part-time employee.
    (ii) Conclusion. In this Example 2, the plan cannot rescind B's 
coverage because there was no fraud or an intentional misrepresentation 
of material fact. The plan may cancel coverage for B prospectively, 
subject to other applicable Federal and State laws.

    (b) Compliance with other requirements. Other requirements of 
Federal or State law may apply in connection with a rescission of 
coverage.
    (c) Applicability date. The provisions of this section are 
applicable to group health plans and health insurance issuers for plan 
years beginning on or after January 1, 2017. Until the applicability 
date for this regulation, plans and issuers are required to continue to 
comply with the interim final regulations promulgated by the Department 
of Labor at 29 CFR part 2590, contained

[[Page 580]]

in the 29 CFR, parts 1927 to end, edition revised as of July 1, 2015.

[T.D. 9744, 80 FR 72244, Nov. 18, 2015]



Sec.  54.9815-2713  Coverage of preventive health services.

    (a) Services--(1) In general. Beginning at the time described in 
paragraph (b) of this section and subject to Sec.  54.9815-2713A, a 
group health plan, or a health insurance issuer offering group health 
insurance coverage, must provide coverage for and must not impose any 
cost-sharing requirements (such as a copayment, coinsurance, or a 
deductible) for--
    (i) Evidence-based items or services that have in effect a rating of 
A or B in the current recommendations of the United States Preventive 
Services Task Force with respect to the individual involved (except as 
otherwise provided in paragraph (c) of this section);
    (ii) Immunizations for routine use in children, adolescents, and 
adults that have in effect a recommendation from the Advisory Committee 
on Immunization Practices of the Centers for Disease Control and 
Prevention with respect to the individual involved (for this purpose, a 
recommendation from the Advisory Committee on Immunization Practices of 
the Centers for Disease Control and Prevention is considered in effect 
after it has been adopted by the Director of the Centers for Disease 
Control and Prevention, and a recommendation is considered to be for 
routine use if it is listed on the Immunization Schedules of the Centers 
for Disease Control and Prevention);
    (iii) With respect to infants, children, and adolescents, evidence-
informed preventive care and screenings provided for in comprehensive 
guidelines supported by the Health Resources and Services 
Administration; and
    (iv) With respect to women, such additional preventive care and 
screenings not described in paragraph (a)(1)(i) of this section as 
provided for in comprehensive guidelines supported by the Health 
Resources and Services Administration for purposes of section 2713(a)(4) 
of the Public Health Service Act, subject to 45 CFR 147.131, 147.132, 
and 147.133.
    (2) Office visits--(i) If an item or service described in paragraph 
(a)(1) of this section is billed separately (or is tracked as individual 
encounter data separately) from an office visit, then a plan or issuer 
may impose cost-sharing requirements with respect to the office visit.
    (ii) If an item or service described in paragraph (a)(1) of this 
section is not billed separately (or is not tracked as individual 
encounter data separately) from an office visit and the primary purpose 
of the office visit is the delivery of such an item or service, then a 
plan or issuer may not impose cost-sharing requirements with respect to 
the office visit.
    (iii) If an item or service described in paragraph (a)(1) of this 
section is not billed separately (or is not tracked as individual 
encounter data separately) from an office visit and the primary purpose 
of the office visit is not the delivery of such an item or service, then 
a plan or issuer may impose cost-sharing requirements with respect to 
the office visit.
    (iv) The rules of this paragraph (a)(2) are illustrated by the 
following examples:

    Example 1. (i) Facts. An individual covered by a group health plan 
visits an in-network health care provider. While visiting the provider, 
the individual is screened for cholesterol abnormalities, which has in 
effect a rating of A or B in the current recommendations of the United 
States Preventive Services Task Force with respect to the individual. 
The provider bills the plan for an office visit and for the laboratory 
work of the cholesterol screening test.
    (ii) Conclusion. In this Example 1, the plan may not impose any 
cost-sharing requirements with respect to the separately-billed 
laboratory work of the cholesterol screening test. Because the office 
visit is billed separately from the cholesterol screening test, the plan 
may impose cost-sharing requirements for the office visit.
    Example 2. (i) Facts. Same facts as Example 1 of this section. As 
the result of the screening, the individual is diagnosed with 
hyperlipidemia and is prescribed a course of treatment that is not 
included in the recommendations under paragraph (a)(1) of this section.
    (ii) Conclusion. In this Example 2, because the treatment is not 
included in the recommendations under paragraph (a)(1) of this

[[Page 581]]

section, the plan is not prohibited from imposing cost-sharing 
requirements with respect to the treatment.
    Example 3. (i) Facts. An individual covered by a group health plan 
visits an in-network health care provider to discuss recurring abdominal 
pain. During the visit, the individual has a blood pressure screening, 
which has in effect a rating of A or B in the current recommendations of 
the United States Preventive Services Task Force with respect to the 
individual. The provider bills the plan for an office visit.
    (ii) Conclusion. In this Example 3, the blood pressure screening is 
provided as part of an office visit for which the primary purpose was 
not to deliver items or services described in paragraph (a)(1) of this 
section. Therefore, the plan may impose a cost-sharing requirement for 
the office visit charge.
    Example 4. (i) Facts. A child covered by a group health plan visits 
an in-network pediatrician to receive an annual physical exam described 
as part of the comprehensive guidelines supported by the Health 
Resources and Services Administration. During the office visit, the 
child receives additional items and services that are not described in 
the comprehensive guidelines supported by the Health Resources and 
Services Administration, nor otherwise described in paragraph (a)(1) of 
this section. The provider bills the plan for an office visit.
    (ii) Conclusion. In this Example 4, the service was not billed as a 
separate charge and was billed as part of an office visit. Moreover, the 
primary purpose for the visit was to deliver items and services 
described as part of the comprehensive guidelines supported by the 
Health Resources and Services Administration. Therefore, the plan may 
not impose a cost-sharing requirement with respect to the office visit.

    (3) Out-of-network providers. (i) Subject to paragraph (a)(3)(ii) of 
this section, nothing in this section requires a plan or issuer that has 
a network of providers to provide benefits for items or services 
described in paragraph (a)(1) of this section that are delivered by an 
out-of-network provider. Moreover, nothing in this section precludes a 
plan or issuer that has a network of providers from imposing cost-
sharing requirements for items or services described in paragraph (a)(1) 
of this section that are delivered by an out-of-network provider.
    (ii) If a plan or issuer does not have in its network a provider who 
can provide an item or service described in paragraph (a)(1) of this 
section, the plan or issuer must cover the item or service when 
performed by an out-of-network provider, and may not impose cost-sharing 
with respect to the item or service.
    (4) Reasonable medical management. Nothing prevents a plan or issuer 
from using reasonable medical management techniques to determine the 
frequency, method, treatment, or setting for an item or service 
described in paragraph (a)(1) of this section to the extent not 
specified in the relevant recommendation or guideline. To the extent not 
specified in a recommendation or guideline, a plan or issuer may rely on 
the relevant clinical evidence base and established reasonable medical 
management techniques to determine the frequency, method, treatment, or 
setting for coverage of a recommended preventive health service.
    (5) Services not described. Nothing in this section prohibits a plan 
or issuer from providing coverage for items and services in addition to 
those recommended by the United States Preventive Services Task Force or 
the Advisory Committee on Immunization Practices of the Centers for 
Disease Control and Prevention, or provided for by guidelines supported 
by the Health Resources and Services Administration, or from denying 
coverage for items and services that are not recommended by that task 
force or that advisory committee, or under those guidelines. A plan or 
issuer may impose cost-sharing requirements for a treatment not 
described in paragraph (a)(1) of this section, even if the treatment 
results from an item or service described in paragraph (a)(1) of this 
section.
    (b) Timing--(1) In general. A plan or issuer must provide coverage 
pursuant to paragraph (a)(1) of this section for plan years that begin 
on or after September 23, 2010, or, if later, for plan years that begin 
on or after the date that is one year after the date the recommendation 
or guideline is issued.
    (2) Changes in recommendations or guidelines. (i) A plan or issuer 
that is required to provide coverage for any items and services 
specified in any recommendation or guideline described in paragraph 
(a)(1) of this section on the first day of a plan year must provide 
coverage through the last day of the plan year, even if the 
recommendation

[[Page 582]]

or guideline changes is or is no longer described in paragraph (a)(1) of 
this section, during the plan year.
    (ii) Notwithstanding paragraph (b)(2)(i) of this section, to the 
extent a recommendation or guideline described in paragraph (a)(1)(i) of 
this section that was in effect on the first day of a plan year is 
downgraded to a ``D'' rating, or any item or service associated with any 
recommendation or guideline specified in paragraph (a)(1) of this 
section is subject to a safety recall or is otherwise determined to pose 
a significant safety concern by a federal agency authorized to regulate 
the item or service during a plan year, there is no requirement under 
this section to cover these items and services through the last day of 
the plan year.
    (c) Recommendations not current. For purposes of paragraph (a)(1)(i) 
of this section, and for purposes of any other provision of law, 
recommendations of the United States Preventive Services Task Force 
regarding breast cancer screening, mammography, and prevention issued in 
or around November 2009 are not considered to be current.
    (d) Effective/applicability date. April 16, 2012.

[T.D. 9578, 77 FR 8729, Feb. 15, 2012, as amended by T.D. 9624, 78 FR 
39892, July 2, 2013; T.D. 9726, 80 FR 41342, July 14, 2015; T.D. 9827, 
82 FR 47828, Oct. 13, 2017; T.D. 9840, 83 FR 57586, Nov. 15, 2018; T.D. 
9841, 83 FR 57630, Nov. 15, 2018]



Sec.  54.9815-2713T  Coverage of preventive health services (temporary).

    (a) Services--(1) In general. Beginning at the time described in 
paragraph (b) of this section and subject to Sec.  54.9815-2713A, a 
group health plan, or a health insurance issuer offering group health 
insurance coverage, must provide coverage for and must not impose any 
cost-sharing requirements (such as a copayment, coinsurance, or a 
deductible) for--
    (i) Evidence-based items or services that have in effect a rating of 
A or B in the current recommendations of the United States Preventive 
Services Task Force with respect to the individual involved (except as 
otherwise provided in paragraph (c) of this section);
    (ii) Immunizations for routine use in children, adolescents, and 
adults that have in effect a recommendation from the Advisory Committee 
on Immunization Practices of the Centers for Disease Control and 
Prevention with respect to the individual involved (for purposes of this 
paragraph (a)(1)(ii), a recommendation from the Advisory Committee on 
Immunization Practices of the Centers for Disease Control and Prevention 
is considered in effect after it has been adopted by the Director of the 
Centers for Disease Control and Prevention, and a recommendation is 
considered to be for routine use if it is listed on the Immunization 
Schedules of the Centers for Disease Control and Prevention);
    (iii) With respect to infants, children, and adolescents, evidence-
informed preventive care and screenings provided for in comprehensive 
guidelines supported by the Health Resources and Services 
Administration;
    (iv) With respect to women, such additional preventive care and 
screenings not described in paragraph (a)(1)(i) of this section as 
provided for in comprehensive guidelines supported by the Health 
Resources and Services Administration for purposes of section 2713(a)(4) 
of the Public Health Service Act, subject to 45 CFR 147.131, 147.132, 
and 147.133; and
    (v) Any qualifying coronavirus preventive service, which means an 
item, service, or immunization that is intended to prevent or mitigate 
coronavirus disease 2019 (COVID-19) and that is, with respect to the 
individual involved--
    (A) An evidence-based item or service that has in effect a rating of 
A or B in the current recommendations of the United States Preventive 
Services Task Force; or
    (B) An immunization that has in effect a recommendation from the 
Advisory Committee on Immunization Practices of the Centers for Disease 
Control and Prevention (regardless of whether the immunization is 
recommended for routine use). For purposes of this paragraph 
(a)(1)(v)(B), a recommendation from the Advisory Committee on 
Immunization Practices of the Centers for Disease Control and Prevention 
is considered in effect after

[[Page 583]]

it has been adopted by the Director of the Centers for Disease Control 
and Prevention.
    (2) Office visits. (i) If an item or service described in paragraph 
(a)(1) of this section is billed separately (or is tracked as individual 
encounter data separately) from an office visit, then a plan or issuer 
may impose cost-sharing requirements with respect to the office visit.
    (ii) If an item or service described in paragraph (a)(1) of this 
section is not billed separately (or is not tracked as individual 
encounter data separately) from an office visit and the primary purpose 
of the office visit is the delivery of such an item or service, then a 
plan or issuer may not impose cost-sharing requirements with respect to 
the office visit.
    (iii) If an item or service described in paragraph (a)(1) of this 
section is not billed separately (or is not tracked as individual 
encounter data separately) from an office visit and the primary purpose 
of the office visit is not the delivery of such an item or service, then 
a plan or issuer may impose cost-sharing requirements with respect to 
the office visit.
    (iv) The rules of this paragraph (a)(2) are illustrated by the 
following examples:
    (A) Example 1--(1) Facts. An individual covered by a group health 
plan visits an in-network health care provider. While visiting the 
provider, the individual is screened for cholesterol abnormalities, 
which has in effect a rating of A or B in the current recommendations of 
the United States Preventive Services Task Force with respect to the 
individual. The provider bills the plan for an office visit and for the 
laboratory work of the cholesterol screening test.
    (2) Conclusion. In paragraph (a)(2)(iv)(A)(1) of this section, the 
plan may not impose any cost-sharing requirements with respect to the 
separately-billed laboratory work of the cholesterol screening test. 
Because the office visit is billed separately from the cholesterol 
screening test, the plan may impose cost-sharing requirements for the 
office visit.
    (B) Example 2--(1) Facts. Same facts as in paragraph 
(a)(2)(iv)(A)(1) of this section (Example 1). As the result of the 
screening, the individual is diagnosed with hyperlipidemia and is 
prescribed a course of treatment that is not included in the 
recommendations under paragraph (a)(1) of this section.
    (2) Conclusion. In paragraph (a)(2)(iv)(B)(1) of this section, 
because the treatment is not included in the recommendations under 
paragraph (a)(1) of this section, the plan is not prohibited from 
imposing cost-sharing requirements with respect to the treatment.
    (C) Example 3--(1) Facts. An individual covered by a group health 
plan visits an in-network health care provider to discuss recurring 
abdominal pain. During the visit, the individual has a blood pressure 
screening, which has in effect a rating of A or B in the current 
recommendations of the United States Preventive Services Task Force with 
respect to the individual. The provider bills the plan for an office 
visit.
    (2) Conclusion. In paragraph (a)(2)(iv)(C)(1) of this section, the 
blood pressure screening is provided as part of an office visit for 
which the primary purpose was not to deliver items or services described 
in paragraph (a)(1) of this section. Therefore, the plan may impose a 
cost-sharing requirement for the office visit charge.
    (D) Example 4--(1) Facts. A child covered by a group health plan 
visits an in-network pediatrician to receive an annual physical exam 
described as part of the comprehensive guidelines supported by the 
Health Resources and Services Administration. During the office visit, 
the child receives additional items and services that are not described 
in the comprehensive guidelines supported by the Health Resources and 
Services Administration, nor otherwise described in paragraph (a)(1) of 
this section. The provider bills the plan for an office visit.
    (2) Conclusion. In paragraph (a)(2)(iv)(D)(1) of this section, the 
service was not billed as a separate charge and was billed as part of an 
office visit. Moreover, the primary purpose for the visit was to deliver 
items and services described as part of the comprehensive guidelines 
supported by the Health Resources and Services Administration. 
Therefore, the plan may not impose a

[[Page 584]]

cost-sharing requirement with respect to the office visit.
    (3) Out-of-network providers. (i) Subject to paragraphs (a)(3)(ii) 
and (iii) of this section, nothing in this section requires a plan or 
issuer that has a network of providers to provide benefits for items or 
services described in paragraph (a)(1) of this section that are 
delivered by an out-of-network provider, or precludes a plan or issuer 
that has a network of providers from imposing cost-sharing requirements 
for items or services described in paragraph (a)(1) of this section that 
are delivered by an out-of-network provider.
    (ii) If a plan or issuer does not have in its network a provider who 
can provide an item or service described in paragraph (a)(1) of this 
section, the plan or issuer must cover the item or service when 
performed by an out-of-network provider, and may not impose cost-sharing 
with respect to the item or service.
    (iii) A plan or issuer must provide coverage for and must not impose 
any cost-sharing requirements (such as a copayment, coinsurance, or a 
deductible) for any qualifying coronavirus preventive service described 
in paragraph (a)(1)(v) of this section, regardless of whether such 
service is delivered by an in-network or out-of-network provider. For 
purposes of this paragraph (a)(3)(iii), with respect to a qualifying 
coronavirus preventive service and a provider with whom the plan or 
issuer does not have a negotiated rate for such service (such as an out-
of-network provider), the plan or issuer must reimburse the provider for 
such service in an amount that is reasonable, as determined in 
comparison to prevailing market rates for such service.
    (4) Reasonable medical management. Nothing prevents a plan or issuer 
from using reasonable medical management techniques to determine the 
frequency, method, treatment, or setting for an item or service 
described in paragraph (a)(1) of this section to the extent not 
specified in the relevant recommendation or guideline. To the extent not 
specified in a recommendation or guideline, a plan or issuer may rely on 
the relevant clinical evidence base and established reasonable medical 
management techniques to determine the frequency, method, treatment, or 
setting for coverage of a recommended preventive health service.
    (5) Services not described. Nothing in this section prohibits a plan 
or issuer from providing coverage for items and services in addition to 
those recommended by the United States Preventive Services Task Force or 
the Advisory Committee on Immunization Practices of the Centers for 
Disease Control and Prevention, or provided for by guidelines supported 
by the Health Resources and Services Administration, or from denying 
coverage for items and services that are not recommended by that task 
force or that advisory committee, or under those guidelines. A plan or 
issuer may impose cost-sharing requirements for a treatment not 
described in paragraph (a)(1) of this section, even if the treatment 
results from an item or service described in paragraph (a)(1) of this 
section.
    (b) Timing--(1) In general. A plan or issuer must provide coverage 
pursuant to paragraph (a)(1) of this section for plan years that begin 
on or after September 23, 2010, or, if later, for plan years that begin 
on or after the date that is one year after the date the recommendation 
or guideline is issued, except as provided in paragraph (b)(3) of this 
section.
    (2) Changes in recommendations or guidelines. (i) A plan or issuer 
that is required to provide coverage for any items and services 
specified in any recommendation or guideline described in paragraph 
(a)(1) of this section on the first day of a plan year, or as otherwise 
provided in paragraph (b)(3) of this section, must provide coverage 
through the last day of the plan or policy year, even if the 
recommendation or guideline changes or is no longer described in 
paragraph (a)(1) of this section, during the applicable plan or policy 
year.
    (ii) Notwithstanding paragraph (b)(2)(i) of this section, to the 
extent a recommendation or guideline described in paragraph (a)(1)(i) of 
this section that was in effect on the first day of a plan year, or as 
otherwise provided in paragraph (b)(3) of this section, is downgraded to 
a ``D'' rating, or any item or service associated with any

[[Page 585]]

recommendation or guideline specified in paragraph (a)(1) of this 
section is subject to a safety recall or is otherwise determined to pose 
a significant safety concern by a Federal agency authorized to regulate 
the item or service during a plan or policy year, there is no 
requirement under this section to cover these items and services through 
the last day of the applicable plan or policy year.
    (3) Rapid coverage of preventive services for coronavirus. In the 
case of a qualifying coronavirus preventive service described in 
paragraph (a)(1)(v) of this section, a plan or issuer must provide 
coverage for such item, service, or immunization in accordance with this 
section by the date that is 15 business days after the date on which a 
recommendation specified in paragraph (a)(1)(v)(A) or (B) of this 
section is made relating to such item, service, or immunization.
    (c) Recommendations not current. For purposes of paragraph (a)(1)(i) 
of this section, and for purposes of any other provision of law, 
recommendations of the United States Preventive Services Task Force 
regarding breast cancer screening, mammography, and prevention issued in 
or around November 2009 are not considered to be current.
    (d) Applicability date. The provisions of paragraphs (a)(1)(i) 
through (iv), (a)(2), (a)(3)(i) and (ii), (a)(4) through (5), (b)(1) and 
(2), and (c) of this section are applicable as of April 16, 2012.
    (e) Sunset date. The provisions of paragraphs (a)(1)(v), 
(a)(3)(iii), and (b)(3) of this section will not apply with respect to a 
qualifying coronavirus preventive service furnished on or after the 
expiration of the public health emergency determined on January 31, 
2020, to exist nationwide as of January 27, 2020, by the Secretary of 
Health and Human Services pursuant to section 319 of the Public Health 
Service Act, as a result of COVID-19, including any subsequent renewals 
of that determination.

[T.D. 9931, 85 FR 71193, Nov. 6, 2020]



Sec.  54.9815-2713A  Accommodations in connection with coverage 
of preventive health services.

    (a) Eligible organizations for optional accommodation. An eligible 
organization is an organization that meets the criteria of paragraphs 
(a)(1) through (4) of this section.
    (1) The organization is an objecting entity described in 45 CFR 
147.132(a)(1)(i) or (ii), or 45 CFR 147.133(a)(1)(i) or (ii);
    (2) Notwithstanding its status under paragraph (a)(1) of this 
section and under 45 CFR 147.132(a) or 147.133(a), the organization 
voluntarily seeks to be considered an eligible organization to invoke 
the optional accommodation under paragraph (b) or (c) of this section as 
applicable; and
    (3) [Reserved]
    (4) The organization self-certifies in the form and manner specified 
by the Secretary of Labor or provides notice to the Secretary of the 
Department of Health and Human Services as described in paragraph (b) or 
(c) of this section. To qualify as an eligible organization, the 
organization must make such self-certification or notice available for 
examination upon request by the first day of the first plan year to 
which the accommodation in paragraph (b) or (c) of this section applies. 
The self-certification or notice must be executed by a person authorized 
to make the certification or provide the notice on behalf of the 
organization, and must be maintained in a manner consistent with the 
record retention requirements under section 107 of ERISA.
    (5) An eligible organization may revoke its use of the accommodation 
process, and its issuer or third party administrator must provide 
participants and beneficiaries written notice of such revocation, as 
specified herein.
    (i) Transitional rule--If contraceptive coverage is being offered on 
the date on which these final rules go into effect, by an issuer or 
third party administrator through the accommodation process, an eligible 
organization may give 60-days notice pursuant to section 2715(d)(4) of 
the PHS Act and Sec.  54.9815-2715(b), if applicable, to revoke its use 
of the accommodation process (to allow for the provision of notice to 
plan participants in cases where contraceptive benefits will no longer 
be provided). Alternatively, such eligible organization may revoke its 
use of the accommodation process effective on the first day of the first 
plan year that

[[Page 586]]

begins on or after 30 days after the date of the revocation.
    (ii) General rule--In plan years that begin after the date on which 
these final rules go into effect, if contraceptive coverage is being 
offered by an issuer or third party administrator through the 
accommodation process, an eligible organization's revocation of use of 
the accommodation process will be effective no sooner than the first day 
of the first plan year that begins on or after 30 days after the date of 
the revocation.
    (b) Optional accommodation--self-insured group health plans--(1) A 
group health plan established or maintained by an eligible organization 
that provides benefits on a self-insured basis may voluntarily elect an 
optional accommodation under which its third party administrator(s) will 
provide or arrange payments for all or a subset of contraceptive 
services for one or more plan years. To invoke the optional 
accommodation process:
    (i) The eligible organization or its plan must contract with one or 
more third party administrators.
    (ii) The eligible organization must provide either a copy of the 
self-certification to each third party administrator or a notice to the 
Secretary of the Department of Health and Human Services that it is an 
eligible organization and of its objection as described in 45 CFR 
147.132 or 147.133 to coverage of all or a subset of contraceptive 
services.
    (A) When a copy of the self-certification is provided directly to a 
third party administrator, such self-certification must include notice 
that obligations of the third party administrator are set forth in 29 
CFR 2510.3-16 and this section.
    (B) When a notice is provided to the Secretary of Health and Human 
Services, the notice must include the name of the eligible organization; 
a statement that it objects as described in 45 CFR 147.132 or 147.133 to 
coverage of some or all contraceptive services (including an 
identification of the subset of contraceptive services to which coverage 
the eligible organization objects, if applicable), but that it would 
like to elect the optional accommodation process; the plan name and type 
(that is, whether it is a student health insurance plan within the 
meaning of 45 CFR 147.145(a) or a church plan within the meaning of 
section 3(33) of ERISA); and the name and contact information for any of 
the plan's third party administrators. If there is a change in any of 
the information required to be included in the notice, the eligible 
organization must provide updated information to the Secretary of the 
Department of Health and Human Services for the optional accommodation 
process to remain in effect. The Department of Labor (working with the 
Department of Health and Human Services) will send a separate 
notification to each of the plan's third party administrators informing 
the third party administrator that the Secretary of the Department of 
Health and Human Services has received a notice under paragraph 
(b)(1)(ii) of this section and describing the obligations of the third 
party administrator under 29 CFR 2510.3-16 and this section.
    (2) If a third party administrator receives a copy of the self-
certification from an eligible organization or a notification from the 
Department of Labor, as described in paragraph (b)(1)(ii) of this 
section, and is willing to enter into or remain in a contractual 
relationship with the eligible organization or its plan to provide 
administrative services for the plan, then the third party administrator 
will provide or arrange payments for contraceptive services, using one 
of the following methods--
    (i) Provide payments for the contraceptive services for plan 
participants and beneficiaries without imposing any cost-sharing 
requirements (such as a copayment, coinsurance, or a deductible), 
premium, fee, or other charge, or any portion thereof, directly or 
indirectly, on the eligible organization, the group health plan, or plan 
participants or beneficiaries; or
    (ii) Arrange for an issuer or other entity to provide payments for 
the contraceptive services for plan participants and beneficiaries 
without imposing any cost-sharing requirements (such as a copayment, 
coinsurance, or a deductible), premium, fee, or other charge, or any 
portion thereof, directly

[[Page 587]]

or indirectly, on the eligible organization, the group health plan, or 
plan participants or beneficiaries.
    (3) If a third party administrator provides or arranges payments for 
contraceptive services in accordance with either paragraph (b)(2)(i) or 
(ii) of this section, the costs of providing or arranging such payments 
may be reimbursed through an adjustment to the federally facilitated 
Exchange user fee for a participating issuer pursuant to 45 CFR 
156.50(d).
    (4) A third party administrator may not require any documentation 
other than a copy of the self-certification from the eligible 
organization or notification from the Department of Labor described in 
paragraph (b)(1)(ii) of this section.
    (5) Where an otherwise eligible organization does not contract with 
a third party administrator and files a self-certification or notice 
under paragraph (b)(1)(ii) of this section, the obligations under 
paragraph (b)(2) of this section do not apply, and the otherwise 
eligible organization is under no requirement to provide coverage or 
payments for contraceptive services to which it objects. The plan 
administrator for that otherwise eligible organization may, if it and 
the otherwise eligible organization choose, arrange for payments for 
contraceptive services from an issuer or other entity in accordance with 
paragraph (b)(2)(ii) of this section, and such issuer or other entity 
may receive reimbursements in accordance with paragraph (b)(3) of this 
section.
    (6) Where an otherwise eligible organization is an ERISA-exempt 
church plan within the meaning of section 3(33) of ERISA and it files a 
self-certification or notice under paragraph (b)(1)(ii) of this section, 
the obligations under paragraph (b)(2) of this section do not apply, and 
the otherwise eligible organization is under no requirement to provide 
coverage or payments for contraceptive services to which it objects. The 
third party administrator for that otherwise eligible organization may, 
if it and the otherwise eligible organization choose, provide or arrange 
payments for contraceptive services in accordance with paragraphs 
(b)(2)(i) or (ii) of this section, and receive reimbursements in 
accordance with paragraph (b)(3) of this section.
    (c) Optional accommodation--insured group health plans--(1) General 
rule. A group health plan established or maintained by an eligible 
organization that provides benefits through one or more group health 
insurance issuers may voluntarily elect an optional accommodation under 
which its health insurance issuer(s) will provide payments for all or a 
subset of contraceptive services for one or more plan years. To invoke 
the optional accommodation process--
    (i) The eligible organization or its plan must contract with one or 
more health insurance issuers.
    (ii) The eligible organization must provide either a copy of the 
self-certification to each issuer providing coverage in connection with 
the plan or a notice to the Secretary of the Department of Health and 
Human Services that it is an eligible organization and of its objection 
as described in 45 CFR 147.132 or 147.133 to coverage for all or a 
subset of contraceptive services.
    (A) When a self-certification is provided directly to an issuer, the 
issuer has sole responsibility for providing such coverage in accordance 
with Sec.  54.9815-2713.
    (B) When a notice is provided to the Secretary of the Department 
Health and Human Services, the notice must include the name of the 
eligible organization; a statement that it objects as described in 45 
CFR 147.132 or 147.133 to coverage of some or all contraceptive services 
(including an identification of the subset of contraceptive services to 
which coverage the eligible organization objects, if applicable) but 
that it would like to elect the optional accommodation process; the plan 
name and type (that is, whether it is a student health insurance plan 
within the meaning of 45 CFR 147.145(a) or a church plan within the 
meaning of section 3(33) of ERISA); and the name and contact information 
for any of the plan's health insurance issuers. If there is a change in 
any of the information required to be included in the notice, the 
eligible organization must provide updated information to the Secretary 
of Department of Health and Human

[[Page 588]]

Services for the optional accommodation process to remain in effect. The 
Department of Health and Human Services will send a separate 
notification to each of the plan's health insurance issuers informing 
the issuer that the Secretary of the Department Health and Human 
Services has received a notice under paragraph (c)(2)(ii) of this 
section and describing the obligations of the issuer under this section.
    (2) If an issuer receives a copy of the self-certification from an 
eligible organization or the notification from the Department of Health 
and Human Services as described in paragraph (c)(2)(ii) of this section 
and does not have its own objection as described in 45 CFR 147.132 or 
147.133 to providing the contraceptive services to which the eligible 
organization objects, then the issuer will provide payments for 
contraceptive services as follows--
    (i) The issuer must expressly exclude contraceptive coverage from 
the group health insurance coverage provided in connection with the 
group health plan and provide separate payments for any contraceptive 
services required to be covered under Sec.  54.9815-2713(a)(1)(iv) for 
plan participants and beneficiaries for so long as they remain enrolled 
in the plan.
    (ii) With respect to payments for contraceptive services, the issuer 
may not impose any cost-sharing requirements (such as a copayment, 
coinsurance, or a deductible), or impose any premium, fee, or other 
charge, or any portion thereof, directly or indirectly, on the eligible 
organization, the group health plan, or plan participants or 
beneficiaries. The issuer must segregate premium revenue collected from 
the eligible organization from the monies used to provide payments for 
contraceptive services. The issuer must provide payments for 
contraceptive services in a manner that is consistent with the 
requirements under sections 2706, 2709, 2711, 2713, 2719, and 2719A of 
the PHS Act, as incorporated into section 9815 of the PHS Act. If the 
group health plan of the eligible organization provides coverage for 
some but not all of any contraceptive services required to be covered 
under Sec.  54.9815-2713(a)(1)(iv), the issuer is required to provide 
payments only for those contraceptive services for which the group 
health plan does not provide coverage. However, the issuer may provide 
payments for all contraceptive services, at the issuer's option.
    (3) A health insurance issuer may not require any documentation 
other than a copy of the self-certification from the eligible 
organization or the notification from the Department of Health and Human 
Services described in paragraph (c)(1)(ii) of this section.
    (d) Notice of availability of separate payments for contraceptive 
services--self-insured and insured group health plans. For each plan 
year to which the optional accommodation in paragraph (b) or (c) of this 
section is to apply, a third party administrator required to provide or 
arrange payments for contraceptive services pursuant to paragraph (b) of 
this section, and an issuer required to provide payments for 
contraceptive services pursuant to paragraph (c) of this section, must 
provide to plan participants and beneficiaries written notice of the 
availability of separate payments for contraceptive services 
contemporaneous with (to the extent possible), but separate from, any 
application materials distributed in connection with enrollment (or re-
enrollment) in group health coverage that is effective beginning on the 
first day of each applicable plan year. The notice must specify that the 
eligible organization does not administer or fund contraceptive 
benefits, but that the third party administrator or issuer, as 
applicable, provides or arranges separate payments for contraceptive 
services, and must provide contact information for questions and 
complaints. The following model language, or substantially similar 
language, may be used to satisfy the notice requirement of this 
paragraph (d): ``Your employer has certified that your group health plan 
qualifies for an accommodation with respect to the federal requirement 
to cover all Food and Drug Administration-approved contraceptive 
services for women, as prescribed by a health care provider, without 
cost sharing. This means that your employer will not contract, arrange, 
pay, or refer for contraceptive coverage. Instead, [name

[[Page 589]]

of third party administrator/health insurance issuer] will provide or 
arrange separate payments for contraceptive services that you use, 
without cost sharing and at no other cost, for so long as you are 
enrolled in your group health plan. Your employer will not administer or 
fund these payments. If you have any questions about this notice, 
contact [contact information for third party administrator/health 
insurance issuer].''
    (e) Reliance--insured group health plans--(1) If an issuer relies 
reasonably and in good faith on a representation by the eligible 
organization as to its eligibility for the accommodation in paragraph 
(c) of this section, and the representation is later determined to be 
incorrect, the issuer is considered to comply with any applicable 
requirement under Sec.  54.9815-2713(a)(1)(iv) to provide contraceptive 
coverage if the issuer complies with the obligations under this section 
applicable to such issuer.
    (2) A group health plan is considered to comply with any applicable 
requirement under Sec.  54.9815-2713(a)(1)(iv) to provide contraceptive 
coverage if the plan complies with its obligations under paragraph (c) 
of this section, without regard to whether the issuer complies with the 
obligations under this section applicable to such issuer.
    (f) Definition. For the purposes of this section, reference to 
``contraceptive'' services, benefits, or coverage includes contraceptive 
or sterilization items, procedures, or services, or related patient 
education or counseling, to the extent specified for purposes of Sec.  
54.9815-2713(a)(1)(iv).
    (g) Severability. Any provision of this section held to be invalid 
or unenforceable by its terms, or as applied to any person or 
circumstance, shall be construed so as to continue to give maximum 
effect to the provision permitted by law, unless such holding shall be 
one of utter invalidity or unenforceability, in which event the 
provision shall be severable from this section and shall not affect the 
remainder thereof or the application of the provision to persons not 
similarly situated or to dissimilar circumstances.

[T.D. 9840, 83 FR 57586, Nov. 15, 2018, as amended by T.D. 9841, 83 FR 
57630, Nov. 15, 2018]



Sec.  54.9815-2714  Eligibility of children until at least age 26.

    (a) In general--(1) A group health plan, or a health insurance 
issuer offering group health insurance coverage, that makes available 
dependent coverage of children must make such coverage available for 
children until attainment of 26 years of age.
    (2) The rule of this paragraph (a) is illustrated by the following 
example:

    Example. (i) Facts. For the plan year beginning January 1, 2011, a 
group health plan provides health coverage for employees, employees' 
spouses, and employees' children until the child turns 26. On the 
birthday of a child of an employee, July 17, 2011, the child turns 26. 
The last day the plan covers the child is July 16, 2011.
    (ii) Conclusion. In this Example, the plan satisfies the requirement 
of this paragraph (a) with respect to the child.

    (b) Restrictions on plan definition of dependent--(1) In general. 
With respect to a child who has not attained age 26, a plan or issuer 
may not define dependent for purposes of eligibility for dependent 
coverage of children other than in terms of a relationship between a 
child and the participant. Thus, for example, a plan or issuer may not 
deny or restrict dependent coverage for a child who has not attained age 
26 based on the presence or absence of the child's financial dependency 
(upon the participant or any other person); residency with the 
participant or with any other person; whether the child lives, works, or 
resides in an HMO's service area or other network service area; marital 
status; student status; employment; eligibility for other coverage; or 
any combination of those factors. (Other requirements of Federal or 
State law, including section 609 of ERISA or section 1908 of the Social 
Security Act, may require coverage of certain children.)
    (2) Construction. A plan or issuer will not fail to satisfy the 
requirements of this section if the plan or issuer limits dependent 
child coverage to children

[[Page 590]]

under age 26 who are described in section 152(f)(1) . For an individual 
not described in section 152(f)(1), such as a grandchild or niece, a 
plan may impose additional conditions on eligibility for dependent child 
health coverage, such as a condition that the individual be a dependent 
for income tax purposes.
    (c) Coverage of grandchildren not required. Nothing in this section 
requires a plan or issuer to make coverage available for the child of a 
child receiving dependent coverage.
    (d) Uniformity irrespective of age. The terms of the plan or health 
insurance coverage providing dependent coverage of children cannot vary 
based on age (except for children who are age 26 or older).
    (e) Examples. The rules of paragraph (d) of this section are 
illustrated by the following examples:

    Example 1. (i) Facts. A group health plan offers a choice of self-
only or family health coverage. Dependent coverage is provided under 
family health coverage for children of participants who have not 
attained age 26. The plan imposes an additional premium surcharge for 
children who are older than age 18.
    (ii) Conclusion. In this Example 1, the plan violates the 
requirement of paragraph (d) of this section because the plan varies the 
terms for dependent coverage of children based on age.
    Example 2. (i) Facts. A group health plan offers a choice among the 
following tiers of health coverage: Self-only, self-plus-one, self-plus-
two, and self-plus-three-or-more. The cost of coverage increases based 
on the number of covered individuals. The plan provides dependent 
coverage of children who have not attained age 26.
    (ii) Conclusion. In this Example 2, the plan does not violate the 
requirement of paragraph (d) of this section that the terms of dependent 
coverage for children not vary based on age. Although the cost of 
coverage increases for tiers with more covered individuals, the increase 
applies without regard to the age of any child.
    Example 3. (i) Facts. A group health plan offers two benefit 
packages--an HMO option and an indemnity option. Dependent coverage is 
provided for children of participants who have not attained age 26. The 
plan limits children who are older than age 18 to the HMO option.
    (ii) Conclusion. In this Example 3, the plan violates the 
requirement of paragraph (d) of this section because the plan, by 
limiting children who are older than age 18 to the HMO option, varies 
the terms for dependent coverage of children based on age.
    Example 4. (i) Facts. A group health plan sponsored by a large 
employer normally charges a copayment for physician visits that do not 
constitute preventive services. The plan charges this copayment to 
individuals age 19 and over, including employees, spouses, and dependent 
children, but waives it for those under age 19.
    (ii) Conclusion. In this Example 4, the plan does not violate the 
requirement of paragraph (d) of this section that the terms of dependent 
coverage for children not vary based on age. While the requirement of 
paragraph (d) of this section generally prohibits distinctions based 
upon age in dependent coverage of children, it does not prohibit 
distinctions based upon age that apply to all coverage under the plan, 
including coverage for employees and spouses as well as dependent 
children. In this Example 4, the copayments charged to dependent 
children are the same as those charged to employees and spouses. 
Accordingly, the arrangement described in this Example 4 (including 
waiver, for individuals under age 19, of the generally applicable 
copayment) does not violate the requirement of paragraph (d) of this 
section.

    (f) Applicability date. The provisions of this section are 
applicable to group health plans and health insurance issuers for plan 
years beginning on or after January 1, 2017. Until the applicability 
date for this regulation, plans and issuers are required to continue to 
comply with the interim final regulations promulgated by the Department 
of Labor at 29 CFR part 2590, contained in the 29 CFR, parts 1927 to 
end, edition revised as of July 1, 2015.

[T.D. 9744, 80 FR 72245, Nov. 18, 2015]



Sec.  54.9815-2715  Summary of benefits and coverage and uniform glossary.

    (a) Summary of benefits and coverage--(1) In general. A group health 
plan (and its administrator as defined in section 3(16)(A) of ERISA)), 
and a health insurance issuer offering group health insurance coverage, 
is required to provide a written summary of benefits and coverage (SBC) 
for each benefit package without charge to entities and individuals 
described in this paragraph (a)(1) in accordance with the rules of this 
section.
    (i) SBC provided by a group health insurance issuer to a group 
health plan--(A) Upon application. A health insurance issuer offering 
group health insurance coverage must provide the SBC to

[[Page 591]]

a group health plan (or its sponsor) upon application for health 
coverage, as soon as practicable following receipt of the application, 
but in no event later than seven business days following receipt of the 
application. If an SBC was provided before application pursuant to 
paragraph (a)(1)(i)(D) of this section (relating to SBCs upon request), 
this paragraph (a)(1)(i)(A) is deemed satisfied, provided there is no 
change to the information required to be in the SBC. However, if there 
has been a change in the information required, a new SBC that includes 
the changed information must be provided upon application pursuant to 
this paragraph (a)(1)(i)(A).
    (B) By first day of coverage (if there are changes). If there is any 
change in the information required to be in the SBC that was provided 
upon application and before the first day of coverage, the issuer must 
update and provide a current SBC to the plan (or its sponsor) no later 
than the first day of coverage.
    (C) Upon renewal, reissuance, or reenrollment. If the issuer renews 
or reissues a policy, certificate, or contract of insurance for a 
succeeding policy year, or automatically re-enrolls the policyholder or 
its participants and beneficiaries in coverage, the issuer must provide 
a new SBC as follows:
    (1) If written application is required (in either paper or 
electronic form) for renewal or reissuance, the SBC must be provided no 
later than the date the written application materials are distributed.
    (2) If renewal, reissuance, or reenrollment is automatic, the SBC 
must be provided no later than 30 days prior to the first day of the new 
plan or policy year; however, with respect to an insured plan, if the 
policy, certificate, or contract of insurance has not been issued or 
renewed before such 30-day period, the SBC must be provided as soon as 
practicable but in no event later than seven business days after 
issuance of the new policy, certificate, or contract of insurance, or 
the receipt of written confirmation of intent to renew, whichever is 
earlier.
    (D) Upon request. If a group health plan (or its sponsor) requests 
an SBC or summary information about a health insurance product from a 
health insurance issuer offering group health insurance coverage, an SBC 
must be provided as soon as practicable, but in no event later than 
seven business days following receipt of the request.
    (ii) SBC provided by a group health insurance issuer and a group 
health plan to participants and beneficiaries--(A) In general. A group 
health plan (including its administrator, as defined under section 3(16) 
of ERISA), and a health insurance issuer offering group health insurance 
coverage, must provide an SBC to a participant or beneficiary (as 
defined under sections 3(7) and 3(8) of ERISA), and consistent with the 
rules of paragraph (a)(1)(iii) of this section, with respect to each 
benefit package offered by the plan or issuer for which the participant 
or beneficiary is eligible.
    (B) Upon application. The SBC must be provided as part of any 
written application materials that are distributed by the plan or issuer 
for enrollment. If the plan or issuer does not distribute written 
application materials for enrollment, the SBC must be provided no later 
than the first date on which the participant is eligible to enroll in 
coverage for the participant or any beneficiaries. If an SBC was 
provided before application pursuant to paragraph (a)(1)(ii)(F) of this 
section (relating to SBCs upon request), this paragraph (a)(1)(ii)(B) is 
deemed satisfied, provided there is no change to the information 
required to be in the SBC. However, if there has been a change in the 
information that is required to be in the SBC, a new SBC that includes 
the changed information must be provided upon application pursuant to 
this paragraph (a)(1)(ii)(B).
    (C) By first day of coverage (if there are changes). (1) If there is 
any change to the information required to be in the SBC that was 
provided upon application and before the first day of coverage, the plan 
or issuer must update and provide a current SBC to a participant or 
beneficiary no later than the first day of coverage.
    (2) If the plan sponsor is negotiating coverage terms after an 
application has been filed and the information required to be in the SBC 
changes, the plan or issuer is not required to provide an updated SBC 
(unless an updated SBC is

[[Page 592]]

requested) until the first day of coverage.
    (D) Special enrollees. The plan or issuer must provide the SBC to 
special enrollees (as described in Sec.  54.9801-6) no later than the 
date by which a summary plan description is required to be provided 
under the timeframe set forth in ERISA section 104(b)(1)(A) and its 
implementing regulations, which is 90 days from enrollment.
    (E) Upon renewal, reissuance, or reenrollment. If the plan or issuer 
requires participants or beneficiaries to renew in order to maintain 
coverage (for example, for a succeeding plan year), or automatically re-
enrolls participants and beneficiaries in coverage, the plan or issuer 
must provide a new SBC, as follows:
    (1) If written application is required for renewal, reissuance, or 
reenrollment (in either paper or electronic form), the SBC must be 
provided no later than the date on which the written application 
materials are distributed.
    (2) If renewal, reissuance, or reenrollment is automatic, the SBC 
must be provided no later than 30 days prior to the first day of the new 
plan or policy year; however, with respect to an insured plan, if the 
policy, certificate, or contract of insurance has not been issued or 
renewed before such 30-day period, the SBC must be provided as soon as 
practicable but in no event later than seven business days after 
issuance of the new policy, certificate, or contract of insurance, or 
the receipt of written confirmation of intent to renew, whichever is 
earlier.
    (F) Upon request. A plan or issuer must provide the SBC to 
participants or beneficiaries upon request for an SBC or summary 
information about the health coverage, as soon as practicable, but in no 
event later than seven business days following receipt of the request.
    (iii) Special rules to prevent unnecessary duplication with respect 
to group health coverage--(A) An entity required to provide an SBC under 
this paragraph (a)(1) with respect to an individual satisfies that 
requirement if another party provides the SBC, but only to the extent 
that the SBC is timely and complete in accordance with the other rules 
of this section. Therefore, for example, in the case of a group health 
plan funded through an insurance policy, the plan satisfies the 
requirement to provide an SBC with respect to an individual if the 
issuer provides a timely and complete SBC to the individual. An entity 
required to provide an SBC under this paragraph (a)(1) with respect to 
an individual that contracts with another party to provide such SBC is 
considered to satisfy the requirement to provide such SBC if:
    (1) The entity monitors performance under the contract;
    (2) If the entity has knowledge that the SBC is not being provided 
in a manner that satisfies the requirements of this section and the 
entity has all information necessary to correct the noncompliance, the 
entity corrects the noncompliance as soon as practicable; and
    (3) If the entity has knowledge the SBC is not being provided in a 
manner that satisfies the requirements of this section and the entity 
does not have all information necessary to correct the noncompliance, 
the entity communicates with participants and beneficiaries who are 
affected by the noncompliance regarding the noncompliance, and begins 
taking significant steps as soon as practicable to avoid future 
violations.
    (B) If a single SBC is provided to a participant and any 
beneficiaries at the participant's last known address, then the 
requirement to provide the SBC to the participant and any beneficiaries 
is generally satisfied. However, if a beneficiary's last known address 
is different than the participant's last known address, a separate SBC 
is required to be provided to the beneficiary at the beneficiary's last 
known address.
    (C) With respect to a group health plan that offers multiple benefit 
packages, the plan or issuer is required to provide a new SBC 
automatically to participants and beneficiaries upon renewal or 
reenrollment only with respect to the benefit package in which a 
participant or beneficiary is enrolled (or will be automatically re-
enrolled under the plan); SBCs are not required to be provided 
automatically upon renewal or reenrollment with respect to

[[Page 593]]

benefit packages in which the participant or beneficiary is not enrolled 
(or will not automatically be enrolled). However, if a participant or 
beneficiary requests an SBC with respect to another benefit package (or 
more than one other benefit package) for which the participant or 
beneficiary is eligible, the SBC (or SBCs, in the case of a request for 
SBCs relating to more than one benefit package) must be provided upon 
request as soon as practicable, but in no event later than seven 
business days following receipt of the request.
    (D) Subject to paragraph (a)(2)(ii) of this section, a plan 
administrator of a group health plan that uses two or more insurance 
products provided by separate health insurance issuers with respect to a 
single group health plan may synthesize the information into a single 
SBC or provide multiple partial SBCs provided that all the SBC include 
the content in paragraph (a)(2)(iii) of this section.
    (2) Content--(i) In general. Subject to paragraph (a)(2)(iii) of 
this section, the SBC must include the following:
    (A) Uniform definitions of standard insurance terms and medical 
terms so that consumers may compare health coverage and understand the 
terms of (or exceptions to) their coverage, in accordance with guidance 
as specified by the Secretary;
    (B) A description of the coverage, including cost sharing, for each 
category of benefits identified by the Secretary in guidance;
    (C) The exceptions, reductions, and limitations of the coverage;
    (D) The cost-sharing provisions of the coverage, including 
deductible, coinsurance, and copayment obligations;
    (E) The renewability and continuation of coverage provisions;
    (F) Coverage examples, in accordance with the rules of paragraph 
(a)(2)(ii) of this section;
    (G) With respect to coverage beginning on or after January 1, 2014, 
a statement about whether the plan or coverage provides minimum 
essential coverage as defined under section 5000A(f) and whether the 
plan's or coverage's share of the total allowed costs of benefits 
provided under the plan or coverage meets applicable requirements;
    (H) A statement that the SBC is only a summary and that the plan 
document, policy, certificate, or contract of insurance should be 
consulted to determine the governing contractual provisions of the 
coverage;
    (I) Contact information for questions;
    (J) For issuers, an Internet web address where a copy of the actual 
individual coverage policy or group certificate of coverage can be 
reviewed and obtained;
    (K) For plans and issuers that maintain one or more networks of 
providers, an Internet address (or similar contact information) for 
obtaining a list of network providers;
    (L) For plans and issuers that use a formulary in providing 
prescription drug coverage, an Internet address (or similar contact 
information) for obtaining information on prescription drug coverage; 
and
    (M) An Internet address for obtaining the uniform glossary, as 
described in paragraph (c) of this section, as well as a contact phone 
number to obtain a paper copy of the uniform glossary, and a disclosure 
that paper copies are available.
    (ii) Coverage examples. The SBC must include coverage examples 
specified by the Secretary in guidance that illustrate benefits provided 
under the plan or coverage for common benefits scenarios (including 
pregnancy and serious or chronic medical conditions) in accordance with 
this paragraph (a)(2)(ii).
    (A) Number of examples. The Secretary may identify up to six 
coverage examples that may be required in an SBC.
    (B) Benefits scenarios. For purposes of this paragraph (a)(2)(ii), a 
benefits scenario is a hypothetical situation, consisting of a sample 
treatment plan for a specified medical condition during a specific 
period of time, based on recognized clinical practice guidelines as 
defined by the National Guideline Clearinghouse, Agency for Healthcare 
Research and Quality. The Secretary will specify, in guidance, the 
assumptions, including the relevant items and services and reimbursement 
information, for each claim in the benefits scenario.

[[Page 594]]

    (C) Illustration of benefit provided. For purposes of this paragraph 
(a)(2)(ii), to illustrate benefits provided under the plan or coverage 
for a particular benefits scenario, a plan or issuer simulates claims 
processing in accordance with guidance issued by the Secretary to 
generate an estimate of what an individual might expect to pay under the 
plan, policy, or benefit package. The illustration of benefits provided 
will take into account any cost sharing, excluded benefits, and other 
limitations on coverage, as specified by the Secretary in guidance.
    (iii) Coverage provided outside the United States. In lieu of 
summarizing coverage for items and services provided outside the United 
States, a plan or issuer may provide an Internet address (or similar 
contact information) for obtaining information about benefits and 
coverage provided outside the United States. In any case, the plan or 
issuer must provide an SBC in accordance with this section that 
accurately summarizes benefits and coverage available under the plan or 
coverage within the United States.
    (3) Appearance. (i) A group health plan and a health insurance 
issuer must provide an SBC in the form, and in accordance with the 
instructions for completing the SBC, that are specified by the Secretary 
in guidance. The SBC must be presented in a uniform format, use 
terminology understandable by the average plan enrollee, not exceed four 
double-sided pages in length, and not include print smaller than 12-
point font.
    (ii) A group health plan that utilizes two or more benefit packages 
(such as major medical coverage and a health flexible spending 
arrangement) may synthesize the information into a single SBC, or 
provide multiple SBCs.
    (4) Form. (i) An SBC provided by an issuer offering group health 
insurance coverage to a plan (or its sponsor), may be provided in paper 
form. Alternatively, the SBC may be provided electronically (such as by 
email or an Internet posting) if the following three conditions are 
satisfied--
    (A) The format is readily accessible by the plan (or its sponsor);
    (B) The SBC is provided in paper form free of charge upon request; 
and
    (C) If the electronic form is an Internet posting, the issuer timely 
advises the plan (or its sponsor) in paper form or email that the 
documents are available on the Internet and provides the Internet 
address.
    (ii) An SBC provided by a group health plan or health insurance 
issuer to a participant or beneficiary may be provided in paper form. 
Alternatively, the SBC may be provided electronically (such as by email 
or an Internet posting) if the requirements of this paragraph (a)(4)(ii) 
are met.
    (A) With respect to participants and beneficiaries covered under the 
plan or coverage, the SBC may be provided electronically as described in 
this paragraph (a)(4)(ii)(A). However, in all cases, the plan or issuer 
must provide the SBC in paper form if paper form is requested.
    (1) In accordance with the Department of Labor's disclosure 
regulations at 29 CFR 2520.104b-1;
    (2) In connection with online enrollment or online renewal of 
coverage under the plan; or
    (3) In response to an online request made by a participant or 
beneficiary for the SBC.
    (B) With respect to participants and beneficiaries who are eligible 
but not enrolled for coverage, the SBC may be provided electronically 
if:
    (1) The format is readily accessible;
    (2) The SBC is provided in paper form free of charge upon request; 
and
    (3) In a case in which the electronic form is an Internet posting, 
the plan or issuer timely notifies the individual in paper form (such as 
a postcard) or email that the documents are available on the Internet, 
provides the Internet address, and notifies the individual that the 
documents are available in paper form upon request.
    (5) Language. A group health plan or health insurance issuer must 
provide the SBC in a culturally and linguistically appropriate manner. 
For purposes of this paragraph (a)(5), a plan or issuer is considered to 
provide the SBC in a culturally and linguistically appropriate manner if 
the thresholds and standards of 29 CFR 2590.715-2719(e) are met as 
applied to the SBC.
    (b) Notice of modification. If a group health plan, or health 
insurance issuer

[[Page 595]]

offering group health insurance coverage, makes any material 
modification (as defined under section 102 of ERISA) in any of the terms 
of the plan or coverage that would affect the content of the SBC, that 
is not reflected in the most recently provided SBC, and that occurs 
other than in connection with a renewal or reissuance of coverage, the 
plan or issuer must provide notice of the modification to enrollees not 
later than 60 days prior to the date on which the modification will 
become effective. The notice of modification must be provided in a form 
that is consistent with the rules of paragraph (a)(4) of this section.
    (c) Uniform glossary--(1) In general. A group health plan, and a 
health insurance issuer offering group health insurance coverage, must 
make available to participants and beneficiaries the uniform glossary 
described in paragraph (c)(2) of this section in accordance with the 
appearance and form and manner requirements of paragraphs (c)(3) and (4) 
of this section.
    (2) Health-coverage-related terms and medical terms. The uniform 
glossary must provide uniform definitions, specified by the Secretary in 
guidance, of the following health-coverage-related terms and medical 
terms:
    (i) Allowed amount, appeal, balance billing, co-insurance, 
complications of pregnancy, co-payment, deductible, durable medical 
equipment, emergency medical condition, emergency medical 
transportation, emergency room care, emergency services, excluded 
services, grievance, habilitation services, health insurance, home 
health care, hospice services, hospitalization, hospital outpatient 
care, in-network co-insurance, in-network co-payment, medically 
necessary, network, non-preferred provider, out-of-network co-insurance, 
out-of-network co-payment, out-of-pocket limit, physician services, 
plan, preauthorization, preferred provider, premium, prescription drug 
coverage, prescription drugs, primary care physician, primary care 
provider, provider, reconstructive surgery, rehabilitation services, 
skilled nursing care, specialist, usual customary and reasonable (UCR), 
and urgent care; and
    (ii) Such other terms as the Secretary determines are important to 
define so that individuals and employers may compare and understand the 
terms of coverage and medical benefits (including any exceptions to 
those benefits), as specified in guidance.
    (3) Appearance. A group health plan, and a health insurance issuer, 
must provide the uniform glossary with the appearance specified by the 
Secretary in guidance to ensure the uniform glossary is presented in a 
uniform format and uses terminology understandable by the average plan 
enrollee.
    (4) Form and manner. A plan or issuer must make the uniform glossary 
described in this paragraph (c) available upon request, in either paper 
or electronic form (as requested), within seven business days after 
receipt of the request.
    (d) Preemption. State laws that conflict with this section 
(including a state law that requires a health insurance issuer to 
provide an SBC that supplies less information than required under 
paragraph (a) of this section) are preempted.
    (e) Failure to provide. A group health plan that willfully fails to 
provide information required under this section to a participant or 
beneficiary is subject to a fine of not more than $1,000 for each such 
failure. A failure with respect to each participant or beneficiary 
constitutes a separate offense for purposes of this paragraph (e). The 
Department will enforce this section using a process and procedure 
consistent with section 4980D of the Code.
    (f) Applicability to Medicare Advantage benefits. The requirements 
of this section do not apply to a group health plan benefit package that 
provides Medicare Advantage benefits pursuant to or 42 U.S.C. Chapter 7, 
Subchapter XVIII, Part C.
    (g) Applicability date. (1) This section is applicable to group 
health plans and group health insurance issuers in accordance with this 
paragraph (g). (See 29 CFR 2590.715-1251(d), providing that this section 
applies to grandfathered health plans.)
    (i) For disclosures with respect to participants and beneficiaries 
who enroll or re-enroll through an open enrollment period (including re-
enrollees and late enrollees), this section applies beginning on the 
first day of the first

[[Page 596]]

open enrollment period that begins on or after September 1, 2015; and
    (ii) For disclosures with respect to participants and beneficiaries 
who enroll in coverage other than through an open enrollment period 
(including individuals who are newly eligible for coverage and special 
enrollees), this section applies beginning on the first day of the first 
plan year that begins on or after September 1, 2015.
    (2) For disclosures with respect to plans, this section is 
applicable to health insurance issuers beginning September 1, 2015.

[T.D. 9724, 80 FR 34304, June 16, 2015]



Sec.  54.9815-2715A1  Transparency in coverage--definitions.

    (a) Scope and definitions--(1) Scope. This section sets forth 
definitions for the price transparency requirements for group health 
plans and health insurance issuers offering group health insurance 
coverage established in this section and Sec. Sec.  54.9815-2715A2 and 
54.9815-2715A3.
    (2) Definitions. For purposes of this section and Sec. Sec.  
54.9815-2715A2 and 54.9815-2715A3, the following definitions apply:
    (i) Accumulated amounts means:
    (A) The amount of financial responsibility a participant or 
beneficiary has incurred at the time a request for cost-sharing 
information is made, with respect to a deductible or out-of-pocket 
limit. If an individual is enrolled in other than self-only coverage, 
these accumulated amounts shall include the financial responsibility a 
participant or beneficiary has incurred toward meeting his or her 
individual deductible or out-of-pocket limit, as well as the amount of 
financial responsibility that all the individuals enrolled under the 
plan or coverage have incurred, in aggregate, toward meeting the other 
than self-only deductible or out-of-pocket limit, as applicable. 
Accumulated amounts include any expense that counts toward a deductible 
or out-of-pocket limit (such as a copayment or coinsurance), but exclude 
any expense that does not count toward a deductible or out-of-pocket 
limit (such as any premium payment, out-of-pocket expense for out-of-
network services, or amount for items or services not covered under the 
group health plan or health insurance coverage); and
    (B) To the extent a group health plan or health insurance issuer 
imposes a cumulative treatment limitation on a particular covered item 
or service (such as a limit on the number of items, days, units, visits, 
or hours covered in a defined time period) independent of individual 
medical necessity determinations, the amount that has accrued toward the 
limit on the item or service (such as the number of items, days, units, 
visits, or hours the participant or beneficiary, has used within that 
time period).
    (ii) Beneficiary has the meaning given the term under section 3(8) 
of the Employee Retirement Income Security Act of 1974 (ERISA).
    (iii) Billed charge means the total charges for an item or service 
billed to a group health plan or health insurance issuer by a provider.
    (iv) Billing code means the code used by a group health plan or 
health insurance issuer or provider to identify health care items or 
services for purposes of billing, adjudicating, and paying claims for a 
covered item or service, including the Current Procedural Terminology 
(CPT) code, Healthcare Common Procedure Coding System (HCPCS) code, 
Diagnosis-Related Group (DRG) code, National Drug Code (NDC), or other 
common payer identifier.
    (v) Bundled payment arrangement means a payment model under which a 
provider is paid a single payment for all covered items and services 
provided to a participant or beneficiary for a specific treatment or 
procedure.
    (vi) Copayment assistance means the financial assistance a 
participant or beneficiary receives from a prescription drug or medical 
supply manufacturer towards the purchase of a covered item or service.
    (vii) Cost-sharing liability means the amount a participant or 
beneficiary is responsible for paying for a covered item or service 
under the terms of the group health plan or health insurance coverage. 
Cost-sharing liability generally includes deductibles, coinsurance, and 
copayments, but does not include premiums, balance billing amounts by 
out-of-network providers,

[[Page 597]]

or the cost of items or services that are not covered under a group 
health plan or health insurance coverage.
    (viii) Cost-sharing information means information related to any 
expenditure required by or on behalf of a participant or beneficiary 
with respect to health care benefits that are relevant to a 
determination of the participant's or beneficiary's cost-sharing 
liability for a particular covered item or service.
    (ix) Covered items or services means those items or services, 
including prescription drugs, the costs for which are payable, in whole 
or in part, under the terms of a group health plan or health insurance 
coverage.
    (x) Derived amount means the price that a group health plan or 
health insurance issuer assigns to an item or service for the purpose of 
internal accounting, reconciliation with providers, or submitting data 
in accordance with the requirements of 45 CFR 153.710(c).
    (xi) Historical net price means the retrospective average amount a 
group health plan or health insurance issuer paid for a prescription 
drug, inclusive of any reasonably allocated rebates, discounts, 
chargebacks, fees, and any additional price concessions received by the 
plan or issuer with respect to the prescription drug. The allocation 
shall be determined by dollar value for non-product specific and 
product-specific rebates, discounts, chargebacks, fees, and other price 
concessions to the extent that the total amount of any such price 
concession is known to the group health plan or health insurance issuer 
at the time of publication of the historical net price in a machine-
readable file in accordance with Sec.  54.9815-2715A3. However, to the 
extent that the total amount of any non-product specific and product-
specific rebates, discounts, chargebacks, fees, or other price 
concessions is not known to the group health plan or health insurance 
issuer at the time of file publication, then the plan or issuer shall 
allocate such rebates, discounts, chargebacks, fees, and other price 
concessions by using a good faith, reasonable estimate of the average 
price concessions based on the rebates, discounts, chargebacks, fees, 
and other price concessions received over a time period prior to the 
current reporting period and of equal duration to the current reporting 
period, as determined under Sec.  54.9815-2715A3(b)(1)(iii)(D)(3).
    (xii) In-network provider means any provider of any item or service 
with which a group health plan or health insurance issuer, or a third 
party for the plan or issuer, has a contract setting forth the terms and 
conditions on which a relevant item or service is provided to a 
participant or beneficiary.
    (xiii) Items or services means all encounters, procedures, medical 
tests, supplies, prescription drugs, durable medical equipment, and fees 
(including facility fees), provided or assessed in connection with the 
provision of health care.
    (xiv) Machine-readable file means a digital representation of data 
or information in a file that can be imported or read by a computer 
system for further processing without human intervention, while ensuring 
no semantic meaning is lost.
    (xv) National Drug Code means the unique 10- or 11-digit 3-segment 
number assigned by the Food and Drug Administration, which provides a 
universal product identifier for drugs in the United States.
    (xvi) Negotiated rate means the amount a group health plan or health 
insurance issuer has contractually agreed to pay an in-network provider, 
including an in-network pharmacy or other prescription drug dispenser, 
for covered items and services, whether directly or indirectly, 
including through a third-party administrator or pharmacy benefit 
manager.
    (xvii) Out-of-network allowed amount means the maximum amount a 
group health plan or health insurance issuer will pay for a covered item 
or service furnished by an out-of-network provider.
    (xviii) Out-of-network provider means a provider of any item or 
service that does not have a contract under a participant's or 
beneficiary's group health plan or health insurance coverage to provide 
items or services.
    (xix) Out-of-pocket limit means the maximum amount that a 
participant or beneficiary is required to pay during a coverage period 
for his or her share of

[[Page 598]]

the costs of covered items and services under his or her group health 
plan or health insurance coverage, including for self-only and other 
than self-only coverage, as applicable.
    (xx) Plain language means written and presented in a manner 
calculated to be understood by the average participant or beneficiary.
    (xxi) Prerequisite means concurrent review, prior authorization, and 
step-therapy or fail-first protocols related to covered items and 
services that must be satisfied before a group health plan or health 
insurance issuer will cover the item or service. The term prerequisite 
does not include medical necessity determinations generally or other 
forms of medical management techniques.
    (xxii) Underlying fee schedule rate means the rate for a covered 
item or service from a particular in-network provider, or providers that 
a group health plan or health insurance issuer uses to determine a 
participant's or beneficiary's cost-sharing liability for the item or 
service, when that rate is different from the negotiated rate or derived 
amount.
    (b) [Reserved]

[T.D. 9922, 85 FR 72295, Nov. 12, 2020]



Sec.  54.9815-2715A2  Transparency in coverage--required disclosures 
to participants and beneficiaries.

    (a) Scope and definitions--(1) Scope. This section establishes price 
transparency requirements for group health plans and health insurance 
issuers offering group health insurance coverage for the timely 
disclosure of information about costs related to covered items and 
services under a group plan or health insurance coverage.
    (2) Definitions. For purposes of this section, the definitions in 
Sec.  54.9815-2715A1 apply.
    (b) Required disclosures to participants and beneficiaries. At the 
request of a participant or beneficiary who is enrolled in a group 
health plan, the plan must provide to the participant or beneficiary the 
information required under paragraph (b)(1) of this section, in 
accordance with the method and format requirements set forth in 
paragraph (b)(2) of this section.
    (1) Required cost-sharing information. The information required 
under this paragraph (b)(1) is the following cost-sharing information, 
which is accurate at the time the request is made, with respect to a 
participant's or beneficiary's cost-sharing liability for covered items 
and services:
    (i) An estimate of the participant's or beneficiary's cost-sharing 
liability for a requested covered item or service furnished by a 
provider or providers that is calculated based on the information 
described in paragraphs (b)(1)(ii) through (iv) of this section.
    (A) If the request for cost-sharing information relates to items and 
services that are provided within a bundled payment arrangement, and the 
bundled payment arrangement includes items or services that have a 
separate cost-sharing liability, the group health plan or health 
insurance issuer must provide estimates of the cost-sharing liability 
for the requested covered item or service, as well as an estimate of the 
cost-sharing liability for each of the items and services in the bundled 
payment arrangement that have separate cost-sharing liabilities. While 
group health plans and health insurance issuers are not required to 
provide estimates of cost-sharing liability for a bundled payment 
arrangement where the cost-sharing is imposed separately for each item 
and service included in the bundled payment arrangement, nothing 
prohibits plans or issuers from providing estimates for multiple items 
and services in situations where such estimates could be relevant to 
participants or beneficiaries, as long as the plan or issuer also 
discloses information about the relevant items or services individually, 
as required in paragraph (b)(1)(v) of this section.
    (B) For requested items and services that are recommended preventive 
services under section 2713 of the Public Health Service Act (PHS Act), 
if the group health plan or health insurance issuer cannot determine 
whether the request is for preventive or non-preventive purposes, the 
plan or issuer must display the cost-sharing liability that applies for 
non-preventive purposes. As an alternative, a group health plan or 
health insurance issuer may allow a participant or beneficiary to 
request

[[Page 599]]

cost-sharing information for the specific preventive or non-preventive 
item or service by including terms such as ``preventive'', ``non-
preventive'' or ``diagnostic'' as a means to request the most accurate 
cost-sharing information.
    (ii) Accumulated amounts.
    (iii) In-network rate, comprised of the following elements, as 
applicable to the group health plan's or health insurance issuer's 
payment model:
    (A) Negotiated rate, reflected as a dollar amount, for an in-network 
provider or providers for the requested covered item or service; this 
rate must be disclosed even if it is not the rate the plan or issuer 
uses to calculate cost-sharing liability; and
    (B) Underlying fee schedule rate, reflected as a dollar amount, for 
the requested covered item or service, to the extent that it is 
different from the negotiated rate.
    (iv) Out-of-network allowed amount or any other rate that provides a 
more accurate estimate of an amount a group health plan or health 
insurance issuer will pay for the requested covered item or service, 
reflected as a dollar amount, if the request for cost-sharing 
information is for a covered item or service furnished by an out-of-
network provider; provided, however, that in circumstances in which a 
plan or issuer reimburses an out-of-network provider a percentage of the 
billed charge for a covered item or service, the out-of-network allowed 
amount will be that percentage.
    (v) If a participant or beneficiary requests information for an item 
or service subject to a bundled payment arrangement, a list of the items 
and services included in the bundled payment arrangement for which cost-
sharing information is being disclosed.
    (vi) If applicable, notification that coverage of a specific item or 
service is subject to a prerequisite.
    (vii) A notice that includes the following information in plain 
language:
    (A) A statement that out-of-network providers may bill participants 
or beneficiaries for the difference between a provider's billed charges 
and the sum of the amount collected from the group health plan or health 
insurance issuer and from the participant or beneficiary in the form of 
a copayment or coinsurance amount (the difference referred to as balance 
billing), and that the cost-sharing information provided pursuant to 
this paragraph (b)(1) does not account for these potential additional 
amounts. This statement is only required if balance billing is permitted 
under state law;
    (B) A statement that the actual charges for a participant's or 
beneficiary's covered item or service may be different from an estimate 
of cost-sharing liability provided pursuant to paragraph (b)(1)(i) of 
this section, depending on the actual items or services the participant 
or beneficiary receives at the point of care;
    (C) A statement that the estimate of cost-sharing liability for a 
covered item or service is not a guarantee that benefits will be 
provided for that item or service;
    (D) A statement disclosing whether the plan counts copayment 
assistance and other third-party payments in the calculation of the 
participant's or beneficiary's deductible and out-of-pocket maximum;
    (E) For items and services that are recommended preventive services 
under section 2713 of the PHS Act, a statement that an in-network item 
or service may not be subject to cost-sharing if it is billed as a 
preventive service if the group health plan or health insurance issuer 
cannot determine whether the request is for a preventive or non-
preventive item or service; and
    (F) Any additional information, including other disclaimers, that 
the group health plan or health insurance issuer determines is 
appropriate, provided the additional information does not conflict with 
the information required to be provided by this paragraph (b)(1).
    (2) Required methods and formats for disclosing information to 
participants and beneficiaries. The methods and formats for the 
disclosure required under this paragraph (b) are as follows:
    (i) Internet-based self-service tool. Information provided under 
this paragraph (b) must be made available in plain language, without 
subscription or other fee, through a self-service tool on an internet 
website that provides real-

[[Page 600]]

time responses based on cost-sharing information that is accurate at the 
time of the request. Group health plans and health insurance issuers 
must ensure that the self-service tool allows users to:
    (A) Search for cost-sharing information for a covered item or 
service provided by a specific in-network provider or by all in-network 
providers by inputting:
    (1) A billing code (such as CPT code 87804) or a descriptive term 
(such as ``rapid flu test''), at the option of the user;
    (2) The name of the in-network provider, if the user seeks cost-
sharing information with respect to a specific in-network provider; and
    (3) Other factors utilized by the plan or issuer that are relevant 
for determining the applicable cost-sharing information (such as 
location of service, facility name, or dosage).
    (B) Search for an out-of-network allowed amount, percentage of 
billed charges, or other rate that provides a reasonably accurate 
estimate of the amount a group health plan or health insurance issuer 
will pay for a covered item or service provided by out-of-network 
providers by inputting:
    (1) A billing code or descriptive term, at the option of the user; 
and
    (2) Other factors utilized by the plan or issuer that are relevant 
for determining the applicable out-of-network allowed amount or other 
rate (such as the location in which the covered item or service will be 
sought or provided).
    (C) Refine and reorder search results based on geographic proximity 
of in-network providers, and the amount of the participant's or 
beneficiary's estimated cost-sharing liability for the covered item or 
service, to the extent the search for cost-sharing information for 
covered items or services returns multiple results.
    (ii) Paper method. Information provided under this paragraph (b) 
must be made available in plain language, without a fee, in paper form 
at the request of the participant or beneficiary. In responding to such 
a request, the group health plan or health insurance issuer may limit 
the number of providers with respect to which cost-sharing information 
for covered items and services is provided to no fewer than 20 providers 
per request. The group health plan or health insurance issuer is 
required to:
    (A) Disclose the applicable provider-per-request limit to the 
participant or beneficiary;
    (B) Provide the cost-sharing information in paper form pursuant to 
the individual's request, in accordance with the requirements in 
paragraphs (b)(2)(i)(A) through (C) of this section; and
    (C) Mail the cost-sharing information in paper form no later than 2 
business days after an individual's request is received.
    (D) To the extent participants or beneficiaries request disclosure 
other than by paper (for example, by phone or email), plans and issuers 
may provide the disclosure through another means, provided the 
participant or beneficiary agrees that disclosure through such means is 
sufficient to satisfy the request and the request is fulfilled at least 
as rapidly as required for the paper method.
    (3) Special rule to prevent unnecessary duplication--(i) Special 
rule for insured group health plans. To the extent coverage under a 
group health plan consists of group health insurance coverage, the plan 
satisfies the requirements of this paragraph (b) if the plan requires 
the health insurance issuer offering the coverage to provide the 
information required by this paragraph (b) in compliance with this 
section pursuant to a written agreement. Accordingly, if a health 
insurance issuer and a plan sponsor enter into a written agreement under 
which the issuer agrees to provide the information required under this 
paragraph (b) in compliance with this section, and the issuer fails to 
do so, then the issuer, but not the plan, violates the transparency 
disclosure requirements of this paragraph (b).
    (ii) Other contractual arrangements. A group health plan or health 
insurance issuer may satisfy the requirements under this paragraph (b) 
by entering into a written agreement under which another party (such as 
a pharmacy benefit manager or other third-party) provides the 
information required by this paragraph (b) in compliance with

[[Page 601]]

this section. Notwithstanding the preceding sentence, if a group health 
plan or health insurance issuer chooses to enter into such an agreement 
and the party with which it contracts fails to provide the information 
in compliance with this paragraph (b), the plan or issuer violates the 
transparency disclosure requirements of this paragraph (b).
    (c) Applicability. (1) The provisions of this section apply for plan 
years beginning on or after January 1, 2023 with respect to the 500 
items and services to be posted on a publicly available website, and 
with respect to all covered items and services, for plan years beginning 
on or after January 1, 2024.
    (2) As provided under Sec.  54.9815-1251, this section does not 
apply to grandfathered health plans. This section also does not apply to 
health reimbursement arrangements or other account-based group health 
plans as defined in Sec.  [thinsp]54.9815-2711(d)(6) or short-term, 
limited-duration insurance as defined in Sec.  54.9801-2.
    (3) Nothing in this section alters or otherwise affects a group 
health plan's or health insurance issuer's duty to comply with 
requirements under other applicable state or Federal laws, including 
those governing the accessibility, privacy, or security of information 
required to be disclosed under this section, or those governing the 
ability of properly authorized representatives to access participant or 
beneficiary information held by plans and issuers.
    (4) A group health plan or health insurance issuer will not fail to 
comply with this section solely because it, acting in good faith and 
with reasonable diligence, makes an error or omission in a disclosure 
required under paragraph (b) of this section, provided that the plan or 
issuer corrects the information as soon as practicable.
    (5) A group health plan or health insurance issuer will not fail to 
comply with this section solely because, despite acting in good faith 
and with reasonable diligence, its internet website is temporarily 
inaccessible, provided that the plan or issuer makes the information 
available as soon as practicable.
    (6) To the extent compliance with this section requires a group 
health plan or health insurance issuer to obtain information from any 
other entity, the plan or issuer will not fail to comply with this 
section because it relied in good faith on information from the other 
entity, unless the plan or issuer knows, or reasonably should have 
known, that the information is incomplete or inaccurate.
    (d) Severability. Any provision of this section held to be invalid 
or unenforceable by its terms, or as applied to any person or 
circumstance, or stayed pending further agency action, shall be 
severable from this section and shall not affect the remainder thereof 
or the application of the provision to persons not similarly situated or 
to dissimilar circumstances.

[T.D. 9922, 85 FR 72295, Nov. 12, 2020]



Sec.  54.9815-2715A3  Transparency in coverage--
requirements for public disclosure.

    (a) Scope and definitions--(1) Scope. This section establishes price 
transparency requirements for group health plans and health insurance 
issuers offering group health insurance coverage for the timely 
disclosure of information about costs related to covered items and 
services under a group plan or health insurance coverage.
    (2) Definitions. For purposes of this section, the definitions in 
Sec.  54.9815-2715A1 apply.
    (b) Requirements for public disclosure of in-network provider rates 
for covered items and services, out-of-network allowed amounts and 
billed charges for covered items and services, and negotiated rates and 
historical net prices for covered prescription drugs. A group health 
plan or health insurance issuer must make available on an internet 
website the information required under paragraph (b)(1) of this section 
in three machine-readable files, in accordance with the method and 
format requirements described in paragraph (b)(2) of this section, and 
that are updated as required under paragraph (b)(3) of this section.
    (1) Required information. Machine-readable files required under this 
paragraph (b) that are made available to the public by a group health 
plan or health insurance issuer must include:

[[Page 602]]

    (i) An in-network rate machine-readable file that includes the 
required information under this paragraph (b)(1)(i) for all covered 
items and services, except for prescription drugs that are subject to a 
fee-for-service reimbursement arrangement, which must be reported in the 
prescription drug machine-readable file pursuant to paragraph 
(b)(1)(iii) of this section. The in-network rate machine-readable file 
must include:
    (A) For each coverage option offered by a group health plan or 
health insurance issuer, the name and the 14-digit Health Insurance 
Oversight System (HIOS) identifier, or, if the 14-digit HIOS identifier 
is not available, the 5-digit HIOS identifier, or if no HIOS identifier 
is available, the Employer Identification Number (EIN);
    (B) A billing code, which in the case of prescription drugs must be 
an NDC, and a plain language description for each billing code for each 
covered item or service under each coverage option offered by a plan or 
issuer; and
    (C) All applicable rates, which may include one or more of the 
following: negotiated rates, underlying fee schedule rates, or derived 
amounts. If a group health plan or health insurance issuer does not use 
negotiated rates for provider reimbursement, then the plan or issuer 
should disclose derived amounts to the extent these amounts are already 
calculated in the normal course of business. If the group health plan or 
health insurance issuer uses underlying fee schedule rates for 
calculating cost sharing, then the plan or issuer should include the 
underlying fee schedule rates in addition to the negotiated rate or 
derived amount. Applicable rates, including for both individual items 
and services and items and services in a bundled payment arrangement, 
must be:
    (1) Reflected as dollar amounts, with respect to each covered item 
or service that is furnished by an in-network provider. If the 
negotiated rate is subject to change based upon participant or 
beneficiary-specific characteristics, these dollar amounts should be 
reflected as the base negotiated rate applicable to the item or service 
prior to adjustments for participant or beneficiary-specific 
characteristics;
    (2) Associated with the National Provider Identifier (NPI), Tax 
Identification Number (TIN), and Place of Service Code for each in-
network provider;
    (3) Associated with the last date of the contract term or expiration 
date for each provider-specific applicable rate that applies to each 
covered item or service; and
    (4) Indicated with a notation where a reimbursement arrangement 
other than a standard fee-for-service model (such as capitation or a 
bundled payment arrangement) applies.
    (ii) An out-of-network allowed amount machine-readable file, 
including:
    (A) For each coverage option offered by a group health plan or 
health insurance issuer, the name and the 14-digit HIOS identifier, or, 
if the 14-digit HIOS identifier is not available, the 5-digit HIOS 
identifier, or, if no HIOS identifier is available, the EIN;
    (B) A billing code, which in the case of prescription drugs must be 
an NDC, and a plain language description for each billing code for each 
covered item or service under each coverage option offered by a plan or 
issuer; and
    (C) Unique out-of-network allowed amounts and billed charges with 
respect to covered items or services, furnished by out-of-network 
providers during the 90-day time period that begins 180 days prior to 
the publication date of the machine-readable file (except that a group 
health plan or health insurance issuer must omit such data in relation 
to a particular item or service and provider when compliance with this 
paragraph (b)(1)(ii)(C) would require the plan or issuer to report 
payment of out-of-network allowed amounts in connection with fewer than 
20 different claims for payments under a single plan or coverage). 
Consistent with paragraph (c)(3) of this section, nothing in this 
paragraph (b)(1)(ii)(C) requires the disclosure of information that 
would violate any applicable health information privacy law. Each unique 
out-of-network allowed amount must be:
    (1) Reflected as a dollar amount, with respect to each covered item 
or service that is furnished by an out-of-network provider; and

[[Page 603]]

    (2) Associated with the NPI, TIN, and Place of Service Code for each 
out-of-network provider.
    (iii) A prescription drug machine-readable file, including:
    (A) For each coverage option offered by a group health plan or 
health insurance issuer, the name and the 14-digit HIOS identifier, or, 
if the 14-digit HIOS identifier is not available, the 5-digit HIOS 
identifier, or, if no HIOS identifier is available, the EIN;
    (B) The NDC and the proprietary and nonproprietary name assigned to 
the NDC by the Food and Drug Administration (FDA) for each covered item 
or service that is a prescription drug under each coverage option 
offered by a plan or issuer;
    (C) The negotiated rates which must be:
    (1) Reflected as a dollar amount, with respect to each NDC that is 
furnished by an in-network provider, including an in-network pharmacy or 
other prescription drug dispenser;
    (2) Associated with the NPI, TIN, and Place of Service Code for each 
in-network provider, including each in-network pharmacy or other 
prescription drug dispenser; and
    (3) Associated with the last date of the contract term for each 
provider-specific negotiated rate that applies to each NDC; and
    (D) Historical net prices that are:
    (1) Reflected as a dollar amount, with respect to each NDC that is 
furnished by an in-network provider, including an in-network pharmacy or 
other prescription drug dispenser;
    (2) Associated with the NPI, TIN, and Place of Service Code for each 
in-network provider, including each in-network pharmacy or other 
prescription drug dispenser; and
    (3) Associated with the 90-day time period that begins 180 days 
prior to the publication date of the machine-readable file for each 
provider-specific historical net price that applies to each NDC (except 
that a group health plan or health insurance issuer must omit such data 
in relation to a particular NDC and provider when compliance with this 
paragraph (b)(1)(iii)(D) would require the plan or issuer to report 
payment of historical net prices calculated using fewer than 20 
different claims for payment). Consistent with paragraph (c)(3) of this 
section, nothing in this paragraph (b)(1)(iii)(D) requires the 
disclosure of information that would violate any applicable health 
information privacy law.
    (2) Required method and format for disclosing information to the 
public. The machine-readable files described in this paragraph (b) must 
be available in a form and manner as specified in guidance issued by the 
Department of the Treasury, the Department of Labor, and the Department 
of Health and Human Services. The machine-readable files must be 
publicly available and accessible to any person free of charge and 
without conditions, such as establishment of a user account, password, 
or other credentials, or submission of personally identifiable 
information to access the file.
    (3) Timing. A group health plan or health insurance issuer must 
update the machine-readable files and information required by this 
paragraph (b) monthly. The group health plan or health insurance issuer 
must clearly indicate the date that the files were most recently 
updated.
    (4) Special rules to prevent unnecessary duplication--(i) Special 
rule for insured group health plans. To the extent coverage under a 
group health plan consists of group health insurance coverage, the plan 
satisfies the requirements of this paragraph (b) if the plan requires 
the health insurance issuer offering the coverage to provide the 
information pursuant to a written agreement. Accordingly, if a health 
insurance issuer and a group health plan sponsor enter into a written 
agreement under which the issuer agrees to provide the information 
required under this paragraph (b) in compliance with this section, and 
the issuer fails to do so, then the issuer, but not the plan, violates 
the transparency disclosure requirements of this paragraph (b).
    (ii) Other contractual arrangements. A group health plan or health 
insurance issuer may satisfy the requirements under this paragraph (b) 
by entering into a written agreement under which another party (such as 
a third-party administrator or health care claims clearinghouse) will 
provide the information required by this paragraph (b)

[[Page 604]]

in compliance with this section. Notwithstanding the preceding sentence, 
if a group health plan or health insurance issuer chooses to enter into 
such an agreement and the party with which it contracts fails to provide 
the information in compliance with this paragraph (b), the plan or 
issuer violates the transparency disclosure requirements of this 
paragraph (b).
    (iii) Aggregation permitted for out-of-network allowed amounts. 
Nothing in this section prohibits a group health plan or health 
insurance issuer from satisfying the disclosure requirement described in 
paragraph (b)(1)(ii) of this section by disclosing out-of-network 
allowed amounts made available by, or otherwise obtained from, an 
issuer, a service provider, or other party with which the plan or issuer 
has entered into a written agreement to provide the information, 
provided the minimum claim threshold described in paragraph 
(b)(1)(ii)(C) of this section is independently met for each item or 
service and for each plan or coverage included in an aggregated Allowed 
Amount File. Under such circumstances, health insurance issuers, service 
providers, or other parties with which the group health plan or issuer 
has contracted may aggregate out-of-network allowed amounts for more 
than one plan or insurance policy or contract. Additionally, nothing in 
this section prevents the Allowed Amount File from being hosted on a 
third-party website or prevents a plan administrator or issuer from 
contracting with a third party to post the file. However, if a plan or 
issuer chooses not to also host the file separately on its own website, 
it must provide a link on its own public website to the location where 
the file is made publicly available.
    (c) Applicability. (1) The provisions of this section apply for plan 
years beginning on or after January 1, 2022.
    (2) As provided under Sec.  54.9815-1251, this section does not 
apply to grandfathered health plans. This section also does not apply to 
health reimbursement arrangements or other account-based group health 
plans as defined in Sec.  [thinsp]54.9815-2711(d)(6) or short term 
limited duration insurance as defined in Sec.  54.9801-2.
    (3) Nothing in this section alters or otherwise affects a group 
health plan's or health insurance issuer's duty to comply with 
requirements under other applicable state or Federal laws, including 
those governing the accessibility, privacy, or security of information 
required to be disclosed under this section, or those governing the 
ability of properly authorized representatives to access participant, or 
beneficiary information held by plans and issuers.
    (4) A group health plan or health insurance issuer will not fail to 
comply with this section solely because it, acting in good faith and 
with reasonable diligence, makes an error or omission in a disclosure 
required under paragraph (b) of this section, provided that the plan or 
issuer corrects the information as soon as practicable.
    (5) A group health plan or health insurance issuer will not fail to 
comply with this section solely because, despite acting in good faith 
and with reasonable diligence, its internet website is temporarily 
inaccessible, provided that the plan or issuer makes the information 
available as soon as practicable.
    (6) To the extent compliance with this section requires a group 
health plan or health insurance issuer to obtain information from any 
other entity, the plan or issuer will not fail to comply with this 
section because it relied in good faith on information from the other 
entity, unless the plan or issuer knows, or reasonably should have 
known, that the information is incomplete or inaccurate.
    (d) Severability. Any provision of this section held to be invalid 
or unenforceable by its terms, or as applied to any person or 
circumstance, or stayed pending further agency action, shall be 
severable from this section and shall not affect the remainder thereof 
or the application of the provision to persons not similarly situated or 
to dissimilar circumstances.

[T.D. 9922, 85 FR 72295, Nov. 12, 2020]



Sec.  54.9815-2719  Internal claims and appeals and external review processes.

    (a) Scope and definitions-(1) Scope. This section sets forth 
requirements

[[Page 605]]

with respect to internal claims and appeals and external review 
processes for group health plans and health insurance issuers that are 
not grandfathered health plans under Sec.  54.9815-1251. Paragraph (b) 
of this section provides requirements for internal claims and appeals 
processes. Paragraph (c) of this section sets forth rules governing the 
applicability of State external review processes. Paragraph (d) of this 
section sets forth a Federal external review process for plans and 
issuers not subject to an applicable State external review process. 
Paragraph (e) of this section prescribes requirements for ensuring that 
notices required to be provided under this section are provided in a 
culturally and linguistically appropriate manner. Paragraph (f) of this 
section describes the authority of the Secretary to deem certain 
external review processes in existence on March 23, 2010 as in 
compliance with paragraph (c) or (d) of this section.
    (2) Definitions. For purposes of this section, the following 
definitions apply--
    (i) Adverse benefit determination. An adverse benefit determination 
means an adverse benefit determination as defined in 29 CFR 2560.503-1, 
as well as any rescission of coverage, as described in Sec.  54.9815-
2712(a)(2) (whether or not, in connection with the rescission, there is 
an adverse effect on any particular benefit at that time).
    (ii) Appeal (or internal appeal). An appeal or internal appeal means 
review by a plan or issuer of an adverse benefit determination, as 
required in paragraph (b) of this section.
    (iii) Claimant. Claimant means an individual who makes a claim under 
this section. For purposes of this section, references to claimant 
include a claimant's authorized representative.
    (iv) External review. External review means a review of an adverse 
benefit determination (including a final internal adverse benefit 
determination) conducted pursuant to an applicable State external review 
process described in paragraph (c) of this section or the Federal 
external review process of paragraph (d) of this section.
    (v) Final internal adverse benefit determination. A final internal 
adverse benefit determination means an adverse benefit determination 
that has been upheld by a plan or issuer at the completion of the 
internal appeals process applicable under paragraph (b) of this section 
(or an adverse benefit determination with respect to which the internal 
appeals process has been exhausted under the deemed exhaustion rules of 
paragraph (b)(2)(ii)(F) of this section).
    (vi) Final external review decision. A final external review 
decision means a determination by an independent review organization at 
the conclusion of an external review.
    (vii) Independent review organization (or IRO). An independent 
review organization (or IRO) means an entity that conducts independent 
external reviews of adverse benefit determinations and final internal 
adverse benefit determinations pursuant to paragraph (c) or (d) of this 
section.
    (viii) NAIC Uniform Model Act. The NAIC Uniform Model Act means the 
Uniform Health Carrier External Review Model Act promulgated by the 
National Association of Insurance Commissioners in place on July 23, 
2010.
    (b) Internal claims and appeals process--(1) In general. A group 
health plan and a health insurance issuer offering group health 
insurance coverage must implement an effective internal claims and 
appeals process, as described in this paragraph (b).
    (2) Requirements for group health plans and group health insurance 
issuers. A group health plan and a health insurance issuer offering 
group health insurance coverage must comply with all the requirements of 
this paragraph (b)(2). In the case of health insurance coverage offered 
in connection with a group health plan, if either the plan or the issuer 
complies with the internal claims and appeals process of this paragraph 
(b)(2), then the obligation to comply with this paragraph (b)(2) is 
satisfied for both the plan and the issuer with respect to the health 
insurance coverage.
    (i) Minimum internal claims and appeals standards. A group health 
plan and a health insurance issuer offering group health insurance 
coverage must comply with all the requirements applicable to group 
health plans under 29 CFR 2560.503-1, except to the extent those 
requirements are modified by

[[Page 606]]

paragraph (b)(2)(ii) of this section. Accordingly, under this paragraph 
(b), with respect to health insurance coverage offered in connection 
with a group health plan, the group health insurance issuer is subject 
to the requirements in 29 CFR 2560.503-1 to the same extent as the group 
health plan.
    (ii) Additional standards. In addition to the requirements in 
paragraph (b)(2)(i) of this section, the internal claims and appeals 
processes of a group health plan and a health insurance issuer offering 
group health insurance coverage must meet the requirements of this 
paragraph (b)(2)(ii).
    (A) Clarification of meaning of adverse benefit determination. For 
purposes of this paragraph (b)(2), an ``adverse benefit determination'' 
includes an adverse benefit determination as defined in paragraph 
(a)(2)(i) of this section. Accordingly, in complying with 29 CFR 
2560.503-1, as well as the other provisions of this paragraph (b)(2), a 
plan or issuer must treat a rescission of coverage (whether or not the 
rescission has an adverse effect on any particular benefit at that time) 
as an adverse benefit determination. (Rescissions of coverage are 
subject to the requirements of Sec.  54.9815-2712.)
    (B) Expedited notification of benefit determinations involving 
urgent care. The requirements of 29 CFR 2560.503-1(f)(2)(i) (which 
generally provide, among other things, in the case of urgent care claims 
for notification of the plan's benefit determination (whether adverse or 
not) as soon as possible, taking into account the medical exigencies, 
but not later than 72 hours after the receipt of the claim) continue to 
apply to the plan and issuer. For purposes of this paragraph 
(b)(2)(ii)(B), a claim involving urgent care has the meaning given in 29 
CFR 2560.503-1(m)(1), as determined by the attending provider, and the 
plan or issuer shall defer to such determination of the attending 
provider.
    (C) Full and fair review. A plan and issuer must allow a claimant to 
review the claim file and to present evidence and testimony as part of 
the internal claims and appeals process. Specifically, in addition to 
complying with the requirements of 29 CFR 2560.503-1(h)(2)--
    (1) The plan or issuer must provide the claimant, free of charge, 
with any new or additional evidence considered, relied upon, or 
generated by the plan or issuer (or at the direction of the plan or 
issuer) in connection with the claim; such evidence must be provided as 
soon as possible and sufficiently in advance of the date on which the 
notice of final internal adverse benefit determination is required to be 
provided under 29 CFR 2560.503-1(i) to give the claimant a reasonable 
opportunity to respond prior to that date; and
    (2) Before the plan or issuer can issue a final internal adverse 
benefit determination based on a new or additional rationale, the 
claimant must be provided, free of charge, with the rationale; the 
rationale must be provided as soon as possible and sufficiently in 
advance of the date on which the notice of final internal adverse 
benefit determination is required to be provided under 29 CFR 2560.503-
1(i) to give the claimant a reasonable opportunity to respond prior to 
that date. Notwithstanding the rules of 29 CFR 2560.503-1(i), if the new 
or additional evidence is received so late that it would be impossible 
to provide it to the claimant in time for the claimant to have a 
reasonable opportunity to respond, the period for providing a notice of 
final internal adverse benefit determination is tolled until such time 
as the claimant has a reasonable opportunity to respond. After the 
claimant responds, or has a reasonable opportunity to respond but fails 
to do so, the plan administrator shall notify the claimant of the plan's 
benefit determination as soon as a plan acting in a reasonable and 
prompt fashion can provide the notice, taking into account the medical 
exigencies.
    (D) Avoiding conflicts of interest. In addition to the requirements 
of 29 CFR 2560.503-1(b) and (h) regarding full and fair review, the plan 
and issuer must ensure that all claims and appeals are adjudicated in a 
manner designed to ensure the independence and impartiality of the 
persons involved in making the decision. Accordingly, decisions 
regarding hiring, compensation, termination, promotion, or other similar 
matters with respect to any individual (such as a claims adjudicator or 
medical expert) must not be made based

[[Page 607]]

upon the likelihood that the individual will support the denial of 
benefits.
    (E) Notice. A plan and issuer must provide notice to individuals, in 
a culturally and linguistically appropriate manner (as described in 
paragraph (e) of this section) that complies with the requirements of 29 
CFR 2560.503-1(g) and (j). The plan and issuer must also comply with the 
additional requirements of this paragraph (b)(2)(ii)(E).
    (1) The plan and issuer must ensure that any notice of adverse 
benefit determination or final internal adverse benefit determination 
includes information sufficient to identify the claim involved 
(including the date of service, the health care provider, the claim 
amount (if applicable), and a statement describing the availability, 
upon request, of the diagnosis code and its corresponding meaning, and 
the treatment code and its corresponding meaning).
    (2) The plan and issuer must provide to participants and 
beneficiaries, as soon as practicable, upon request, the diagnosis code 
and its corresponding meaning, and the treatment code and its 
corresponding meaning, associated with any adverse benefit determination 
or final internal adverse benefit determination. The plan or issuer must 
not consider a request for such diagnosis and treatment information, in 
itself, to be a request for an internal appeal under this paragraph (b) 
or an external review under paragraphs (c) and (d) of this section.
    (3) The plan and issuer must ensure that the reason or reasons for 
the adverse benefit determination or final internal adverse benefit 
determination includes the denial code and its corresponding meaning, as 
well as a description of the plan's or issuer's standard, if any, that 
was used in denying the claim. In the case of a notice of final internal 
adverse benefit determination, this description must include a 
discussion of the decision.
    (4) The plan and issuer must provide a description of available 
internal appeals and external review processes, including information 
regarding how to initiate an appeal.
    (5) The plan and issuer must disclose the availability of, and 
contact information for, any applicable office of health insurance 
consumer assistance or ombudsman established under PHS Act section 2793 
to assist individuals with the internal claims and appeals and external 
review processes.
    (F) Deemed exhaustion of internal claims and appeals processes--(1) 
In the case of a plan or issuer that fails to strictly adhere to all the 
requirements of this paragraph (b)(2) with respect to a claim, the 
claimant is deemed to have exhausted the internal claims and appeals 
process of this paragraph (b), except as provided in paragraph 
(b)(2)(ii)(F)(2) of this section. Accordingly the claimant may initiate 
an external review under paragraph (c) or (d) of this section, as 
applicable. The claimant is also entitled to pursue any available 
remedies under section 502(a) of ERISA or under State law, as 
applicable, on the basis that the plan or issuer has failed to provide a 
reasonable internal claims and appeals process that would yield a 
decision on the merits of the claim. If a claimant chooses to pursue 
remedies under section 502(a) of ERISA under such circumstances, the 
claim or appeal is deemed denied on review without the exercise of 
discretion by an appropriate fiduciary.
    (2) Notwithstanding paragraph (b)(2)(ii)(F)(1) of this section, the 
internal claims and appeals process of this paragraph (b) will not be 
deemed exhausted based on de minimis violations that do not cause, and 
are not likely to cause, prejudice or harm to the claimant so long as 
the plan or issuer demonstrates that the violation was for good cause or 
due to matters beyond the control of the plan or issuer and that the 
violation occurred in the context of an ongoing, good faith exchange of 
information between the plan and the claimant. This exception is not 
available if the violation is part of a pattern or practice of 
violations by the plan or issuer. The claimant may request a written 
explanation of the violation from the plan or issuer, and the plan or 
issuer must provide such explanation within 10 days, including a 
specific description of its bases, if any, for asserting that the 
violation should not cause the internal claims and appeals process of 
this paragraph (b) to be deemed exhausted. If an external reviewer or a 
court rejects the claimant's

[[Page 608]]

request for immediate review under paragraph (b)(2)(ii)(F)(1) of this 
section on the basis that the plan met the standards for the exception 
under this paragraph (b)(2)(ii)(F)(2), the claimant has the right to 
resubmit and pursue the internal appeal of the claim. In such a case, 
within a reasonable time after the external reviewer or court rejects 
the claim for immediate review (not to exceed 10 days), the plan shall 
provide the claimant with notice of the opportunity to resubmit and 
pursue the internal appeal of the claim. Time periods for re-filing the 
claim shall begin to run upon claimant's receipt of such notice.
    (iii) Requirement to provide continued coverage pending the outcome 
of an appeal. A plan and issuer subject to the requirements of this 
paragraph (b)(2) are required to provide continued coverage pending the 
outcome of an appeal. For this purpose, the plan and issuer must comply 
with the requirements of 29 CFR 2560.503-1(f)(2)(ii), which generally 
provides that benefits for an ongoing course of treatment cannot be 
reduced or terminated without providing advance notice and an 
opportunity for advance review.
    (c) State standards for external review--(1) In general. (i) If a 
State external review process that applies to and is binding on a health 
insurance issuer offering group health insurance coverage includes at a 
minimum the consumer protections in the NAIC Uniform Model Act, then the 
issuer must comply with the applicable State external review process and 
is not required to comply with the Federal external review process of 
paragraph (d) of this section. In such a case, to the extent that 
benefits under a group health plan are provided through health insurance 
coverage, the group health plan is not required to comply with either 
this paragraph (c) or the Federal external review process of paragraph 
(d) of this section.
    (ii) To the extent that a group health plan provides benefits other 
than through health insurance coverage (that is, the plan is self-
insured) and is subject to a State external review process that applies 
to and is binding on the plan (for example, is not preempted by ERISA) 
and the State external review process includes at a minimum the consumer 
protections in the NAIC Uniform Model Act, then the plan must comply 
with the applicable State external review process and is not required to 
comply with the Federal external review process of paragraph (d) of this 
section. Where a self-insured plan is not subject to an applicable State 
external review process, but the State has chosen to expand access to 
its process for plans that are not subject to the applicable State laws, 
the plan may choose to comply with either the applicable State external 
review process or the Federal external review process of paragraph (d) 
of this section.
    (iii) If a plan or issuer is not required under paragraph (c)(1)(i) 
or (c)(1)(ii) of this section to comply with the requirements of this 
paragraph (c), then the plan or issuer must comply with the Federal 
external review process of paragraph (d) of this section, except to the 
extent, in the case of a plan, the plan is not required under paragraph 
(c)(1)(i) of this section to comply with paragraph (d) of this section.
    (2) Minimum standards for State external review processes. An 
applicable State external review process must meet all the minimum 
consumer protections in this paragraph (c)(2). The Department of Health 
and Human Services will determine whether State external review 
processes meet these requirements.
    (i) The State process must provide for the external review of 
adverse benefit determinations (including final internal adverse benefit 
determinations) by issuers (or, if applicable, plans) that are based on 
the issuer's (or plan's) requirements for medical necessity, 
appropriateness, health care setting, level of care, or effectiveness of 
a covered benefit.
    (ii) The State process must require issuers (or, if applicable, 
plans) to provide effective written notice to claimants of their rights 
in connection with an external review for an adverse benefit 
determination.
    (iii) To the extent the State process requires exhaustion of an 
internal claims and appeals process, exhaustion must be unnecessary 
where the issuer (or, if applicable, the plan) has waived the 
requirement; the issuer (or the plan) is considered to have exhausted

[[Page 609]]

the internal claims and appeals process under applicable law (including 
by failing to comply with any of the requirements for the internal 
appeal process, as outlined in paragraph (b)(2) of this section); or the 
claimant has applied for expedited external review at the same time as 
applying for an expedited internal appeal.
    (iv) The State process provides that the issuer (or, if applicable, 
the plan) against which a request for external review is filed must pay 
the cost of the IRO for conducting the external review. Notwithstanding 
this requirement, a State external review process that expressly 
authorizes, as of November 18, 2015, a nominal filing fee may continue 
to permit such fees. For this purpose, to be considered nominal, a 
filing fee must not exceed $25; it must be refunded to the claimant if 
the adverse benefit determination (or final internal adverse benefit 
determination) is reversed through external review; it must be waived if 
payment of the fee would impose an undue financial hardship; and the 
annual limit on filing fees for any claimant within a single plan year 
must not exceed $75.
    (v) The State process may not impose a restriction on the minimum 
dollar amount of a claim for it to be eligible for external review. 
Thus, the process may not impose, for example, a $500 minimum claims 
threshold.
    (vi) The State process must allow at least four months after the 
receipt of a notice of an adverse benefit determination or final 
internal adverse benefit determination for a request for an external 
review to be filed.
    (vii) The State process must provide that IROs will be assigned on a 
random basis or another method of assignment that assures the 
independence and impartiality of the assignment process (such as 
rotational assignment) by a State or independent entity, and in no event 
selected by the issuer, plan, or the individual.
    (viii) The State process must provide for maintenance of a list of 
approved IROs qualified to conduct the external review based on the 
nature of the health care service that is the subject of the review. The 
State process must provide for approval only of IROs that are accredited 
by a nationally recognized private accrediting organization.
    (ix) The State process must provide that any approved IRO has no 
conflicts of interest that will influence its independence. Thus, the 
IRO may not own or control, or be owned or controlled by a health 
insurance issuer, a group health plan, the sponsor of a group health 
plan, a trade association of plans or issuers, or a trade association of 
health care providers. The State process must further provide that the 
IRO and the clinical reviewer assigned to conduct an external review may 
not have a material professional, familial, or financial conflict of 
interest with the issuer or plan that is the subject of the external 
review; the claimant (and any related parties to the claimant) whose 
treatment is the subject of the external review; any officer, director, 
or management employee of the issuer; the plan administrator, plan 
fiduciaries, or plan employees; the health care provider, the health 
care provider's group, or practice association recommending the 
treatment that is subject to the external review; the facility at which 
the recommended treatment would be provided; or the developer or 
manufacturer of the principal drug, device, procedure, or other therapy 
being recommended.
    (x) The State process allows the claimant at least five business 
days to submit to the IRO in writing additional information that the IRO 
must consider when conducting the external review, and it requires that 
the claimant is notified of the right to do so. The process must also 
require that any additional information submitted by the claimant to the 
IRO must be forwarded to the issuer (or, if applicable, the plan) within 
one business day of receipt by the IRO.
    (xi) The State process must provide that the decision is binding on 
the plan or issuer, as well as the claimant except to the extent the 
other remedies are available under State or Federal law, and except that 
the requirement that the decision be binding shall not preclude the plan 
or issuer from making payment on the claim or otherwise providing 
benefits at any time, including after a final external review decision 
that denies the claim or otherwise

[[Page 610]]

fails to require such payment or benefits. For this purpose, the plan or 
issuer must provide benefits (including by making payment on the claim) 
pursuant to the final external review decision without delay, regardless 
of whether the plan or issuer intends to seek judicial review of the 
external review decision and unless or until there is a judicial 
decision otherwise.
    (xii) The State process must require, for standard external review, 
that the IRO provide written notice to the issuer (or, if applicable, 
the plan) and the claimant of its decision to uphold or reverse the 
adverse benefit determination (or final internal adverse benefit 
determination) within no more than 45 days after the receipt of the 
request for external review by the IRO.
    (xiii) The State process must provide for an expedited external 
review if the adverse benefit determination (or final internal adverse 
benefit determination) concerns an admission, availability of care, 
continued stay, or health care service for which the claimant received 
emergency services, but has not been discharged from a facility; or 
involves a medical condition for which the standard external review time 
frame would seriously jeopardize the life or health of the claimant or 
jeopardize the claimant's ability to regain maximum function. As 
expeditiously as possible but within no more than 72 hours after the 
receipt of the request for expedited external review by the IRO, the IRO 
must make its decision to uphold or reverse the adverse benefit 
determination (or final internal adverse benefit determination) and 
notify the claimant and the issuer (or, if applicable, the plan) of the 
determination. If the notice is not in writing, the IRO must provide 
written confirmation of the decision within 48 hours after the date of 
the notice of the decision.
    (xiv) The State process must require that issuers (or, if 
applicable, plans) include a description of the external review process 
in or attached to the summary plan description, policy, certificate, 
membership booklet, outline of coverage, or other evidence of coverage 
it provides to participants, beneficiaries, or enrollees, substantially 
similar to what is set forth in section 17 of the NAIC Uniform Model 
Act.
    (xv) The State process must require that IROs maintain written 
records and make them available upon request to the State, substantially 
similar to what is set forth in section 15 of the NAIC Uniform Model 
Act.
    (xvi) The State process follows procedures for external review of 
adverse benefit determinations (or final internal adverse benefit 
determinations) involving experimental or investigational treatment, 
substantially similar to what is set forth in section 10 of the NAIC 
Uniform Model Act.
    (3) Transition period for external review processes--(i) Through 
December 31, 2017, an applicable State external review process 
applicable to a health insurance issuer or group health plan is 
considered to meet the requirements of PHS Act section 2719(b). 
Accordingly, through December 31, 2017, an applicable State external 
review process will be considered binding on the issuer or plan (in lieu 
of the requirements of the Federal external review process). If there is 
no applicable State external review process, the issuer or plan is 
required to comply with the requirements of the Federal external review 
process in paragraph (d) of this section.
    (ii) An applicable State external review process must apply for 
final internal adverse benefit determinations (or, in the case of 
simultaneous internal appeal and external review, adverse benefit 
determinations) provided on or after January 1, 2018. The Federal 
external review process will apply to such internal adverse benefit 
determinations unless the Department of Health and Human Services 
determines that a State law meets all the minimum standards of paragraph 
(c)(2) of this section. Through December 31, 2017, a State external 
review process applicable to a health insurance issuer or group health 
plan may be considered to meet the minimum standards of paragraph (c)(2) 
of this section, if it meets the temporary standards established by the 
Secretary in guidance for a process similar to the NAIC Uniform Model 
Act.
    (d) Federal external review process. A plan or issuer not subject to 
an applicable State external review process under paragraph (c) of this 
section

[[Page 611]]

must provide an effective Federal external review process in accordance 
with this paragraph (d) (except to the extent, in the case of a plan, 
the plan is described in paragraph (c)(1)(i) of this section as not 
having to comply with this paragraph (d)). In the case of health 
insurance coverage offered in connection with a group health plan, if 
either the plan or the issuer complies with the Federal external review 
process of this paragraph (d), then the obligation to comply with this 
paragraph (d) is satisfied for both the plan and the issuer with respect 
to the health insurance coverage. A Multi State Plan or MSP, as defined 
by 45 CFR 800.20, must provide an effective Federal external review 
process in accordance with this paragraph (d). In such circumstances, 
the requirement to provide external review under this paragraph (d) is 
satisfied when a Multi State Plan or MSP complies with standards 
established by the Office of Personnel Management.
    (1) Scope--(i) In general. The Federal external review process 
established pursuant to this paragraph (d) applies to the following:
    (A) An adverse benefit determination (including a final internal 
adverse benefit determination) by a plan or issuer that involves medical 
judgment (including, but not limited to, those based on the plan's or 
issuer's requirements for medical necessity, appropriateness, health 
care setting, level of care, or effectiveness of a covered benefit; its 
determination that a treatment is experimental or investigational; its 
determination whether a participant or beneficiary is entitled to a 
reasonable alternative standard for a reward under a wellness program; 
or its determination whether a plan or issuer is complying with the 
nonquantitative treatment limitation provisions of Code section 9812 and 
Sec.  54.9812, which generally require, among other things, parity in 
the application of medical management techniques), as determined by the 
external reviewer. (A denial, reduction, termination, or a failure to 
provide payment for a benefit based on a determination that a 
participant or beneficiary fails to meet the requirements for 
eligibility under the terms of a group health plan or health insurance 
coverage is not eligible for the Federal external review process under 
this paragraph (d)); and
    (B) A rescission of coverage (whether or not the rescission has any 
effect on any particular benefit at that time).
    (ii) Examples. The rules of paragraph (d)(1)(i) of this section are 
illustrated by the following examples:

    Example 1. (i) Facts. A group health plan provides coverage for 30 
physical therapy visits generally. After the 30th visit, coverage is 
provided only if the service is preauthorized pursuant to an approved 
treatment plan that takes into account medical necessity using the 
plan's definition of the term. Individual A seeks coverage for a 31st 
physical therapy visit. A's health care provider submits a treatment 
plan for approval, but it is not approved by the plan, so coverage for 
the 31st visit is not preauthorized. With respect to the 31st visit, A 
receives a notice of final internal adverse benefit determination 
stating that the maximum visit limit is exceeded.
    (ii) Conclusion. In this Example 1, the plan's denial of benefits is 
based on medical necessity and involves medical judgment. Accordingly, 
the claim is eligible for external review under paragraph (d)(1)(i) of 
this section. Moreover, the plan's notification of final internal 
adverse benefit determination is inadequate under paragraphs (b)(2)(i) 
and (b)(2)(ii)(E)(3) of this section because it fails to make clear that 
the plan will pay for more than 30 visits if the service is 
preauthorized pursuant to an approved treatment plan that takes into 
account medical necessity using the plan's definition of the term. 
Accordingly, the notice of final internal adverse benefit determination 
should refer to the plan provision governing the 31st visit and should 
describe the plan's standard for medical necessity, as well as how the 
treatment fails to meet the plan's standard.
    Example 2. (i) Facts. A group health plan does not provide coverage 
for services provided out of network, unless the service cannot 
effectively be provided in network. Individual B seeks coverage for a 
specialized medical procedure from an out-of-network provider because B 
believes that the procedure cannot be effectively provided in network. B 
receives a notice of final internal adverse benefit determination 
stating that the claim is denied because the provider is out-of-network.
    (ii) Conclusion. In this Example 2, the plan's denial of benefits is 
based on whether a service can effectively be provided in network and, 
therefore, involves medical judgment. Accordingly, the claim is eligible 
for external review under paragraph (d)(1)(i) of this section. Moreover, 
the plan's notice of final internal adverse benefit determination is 
inadequate under paragraphs (b)(2)(i) and (b)(2)(ii)(E)(3) of this 
section because the

[[Page 612]]

plan does provide benefits for services on an out-of-network basis if 
the services cannot effectively be provided in network. Accordingly, the 
notice of final internal adverse benefit determination is required to 
refer to the exception to the out-of-network exclusion and should 
describe the plan's standards for determining effectiveness of services, 
as well as how services available to the claimant within the plan's 
network meet the plan's standard for effectiveness of services.

    (2) External review process standards. The Federal external review 
process established pursuant to this paragraph (d) is considered similar 
to the process set forth in the NAIC Uniform Model Act and, therefore 
satisfies the requirements of paragraph (d)(2), if such process provides 
the following.
    (i) Request for external review. A group health plan or health 
insurance issuer must allow a claimant to file a request for an external 
review with the plan or issuer if the request is filed within four 
months after the date of receipt of a notice of an adverse benefit 
determination or final internal adverse benefit determination. If there 
is no corresponding date four months after the date of receipt of such a 
notice, then the request must be filed by the first day of the fifth 
month following the receipt of the notice. For example, if the date of 
receipt of the notice is October 30, because there is no February 30, 
the request must be filed by March 1. If the last filing date would fall 
on a Saturday, Sunday, or Federal holiday, the last filing date is 
extended to the next day that is not a Saturday, Sunday, or Federal 
holiday.
    (ii) Preliminary review--(A) In general. Within five business days 
following the date of receipt of the external review request, the group 
health plan or health insurance issuer must complete a preliminary 
review of the request to determine whether:
    (1) The claimant is or was covered under the plan or coverage at the 
time the health care item or service was requested or, in the case of a 
retrospective review, was covered under the plan or coverage at the time 
the health care item or service was provided;
    (2) The adverse benefit determination or the final adverse benefit 
determination does not relate to the claimant's failure to meet the 
requirements for eligibility under the terms of the group health plan or 
health insurance coverage (e.g., worker classification or similar 
determination);
    (3) The claimant has exhausted the plan's or issuer's internal 
appeal process unless the claimant is not required to exhaust the 
internal appeals process under paragraph (b)(1) of this section; and
    (4) The claimant has provided all the information and forms required 
to process an external review.
    (B) Within one business day after completion of the preliminary 
review, the plan or issuer must issue a notification in writing to the 
claimant. If the request is complete but not eligible for external 
review, such notification must include the reasons for its ineligibility 
and current contact information, including the phone number, for the 
Employee Benefits Security Administration. If the request is not 
complete, such notification must describe the information or materials 
needed to make the request complete, and the plan or issuer must allow a 
claimant to perfect the request for external review within the four-
month filing period or within the 48 hour period following the receipt 
of the notification, whichever is later.
    (iii) Referral to Independent Review Organization--(A) In general. 
The group health plan or health insurance issuer must assign an IRO that 
is accredited by URAC or by similar nationally-recognized accrediting 
organization to conduct the external review. The IRO referral process 
must provide for the following:
    (1) The plan or issuer must ensure that the IRO process is not 
biased and ensures independence;
    (2) The plan or issuer must contract with at least three (3) IROs 
for assignments under the plan or coverage and rotate claims assignments 
among them (or incorporate other independent, unbiased methods for 
selection of IROs, such as random selection); and
    (3) The IRO may not be eligible for any financial incentives based 
on the likelihood that the IRO will support the denial of benefits.
    (4) The IRO process may not impose any costs, including filing fees, 
on the claimant requesting the external review.

[[Page 613]]

    (B) IRO contracts. A group health plan or health insurance issuer 
must include the following standards in the contract between the plan or 
issuer and the IRO:
    (1) The assigned IRO will utilize legal experts where appropriate to 
make coverage determinations under the plan or coverage.
    (2) The assigned IRO will timely notify a claimant in writing 
whether the request is eligible for external review. This notice will 
include a statement that the claimant may submit in writing to the 
assigned IRO, within ten business days following the date of receipt of 
the notice, additional information. This additional information must be 
considered by the IRO when conducting the external review. The IRO is 
not required to, but may, accept and consider additional information 
submitted after ten business days.
    (3) Within five business days after the date of assignment of the 
IRO, the plan or issuer must provide to the assigned IRO the documents 
and any information considered in making the adverse benefit 
determination or final internal adverse benefit determination. Failure 
by the plan or issuer to timely provide the documents and information 
must not delay the conduct of the external review. If the plan or issuer 
fails to timely provide the documents and information, the assigned IRO 
may terminate the external review and make a decision to reverse the 
adverse benefit determination or final internal adverse benefit 
determination. Within one business day after making the decision, the 
IRO must notify the claimant and the plan.
    (4) Upon receipt of any information submitted by the claimant, the 
assigned IRO must within one business day forward the information to the 
plan or issuer. Upon receipt of any such information, the plan or issuer 
may reconsider its adverse benefit determination or final internal 
adverse benefit determination that is the subject of the external 
review. Reconsideration by the plan or issuer must not delay the 
external review. The external review may be terminated as a result of 
the reconsideration only if the plan decides, upon completion of its 
reconsideration, to reverse its adverse benefit determination or final 
internal adverse benefit determination and provide coverage or payment. 
Within one business day after making such a decision, the plan must 
provide written notice of its decision to the claimant and the assigned 
IRO. The assigned IRO must terminate the external review upon receipt of 
the notice from the plan or issuer.
    (5) The IRO will review all of the information and documents timely 
received. In reaching a decision, the assigned IRO will review the claim 
de novo and not be bound by any decisions or conclusions reached during 
the plan's or issuer's internal claims and appeals process applicable 
under paragraph (b). In addition to the documents and information 
provided, the assigned IRO, to the extent the information or documents 
are available and the IRO considers them appropriate, will consider the 
following in reaching a decision:
    (i) The claimant's medical records;
    (ii) The attending health care professional's recommendation;
    (iii) Reports from appropriate health care professionals and other 
documents submitted by the plan or issuer, claimant, or the claimant's 
treating provider;
    (iv) The terms of the claimant's plan or coverage to ensure that the 
IRO's decision is not contrary to the terms of the plan or coverage, 
unless the terms are inconsistent with applicable law;
    (v) Appropriate practice guidelines, which must include applicable 
evidence-based standards and may include any other practice guidelines 
developed by the Federal government, national or professional medical 
societies, boards, and associations;
    (vi) Any applicable clinical review criteria developed and used by 
the plan or issuer, unless the criteria are inconsistent with the terms 
of the plan or coverage or with applicable law; and
    (vii) To the extent the final IRO decision maker is different from 
the IRO's clinical reviewer, the opinion of such clinical reviewer, 
after considering information described in this notice, to the extent 
the information or documents are available and the clinical reviewer or 
reviewers consider such information or documents appropriate.

[[Page 614]]

    (6) The assigned IRO must provide written notice of the final 
external review decision within 45 days after the IRO receives the 
request for the external review. The IRO must deliver the notice of the 
final external review decision to the claimant and the plan or issuer.
    (7) The assigned IRO's written notice of the final external review 
decision must contain the following:
    (i) A general description of the reason for the request for external 
review, including information sufficient to identify the claim 
(including the date or dates of service, the health care provider, the 
claim amount (if applicable), and a statement describing the 
availability, upon request, of the diagnosis code and its corresponding 
meaning, the treatment code and its corresponding meaning, and the 
reason for the plan's or issuer's denial);
    (ii) The date the IRO received the assignment to conduct the 
external review and the date of the IRO decision;
    (iii) References to the evidence or documentation, including the 
specific coverage provisions and evidence-based standards, considered in 
reaching its decision;
    (iv) A discussion of the principal reason or reasons for its 
decision, including the rationale for its decision and any evidence-
based standards that were relied on in making its decision;
    (v) A statement that the IRO's determination is binding except to 
the extent that other remedies may be available under State or Federal 
law to either the group health plan or health insurance issuer or to the 
claimant, or to the extent the health plan or health insurance issuer 
voluntarily makes payment on the claim or otherwise provides benefits at 
any time, including after a final external review decision that denies 
the claim or otherwise fails to require such payment or benefits;
    (vi) A statement that judicial review may be available to the 
claimant; and
    (vii) Current contact information, including phone number, for any 
applicable office of health insurance consumer assistance or ombudsman 
established under PHS Act section 2793.
    (viii) After a final external review decision, the IRO must maintain 
records of all claims and notices associated with the external review 
process for six years. An IRO must make such records available for 
examination by the claimant, plan, issuer, or State or Federal oversight 
agency upon request, except where such disclosure would violate State or 
Federal privacy laws.
    (iv) Reversal of plan's or issuer's decision. Upon receipt of a 
notice of a final external review decision reversing the adverse benefit 
determination or final adverse benefit determination, the plan or issuer 
immediately must provide coverage or payment (including immediately 
authorizing care or immediately paying benefits) for the claim.
    (3) Expedited external review. A group health plan or health 
insurance issuer must comply with the following standards with respect 
to an expedited external review:
    (i) Request for external review. A group health plan or health 
insurance issuer must allow a claimant to make a request for an 
expedited external review with the plan or issuer at the time the 
claimant receives:
    (A) An adverse benefit determination if the adverse benefit 
determination involves a medical condition of the claimant for which the 
timeframe for completion of an expedited internal appeal under paragraph 
(b) of this section would seriously jeopardize the life or health of the 
claimant or would jeopardize the claimant's ability to regain maximum 
function and the claimant has filed a request for an expedited internal 
appeal; or
    (B) A final internal adverse benefit determination, if the claimant 
has a medical condition where the timeframe for completion of a standard 
external review would seriously jeopardize the life or health of the 
claimant or would jeopardize the claimant's ability to regain maximum 
function, or if the final internal adverse benefit determination 
concerns an admission, availability of care, continued stay, or health 
care item or service for which the claimant received emergency services, 
but has not been discharged from the facility.
    (ii) Preliminary review. Immediately upon receipt of the request for 
expedited external review, the plan or issuer must determine whether the 
request meets the reviewability requirements set forth in paragraph 
(d)(2)(ii)

[[Page 615]]

of this section for standard external review. The plan or issuer must 
immediately send a notice that meets the requirements set forth in 
paragraph (d)(2)(ii)(B) for standard review to the claimant of its 
eligibility determination.
    (iii) Referral to independent review organization. (A) Upon a 
determination that a request is eligible for expedited external review 
following the preliminary review, the plan or issuer will assign an IRO 
pursuant to the requirements set forth in paragraph (d)(2)(iii) of this 
section for standard review. The plan or issuer must provide or transmit 
all necessary documents and information considered in making the adverse 
benefit determination or final internal adverse benefit determination to 
the assigned IRO electronically or by telephone or facsimile or any 
other available expeditious method.
    (B) The assigned IRO, to the extent the information or documents are 
available and the IRO considers them appropriate, must consider the 
information or documents described above under the procedures for 
standard review. In reaching a decision, the assigned IRO must review 
the claim de novo and is not bound by any decisions or conclusions 
reached during the plan's or issuer's internal claims and appeals 
process.
    (iv) Notice of final external review decision. The plan's or 
issuer's contract with the assigned IRO must require the IRO to provide 
notice of the final external review decision, in accordance with the 
requirements set forth in paragraph (d)(2)(iii)(B) of this section, as 
expeditiously as the claimant's medical condition or circumstances 
require, but in no event more than 72 hours after the IRO receives the 
request for an expedited external review. If the notice is not in 
writing, within 48 hours after the date of providing that notice, the 
assigned IRO must provide written confirmation of the decision to the 
claimant and the plan or issuer.
    (4) Alternative, Federally-administered external review process. 
Insured coverage not subject to an applicable State external review 
process under paragraph (c) of this section may elect to use either the 
Federal external review process, as set forth under paragraph (d) of 
this section or the Federally-administered external review process, as 
set forth by HHS in guidance. In such circumstances, the requirement to 
provide external review under this paragraph (d) is satisfied.
    (e) Form and manner of notice--(1) In general. For purposes of this 
section, a group health plan and a health insurance issuer offering 
group health insurance coverage are considered to provide relevant 
notices in a culturally and linguistically appropriate manner if the 
plan or issuer meets all the requirements of paragraph (e)(2) of this 
section with respect to the applicable non-English languages described 
in paragraph (e)(3) of this section.
    (2) Requirements. (i) The plan or issuer must provide oral language 
services (such as a telephone customer assistance hotline) that includes 
answering questions in any applicable non-English language and providing 
assistance with filing claims and appeals (including external review) in 
any applicable non-English language;
    (ii) The plan or issuer must provide, upon request, a notice in any 
applicable non-English language; and
    (iii) The plan or issuer must include in the English versions of all 
notices, a statement prominently displayed in any applicable non-English 
language clearly indicating how to access the language services provided 
by the plan or issuer.
    (3) Applicable non-English language. With respect to an address in 
any United States county to which a notice is sent, a non-English 
language is an applicable non-English language if ten percent or more of 
the population residing in the county is literate only in the same non-
English language, as determined in guidance published by the Secretary.
    (f) Secretarial authority. The Secretary may determine that the 
external review process of a group health plan or health insurance 
issuer, in operation as of March 23, 2010, is considered in compliance 
with the applicable process established under paragraph (c) or (d) of 
this section if it substantially meets the requirements of paragraph (c) 
or (d) of this section, as applicable.
    (g) Applicability date. The provisions of this section are 
applicable to group

[[Page 616]]

health plans and health insurance issuers for plan years beginning on or 
after January 1, 2017. Until the applicability date for this regulation, 
plans and issuers are required to continue to comply with the interim 
final regulations promulgated by the Department of Labor at 29 CFR part 
2590, contained in the 29 CFR, parts 1927 to end, edition revised as of 
July 1, 2015.

[T.D. 9744, 80 FR 72246, Nov. 18, 2015]



Sec.  54.9815-2719A  Patient protections.

    (a) Choice of health care professional--(1) Designation of primary 
care provider--(i) In general. If a group health plan, or a health 
insurance issuer offering group health insurance coverage, requires or 
provides for designation by a participant or beneficiary of a 
participating primary care provider, then the plan or issuer must permit 
each participant or beneficiary to designate any participating primary 
care provider who is available to accept the participant or beneficiary. 
In such a case, the plan or issuer must comply with the rules of 
paragraph (a)(4) of this section by informing each participant of the 
terms of the plan or health insurance coverage regarding designation of 
a primary care provider.
    (ii) Construction. Nothing in paragraph (a)(1)(i) of this section is 
to be construed to prohibit the application of reasonable and 
appropriate geographic limitations with respect to the selection of 
primary care providers, in accordance with the terms of the plan or 
coverage, the underlying provider contracts, and applicable State law.
    (iii) Example. The rules of this paragraph (a)(1) are illustrated by 
the following example:

    Example. (i) Facts. A group health plan requires individuals covered 
under the plan to designate a primary care provider. The plan permits 
each individual to designate any primary care provider participating in 
the plan's network who is available to accept the individual as the 
individual's primary care provider. If an individual has not designated 
a primary care provider, the plan designates one until one has been 
designated by the individual. The plan provides a notice that satisfies 
the requirements of paragraph (a)(4) of this section regarding the 
ability to designate a primary care provider.
    (ii) Conclusion. In this Example, the plan has satisfied the 
requirements of paragraph (a) of this section.

    (2) Designation of pediatrician as primary care provider--(i) In 
general. If a group health plan, or a health insurance issuer offering 
group health insurance coverage, requires or provides for the 
designation of a participating primary care provider for a child by a 
participant or beneficiary, the plan or issuer must permit the 
participant or beneficiary to designate a physician (allopathic or 
osteopathic) who specializes in pediatrics (including pediatric 
subspecialties, based on the scope of that provider's license under 
applicable State law) as the child's primary care provider if the 
provider participates in the network of the plan or issuer and is 
available to accept the child. In such a case, the plan or issuer must 
comply with the rules of paragraph (a)(4) of this section by informing 
each participant of the terms of the plan or health insurance coverage 
regarding designation of a pediatrician as the child's primary care 
provider.
    (ii) Construction. Nothing in paragraph (a)(2)(i) of this section is 
to be construed to waive any exclusions of coverage under the terms and 
conditions of the plan or health insurance coverage with respect to 
coverage of pediatric care.
    (iii) Examples. The rules of this paragraph (a)(2) are illustrated 
by the following examples:

    Example 1. (i) Facts. A group health plan's HMO designates for each 
participant a physician who specializes in internal medicine to serve as 
the primary care provider for the participant and any beneficiaries. 
Participant A requests that Pediatrician B be designated as the primary 
care provider for A's child. B is a participating provider in the HMO's 
network and is available to accept the child.
    (ii) Conclusion. In this Example 1, the HMO must permit A's 
designation of B as the primary care provider for A's child in order to 
comply with the requirements of this paragraph (a)(2).
    Example 2. (i) Facts. Same facts as Example 1, except that A takes 
A's child to B for treatment of the child's severe shellfish allergies. 
B wishes to refer A's child to an allergist for treatment. The HMO, 
however, does not provide coverage for treatment of food allergies, nor 
does it have an allergist

[[Page 617]]

participating in its network, and it therefore refuses to authorize the 
referral.
    (ii) Conclusion. In this Example 2, the HMO has not violated the 
requirements of this paragraph (a)(2) because the exclusion of treatment 
for food allergies is in accordance with the terms of A's coverage.

    (3) Patient access to obstetrical and gynecological care--(i) 
General rights--(A) Direct access. A group health plan, or a health 
insurance issuer offering group health insurance coverage, described in 
paragraph (a)(3)(ii) of this section may not require authorization or 
referral by the plan, issuer, or any person (including a primary care 
provider) in the case of a female participant or beneficiary who seeks 
coverage for obstetrical or gynecological care provided by a 
participating health care professional who specializes in obstetrics or 
gynecology. In such a case, the plan or issuer must comply with the 
rules of paragraph (a)(4) of this section by informing each participant 
that the plan may not require authorization or referral for obstetrical 
or gynecological care by a participating health care professional who 
specializes in obstetrics or gynecology. The plan or issuer may require 
such a professional to agree to otherwise adhere to the plan's or 
issuer's policies and procedures, including procedures regarding 
referrals and obtaining prior authorization and providing services 
pursuant to a treatment plan (if any) approved by the plan or issuer. 
For purposes of this paragraph (a)(3), a health care professional who 
specializes in obstetrics or gynecology is any individual (including a 
person other than a physician) who is authorized under applicable State 
law to provide obstetrical or gynecological care.
    (B) Obstetrical and gynecological care. A group health plan or 
health insurance issuer described in paragraph (a)(3)(ii) of this 
section must treat the provision of obstetrical and gynecological care, 
and the ordering of related obstetrical and gynecological items and 
services, pursuant to the direct access described under paragraph 
(a)(3)(i)(A) of this section, by a participating health care 
professional who specializes in obstetrics or gynecology as the 
authorization of the primary care provider.
    (ii) Application of paragraph. A group health plan, or a health 
insurance issuer offering group health insurance coverage, is described 
in this paragraph (a)(3) if the plan or issuer--
    (A) Provides coverage for obstetrical or gynecological care; and
    (B) Requires the designation by a participant or beneficiary of a 
participating primary care provider.
    (iii) Construction. Nothing in paragraph (a)(3)(i) of this section 
is to be construed to--
    (A) Waive any exclusions of coverage under the terms and conditions 
of the plan or health insurance coverage with respect to coverage of 
obstetrical or gynecological care; or
    (B) Preclude the group health plan or health insurance issuer 
involved from requiring that the obstetrical or gynecological provider 
notify the primary care health care professional or the plan or issuer 
of treatment decisions.
    (iv) Examples. The rules of this paragraph (a)(3) are illustrated by 
the following examples:

    Example 1. (i) Facts. A group health plan requires each participant 
to designate a physician to serve as the primary care provider for the 
participant and the participant's family. Participant A, a female, 
requests a gynecological exam with Physician B, an in-network physician 
specializing in gynecological care. The group health plan requires prior 
authorization from A's designated primary care provider for the 
gynecological exam.
    (ii) Conclusion. In this Example 1, the group health plan has 
violated the requirements of this paragraph (a)(3) because the plan 
requires prior authorization from A's primary care provider prior to 
obtaining gynecological services.
    Example 2. (i) Facts. Same facts as Example 1 except that A seeks 
gynecological services from C, an out-of-network provider.
    (ii) Conclusion. In this Example 2, the group health plan has not 
violated the requirements of this paragraph (a)(3) by requiring prior 
authorization because C is not a participating health care provider.
    Example 3. (i) Facts. Same facts as Example 1 except that the group 
health plan only requires B to inform A's designated primary care 
physician of treatment decisions.
    (ii) Conclusion. In this Example 3, the group health plan has not 
violated the requirements of this paragraph (a)(3) because A has direct 
access to B without prior authorization. The fact that the group health 
plan requires notification of treatment decisions to

[[Page 618]]

the designated primary care physician does not violate this paragraph 
(a)(3).
    Example 4. (i) Facts. A group health plan requires each participant 
to designate a physician to serve as the primary care provider for the 
participant and the participant's family. The group health plan requires 
prior authorization before providing benefits for uterine fibroid 
embolization.
    (ii) Conclusion. In this Example 4, the plan requirement for prior 
authorization before providing benefits for uterine fibroid embolization 
does not violate the requirements of this paragraph (a)(3) because, 
though the prior authorization requirement applies to obstetrical 
services, it does not restrict access to any providers specializing in 
obstetrics or gynecology.

    (4) Notice of right to designate a primary care provider--(i) In 
general. If a group health plan or health insurance issuer requires the 
designation by a participant or beneficiary of a primary care provider, 
the plan or issuer must provide a notice informing each participant of 
the terms of the plan or health insurance coverage regarding designation 
of a primary care provider and of the rights--
    (A) Under paragraph (a)(1)(i) of this section, that any 
participating primary care provider who is available to accept the 
participant or beneficiary can be designated;
    (B) Under paragraph (a)(2)(i) of this section, with respect to a 
child, that any participating physician who specializes in pediatrics 
can be designated as the primary care provider; and
    (C) Under paragraph (a)(3)(i) of this section, that the plan may not 
require authorization or referral for obstetrical or gynecological care 
by a participating health care professional who specializes in 
obstetrics or gynecology.
    (ii) Timing. The notice described in paragraph (a)(4)(i) of this 
section must be included whenever the plan or issuer provides a 
participant with a summary plan description or other similar description 
of benefits under the plan or health insurance coverage.
    (iii) Model language. The following model language can be used to 
satisfy the notice requirement described in paragraph (a)(4)(i) of this 
section:
    (A) For plans and issuers that require or allow for the designation 
of primary care providers by participants or beneficiaries, insert:

    [Name of group health plan or health insurance issuer] generally 
[requires/allows] the designation of a primary care provider. You have 
the right to designate any primary care provider who participates in our 
network and who is available to accept you or your family members. [If 
the plan or health insurance coverage designates a primary care provider 
automatically, insert: Until you make this designation, [name of group 
health plan or health insurance issuer] designates one for you.] For 
information on how to select a primary care provider, and for a list of 
the participating primary care providers, contact the [plan 
administrator or issuer] at [insert contact information].

    (B) For plans and issuers that require or allow for the designation 
of a primary care provider for a child, add:
    For children, you may designate a pediatrician as the primary care 
provider.
    (C) For plans and issuers that provide coverage for obstetric or 
gynecological care and require the designation by a participant or 
beneficiary of a primary care provider, add:

    You do not need prior authorization from [name of group health plan 
or issuer] or from any other person (including a primary care provider) 
in order to obtain access to obstetrical or gynecological care from a 
health care professional in our network who specializes in obstetrics or 
gynecology. The health care professional, however, may be required to 
comply with certain procedures, including obtaining prior authorization 
for certain services, following a pre-approved treatment plan, or 
procedures for making referrals. For a list of participating health care 
professionals who specialize in obstetrics or gynecology, contact the 
[plan administrator or issuer] at [insert contact information].

    (b) Coverage of emergency services--(1) Scope. If a group health 
plan, or a health insurance issuer offering group health insurance 
coverage, provides any benefits with respect to services in an emergency 
department of a hospital, the plan or issuer must cover emergency 
services (as defined in paragraph (b)(4)(ii) of this section) consistent 
with the rules of this paragraph (b).
    (2) General rules. A plan or issuer subject to the requirements of 
this paragraph (b) must provide coverage for emergency services in the 
following manner--
    (i) Without the need for any prior authorization determination, even 
if the

[[Page 619]]

emergency services are provided on an out-of-network basis;
    (ii) Without regard to whether the health care provider furnishing 
the emergency services is a participating network provider with respect 
to the services;
    (iii) If the emergency services are provided out of network, without 
imposing any administrative requirement or limitation on coverage that 
is more restrictive than the requirements or limitations that apply to 
emergency services received from in-network providers;
    (iv) If the emergency services are provided out of network, by 
complying with the cost-sharing requirements of paragraph (b)(3) of this 
section; and
    (v) Without regard to any other term or condition of the coverage, 
other than--
    (A) The exclusion of or coordination of benefits;
    (B) An affiliation or waiting period permitted under part 7 of 
ERISA, part A of title XXVII of the PHS Act, or chapter 100 of the 
Internal Revenue Code; or
    (C) Applicable cost sharing.
    (3) Cost-sharing requirements--(i) Copayments and coinsurance. Any 
cost-sharing requirement expressed as a copayment amount or coinsurance 
rate imposed with respect to a participant or beneficiary for out-of-
network emergency services cannot exceed the cost-sharing requirement 
imposed with respect to a participant or beneficiary if the services 
were provided in-network. However, a participant or beneficiary may be 
required to pay, in addition to the in-network cost sharing, the excess 
of the amount the out-of-network provider charges over the amount the 
plan or issuer is required to pay under this paragraph (b)(3)(i). A 
group health plan or health insurance issuer complies with the 
requirements of this paragraph (b)(3) if it provides benefits with 
respect to an emergency service in an amount at least equal to the 
greatest of the three amounts specified in paragraphs (b)(3)(i)(A), (B), 
and (C) of this section (which are adjusted for in-network cost-sharing 
requirements).
    (A) The amount negotiated with in-network providers for the 
emergency service furnished, excluding any in-network copayment or 
coinsurance imposed with respect to the participant or beneficiary. If 
there is more than one amount negotiated with in-network providers for 
the emergency service, the amount described under this paragraph 
(b)(3)(i)(A) is the median of these amounts, excluding any in-network 
copayment or coinsurance imposed with respect to the participant or 
beneficiary. In determining the median described in the preceding 
sentence, the amount negotiated with each in-network provider is treated 
as a separate amount (even if the same amount is paid to more than one 
provider). If there is no per-service amount negotiated with in-network 
providers (such as under a capitation or other similar payment 
arrangement), the amount under this paragraph (b)(3)(i)(A) is 
disregarded.
    (B) The amount for the emergency service calculated using the same 
method the plan generally uses to determine payments for out-of-network 
services (such as the usual, customary, and reasonable amount), 
excluding any in-network copayment or coinsurance imposed with respect 
to the participant or beneficiary. The amount in this paragraph 
(b)(3)(i)(B) is determined without reduction for out-of-network cost 
sharing that generally applies under the plan or health insurance 
coverage with respect to out-of-network services. Thus, for example, if 
a plan generally pays 70 percent of the usual, customary, and reasonable 
amount for out-of-network services, the amount in this paragraph 
(b)(3)(i)(B) for an emergency service is the total (that is, 100 
percent) of the usual, customary, and reasonable amount for the service, 
not reduced by the 30 percent coinsurance that would generally apply to 
out-of-network services (but reduced by the in-network copayment or 
coinsurance that the individual would be responsible for if the 
emergency service had been provided in-network).
    (C) The amount that would be paid under Medicare (part A or part B 
of title XVIII of the Social Security Act, 42 U.S.C. 1395 et seq.) for 
the emergency service, excluding any in-network copayment or coinsurance 
imposed with respect to the participant or beneficiary.

[[Page 620]]

    (ii) Other cost sharing. Any cost-sharing requirement other than a 
copayment or coinsurance requirement (such as a deductible or out-of-
pocket maximum) may be imposed with respect to emergency services 
provided out of network if the cost-sharing requirement generally 
applies to out-of-network benefits. A deductible may be imposed with 
respect to out-of-network emergency services only as part of a 
deductible that generally applies to out-of-network benefits. If an out-
of-pocket maximum generally applies to out-of-network benefits, that 
out-of-pocket maximum must apply to out-of-network emergency services.
    (iii) Special rules regarding out-of-network minimum payment 
standards--(A) The minimum payment standards set forth under paragraph 
(b)(3) of this section do not apply in cases where State law prohibits a 
participant or beneficiary from being required to pay, in addition to 
the in-network cost sharing, the excess of the amount the out-of-network 
provider charges over the amount the plan or issuer provides in 
benefits, or where a group health plan or health insurance issuer is 
contractually responsible for such amounts. Nonetheless, in such cases, 
a plan or issuer may not impose any copayment or coinsurance requirement 
for out-of-network emergency services that is higher than the copayment 
or coinsurance requirement that would apply if the services were 
provided in network.
    (B) A group health plan and health insurance issuer must provide a 
participant or beneficiary adequate and prominent notice of their lack 
of financial responsibility with respect to the amounts described under 
this paragraph (b)(3)(iii), to prevent inadvertent payment by the 
participant or beneficiary.
    (iv) Examples. The rules of this paragraph (b)(3) are illustrated by 
the following examples. In all of these examples, the group health plan 
covers benefits with respect to emergency services.

    Example 1. (i) Facts. A group health plan imposes a 25% coinsurance 
responsibility on individuals who are furnished emergency services, 
whether provided in network or out of network. If a covered individual 
notifies the plan within two business days after the day an individual 
receives treatment in an emergency department, the plan reduces the 
coinsurance rate to 15%.
    (ii) Conclusion. In this Example 1, the requirement to notify the 
plan in order to receive a reduction in the coinsurance rate does not 
violate the requirement that the plan cover emergency services without 
the need for any prior authorization determination. This is the result 
even if the plan required that it be notified before or at the time of 
receiving services at the emergency department in order to receive a 
reduction in the coinsurance rate.
    Example 2. (i) Facts. A group health plan imposes a $60 copayment on 
emergency services without preauthorization, whether provided in network 
or out of network. If emergency services are preauthorized, the plan 
waives the copayment, even if it later determines the medical condition 
was not an emergency medical condition.
    (ii) Conclusion. In this Example 2, by requiring an individual to 
pay more for emergency services if the individual does not obtain prior 
authorization, the plan violates the requirement that the plan cover 
emergency services without the need for any prior authorization 
determination. (By contrast, if, to have the copayment waived, the plan 
merely required that it be notified rather than a prior authorization, 
then the plan would not violate the requirement that the plan cover 
emergency services without the need for any prior authorization 
determination.)
    Example 3. (i) Facts. A group health plan covers individuals who 
receive emergency services with respect to an emergency medical 
condition from an out-of-network provider. The plan has agreements with 
in-network providers with respect to a certain emergency service. Each 
provider has agreed to provide the service for a certain amount. Among 
all the providers for the service: One has agreed to accept $85, two 
have agreed to accept $100, two have agreed to accept $110, three have 
agreed to accept $120, and one has agreed to accept $150. Under the 
agreement, the plan agrees to pay the providers 80% of the agreed 
amount, with the individual receiving the service responsible for the 
remaining 20%.
    (ii) Conclusion. In this Example 3, the values taken into account in 
determining the median are $85, $100, $100, $110, $110, $120, $120, 
$120, and $150. Therefore, the median amount among those agreed to for 
the emergency service is $110, and the amount under paragraph 
(b)(3)(i)(A) of this section is 80% of $110 ($88).
    Example 4. (i) Facts. Same facts as Example 3. Subsequently, the 
plan adds another provider to its network, who has agreed to accept $150 
for the emergency service.
    (ii) Conclusion. In this Example 4, the median amount among those 
agreed to for the emergency service is $115. (Because there is

[[Page 621]]

no one middle amount, the median is the average of the two middle 
amounts, $110 and $120.) Accordingly, the amount under paragraph 
(b)(3)(i)(A) of this section is 80% of $115 ($92).
    Example 5. (i) Facts. Same facts as Example 4. An individual covered 
by the plan receives the emergency service from an out-of-network 
provider, who charges $125 for the service. With respect to services 
provided by out-of-network providers generally, the plan reimburses 
covered individuals 50% of the reasonable amount charged by the provider 
for medical services. For this purpose, the reasonable amount for any 
service is based on information on charges by all providers collected by 
a third party, on a zip code by zip code basis, with the plan treating 
charges at a specified percentile as reasonable. For the emergency 
service received by the individual, the reasonable amount calculated 
using this method is $116. The amount that would be paid under Medicare 
for the emergency service, excluding any copayment or coinsurance for 
the service, is $80.
    (ii) Conclusion. In this Example 5, the plan is responsible for 
paying $92.80, 80% of $116. The median amount among those agreed to for 
the emergency service is $115 and the amount the plan would pay is $92 
(80% of $115); the amount calculated using the same method the plan uses 
to determine payments for out-of-network services--$116--excluding the 
in-network 20% coinsurance, is $92.80; and the Medicare payment is $80. 
Thus, the greatest amount is $92.80. The individual is responsible for 
the remaining $32.20 charged by the out-of-network provider.
    Example 6. (i) Facts. Same facts as Example 5. The group health plan 
generally imposes a $250 deductible for in-network health care. With 
respect to all health care provided by out-of-network providers, the 
plan imposes a $500 deductible. (Covered in-network claims are credited 
against the deductible.) The individual has incurred and submitted $260 
of covered claims prior to receiving the emergency service out of 
network.
    (ii) Conclusion. In this Example 6, the plan is not responsible for 
paying anything with respect to the emergency service furnished by the 
out-of-network provider because the covered individual has not satisfied 
the higher deductible that applies generally to all health care provided 
out of network. However, the amount the individual is required to pay is 
credited against the deductible.

    (4) Definitions. The definitions in this paragraph (b)(4) govern in 
applying the provisions of this paragraph (b).
    (i) Emergency medical condition. The term emergency medical 
condition means a medical condition manifesting itself by acute symptoms 
of sufficient severity (including severe pain) so that a prudent 
layperson, who possesses an average knowledge of health and medicine, 
could reasonably expect the absence of immediate medical attention to 
result in a condition described in clause (i), (ii), or (iii) of section 
1867(e)(1)(A) of the Social Security Act (42 U.S.C. 1395dd(e)(1)(A)). 
(In that provision of the Social Security Act, clause (i) refers to 
placing the health of the individual (or, with respect to a pregnant 
woman, the health of the woman or her unborn child) in serious jeopardy; 
clause (ii) refers to serious impairment to bodily functions; and clause 
(iii) refers to serious dysfunction of any bodily organ or part.)
    (ii) Emergency services. The term emergency services means, with 
respect to an emergency medical condition--
    (A) A medical screening examination (as required under section 1867 
of the Social Security Act, 42 U.S.C. 1395dd) that is within the 
capability of the emergency department of a hospital, including 
ancillary services routinely available to the emergency department to 
evaluate such emergency medical condition, and
    (B) Such further medical examination and treatment, to the extent 
they are within the capabilities of the staff and facilities available 
at the hospital, as are required under section 1867 of the Social 
Security Act (42 U.S.C. 1395dd) to stabilize the patient.
    (iii) Stabilize. The term to stabilize, with respect to an emergency 
medical condition (as defined in paragraph (b)(4)(i) of this section) 
has the meaning given in section 1867(e)(3) of the Social Security Act 
(42 U.S.C. 1395dd(e)(3)).
    (c) Applicability date. The provisions of this section are 
applicable to group health plans and health insurance issuers for plan 
years beginning on or after January 1, 2017. Until the applicability 
date for this regulation, plans and issuers are required to continue to 
comply with the interim final regulations promulgated by the Department 
of Labor at 29 CFR part 2590, contained in the 29 CFR, parts 1927 to 
end, edition revised as of July 1, 2015.

[T.D. 9744, 80 FR 72252, Nov. 18, 2015]

[[Page 622]]



Sec.  54.9831-1  Special rules relating to group health plans.

    (a) Group health plan--(1) Defined. A group health plan means a plan 
(including a self-insured plan) of, or contributed to by, an employer 
(including a self-employed person) or employee organization to provide 
health care (directly or otherwise) to the employees, former employees, 
the employer, others associated or formerly associated with the employer 
in a business relationship, or their families.
    (2) Determination of number of plans. [Reserved]
    (b) General exception for certain small group health plans. (1) 
Subject to paragraph (b)(2) of this section, the requirements of 
Sec. Sec.  54.9801-1 through 54.9801-6, 54.9802-1, 54.9802-2, 54.9811-1, 
54.9812-1, 54.9815-1251 through 54.9815-2719A, and 54.9833-1 do not 
apply to any group health plan for any plan year if, on the first day of 
the plan year, the plan has fewer than two participants who are current 
employees.
    (2) The exception of paragraph (b)(1) of this section does not apply 
with respect to the following requirements:
    (i) Section 54.9802-1(b), as such paragraph applies with respect to 
genetic information as a health factor.
    (ii) Section 54.9802-1(c), as such paragraph applies with respect to 
genetic information as a health factor.
    (iii) Section 54.9802-1(e), as such paragraph applies with respect 
to genetic information as a health factor.
    (iv) Section 54.9802-3T(b).
    (v) Section 54.9802-3T(c).
    (vi) Section 54.9802-3T(d).
    (vii) Section 54.9802-3T(e).
    (c) Excepted benefits--(1) In general. The requirements of 
Sec. Sec.  54.9801-1 through 54.9801-6, 54.9802-1, 54.9802-2, 54.9811-1, 
54.9812-1, 54.9815-1251 through 54.9815-2719A, and 54.9833-1 do not 
apply to any group health plan in relation to its provision of the 
benefits described in paragraph (c)(2), (3), (4), or (5) of this section 
(or any combination of these benefits).
    (2) Benefits excepted in all circumstances. The following benefits 
are excepted in all circumstances--
    (i) Coverage only for accident (including accidental death and 
dismemberment);
    (ii) Disability income coverage;
    (iii) Liability insurance, including general liability insurance and 
automobile liability insurance;
    (iv) Coverage issued as a supplement to liability insurance;
    (v) Workers' compensation or similar coverage;
    (vi) Automobile medical payment insurance;
    (vii) Credit-only insurance (for example, mortgage insurance);
    (viii) Coverage for on-site medical clinics; and
    (ix) Travel insurance, within the meaning of Sec.  54.9801-2.
    (3) Limited excepted benefits--(i) In general. Limited-scope dental 
benefits, limited-scope vision benefits, or long-term care benefits are 
excepted if they are provided under a separate policy, certificate, or 
contract of insurance, or are otherwise not an integral part of a group 
health plan as described in paragraph (c)(3)(ii) of this section. In 
addition, benefits provided under a health flexible spending arrangement 
(health FSA) are excepted benefits if they satisfy the requirements of 
paragraph (c)(3)(v) of this section; benefits provided under an employee 
assistance program are excepted benefits if they satisfy the 
requirements of paragraph (c)(3)(vi) of this section; benefits provided 
under limited wraparound coverage are excepted benefits if they satisfy 
the requirements of paragraph (c)(3)(vii) of this section; and benefits 
provided under a health reimbursement arrangement or other account-based 
group health plan, other than a health FSA, are excepted benefits if 
they satisfy the requirements of paragraph (c)(3)(viii) of this section.
    (ii) Not an integral part of a group health plan. For purposes of 
this paragraph (c)(3), benefits are not an integral part of a group 
health plan (whether the benefits are provided through the same plan, a 
separate plan, or as the only plan offered to participants) if either 
paragraph (c)(3)(ii)(A) or (B) are satisfied.
    (A) Participants may decline coverage. For example, a participant 
may decline coverage if the participant can opt out of the coverage upon 
request, whether or not there is a participant contribution required for 
the coverage.

[[Page 623]]

    (B) Claims for the benefits are administered under a contract 
separate from claims administration for any other benefits under the 
plan.
    (iii) Limited scope--(A) Dental benefits. Limited scope dental 
benefits are benefits substantially all of which are for treatment of 
the mouth (including any organ or structure within the mouth).
    (B) Vision benefits. Limited scope vision benefits are benefits 
substantially all of which are for treatment of the eye.
    (iv) Long-term care. Long-term care benefits are benefits that are 
either--
    (A) Subject to State long-term care insurance laws;
    (B) For qualified long-term care services, as defined in section 
7702B(c)(1), or provided under a qualified long-term care insurance 
contract, as defined in section 7702B(b); or
    (C) Based on cognitive impairment or a loss of functional capacity 
that is expected to be chronic.
    (v) Health flexible spending arrangements. Benefits provided under a 
health flexible spending arrangement (as defined in section 106(c)(2)) 
are excepted for a class of participants only if they satisfy the 
following two requirements--
    (A) Other group health plan coverage, not limited to excepted 
benefits, is made available for the year to the class of participants by 
reason of their employment; and
    (B) The arrangement is structured so that the maximum benefit 
payable to any participant in the class for a year cannot exceed two 
times the participant's salary reduction election under the arrangement 
for the year (or, if greater, cannot exceed $500 plus the amount of the 
participant's salary reduction election). For this purpose, any amount 
that an employee can elect to receive as taxable income but elects to 
apply to the health flexible spending arrangement is considered a salary 
reduction election (regardless of whether the amount is characterized as 
salary or as a credit under the arrangement).
    (vi) Employee assistance programs. Benefits provided under employee 
assistance programs are excepted if they satisfy all of the requirements 
of this paragraph (c)(3)(vi).
    (A) The program does not provide significant benefits in the nature 
of medical care. For this purpose, the amount, scope and duration of 
covered services are taken into account.
    (B) The benefits under the employee assistance program are not 
coordinated with benefits under another group health plan, as follows:
    (1) Participants in the other group health plan must not be required 
to use and exhaust benefits under the employee assistance program 
(making the employee assistance program a gatekeeper) before an 
individual is eligible for benefits under the other group health plan; 
and
    (2) Participant eligibility for benefits under the employee 
assistance program must not be dependent on participation in another 
group health plan.
    (C) No employee premiums or contributions are required as a 
condition of participation in the employee assistance program.
    (D) There is no cost sharing under the employee assistance program.
    (vii) Limited wraparound coverage. Limited benefits provided through 
a group health plan that wrap around eligible individual health 
insurance (or Basic Health Plan coverage described in section 1331 of 
the Patient Protection and Affordable Care Act); or that wrap around 
coverage under a Multi-State Plan described in section 1334 of the 
Patient Protection and Affordable Care Act, collectively referred to as 
``limited wraparound coverage,'' are excepted benefits if all of the 
following conditions are satisfied. For this purpose, eligible 
individual health insurance is individual health insurance coverage that 
is not a grandfathered health plan (as described in section 1251 of the 
Patient Protection and Affordable Care Act and 29 CFR 2590.715-1251), 
not a transitional individual health insurance plan (as described in the 
March 5, 2014 Insurance Standards Bulletin Series--Extension of 
Transitional Policy through October 1, 2016), and does not consist 
solely of excepted benefits (as defined in paragraph (c) of this 
section).
    (A) Covers additional benefits. The limited wraparound coverage 
provides meaningful benefits beyond coverage of cost sharing under 
either the eligible

[[Page 624]]

individual health insurance, Basic Health Program coverage, or Multi-
State Plan coverage. The limited wraparound coverage must not provide 
benefits only under a coordination-of-benefits provision and must not 
consist of an account-based reimbursement arrangement.
    (B) Limited in amount. The annual cost of coverage per employee (and 
any covered dependents, as defined in Sec.  54.9801-2) under the limited 
wraparound coverage does not exceed the greater of the amount determined 
under either paragraph (c)(3)(vii)(B)(1) or (2) of this section. Making 
a determination regarding the annual cost of coverage per employee must 
occur on an aggregate basis relying on sound actuarial principles.
    (1) The maximum permitted annual salary reduction contribution 
toward health flexible spending arrangements, indexed in the manner 
prescribed under section 125(i)(2). For this purpose, the cost of 
coverage under the limited wraparound includes both employer and 
employee contributions towards coverage and is determined in the same 
manner as the applicable premium is calculated under a COBRA 
continuation provision.
    (2) Fifteen percent of the cost of coverage under the primary plan. 
For this purpose, the cost of coverage under the primary plan and under 
the limited wraparound coverage includes both employer and employee 
contributions towards the coverage and each is determined in the same 
manner as the applicable premium is calculated under a COBRA 
continuation provision.
    (C) Nondiscrimination. All of the conditions of this paragraph 
(c)(3)(vii)(C) are satisfied.
    (1) No preexisting condition exclusion. The limited wraparound 
coverage does not impose any preexisting condition exclusion, consistent 
with the requirements of section 2704 of the PHS Act (incorporated by 
reference into section 9815) and 29 CFR 2590.715-2704.
    (2) No discrimination based on health status. The limited wraparound 
coverage does not discriminate against individuals in eligibility, 
benefits, or premiums based on any health factor of an individual (or 
any dependent of the individual, as defined in Sec.  54.9801-2), 
consistent with the requirements of section 9802 and section 2705 of the 
PHS Act (incorporated by reference into section 9815).
    (3) No discrimination in favor of highly compensated individuals. 
Neither the limited wraparound coverage, nor any other group health plan 
coverage offered by the plan sponsor, fails to comply with section 2716 
of the PHS Act (incorporated by reference into section 9815) or fails to 
be excludible from income for any individual due to the application of 
section 105(h) (as applicable).
    (D) Plan eligibility requirements. Individuals eligible for the 
wraparound coverage are not enrolled in excepted benefit coverage under 
paragraph (c)(3)(v) of this section (relating to health FSAs). In 
addition, the conditions set forth in either paragraph (c)(3)(vii)(D)(1) 
or (2) of this section are met.
    (1) Limited wraparound coverage that wraps around eligible 
individual insurance for persons who are not full-time employees. 
Coverage that wraps around eligible individual health insurance (or that 
wraps around Basic Health Plan coverage) must satisfy all of the 
conditions of this paragraph (c)(3)(vii)(D)(1).
    (i) For each year for which limited wraparound coverage is offered, 
the employer that is the sponsor of the plan offering limited wraparound 
coverage, or the employer participating in a plan offering limited 
wraparound coverage, offers to its full-time employees coverage that is 
substantially similar to coverage that the employer would need to offer 
to its full-time employees in order not to be subject to a potential 
assessable payment under the employer shared responsibility provisions 
of section 4980H(a), if such provisions were applicable; provides 
minimum value (as defined in section 36B(c)(2)(C)(ii)); and is 
reasonably expected to be affordable (applying the safe harbor rules for 
determining affordability set forth in Sec.  54.4980H-5(e)(2)). If a 
plan or issuer providing limited wraparound coverage takes reasonable 
steps to ensure that employers disclose to the plan or issuer necessary 
information regarding their

[[Page 625]]

coverage offered and affordability information, the plan or issuer is 
permitted to rely on reasonable representations by employers regarding 
this information, unless the plan or issuer has specific knowledge to 
the contrary. In the event that the employer that is the sponsor of the 
plan offering wraparound coverage, or the employer participating in a 
plan offering wraparound coverage, has no full-time employees for any 
plan year limited wraparound coverage is offered, the requirement of 
this paragraph (c)(3)(vii)(D)(1)(i) is considered satisfied.
    (ii) Eligibility for the limited wraparound coverage is limited to 
employees who are reasonably determined at the time of enrollment to not 
be full-time employees (and their dependents, as defined in Sec.  
54.9801-2), or who are retirees (and their dependents, as defined in 
Sec.  54.9801-2). For this purpose, full-time employees are employees 
who are reasonably expected to work at least an average of 30 hours per 
week.
    (iii) Other group health plan coverage, not limited to excepted 
benefits, is offered to the individuals eligible for the limited 
wraparound coverage. Only individuals eligible for the other group 
health plan coverage are eligible for the limited wraparound coverage.
    (2) Limited coverage that wraps around Multi-State Plan coverage. 
Coverage that wraps around Multi-State Plan coverage must satisfy all of 
the conditions of this paragraph (c)(3)(vii)(D)(2). For this purpose, 
the term ``full-time employee'' means a ``full-time employee'' as 
defined in Sec.  54.4980H-1(a)(21) who is not in a limited non-
assessment period for certain employees (as defined in Sec.  54.4980H-
1(a)(26)). Moreover, if a plan or issuer providing limited wraparound 
coverage takes reasonable steps to ensure that employers disclose to the 
plan or issuer necessary information regarding their coverage offered 
and contribution levels for 2013 or 2014 (as applicable), and for any 
year in which limited wraparound coverage is offered, the plan or issuer 
is permitted to rely on reasonable representations by employers 
regarding this information, unless the plan or issuer has specific 
knowledge to the contrary. Consistent with the reporting and evaluation 
criteria of paragraph (c)(3)(vii)(E) of this section, the Office of 
Personnel Management may verify that plans and issuers have reasonable 
mechanisms in place to ensure that contributing employers meet these 
standards.
    (i) The limited wraparound coverage is reviewed and approved by the 
Office of Personnel Management, consistent with the reporting and 
evaluation criteria of paragraph (c)(3)(vii)(E) of this section, to 
provide benefits in conjunction with coverage under a Multi-State Plan 
authorized under section 1334 of the Patient Protection and Affordable 
Care Act. The Office of Personnel Management may revoke approval if it 
determines that continued approval is inconsistent with the reporting 
and evaluation criteria of paragraph (c)(3)(vii)(E) of this section.
    (ii) The employer offered coverage in the plan year that began in 
either 2013 or 2014 that is substantially similar to coverage that the 
employer would need to have offered to its full-time employees in order 
to not be subject to an assessable payment under the employer shared 
responsibility provisions of section 4980H(a), if such provisions had 
been applicable. In the event that a plan that offered coverage in 2013 
or 2014 has no full-time employees for any plan year limited wraparound 
coverage is offered, the requirement of this paragraph 
(c)(3)(vii)(D)(2)(ii) is considered satisfied.
    (iii) In the plan year that began in either 2013 or 2014, the 
employer offered coverage to a substantial portion of full-time 
employees that provided minimum value (as defined in section 
36B(c)(2)(C)(ii)) and was affordable (applying the safe harbor rules for 
determining affordability set forth in Sec.  54.4980H-5(e)(2)). In the 
event that the plan that offered coverage in 2013 or 2014 has no full-
time employees for any plan year limited wraparound coverage is offered, 
the requirement of this paragraph (c)(3)(vii)(D)(2)(iii) is considered 
satisfied.
    (iv) For the duration of the pilot program, as described in 
paragraph (c)(3)(vii)(F) of this section, the employer's annual 
aggregate contributions for both primary and limited wraparound coverage 
are substantially

[[Page 626]]

the same as the employer's total contributions for coverage offered to 
full-time employees in 2013 or 2014.
    (E) Reporting--(1) Reporting by group health plans and group health 
insurance issuers. A self-insured group health plan, or a health 
insurance issuer, offering or proposing to offer limited wraparound 
coverage in connection with Multi-State Plan coverage pursuant to 
paragraph (c)(3)(vii)(D)(2) of this section reports to the Office of 
Personnel Management (OPM), in a form and manner specified in guidance, 
information OPM reasonably requires to determine whether the plan or 
issuer qualifies to offer such coverage or complies with the applicable 
requirements of this section.
    (2) Reporting by group health plan sponsors. The plan sponsor of a 
group health plan offering limited wraparound coverage under paragraph 
(c)(3)(vii) of this section, must report to the Department of Health and 
Human Services (HHS), in a form and manner specified in guidance, 
information HHS reasonably requires.
    (F) Pilot program with sunset. The provisions of paragraph 
(c)(3)(vii) of this section apply to limited wraparound coverage that is 
first offered no earlier than January 1, 2016 and no later than December 
31, 2018 and that ends no later than on the later of:
    (1) The date that is three years after the date limited wraparound 
coverage is first offered; or
    (2) The date on which the last collective bargaining agreement 
relating to the plan terminates after the date limited wraparound 
coverage is first offered (determined without regard to any extension 
agreed to after the date limited wraparound coverage is first offered).
    (viii) Health reimbursement arrangements (HRAs) and other account-
based group health plans. Benefits provided under an HRA or other 
account-based group health plan, other than a health FSA, are excepted 
if they satisfy all of the requirements of this paragraph (c)(3)(viii). 
See paragraph (c)(3)(v) of this section for the circumstances in which 
benefits provided under a health FSA are excepted benefits. For purposes 
of this paragraph (c)(3)(viii), the term ``HRA or other account-based 
group health plan'' has the same meaning as ``account-based group health 
plan'' set forth in Sec.  54.9815-2711(d)(6)(i) of this part, except 
that the term does not include health FSAs. For ease of reference, an 
HRA or other account-based group health plan that satisfies the 
requirements of this paragraph (c)(3)(viii) is referred to as an 
excepted benefit HRA.
    (A) Otherwise not an integral part of the plan. Other group health 
plan coverage that is not limited to excepted benefits and that is not 
an HRA or other account-based group health plan must be made available 
by the same plan sponsor for the plan year to the participant.
    (B) Benefits are limited in amount--(1) Limit on annual amounts made 
available. The amounts newly made available for each plan year under the 
HRA or other account-based group health plan do not exceed $1,800. In 
the case of any plan year beginning after December 31, 2020, the dollar 
amount in the preceding sentence shall be increased by an amount equal 
to such dollar amount multiplied by the cost-of-living adjustment. The 
cost of living adjustment is the percentage (if any) by which the C-CPI-
U for the preceding calendar year exceeds the C-CPI-U for calendar year 
2019. The term ``C-CPI-U'' means the Chained Consumer Price Index for 
All Urban Consumers as published by the Bureau of Labor Statistics of 
the Department of Labor. The C-CPI-U for any calendar year is the 
average of the C-CPI-U as of the close of the 12-month period ending on 
March 31 of such calendar year. The values of the C-CPI-U used for any 
calendar year shall be the latest values so published as of the date on 
which the Bureau publishes the initial value of the C-CPI-U for the 
month of March for the preceding calendar year. Any such increase that 
is not a multiple of $50 shall be rounded down to the next lowest 
multiple of $50. The Department of the Treasury and the Internal Revenue 
Service will publish the adjusted amount for plan years beginning in any 
calendar year no later than June 1 of the preceding calendar year.
    (2) Carryover amounts. If the terms of the HRA or other account-
based group health plan allow unused amounts to be made available to 
participants and

[[Page 627]]

dependents in later plan years, such carryover amounts are disregarded 
for purposes of determining whether benefits are limited in amount.
    (3) Multiple HRAs or other account-based group health plans. If the 
plan sponsor provides more than one HRA or other account-based group 
health plan to the participant for the same time period, the amounts 
made available under all such plans are aggregated to determine whether 
the benefits are limited in amount, except that HRAs or other account-
based group health plans that reimburse only excepted benefits are not 
included in determining whether the benefits are limited in amount.
    (C) Prohibition on reimbursement of certain health insurance 
premiums. The HRA or other account-based group health plan must not 
reimburse premiums for individual health insurance coverage, group 
health plan coverage (other than COBRA continuation coverage or other 
continuation coverage), or Medicare Part A, B, C, or D, except that the 
HRA or other account-based group health plan may reimburse premiums for 
such coverage that consists solely of excepted benefits. See also, 
paragraph (c)(3)(viii)(F) of this section.
    (D) Uniform availability. The HRA or other account-based group 
health plan is made available under the same terms to all similarly 
situated individuals, as defined in Sec.  54.9802-1(d) of this part, 
regardless of any health factor (as described in Sec.  54.9802-1(a)).
    (E) Notice requirement. See 29 CFR 2520.102-3(j)(2) and (3) and 29 
CFR 2520.104b-2(a) for rules regarding the time, manner, and content for 
summary plan descriptions (including a description of conditions 
pertaining to eligibility to receive benefits; annual or lifetime caps 
or other limits on benefits under the plan; and a description or summary 
of the benefits) applicable to plans subject to Tile I of the Employee 
Retirement Income Security Act of 1974, as amended.
    (F) Special rule. The HRA or other account-based group health plan 
must not reimburse premiums for short-term, limited-duration insurance 
(as defined in Sec.  54.9801-2 of this part) if the conditions of this 
paragraph (c)(3)(viii)(F) are satisfied.
    (1) The HRA or other account-based group health plan is offered by a 
small employer (as defined in PHS Act section 2791(e)(4)).
    (2) The other group health plan coverage offered by the employer 
pursuant to paragraph (c)(3)(viii)(A) of this section is either fully-
insured or partially-insured.
    (3) The Secretary of Health and Human Services (HHS) makes a 
finding, in consultation with the Secretaries of Labor and the Treasury, 
that the reimbursement of premiums for short-term, limited-duration 
insurance by excepted benefit HRAs has caused significant harm to the 
small group market in the state that is the principal place of business 
of the small employer.
    (4) The finding by the Secretary of HHS is made after submission of 
a written recommendation by the applicable state authority of such 
state, in a form and manner specified by HHS. The written recommendation 
must include evidence that the reimbursement of premiums for short-term, 
limited-duration insurance by excepted benefit HRAs established by 
insured or partially-insured small employers in the state has caused 
significant harm to the state's small group market, including with 
respect to premiums.
    (5) The restriction shall be imposed or discontinued by publication 
by the Secretary of HHS of a notice in the Federal Register and shall 
apply only prospectively and with a reasonable time for plan sponsors to 
comply.
    (4) Noncoordinated benefits--(i) Excepted benefits that are not 
coordinated. Coverage for only a specified disease or illness (for 
example, cancer-only policies) or hospital indemnity or other fixed 
indemnity insurance is excepted only if it meets each of the conditions 
specified in paragraph (c)(4)(ii) of this section. To be hospital 
indemnity or other fixed indemnity insurance, the insurance must pay a 
fixed dollar amount per day (or per other period) of hospitalization or 
illness (for example, $100/day) regardless of the amount of expenses 
incurred.
    (ii) Conditions. Benefits are described in paragraph (c)(4)(i) of 
this section only if--

[[Page 628]]

    (A) The benefits are provided under a separate policy, certificate, 
or contract of insurance;
    (B) There is no coordination between the provision of the benefits 
and an exclusion of benefits under any group health plan maintained by 
the same plan sponsor; and
    (C) The benefits are paid with respect to an event without regard to 
whether benefits are provided with respect to the event under any group 
health plan maintained by the same plan sponsor.
    (iii) Example. The rules of this paragraph (c)(4) are illustrated by 
the following example:

    Example. (i) Facts. An employer sponsors a group health plan that 
provides coverage through an insurance policy. The policy provides 
benefits only for hospital stays at a fixed percentage of hospital 
expenses up to a maximum of $100 a day.
    (ii) Conclusion. In this Example, even though the benefits under the 
policy satisfy the conditions in paragraph (c)(4)(ii) of this section, 
because the policy pays a percentage of expenses incurred rather than a 
fixed dollar amount, the benefits under the policy are not excepted 
benefits under this paragraph (c)(4). This is the result even if, in 
practice, the policy pays the maximum of $100 for every day of 
hospitalization.

    (5) Supplemental benefits. (i) The following benefits are excepted 
only if they are provided under a separate policy, certificate, or 
contract of insurance--
    (A) Medicare supplemental health insurance (as defined under section 
1882(g)(1) of the Social Security Act; also known as Medigap or MedSupp 
insurance);
    (B) Coverage supplemental to the coverage provided under Chapter 55, 
title 10 of the United States Code (also known as TRICARE supplemental 
programs); and
    (C) Similar supplemental coverage provided to coverage under a group 
health plan. To be similar supplemental coverage, the coverage must be 
specifically designed to fill gaps in the primary coverage. The 
preceding sentence is satisfied if the coverage is designed to fill gaps 
in cost sharing in the primary coverage, such as coinsurance or 
deductibles, or the coverage is designed to provide benefits for items 
and services not covered by the primary coverage and that are not 
essential health benefits (as defined under section 1302(b) of the 
Patient Protection and Affordable Care Act) in the State where the 
coverage is issued, or the coverage is designed to both fill such gaps 
in cost sharing under, and cover such benefits not covered by, the 
primary coverage. Similar supplemental coverage does not include 
coverage that becomes secondary or supplemental only under a 
coordination-of-benefits provision.
    (ii) The rules of this paragraph (c)(5) are illustrated by the 
following example:

    Example. (i) Facts. An employer sponsors a group health plan that 
provides coverage for both active employees and retirees. The coverage 
for retirees supplements benefits provided by Medicare, but does not 
meet the requirements for a supplemental policy under section 1882(g)(1) 
of the Social Security Act.
    (ii) Conclusion. In this Example, the coverage provided to retirees 
does not meet the definition of supplemental excepted benefits under 
this paragraph (c)(5) because the coverage is not Medicare supplemental 
insurance as defined under section 1882(g)(1) of the Social Security 
Act, is not a TRICARE supplemental program, and is not supplemental to 
coverage provided under a group health plan.

    (d) Treatment of partnerships. For purposes of this part:
    (1) Treatment as a group health plan. (See 29 CFR 2590.732(d)(1) and 
45 CFR 146.145(d)(1), under which a plan providing medical care, 
maintained by a partnership, and usually not treated as an employee 
welfare benefit plan under ERISA is treated as a group health plan for 
purposes of Part 7 of Subtitle B of title I of ERISA and title XXVII of 
the PHS Act.)
    (2) Employment relationship. In the case of a group health plan, the 
term employer also includes the partnership in relation to any bona fide 
partner. In addition, the term employee also includes any bona fide 
partner. Whether or not an individual is a bona fide partner is 
determined based on all the relevant facts and circumstances, including 
whether the individual performs services on behalf of the partnership.
    (3) Participants of group health plans. In the case of a group 
health plan, the term participant also includes any individual described 
in paragraph (d)(3)(i) or (ii) of this section if the individual

[[Page 629]]

is, or may become, eligible to receive a benefit under the plan or the 
individual's beneficiaries may be eligible to receive any such benefit.
    (i) In connection with a group health plan maintained by a 
partnership, the individual is a partner in relation to the partnership.
    (ii) In connection with a group health plan maintained by a self-
employed individual (under which one or more employees are 
participants), the individual is the self-employed individual.
    (e) Determining the average number of employees. [Reserved]

[T.D. 9166, 69 FR 78746, Dec. 30, 2004; 70 FR 21146, Apr. 25, 2005, as 
amended by T.D. 9299, 71 FR 75057, Dec. 13, 2006; T.D. 9427, 73 FR 
62422, Oct. 20, 2008; T.D. 9464, 74 FR 51678, Oct. 7, 2009; T.D. 9656, 
79 FR 10308, Feb. 24, 2014; T.D. 9697, 79 FR 59135, Oct. 1, 2014; T.D. 
9714, 80 FR 14004, Mar. 18, 2015; T.D. 9791, 81 FR 75324, Oct. 31, 2016; 
T.D. 9867, 84 FR 28999, June 20, 2019]



Sec.  54.9833-1  Applicability dates.

    Sections 54.9801-1 through 54.9801-6, 54.9831-1, and this section 
are applicable for plan years beginning on or after July 1, 2005. 
Notwithstanding the previous sentence, the definition of ``short-term, 
limited-duration insurance'' in Sec.  54.9801-2 applies October 2, 2018.

[T.D. 9166, 69 FR 78746, Dec. 30, 2004, as amended by T.D. 9791, 81 FR 
75325, Oct. 31, 2016; T.D. 9837, 83 FR 38242, Aug. 3, 2018]



PART 55_EXCISE TAX ON REAL ESTATE INVESTMENT TRUSTS 
AND REGULATED INVESTMENT COMPANIES--Table of Contents



          Subpart A_Excise Tax on Real Estate Investment Trusts

Sec.
55.4981-1 [Reserved]
55.4981-2 Imposition of excise tax with respect to certain undistributed 
          income of real estate investment trusts; calendar years 
          beginning after December 31, 1986.

         Subpart B_Excise Tax on Regulated Investment Companies

55.4982-1 Imposition of excise tax on undistributed income of regulated 
          investment companies.

                 Subpart C_Procedure and Administration

55.6001-1 Notice or regulations requiring records, statements, and 
          special returns.
55.6011-1 General requirement of return, statement, or list.
55.6060-1 Reporting requirements for tax return preparers.
55.6061-1 Signing of returns and other documents.
55.6065-1 Verification of returns.
55.6071-1 Time for filing returns.
55.6081-1 Automatic extension of time for filing a return due under 
          Chapter 44.
55.6091-1 Place for filing Chapter 44 tax returns.
55.6091-2 Exceptional cases.
55.6107-1 Tax return preparer must furnish copy of return or claim for 
          refund to taxpayer and must retain a copy or record.
55.6109-1 Tax return preparers furnishing identifying numbers for 
          returns or claims for refund.
55.6151-1 Time and place for paying of tax shown on returns.
55.6161-1 Extension of time for paying tax or deficiency.
55.6165-1 Bonds where time to pay tax or deficiency has been extended.
55.6694-1 Section 6694 penalties applicable to tax return preparer.
55.6694-2 Penalties for understatement due to an unreasonable position.
55.6694-3 Penalty for understatement due to willful, reckless, or 
          intentional conduct.
55.6694-4 Extension of period of collection when tax return preparer 
          pays 15 percent of a penalty for understatement of taxpayer's 
          liability and certain other procedural matters.
55.6695-1 Other assessable penalties with respect to the preparation of 
          tax returns or claims for refund for other persons.
55.6696-1 Claims for credit or refund by tax return preparers.
55.7701-1 Tax return preparer.

    Authority: 26 U.S.C. 6001, 6011, 6071, 6091, and 7805.
    Section 55.6011-1 also issued under 26 U.S.C. 6011(a);
    Section 55.6060-1 also issued under 26 U.S.C. 6060(a);
    Section 55.6071-1 also issued under 26 U.S.C. 6071(a);
    Section 55.6081-1 also issued under 26 U.S.C. 6081(a);
    Section 55.6091-1 also issued under 26 U.S.C. 6091(a);
    Section 55.6109-1 also issued under 26 U.S.C. 6109(a);
    Section 55.6109-2 also issued under 26 U.S.C. 6109(a);
    Section 55.6151-1 also issued under 26 U.S.C. 6151;
    Section 55.6695-1 also issued under 26 U.S.C. 6695(b).

[[Page 630]]


    Source: T.D. 7767, 46 FR 11282, Feb. 6, 1981; 46 FR 15263, Mar. 5, 
1981, unless otherwise noted.



          Subpart A_Excise Tax on Real Estate Investment Trusts



Sec.  55.4981-1  [Reserved]



Sec.  55.4981-2  Imposition of excise tax with respect to certain 
undistributed income of real estate investment trusts; calendar years 
beginning after December 31, 1986.

    Section 4981, as amended by the Tax Reform Act of 1986, imposes an 
excise tax on a real estate investment trust in the amount of four 
percent of the excess, if any, of the required distribution for a 
calendar year over the distributed amount for such calendar year. 
Section 4981, as so amended, applies only to calendar years that begin 
after December 31, 1986.

[T.D. 8180, 53 FR 6148, Mar. 1, 1988, as amended by T.D. 9849, 84 FR 
9239, Mar. 14, 2019]



         Subpart B_Excise Tax on Regulated Investment Companies



Sec.  55.4982-1  Imposition of excise tax on undistributed income 
of regulated investment companies.

    Section 4982 imposes an excise tax on a regulated investment company 
in the amount of four percent of the excess, if any, of the required 
distribution for a calendar year over the distributed amount for such 
calendar year. Section 4982 applies only to calendar years beginning 
after December 31, 1986.

[T.D. 8180, 53 FR 6148, Mar. 1, 1988]



                 Subpart C_Procedure and Administration

    Source: T.D. 7767, 46 FR 11282, Feb. 6, 1981; 46 FR 15263, Mar. 5, 
1981, unless otherwise noted. Redesignated by T.D. 8180, 53 FR 6148, 
Mar. 1, 1988.



Sec.  55.6001-1  Notice or regulations requiring records, statements, 
and special returns.

    (a) In general. Any person subject to tax under Chapter 44 of the 
Code shall keep such complete and detailed records as are sufficient to 
enable the district director to determine accurately the amount of 
liability under Chapter 44.
    (b) Notice by district director requiring returns, statements, or 
the keeping of records. The district director may require any person, by 
notice served upon him, to make such returns, render such statements, or 
keep such specific records as will enable the district director to 
determine whether or not such person is liable for tax under Chapter 44.
    (c) Retention of records. The records required by this section shall 
be kept at all times available for inspection by authorized internal 
revenue officers or employees, and shall be retained so long as the 
contents thereof may become material in the administration of any 
internal revenue law.



Sec.  55.6011-1  General requirement of return, statement, or list.

    Every person liable for tax under Chapter 44 shall file an annual 
return with respect to the tax on the form prescribed by the Internal 
Revenue Service for such purpose and shall include therein the 
information required by the form and the instructions issued with 
respect thereto. For calendar years beginning after December 31, 1986, 
the return, which must be made on a calendar year basis, shall be filed 
by a real estate investment trust on Form 8612 and by a regulated 
investment company on Form 8613.

[T.D. 8180, 53 FR 6148, Mar. 1, 1988]



Sec.  55.6060-1  Reporting requirements for tax return preparers.

    (a) In general. A person that employs one or more tax return 
preparers to prepare a return or claim for refund under chapter 44 of 
subtitle D of the Internal Revenue Code, other than for the person, at 
any time during a return period, shall satisfy the record keeping and 
inspection requirements in the manner stated in Sec.  1.6060-1 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]

[[Page 631]]



Sec.  55.6061-1  Signing of returns and other documents.

    Any return required to be made by a real estate investment trust or 
a regulated investment company with respect to the tax imposed by 
Chapter 44 shall be signed by a person authorized by section 6062 of the 
Code to sign the income tax return of the real estate investment trust 
or the regulated investment company. Any statement or other document 
required to be made with respect to the tax imposed by Chapter 44 shall 
be signed by the person required or duly authorized to sign in 
accordance with the regulations, forms, or instructions prescribed with 
respect to such statement or document. An individual's signature on a 
return, statement, or other document made by or for the real estate 
investment trust or the regulated investment company shall be prima 
facie evidence that the individual is authorized to sign the return, 
statement, or other document.

[T.D. 8180, 53 FR 6148, Mar. 1, 1988]



Sec.  55.6065-1  Verification of returns.

    If a return, statement, or other document made under the provisions 
of Chapter 44 or Subtitle F or the Code or the regulations thereunder 
with respect to any tax imposed by Chapter 44 of the Code, or the form 
and instructions issued with respect to such return, statement, or other 
document, requires that it shall contain or be verified by a written 
declaration that it is made under the penalties of perjury, it must be 
so verified by the person or persons required to sign such return, 
statement, or other document. In addition, any other statement or 
document submitted under any provision of Chapter 44 or Subtitle F of 
the Code or regulations thereunder with respect to any tax imposed by 
Chapter 44 of the Code may be required to contain or be verified by a 
written declaration that it is made under the penalties of perjury.



Sec.  55.6071-1  Time for filing returns.

    (a) Returns for calendar years beginning after December 31, 1986. A 
return required by Sec.  55.6011-1 for any calendar year beginning after 
December 31, 1986, shall be filed on or before March 15 of the following 
calendar year. See Sec.  55.6081-1 for rules relating to extensions of 
time for filing a return required by Sec.  55.6011-1.
    (b) Returns for excise tax under section 4981 as in effect before 
amendment by the Tax Reform Act of 1986. A return required by Sec.  
55.6011-1 for any excise tax under section 4981, as in effect before 
amendment by the Tax Reform Act of 1986, shall be filed at the time 
(including any extension of time granted or allowed under section 6081) 
that the real estate investment trust is required to file its income tax 
return under section 6012 for the taxable year for which the tax under 
section 4981, as in effect before amendment by the Tax Reform Act of 
1986, is imposed.

[T.D. 8180, 53 FR 6148, Mar. 1, 1988]



Sec.  55.6081-1  Automatic extension of time for filing a return 
due under Chapter 44.

    (a) In general. A Real Estate Investment Trust (REIT) required to 
file a return on Form 8612, ``Return of Excise Tax on Undistributed 
Income of Real Estate Investment Trusts,'' or a Regulated Investment 
Company (RIC) required to file a return on Form 8613, ``Return of Excise 
Tax on Undistributed Income of Regulated Investment Companies,'' will be 
allowed an automatic 6-month extension of time to file the return after 
the date prescribed for filing the return if the REIT or RIC files an 
application under this section in accordance with paragraph (b) of this 
section.
    (b) Requirements. To satisfy this paragraph (b), a REIT or RIC 
must--
    (1) Submit a complete application on Form 7004, ``Application for 
Automatic Extension of Time to File Certain Business Income Tax, 
Information, and Other Returns,'' or in any other manner prescribed by 
the Commissioner;
    (2) File the application on or before the date prescribed for filing 
the return with the Internal Revenue Service office designated in the 
application's instructions; and
    (3) Remit the amount of the properly estimated unpaid tax liability 
on or before the date prescribed for payment.
    (c) No extension of time for the payment of tax. An automatic 
extension of time

[[Page 632]]

for filing a return granted under paragraph (a) of this section will not 
extend the time for payment of any tax due on such return.
    (d) Termination of automatic extension. The Commissioner may 
terminate an automatic extension at any time by mailing to the REIT or 
RIC a notice of termination at least 10 days prior to the termination 
date designated in such notice. The Commissioner must mail the notice of 
termination to the address shown on the Form 7004 or to the REIT or 
RIC's last known address. For further guidance regarding the definition 
of last known address, see Sec.  301.6212-2 of this chapter.
    (e) Penalties. See section 6651 for failure to file or failure to 
pay the amount shown as tax on the return.
    (f) Effective/applicable dates. This section is applicable for 
applications for an automatic extension of time to file a return due 
under chapter 44, filed after July 1, 2008.

[T.D. 9407, 73 FR 37369, July 1, 2008]



Sec.  55.6091-1  Place for filing Chapter 44 tax returns.

    Except as provided in Sec.  55.6091-2 (relating to exceptional 
cases):
    (a) In general. Chapter 44 tax returns shall be filed with any 
person assigned the responsibility to receive returns in the local 
Internal Revenue Service office serving the principal place of business 
or principal office or agency of the real estate investment trust or 
regulated investment company.
    (b) Returns filed with service centers or by hand carrying. 
Notwithstanding paragraph (a) of this section, unless a return is filed 
by hand carrying, whenever instructions applicable to Chapter 44 tax 
returns provide that the returns be filed with a service center, the 
returns must be so filed in accordance with the instructions. Returns 
which are filed by hand carrying shall be filed with any person assigned 
the responsibility to receive hand-carried returns in the local Internal 
Revenue Service office in accordance with paragraph (a) of this section.

[T.D. 7767, 46 FR 11282, Feb. 6, 1981; 46 FR 15263, Mar. 5, 1981. 
Redesignated and amended by T.D. 8180, 53 FR 6148, Mar. 1, 1988; T.D. 
9156, 69 FR 55746, Sept. 16, 2004]



Sec.  55.6091-2  Exceptional cases.

    Notwithstanding the provisions of Sec.  55.6091-1, the Commissioner 
may permit the filing of any Chapter 44 tax return in any local Internal 
Revenue Service office.

[T.D. 7767, 46 FR 11282, Feb. 6, 1981; 46 FR 15263, Mar. 5, 1981. 
Redesignated by T.D. 8180, 53 FR 6148, Mar. 1, 1988, as amended by T.D. 
9156, 69 FR 55746, Sept. 16, 2004]



Sec.  55.6107-1  Tax return preparer must furnish copy of return 
or claim for refund to taxpayer and must retain a copy or record.

    (a) In general. A person who is a signing tax return preparer of any 
return or claim for refund of tax under Chapter 44 of subtitle D of the 
Internal Revenue Code shall furnish a completed copy of the return or 
claim for refund to the taxpayer, and retain a completed copy or record 
in the manner stated in Sec.  1.6107-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  55.6109-1  Tax return preparers furnishing identifying numbers 
for returns or claims for refund.

    (a) In general. Each tax return or claim for refund of tax under 
chapter 44 of Subtitle D prepared by one or more signing tax return 
preparers must include the identifying number of the preparer required 
by Sec.  1.6695-1(b) of this chapter to sign the return or claim for 
refund in the manner stated in Sec.  1.6109-2 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed after December 31, 
2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  55.6151-1  Time and place for paying of tax shown on returns.

    The tax shown on any return which is imposed by Chapter 44 shall, 
without notice or assessment and demand, be paid to the internal revenue 
officer with whom the return is filed at the time and place for filing 
such return (determined without regard to any extension of time for 
filing the return).

[[Page 633]]

For provisions relating to the time and place for filing such return, 
see Sec. Sec.  55.6071-1 and 55.6091-1. For provisions relating to the 
extension of time for paying the tax see Sec.  55.6161-1.

[T.D. 8180, 53 FR 6148, Mar. 1, 1988]



Sec.  55.6161-1  Extension of time for paying tax or deficiency.

    (a) In general--(1) Tax shown or required to be shown on return. A 
reasonable extension of the time for payment of the amount of any tax 
imposed by Chapter 44 and shown or required to be shown on any return, 
may be granted by the district directors at the request of the taxpayer. 
The period of such extension shall not be in excess of 6 months from the 
date fixed for payment of such tax.
    (2) Deficiency. The time for payment of any amount determined as a 
deficiency in respect of tax imposed by Chapter 44 may, at the request 
of the taxpayer, be extended by the internal revenue officer to whom the 
tax is required to be paid. The extension may be for a period not to 
exceed 18 months from the date fixed for payment of the deficiency, as 
shown on the notice and demand. In exceptional cases, a further 
extension for a period not in excess of 12 months may be granted. No 
extension of time for payment of a deficiency shall be granted if the 
deficiency is due to negligence, to intentional disregard of rules and 
regulations, or to fraud with intent to evade tax.
    (3) Extension of time for filing distinguished. The granting of an 
extension of time for filing a return does not operate to extend the 
time for the payment of the tax or any part thereof unless so specified 
in the extension.
    (b) Certain rules relating to extension of time for paying income 
tax to apply. The provisions of Sec.  1.6161-1 (b), and (c), and (d) of 
this chapter (relating to a requirement for undue hardship, the 
application for extension, and payment pursuant to an extension) shall 
apply to extensions of time for payment of the tax imposed by Chapter 
44.



Sec.  55.6165-1  Bonds where time to pay tax or deficiency has been extended.

    If an extension of time for payment of tax or deficiency is granted 
under section 6161, the district director or the director of the service 
center may, if he deems it necessary, require a bond for the payment of 
the amount in respect of which the extension is granted in accordance 
with the terms of the extension. However, the bond shall not exceed 
double the amount with respect to which the extension is granted. For 
provisions relating to form of bonds, see the regulations under section 
7101 contained in part 301 of this chapter (Regulations on Procedure and 
Administration).



Sec.  55.6694-1  Section 6694 penalties applicable to tax return preparer.

    (a) In general. For general definitions regarding section 6694 
penalties applicable to preparers of tax returns or claims for refund of 
tax under chapter 44 of Subtitle D see Sec.  1.6694-1 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed, and advice provided, 
after December 31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  55.6694-2  Penalties for understatement due to an unreasonable position.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of excise tax under chapter 44 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties under section 
6694(a) of the Code in the manner stated in Sec.  1.6694-2 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  55.6694-3  Penalty for understatement due to willful, reckless, 
or intentional conduct.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under chapter 44 of

[[Page 634]]

subtitle D of the Internal Revenue Code (Code) shall be subject to 
penalties under section 6694(b) of the Code in the manner stated in 
Sec.  1.6694-3 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78459, Dec. 22, 2008]



Sec.  55.6694-4  Extension of period of collection when tax return preparer 
pays 15 percent of a penalty for understatement of taxpayer's liability 
and certain other procedural matters.

    (a) In general. For rules relating to the extension of period of 
collection when a tax return preparer who prepared a return or claim for 
refund for excise tax under chapter 44 of subtitle D of the Internal 
Revenue Code pays 15 percent of a penalty for understatement of 
taxpayer's liability and procedural matters relating to the 
investigation, assessment and collection of the penalties under section 
6694(a) and (b), the rules under Sec.  1.6694-4 of this chapter will 
apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  55.6695-1  Other assessable penalties with respect to the preparation 
of tax returns or claims for refund for other persons.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under chapter 44 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties for failure 
to furnish a copy to the taxpayer under section 6695(a) of the Code, 
failure to sign the return under section 6695(b) of the Code, failure to 
furnish an identification number under section 6695(c) of the Code, 
failure to retain a copy or list under section 6695(d) of the Code, 
failure to file a correct information return under section 6695(e) of 
the Code, and negotiation of a check under section 6695(f) of the Code, 
in the manner stated in Sec.  1.6695-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  55.6696-1  Claims for credit or refund by tax return preparers.

    (a) In general. For rules for claims for credit or refund by a tax 
return preparer who prepared a return or claim for refund for tax under 
chapter 44 of subtitle D of the Internal Revenue Code, the rules under 
Sec.  1.6696-1 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  55.7701-1  Tax return preparer.

    (a) In general. For the definition of a tax return preparer, see 
Sec.  301.7701-15 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



PART 56_PUBLIC CHARITY EXCISE TAXES--Table of Contents



Sec.
56.4911-0 Outline of regulations under section 4911.
56.4911-1 Tax on excess lobbying expenditures.
56.4911-2 Lobbying expenditures, direct lobbying communications, and 
          grass roots lobbying communications.
56.4911-3 Expenditures for direct and/or grass roots lobbying 
          communications.
56.4911-4 Exempt purpose expenditures.
56.4911-5 Communications with members.
56.4911-6 Records of lobbying and grass roots expenditures.
56.4911-7 Affiliated group of organizations.
56.4911-8 Excess lobbying expenditures of affiliated group.
56.4911-9 Application of section 501(h) to affiliated groups of 
          organizations.
56.4911-10 Members of a limited affiliated group of organizations.
56.6001-1 Notice or regulations requiring records, statements, and 
          special returns.
56.6011-1 General requirement of return, statement, or list.

[[Page 635]]

56.6011-4 Requirement of statement disclosing participation in certain 
          transactions by taxpayers.
56.6060-1 Reporting requirements for tax return preparers.
56.6107-1 Tax return preparer must furnish copy of return and claim for 
          refund to taxpayer and must retain a copy or record.
56.6109-1 Tax return preparers furnishing identifying numbers for 
          returns or claims for refund.
56.6694-1 Section 6694 penalties applicable to tax return preparer.
56.6694-2 Penalties for understatement due to an unreasonable position.
56.6694-3 Penalty for understatement due to willful, reckless, or 
          intentional conduct.
56.6694-4 Extension of period of collection when tax return preparer 
          pays 15 percent of a penalty for understatement of taxpayer's 
          liability and certain other procedural matters.
56.6695-1 Other assessable penalties with respect to the preparation of 
          tax returns or claims for refund for other persons.
56.6696-1 Claims for credit or refund by tax return preparers.
56.7701-1 Tax return preparer.

    Authority: 26 U.S.C. 7805.
    Section 56.4911-7 also issued under 26 U.S.C. 4911(f)(3);
    Section 56.6060-1 also issued under 26 U.S.C. 6060(a);
    Section 56.6109-1 also issued under 26 U.S.C. 6109(a);
    Section 56.6109-2 also issued under 26 U.S.C. 6109(a);
    Section 56.6695-1 also issued under 26 U.S.C. 6695(b).

    Source: T.D. 8308, 55 FR 35598, Aug. 31, 1990, unless otherwise 
noted.



Sec.  56.4911-0  Outline of regulations under section 4911.

    Immediately following is an outline of the regulations under section 
4911 of the Internal Revenue Code relating to an excise tax on electing 
public charities' excess lobbying expenditures.

       Sec.  56.4911-0 Outline of regulations under section 4911.

          Sec.  56.4911-1 Tax on excess lobbying expenditures.

    (a) In general.
    (b) Excess lobbying expenditures.
    (c) Nontaxable amounts.
    (1) Lobbying nontaxable amount.
    (2) Grass roots nontaxable amount.
    (d) Examples.

 Sec.  56.4911-2 Lobbying expenditures, direct lobbying communications, 
                and grass roots lobbying communications.

    (a) Lobbying expenditures.
    (1) In general.
    (2) Overview of Sec.  56.4911 and the definitions of ``direct 
lobbying communication'' and ``grass roots lobbying communication''.
    (b) Influencing legislation: direct and grass roots lobbying 
communications defined.
    (1) Direct lobbying communication.
    (2) Grass roots lobbying communication.
    (3) Exceptions to the definition of influencing legislation.
    (4) Examples.
    (5) Special rule for certain mass media advertisements.
    (c) Exceptions to the definitions of direct lobbying communication 
and grass roots lobbying communication.
    (1) Nonpartisan analysis, study, or research exception.
    (2) Examinations and discussions of broad social, economic, and 
similar problems.
    (3) Requests for technical advice.
    (4) Communications pertaining to ``self-defense'' by the 
organization.
    (d) Definitions.
    (1) Legislation.
    (2) Action.
    (3) Legislative body.
    (4) Administrative bodies.

  Sec.  56.4911-3 Expenditures for direct and/or grass roots lobbying 
                             communications.

    (a) Definition of term ``expenditures for''.
    (1) In general.
    (2) Allocation of mixed purpose expenditures.
    (3) Allocation of mixed lobbying.
    (b) Examples.
    (c) Certain transfers treated as lobbying expenditures.
    (1) Transfer earmarked for grass roots purposes.
    (2) Transfer earmarked for direct and grass roots lobbying.
    (3) Certain transfers to noncharities that lobby.

              Sec.  56.4911-4 Exempt purpose expenditures.

    (a) Application.
    (b) Included expenditures.
    (c) Excluded expenditures.
    (d) Certain transfers treated as exempt purpose expenditures.
    (e) Transfers not exempt purpose expenditures.
    (f) Definitions.
    (g) Example.

              Sec.  56.4911-5 Communications with members.

    (a) In general.
    (b) Communications (directed only to members) that are not lobbying 
communications.

[[Page 636]]

    (c) Communications (directed only to members) that are direct 
lobbying communications.
    (d) Communications (directed only to members) that are grass roots 
lobbying communications.
    (e) Written communications directed to members and nonmembers.
    (1) In general.
    (2) Direct lobbying directly encouraged.
    (3) Grass roots expenditure if grass roots lobbying directly 
encouraged.
    (4) No direct encouragement of direct lobbying or of grass roots 
lobbying.
    (f) Definitions and special rules.
    (1) Member; general rule.
    (2) Member; special rule.
    (3) Member; affiliated group of organizations.
    (4) Member; limited affiliated group of organizations.
    (5) Subscriber.
    (6) Directly encourages.
    (7) Percentages of total distribution.
    (8) Reasonable allocation rule.

    Sec.  56.4911-6 Records of lobbying and grass roots expenditures.

    (a) Records of lobbying expenditures.
    (b) Records of grass roots expenditures.

           Sec.  56.4911-7 Affiliated group of organizations.

    (a) Affiliation between two organizations.
    (1) In general.
    (2) Organizations not described in section 501(c)(3).
    (3) Action on legislative issues.
    (b) Interlocking governing boards.
    (1) In general.
    (2) Majority or quorum.
    (3) Votes required under governing instrument or local law.
    (4) Representatives constituting less than 15% of governing board.
    (5) Representatives.
    (c) Governing instrument.
    (d) Three or more organizations affiliated.
    (1) Two controlled organizations affiliated.
    (2) Chain rule.
    (e) Affiliated group of organizations.
    (1) Defined.
    (2) Multiple membership.
    (3) Taxable year of affiliated group.
    (4) Electing member organization.
    (5) Election of member's year as group's taxable year.
    (f) Examples.

    Sec.  56.4911-8 Excess lobbying expenditures of affiliated group.

    (a) Application.
    (b) Affiliated group treated as one organization.
    (c) Tax imposed on excess lobbying expenditures of affiliated group.
    (d) Liability for tax.
    (1) Electing organizations.
    (2) Tax based on excess lobbying expenditures.
    (3) Tax based on excess grass roots expenditures.
    (4) Tax based on exempt purpose expenditures.
    (5) Taxable year for which liable.
    (6) Organization a member of more than one affiliated group.
    (e) Former member organizations.

 Sec.  56.4911-9 Application of section 501(h) to affiliated groups of 
                             organizations.

    (a) Scope.
    (b) Determination required.
    (c) Member organizations that are not electing organizations.
    (d) Filing of information relating to affiliated group of 
organizations.
    (1) Scope.
    (2) In general.
    (3) Additional information required.
    (4) Information required of electing member organization.
    (e) Example.
    (f) Cross reference.

Sec.  56.4911-10 Members of a limited affiliated group of organizations.

    (a) Scope.
    (b) Members of limited affiliated group.
    (c) Controlling and controlled organizations.
    (d) Expenditures of controlling organization.
    (1) Scope.
    (2) Expenditures for direct lobbying.
    (3) Grass roots expenditures.
    (4) Exempt purpose expenditures.
    (e) Expenditures of controlled member.
    (f) Reports of members of limited affiliated groups.
    (1) Controlling member organization's additional information on 
annual return.
    (2) Reports of controlling members to other members.
    (3) Reports of controlled member organizations.
    (g) National legislative issues.
    (h) Examples.

Sec.  56.6001-1 Notice or regulations requiring records, statements, and 
                            special returns.

    (a) In general.
    (b) Cross references.

   Sec.  56.6011-1 General requirement of return, statement, or list.



Sec.  56.4911-1  Tax on excess lobbying expenditures.

    (a) In general. Section 4911(a) imposes an excise tax of 25 percent 
on the excess lobbying expenditures (as defined in paragraph (b) of this 
section) for a

[[Page 637]]

taxable year of an organization for which the expenditure test election 
under section 501(h) is in effect (an ``electing public charity''). An 
electing public charity's annual limit on expenditures for influencing 
legislation (i.e., the amount of lobbying expenditures on which no tax 
is due) is the lobbying nontaxable amount or, on expenditures for 
influencing legislation through grass roots lobbying, the grass roots 
nontaxable amount (see paragraph (c) of this section). For rules 
concerning the application of the excise tax imposed by section 4911(a) 
to the members of an affiliated group of organizations (as defined in 
Sec.  56.4911-7(e)), see Sec.  56.4911-8.
    (b) Excess lobbying expenditures. For any taxable year for which the 
expenditure test election under section 501(h) is in effect, the amount 
of an electing public charity's excess lobbying expenditures is the 
greater of--
    (1) The amount by which the organization's lobbying expenditures 
(within the meaning of Sec.  56.4911-2(a)) exceed the organization's 
lobbying nontaxable amount, or
    (2) The amount by which the organization's grass roots expenditures 
(within the meaning of Sec. Sec.  56.4911-2(a)) exceed the 
organization's grass roots nontaxable amount.
    (c) Nontaxable amounts--(1) Lobbying nontaxable amount. Under 
section 4911(c)(2), the lobbying nontaxable amount for any taxable year 
for which the expenditure test election is in effect is the lesser of--
    (i) $1,000,000, or
    (ii) To the extent of the electing public charity's exempt purpose 
expenditures (within the meaning of Sec.  56.4911-4) for that year, the 
sum of 20 percent of the first $500,000 of such expenditures, plus 15 
percent of the second $500,000 of such expenditures, plus 10 percent of 
the third $500,000 of such expenditures, plus 5 percent of the remainder 
of such expenditures.
    (2) Grass roots nontaxable amount. Under section 4911(c)(4), an 
electing public charity's grass roots nontaxable amount for any taxable 
year is 25 percent of its lobbying nontaxable amount for that year.
    (d) Examples. The provisions of this section are illustrated by the 
examples in Sec.  1.501(h)-3.



Sec.  56.4911-2  Lobbying expenditures, direct lobbying communications, 
and grass roots lobbying communications.

    (a) Lobbying expenditures--(1) In general. An electing public 
charity's lobbying expenditures for a year are the sum of its 
expenditures during that year for direct lobbying communications 
(``direct lobbying expenditures'') plus its expenditures during that 
year for grass roots lobbying communications (``grass roots 
expenditures'').
    (2) Overview of Sec.  56.4911-2 and the definitions of ``direct 
lobbying communication'' and ``grass roots lobbying communication''. 
Paragraph (b)(1) of this section defines the term ``direct lobbying 
communication.'' Paragraph (b)(2) of this section provides the general 
definition of the term ``grass roots lobbying communication.'' (But also 
see paragraph (b)(5) of this section (special rebuttable presumption 
regarding certain paid mass media communications) and Sec.  56.4911-5 
(special, more lenient, definitions for certain communications from an 
electing public charity to its bona fide members)). Paragraph (b)(3) of 
this section lists and cross-references various exceptions to the 
definitions set forth in paragraphs (b) (1) and (2) (the text of the 
exceptions, along with relevant definitions and examples, is generally 
set forth in paragraph (c)). Paragraph (b)(4) of this section contains 
numerous examples illustrating the application of paragraphs (b) (1), 
(2) and (3). As mentioned above, paragraph (b)(5) of this section sets 
forth the special rebuttable presumption regarding a limited number of 
paid mass media communications about highly publicized legislation. 
Paragraph (d) of this section contains definitions of (and examples 
illustrating) various terms used in this section.
    (b) Influencing legislation: direct and grass roots lobbying 
communications defined--(1) Direct lobbying communication--(i) 
Definition. A direct lobbying communication is any attempt to influence 
any legislation through communication with:

[[Page 638]]

    (A) Any member or employee of a legislative body; or
    (B) Any government official or employee (other than a member or 
employee of a legislative body) who may participate in the formulation 
of the legislation, but only if the principal purpose of the 
communication is to influence legislation.
    (ii) Required elements. A communication with a legislator or 
government official will be treated as a direct lobbying communication 
under this Sec.  56.4911-2(b)(1) if, but only if, the communication:
    (A) Refers to specific legislation (see paragraph (d)(1) of this 
section for a definition of the term ``specific legislation''); and
    (B) Reflects a view on such legislation.
    (iii) Special rule for referenda, ballot initiatives or similar 
procedures. Solely for purposes of this section 4911, where a 
communication refers to and reflects a view on a measure that is the 
subject of a referendum, ballot initiative or similar procedure, the 
general public in the State or locality where the vote will take place 
constitutes the legislative body, and individual members of the general 
public area, for purposes of this paragraph (b)(1), legislators. 
Accordingly, if such a communication is made to one or more members of 
the general public in that state or locality, the communication is a 
direct lobbying communication (unless it is nonpartisan analysis, study 
or research (see paragraph (c)(1) of this section).
    (2) Grass roots lobbying communication--(i) Definition. A grass 
roots lobbying communication is any attempt to influence any legislation 
through an attempt to affect the opinions of the general public or any 
segment thereof.
    (ii) Required elements. A communication will be treated as a grass 
roots lobbying communication under this Sec.  56.4911-2(b)(2)(ii) if, 
but only if, the communication:
    (A) Refers to specific legislation (see paragraph (d)(1) of this 
section for a definition of the term ``specific legislation'');
    (B) Reflects a view on such legislation; and
    (C) Encourages the recipient of the communication to take action 
with respect to such legislation (see paragraph (b)(2)(iii) of this 
section for the definition of encouraging the recipient to take action.

For special, more lenient rules regarding an organization's 
communications directed only or primarily to bona fide members of the 
organization, see Sec.  56.4911-5. For special rules regarding certain 
paid mass media advertisements about highly publicized legislation, see 
paragraph (b)(5) of this section. For special rules regarding lobbying 
on referenda, ballot initiatives and similar procedures, see paragraph 
(b)(1)(iii) of this section).
    (iii) Definition of encouraging recipient to take action. For 
purposes of this section, encouraging a recipient to take action with 
respect to legislation means that the communication:
    (A) States that the recipient should contact a legislator or an 
employee of a legislative body, or should contact any other government 
official or employee who may participate in the formulation of 
legislation (but only if the principal purpose of urging contact with 
the government official or employee is to influence legislation);
    (B) States the address, telephone number, or similar information of 
a legislator or an employee of a legislative body;
    (C) Provides a petition, tear-off postcard or similar material for 
the recipient to communicate with a legislator or an employee of a 
legislative body, or with any other government official or employee who 
may participate in the formulation of legislation (but only if the 
principal purpose of so facilitating contact with the government 
official or employee is to influence legislation); or
    (D) Specifically identifies one or more legislators who will vote on 
the legislation as: opposing the communication's view with respect to 
the legislation; being undecided with respect to the legislation; being 
the recipient's representative in the legislature; or being a member of 
the legislative committee or subcommittee that will consider the 
legislation. Encouraging the recipient to take action under this 
paragraph (b)(2)(iii)(D) does not include

[[Page 639]]

naming the main sponsor(s) of the legislation for purposes of 
identifying the legislation.
    (iv) Definition of directly encouraging recipient to take action. 
Communications described in one or more of paragraphs (b)(2)(iii) (A) 
through (C) of this section not only ``encourage,'' but also ``directly 
encourage'' the recipient to take action with respect to legislation. 
Communications described in paragraph (b)(2)(iii)(D) of this section, 
however, do not directly encourage the recipient to take action with 
respect to legislation. Thus, a communication would encourage the 
recipient to take action with respect to legislation, but not directly 
encourage such action, if the communication does no more than identify 
one or more legislators who will vote on the legislation as: opposing 
the communication's view with respect to the legislation; being 
undecided with respect to the legislation; being the recipient's 
representative in the legislature; or being a member of the legislative 
committee or subcommittee that will consider the legislation. 
Communications that encourage the recipient to take action with respect 
to legislation but that do not directly encourage the recipient to take 
action with respect to legislation may be within the exception for 
nonpartisan analysis, study or research (se paragraph (c)(1) of this 
section) and thus not be grass roots lobbying communications.
    (v) Subsequent lobbying use of nonlobbying communications or 
research materials--(A) Limited effect of application. Even though 
certain communications or research materials are initially not grass 
roots lobbying communications under the general definition set forth in 
paragraph (b)(2)(ii) of this section, subsequent use of the 
communications or research materials for grass roots lobbying may cause 
them to be treated as grass roots lobbying communications. This 
paragraph (b)(2)(v) does not cause any communications or research 
materials to be considered direct lobbying communications.
    (B) Limited scope of application. Under this paragraph (b)(2)(v), 
only ``advocacy communications or research materials'' are potentially 
treated as grass roots lobbying communications. Communications or 
research materials that are not ``advocacy communications or research 
materials'' are not treated as grass roots lobbying communications under 
this paragraph (b)(2)(v). ``Advocacy communications or research 
materials'' are any communications or materials that both refer to and 
reflect a view on specific legislation but that do not, in their initial 
format, contain a direct encouragement for recipients to take action 
with respect to legislation.
    (C) Subsequent use in lobbying. Where advocacy communications or 
research materials are subsequently accompanied by a direct 
encouragement for recipients to take action with respect to legislation, 
the advocacy communications or research materials themselves are treated 
as grass roots lobbying communications unless the organization's primary 
purpose in undertaking or preparing the advocacy communications or 
research materials was not for use in lobbying. In such a case, all 
expenses of preparing and distributing the advocacy communications or 
research materials will be treated as grass roots expenditures.
    (D) Time limit on application of subsequent use rule. The 
characterization of expenditures as grass roots lobbying expenditures 
under paragraph (b)(2)(v)(C) shall apply only to expenditures paid less 
than six months before the first use of the advocacy communications or 
research materials with a direct encouragement to action.
    (E) Safe harbor in determining ``primary purpose''. The primary 
purpose of the organization in undertaking or preparing advocacy 
communications or research materials will not be considered to be for 
use in lobbying if, prior to or contemporaneously with the use of the 
advocacy communications or research materials with the direct 
encouragement to action, the organization makes a substantial 
nonlobbying distribution of the advocacy communications or research 
materials (without the direct encouragement to action). Whether a 
distribution is substantial will be determined by reference to all of 
the facts and circumstances, including the normal distribution pattern 
of similar nonpartisan analyses, studies

[[Page 640]]

or research by that and similar organizations.
    (F) Special rule for partisan analysis, study or research. In the 
case of advocacy communications or research materials that are not 
nonpartisan analysis, study or research, the nonlobbying distribution 
thereof will not be considered ``substantial'' unless that distribution 
is at least as extensive as the lobbying distribution thereof.
    (G) Factors considered in determining primary purpose. Where the 
nonlobbying distribution of advocacy communications or research 
materials is not substantial, all of the facts and circumstances must be 
weighed to determine whether the organization's primary purpose in 
preparing the advocacy communications or research materials was for use 
in lobbying. While not the only factor, the extent of the organization's 
nonlobbying distribution of the advocacy communications or research 
materials is particularly relevant, especially when compared to the 
extent of their distribution with the direct encouragement to action. 
Another particularly relevant factor is whether the lobbying use of the 
advocacy communications or research materials is by the organization 
that prepared the document, a related organization, or an unrelated 
organization. Where the subsequent lobbying distribution is made by an 
unrelated organization, clear and convincing evidence (which must 
include evidence demonstrating cooperation or collusion between the two 
organizations) will be required to establish that the primary purpose 
for preparing the communication for use in lobbying.
    (H) Examples. The provisions of this paragraph (b)(2)(v) are 
illustrated by the following examples:

    Example 1. Assume a nonlobbying ``report'' (that is not nonpartisan 
analysis, study or research) is prepared by an organization, but 
distributed to only 50 people. The report, in that format, refers to and 
reflects a view on specific legislation but does not contain a direct 
encouragement for the recipients to take action with respect to 
legislation. Two months later, the organization sends the report to 
10,000 people along with a letter urging recipients to write their 
Senators about the legislation discussed in the report. Because the 
report's nonlobbying distribution is not as extensive as its lobbying 
distribution, the report's nonlobbying distribution is not substantial 
for purposes of this paragraph (b)(2)(v). Accordingly, the 
organization's primary purpose in preparing the report must be 
determined by weighing all of the facts and circumstances. In light of 
the relatively minimal nonlobbying distribution and the fact that the 
lobbying distribution is by the preparing organization rather than by an 
unrelated organization, and in the absence of evidence to the contrary, 
both the report and the letter are grass roots lobbying communications. 
Assume that all costs of preparing the report were paid within the six 
months preceding the mailing of the letter. Accordingly, all of the 
organization's expenditures for preparing and mailing the two documents 
are grass roots lobbying expenditures.
    Example 2. Assume the same facts as in Example (1), except that the 
costs of the report are paid over the two month period of January and 
February. Between January 1 and 31, the organization pays $1,000 for the 
report. In February, the organization pays $500 for the report. Further 
assume that the report is first used with a direct encouragement to 
action on August 1. Six months prior to August 1 is February 1. 
Accordingly, no costs paid for the report before February 1 are treated 
as grass roots lobbying expenditures under the subsequent use rule. 
Under these facts, the subsequent use rule treats only the $500 paid for 
the report in February as grass roots lobbying expenditures.

    (3) Exceptions to the definition of influencing legislation. In many 
cases, a communication is not a direct or grass roots lobbying 
communication under paragraph (b)(1) or (b)(2) of this section if it 
falls within one of the exceptions listed in paragraph (c) of this 
section. See paragraph (c)(1), Nonpartisan analysis, study or research; 
paragraph (c)(2), Examinations and discussions of broad social, economic 
and similar problems; paragraph (c)(3), Requests for technical advice; 
and paragraph (c)(4), Communications pertaining to self-defense by the 
organization. In addition, see Sec.  56.4911-5, which provides special 
rules regarding the treatment of certain lobbying communications 
directed in whole or in part to members of an electing public charity.
    (4) Examples. This paragraph (b)(4) provides examples to illustrate 
the rules set forth in the section regarding direct and grass roots 
lobbying. The expenditure test election under section 501(h) is assumed 
to be in effect for all

[[Page 641]]

organizations discussed in the examples in this paragraph (b)(4). In 
addition, it is assumed that the special rules of Sec.  56.4911-5, 
regarding certain of a public charity's communications with its members, 
do not apply to any of the examples in this paragraph (b)(4).
    (i) Direct lobbying. The provisions of this section regarding direct 
lobbying communications are illustrated by the following examples:

    Example 1. Organization P's employee, X, is assigned to approach 
members of Congress to gain their support for a pending bill. X drafts 
and P prints a position letter on the bill. P distributes the letter to 
members of Congress. Additionally, X personally contacts several members 
of Congress or their staffs to seek support for P's position on the 
bill. The letter and the personal contacts are direct lobbying 
communications.
    Example 2. Organization M's president writes a letter to the 
Congresswoman representing the district in which M is headquartered, 
requesting that the Congresswoman write an administrative agency 
regarding proposed regulations recently published by that agency. M's 
president also requests that the Congresswoman's letter to the agency 
state the Congresswoman's support of M's application for a particular 
type of permit granted by the agency. The letter written by M's 
president is not a direct lobbying communication.
    Example 3. Organization Z prepares a paper on a particular state's 
environmental problems. The paper does not reflect a view on any 
specific pending legislation or on any specific legislative proposal 
that Z either supports or opposes. Z's representatives give the paper to 
a state legislator. Z's paper is not a direct lobbying communication.
    Example 4. State X enacts a statute that requires the licensing of 
all day care providers. Agency B in State X is charged with preparing 
rules to implement the bill enacted by State X. One week after enactment 
of the bill, organization C sends a letter to Agency B providing 
detailed proposed rules that organization C suggests to Agency B as the 
appropriate standards to follow in implementing the statute on licensing 
of day care providers. Organization C's letter to Agency B is not a 
lobbying communication.
    Example 5. Organization B researches, prepares and prints a code of 
standards of minimum safety requirements in an area of common electrical 
wiring. Organization B sells the code of standards booklet to the public 
and its is widely used by professional in the installation of electrical 
wiring. A number of states have codified all, or part, of the code of 
standards as mandatory safety standards. On occasion, B lobbies state 
legislators for passage of the code of standards for safety reasons. 
Because the primary purpose of preparing the code of standards was the 
promotion of public safety and the standards were specifically used in a 
profession for that purpose, separate from any legislative requirement, 
the research, preparation, printing and public distribution of the code 
of standards is not an expenditure for a direct (or grass roots) 
lobbying communication. Costs, such as transportation, photocopying, and 
other similar expenses, incurred in lobbying state legislators for 
passage of the code of standards into law are expenditures for direct 
lobbying communications.
    Example 6. On the organization's own initiative, representatives of 
Organization F present written testimony to a Congressional committee. 
The news media report on the testimony of Organization F, detailing F's 
opposition to a pending bill. The testimony is a direct lobbying 
communication but is not a grass roots lobbying communication.
    Example 7. Organization R's monthly newsletter contains an editorial 
column that refers to and reflects a view on specific pending bills. R 
sends the newsletter to 10,000 nonmember subscribers. Senator Doe is 
among the subscribers. The editorial column in the newsletter copy sent 
to Senator Doe is not a direct lobbying communication because the 
newsletter is sent to Senator Doe in her capacity as a subscriber rather 
than her capacity as a legislator. (Note, though, that the editorial 
column may be a grass roots lobbying communication if it encourages 
recipients to take action with respect to the pending bills it refers to 
and on which it reflects a view).
    Example 8. Assume the same facts as in Example (7), except that one 
of Senator Doe's staff members sees Senator Doe's copy of the editorial 
and writes to R requesting additional information. R responds with a 
letter that refers to and reflects a view on specific legislation. R's 
letter is a direct lobbying communication unless it is within one of the 
exceptions set forth in paragraph (c) of this section (such as the 
exception for nonpartisan analysis, study or research). (R's letter is 
not within the scope of the exception for responses to written requests 
from a legislative body or committee for technical advice (see paragraph 
(c)(3) of this section) because the letter is not in response to a 
written request from a legislative body or committee).

    (ii) Grass roots lobbying. The provisions of this section regarding 
grass roots lobbying communications are illustrated in paragraph 
(b)(4)(ii)(A) of

[[Page 642]]

this section by examples of communications that are not grass roots 
lobbying communications and in paragraph (b)(4)(ii)(B) by examples of 
communications that are grass roots lobbying communications. The 
provisions of this section are further illustrated in paragraph 
(b)(4)(ii)(C), with particular regard to the exception for nonpartisan 
analysis, study, or research:
    (A) Communications that are not grass roots lobbying communications.

    Example 1. Organization L places in its newsletter an article that 
asserts that lack of new capital is hurting State W's economy. The 
article recommends that State W residents either invest more in local 
businesses or increase their savings so that funds will be available to 
others interested in making investments. The article is an attempt to 
influence opinions with respect to a general problem that might receive 
legislative attention and is distributed in a manner so as to reach and 
influence many individuals. However, the article does not refer to 
specific legislation that is pending in a legislative body, nor does the 
article refer to a specific legislative proposal the organization either 
supports or opposes. The article is not a grass roots lobbying 
communication.
    Example 2. Assume the same facts as Example (1), except that the 
article refers to a bill pending in State W's legislature that is 
intended to provide tax incentives for private savings. The article 
praises the pending bill and recommends that it be enacted. However, the 
article does not encourage readers to take action with respect to the 
legislation. The article is not a grass roots lobbying communication.
    Example 3. Organization B sends a letter to all persons on its 
mailing list. The letter includes an update on numerous environmental 
issues with a discussion of general concerns regarding pollution, 
proposed federal regulations affecting the area, and several pending 
legislative proposals. The letter endorses two pending bills and opposes 
another pending bill, but does not name any legislator involved (other 
than the sponsor of one bill, for purposes of identifying the bill), nor 
does it otherwise encourage the reader to take action with respect to 
the legislation. The letter is not a grass roots lobbying communication.
    Example 4. A pamphlet distributed by organization Z discusses the 
dangers of drugs and encourages the public to send their legislators a 
coupon, printed with the statement ``I support a drug-free America.'' 
The term ``drug-free America'' is not widely identified with any of the 
many specific pending legislative proposals regarding drug issues. The 
pamphlet does not refer to any of the numerous pending legislative 
proposals, nor does the organization support or oppose a specific 
legislative proposal. The pamphlet is not a grass roots lobbying 
communication.
    Example 5. A pamphlet distributed by organization B encourages 
readers to join an organization and ``get involved in the fight against 
drugs.'' The text states, in the course of a discussion of several 
current drug issues, that organization B supports a specific bill before 
Congress that would establish an expanded drug control program. The 
pamphlet does not encourage readers to communicate with legislators 
about the bill (such as by including the names of undecided or opposed 
legislators). The pamphlet is not a grass roots lobbying communication.
    Example 6. Organization E, an environmental organization, routinely 
summarizes in each edition of its newsletter the new environment-related 
bills that have been introduced in Congress since the last edition of 
the newsletter. The newsletter identifies each bill by a bill number and 
the name of the legislation's sponsor. The newsletter also reports on 
the status of previously introduced environment-related bills. The 
summaries and status reports do not encourage recipients of the 
newsletter to take action with respect to legislation, as described in 
paragraphs (b)(2)(iii) (A) through (D) of this section. Although the 
summaries and status reports refer to specific legislation and often 
reflect a view on such legislation, they do not encourage the newsletter 
recipients to take action with respect to such legislation. The 
summaries and status reports are not grass roots lobbying 
communications.
    Example 7. Organization B prints in its newsletter a report on 
pending legislation that B supports, the Family Equity bill. The report 
refers to and reflects a view on the Family Equity bill, but does not 
directly encourage recipients to take action. Nor does the report 
specifically identify any legislator as opposing the communication's 
view on the legislation, as being undecided, or as being a member of the 
legislative committee or subcommittee that will consider the 
legislation. However, the report does state the following:
    Rep. Doe (D-Ky.) and Rep. Roe (R-Ma.), both ardent supporters of the 
Family Equity bill, spoke at B's annual convention last week. Both 
encouraged B's efforts to get the Family Equity bill enacted and stated 
that they thought the bill could be enacted even over a presidential 
veto. B's legislative affairs liaison questioned others, who seemed to 
agree with that assessment. For example, Sen. Roe (I-Ca.) said that he 
thinks the bill will pass with such a large majority, ``the President 
won't even consider vetoing it.''
    Assume the newsletter, and thus the report, is sent to individuals 
throughout the U.S., including some recipients in Kentucky, 
Massachusetts and California. Because the report is distributed 
nationally, the mere

[[Page 643]]

fact that the report identifies several legislators by party and state 
as part of its discussion does not mean the report specifically 
identifies the named legislators as the Kentucky, Massachusetts and 
California recipients' representatives in the legislature for purposes 
of paragraph (b)(2)(iii) of this section. The report is not a grass 
roots lobbying communication.

    (B) Communications that are grass roots lobbying communications.

    Example 1. A pamphlet distributed by organization Y states that the 
``President's plan for a drug-free America,'' which will establish a 
drug control program, should be passed. The pamphlet encourages readers 
to ``write or call your senators and representatives and tell them to 
vote for the President's plan.'' No legislative proposal formally bears 
the name ``President's plan for a drug-free America,'' but that and 
similar terms have been widely used in connection with specific 
legislation pending in Congress that was initially proposed by the 
President. Thus, the pamphlet refers to specific legislation, reflects a 
view on the legislation, and encourages readers to take action with 
respect to the legislation. The pamphlet is a grass roots lobbying 
communication.
    Example 2. Assume the same facts as in Example (1), except that the 
pamphlet does not encourage the public to write or call representatives, 
but does list the members of the committee that will consider the bill. 
The pamphlet is a grass roots lobbying communication.
    Example 3. Assume the same facts as in Example (1), except that the 
pamphlet encourages readers to ``write the President to urge him to make 
the bill a top legislative priority'' rather than encouraging readers to 
communicate with members of Congress. The pamphlet is a grass roots 
lobbying communication.
    Example 4. Organization B, a nonmembership organization, includes in 
one of three sections of its newsletter an endorsement of two pending 
bills and opposition to another pending bill and also identifies several 
legislators as undecided on the three bills. The section of the 
newsletter devoted to the three pending bills is a grass roots lobbying 
communication.
    Example 5. Organization D, a nonmembership organization, sends a 
letter to all persons on its mailing list. The letter includes an 
extensive discussion concluding that a significant increase in spending 
for the Air Force is essential in order to provide an adequate defense 
of the nation. Prior to a concluding fundraising request, the letter 
encourages readers to write their Congressional representatives urging 
increased appropriations to build the B-1 bomber. The letter is a grass 
roots lobbying communication.
    Example 6. The President nominates X for a position in the 
President's cabinet. Organization Y disagrees with the views of X and 
does not believe X has the necessary administrative capabilities to 
effectively run a cabinet-level department. Accordingly, Y sends a 
general mailing requesting recipients to write to four Senators on the 
Senate Committee that will consider the nomination. The mailing is a 
grass roots lobbying communication.
    Example 7. Organization F mails letters requesting that each 
recipient contribute money to or join F. In addition, the letters 
express F's opposition to a pending bill that is to be voted upon by the 
U.S. House of Representatives. Although the letters are form letters 
sent as a mass mailing, each letter is individualized to report to the 
recipient the name of the recipient's congressional representative. The 
letters are grass roots lobbying communications.
    Example 8. Organization C sends a mailing that opposes a specific 
legislative proposal and includes a postcard addressed to the President 
for the recipient to sign stating opposition to the proposal. The letter 
requests that the recipient send to C a contribution as well as the 
postcard opposing the proposal. C states in the letter that it will 
deliver all the postcards to the White House. The letter is a grass 
roots lobbying communication.

    (C) Additional examples.

    Example 1. The newsletter of an organization concerned with drug 
issues is circulated primarily to individuals who are not members of the 
organization. A story in the newsletter reports on the prospects for 
passage of a specifically identified bill, stating that the organization 
supports the bill. The newsletter story identifies certain legislators 
as undecided, but does not state that readers should contact the 
undecided legislators. The story does not provide a full and fair 
exposition sufficient to qualify as nonpartisan analysis, study or 
research. The newsletter story is a grass roots lobbying communication.
    Example 2. Assume the same facts as in Example (1), except that the 
newsletter story provides a full and fair exposition sufficient to 
qualify as nonpartisan analysis, study or research. The newsletter story 
is not a grass roots lobbying communication because it is within the 
exception for nonpartisan analysis, study or research (since it does not 
directly encourage recipients to take action).
    Example 3. Assume the same facts as in Example (2), except that the 
newsletter story explicitly asks readers to contact the undecided 
legislators. Because the newsletter story directly encourages readers to 
take action with respect to the legislation, the

[[Page 644]]

newsletter story is not within the exception for nonpartisan analysis, 
study or research. Accordingly, the newsletter story is a grass roots 
lobbying communication.
    Example 4. Assume the same facts as in Example (1), except that the 
story does not identify any undecided legislators. The story is not a 
grass roots lobbying communication.
    Example 5. X organization places an advertisement that specifically 
identifies and opposes a bill that X asserts would harm the farm 
economy. The advertisement is not a mass media communication described 
in paragraph (b)(5)(ii) of this section and does not directly encourage 
readers to take action with respect to the bill. However, the 
advertisement does state that Senator Y favors the legislation. Because 
the advertisement refers to and reflects a view on specific legislation, 
and also encourages the readers to take action with respect to the 
legislation by specifically identifying a legislator who opposes X's 
views on the legislation, the advertisement is a grass roots lobbying 
communication.
    Example 6. Assume the same facts as in Example (5), except that 
instead of identifying Senator Y as favoring the legislation, the 
advertisement identifies the ``junior Senator from State Z'' as favoring 
the legislation. The advertisement is a grass roots lobbying 
communication.
    Example 7. Assume the same facts as in Example (5), except that 
instead of identifying Senator Y as favoring the legislation, the 
advertisement states: ``Even though this bill will have a devastating 
effect upon the farm economy, most of the Senators from the Farm Belt 
states are inexplicably in favor of the bill.'' The advertisement does 
not specifically identify one or more legislators as opposing the 
advertisement's view on the bill in question. Accordingly, the 
advertisement is not a grass roots lobbying communication because it 
does not encourage readers to take action with respect to the 
legislation.
    Example 8. Organization V trains volunteers to go door-to-door to 
seek signatures for petitions to be sent to legislators in favor of a 
specific bill. The volunteers are wholly unreimbursed for their time and 
expenses. The volunteers' costs (to the extent any are incurred) are not 
lobbying or exempt purpose expenditures made by V (but the volunteers 
may not deduct their out-of-pocket expenditures (see section 170(f)(6)). 
When V asks the volunteers to contact others and urge them to sign the 
petitions, V encourages those volunteers to take action in favor of the 
specific bill. Accordingly, V's costs of soliciting the volunteers' help 
and its costs of training the volunteers are grass roots expenditures. 
In addition, the costs of preparing, copying, distributing, etc. the 
petitions (and any other materials on the same specific subject used in 
the door-to-door signature gathering effort), are grass roots 
expenditures.

    (5) Special rule for certain mass media advertisements--(i) In 
general. A mass media advertisement that is not a grass roots lobbying 
communication under the three-part grass roots lobbying definition 
contained in paragraph (b)(2) of this section may be a grass roots 
lobbying communication by virtue of paragraph (b)(5)(ii) of this 
section. The special rule in paragraph (b)(5)(ii) generally applies only 
to a limited type of paid advertisements that appear in the mass media.
    (ii) Presumption regarding certain paid mass media advertisements 
about highly publicized legislation. If within two weeks before a vote 
by a legislative body, or a committee (but not a subcommittee) thereof, 
on a highly publicized piece of legislation, an organization's paid 
advertisement appears in the mass media, the paid advertisement will be 
presumed to be a grass roots lobbying communication, but only if the 
paid advertisement both reflects a view on the general subject of such 
legislation and either: refers to the highly publicized legislation; or 
encourages the public to communicate with legislators on the general 
subject of such legislation. An organization can rebut this presumption 
by demonstrating that the paid advertisement is a type of communication 
regularly made by the organization in the mass media without regard to 
the timing of legislation (that is, a customary course of business 
exception) or that the timing of the paid advertisement was unrelated to 
the upcoming legislative action. Notwithstanding the fact that an 
organization successfully rebuts the presumption, a mass media 
communication described in this paragraph (b)(5)(ii) is a grass roots 
lobbying communication if the communication would be a grass roots 
lobbying communication under the rules contained in paragraph (b)(2) of 
this section.
    (iii) Definitions--(A) Mass media. For purposes of this paragraph 
(b)(5), the term ``mass media'' means television, radio, billboards and 
general circulation newspapers and magazines. General circulation 
newspapers and magazines do not include newspapers or magazines 
published by an organization for which the expenditure test

[[Page 645]]

election under section 501(h) is in effect, except where both: The total 
circulation of the newspaper or magazine is greater than 100,000; and 
fewer than one-half of the recipients are members of the organization 
(as defined in Sec.  56.4911-5(f)).
    (B) Paid advertisement. For purposes of this paragraph (b)(5), where 
an electing public charity is itself a mass media publisher or 
broadcaster, all portions of that organization's mass media publications 
or broadcasts are treated as paid advertisements in the mass media, 
except those specific portions that are advertisements paid for by 
another person. The term ``mass media'' is defined in paragraph 
(b)(5)(iii)(A).
    (C) Highly publicized. For purposes of this paragraph (b)(5), 
``highly publicized'' means frequent coverage on television and radio, 
and in general circulation newspapers, during the two weeks preceding 
the vote by the legislative body or committee. In the case of state or 
local legislation, ``highly publicized'' means frequent coverage in the 
mass media that serve the State or local jurisdiction in question. Even 
where legislation receives frequent coverage, it is ``highly 
publicized'' only if the pendency of the legislation or the 
legislation's general terms, purpose, or effect are known to a 
significant segment of the general public (as opposed to the particular 
interest groups directly affected) in the area in which the paid mass 
media advertisement appears.
    (iv) Examples. The special rule of this paragraph (b)(5) is 
illustrated by the following examples. The expenditure test election 
under section 501(h) is assumed to be in effect for all organizations 
discussed in the examples in this paragraph (b)(5)(iv):

    Example 1. Organization X places a television advertisement 
advocating one of the President's major foreign policy initiatives, as 
outlined by the President in a series of speeches and as drafted into 
proposed legislation. The initiative is popularly known as ``the 
President's World Peace Plan,'' and is voted upon by the Senate four 
days after X's advertisement. The advertisement concludes: ``SUPPORT THE 
PRESIDENT'S WORLD PEACE PLAN!'' The President's plan and position are 
highly publicized during the two weeks before the Senate vote, as 
evidenced by: coverage of the plan on several nightly television network 
news program; more than one article about the plan on the front page of 
a majority of the country's ten largest daily general circulation 
newspapers; and an editorial about the plan in four of the country's ten 
largest daily general circulation newspapers. Although the advertisement 
does not encourage readers to contact legislators or other government 
officials, the advertisement does refer to specific legislation and 
reflect a view on the general subject of the legislation. The 
communication is presumed to be a grass roots lobbying communication.
    Example 2. Assume the same facts as in Example (1), except that the 
advertisement appears three weeks before the Senate's vote on the plan. 
Because the advertisement appears more than two weeks before the 
legislative vote, the advertisement is not within the scope of the 
special rule for mass media communications on highly publicized 
legislation. Accordingly, the advertisement is a grass roots lobbying 
communication only if it is described in the general definition 
contained in paragraph (b)(2) of this section. Because the advertisement 
does not encourage recipients to take action with respect to the 
legislation in question, the advertisement is not a grass roots lobbying 
communication.
    Example 3. Organization Y places a newspaper advertisement 
advocating increased government funding for certain public works 
projects the President has proposed and that are being considered by a 
legislative committee. The advertisement explains the President's 
proposals and concludes: ``SUPPORT FUNDING FOR THESE VITAL PROJECTS!'' 
The advertisement does not encourage readers to contact legislators or 
other government officials nor does it name any undecided legislators, 
but it does name the legislation being considered by the committee. The 
President's proposed funding of public works, however, is not highly 
publicized during the two weeks before the vote: there has been little 
coverage of the issue on nightly television network news programs, only 
one front-page article on the issue in the country's ten largest daily 
general circulation newspapers, and only one editorial about the issue 
in the country's ten largest daily general circulation newspapers. Two 
days after the advertisement appears, the committee votes to approve 
funding of the projects. Although the advertisement appears less than 
two weeks before the legislative vote, the advertisement is not within 
the scope of the special rule for mass media communications on highly 
publicized legislation because the issue of funding for public works 
projects is not highly publicized. Thus, the advertisement is a grass 
roots lobbying communication only if it is described in the general 
definition contained in paragraph (b)(2) of this section. Because the 
advertisement does not encourage recipients to

[[Page 646]]

take action with respect to the legislation in question, the 
advertisement is not a grass roots lobbying communication.
    Example 4. Organization P places numerous advertisements in the mass 
media about a bill being considered by the State Assembly. The bill is 
highly publicized, as evidenced by numerous front-page articles, 
editorials and letters to the editor published in the state's general 
circulation daily newspapers, as well as frequent coverage of the bill 
by the television and radio stations serving the state. The 
advertisements run over a three week period and, in addition to showing 
pictures of a family being robbed at gunpoint, say: ``The State Assembly 
is considering a bill to make gun ownership illegal. This outrageous 
legislation would violate your constitutional rights and the rights of 
other law-abiding citizens. If this legislation is passed, you and your 
family will be criminals if you want to exercise your right to protect 
yourselves.'' The advertisements refer to and reflect a view on a 
specific bill but do not encourage recipients to take action. Sixteen 
days after the last advertisement runs, a State Assembly committee votes 
to defeat the legislation. None of the advertisements is a grass roots 
lobbying communication.
    Example 5. Assume the same facts as in Example (4), except that it 
is publicly announced prior to the advertising campaign that the 
committee vote is scheduled for five days after the last advertisement 
runs. Because of public pressure resulting from the advertising 
campaign, the bill is withdrawn and no vote is ever taken. None of the 
advertisements is a grass roots lobbying communication.

    (c) Exceptions to the definitions of direct lobbying communication 
and grass roots lobbying communication--(1) Nonpartisan analysis, study, 
or research exception--(i) In general. Engaging in nonpartisan analysis, 
study, or research and making available to the general public or a 
segment or members thereof or to governmental bodies, officials, or 
employees the results of such work constitute neither a direct lobbying 
communication under Sec.  56.4911-2(b)(1) nor a grass roots lobbying 
communication under Sec.  56.4911-2(b)(2).
    (ii) Nonpartisan analysis, study, or research. For purposes of this 
section, ``nonpartisan analysis, study, or research'' means an 
independent and objective exposition of a particular subject matter, 
including any activity that is ``educational'' within the meaning of 
Sec.  1.501(c)(3)-1(d)(3). Thus, ``nonpartisan analysis, study, or 
research'' may advocate a particular position or viewpoint so long as 
there is a sufficiently full and fair exposition of the pertinent facts 
to enable the public or an individual to form an independent opinion or 
conclusion. The mere presentation of unsupported opinion, however, does 
not qualify as ``nonpartisan analysis, study, or research''.
    (iii) Presentation as part of a series. Normally, whether a 
publication or broadcast qualifies as ``nonpartisan analysis, study, or 
research'' will be determined on a presentation-by-presentation basis. 
However, if a publication or broadcast is one of a series prepared or 
supported by an electing organization and the series as a whole meets 
the standards of paragraph (c)(1)(ii) of this section, then any 
individual publication or broadcast within the series is not a direct or 
grass roots lobbying communication even though such individual broadcast 
or publication does not, by itself, meet the standards of paragraph 
(c)(1)(ii) of this section. Whether a broadcast or publication is 
considered part of a series will ordinarily depend upon all the facts 
and circumstances of each particular situation. However, with respect to 
broadcast activities, all broadcasts within any period of six 
consecutive months will oridinarily be eligible to be considered as part 
of a series. If an electing organization times or channels a part of a 
series which is described in this paragraph (c)(1)(iii) in a manner 
designed to influence the general public or the action of a legislative 
body with respect to a specific legislative proposal, the expenses of 
preparing and distributing such part of the analysis, study, or research 
will be expenditures for a direct or grass roots lobbying 
communications, as the case may be.
    (iv) Making available results of nonpartisan analysis, study, or 
research. An organization may choose any suitable means, including oral 
or written presentations, to distribute the results of its nonpartisan 
analysis, study, or research, with or without charge. Such means include 
distribution of reprints of speeches, articles and reports; presentation 
of information through conferences, meetings and discussions; and 
dissemination to the news media, including radio, television and 
newspapers, and to other public forums. For

[[Page 647]]

purposes of this paragraph (c)(1)(iv), such communications may not be 
limited to, or be directed toward, persons who are interested solely in 
one side of a particular issue.
    (v) Subsequent lobbying use of certain analysis, study or research. 
Even though certain analysis, study or research is initially within the 
exception for nonpartisan analysis, study or research, subsequent use of 
that analysis, study or research for grass roots lobbying may cause that 
analysis, study or research to be treated as a grass roots lobbying 
communication that is not within the exception for nonpartisan analysis, 
study or research. This paragraph (c)(1)(v) does not cause any analysis, 
study or research to be considered a direct lobbying communication. For 
rules regarding when analysis, study or research is treated as a grass 
roots lobbying communication that is not within the scope of the 
exception for nonpartisan analysis, study or research, see paragraph 
(b)(2)(v) of this section.
    (vi) Directly encouraging action by recipients of a communication. A 
communication that reflects a view on specific legislation is not within 
the nonpartisan analysis, study, or research exception of this paragraph 
(c)(1) if the communication directly encourages the recipient to take 
action with respect to such legislation. For purposes of this section, a 
communication directly encourages the recipient to take action with 
respect to legislation if the communication is described in one or more 
of paragraphs (b)(2)(iii) (A) through (C) of this section. As described 
in paragraph (b)(2)(iv) of this section, a communication would encourage 
the recipient to take action with respect to legislation, but not 
directly encourage such action, if the communication does no more than 
specifically identify one or more legislators who will vote on the 
legislation as: opposing the communication's view with respect to the 
legislation; being undecided with respect to the legislation; being the 
recipient's representative in the legislature; or being a member of the 
legislative committee or subcommittee that will consider the 
legislation.
    (vii) Examples. The provisions of this paragraph (c)(1) may be 
illustrated by the following examples:

    Example 1. Organization M establishes a research project to collect 
information for the purpose of showing the dangers of the use of 
pesticides in raising crops. The information collected includes data 
with respect to proposed legislation, pending before several State 
legislatures, which would ban the use of pesticides. The project takes 
favorable positions on such legislation without producing a sufficiently 
full and fair exposition of the pertinent facts to enable the public or 
an individual to form an independent opinion or conclusion on the pros 
and cons of the use of pesticides. This project is not within the 
exception for nonpartisan analysis, study, or research because it is 
designed to present information merely on one side of the legislative 
controversy.
    Example 2. Organization N establishes a research project to collect 
information concerning the dangers of the use of pesticides in raising 
crops for the ostensible purpose of examining and reporting information 
as to the pros and cons of the use of pesticides in raising crops. The 
information is collected and distributed in the form of a published 
report which analyzes the effects and costs of the use and nonuse of 
various pesticides under various conditions on humans, animals and 
crops. The report also presents the advantages, disadvantages, and 
economic cost of allowing the continued use of pesticides unabated, of 
controlling the use of pesticides, and of developing alternatives to 
pesticides. Even if the report sets forth conclusions that the 
disadvantages as a result of using pesticides are greater than the 
advantages of using pesticides and that prompt legislative regulation of 
the use of pesticides is needed, the project is within the exception for 
nonpartisan analysis, study, or research since it is designed to present 
information on both sides of the legislative controversy and presents a 
sufficiently full and fair exposition of the pertinent facts to enable 
the public or an individual to form an independent opinion or 
conclusion.
    Example 3. Organization O establishes a research project to collect 
information on the presence or absence of disease in humans from eating 
food grown with pesticides and the presence or absence of disease in 
humans from eating food not grown with pesticides. As part of the 
research project, O hires a consultant who prepares a ``fact sheet'' 
which calls for the curtailment of the use of pesticides and which 
addresses itself to the merits of several specific legislative proposals 
to curtail the use of pesticides in raising crops which are currently 
pending before State Legislatures. The ``fact sheet'' presents reports 
of experimental evidence tending to support its conclusions but omits 
any

[[Page 648]]

reference to reports of experimental evidence tending to dispute its 
conclusions. O distributes ten thousand copies to citizens' groups. 
Expenditures by O in connection with this work of the consultant are not 
within the exception for nonpartisan analysis, study, or research.
    Example 4. P publishes a bi-monthly newsletter to collect and report 
all published materials, ongoing research, and new developments with 
regard to the use of pesticides in raising crops. The newsletter also 
includes notices of proposed pesticide legislation with impartial 
summaries of the provisions and debates on such legislation. The 
newsletter does not encourage recipients to take action with respect to 
such legislation, but is designed to present information on both sides 
of the legislative controversy and does present such information fully 
and fairly. It is within the exception for nonpartisan analysis, study, 
or research.
    Example 5. X is satisfied that A, a member of the faculty of Y 
University, is exceptionally well qualified to undertake a project 
involving a comprehensive study of the effects of pesticides on crop 
yields. Consequently, X makes a grant to A to underwrite the cost of the 
study and of the preparation of a book on the effect of pesticides on 
crop yields. X does not take any position on the issues or control the 
content of A's output. A produces a book which concludes that the use of 
pesticides often has a favorable effect on crop yields, and on that 
basis argues against pending bills which would ban the use of 
pesticides. A's book contains a sufficiently full and fair exposition of 
the pertinent facts, including known or potential disadvantages of the 
use of pesticides, to enable the public or an individual to form an 
independent opinion or conclusion as to whether pesticides should be 
banned as provided in the pending bills. The book does not directly 
encourage readers to take action with respect to the pending bills. 
Consequently, the book is within the exception for nonpartisan analysis, 
study, or research.
    Example 6. Assume the same facts as Example (2), except that, 
instead of issuing a report, X presents within a period of 6 consecutive 
months a two-program television series relating to the pesticide issue. 
The first program contains information, arguments, and conclusions 
favoring legislation to restrict the use of pesticides. The second 
program contains information, arguments, and conclusions opposing 
legislation to restrict the use of pesticides. The programs are 
broadcast within 6 months of each other during commensurate periods of 
prime time. X's programs are within the exception for nonpartisan 
analysis, study, or research. Although neither program individually 
could be regarded as nonpartisan, the series of two programs constitutes 
a balanced presentation.
    Example 7. Assume the same facts as in Example (6), except that X 
arranged for televising the program favoring legislation to restrict the 
use of pesticides at 8:00 on a Thursday evening and for televising the 
program opposing such legislation at 7:00 on a Sunday morning. X's 
presentation is not within the exception for nonpartisan analysis, 
study, or research, since X disseminated its information in a manner 
prejudicial to one side of the legislative controversy.
    Example 8. Organization Z researches, writes, prints and distributes 
a study on the use and effects of pesticide X. A bill is pending in the 
U.S. Senate to ban the use of pesticide X. Z's study leads to the 
conclusion that pesticide X is extremely harmful and that the bill 
pending in the U.S. Senate is an appropriate and much needed remedy to 
solve the problems caused by pesticide X. The study contains a 
sufficiently full and fair exposition of the pertinent facts, including 
known or potential advantages of the use of pesticide X, to enable the 
public or an individual to form an independent opinion or conclusion as 
to whether pesticides should be banned as provided in the pending bills. 
In its analysis of the pending bill, the study names certain undecided 
Senators on the Senate committee considering the bill. Although the 
study meets the three part test for determining whether a communication 
is a grass roots lobbying communication, the study is within the 
exception for nonpartisan analysis, study or research, because it does 
not directly encourage recipients of the communication to urge a 
legislator to oppose the bill.
    Example 9. Assume the same facts as in Example (8), except that, 
after stating support for the pending bill, the study concludes: ``You 
should write to the undecided committee members to support this crucial 
bill.'' The study is not within the exception for nonpartisan analysis, 
study or research because it directly encourages the recipients to urge 
a legislator to support a specific piece of legislation.
    Example 10. Organization X plans to conduct a lobbying campaign with 
respect to illegal drug use in the United States. It incurs $5,000 in 
expenses to conduct research and prepare an extensive report primarily 
for use in the lobbying campaign. Although the detailed report discusses 
specific pending legislation and reaches the conclusion that the 
legislation would reduce illegal drug use, the report contains a 
sufficiently full and fair exposition of the pertinent facts to enable 
the public or an individual to form an independent conclusion regarding 
the effect of the legislation. The report does not encourage readers to 
contact legislators regarding the legislation. Accordingly, the report 
does not, in and of itself, constitute a lobbying communication.

[[Page 649]]

    Copies of the report are available to the public at X's office, but 
X does not actively distribute the report or otherwise seek to make the 
contents of the report available to the general public. Whether or not 
X's distribution is sufficient to meet the requirement in Sec.  56.4911-
2(c)(1)(iv) that a nonpartisan communication be made available, X's 
distribution is not substantial (for purposes of Sec.  56.4911-
2(b)(2)(v)(E)) in light of all of the facts and circumstances, including 
the normal distribution pattern of similar nonpartisan reports. X then 
mails copies of the report, along with a letter, to 10,000 individuals 
on X's mailing list. In the letter, X requests that individuals contact 
legislators urging passage of the legislation discussed in the report. 
Because X's research and report were primarily undertaken by X for 
lobbying purposes and X did not make a substantial distribution of the 
report (without an accompanying lobbying message) prior to or 
contemporaneously with the use of the report in lobbying, the report is 
a grass roots lobbying communication that is not within the exception 
for nonpartisan analysis, study or research.
    Example 11. Assume the same facts as in Example (10), except that 
before using the report in the lobbying campaign, X sends the research 
and report (without an accompanying lobbying message) to universities 
and newspapers. At the same time, X also advertises the availability of 
the report in its newsletter. This distribution is similar in scope to 
the normal distribution pattern of similar nonpartisan reports. In light 
of all of the facts and circumstances, X's distribution of the report is 
substantial. Because of X's substantial distribution of the report, X's 
primary purpose will be considered to be other than for use in lobbying 
and the report will not be considered a grass roots lobbying 
communication. Accordingly, only the expenditures for copying and 
mailing the report to the 10,000 individuals on X's mailing list, as 
well as for preparing and mailing the letter, are expenditures for grass 
roots lobbying communications.
    Example 12. Organization M pays for a bumper sticker that reads: 
``STOP ABORTION: Vote NO on Prop. X!'' M also pays for a 30-second 
television advertisement and a billboard that similarly advocate 
opposition to Prop. X. In light of the limited scope of the 
communications, none of the communications is within the exception for 
nonpartisan analysis, study or research. First, none of the 
communications rises to the level of analysis, study or research. 
Second, none of the communications is nonpartisan because none contains 
a sufficiently full and fair exposition of the pertinent facts to enable 
the public or an individual to form an independent opinion or 
conclusion. Thus, each communication is a direct lobbying communication.

    (2) Examinations and discussions of broad social, economic, and 
similar problems. Examinations and discussions of broad social, 
economic, and similar problems are neither direct lobbying 
communications under Sec.  56.4911-2(b)(1) nor grass roots lobbying 
communications under Sec.  56.4911-2(b)(2) even if the problems are of 
the type with which government would be expected to deal ultimately. 
Thus, under Sec. Sec.  56.4911-2(b) (1) and (2), lobbying communications 
do not include public discussion, or communications with members of 
legislative bodies or governmental employees, the general subject of 
which is also the subject of legislation before a legislative body, so 
long as such discussion does not address itself to the merits of a 
specific legislative proposal and so long as such discussion does not 
directly encourage recipients to take action with respect to 
legislation. For example, this paragraph (c)(2) excludes from grass 
roots lobbying under Sec.  56.4911-2(b)(2) an organization's discussions 
of problems such as environmental pollution or population growth that 
are being considered by Congress and various State legislatures, but 
only where the discussions are not directly addressed to specific 
legislation being considered, and only where the discussions do not 
directly encourage recipients of the communication to contact a 
legislator, an employee of a legislative body, or a government official 
or employee who may participate in the formulation of legislation.
    (3) Requests for technical advice. A communication is not a direct 
lobbying communication under Sec.  56.4911-2(b)(1) if the communication 
is the providing of technical advice or assistance to a governmental 
body, a governmental committee, or a subdivision of either in response 
to a written request by the body, committee, or subdivision, as set 
forth in Sec.  53.4945-2(d)(2).
    (4) Communications pertaining to ``self-defense'' by the 
organization. A communication is not a direct lobbying communication 
under Sec.  56.4911-2(b)(1) if either:
    (i) The communication is an appearance before, or communication 
with, any legislative body with respect to a possible action by the body 
that might

[[Page 650]]

affect the existence of the electing public charity, its powers and 
duties, its tax-exempt status, or the deductibility of contributions to 
the organization, as set forth in Sec.  53.4945-2(d)(3);
    (ii) The communication is by a member of an affiliated group of 
organizations (within the meaning of Sec.  56.4911-7(e)), and is an 
appearance before, or communication with, a legislative body with 
respect to a possible action by the body that might affect the existence 
of any other member of the group, its powers and duties, its tax-exempt 
status, or the deductibility of contributions to it;
    (iii) The communication is by an electing public charity more than 
75 percent of the members of which are other organizations that are 
described in section 501(c)(3), and is an appearance before, or 
communication with, any legislative body with respect to a possible 
action by the body which might affect the existence of one or more of 
the section 501(c)(3) member organizations, their powers, duties, or 
tax-exempt status, or the deductibility (under section 170) of 
contributions to one or more of the section 501(c)(3) member 
organizations, but only if the principal purpose of the appearance or 
communication is to defend the section 501(c)(3) member organizations 
(rather than the non-section 501(c)(3) member organizations); or
    (iv) The communication is by an electing public charity that is a 
member of a limited affiliated group or organizations under Sec.  
56.4911-10, and is an appearance before, or communication with, the 
Congress of the United States with respect to a possible action by the 
Congress that might affect the existence of any member of the limited 
affiliated group, its powers and duties, tax-exempt status, or the 
deductibility of contributions to it.
    (v) Under the self-defense exception of paragraphs (c)(4) (i) 
through (iv) of this section, a charity may communicate with an entire 
legislative body, with committees or subcommittees of a legislative 
body, with individual legislators, with legislative staff members, or 
with representatives of the executive branch who are involved with the 
legislative process, so long as such communication is limited to the 
prescribed subjects. Similarly, under the self-defense exception, a 
charity may make expenditures in order to initiate legislation if such 
legislation concerns only matters which might affect the existence of 
the charity, its powers and duties, its tax-exempt status, or the 
deductibility of contributions to such charity. For examples 
illustrating the application and scope of the self-defense exception of 
this paragraph (c)(4), see Sec.  53.4945-2(d)(3)(ii).
    (d) Definitions. For purposes of section 4911 and the regulations 
thereunder--
    (1) Legislation--(i) In general. ``Legislation'' includes action by 
the Congress, any state legislature, any local council, or similar 
legislative body, or by the public in a referendum, ballot initiative, 
constitutional amendment, or similar procedure. ``Legislation'' includes 
a proposed treaty required to be submitted by the President to the 
Senate for its advice and consent from the time the President's 
representative begins to negotiate its position with the prospective 
parties to the proposed treaty.
    (ii) Definition of specific legislation. For purposes of paragraphs 
(b)(1) and (b)(2) of this section, ``specific legislation'' includes 
both legislation that has already been introduced in a legislative body 
and a specific legislative proposal that the organization either 
supports or opposes. In the case of a referendum, ballot initiative, 
constitutional amendment, or other measure that is placed on the ballot 
by petitions signed by a required number or percentage of voters, an 
item becomes ``specific legislation'' when the petition is first 
circulated among voters for signature.
    (iii) Examples. The terms ``legislation'' and ``specific 
legislation'' are illustrated using the following examples:

    Example 1. A nonmembership organization includes in its newsletter 
an article about problems with the use of pesticide X that states in 
part: ``Legislation that is pending in Congress would prohibit the use 
of this very dangerous pesticide. Fortunately, the legislation will 
probably be passed. Write your congressional representatives about this 
important issue.'' This is a grass roots lobbying communication that 
refers to and reflects a view on specific legislation and that 
encourages recipients to take action with respect to that legislation.

[[Page 651]]

    Example 2. An organization based in State A notes in its newsletter 
that State Z has passed a bill to accomplish a stated purpose and then 
says that State A should pass such a bill. The organization urges 
readers to write their legislators in favor of such a bill. No such bill 
has been introduced into the State A legislature. The organization has 
referred to and reflected a view on a specific legislative proposal and 
has also encouraged readers to take action thereon.

    (2) Action. The term ``action'' in paragraph (d)(1)(i) of this 
section is limited to the introduction, amendment, enactment, defeat or 
repeal of Acts, bills, resolutions, or similar items.
    (3) Legislative body. ``Legislative body'' does not include 
executive, judicial, or administrative bodies.
    (4) Administrative bodies. ``Administrative bodies'' includes school 
boards, housing authorities, sewer and water districts, zoning boards, 
and other similar Federal, State, or local special purpose bodies, 
whether elective or appointive. Thus, for example, for purposes of 
section 4911, the term ``any attempt to influence any legislation'' does 
not include attempts to persuade an executive body or department to 
form, support the formation of, or to acquire property to be used for 
the formation or expansion of, a public park or equivalent preserves 
(such as public recreation areas, game, or forest preserves, and soil 
demonstration areas) established or to be established by act of 
Congress, by executive action in accordance with an act of Congress, or 
by a State, municipality or other governmental unit described in section 
170(c)(1), as compared with attempts to persuade a legislative body, a 
member thereof, or other governmental official or employee, to promote 
the appropriation of funds for such an acquisition or other legislative 
authorization of such an acquisition. Therefore, for example, an 
organization would not be influencing legislation for purposes of 
section 4911, if it proposed to a Park Authority that it purchase a 
particular tract of land for a new park, even though such an attempt 
would necessarily require the Park Authority eventually to seek 
appropriations to support a new park. However, in such a case, the 
organization would be influencing legislation, for purposes of section 
4911, if it provided the Park Authority with a proposed budget to be 
submitted to a legislative body, unless such submission is described by 
one of the exceptions set forth in paragraph (c) of this section.



Sec.  56.4911-3  Expenditures for direct and/or grass roots 
lobbying communications.

    (a) Definition of term ``expenditures for''--(1) In general. This 
Sec.  56.4911-3 contains allocation rules regarding what portion of a 
lobbying communication's costs is a direct lobbying expenditure, what 
portion is a grass roots expenditure and what portion is, in certain 
cases, a nonlobbying expenditure. Except as otherwise indicated in this 
paragraph (a), all costs of preparing a direct or grass roots lobbying 
communication are included as expenditures for direct or grass roots 
lobbying. Expenditures for a direct or grass roots lobbying 
communication (``lobbying expenditures'') include amounts paid or 
incurred as current or deferred compensation for an employee's services 
attributable to the direct or grass roots lobbying communication, and 
the allocable portion of administrative, overhead, and other general 
expenditures attributable to the direct or grass roots lobbying 
communication. For example, except as otherwise provided in this 
paragraph (a), all expenditures for researching, drafting, reviewing, 
copying, publishing and mailing a direct or grass roots lobbying 
communication, as well as an allocable share of overhead expenses, are 
included as expenditures for direct or grass roots lobbying.
    (2) Allocation of mixed purpose expenditures--(i) Nonmembership 
communications. Except as provided in paragraph (a)(2)(ii) of this 
section, lobbying expenditures for a communication that also has a bona 
fide nonlobbying purpose must include all costs attributable to those 
parts of the communication that are on the same specific subject as the 
lobbying message. All costs attributable to those parts of the 
communication that are not on the same specific subject as the lobbying 
message are not included as lobbying expenditures for allocation 
purposes. Whether or not a portion of a communication is on the same 
specific subject

[[Page 652]]

as the lobbying message will depend on the surrounding facts and 
circumstances. In general, a portion of a communication will be on the 
same specific subject as the lobbying message if that portion discusses 
an activity or specific issue that would be directly affected by the 
specific legislation that is the subject of the lobbying message. 
Moreover, discussion of the background or consequences of the specific 
legislation, or discussion of the background or consequences of an 
activity or specific issue affected by the specific legislation, is also 
considered to be on the same specific subject as the lobbying 
communication.
    (ii) Membership communications. In the case of lobbying expenditures 
for a communication that also has a bona fide nonlobbying purpose and 
that is sent only or primarily to members, an electing public charity 
must make a reasonable allocation between the amount expended for the 
lobbying purpose and the amount expended for the nonlobbying purpose. An 
electing public charity that includes as a lobbying expenditure only the 
amount expended for the specific sentence or sentences that encourage 
the recipient to take action with respect to legislation has not made a 
reasonable allocation. For purposes of this paragraph, a communication 
is sent only or primarily to members if more than half of the recipients 
of the communication are members of the electing public charity making 
the communication within the meaning of Sec.  56.4911-5. See Sec.  
56.4911-5 for separate rules on communications sent only or primarily to 
members. Nothing in this paragraph (a) shall change any allocation 
required by Sec.  56.4911-5.
    (3) Allocation of mixed lobbying. If a communication (to which Sec.  
56.4911-5 does not apply) is both a direct lobbying communication and a 
grass roots lobbying communication, the communication will be treated as 
a grass roots lobbying communication except to the extent that the 
electing public charity demonstrates that the communication was made 
primarily for direct lobbying purposes, in which case a reasonable 
allocation shall be made between the direct and the grass roots lobbying 
purposes served by the communication.
    (b) Examples. The provisions of paragraph (a) of this section are 
illustrated by the following examples. Except where otherwise explicitly 
stated, the expenditure test election under section 501(h) is assumed to 
be in effect for all organizations discussed in the examples in this 
paragraph (b). See Sec.  56.4911-5 for special rules applying to the 
member communications described in some of the following examples.

    Example 1. Organization R makes the services of E, one of its paid 
executives, available to S, an organization described in section 
501(c)(4) of the Code. E works for several weeks to assist S in 
developing materials that urge voters to contact their congressional 
representatives to indicate their support for specific legislation. In 
performing this work, E uses office space and clerical assistance 
provided by R. R pays full salary and benefits to E during this period 
and receives no reimbursement from S for these payments or for the other 
facilities and assistance provided. All expenditures of R, including 
allocable office and overhead expenses, that are attributable to this 
assignment are grass roots expenditures because E was engaged in an 
attempt to influence legislation.
    Example 2. An organization distributes primarily to nonmembers a 
pamphlet with two articles on unrelated subjects. The total cost of 
preparing, printing and mailing the pamphlet is $11,000, $1,000 for 
preparation and $10,000 for printing and mailing. The cost of preparing 
one article, a nonlobbying communication, is $600. The article is 
printed on three of the four pages in the pamphlet. The cost of 
preparing the second article, a grassroots lobbying communication that 
addresses only one specific subject, is $400. This article is printed on 
one page of the four page pamphlet. In this situation, $400 of 
preparation costs and $2,500 (25% of $10,000) of printing and mailing 
costs are expenditures for a grass roots lobbying communication.
    Example 3. Assume the same facts as in Example (2), except that the 
pamphlet is distributed only to members. In addition, assume the second 
article states that the recipient members should contact their 
congressional representatives. The organization allocates $400 of 
preparation costs and $2,500 of printing and mailing costs as 
expenditures for direct lobbying (see Sec.  56.4911-5(c)). The 
allocation is reasonable for purposes of Sec.  56.4911-3(a)(2)(ii).
    Example 4. Organization J places a full-page advertisement in a 
newspaper. The advertisement urges passage of pending legislation to 
build three additional nuclear powered submarines, and states that 
readers

[[Page 653]]

should write their Congressional representatives in favor of the 
legislation. The advertisement also provides a general description of 
J's purposes and activities, invites readers to become members of J and 
asks readers to contribute money to J. Except for the cost of the 
portion of the advertisement describing J's purposes and activities and 
the portion specifically seeking members and contributions, the entire 
cost of the advertisement is an expenditure for a grass roots lobbying 
communication, because the entire advertisement, except for the lines 
specifically describing J and specifically seeking members and 
contributions, is on the same specific subject as the grass roots 
lobbying message.
    Example 5. Assume the same facts as in Example (4), except that J 
places in the newspaper two separate half-page advertisements instead of 
one full-page advertisement. One of the two advertisements discusses the 
need for three additional nuclear powered submarines and urges readers 
to write their Congressional representatives in favor of the pending 
legislation to build the three submarines. The other advertisement 
contains only the membership and fundraising appeals, along with a 
general description of J's purposes and activities. The half-page 
advertisement urging readers to write to Congress is a grass roots 
lobbying communication and all of J's expenditures for producing and 
placing that advertisement are expenditures for a grass roots lobbying 
communication. J's expenditures for the other half-page advertisement 
are not expenditures for a grass roots or direct lobbying communication.
    Example 6. Assume the same facts as in Example (4), except that the 
communication by J is in a letter mailed only to members of J, rather 
than in newspaper advertisement, and the invitation to become a member 
of J is an invitation to join a new membership category. In addition, 
assume that the communication states that the member recipients should 
ask nonmembers to write their Congressional representatives. J allocates 
one-half of the cost of the mailing as an expenditure for a grass roots 
lobbying communication (see Sec.  56.4911-5(d)). Because the 
communication had both bona fide nonlobbying (e.g., membership 
solicitation and fundraising) purposes as well as lobbying purposes, J's 
allocation of one-half of the cost of the communication to grass roots 
lobbying and one-half to nonlobbying is reasonable for purposes of Sec.  
56.4911-3(a)(2)(ii).
    Example 7. A particular monthly issue of organization X's 
newsletter, which is distributed mainly to nonmembers of X, has three 
articles of equal length. The first article is a grass roots lobbying 
communication, the sole specific subject of which is pending legislation 
to help protect seals from being slaughtered in certain foreign 
countries. The second article discusses the rapid decline in the world's 
whale population, particularly because of the illegal hunting of whales 
by foreign countries. The third article deals with air pollution and the 
acid rain problem in North America. Because the first article is a grass 
roots lobbying communication, all of the costs allocable to that article 
(e.g., one-third of the newsletter's printing and mailing costs) are 
lobbying expenditures. The second article is not a lobbying 
communication and the pending legislation relating to seals addressed in 
the first article does not affect the illegal whale hunting activities. 
Because the second and third articles are not lobbying communications 
and are also not on the same specific subject as the first article, no 
portion of the costs attributable to those articles is a grass roots 
lobbying expenditure.
    Example 8. Organization T, a nonmembership organization, prepares a 
three page document that is mailed to 3,000 persons on T's mailing list. 
The first two pages of the three page document, titled ``The Need for 
Child Care,'' support the need for additional child care programs, and 
include statistics on the number of children living in homes where both 
parents work or in homes with a single parent. The two pages also make 
note of the inadequacy of the number of day care providers to meet the 
needs of these parents. The third page of the document, titled ``H.R. 
1,'' indicates T's support of H.R. 1, a bill pending in the U.S. House 
of Representatives. The document states that H.R. 1 will provide for 
$10,000,000 in additional subsidies to child care providers, primarily 
for those providers caring for lower income children. The third page of 
the document also notes that H.R. 1 includes new federal standards 
regulating the quality of child care providers. The document ends with 
T's request that recipients contact their congressional representative 
in support of H.R. 1. The entire three page document is on the same 
specific subject, and, therefore, all expenditures of preparing and 
distributing the three page document are grass roots lobbying 
expenditures.
    Example 9. Assume the same facts as in Example (8), except that the 
document has a fourth page. The fourth page does not refer to the 
general need for child care or the specific need for additional child 
care providers. Instead, the fourth page advocates that a particular 
federal agency commence, under its existing statutory authority, 
licensing of day care providers in order to promote safe and effective 
child care. The cost of the fourth page is not a lobbying expenditure.
    Example 10. Assume the same facts as in Example (8), except that T 
is a membership organization, 75 percent of the recipients of the three 
page document are members of T, and 25 percent of the recipients are 
nonmembers and are not subscribers within the meaning of Sec.  56.4911-
5(f)(5). Assume also that the document states that readers should

[[Page 654]]

write to Congress, but does not state that the readers should urge 
nonmembers to write to Congress. T treats the document as having a bona 
fide nonlobbying purpose, the purpose of educating its members about the 
need for child care. Accordingly, T allocates one-half of the cost of 
preparing and distributing the document as a lobbying expenditure (see 
Sec.  56.4911-5(e)(2)(i)), of which 75 percent is a direct lobbying 
expenditure (see Sec.  56.4911-5(e)(2)(iii)) and 25 percent is a grass 
roots lobbying expenditure (see Sec.  56.4911-5(e)(2)(ii)). The 
remaining one-half is allocated as a nonlobbying expenditure. T's 
allocation is reasonable for purposes of Sec.  56.4911-3(a)(2)(ii) and 
is correct for purposes of Sec.  56.4911-5(e).
    Example 11. Assume the same facts as in Example (10), except that T 
allocates one percent of the cost of preparing and distributing the 
document as a lobbying expenditure (for purposes of Sec.  56.4911-
5(e)(2)) and 99 percent as a nonlobbying expenditure. T's allocation is 
based upon the fact that out of 200 lines in the document, only two 
lines state that the recipient should contact legislators about the 
pending legislation. T's allocation is unreasonable for purposes of 
Sec.  56.4911-3(a)(2)(ii).
    Example 12. Organization F, a nonmembership organization, sends a 
one page letter to all persons on its mailing list. The only subject of 
the letter is the organization's opposition to a pending bill allowing 
private uses of certain national parks. The letter requests recipients 
to send letters opposing the bill to their congressional 
representatives. A second one page letter is sent in the same envelope. 
The second letter discusses the broad educational activities and 
publications of the organization in all areas of environmental 
protection and ends by requesting the recipient to make a financial 
contribution to organization F. Since the separate second letter is on a 
different subject from the lobbying letter, and the letters are of equal 
length, 50 percent of the mailing costs must be allocated as an 
expenditure for a grass roots lobbying communication.
    Example 13. Assume the same facts as in Example (12), except that F 
is a membership organization and the letters in question are sent 
primarily (90 percent) to members. The other 10 percent of the 
recipients are nonmembers and are not subscribers within the meaning of 
Sec.  56.4911-5(f)(5). Assume also that the first letter does not state 
that readers should urge nonmembers to write to legislators. F allocates 
one-half of the mailing costs as a lobbying expenditure, of which 90 
percent is a direct lobbying expenditure and 10 percent is a grass roots 
lobbying expenditure (see Sec.  56.4911-5(e)(2)). F's allocation is 
reasonable for purposes of Sec.  56.4911-3(a)(2)(ii) and is correct for 
purposes of Sec.  56.4911-5.

    (c) Certain transfers treated as lobbying expenditures--(1) Transfer 
earmarked for grass roots purposes. A transfer is a grass roots 
expenditure to the extent that it is earmarked (as defined in Sec.  
56.4911-4(f)(4)) for grass roots lobbying purposes and is not described 
in Sec.  56.4911-4(e).
    (2) Transfer earmarked for direct and grass roots lobbying. A 
transfer that is earmarked for direct lobbying purposes or for direct 
lobbying and grass roots lobbying purposes is treated as a grass roots 
expenditure in full except to the extent the transferor demonstrates 
that all or part of the amounts transferred were expended for direct 
lobbying purposes, in which case that part of the amounts transferred is 
a direct lobbying expenditure by the transferor. This paragraph (c)(2) 
shall not apply to any expenditure described in Sec.  56.4911-4(e).
    (3) Certain transfers to noncharities that lobby--(i) Limited 
application of paragraph (c)(3)--(A) In general. This paragraph (c)(3) 
applies only to transfers for less than fair market value from an 
electing public charity to any noncharity that makes lobbying 
expenditures. A noncharity is any entity that is not described in 
section 501(c)(3). In order for this paragraph to apply, the electing 
public charity must transfer to a noncharity more in value than it 
receives in return. For example, this paragraph does not apply to an 
electing public charity's fair market value payment of rent to a 
landlord. However, this paragraph does apply where an electing public 
charity and a noncharity share office space and the electing public 
charity pays more than fair market value rent to the noncharity. 
Similarly, this paragraph applies where an electing public charity sells 
goods or services to a noncharity for less than fair market value. See 
paragraphs (c)(3)(i) (B), (C) and (D) of this section for exceptions 
where non-fair market value transfers are not covered by this paragraph 
(c)(3). See paragraph (c)(3)(i)(E) of this section to determine the 
amount of any non-fair market value transfer covered by this paragraph 
(c)(3). See paragraph (c)(3)(ii) of this section for the rules that 
apply to transfers governed by this paragraph (c)(3).

[[Page 655]]

    (B) Exception for controlled grants. Notwithstanding paragraph 
(c)(3)(i)(A) of this section, this paragraph (c)(3) does not apply where 
an electing public charity makes a grant to a noncharity that is a 
controlled grant (as defined in Sec.  56.4911-4(f)(3)).
    (C) Exception for transfers that artificially inflate exempt purpose 
expenditures. Notwithstanding paragraph (c)(3)(i)(A) of this section, 
this paragraph (c)(3) does not apply where an electing public charity 
makes a grant to a noncharity that is an expenditure described in Sec.  
56.4911-4(e) (relating to grants that artificially inflate exempt 
purpose expenditures).
    (D) Exception for substantially related activity. Notwithstanding 
paragraph (c)(3)(i)(A) of this section, this paragraph (c)(3) does not 
apply where an electing public charity, in the course of an activity 
that is substantially related to the accomplishment of the electing 
public charity's exempt purposes, makes goods or services widely 
available for less than fair market value to individual members of the 
general public and those goods or services are actually purchased (or 
consumed for no charge) by a substantial number of wholly unrelated 
individual members of the general public for less than fair market 
value. For purposes of the preceding sentence, the term ``individual 
member of the general public'' does not include any person or entity 
directly or indirectly affiliated with the electing public charity in 
question. The following example illustrates this paragraph (c)(3)(i)(D):

    Example. Organization P is an educational organization dedicated to 
preserving the environment. One of P's activities is educating the 
public about the benefits of installing cost-effective passive solar 
energy systems, thereby helping to preserve the environment. P charges 
for its extensive literature and advice, but the charges are less than 
the fair market value of the literature and advice. P makes its 
literature and advice widely available to individual members of the 
general public by advertising in various media and by pamphlets 
distributed in various areas. P annually provides its literature and 
advice for less than fair market value to 500 wholly unrelated families, 
businesses, and tax-exempt organizations. Several of the businesses and 
tax-exempt organizations make lobbying expenditures within the meaning 
of section 4911. P's provision of its goods and services to these 
entities is not covered by this paragraph (c)(3) (and thus does not give 
rise to a lobbying expenditure by P under paragraph (c)(3)(ii)).

    (E) Determination of amount of transfer governed by paragraph 
(c)(3). Where an electing public charity receives nothing of value in 
return for its transfer, the amount of the transfer governed by this 
paragraph (c)(3) is the greater of the fair market value or the cost of 
the goods or services transferred to the noncharity. Where the 
noncharity transfers something of value to the electing public charity 
in return for the charity's transfer, but that payment is less than the 
fair market value of the charity's transfer to the noncharity, the 
amount of the transfer governed by this paragraph (c)(3) is the excess 
of: first, the greater of the fair market value or cost of the goods or 
services transferred to the noncharity over, second, the value of the 
amount transferred to the charity. For example, if an electing public 
charity transfers $10,000 of goods and services to a noncharity that 
makes lobbying expenditures in return for payment by the noncharity of 
$2,000, the amount of the transfer governed by this paragraph (c)(3) is 
$8,000.
    (ii) Rules governing transfers to which paragraph (c)(3) applies. A 
transfer to which this paragraph (c)(3) applies is treated in whole or 
in part as a grass roots and/or direct lobbying expenditure by the 
transferor in accordance with paragraphs (c)(3)(ii) (A), (B) and (C) of 
this section. In applying those paragraphs, the expenditures of the 
transferee will be determined as if the regulations under section 4911 
applied to the transferee. This paragraph (c)(3) discusses only when 
certain transfers are lobbying expenditures by the transferor. This 
paragraph does not address other issues that may arise when an electing 
public charity makes a noncontrolled grant to a noncharity. Nothing in 
this paragraph (c)(3) shall be used to interpret issues relating to 
noncontrolled grants by charities to noncharities, such as whether the 
noncontrolled grant is consistent with the continued tax-exempt status 
of the electing public charity.
    (A) Transfers treated as grass roots expenditures. The transfer is 
treated as a

[[Page 656]]

grass roots expenditure to the extent of the lesser of two amounts: The 
amount of the transfer and the amount of the transferee's grass roots 
expenditures.
    (B) Transfers treated as direct lobbying expenditures. If the 
transfer is greater than the transferee's grass roots expenditures, the 
excess is treated as a direct lobbying expenditure, but only to the 
extent of the transferee's direct lobbying expenditures. (If, however, 
the transfer is less than the transferee's grass roots expenditures, 
none of the transfer is a direct lobbying expenditure.)
    (C) Transfers treated as nonlobbying. If the transfer is greater 
than the sum of the transferee's grass roots and direct lobbying 
expenditures, the excess of the transfer over those lobbying expenses is 
not a lobbying expenditure.
    (iii) Example. The following example illustrates the application of 
this paragraph (c)(3):

    Example. Organization C, an electing public charity, shares employee 
E with N, a noncharity that makes lobbying expenditures. N's grass roots 
expenditures are $5,000 and its direct lobbying expenditures are 
$25,000. Each organization pays one-half of the $100,000 in direct and 
overhead costs associated with E. E devotes one-quarter of his time to C 
and three-quarters of his time to N. In substance, this arrangement is a 
transfer (for less than fair market value) from C to N in the amount of 
$25,000 (one-quarter of the $100,000 of direct and overhead costs 
associated with E's work). Accordingly, C is treated as having made a 
$5,000 grass roots expenditure (the lesser of N's grass roots 
expenditures ($5,000) or the amount of the transfer ($25,000)). C is 
also treated as having made a $20,000 direct lobbying expenditure (the 
lesser of N's direct lobbying expenditures ($25,000) or the remaining 
amount of the transfer ($20,000)).



Sec.  56.4911-4  Exempt purpose expenditures.

    (a) Application. This section provides rules under section 4911(e) 
for determining an electing public charity's ``exempt purpose 
expenditures'' for a taxable year for purposes of section 4911(c)(2) and 
Sec.  56.4911-1(c)(2). Those two sections generally define an electing 
public charity's lobbying limit (lobbying nontaxable amount) as a 
sliding scale percentage of the organization's exempt purpose 
expenditures. In determining an electing public charity's exempt purpose 
expenditures, no expenditure shall be counted twice by an organization.
    (b) Included expenditures. Amounts paid or incurred by an 
organization that are exempt purpose expenditures include--
    (1) Amounts paid or incurred to accomplish a purpose enumerated in 
section 170(c)(2)(B), including (but not limited to) the amount of any 
transfer made by the organization (other than a transfer described in 
paragraph (e) of this section) to another organization to accomplish the 
transferor's exempt purposes, and including amounts expended by an 
organization out of transfers (other than a transfer described in 
paragraph (e) of this section) for which the organization is the 
transferee,
    (2) Amounts paid or incurred as current or deferred compensation for 
an employee's services for a purpose enumerated in section 170(c)(2)(B),
    (3) The allocable portion of administrative overhead, and other 
general expenditures attributable to the accomplishment of a purpose 
enumerated in section 170(c)(2)(B),
    (4) Lobbying expenditures (as defined in Sec.  56.4911-2(a)) whether 
or not for a purpose enumerated in section 170(c)(2)(B),
    (5) Amounts paid or incurred for activities described in Sec.  
56.4911-2(c),
    (6) Amounts paid or incurred for activities described in Sec.  
56.4811-5 that are not lobbying expenditures,
    (7) A reasonable allowance for exhaustion, wear and tear, 
obsolescence or amortization, of assets to the extent used for one or 
more of the purposes described in paragraphs (b)(1) through (6) of this 
section, computed on a straight-line basis (for this purpose, an 
allowance for depreciation will be treated as reasonable if based on a 
useful life that would satisfy section 321(k)(3)(A) as in effect on 
January 1, 1985), and
    (8) Fundraising expenditures (but see section 4911(e)(1)(C) and 
paragraphs (c)(3) and (4) of this section.)
    (c) Excluded expenditures. Notwithstanding paragraph (b) of this 
section, exempt purpose expenditures do not include--
    (1) Amounts paid or incurred that are neither expenditures to 
accomplish a

[[Page 657]]

purpose enumerated in section 170(c)(2)(B), lobbying expenditures (as 
defined in Sec.  56.4911-2(a)), nor expenditures described in paragraph 
(b)(5), (6) or (8) of this section,
    (2) The amounts of any transfer described in paragraph (e) of this 
section,
    (3) Amounts paid to or incurred for a separate fundraising unit (as 
defined in paragraph (f)(2) of this section) of an organization or of an 
affiliated organization (see Sec.  56.4911-7(a)),
    (4) Amounts paid to or incurred for any person not an employee, or 
any organization not an affiliated organization, if paid or incurred 
primarily for fundraising, but only if such person or organization 
engages in fundraising, fundraising counselling or the provision of 
similar advice or services,
    (5) Amounts paid or incurred that are properly chargeable to a 
capital account, determined in accordance with the principles that apply 
under section 263 or, as applicable, section 263A, with respect to an 
unrelated trade or business,
    (6) Amounts paid or incurred for a tax that is not imposed in 
connection with the organization's efforts to accomplish a purpose 
described in section 170(c)(2)(B), such as taxes imposed under sections 
511(a)(1) and 4911(a), and
    (7) Amounts paid or incurred for the production of income. For 
purposes of this section, amounts are paid or incurred for the 
production of income if they are paid or incurred for a purpose or 
activity that is not substantially related (aside from the need of the 
organization for income or funds or the use it makes of the profits 
derived) to 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. For example, the costs of 
managing an endowment are amounts that are paid or incurred for the 
production of income and are thus not exempt purpose expenditures. 
Fundraising expenditures are not, for purposes of this section, amounts 
that are paid or incurred for the production of income. Instead, the 
determination of whether fundraising costs are exempt purpose 
expenditures must be made with reference to section 4911(e)(1)(C) and 
paragraphs (b)(8), (c)(3) and (c)(4) of this section.
    (d) Certain transfers treated as exempt purpose expenditures--(1) An 
organization's transfer will be treated as an exempt purpose expenditure 
under paragraph (b)(1) of this section if it is--
    (i) Described in either paragraph (d)(2) or (d)(3) of this section, 
and
    (ii) Not described in paragraph (e) of this section.
    (2) A transfer is described in this paragraph (d)(2) if it is made 
to an organization described in section 501(c)(3) in furtherance of the 
transferor's exempt purposes and is not earmarked for any purpose other 
than a purpose described in section 170(c)(2)(B). Thus, a payment of 
dues by a local or state organization to, respectively, a state or 
national organization that is described in section 501(c)(3) is 
considered an exempt purpose expenditure of the transferor to the extent 
it is not otherwise earmarked.
    (3) A transfer is described in this paragraph (d)(3) if it is a 
controlled grant (as defined in paragraph (f)(3) of this section), but 
only to the extent of the amounts that are paid or incurred by the 
transferee that would be exempt purpose expenditures if paid or incurred 
by the transferor.
    (e) Transfers not exempt purpose expenditures--(1) An organization's 
transfer is described in this paragraph (e) if it is described in one of 
paragraphs (e)(2) through (e)(4).
    (2) A transfer is described in this paragraph (e)(2) if it is made 
to a member of any affiliated group (as defined in Sec.  56.4911-7(e)) 
of which the transferor is a member.
    (3) A transfer is described in this paragraph (e)(3) if the 
Commissioner determines that the transfer artificially inflates the 
amount of the transferor's or transferee's exempt purpose expenditures. 
In general, the Commissioner will make that determination if a 
substantial purpose of a transfer is to inflate those exempt purpose 
expenditures. A transfer described in this paragraph will not be 
considered an exempt purpose expenditure of the transferor, but will be 
an exempt purpose expenditure of the transferee to the extent

[[Page 658]]

that the transferee expends the transfer in the active conduct of its 
charitable activities or attempts to influence legislation. Standards 
similar to those found in Sec.  53.4942(b)-1(b) may be applied in 
determining whether the transferee has expended amounts in the ``active 
conduct'' of its charitable activities or attempts to influence 
legislation.
    (4) A transfer is described in this paragraph (e)(4) if it is not a 
controlled grant and is made to an organization not described in section 
501(c)(3) that does not attempt to influence legislation.
    (f) Definitions--(1) For purposes of paragraph (c) of this section, 
``fundraising'' includes--
    (i) Soliciting dues or contributions from members of the 
organization, from persons whose dues are in arrears, or from the 
general public,
    (ii) Soliciting grants from businesses or other organizations, 
including organizations described in section 501(c)(3), or
    (iii) Soliciting grants from a governmental unit referred to in 
section 170(c)(1), or any agency or instrumentality thereof.
    (2) For purposes of paragraph (c) of this section, a separate 
fundraising unit of any organization must consist of either two or more 
individuals a majority of whose time is spent on fundraising for the 
organization, or any separate accounting unit of the organization that 
is devoted to fundraising. For purposes of paragraph (c) of this 
section, amounts paid to or incurred for a separate fundraising unit 
include all amounts incurred for the creation, production, copying, and 
distribution of the fundraising portion of a separate fundraising unit's 
communication. (For example, an electing public charity that has a 
separate fundraising unit may not count the cost of postage for a 
separate fundraising unit's communication as an exempt purpose 
expenditure even though, under the electing public charity's accounting 
system, that cost is attributable to the mailroom rather than to the 
separate fundraising unit.)
    (3) For purposes of this section, a ``controlled grant'' is a grant 
made by an eligible organization described in Sec.  1.501(h)-2(b) to an 
organization not described in section 501(c)(3) that meets the following 
requirements:
    (i) The donor limits the grant to a specific project of the 
recipient that is in furtherance of the donor's (nonlobbying) exempt 
purposes; and
    (ii) The donor maintains records to establish that the grant is used 
in furtherance of the donor's (nonlobbying) exempt purposes.
    (4) A transfer, including a grant or payment of dues, is 
``earmarked'' for a specific purpose--
    (i) To the extent that the transferor directs the transferee to add 
the amount transferred to a fund established to accomplish the purpose, 
or
    (ii) To the extent of the amount transferred or, if less, the amount 
agreed upon to the expended to accomplish the purpose, if there exists 
an agreement, oral or written, whereby the transferor may cause the 
transferee to expend amounts to accomplish the purpose or whereby the 
transferee agrees to expend an amount to accomplish the purpose.
    (g) Example. The provisions of this section are illustrated by the 
following example:

    Example. Organization X is an exempt organization described in 
section 501(c)(3) that is organized for the purpose of rehabilitating 
alcoholics. X elected to be subject to the provisions of section 501(h) 
in 1981. For 1981, X had the following expenditures that are included in 
its exempt purpose expenditures to the extent indicated.

------------------------------------------------------------------------
                                               Total        Includible
               Description                   (dollars)       (dollars)
------------------------------------------------------------------------
Cost of real estate purchased for use as
 half-way house for alcoholics,
 attributable to the following:
    Land................................          30,000  ..............
    Building............................         200,000  ..............
    Depreciation 40-year useful life....  ..............           5,000
Expenses of operating its half-way house         170,000         170,000
Administrative expenses of the                    95,000          95,000
 organization allocated to the operation
 of its half-way house..................
Depreciation and allowances for                   10,000          10,000
 equipment..............................
Expenses related to attempts to                   40,000          40,000
 influence legislation (lobbying
 expenditures)..........................

[[Page 659]]

 
Amounts paid to Z by the Organization             35,000  ..............
 for fundraising........................
                                         -------------------------------
      Total.............................         580,000         320,000
------------------------------------------------------------------------

    Note: For 1981, X's exempt purpose expenditures total $320,000. The 
$35,000 paid by X to Z for fundraising is not included in the exempt 
purpose expenditures total. All lobbying expenses are included in full. 
Only depreciation computed on a straight-line basis is included in 
exempt purpose expenditures.



Sec.  56.4911-5  Communications with members.

    (a) In general. For purposes of section 4911, expenditures for 
certain communications between an organization and its members 
(``membership communications'') are treated more leniently than are 
communications to nonmembers. This Sec.  56.4911-5 contains rules about 
the more lenient treatment. In certain cases, this section provides that 
expenditures for a membership communication are not lobbying 
expenditures even though those expenditures would be lobbying 
expenditures if the communication were to nonmembers. In other cases, 
this section provides that expenditures for a membership communication 
are direct lobbying expenditures even though those expenditures would be 
grass roots expenditures if the communication were to nonmembers. 
Paragraphs (b), (c) and (d) of this section set forth the more lenient 
rules that apply for communications that are directed only to members. 
Paragraph (e) of this section sets forth the more lenient rules that 
apply for communications that are directed primarily, but not solely, to 
members. Paragraph (f) of this section sets forth certain definitions 
and special rules.
    (b) Communications (directed only to members) that are not lobbying 
communications. Expenditures for a communication that refers to, and 
reflects a view on, specific legislation are not lobbying expenditures 
if the communication satisfies the following requirements:
    (1) The communication is directed only to members of the 
organization;
    (2) The specific legislation the communication refers to, and 
reflects a view on, is of direct interest to the organization and its 
members;
    (3) The communication does not directly encourage the member to 
engage in direct lobbying (whether individually or through the 
organization); and
    (4) The communication does not directly encourage the member to 
engage in grass roots lobbying (whether individually or through the 
organization).
    (c) Communications (directed only to members) that are direct 
lobbying communications. Expenditures for a communication that refers 
to, and reflects a view on, specific legislation and that satisfies the 
requirements of paragraphs (b)(1), (b)(2), and (b)(4) of this section, 
but does not satisfy the requirements of paragraph (b)(3) of this 
section, are treated as expenditures for direct lobbying.
    (d) Communications (directed only to members) that are grass roots 
lobbying communications. Expenditures for a communication that refers 
to, and reflects a view on, specific legislation and that satisfies the 
requirements of paragraphs (b)(1) and (b)(2) of this section, but does 
not satisfy the requirements of paragraph (b)(4) of this section, are 
treated as grass roots expenditures (whether or not the communication 
satisfies the requirements of paragraph (b)(3) of this section).
    (e) Written communications directed to members and nonmembers--(1) 
In general. Expenditures for any written communication that is designed 
primarily for members of an organization (but not directed only to 
members) and that refers to, and reflects a view on, specific 
legislation of direct interest to the organization and its members, are 
treated as expenditures for direct or grass roots lobbying in accordance 
with paragraph (e)(2), (e)(3) or (e)(4) of this section. For purposes of 
this section, a communication is designed primarily for members of an 
organization if more than half of the recipients of the communication 
are members of the organization.

[[Page 660]]

    (2) Direct lobbying directly encouraged--(i) Lobbying expenditure 
amount. If a written communication described in paragraph (e)(1) of this 
section directly encourages readers to engage individually or through 
the organization in direct lobbying but does not directly encourage them 
to engage in grass roots lobbying, the cost of the communication is 
allocated between expenditures for direct lobbying and grass roots 
expenditures in accordance with paragraphs (e)(2) (ii) and (iii) of this 
section. The portion of the cost to be allocated includes all costs of 
preparing all the material with respect to which readers are urged to 
engage in direct lobbying plus the mechanical and distribution costs 
attributable to the lineage devoted to this material (see Sec.  
1.512(a)-1(f)(6)).
    (ii) Grass roots amount. The amount allocable as a grass roots 
expenditure for a communication described in paragraph (e)(1) of this 
section is the amount calculated in paragraph (e)(2)(i) of this section 
multiplied by the sum of the nonmember subscribers percentage and all 
the other distribution percentage, both as defined in paragraph (f)(7) 
of this section. Solely for purposes of the allocation described in this 
paragraph (e)(2)(ii), the nonmember subscribers percentage is treated as 
zero unless it is greater than 15% of total distribution.
    (iii) Direct lobbying amount. The amount allocable as an expenditure 
for direct lobbying for a communication described in paragraph (e)(1) of 
this section is the excess of the amount described in paragraph 
(e)(2)(i) of this section over the amount described in paragraph 
(e)(2)(ii) of this section.
    (3) Grass roots expenditure if grass roots lobbying directly 
encouraged. If a written communication described in paragraph (e)(1) of 
this section directly encourages readers to engage individually or 
collectively (whether through the organization or otherwise) in grass 
roots lobbying (whether or not it also encourages readers to engage in 
direct lobbying), the grass roots expenditure includes all the costs of 
preparing all the material with respect to which readers are urged to 
engage in grass roots lobbying plus the mechanical and distribution 
costs attributable to the lineage devoted to this material (see Sec.  
1.512(a)-1(f)(6)).
    (4) No direct encouragement of direct lobbying or of grass roots 
lobbying. If a written communication described in paragraph (e)(1) of 
this section does not directly encourage readers to engage in either 
direct lobbying or grass roots lobbying, expenditures for the 
communication are not lobbying expenditures.
    (f) Definitions and special rules. For purposes of the regulations 
under section 4911--
    (1) Member; general rule. A person is a member of an electing public 
charity if the person--
    (i) Pays dues or makes a contribution of more than a nominal amount,
    (ii) Makes a contribution of more than a nominal amount of time, or
    (iii) Is one of a limited number of ``honorary'' or ``life'' members 
who have more than a nominal connection with the electing public charity 
and who have been chosen for a valid reason (such as length of service 
to the organization or involvement in activities forming the basis of 
the electing public charity's exemption) unrelated to the electing 
public charity's dissemination of information to its members.
    (2) Member; special rule. A person not a member of an electing 
public charity within the meaning of paragraph (f)(1) of this section 
may be treated as a member if the electing public charity demonstrates 
to the satisfaction of the Internal Revenue Service that there is a good 
reason for its membership requirements not meeting the requirements of 
such paragraph (f)(1), and that its membership requirements do not 
operate to permit an abuse of the rules described in this section.
    (3) Member; affiliated group of organizations. For purposes of this 
section, a person who is a member of an organization that is a member of 
an affiliated group of organizations (within the meaning of Sec.  
56.4911-7(e)) is treated as a member of each organization in the 
affiliated group.
    (4) Member; limited affiliated group of organizations. For purposes 
of this section, a person who is a member of an organization that is a 
member of a limited affiliated group of organizations (within the 
meaning of Sec.  56.4911-10(b)) is

[[Page 661]]

treated as a member of each organization in the limited affiliated 
group, but only to the extent that the communication relates to a 
national legislative issue (within the meaning of Sec.  56.4911-10(g)).
    (5) Subscriber. A person is a subscriber to a written communication 
if--
    (i) The person is a member of the publishing organization and the 
membership dues expressly include the right to receive the written 
communication, or
    (ii) The person has affirmatively expressed a desire to receive the 
written communication and has paid more than a nominal amount of the 
communication.
    (6) Directly encourages--(i) Direct lobbying--(A) In general. For 
purposes of this section, a communication directly encourages a 
recipient to engage in direct lobbying, whether individually or through 
the organization, if the communication:
    (1) States that the recipient should contact a legislator or an 
employee of a legislative body, or should contact any other government 
official or employee who may participate in the formulation of 
legislation (but only if the principal purpose of urging contact with 
the government official or employee is to influence legislation);
    (2) States the address, telephone number, or similar information of 
a legislator or an employee of a legislative body; or
    (3) Provides a petition, tear-off postcard or similar material for 
the recipient to communicate his or her views to a legislator or an 
employee of a legislative body, or to any other government official or 
employee who may participate in the formulation of legislation (but only 
if the principal purpose of so facilitating contact with the government 
official or employee is to influence legislation).
    (B) ``Self-defense'' exception for communications with members. 
Notwithstanding the provisions of paragraph (f)(6)(i)(A) of this 
section, for purposes of paragraphs (b)(3), (e)(2)(i), (e)(3) and (e)(4) 
of this section, a communication that directly encourages a member to 
engage in direct lobbying activities that are described in section 
4911(d)(2)(C) and that would not be attempts to influence legislation if 
engaged in directly by the organization is treated as a communication 
that does not directly encourage a member to engage in direct lobbying.
    (ii) Grass roots lobbying. For purposes of paragraphs (b)(4), (e)(3) 
and (e)(4) of this section, a communication directly encourages 
recipients to engage individually or collectively (whether through the 
organization or otherwise) in grass roots lobbying if the communication:
    (A) States that the recipient should encourage any nonmember to 
contact a legislator or an employee of a legislative body, or to contact 
any other government official or employee who may participate in the 
formulation of legislation (but only if the principal purpose of urging 
contact with the government official or employee is to influence 
legislation);
    (B) States that the recipient should provide to any nonmember the 
address, telephone number, or similar information of a legislator or an 
employee of a legislative body; or
    (C) Provides (or requests that the recipient provide to nonmembers) 
a petition, tear-off postcard or similar material for the recipient (or 
nonmember) to use to ask any nonmember to communicate views to a 
legislator or an employee of a legislative body, or to any other 
government official or employee who may participate in the formulation 
of legislation, but only if the principal purpose of so facilitating 
contact with the government official or employee is to influence 
legislation. For purposes of this paragraph (f)(6)(ii)(C), a petition is 
provided for the recipient to use to ask any nonmember to communicate 
views if, for example, the petition has an entire page of preprinted 
signature blocks. Similarly, for purposes of this paragraph 
(f)(6)(ii)(C), where a communication is distributed to a single member 
and provides several tear-off postcards addressed to a legislator, the 
postcards are presumed to be provided for the member to use to ask a 
nonmember to communicate with the legislator.
    (7) Percentages of total distribution. With respect to a 
communication described in paragraph (e)(1) of this section--

[[Page 662]]

    (i) ``Member percentage'' means the percentage of total distribution 
that represents distribution of a single copy to any member;
    (ii) ``Nonmember subscribers percentage'' means the percentage of 
total distribution that represents distribution to nonmember subscribers 
(including libraries); and
    (iii) ``All other distribution percentage'' means 100% reduced by 
the sum of the member percentage and the nonmember subscribers 
percentage.
    (8) Reasonable allocation rule. In the case of lobbying expenditures 
for a communication that also has a bona fide nonlobbying purpose and 
that is sent only or primarily to members, an electing public charity 
must make a reasonable allocation between the amount expended for the 
lobbying purpose and the amount expended for the nonlobbying purpose. 
See Sec.  56.4911-3(a)(2)(ii).



Sec.  56.4911-6  Records of lobbying and grass roots expenditures.

    (a) Records of lobbying expenditures. An electing public charity 
must keep a record of its lobbying expenditures for the taxable year. 
Lobbying expenditures of which an organization must keep a record 
include the following:
    (1) Expenditures for grass roots lobbying, as described in paragraph 
(b) of this section;
    (2) Amounts directly paid or incurred for direct lobbying, including 
payments to another organization earmarked for direct lobbying, fees and 
expenses paid to individuals or organizations for direct lobbying, and 
printing, mailing, and other direct costs of reproducing and 
distributing materials used in direct lobbying;
    (3) The portion of amounts paid or incurred as current or deferred 
compensation for an employee's services for direct lobbying;
    (4) Amounts paid for out-of-pocket expenditures incurred on behalf 
of the organization and for direct lobbying, whether or not incurred by 
an employee;
    (5) The allocable portion of administrative, overhead, and other 
general expenditures attributable to direct lobbying;
    (6) Expenditures for publications or for communications with members 
to the extent the expenditures are treated as expenditures for direct 
lobbying under Sec.  56.4911-5; and
    (7) Expenditures for direct lobbying of a controlled organization 
(within the meaning of Sec.  56.4911-10(c)) to the extent included by a 
controlling organization (within the meaning of Sec.  56.4911-10(c)) in 
its lobbying expenditures.
    (b) Records of grass roots expenditures. An electing public charity 
must keep a record of its grass roots expenditures for the taxable year. 
Grass roots expenditures of which an organization must keep a record 
include the following:
    (1) Amounts directly paid or incurred for grass roots lobbying, 
including payments to other organizations earmarked for grass roots 
lobbying, fees and expenses paid to individuals or organizations for 
grass roots lobbying, and the printing, mailing, and other direct costs 
of reproducing and distributing materials used in grass roots lobbying;
    (2) The portion of amounts paid or incurred as current or deferred 
compensation for an employee's services for grass roots lobbying;
    (3) Amounts paid for out-of-pocket expenditures incurred on behalf 
of the organization and for grass roots lobbying, whether or not 
incurred by an employee;
    (4) The allocable portion of administrative, overhead and other 
general expenditures attributable to grass roots lobbying;
    (5) Expenditures for publication or communications that are treated 
as expenditures for grass roots lobbying under Sec.  56.4911-5; and
    (6) Expenditures for grass roots lobbying of a controlled 
organization (within the meaning of Sec.  56.4911-10(c)) to the extent 
included by a controlling organization (within the meaning of Sec.  
56.4911-10(c)) in its grass roots expenditures.



Sec.  56.4911-7  Affiliated group of organizations.

    (a) Affiliation between two organizations. Sections 4911(f) (1) 
through (3) contain a limited anti-abuse rule for groups of affiliated 
organizations. In

[[Page 663]]

general, the rule operates to prevent numerous organizations from being 
created for the purpose of avoiding the sliding-scale percentage 
limitation on an electing public charity's lobbying expenditures (as 
well as avoiding the $1,000,000 cap on a single electing public 
charity's lobbying expenditures). This is generally accomplished by 
treating the members of an affiliated group as a single organization for 
purposes of measuring both lobbying expenditures and permitted lobbying 
expenditures. The anti-abuse rule is implemented by this Sec.  56.4911-7 
and Sec. Sec.  56.4911-8 and 56.4911-9. This Sec.  56.4911-7 defines the 
term ``affiliated group of organizations'' and defines the taxable year 
of an affiliated group of organizations. Section 56.4911-8 provides 
rules concerning the exempt purpose expenditures, lobbying expenditures 
and grass roots expenditures of an affiliated group of organizations, as 
well as rules concerning the application of the excise tax imposed by 
section 4911(a) on excess lobbying expenditures by the group. Section 
56.4911-9 provides rules concerning the application of the section 
501(h) lobbying expenditure limits to members of an affiliated group of 
organizations. (For additional rules for members of a limited affiliated 
group of organizations (generally, organizations that are affiliated 
solely by reason of governing instrument provisions that extend control 
solely with respect to national legislation), see section 4911(f)(4) and 
Sec.  56.4911-10).
    (1) In general. For purposes of the regulations under section 4911, 
two organizations are affiliated, subject to the limitation described in 
paragraph (a)(2) of this section, if one organization is able to control 
action on legislative issues by the other by reason of interlocking 
governing boards (see paragraph (b) of this section) or by reason of 
provisions of the governing instruments of the controlled organization 
(see paragraph (c) of this section). The ability of the controlling 
organization to control action on legislative issues by the controlled 
organization is sufficient to establish that the organizations are 
affiliated; it is not necessary that the control be exercised.
    (2) Organizations not described in section 501(c)(3). Two 
organizations, neither of which is described in section 501(c)(3), are 
affiliated only if there exists at least one organization described in 
section 501(c)(3) that is affiliated with both organizations.
    (3) Action on legislative issues. For purposes of this section, the 
term ``action on legislative issues'' includes taking a position in the 
organization's name on legislation, authorizing any person to take a 
position in the organization's name on legislation, or authorizing any 
lobbying expenditures. The phrase does not include actions taken merely 
to correct unauthorized actions taken in the organization's name.
    (b) Interlocking governing boards--(1) In general. Two organizations 
have interlocking governing boards if one organization (the controlling 
organization) has a sufficient number of representatives (within the 
meaning of paragraph (b)(5) of this section) on the governing board of 
the second organization (the controlled organization) so that by 
aggregating their votes, the representatives of the controlling 
organization can cause or prevent action on legislative issues by the 
controlled organization. If two organizations have interlocking 
governing boards, the organizations are affiliated without regard to how 
or whether the representatives of the controlling organization vote on 
any particular matter.
    (2) Majority or quorum. Except as provided in paragraph (b) (3) or 
(4) of this section, the number of representatives of an organization 
(the controlling organization) who are members of the governing board of 
a second organization (the controlled organization) will be presumed 
sufficient to cause or prevent action on legislative issues by the 
controlled organization if that number either--
    (i) Constitutes a majority of incumbents on the governing board, or
    (ii) Constitutes a quorum, or is sufficient to prevent a quorum, for 
acting on legislative issues.
    (3) Votes required under governing instrument or local law. Except 
as provided in paragraph (b)(4) of this section, if under the governing 
documents of an organization (the controlled organization), it can be 
determined that a lesser number of votes than the number described in 
paragraph (b)(2) of this

[[Page 664]]

section is necessary or sufficient to cause or to prevent action on 
legislative issues, the number of representatives of the controlling 
organization who are members of the governing board of the controlled 
organization will be considered sufficient to cause or prevent action on 
legislative issues if it equals or exceeds that number.
    (4) Representatives constituting less than 15% of governing board. 
Notwithstanding paragraph (b) (2) or (3) of this section, if the number 
of representatives of one organization is less than 15 percent of the 
incumbents on the governing board of a second organization, the two 
organizations are not affiliated by reason of interlocking governing 
boards.
    (5) Representatives. (i) This paragraph (b)(5) describes members of 
the governing board of one organization (the controlled organization) 
who are considered representatives of a second organization (the 
controlling organization). Under this paragraph (b)(5), a member of the 
governing board of a controlled organization may be a representative of 
more than one controlling organization. A person with no authority to 
vote on any issue being considered by the governing board is not a 
representative of any organization.
    (ii) A board member of one organization (the controlled 
organization) is a representative of a second organization (the 
controlling organization) if the controlling organization has 
specifically designated that person to be a board member of the 
controlled organization. For purposes of this paragraph (b)(5)(ii) and 
paragraph (b)(5)(iii) of this section, a board member of the controlled 
organization is specifically designated by the controlling organization 
if the board member is selected by virtue of the right of the 
controlling organization, under the governing instruments of the 
controlled organization, either to designate a person to be a member of 
the controlled organization's governing board, or to select a person for 
a position that entitles the holder of that position to be a member of 
the controlled organization's governing board.
    (iii) A board member of one organization who is specifically 
designated by a second organization, a majority of the governing board 
of which is made up of representatives of a third organization, is a 
representative of the third organization as well as being a 
representative of the second organization pursuant to paragraph 
(b)(5)(ii) of this section.
    (iv) A board member of one organization who is also a member of the 
governing board of a second organization is a representative of the 
second organization.
    (v) A board member of one organization who is an officer or paid 
executive staff member of a second organization is a representative of 
the second organization. Although titles are significant in determining 
whether a person is a member of the executive staff of an organization, 
any employee of an organization who possesses authority commonly 
exercised by an executive is considered an executive staff member for 
purposes of this paragraph (b)(5)(v).
    (c) Governing instrument. One organization (the ``controlling'' 
organization) is affiliated with a second organization (the 
``controlled'' organization) by reason of the governing instruments of 
the contolled organization if the governing instruments of the 
controlled organization limit the independent action of the controlled 
organization on legislative issues by requiring it to be bound by 
decisions of the other organization on legislative issues.
    (d) Three or more organizations affiliated--(1) Two controlled 
organizations affiliated. If a controlling organization described in 
this section is affiliated with each of two or more controlled 
organizations described in this section, then the controlled 
organizations are affiliated with each other.
    (2) Chain rule. If one organization is a controlling organization 
described in this section with respect to a second organization and that 
second organization is a controlling organization with respect to a 
third organization, then the first organization is affiliated with the 
third.
    (e) Affiliated group of organizations--(1) Defined. For purposes of 
the regulations under section 4911, an affiliated group of organizations 
is a group of organizations--
    (i) Each of which is affiliated with every other member for at least 
thirty

[[Page 665]]

days of the taxable year of the affiliated group (determined without 
regard to the election provided for in paragraph (e)(5) of this 
section),
    (ii) Each of which is an eligible organization (within the meaning 
of Sec.  1.501(h)-2(b)(1)), and
    (iii) At least one of which is an electing member organization 
(within the meaning of paragraph (e)(4) of this section).

Each organization in a group of organizations that satisfies the 
requirements of the preceding sentence is a member of the affiliated 
group of organizations for the taxable year of the affiliated group.
    (2) Multiple membership. For any taxable year of an organization, it 
may be a member of two or more affiliated groups of organizations.
    (3) Taxable year of affiliated group. If all members of an 
affiliated group have the same taxable year, that taxable year is the 
taxable year of the affiliated group. If the members of an affiliated 
group do not all have the same taxable year, the taxable year of the 
affiliated group is the calendar year, unless the election under 
paragraph (e)(5) of this section is made.
    (4) Electing member organization. For purposes of the regulations 
under section 4911, an ``electing member organization'' is an 
organization to which the expenditure test election under section 501(h) 
applies on at least one day of the taxable year of the affiliated group 
of which it is a member. For purposes of the preceding sentence (and 
notwithstanding Sec.  1.501(h)-2(a)), the expenditure test is not 
considered to apply to the organization on any day before the date on 
which it files the Form 5768 making the expenditure test election.
    (5) Election of member's year as group's taxable year. The taxable 
year of an affiliated group may be determined according to the 
provisions of this paragraph (e)(5) if all of the members of the 
affiliated group so elect. Under this paragraph (e)(5), each member 
organization shall apply the provisions of section 501(h) and 4911, and 
the regulations thereunder (unless the regulations provide otherwise), 
by treating its own taxable year as the taxable year of the affiliated 
group. The election may be made by an electing member organization by 
attaching to its annual return a statement from itself and every other 
member of the affiliated group that contains: the organization's name, 
address, and employer identification number; and its signed consent to 
the election provided for in this paragraph (e)(5). The election must be 
made no later than the due date of the first annual return of any 
electing member for its taxable year for which the member is liable for 
tax under section 4911(a), determined under Sec.  56.4911-8(d). The 
election may not be made or revoked after the due date of the return 
referred to in the preceding sentence except upon such terms and 
conditions as the Commissioner may prescribe.
    (f) Examples. The provisions of this section are illustrated by the 
following examples.

    Example 1. M, N, and O are eligible organizations within the meaning 
of Sec.  1.501(h)-2(b)(1). Each has a governing board made up of nine 
members. Five members on the board of N are also members of the board of 
M. N designates five individuals from among its board, officers, and 
executive staff members to serve on the board of O. M is affiliated with 
N, N is affiliated with O, and M is affiliated with O.
    Example 2. X, an eligible organization, has a board consisting of 10 
members. Five unaffiliated tax-exempt organizations each designate two 
individuals to serve on the governing board of X. A simple majority of 
the board of X is a quorum and may establish X's position on legislative 
issues. X is not affiliated with any of the five autonomous 
organizations by reason of interlocking governing boards.
    Example 3. P and Q are eligible organizations. The governing 
instruments of Q state that it will not take a position on legislation 
if P disapproves of the position. In addition, there is regular 
correspondence between P and Q with regard to positions on legislation. 
P is affiliated with Q regardless of whether P has ever vetoed a 
position taken by Q.
    Example 4. The governing board of organization R resolves to adopt 
the position taken on legislative issues by organization S. R and S are 
eligible organizations and do not have interlocking governing boards. 
The governing instruments of R do not mention organization S and do not 
indicate that R is to be bound by the decisions of legislation of any 
organization. R and S are not affiliated.
    Example 5. Organization Z is bound, under the terms of its governing 
instruments, by the legislative positions of Organization Y. 
Organization Y, however, is bound, under the terms of its governing 
instruments, by the

[[Page 666]]

legislative positions of Organization X. Organization X is affiliated 
with Y and Z; Y is affiliated with X and Z; and Z is affiliated with X 
and Y.
    Example 6. Organizations T and U have interlocking boards of 
directors. T is the controlling organization. Organization V is bound, 
under the terms of its governing instruments, by the legislative 
positions of U. T and V are affiliated because T may cause or prevent 
action on legislative issues by U, and V is bound by U's action. If U 
were the controlling organization, T and V would be affiliated as two 
organizations controlled by the same organization.
    Example 7. Organization A is described in section 501(c)(4). It is 
affiliated, as the controlling organization, with organizations K and L, 
both of which are described in section 501(c)(3) and are eligible to 
elect under section 501(h). If K elects under section 501(h), K and L 
are an affiliated group of organizations. Even though A is affiliated 
with K and L, A is not a member of that affiliated group of 
organizations because A is not an eligible organization within the 
meaning of Sec.  1.501(h)-2(b)(1) (see Sec.  56.4911-7(e)(1) for the 
definition of which affiliated organizations may be members of an 
affiliated group of organizations).
    Example 8. G, H, I, and J are eligible organizations. G, H, and I 
have elected the expenditure test under section 501(h). The governing 
board of J has nine members. Under the governing instruments of J, 
organizations G, H, and I each designate three members of the governing 
board of J. Also under the governing instruments of J, action on 
legislative issues requires the approval of any seven board members. 
Because the three representatives of G may prevent action on legislative 
issues, J is affiliated with G. Similarly, J is affiliated with each of 
H and I. However, under none of the rules of affiliation is G affiliated 
with H, or H with I, or I with G. Therefore J is a member of one 
affiliated group comprising G and J, of another group comprising H and 
J, and of a third group comprising I and J.
    Example 9. Organizations C, D, and E have been affiliated for many 
years and have all elected the expenditure test. Each has a taxable year 
ending July 31. For every day of the year ending July 31, 1992, they 
were eligible organizations, electing member organizations, and 
affiliated with each other. On no day of that year were they affiliated 
with any other eligible organization having a different taxable year. 
Therefore, the year ending July 31, 1992, is the taxable year of the 
affiliated group comprising C, D, and E.



Sec.  56.4911-8  Excess lobbying expenditures of affiliated group.

    (a) Application. This section provides rules concerning the exempt 
purpose expenditures, lobbying expenditures, and grass roots 
expenditures of an affiliated group of organizations, and the 
application of the excise tax imposed by section 4911(a) on the excess 
lobbying expenditures of the group.
    (b) Affiliated group treated as one organization. Under section 
4911(f), an affiliated group of organizations is treated as a single 
organization for purposes of the tax imposed by section 4911(a). For any 
taxable year of the affiliated group, the group's lobbying expenditures, 
grass roots expenditures, and exempt purpose expenditures are equal to 
the sum of the lobbying expenditures, grass roots expenditures, and 
exempt purpose expenditures, respectively, paid or incurred by each 
member during the taxable year of the affiliated group. The lobbying and 
grass roots nontaxable amounts for the affiliated group for a taxable 
year are determined under section 4911(c) (2) and (4) and Sec.  56.4911-
1(c) and are based on the sum of the exempt purpose expenditures 
described in the preceding sentence. The lobbying and grass roots 
ceiling amounts for the affiliated group for a taxable year are 
calculated under Sec.  1.501(h)-3(c) (3) and (6) based upon the 
nontaxable amounts determined pursuant to the preceding sentence.
    (c) Tax imposed on excess lobbying expenditures of affiliated group. 
The excise tax under section 4911(a) is imposed for a taxable year of an 
affiliated group if the group has excess lobbying expenditures. For any 
taxable year of an affiliated group, the group's excess lobbying 
expenditures are the greater of--
    (1) The amount by which the group's lobbying expenditures exceed the 
group's lobbying nontaxable amount, or
    (2) The amount by which the group's grass roots expenditures exceed 
the group's grass roots nontaxable amount.
    (d) Liability for tax--(1) Electing organizations. As provided in 
this paragraph (d), an electing member organization is liable for all or 
a portion of the excise tax imposed by section 4911(a) on the excess 
lobbying expenditures of an affiliated group of organizations. An 
organization that is liable under this paragraph (d) is not liable for 
any excise tax under section 4911 based on its own excess lobbying 
expenditures. A

[[Page 667]]

member of the affiliated group that is not an electing member 
organization is not liable for any portion of the excise tax that is 
imposed with respect to the affiliated group.
    (2) Tax based on excess lobbying expenditures. If the excise tax 
imposed by section 4911(a) on the excess lobbying expenditures of an 
affiliated group of organizations is based upon the amount described in 
paragraph (c)(1) of this section, and at least one electing member has 
made lobbying expenditures, each electing member organization is liable 
for a portion of the tax equal to the amount of the tax multiplied by a 
fraction, the numerator of which is the electing member organization's 
lobbying expenditures paid or incurred during the taxable year of the 
affiliated group, and the denominator of which is the sum of the 
lobbying expenditures of all electing member organizations in the group 
paid or incurred during the taxable year of the affiliated group.
    (3) Tax based on excess grass roots expenditures. If the excise tax 
imposed by section 4911(a) on the excess lobbying expenditures of an 
affiliated group of organizations is based upon the amount described in 
paragraph (c)(2) of this section, and at least one electing member has 
made grass roots expenditures, each electing member organization is 
liable for a portion of the tax equal to the amount of the tax 
multiplied by the fraction described in paragraph (d)(2) of this 
section, except that ``grass roots expenditures'' is substituted for 
``lobbying expenditures.''
    (4) Tax based on exempt purpose expenditures. If the excise tax 
imposed by section 4911(a) on the excess lobbying expenditures of an 
affiliated group of organizations is based upon the amount described in 
paragraph (c)(2) of this section, and if paragraphs (d)(2) and (d)(3) of 
this section do not apply because no electing organization has made 
lobbying or grass roots expenditures, respectively, each electing member 
organization is liable for a portion of the tax equal to the amount of 
tax multiplied by a fraction the numerator of which is the electing 
member organization's exempt purpose expenditures and the denominator of 
which is the exempt purpose expenditures of all the electing member 
organizations in the affiliated group.
    (5) Taxable year for which liable. An electing member organization 
that is liable for all or a portion of the excise tax imposed by section 
4911(a) on the excess lobbying expenditures of an affiliated group of 
organizations is liable for the tax as if the tax were imposed for its 
taxable year with which or within which ends the taxable year of the 
affiliated group.
    (6) Organization a member of more than one affiliated group. If, 
under this paragraph (d), an organization is liable for its taxable year 
for two or more excise taxes imposed by section 4911(a) on the excess 
lobbying expenditures of two or more affiliated groups, then the 
organization is liable only for the greater of the two or more taxes.
    (e) Former member organization. An electing member organization that 
ceases to be a member of an affiliated group of organizations, the 
taxable year of which is different from its own, must thereafter 
determine its liability under Sec.  56.4911-1 for the excise tax imposed 
by section 4911(a) as if its taxable year were the taxable year of the 
affiliated group of which it was formerly a member. An organization to 
which this paragraph (e) applies that is liable for the excise tax 
imposed by section 4911(a) is liable for the tax as if the tax were 
imposed for its taxable year within which ends the taxable year of the 
affiliated group of which it was formerly a member. The Commissioner 
may, at the Commissioner's discretion, permit an organization to 
disregard the rules of this paragraph (e) and to determine any liability 
under section 4911(a) based upon its own taxable year.



Sec.  56.4911-9  Application of section 501(h) to affiliated groups 
of organizations.

    (a) Scope. This section provides rules concerning the application of 
the limitations of section 501(h) to members of an affiliated group of 
organizations (as defined in Sec.  56.4911-7(e)(1)).
    (b) Determination required. For each taxable year of an affiliated 
group of organizations, the calculations described in Sec.  1.501(h)-
3(b)(1) (i) and (ii) must be made, based on the expenditures of the 
group. If, for a taxable

[[Page 668]]

year of an affiliated group, it is determined that the sum of the 
affiliated group's lobbying or grass roots expenditures for the group's 
base years exceeds 150 percent of the sum of the group's corresponding 
nontaxable amounts for the base years, then under section 501(h), each 
member organization that is an electing member organization (as defined 
in Sec.  56.4911-7(e)(4)) at any time in the taxable year of the 
affiliated group shall be denied tax exemption beginning with its first 
taxable year beginning after the end of such taxable year of the 
affiliated group. Thereafter, exemption shall be denied unless (pursuant 
to Sec.  1.501(h)-3(d)) the organization reapplies and is recognized as 
exempt as an organization described in section 501(c)(3). For purposes 
of this section, the term base years generally means the taxable year of 
the affiliated group for which a determination is made and the group's 
three preceding taxable years. Base years, however, do not include any 
year preceding the first year in which at least one member of the group 
was treated as described in section 501(c)(3).
    (c) Member organizations that are not electing organizations. An 
organization that is a member of an affiliated group of organizations 
but that is not an electing member organization remains subject to the 
``substantial part test'' described in section 501(c)(3) with respect to 
its activities involving attempts to influence legislation.
    (d) Filing of information relating to affiliated group of 
organizations--(1) Scope. The filing requirements described in this 
paragraph (d) apply to each member of an affiliated group or 
organizations for the taxable year of the member with which, or within 
which, ends the taxable year of the affiliated group.
    (2) In general. Each member of an affiliated group of organizations 
shall provide to every other member of the group, before the first day 
of the second month following the close of the affiliated group's 
taxable year, its name, identification number, and the information 
required under Sec.  1.6033-2(a)(2)(ii)(M) for its expenditures during 
the group's taxable year and for prior taxable years of the group that 
are base years under paragraph (b). For groups electing under Sec.  
56.4911-7(e)(5) to have each member file information with respect to the 
group based on its taxable year, each member shall provide the 
information required by the preceding sentence by treating each taxable 
year of any member of the group as a taxable year for the group.
    (3) Additional information required. In addition to the information 
required by Sec.  1.6033-2(a)(2)(ii)(M), each member of an affiliated 
group of organizations must provide on its annual return the group's 
taxable year and, if the election under Sec.  56.4911-7(e)(5) is made, 
the name, identification number, and taxable year identifying the return 
with which its consent to the election was filed.
    (4) Information required of electing member organization. In 
addition to the information required by Sec.  1.6033-2(a)(2)(ii)(M) and 
paragraph (d)(3) of this section, each electing member organization (as 
defined in Sec.  56.4911-7(e)(4)) must provide on its annual return--
    (i) The name and identification number of each member of the group, 
and
    (ii) The appropriate calculation described in Sec.  56.4911-8(d), if 
the organization is an electing member organization liable for all or 
any portion of the excise tax imposed by section 4911(a).
    (e) Example. The provisions of this section may be illustrated by 
the following example:

    Example. (1) M, N, and O are affiliated organizations under Sec.  
56.4911-7(a). M's taxable year ends November 30, N's, January 31, and 
O's, June 30. On June 20, 1979, O files Form 5768 to elect to be 
governed by the expenditure test. M files Form 5768 in December of 1979. 
Neither M nor O revokes the election, and no organization makes the 
election provided for in Sec.  56.4911-7(e)(5). M, N, and O constitute 
an affiliated group of organizations, the first taxable year of which is 
the calendar year 1979.
    (2) Because the organizations did not elect under Sec.  56.4911-
7(e)(5) to use their own taxable years as the group's taxable years, the 
expenditures of the affiliated group for its first taxable year are the 
expenditures made by M, N, and O during calendar year 1979, and are 
reported by M, N, and O on their returns for their taxable years within 
which falls December 31, 1979. M reports the expenditures of the 
affiliated group for 1979 on its return for its taxable year ending 
November 30, 1980;

[[Page 669]]

and O, on its return for its taxable year ending June 30, 1980. N is not 
an electing member (as defined in Sec.  56.4911-7(e)(4)). Accordingly, 
under paragraph (d)(3)(i) of this section, it reports the name and 
identification number of each member of the group.
    (3) The following tables summarize the expenditures by the 
affiliated group for the calendar years indicated. None of the group's 
lobbying expenditures for its taxable years 1979 through 1982 were grass 
roots expenditures.

                                          Table I--Group's Expenditures
----------------------------------------------------------------------------------------------------------------
                                   Exempt purpose                                    Lobbying        Lobbying
               Year                 expenditures            Calculation             nontaxable     expenditures
                                        (EPE)                                      amount (LNTA)       (LE)
----------------------------------------------------------------------------------------------------------------
1979.............................        $400,000  (20% x $400,000=)............         $80,000        $100,000
1980.............................         300,000  (20% x $300,000=)............          60,000         100,000
1981.............................         600,000  (20% x $500,000 +............         115,000         120,000
                                                   15% x $100,000=).............
1982.............................         500,000  (20% x $500,000=)............         100,000         220,000
                                  ----------------                               -------------------------------
      Total......................       1,800,000  .............................         355,000         540,000
----------------------------------------------------------------------------------------------------------------


                                        Table II--Expenditures of M and O
----------------------------------------------------------------------------------------------------------------
                                        Exempt purpose      Lobbying nontaxable        Lobbying
                                         expenditures             amount             expenditures
                                    ------------------------------------------------------------------  M plus O
                                         M          O          M          O          M          O
----------------------------------------------------------------------------------------------------------------
1979...............................    125,000    100,000     25,000     20,000     60,000     20,000     80,000
1980...............................    100,000     50,000     20,000     10,000     40,000     40,000     80,000
1981...............................    250,000    100,000     50,000     20,000     60,000     40,000    100,000
1982...............................    200,000    100,000     40,000     20,000    160,000     40,000    200,000
----------------------------------------------------------------------------------------------------------------

    (4) For the affiliated group's taxable years 1979, 1980, 1981, and 
1982, the group has excess lobbying expenditures. Under section 
4911(f)(1)(B) and Sec.  56.4911-8(d), M and O, as electing member 
organizations, are liable for a portion of the 25 percent excise tax 
imposed on the group's excess lobbying expenditures, based on their 
respective shares of the lobbying expenditures of all electing member 
organizations. For 1979, the excess lobbying expenditures are $20,000 
($100,000-$80,000). The tax is 25% of $20,000 or $5,000; M must pay 
$3,750 (($60,000/$80,000) x $5,000 = $3,750), and O must pay $1,250 
(($20,000/$80,000) x $5,000 = $1,250). For 1980, the tax is $10,000 and 
each must pay $5,000. For 1981, the tax is $1,250, of which M must pay 
$750 and O must pay $500. For 1982, the tax is $30,000. M must pay 
$24,000 and O must pay $6,000. M and O are not liable for any separate 
4911 excise tax that otherwise would have been imposed on their separate 
excess lobbying expenditures.
    (5) Under Sec.  56.4911-9(b), the group must make the calculation 
described in Sec.  1.501(h)-3(b)(1) for each of the group's taxable 
years 1979 through 1982. The following illustrates only the required 
calculation for the group's taxable year 1982. For its taxable year 
1982, the group must determine whether it normally has made lobbying 
expenditures in excess of its lobbying ceiling amount. The determination 
takes into account the group's expenditures in base years 1979 through 
1982. The sum of the group's lobbying expenditures for the base years 
($540,000) exceeds 150% of the sum of the group's lobbying nontaxable 
amounts for the base years (150% x $355,000 = $532,500). Therefore, for 
its taxable year 1982, the group normally has made lobbying expenditures 
in excess of its lobbying ceiling amount. Under section 501(h) and Sec.  
56.4911-9(b), M is not exempt from tax under section 501(a) as an 
organization described in section 501(c)(3) for its taxable year 
beginning December 1, 1983, and O is not exempt for its year beginning 
July 1, 1983. Whether N's lobbying expenditures disqualify it for tax 
exemption at any time after January 1, 1979, is determined under the 
substantial part test of section 501(c)(3).

    (f) Cross reference. For other provisions relating to members of an 
affiliated group or organizations, see Sec. Sec.  56.4911-2(c)(4)(ii), 
56.4911-4(c)(2), 56.4911-4(e), and 56.4911-5(f)(3).

[T.D. 8308, 55 FR 35598, Aug. 31, 1990, as amended by T.D. 9898, 85 FR 
31969, May 28, 2020]



Sec.  56.4911-10  Members of a limited affiliated group of organizations.

    (a) Scope. This section provides additional rules for members of a 
limited

[[Page 670]]

affiliated group of organizations, as defined in paragraph (b) of this 
section (relating generally to organizations that are affiliated solely 
by reason of provisions of their governing instruments that extend 
control solely with respect to national legislation). Except as 
otherwise provided in this section, Sec. Sec.  56.4911-8 and 56.4911-9 
do not apply to members of a limited affiliated group. Thus, as modified 
by this section, the regulations under sections 501(h) and 4911 apply to 
electing members of a limited affiliated group individually. For 
example, Sec. Sec.  56.4911-2 through 56.4911-4, which, by their terms, 
include amounts described in paragraph (d) of this section, are used in 
applying sections 501(h) and 4911 to controlling member organizations 
(within the meaning of paragraph (c) of this section). Except as 
otherwise provided in this section, members of a limited affiliated 
group that are not electing organizations are subject to the substantial 
part test.
    (b) Members of limited affiliated group. For purposes of section 
4911, a limited affiliated group consists of two or more organizations 
that meet the following requirements:
    (1) Each organization is a member of an affiliated group of 
organizations as defined in Sec.  56.4911-7(e);
    (2) No two members of the affiliated group described in paragraph 
(b)(1) of this section are affiliated by reason of interlocking 
governing boards under Sec.  56.4911-7(b); and
    (3) No member of the affiliated group described in paragraph (b)(1) 
of this section is, under its governing instrument, bound by decisions 
of one or more of the other such members on legislative issues other 
than national legislative issues.

Each organization in a group of organizations that satisfies the 
requirements of the preceding sentence is a member of the limited 
affiliated group.
    (c) Controlling and controlled organizations. For purposes of this 
section, a member of a limited affiliated group is a controlling member 
organization if it controls one or more of the other members of the 
limited affiliated group, and a member of a limited affiliated group is 
a controlled member organization if it is controlled by one or more of 
the other members of the limited affiliated group. For purposes of the 
preceding sentence, whether an organization controls a second 
organization shall be determined by whether the second organization is 
bound, under its governing instruments, by actions taken by the first 
organization on national legislative issues.
    (d) Expenditures of controlling organization--(1) Scope. This 
paragraph (d) applies to a controlling member organization that has the 
expenditure test election in effect for its taxable year. This paragraph 
(d) applies whether or not the organization is also a controlled member 
organization. In determining a controlling member organization's 
expenditures, no expenditure shall be counted twice.
    (2) Expenditures for direct lobbying. A controlling member 
organization for which the expenditure test election is in effect shall 
include in its direct lobbying expenditures for its taxable year the 
direct lobbying expenditures (as defined in Sec. Sec.  56.4911-2 and 
56.4911-3) paid or incurred with respect to national legislative issues 
during such year by each organization that is a member of the limited 
affiliated group and is controlled (within the meaning of paragraph (c) 
of this section) by such controlling member organization.
    (3) Grass roots expenditures. A controlling member organization for 
which the expenditure test election is in effect shall include in its 
grass roots expenditures for its taxable year the grass roots 
expenditures (as defined in Sec. Sec.  56.4911-2 and 56.4911-3) paid or 
incurred with respect to national legislative issues during such year by 
each organization that is a member of the limited affiliated group and 
is controlled (within the meaning of paragraph (c) of this section) by 
such controlling member organization.
    (4) Exempt purpose expenditures. The exempt purpose expenditures of 
a controlling member organization do not include the exempt purpose 
expenditures (other than lobbying expenditures described in paragraphs 
(d)(2) and (d)(3) of this section) of any organization that is a 
controlled member organization with respect to it.
    (e) Expenditures of controlled member. A controlled member 
organization that

[[Page 671]]

is an electing organization but that does not control (within the 
meaning of paragraph (c) of this section) any organization in the 
limited affiliated group shall apply sections 501(h) and 4911 and the 
regulations thereunder without regard to the expenditures of any other 
member of the limited affiliated group.
    (f) Reports of members of limited affiliated groups--(1) Controlling 
member organization's additional information on annual return. In 
addition to the information required by Sec.  1.6033-2(a)(2)(ii)(M), 
each controlling member organization for which the expenditure test 
election is in effect must provide on its annual return the name and 
identification number of each member of the limited affiliated group.
    (2) Reports of controlling members to other members. Each 
controlling member organization for which an expenditure test election 
is in effect must notify each member that it controls of its taxable 
year in order for the controlled organization to prepare the report 
required by paragraph (f)(3) of this section. Such notification must be 
made before the beginning of the second month after the close of each 
taxable year of the controlling member for which the election is in 
effect.
    (3) Reports of controlled member organization. Every controlled 
member organization (whether or not the expenditure test election is in 
effect with respect to it) shall provide to each member of the limited 
affiliated group that controls it, before the first day of the second 
month following the close of the taxable year of each such controlling 
organization, its name, identification number, and the lobbying 
expenditures and grass roots expenditures on national legislative issues 
incurred by the controlled member organization.
    (g) National legislative issues. The term ``national legislative 
issue'' means legislation, limited to action by the Congress of the 
United States or by the public in any national procedure. If an issue is 
both national and local, it is characterized as a national legislative 
issue if the contemplated legislation is Congressional legislation.
    (h) Examples. The provisions of this section are illustrated by the 
following examples:

    Example 1. State X has an income tax law that uses definitions 
contained in the Internal Revenue Code as it may be amended from time to 
time. Legislation to change a definition in the Internal Revenue Code is 
pending in Congress. This is a national legislative issue even though 
Congressional action may affect state law.
    Example 2. Organization M takes a position favoring approval by 
Congress of a proposed amendment to the United States Constitution. This 
is a national legislative issue. After approval by Congress and 
submission to the states for ratification, the proposed amendment ceases 
to be a national legislative issue.
    Example 3. N, O, and P are organizations described in section 
501(c)(3) that do not have interlocking governing boards, within the 
meaning of Sec.  56.4911-7(b). N has elected the expenditure test under 
section 501(h). By virtue of the governing instruments of O and P, any 
decision made by N on national legislative issues (such as issues 
concerning action on acts, bills, resolutions, or similar items by 
Congress) binds both O and P. Under their governing instruments, O and P 
are not bound on any other issues. Therefore, N, O, and P constitute a 
limited affiliated group. If P sends a series of letters and pamphlets 
to members of Congress in support of bill V, their cost will be included 
in N's and P's expenditures for direct lobbying and in N's and P's 
exempt purposes expenditures, but will not be included in O's lobbying 
expenditures. If N hires a lobbyist to solicit support for bill V, the 
cost of hiring the lobbyist will be includable only in N's lobbying 
expenditures. Any lobbying expenditures incurred by either O or P on any 
issue that is not a national legislative issue will not be included in 
N's lobbying expenditures.
    Example 4. Y is an electing organization and a member of a limited 
affiliated group of organizations. Y controls organizations A, B, and C 
with respect to national legislative issues but is not controlled by any 
other organization.--Y's taxable year is the calendar year. During 1982, 
A dissolves on March 15th and D, also controlled by Y with respect to 
national legislative issues, is established on May 1st. For 1982 the 
limited affiliated group comprises Y, A, B, C, and D.
    Example 5. P, Q, R, and S are electing organizations. The governing 
instruments of Q require it to adopt the positions on national 
legislative issues adopted by P. R is similarly bound by Q's positions. 
R and S have interlocking governing boards, within the meaning of Sec.  
56.4911-7(b), but S's governing instruments do not require it to adopt 
the position of any other organization on any legislative issues. Under 
Sec.  56.4911-7(e)(1), P, Q, R, and S are members of an affiliated 
group. Applying paragraph (b) of this section, it is determined that (1) 
P, Q, R and S are members of an affiliated group; and (2) R and S

[[Page 672]]

are affiliated by reason of interlocking governing boards. Accordingly, 
P, Q, R and S are not a limited affiliated group. Similarly, P, Q, and R 
do not constitute a limited affiliated group because they are members of 
an affiliated group comprising P, Q, R, and S, two of whose members, R 
and S, are affiliated by reason of interlocking governing boards.
    Example 6. T, U, V, and W are electing organizations. The governing 
instruments of U and V require them to adopt the positions on national 
legislative issues adopted by T, but do not require them to adopt the 
positions of any organization on any other legislative issues. The 
governing documents of W require it to adopt the positions of V on all 
legislative issues. Applying paragraph (b) of this section, it is 
determined that (1) T, U, V, and W are all members of an affiliated 
group; (2) no two of T, U, V, and W are affiliated by reason of 
interlocking governing boards; but (3) W is bound, under its governing 
instrument, by decisions of V on legislative issues that are not 
national legislative issues. Accordingly, T, U, V, and W do not 
constitute a limited affiliated group. Similarly, T, U, and V do not 
constitute a limited affiliated group. T, U, V, and W are an affiliated 
group under Sec.  56.4911-7.

[T.D. 8308, 55 FR 35598, Aug. 31, 1990, as amended by T.D. 9898, 85 FR 
31969, May 28, 2020]



Sec.  56.6001-1  Notice or regulations requiring records, statements, 
and special returns.

    (a) In general. The provisions of Sec.  53.6001-1 shall apply to any 
person subject to tax under chapter 41, subtitle D, of the Code, by 
treating each reference to chapter 42 in Sec.  53.6001-1 as a reference 
to chapter 41.
    (b) Cross references. See Sec.  56.4911-6 for general information on 
records of lobbying expenditures. See Sec. Sec.  56.4911-9(d) and 
56.4911-10(f) for information that members of an affiliated group and a 
limited affiliated group, respectively, are to provide to other members 
of the group and to the Internal Revenue Service.



Sec.  56.6011-1  General requirement of return, statement, or list.

    Every organization liable for the tax imposed by section 4911(a) 
shall file an annual return with respect to the tax on the form 
prescribed by the Internal Revenue Service for that purpose and shall 
include the information required by the form and its instructions.



Sec.  56.6011-4  Requirement of statement disclosing participation 
in certain transactions by taxpayers.

    (a) In general. If a transaction is identified as a listed 
transaction or a transaction of interest as defined in Sec.  1.6011-4 of 
this chapter by the Commissioner in published guidance (see Sec.  
601.601(d)(2) of this chapter), and the listed transaction or 
transaction of interest involves an excise tax under chapter 41 of 
subtitle D of the Internal Revenue Code (relating to public charities), 
the transaction must be disclosed in the manner stated in such published 
guidance.
    (b) Effective date. This section applies to listed transactions 
entered into on or after January 1, 2003. This section applies to 
transactions of interest entered into on or after November 2, 2006.

[T.D. 9350, 72 FR 43154, Aug. 3, 2007]



Sec.  56.6060-1  Reporting requirements for tax return preparers.

    (a) In general. A person that employs one or more tax return 
preparers to prepare a return or claim for refund of tax under chapter 
41 of subtitle D of the Internal Revenue Code, other than for the 
person, at any time during a return period, shall satisfy the record 
keeping and inspection requirements in the manner stated in Sec.  
1.6060-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  56.6107-1  Tax return preparer must furnish copy of return 
and claim for refund to taxpayer and must retain a copy or record.

    (a) In general. A person who is a signing tax return preparer of any 
return or claim for refund of tax under Chapter 41 of subtitle D of the 
Internal Revenue Code shall furnish a completed copy of the return or 
claim for refund to the public charity and retain a completed copy or 
record in the manner stated in Sec.  1.6107-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and

[[Page 673]]

claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  56.6109-1  Tax return preparers furnishing identifying numbers 
for returns or claims for refund.

    (a) In general. Each tax return or claim for refund for tax under 
chapter 41 of subtitle D prepared by one or more signing tax return 
preparers must include the identifying number of the preparer required 
by Sec.  1.6695-1(b) of this chapter to sign the return or claim for 
refund in the manner stated in Sec.  1.6109-2 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed after December 31, 
2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  56.6694-1  Section 6694 penalties applicable to tax return preparer.

    (a) In general. For general definitions regarding section 6694 
penalties applicable to preparers of tax returns or claims for refund of 
tax under chapter 41 of subtitle D see Sec.  1.6694-1 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed, and advice provided, 
after December 31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  56.6694-2  Penalties for understatement due to an unreasonable position.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of excise tax under chapter 41 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties under section 
6694(a) of the Code in the manner stated in Sec.  1.6694-2 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  56.6694-3  Penalty for understatement due to willful, reckless, 
or intentional conduct.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under chapter 41 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties under section 
6694(b) of the Code in the manner stated in Sec.  1.6694-3 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78460, Dec. 22, 2008]



Sec.  56.6694-4  Extension of period of collection when tax return preparer 
pays 15 percent of a penalty for understatement of taxpayer's liability 
and certain other procedural matters.

    (a) In general. For rules relating to the extension of period of 
collection when a tax return preparer who prepared a return or claim for 
refund for tax under chapter 41 of subtitle D of the Internal Revenue 
Code pays 15 percent of a penalty for understatement of taxpayer's 
liability and procedural matters relating to the investigation, 
assessment and collection of the penalties under section 6694(a) and 
(b), the rules under Sec.  1.6694-4 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  56.6695-1  Other assessable penalties with respect to the preparation 
of tax returns or claims for refund for other persons.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under chapter 41 of subtitle D of the 
Internal Revenue Code (Code) shall be subject to penalties for failure 
to furnish a copy to the taxpayer under section 6695(a) of the Code, 
failure to sign the return under section 6695(b) of the Code, failure to 
furnish an identification number under section 6695(c) of the Code, 
failure to retain a copy or list under section 6695(d) of the Code, 
failure to file

[[Page 674]]

a correct information return under section 6695(e) of the Code, and 
negotiation of a check under section 6695(f) of the Code, in the manner 
stated in Sec.  1.6695-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  56.6696-1  Claims for credit or refund by tax return preparers.

    (a) In general. For rules relating to claims for credit or refund by 
a tax return preparer who prepared a return or claim for refund for tax 
under chapter 41 of subtitle D of the Internal Revenue Code, the rules 
under Sec.  1.6696-1 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  56.7701-1  Tax return preparer.

    (a) In general. For the definition of a tax return preparer, see 
Sec.  301.7701-15 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



PART 57_HEALTH INSURANCE PROVIDERS FEE--Table of Contents



Sec.
57.1 Overview.
57.2 Explanation of terms.
57.3 Reporting requirements and associated penalties.
57.4 Fee calculation.
57.5 Notice of preliminary fee calculation.
57.6 Error correction process.
57.7 Notification and fee payment.
57.8 Tax treatment of fee.
57.9 Refund claims.
57.10 Applicability date.
57.6302-1 Method of paying the health insurance providers fee.

    Authority: 26 U.S.C. 7805; sec. 9010, Pub. L. 111-148 (124 Stat. 119 
(2010)).
    Section 57.3 also issued under 26 U.S.C. 6071(a)
    Section 57.7 also issued under 26 U.S.C. 6302(a).
    Section 57.6302-1 also issued under 26 U.S.C. 6302(a).

    Source: T.D. 9643, 78 FR 71487, Nov. 29, 2013, unless otherwise 
noted.



Sec.  57.1  Overview.

    (a) The regulations in this part are designated ``Health Insurance 
Providers Fee Regulations.''
    (b) The regulations in this part provide guidance on the annual fee 
imposed on covered entities engaged in the business of providing health 
insurance by section 9010 of the Patient Protection and Affordable Care 
Act (PPACA), Public Law 111-148 (124 Stat. 119 (2010)), as amended by 
section 10905 of PPACA, and as further amended by section 1406 of the 
Health Care and Education Reconciliation Act of 2010, Public Law 111-152 
(124 Stat. 1029 (2010)) (collectively, the Affordable Care Act or ACA). 
All references to section 9010 in this part 57 are references to section 
9010 of the ACA. Unless otherwise indicated, all other references to 
subtitles, chapters, subchapters, and sections are references to 
subtitles, chapters, subchapters and sections in the Internal Revenue 
Code and the related regulations.
    (c) Section 9010(e)(1) sets an applicable fee amount for each year, 
beginning with 2014, that will be apportioned among covered entities 
with aggregate net premiums written over $25 million for health 
insurance for United States health risks. Generally, each covered entity 
is liable for a fee in each fee year that is based on its net premiums 
written during the data year in an amount determined by the Internal 
Revenue Service (IRS) under the rules of this part.



Sec.  57.2  Explanation of terms.

    (a) In general. This section explains the terms used in this part 57 
for purposes of the fee.
    (b) Covered entity--(1) In general. Except as provided in paragraph 
(b)(2) of this section, the term covered entity means any entity with 
net premiums written for health insurance for United States health risks 
in the fee year if the entity is--

[[Page 675]]

    (i) A health insurance issuer within the meaning of section 
9832(b)(2), defined in section 9832(b)(2) as an insurance company, 
insurance service, or insurance organization that is licensed to engage 
in the business of insurance in a State and that is subject to State law 
that regulates insurance (within the meaning of section 514(b)(2) of the 
Employee Retirement Income Security Act of 1974 (ERISA));
    (ii) A health maintenance organization within the meaning of section 
9832(b)(3), defined in section 9832(b)(3) as--
    (A) A Federally qualified health maintenance organization (as 
defined in section 1301(a) of the Public Health Service Act);
    (B) An organization recognized under State law as a health 
maintenance organization; or
    (C) A similar organization regulated under State law for solvency in 
the same manner and to the same extent as such a health maintenance 
organization;
    (iii) An insurance company subject to tax under part I or II of 
subchapter L, or that would be subject to tax under part I or II of 
subchapter L but for the entity being exempt from tax under section 
501(a);
    (iv) An entity that provides health insurance under Medicare 
Advantage, Medicare Part D, or Medicaid; or
    (v) A multiple employer welfare arrangement (MEWA), within the 
meaning of section 3(40) of ERISA, to the extent not fully insured, 
provided that for this purpose a covered entity does not include a MEWA 
that with respect to the plan year ending with or within the section 
9010 data year satisfies the requirements to be exempt from reporting 
under 29 CFR 2520.101-2(c)(2)(ii)(A), (B), or (C).
    (2) Exclusions--(i) Self-insured employer. The term covered entity 
does not include any entity (including a voluntary employees' 
beneficiary association under section 501(c)(9) (VEBA)) that is part of 
a self-insured employer plan to the extent that such entity self-insures 
its employees' health risks. The term self-insured employer means an 
employer that sponsors a self-insured medical reimbursement plan within 
the meaning of Sec.  1.105-11(b)(1)(i) of this chapter. Self-insured 
medical reimbursement plans include plans that do not involve shifting 
risk to an unrelated third party as described in Sec.  1.105-
11(b)(1)(ii) of this chapter. A self-insured medical reimbursement plan 
may use an insurance company or other third party to provide 
administrative or bookkeeping functions. For purposes of this section, 
the term self-insured employer does not include a MEWA.
    (ii) Governmental entity. The term covered entity does not include 
any governmental entity. For this purpose, the term governmental entity 
means--
    (A) The government of the United States;
    (B) Any State or a political subdivision thereof (as defined for 
purposes of section 103) including, for example, a State health 
department or a State insurance commission;
    (C) Any Indian tribal government (as defined in section 7701(a)(40)) 
or a subdivision thereof (determined in accordance with section 
7871(d)); or
    (D) Any agency or instrumentality of any of the foregoing.
    (iii) Certain nonprofit corporations. The term covered entity does 
not include any entity--
    (A) That is incorporated as a nonprofit corporation under a State 
law;
    (B) No part of the net earnings of which inures to the benefit of 
any private shareholder or individual (within the meaning of Sec. Sec.  
1.501(a)-1(c) and 1.501(c)(3)-1(c)(2) of this chapter);
    (C) No substantial part of the activities of which is carrying on 
propaganda, or otherwise attempting, to influence legislation (within 
the meaning of Sec.  1.501(c)(3)-1(c)(3)(ii) of this chapter) (or which 
is described in section 501(h)(3) and is not denied exemption under 
section 501(a) by reason of section 501(h));
    (D) That does not participate in, or intervene in (including the 
publishing or distributing of statements), any political campaign on 
behalf of (or in opposition to) any candidate for public office (within 
the meaning of Sec.  1.501(c)(3)-1(c)(3)(iii) of this chapter); and

[[Page 676]]

    (E) More than 80 percent of the gross revenues of which is received 
from government programs that target low-income, elderly, or disabled 
populations under titles XVIII, XIX, and XXI of the Social Security Act.
    (iv) Certain voluntary employees' beneficiary associations (VEBAs). 
The term covered entity does not include any entity that is described in 
section 501(c)(9) that is established by an entity (other than by an 
employer or employers) for purposes of providing health care benefits. 
This exclusion applies to a VEBA that is established by a union or 
established pursuant to a collective bargaining agreement and having a 
joint board of trustees (such as in the case of a multiemployer plan 
within the meaning of section 3(37) of ERISA or a single-employer plan 
described in section 302(c)(5) of the Labor Management Relations Act, 29 
U.S.C. 186(c)(5)). This exclusion does not apply to a MEWA.
    (3) Application of exclusions--(i) Test year. An entity qualifies 
for an exclusion described in paragraphs (b)(2)(i) through (iv) of this 
section if it so qualifies in its test year. The term test year means 
either the entire data year or the entire fee year.
    (ii) Consistency rule. For purposes of paragraph (b)(3)(i) of this 
section, an entity must use the same test year as it used in its first 
fee year beginning after December 31, 2014, and in each subsequent fee 
year. Thus, for example, if an entity used the 2014 data year as its 
test year for the 2015 fee year, that entity must use the data year as 
its test year for each subsequent fee year.
    (iii) Special rule for fee year as test year. For purposes of 
paragraph (b)(3) of this section, any entity that uses the fee year as 
its test year but ultimately does not qualify for an exclusion described 
in paragraphs (b)(2)(i) through (iv) of this section for that entire fee 
year must use the data year as its test year for each subsequent fee 
year.
    (4) State. Solely for purposes of paragraph (b) of this section, the 
term State means any of the 50 States, the District of Columbia, or any 
of the possessions of the United States, including American Samoa, Guam, 
the Northern Mariana Islands, Puerto Rico, and the Virgin Islands.
    (c) Controlled groups--(1) In general. The term controlled group 
means a group of two or more persons, including at least one person that 
is a covered entity, that is treated as a single employer under section 
52(a), 52(b), 414(m), or 414(o).
    (2) Treatment of controlled group. A controlled group (as defined in 
paragraph (c)(1) of this section) is treated as a single covered entity 
for purposes of the fee.
    (3) Special rules. For purposes of paragraph (c)(1) of this section 
(related to controlled groups)--
    (i) A foreign entity subject to tax under section 881 is included 
within a controlled group under section 52(a) or (b); and
    (ii) A person is treated as being a member of the controlled group 
if it is a member of the group at the end of the day on December 31st of 
the data year. However, a person's net premiums written are included in 
net premiums written for the controlled group only if the person would 
qualify as a covered entity in the fee year if the person were not a 
member of the controlled group.
    (d) Data year. The term data year means the calendar year 
immediately before the fee year. Thus, for example, 2013 is the data 
year for fee year 2014.
    (e) Designated entity--(1) In general. The term designated entity 
means the person within a controlled group that is designated to act on 
behalf of the controlled group regarding the fee with respect to--
    (i) Filing Form 8963, ``Report of Health Insurance Provider 
Information'';
    (ii) Receiving IRS communications about the fee for the group;
    (iii) Filing a corrected Form 8963 for the group, if applicable, as 
described in Sec.  57.6; and
    (iv) Paying the fee for the group to the government.
    (2) Selection of designated entity--(i) In general. Except as 
provided in paragraph (e)(2)(ii) of this section, each controlled group 
must select a designated entity by having that entity file the Form 8963 
in accordance with the form instructions. The designated entity must 
state under penalties of perjury that all persons that provide

[[Page 677]]

health insurance for United States health risks that are members of the 
group have consented to the selection of the designated entity. Each 
member of a controlled group must maintain a record of its consent to 
the controlled group's selection of the designated entity. The 
designated entity must maintain a record of all member consents.
    (ii) Requirement for consolidated groups; common parent. If a 
controlled group, without regard to foreign corporations included under 
section 9010(c)(3)(B), is also an affiliated group the common parent of 
which files a consolidated return for Federal income tax purposes, the 
designated entity is the agent for the group (within the meaning of 
Sec.  1.1502-77 of this chapter) for the data year.
    (iii) Failure to select a designated entity. Excepted as provided in 
paragraph (e)(2)(ii) of this section, if a controlled group fails to 
select a designated entity as provided in paragraph (e)(2)(i) of this 
section, then the IRS will select a member of the controlled group to be 
the designated entity. If the IRS selects the designated entity, then 
all members of the controlled group that provide health insurance for a 
United States health risk will be deemed to have consented to the IRS's 
selection of the designated entity.
    (f) Fee. The term fee means the fee imposed by section 9010 on each 
covered entity engaged in the business of providing health insurance.
    (g) Fee year. The term fee year means the calendar year in which the 
fee must be paid to the government. The first fee year is 2014.
    (h) Health insurance--(1) In general. Except as provided in 
paragraph (h)(2) of this section, the term health insurance generally 
has the same meaning as the term health insurance coverage in section 
9832(b)(1)(A), defined to mean benefits consisting of medical care 
(provided directly, through insurance or reimbursement, or otherwise) 
under any hospital or medical service policy or certificate, hospital or 
medical service plan contract, or health maintenance organization 
contract, when these benefits are offered by an entity that is one of 
the types of entities described in paragraph (b)(1)(i) through (b)(1)(v) 
of this section. The term health insurance includes limited scope dental 
and vision benefits under section 9832(c)(2)(A) and retiree-only health 
insurance.
    (2) Exclusions. The term health insurance does not include--
    (i) Coverage only for accident, or disability income insurance, or 
any combination thereof, within the meaning of section 9832(c)(1)(A);
    (ii) Coverage issued as a supplement to liability insurance within 
the meaning of section 9832(c)(1)(B);
    (iii) Liability insurance, including general liability insurance and 
automobile liability insurance, within the meaning of section 
9832(c)(1)(C);
    (iv) Workers' compensation or similar insurance within the meaning 
of section 9832(c)(1)(D);
    (v) Automobile medical payment insurance within the meaning of 
section 9832(c)(1)(E);
    (vi) Credit-only insurance within the meaning of section 
9832(c)(1)(F);
    (vii) Coverage for on-site medical clinics within the meaning of 
section 9832(c)(1)(G);
    (viii) Other insurance coverage that is similar to the insurance 
coverage in paragraph (h)(2)(i) through (vii) of this section under 
which benefits for medical care are secondary or incidental to other 
insurance benefits, within the meaning of section 9832(c)(1)(H), to the 
extent such insurance coverage is specified in regulations under section 
9832(c)(1)(H);
    (ix) Benefits for long-term care, nursing home care, home health 
care, community-based care, or any combination thereof, within the 
meaning of section 9832(c)(2)(B), and such other similar, limited 
benefits to the extent such benefits are specified in regulations under 
section 9832(c)(2)(C);
    (x) Coverage only for a specified disease or illness within the 
meaning of section 9832(c)(3)(A);
    (xi) Hospital indemnity or other fixed indemnity insurance within 
the meaning of section 9832(c)(3)(B);
    (xii) Medicare supplemental health insurance (as defined under 
section 1882(g)(1) of the Social Security Act), coverage supplemental to 
the coverage provided under chapter 55 of title 10, United States Code, 
and similar supplemental coverage provided to coverage

[[Page 678]]

under a group health plan, within the meaning of section 9832(c)(4);
    (xiii) Coverage under an employee assistance plan, a disease 
management plan, or a wellness plan, if the benefits provided under the 
plan constitute excepted benefits under section 9832(c)(2) (or do not 
otherwise provide benefits consisting of health insurance under 
paragraph (h)(1) of this section);
    (xiv) Student administrative health fee arrangements, as defined in 
paragraph (h)(3);
    (xv) Travel insurance, as defined in paragraph (h)(4) of this 
section; or
    (xvi) Indemnity reinsurance, as defined in paragraph (h)(5)(i) of 
this section.
    (3) Student administrative health fee arrangement. For purposes of 
paragraph (h)(2)(xiv) of this section, the term student administrative 
health fee arrangement means an arrangement under which an educational 
institution, other than through an insured arrangement, charges student 
administrative health fees to students on a periodic basis to help cover 
the cost of student health clinic operations and care delivery 
(regardless of whether the student uses the clinic and regardless of 
whether the student purchases any available student health insurance 
coverage).
    (4) Travel insurance. For purposes of paragraph (h)(2)(xv) of this 
section, the term travel insurance means insurance coverage for personal 
risks incident to planned travel, which may include, but is not limited 
to, interruption or cancellation of trip or event, loss of baggage or 
personal effects, damages to accommodations or rental vehicles, and 
sickness, accident, disability, or death occurring during travel, 
provided that the health benefits are not offered on a stand-alone basis 
and are incidental to other coverage. For this purpose, the term travel 
insurance does not include major medical plans that provide 
comprehensive medical protection for travelers with trips lasting 6 
months or longer, including, for example, those working overseas as an 
expatriate or military personnel being deployed.
    (5) Reinsurance--(i) Indemnity reinsurance. For purposes of 
paragraphs (h)(2)(xvi) and (k) of this section, the term indemnity 
reinsurance means an agreement between one or more reinsuring companies 
and a covered entity under which--
    (A) The reinsuring company agrees to accept, and to indemnify the 
issuing company for, all or part of the risk of loss under policies 
specified in the agreement; and
    (B) The covered entity retains its liability to, and its contractual 
relationship with, the individuals whose health risks are insured under 
the policies specified in the agreement.
    (ii) Assumption reinsurance. For purposes of paragraph (k) of this 
section, the term assumption reinsurance means reinsurance for which 
there is a novation and the reinsurer takes over the entire risk of loss 
pursuant to a new contract.
    (i) Located in the United States. The term located in the United 
States means present in the United States (within the meaning of 
paragraph (m) of this section) under section 7701(b)(7) (for presence in 
the 50 States and the District of Columbia) or Sec.  1.937-1(c)(3)(i) of 
this chapter (for presence in a possession of the United States).
    (j) NAIC. The term NAIC means the National Association of Insurance 
Commissioners.
    (k) Net premiums written--The term net premiums written means 
premiums written, including reinsurance premiums written, reduced by 
reinsurance ceded, and reduced by ceding commissions and medical loss 
ratio (MLR) rebates with respect to the data year. For this purpose, MLR 
rebates are computed on an accrual basis in determining net premiums 
written. Because indemnity reinsurance within the meaning of paragraph 
(h)(5)(i) of this section is not health insurance under paragraph (h)(1) 
of this section, the term net premiums written does not include premiums 
written for indemnity reinsurance and is not reduced by indemnity 
reinsurance ceded. However, in the case of assumption reinsurance within 
the meaning of paragraph (h)(5)(ii) of this section, the term net 
premiums written does include premiums written for assumption 
reinsurance and is reduced by assumption reinsurance premiums ceded.
    (l) SHCE. The term SHCE means the Supplemental Health Care Exhibit. 
The

[[Page 679]]

SHCE is a form published by the NAIC that most covered entities are 
required to file annually under State law.
    (m) United States. For purposes of paragraph (i) of this section, 
the term United States means the 50 States, the District of Columbia, 
and any possession of the United States, including American Samoa, Guam, 
the Northern Mariana Islands, Puerto Rico, and the Virgin Islands.
    (n) United States health risk. The term United States health risk 
means the health risk of any individual who is--
    (1) A United States citizen;
    (2) A resident of the United States (within the meaning of section 
7701(b)(1)(A)); or
    (3) Located in the United States (within the meaning of paragraph 
(i) of this section) during the period such individual is so located.

[T.D. 9643, 78 FR 71487, Nov. 29, 2013, as amended by T.D. 9711, 80 FR 
10334, Feb. 26, 2015; T.D. 9830, 83 FR 8174, Feb. 26, 2018]



Sec.  57.3  Reporting requirements and associated penalties.

    (a) Reporting requirement--(1) In general. Annually, each covered 
entity, including each controlled group that is treated as a single 
covered entity, must report its net premiums written for health 
insurance of United States health risks during the data year to the IRS 
by April 15th of the fee year on Form 8963, ``Report of Health Insurance 
Provider Information,'' in accordance with the instructions for the 
form. A covered entity that has net premiums written during the data 
year is subject to this reporting requirement even if it does not have 
any amount taken into account as described in Sec.  57.4(a)(4). If an 
entity is not in the business of providing health insurance for any 
United States health risk in the fee year, it is not a covered entity 
and does not have to report.
    (2) Manner of reporting--(i) In general. The IRS may provide rules 
in guidance published in the Internal Revenue Bulletin for the manner of 
reporting by a covered entity under this section, including rules for 
reporting by a designated entity on behalf of a controlled group that is 
treated as a single covered entity.
    (ii) Electronic Filing Required. Any Form 8963 (including corrected 
forms) filed pursuant to paragraph (a)(1) of this section and reporting 
more than $25 million in net premiums written must be filed 
electronically in accordance with the instructions to the form. If a 
Form 8963 or corrected Form 8963 is required to be filed electronically 
under this paragraph (a)(2)(ii), any subsequently filed Form 8963 filed 
for the same fee year must also be filed electronically. For purposes of 
Sec.  57.3(b), any Form 8963 required to be filed electronically under 
this section will not be considered filed unless it is filed 
electronically.
    (3) Disclosure of reported information. Pursuant to section 
9010(g)(4), the information reported on each original and corrected Form 
8963 will be open for public inspection or available upon request.
    (b) Penalties--(1) Failure to report--(i) In general. A covered 
entity that fails to timely submit a report containing the information 
required by paragraph (a) of this section is liable for a failure to 
report penalty in the amount described in paragraph (b)(1)(ii) of this 
section in addition to its fee liability and any other applicable 
penalty, unless the failure is due to reasonable cause as defined in 
paragraph (b)(1)(iii) of this section.
    (ii) Amount. The amount of the failure to report penalty described 
in paragraph (b)(1)(i) of this section is--
    (A) $10,000, plus
    (B) The lesser of--
    (1) An amount equal to $1,000 multiplied by the number of days 
during which such failure continues; or
    (2) The amount of the covered entity's fee for which the report was 
required.
    (iii) Reasonable cause. The failure to report penalty described in 
paragraph (b)(1)(i) of this section is waived if the failure is due to 
reasonable cause. A failure is due to reasonable cause if the covered 
entity exercised ordinary business care and prudence and was 
nevertheless unable to submit the report within the prescribed time. In 
determining whether the covered entity was unable to submit the report 
timely despite the exercise of ordinary business

[[Page 680]]

care and prudence, the IRS will consider all the facts and circumstances 
surrounding the failure to submit the report.
    (iv) Treatment of penalty. The failure to report penalty described 
in this paragraph (b)(1)--
    (A) Is treated as a penalty under subtitle F;
    (B) Must be paid on notice and demand by the IRS and in the same 
manner as a tax under the Internal Revenue Code; and
    (C) Is a penalty for which only civil actions for refund under 
procedures of subtitle F apply.
    (2) Accuracy-related penalty--(i) In general. A covered entity that 
understates its net premiums written for health insurance of United 
States health risks in the report required under paragraph (a)(1) of 
this section is liable for an accuracy-related penalty in the amount 
described in paragraph (b)(2)(ii) of this section, in addition to its 
fee liability and any other applicable penalty.
    (ii) Amount. The amount of the accuracy-related penalty described in 
paragraph (b)(2)(i) of this section is the excess of--
    (A) The amount of the covered entity's fee for the fee year that the 
IRS determines should have been paid in the absence of any 
understatement; over
    (B) The amount of the covered entity's fee for the fee year that the 
IRS determined based on the understatement.
    (iii) Understatement. An understatement of a covered entity's net 
premiums written for health insurance of United States health risks is 
the difference between the amount of net premiums written that the 
covered entity reported and the amount of net premiums written that the 
IRS determines the covered entity should have reported.
    (iv) Treatment of penalty. The accuracy-related penalty is subject 
to the provisions of subtitle F that apply to assessable penalties 
imposed under chapter 68.
    (3) Controlled groups. Each member of a controlled group that is 
required to provide information to the controlled group's designated 
entity for purposes of the report required to be submitted by the 
designated entity on behalf of the controlled group is jointly and 
severally liable for any penalties described in this paragraph (b) for 
any reporting failures by the designated entity.

[T.D. 9643, 78 FR 71487, Nov. 29, 2013, as amended by T.D. 9881, 84 FR 
61547, Nov. 13, 2019]



Sec.  57.4  Fee calculation.

    (a) Fee components--(1) In general. For every fee year, the IRS will 
calculate a covered entity's allocated fee as described in this section.
    (2) Calculation of net premiums written. Each covered entity's 
allocated fee for any fee year is equal to an amount that bears the same 
ratio to the applicable amount as the covered entity's net premiums 
written for health insurance of United States health risks during the 
data year taken into account bears to the aggregate net premiums written 
for health insurance of United States health risks of all covered 
entities during the data year taken into account.
    (3) Applicable amount. The applicable amounts for fee years are--

------------------------------------------------------------------------
                 Fee year                         Applicable amount
------------------------------------------------------------------------
2014......................................  $8,000,000,000
2015......................................  $11,300,000,000
2016......................................  $11,300,000,000
2017......................................  $13,900,000,000
2018......................................  $14,300,000,000
2019 and thereafter.......................  The applicable amount in the
                                             preceding fee year
                                             increased by the rate of
                                             premium growth (within the
                                             meaning of section
                                             36B(b)(3)(A)(ii)).
------------------------------------------------------------------------

    (4) Net premiums written taken into account--(i) In general. A 
covered entity's net premiums written for health insurance of United 
States health risks during any data year are taken into account as 
follows:

[[Page 681]]



------------------------------------------------------------------------
                                             Percentage of net premiums
   Covered entity's net premiums written     written taken into account
      during the data year that are:                     is:
------------------------------------------------------------------------
Not more than $25,000,000.................                             0
More than $25,000,000 but not more than                               50
 $50,000,000..............................
More than $50,000,000.....................                           100
------------------------------------------------------------------------

    (ii) Controlled groups. In the case of a controlled group, paragraph 
(a)(4)(i) of this section applies to all net premiums written for health 
insurance of United States health risks during the data year, in the 
aggregate, of the entire controlled group, except that any net premiums 
written by any member of the controlled group that is a nonprofit 
corporation meeting the requirements of Sec.  57.2(b)(2)(iii) or a 
voluntary employees' beneficiary association meeting the requirements of 
Sec.  57.2(b)(2)(iv) are not taken into account.
    (iii) Partial exclusion for certain exempt activities. After the 
application of paragraph (a)(4)(i) of this section, if the covered 
entity (or any member of a controlled group treated as a single covered 
entity) is exempt from Federal income tax under section 501(a) and is 
described in section 501(c)(3), (4), (26), or (29) as of December 31st 
of the data year, then only 50 percent of its remaining net premiums 
written for health insurance of United States health risks that are 
attributable to its exempt activities (and not to activities of an 
unrelated trade or business as defined in section 513) during the data 
year are taken into account. If an entity to which this partial 
exclusion applies is a member of a controlled group, then the partial 
exclusion applies to that entity after first applying paragraph 
(a)(4)(i) on a pro rata basis to all members of the controlled group.
    (b) Determination of net premiums written--(1) In general. The IRS 
will determine net premiums written for health insurance of United 
States health risks for each covered entity based on the Form 8963, 
``Report of Health Insurance Provider Information,'' submitted by each 
covered entity, together with any other source of information available 
to the IRS. Other sources of information that the IRS may use to 
determine net premiums written for each covered entity include the SHCE, 
which supplements the annual statement filed with the NAIC pursuant to 
State law, the annual statement itself or the Accident and Health Policy 
Experience filed with the NAIC, the MLR Annual Reporting Form filed with 
the Center for Medicare & Medicaid Services' Center for Consumer 
Information and Insurance Oversight of the U.S. Department of Health and 
Human Services, or any similar statements filed with the NAIC, with any 
State government, or with the Federal government pursuant to applicable 
State or Federal requirements.
    (2) Presumption for United States health risks. For any covered 
entity that files the SHCE with the NAIC, the entire amount reported on 
the SHCE as direct premiums written will be considered to be for health 
insurance of United States health risks as described in Sec.  57.2(n) 
(subject to any applicable exclusions for amounts that are not health 
insurance as described in Sec.  57.2(h)(2)) unless the covered entity 
can demonstrate otherwise.
    (c) Determination of amounts taken into account. (1) For each fee 
year and for each covered entity, the IRS will calculate the net 
premiums written for health insurance of United States health risks 
taken into account during the data year. The resulting number is the 
numerator of the fraction described in paragraph (d)(1) of this section.
    (2) For each fee year, the IRS will calculate the aggregate net 
premiums written for health insurance of United States health risks 
taken into account for all covered entities during the data year. The 
resulting number is the denominator of the fraction described in 
paragraph (d)(2) of this section.
    (d) Allocated fee calculated. For each covered entity for each fee 
year, the IRS will calculate the covered entity's allocated fee by 
multiplying the applicable amount from paragraph (a)(3) of this section 
by a fraction--
    (1) The numerator of which is the covered entity's net premiums 
written for health insurance of United States

[[Page 682]]

health risks during the data year taken into account (described in 
paragraph (c)(1) of this section); and
    (2) The denominator of which is the aggregate net premiums written 
for health insurance of United States health risks for all covered 
entities during the data year taken into account (described in paragraph 
(c)(2) of this section).



Sec.  57.5  Notice of preliminary fee calculation.

    (a) Content of notice. Each fee year, the IRS will make a 
preliminary calculation of the fee for each covered entity as described 
in Sec.  57.4. The IRS will notify each covered entity of its 
preliminary fee calculation for that fee year. The notification to a 
covered entity of its preliminary fee calculation will include--
    (1) The covered entity's allocated fee;
    (2) The covered entity's net premiums written for health insurance 
of United States health risks;
    (3) The covered entity's net premiums written for health insurance 
of United States health risks taken into account after the application 
of Sec.  57.4(a)(4);
    (4) The aggregate net premiums written for health insurance of 
United States health risks taken into account for all covered entities; 
and
    (5) Instructions for how to submit a corrected Form 8963, ``Report 
of Health Insurance Provider Information,'' to correct any errors 
through the error correction process.
    (b) Timing of notice. The IRS will specify in other guidance 
published in the Internal Revenue Bulletin the date by which it will 
send each covered entity a notice of its preliminary fee calculation.



Sec.  57.6  Error correction process.

    (a) In general. Upon receipt of its preliminary fee calculation, 
each covered entity must review this calculation during the error 
correction period. If the covered entity identifies one or more errors 
in its preliminary fee calculation, the covered entity must timely 
submit to the IRS a corrected Form 8963, ``Report of Health Insurance 
Provider Information,'' during the error correction period. The 
corrected Form 8963 will replace the original Form 8963 for all 
purposes, including for the purpose of determining whether an accuracy-
related penalty applies, except that a covered entity remains subject to 
the failure to report penalty if it fails to timely submit the original 
Form 8963. In the case of a controlled group, if the preliminary fee 
calculation for the controlled group contains one or more errors, the 
corrected Form 8963 must include all of the required information for the 
entire controlled group, including members that do not have corrections.
    (b) Time and manner. The IRS will specify in other guidance 
published in the Internal Revenue Bulletin the time and manner by which 
a covered entity must submit a corrected Form 8963. The IRS will provide 
its final determination regarding the covered entity's submission no 
later than the time the IRS provides a covered entity with a final fee 
calculation.
    (c) Finality. Covered entities must assert any basis for contesting 
their preliminary fee calculation during the error correction period. In 
the interest of providing finality to the fee calculation process, the 
IRS will not accept a corrected Form 8963 after the end of the error 
correction period or alter final fee calculations on the basis of 
information provided after the end of the error correction period.



Sec.  57.7  Notification and fee payment.

    (a) Content of notice. Each fee year, the IRS will make a final 
calculation of the fee for each covered entity as described in Sec.  
57.4. The IRS will base its final fee calculation on each covered 
entity's original or corrected Form 8963, ``Report of Health Insurance 
Provider Information,'' as adjusted by other sources of information 
described in Sec.  57.4(b)(1). The notification to a covered entity of 
its final fee calculation will include--
    (1) The covered entity's allocated fee;
    (2) The covered entity's net premiums written for health insurance 
of United States health risks;
    (3) The covered entity's net premiums written for health insurance 
of United States health risks taken into account after the application 
of Sec.  57.4(a)(4);

[[Page 683]]

    (4) The aggregate net premiums written for health insurance of 
United States health risks taken into account for all covered entities; 
and
    (5) The final determination on the covered entity's corrected Form 
8963, ``Report of Health Insurance Provider Information,'' if any.
    (b) Timing of notice. The IRS will send each covered entity a notice 
of its final fee calculation by August 31st of the fee year.
    (c) Differences in preliminary fee calculation and final 
calculation. A covered entity's final fee calculation may differ from 
the covered entity's preliminary fee calculation because of changes made 
pursuant to the error correction process described in Sec.  57.6 or 
because the IRS discovered additional information relevant to the fee 
calculation through other information sources as described in Sec.  
57.4(b)(1). Even if a covered entity did not file a corrected Form 8963 
described in Sec.  57.6, a covered entity's final fee may differ from a 
covered entity's preliminary fee because of information discovered about 
that covered entity through other information sources. In addition, a 
change in aggregate net premiums written for health insurance of United 
States health risks can affect every covered entity's fee because each 
covered entity's fee is equal to a fraction of the aggregate fee 
collected from all covered entities.
    (d) Payment of final fee. Each covered entity must pay its final fee 
by September 30th of the fee year. For a controlled group, the payment 
must be made using the designated entity's Employer Identification 
Number as reported on Form 8963. The fee must be paid by electronic 
funds transfer as required by Sec.  57.6302-1. There is no tax return to 
be filed with the payment of the fee.
    (e) Controlled groups. In the case of a controlled group that is 
liable for the fee, all members of the controlled group are jointly and 
severally liable for the fee. Accordingly, if a controlled group's fee 
is not paid, the IRS may separately assess each member of the controlled 
group for the full amount of the controlled group's fee.



Sec.  57.8  Tax treatment of fee.

    (a) Treatment as an excise tax. The fee is treated as an excise tax 
for purposes of subtitle F (sections 6001-7874). Thus, references in 
subtitle F to ``taxes imposed by this title,'' ``internal revenue tax,'' 
and similar references, are also references to the fee. For example, the 
fee is assessed (section 6201), collected (sections 6301, 6321, and 
6331), enforced (section 7602), and subject to examination and summons 
(section 7602) in the same manner as taxes imposed by the Code.
    (b) Deficiency procedures. The deficiency procedures of sections 
6211-6216 do not apply to the fee.
    (c) Limitation on assessment. The IRS must assess the amount of the 
fee for any fee year within three years of September 30th of that fee 
year.
    (d) Application of section 275. The fee is treated as a tax 
described in section 275(a)(6) (relating to taxes for which no deduction 
is allowed).



Sec.  57.9  Refund claims.

    Any claim for a refund of the fee must be made by the entity that 
paid the fee to the government and must be made on Form 843, ``Claim for 
Refund and Request for Abatement,'' in accordance with the instructions 
for that form.



Sec.  57.10  Applicability date.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
Sec. Sec.  57.1 through 57.9 apply to any fee that is due on or after 
September 30, 2014.
    (b) Paragraphs (b)(3) and (c)(3)(ii) of Sec.  57.2. Paragraphs 
(b)(3) and (c)(3)(ii) of Sec.  57.2 apply on February 22, 2018.
    (c) Section 57.3(a)(2)(ii) applies to Forms 8963, including 
corrected Forms 8963, filed after December 31, 2019.

[T.D. 9711, 80 FR 10335, Feb. 26, 2015, as amended by T.D. 9830, 83 FR 
8175, Feb. 26, 2018; T.D. 9881, 84 FR 61547, Nov. 13, 2019]



Sec.  57.6302-1  Method of paying the health insurance providers fee.

    (a) Fee to be paid by electronic funds transfer. Under the authority 
of section 6302(a), the fee imposed on covered entities engaged in the 
business of providing health insurance for United States health risks 
under section 9010

[[Page 684]]

and Sec.  57.4 must be paid by electronic funds transfer as defined in 
Sec.  31.6302-1(h)(4)(i) of this chapter, as if the fee were a 
depository tax. For the time for paying the fee, see Sec.  57.7.
    (b) Effective/Applicability date. This section applies with respect 
to any fee that is due on or after September 30, 2014.



PART 141_TEMPORARY EXCISE TAX REGULATIONS UNDER THE EMPLOYEE 
RETIREMENT INCOME SECURITY ACT OF 1974--Table of Contents





Sec.  141.4975-13  Definition of ``amount involved'' and ``correction''.

    Until superseded by permanent regulations under sections 4975(f) (4) 
and (5), Sec.  53.4941(e)-1 of this chapter (Foundation Excise Tax 
Regulations) will be controlling to the extent such regulations describe 
terms appearing both in section 4941(e) and section 4975(f). Because of 
the need for immediate guidance with respect to the provisions contained 
in this Treasury decision, it is found impracticable to issue it with 
notice and public procedure thereon under subsection (b) of section 553 
of title 5 of the United States Code or subject to the effective date 
limitation of subsection (d) of that section.

(Sec. 7805 of the Internal Revenue Code of 1954 (68A Stat. 917; 26 
U.S.C. 7805))

[T.D. 7425, 41 FR 32890, Aug. 6, 1976, as amended by T.D. 8084, 51 FR 
16305, May 2, 1986]



PART 143_TEMPORARY EXCISE TAX REGULATIONS UNDER THE TAX REFORM ACT OF 1969--
Table of Contents



Sec.
143.1 [Reserved]
143.2 Taxes on self-dealing; scholarship and fellowship grants by 
          private foundations.
143.3-143.4 [Reserved]
143.5 Taxes on self-dealing; indirect transactions by a private 
          foundation.
143.6 Election to shorten the period during which certain excess 
          business holdings of private foundations are treated as 
          permitted holdings.

    Authority: Sec. 7805, 68A Stat. 917; 26 U.S.C. 7805.



Sec.  143.1  [Reserved]



Sec.  143.2  Taxes on self-dealing; scholarship and fellowship grants 
by private foundations.

    (a) In general. Section 4941(d)(1)(D) of the Internal Revenue Code 
of 1954 as added by section 101(b) of the Tax Reform Act of 1969 (83 
Stat. 500) provides that the term ``self-dealing'' includes any direct 
or indirect payment of compensation (or payment or reimbursement of 
expenses) by a private foundation to a disqualified person. Section 
4941(d)(1)(E) provides that the term ``self-dealing'' includes any 
direct or indirect transfer to, or use by, or for the benefit of, a 
disqualified person of the income or assets of a private foundation.
    (b) Scholarship and fellowship grants. A scholarship or fellowship 
grant to a person other than a Government official paid or incurred by a 
private foundation in accordance with a program which is consistent with 
the allowance of a deduction under section 170 for contributions made to 
such private foundation shall not constitute an act of self-dealing. For 
example, a scholarship or fellowship grant made by a private foundation 
in accordance with a program to award scholarship or fellowship grants 
to the children of employees of the donor shall not constitute an act of 
self-dealing if the private foundation has, after disclosure of the 
method of carrying out such program, received a ruling or determination 
letter stating that it is exempt from taxation under section 501(c)(3) 
and that contributions to the private foundation are deductible by the 
donor under section 170.

[T.D. 7030, 35 FR 4293, Mar. 10, 1970]



Sec. Sec.  143.3-143.4  [Reserved]



Sec.  143.5  Taxes on self-dealing; indirect transactions 
by a private foundation.

    (a) In general. Section 4941(d)(1)(D) of the Internal Revenue Code 
of 1954 as added by section 101(b) of the Tax Reform Act of 1969 (83 
Stat. 500) provides that the term ``self-dealing'' includes

[[Page 685]]

any direct or indirect payment of compensation (or payment or 
reimbursement of expenses) by a private foundation to a disqualified 
person. Section 4941(d)(1)(E) provides that the term ``self-dealing'' 
includes any direct or indirect transfer to, or use by, or for the 
benefit of, a disqualified person of the income or assets of a private 
foundation. Section 4941(d)(1)(F) provides that the term ``self-
dealing'' includes any direct or indirect agreement by a private 
foundation to make any payment of money or other property to a 
government official other than an agreement to employ such individual 
for any period after the termination of his government service if such 
individual is terminating his government service within a 90-day period.
    (b) Indirect transactions by a private foundation. A transaction 
engaged in directly with a Government official by an organization 
described in section 509(a) (1), (2), or (3) which is the recipient of a 
grant from a private foundation shall not constitute an indirect act of 
self-dealing between such private foundation and Government official if 
the private foundation does not earmark the use of the grant for any 
named Government official and does not control or retain any veto power 
over the selection of the Government official by the grantee 
organization. For purposes of the preceding sentence, a grant by a 
private foundation shall not constitute an indirect act of self-dealing 
even though such foundation had reason to believe that certain 
Government officials would derive benefits from such grant so long as 
the grantee, in fact, exercises control over the selecting process and 
actually makes the selection completely independent of the private 
foundation.
    (c) Example. The provisions of subsection (b) of this section may be 
illustrated by the following example.

    Example. A private foundation made a grant to an organization 
described in section 509(a) (1), (2), or (3) to conduct a judicial 
seminar. The grantee conducting the seminar made payments to certain 
Government officials. By the nature of the seminar the grantor 
foundation had reason to believe that Government officials would be 
compensated for participation in such seminar. The grantee, however, had 
complete independent control over the selection of such participants. 
Since the grantee has not acted as a conduit for the private foundation 
and has, in fact, exercised independent control over the use of the 
grant, such grant by the private foundation shall not constitute an act 
of self-dealing with respect to the Government officials.

[T.D. 7036, 35 FR 6322, Apr. 18, 1970]



Sec.  143.6  Election to shorten the period during which certain 
excess business holdings of private foundations are treated 
as permitted holdings.

    (a) In general. Under section 4943(c)(4)(B)(ii), where the combined 
holdings on May 26, 1969, of a private foundation and all disqualified 
persons in any one business enterprise exceed 75 percent of the voting 
stock or more than a 75 percent interest in the value of all outstanding 
shares of all classes of stock in such enterprise, and the foundation's 
holdings on such date do not exceed 95 percent of the voting stock in 
such enterprise, then such combined holdings must be reduced to 50 
percent of the voting stock of such enterprise by the end of a 15-year 
period beginning on May 26, 1969. However, under section 4943(c)(4)(E), 
the 15-year period during which such combined holdings in the enterprise 
must be reduced to 50 percent is to be shortened to a 10-year period, 
referred to in section 4943(c)(4)(B)(iii), if, at any time before 
January 1, 1971, one or more individuals:
    (1) Who are substantial contributors (as described in section 
507(d)(2)) or members of the family within the meaning of section 
4946(d) of one or more substantial contributors to such private 
foundation, and
    (2) Who on May 26, 1969, held in aggregate more than 15 percent of 
the voting stock of the enterprise, make an election in the manner 
described in paragraph (b). If an individual who owns 15 percent or less 
of the voting stock of the enterprise wishes to make an election under 
this paragraph, he and one or more other individuals who together own 
more than 15 percent of the voting stock of the enterprise may join in 
making an election by together filing the statement referred to in 
paragraph (b) of this section.
    (b) Manner of making election. The election referred to in paragraph 
(a) of

[[Page 686]]

this section is made by filing two copies of a written statement with 
the Office of the Assistant Commissioner (Technical), Internal Revenue 
Service, Washington, DC 20224.
    (c) Additional copies. The individual filing the written statement 
referred to in paragraph (b) of this section shall submit a copy of the 
statement to the private foundation with respect to which the election 
is being made and to the management of such business enterprise.
    (d) Content of statement. The statement shall indicate that an 
election is being made under section 4943(c) (4)(E) of the Code, and 
shall be signed by each of the individuals making the election, and, in 
addition shall contain the following information:
    (1) The name, address, and taxpayer identification number of each of 
the individuals making the election;
    (2) The name and address of the foundation with respect to which 
such election is being made;
    (3) The name and address of the business enterprise with respect to 
which the election is being made;
    (4) The aggregate number of shares of voting stock in the business 
enterprise that were held on May 26, 1969, by each individual making the 
election, and, in addition, the percentage that such voting stock is of 
the total number of shares of voting stock issued and outstanding on 
such date;
    (5) The aggregate number of shares of voting stock in the business 
enterprise held by the private foundation on May 26, 1969, and, in 
addition, the percentage that such voting stock is of the total number 
of shares of voting stock issued and outstanding on such date; and
    (6) The total number of shares of voting stock in the business 
enterprise or the best available estimate thereof, that were issued and 
outstanding on May 26, 1969.
    (e) Time for making election. The statement referred to in paragraph 
(b) of this section shall be filed before January 1, 1971.

[T.D. 7038, 35 FR 6962, May 1, 1970]



PART 145_TEMPORARY EXCISE TAX REGULATIONS UNDER THE HIGHWAY REVENUE ACT 
OF 1982 (PUB. L. 97	424)--Table of Contents



Sec.
145.4051-1 Imposition of tax on heavy trucks and trailers sold at 
          retail.
145.4052-1 Special rules and definitions.
145.4061-1 Application to manufacturers tax.

    Authority: 26 U.S.C. 7805.
    Sections 145.4051-1 and 145.4052-1 also issued under 26 U.S.C. 4051 
and 4052.

    Source: T.D. 7882, 48 FR 14362, Apr. 4, 1983, unless otherwise 
noted.



Sec.  145.4051-1  Imposition of tax on heavy trucks and trailers 
sold at retail.

    (a) Imposition of tax--(1) In general. Section 4051(a)(1) imposes a 
tax on the first retail sale (as defined in Sec.  145.4052-1(a)) of the 
following articles (including in each case parts or accessories therefor 
sold on or in connection therewith or with the sale thereof):
    (i) Automobile truck chassis and bodies;
    (ii) Truck trailer and semitrailer chassis and bodies; and
    (iii) Tractors of the kind chiefly used for highway transportation 
in combination with a trailer or semitrailer.

A sale of an automobile truck, truck trailer or semitrailer, shall be 
considered to be a sale of a chassis and of a body enumerated in this 
paragraph (a)(1).
    (2) Special rule applicable to chassis and bodies. A chassis or body 
enumerated in paragraph (a)(1) of this section is taxable under section 
4051(a)(1) only if such chassis or body is sold for use as a component 
part of a highway vehicle (as defined in paragraph (d) of Sec.  
48.4061(a)-1 (Regulations on Manufacturers and Retailers Excise Taxes)), 
which is an automobile truck, truck trailer or semitrailer, or a tractor 
of the kind chiefly used for highway transportation in combination with 
a trailer or semitrailer. Furthermore, a chassis or body which is not 
enumerated in paragraph (a)(1) of this section is not taxable under 
section 4051(a)(1) even though such chassis or body is used as a 
component part of a highway vehicle (e.g., a chassis or body of a 
passenger automobile). See paragraphs

[[Page 687]]

(e)(1) and (e)(2) of this section for the definitions of a tractor and 
truck. See paragraphs (e) (1) through (5) of Sec.  145.4052-1 for other 
provisions applicable to this section. See paragraph (f) of this 
section, relating to tax-free sales of non-highway vehicles.
    (3) Parts or accessories sold on or in connection with chassis, 
bodies, etc. The tax applies in respect of parts or accessories sold on 
or in connection with or with the sale of the vehicles specified in 
section 4051(a)(1). Thus, for example, if at the time the article is 
sold by the retailer, the part or accessory has been ordered from the 
retailer, the part or accessory will be considered as sold in connection 
with and with the sale of the vehicle. The tax applies in such a case 
whether or not the parts or accessories are billed separately by the 
retailer. If a taxable chassis, body, or tractor is sold by the 
retailer, without parts or accessories which are considered equipment 
essential for the operation or appearance of the taxable article, the 
sale of such parts or accessories by the retailer to the purchaser of 
the taxable article will be considered, in the absence of evidence to 
the contrary, to have been made in connection with the sale of the 
taxable article even though they are shipped separately, at the same 
time or on a different date. For example, if a retailer sells to any 
person a chassis and the bumpers for such chassis, or sells a taxable 
tractor and the fifth wheel and attachments, the tax applies to such 
parts or accessories regardless of the method of billing or the time at 
which the shipments were made. Parts and accessories that are spares or 
replacements are not subject to tax.
    (4) Exclusions. No tax is imposed by section 4051(a)(1) on the sale 
of automobile truck chassis and bodies, suitable for use with a vehicle 
which has a gross vehicle weight of 33,000 pounds or less, or truck 
trailer and semitrailer chassis and bodies, suitable for use with a 
trailer or semitrailer which has a gross vehicle weight of 26,000 pounds 
or less. For purposes of this paragraph (a)(4) the term suitable for use 
means practical and commercial fitness for such use. A chassis or body 
possesses practical fitness for use with a vehicle if it performs its 
intended function up to a generally acceptable standard of efficiency 
with the vehicle, and a chassis or body possesses commercial fitness for 
use with a vehicle if it is generally available for use with the vehicle 
at a price that is reasonably competitive with other articles that may 
be used for the same purpose. Thus, a truck chassis which is suitable 
for use with a vehicle having a gross vehicle weight of 33,000 pounds or 
less, is not subject to the tax imposed by section 4051(a)(1) regardless 
of the body actually mounted thereon. A truck trailer or semitrailer 
chassis suitable for use with a vehicle having a gross vehicle weight of 
26,000 pounds or less, is not subject to tax regardless of the body 
actually mounted thereon. Where an exempt body is mounted on a taxable 
chassis, or a taxable body is mounted on an exempt chassis, the taxable 
chassis or body, as the case may be, nevertheless remains subject to 
such tax, if the resulting vehicle is a highway vehicle as defined in 
Sec.  48.4061(a)-1.
    (b) Rate of tax. With respect to the articles enumerated in 
paragraph (a)(1) of this section, the rate of tax imposed by section 
4051(a)(1) is 12 percent of the price for which the article is sold on 
or after April 1, 1983. See paragraph (d) of this section relating to 
vehicles on which a 10 percent tax was imposed under section 4061(a)(1).
    (c) Separate purchase of truck or trailer and parts and accessories 
therefor--(1) In general. If the owner, lessee, or operator of any 
vehicle, which contains an article taxable under paragraph (a)(1) of 
this section, installs (or causes to be installed) any part or accessory 
on such vehicle, and such installation is not later than 6 months after 
the date such vehicle (as it contains such article) was first placed in 
service, section 4051(b)(1) imposes a tax on such installation equal to 
12 percent of the price of such part or accessory and its installation. 
For purposes of the tax imposed by section 4051(b)(1) and this paragraph 
(c)(1) the term ``parts and accessories'' does not include those parts 
and accessories which were previously exempt from tax under sections 
4061(b) (1) and (2) as in effect prior to January 7, 1983. Thus, for 
example, articles of general use are exempt from tax. See Sec.  
48.4061(b)-2 (b). See paragraphs (d) (1)

[[Page 688]]

through (4) of Sec.  145.4052-1 for determination of price.
    (2) Placed in service. For purposes of paragraph (c)(1) of this 
section, a vehicle shall be considered placed in service on the date on 
which the owner of the vehicle took actual possession of the vehicle. 
This date can be established by the delivery ticket signed by the owner 
or other comparable document indicating delivery to and acceptance by 
the owner.
    (3) Exceptions. The tax imposed by section 4051(b)(1) and paragraph 
(c)(1) of this section shall not apply if:
    (i) The part or accessory intalled is a replacement part or 
accessory, or
    (ii) The aggregate price of the parts and accessories (and their 
installation) described in paragraph (c)(1) of this section with respect 
to any vehicle does not exceed $200.

For purposes of paragraph (c)(3)(i) of this section, a part is a 
replacement part, regardless of when it is ordered, if its use with a 
vehicle is as a replacement for a part on such vehicle. For purposes of 
paragraph (c)(3)(ii) of this section, the term aggregate price of parts 
and accessories (and their installation) refers to all purchases and 
installation charges, not including replacement parts and accessories, 
made with respect to a vehicle within the 6 month period provided for in 
paragraph (c)(1) of this section. If the aggregate price of parts and 
accessories (and their installation) during the 6 month period exceeds 
$200, the tax imposed under section 4051(b)(1) and paragraph (c)(1) of 
this section shall apply to the cost of all parts and accessories (and 
their installation) during such period. For example, a vehicle is 
purchased and placed in service on July 1, 1983. On August 1, 1983, the 
owner purchases and has installed parts and accessories at a cost of 
$150. On September 1, 1983, the owner purchases and has installed parts 
and accessories at a cost of $300. On September 1, 1983 a tax of $54 
will be imposed (12 percent x $450). Any costs of additional parts and 
accessories installed with respect to the vehicle before January 1, 1984 
(and the cost of installation) will also be subject to the 12 percent 
tax.
    (d) Transitional rule. In the case of an article taxable under 
paragraph (a)(1) of this section, on which a tax was imposed under 
section 4061(a)(1), the rate of tax set forth in paragraph (b) shall be 
applied by substituting ``2 percent'' for ``12 percent.'' For example, 
if a manufacturer sells a tractor to a dealer on February 1, 1983, for 
$20,000 (which includes the Federal excise tax), for which a 10 percent 
tax was paid, and the dealer sells the tractor on April 10, 1983 for 
$25,000, a tax of 2 percent will be imposed on the $25,000 sales price. 
See paragraphs (d) (1) through (4) of Sec.  145.4052-1 relating to 
determination of price.
    (e) Definitions. For purposes of this section:
    (1) Tractor. (i) The term ``tractor'' means a highway vehicle 
primarily designed to tow a vehicle, such as a trailer or semitrailer, 
but does not carry cargo on the same chassis as the engine. A vehicle 
equipped with air brakes and/or towing package will be presumed to be 
primarily designed as a tractor.
    (ii) An incomplete chassis cab shall be treated as a tractor if it 
is equipped with one or more of the following:
    (A) A device for supplying pressure from the chassis cab to the 
brake system (air or hydraulic) of the towed vehicle;
    (B) A mechanism for protecting the chassis cab brake system from the 
effects of a loss of pressure in the brake system of the towed vehicle;
    (C) A control linking the brake system of the chassis to the brake 
system of the towed vehicle;
    (D) A control in the cab for operating the towed vehicle's brakes 
independently of the chassis cab's brakes; or
    (E) Any other equipment designed to make it suitable for use as a 
tractor.

An incomplete chassis cab which is not equipped with any of the devices 
set forth in paragraphs (e)(1)(ii) (A) through (E) of this section shall 
be treated as a truck if the purchaser certifies in writing that the 
vehicle will not be equipped for use as a tractor.
    (2) Truck. The term ``truck'' refers to a highway vehicle that is 
primarily designed to transport its load on the same chassis as the 
engine even if it is also equipped to tow a vehicle, such as a trailer 
or semitrailer.

[[Page 689]]

    (3) Gross vehicle weight. (i) For purposes of this section the term 
``gross vehicle weight'' means the maximum total weight of a loaded 
vehicle. Except as otherwise provided in paragraphs (e)(3) (ii) through 
(v) of this section, such maximum total weight shall be the gross 
vehicle weight rating of the article as specified by the manufacturer or 
established by the seller of the completed article, unless the 
Commissioner finds that such rating is unreasonable in light of the 
facts and circumstances in a particular case.
    (ii) A seller must specify or establish a weight rating for each 
chassis, body, or vehicle sold on or after April 1, 1983 if such article 
requires no additional manufacture other than (A) the addition of 
readily attachable articles, such as tire or rim assemblies or minor 
accessories, (B) the performance of minor finishing operations, such as 
painting, or (C) in the case of a chassis, the addition of a body. If an 
article is specially equipped to the purchaser's specifications, such 
specifications may be used to establish the gross vehicle weight of the 
article.
    (iii) A seller shall maintain a record of the gross vehicle weight 
rating of each truck, trailer and semitrailer sold and excluded from the 
tax imposed by section 4051(a)(1) by reason of sections 4051(a) (2), (3) 
and paragraphs (e)(3) (i) through (v) of this section. For this purpose, 
a record of the serial number of each such article shall be treated as a 
record of the gross vehicle weight rating of the article if such rating 
is indicated by the serial number.
    (iv) If (A) the seller's rating indicated in a label or identifying 
device affixed to an article, (B) the rating set forth in the sales 
invoice or warranty agreement, and (C) the advertised rating for that 
article (or two or more identical articles) are inconsistent, the 
highest of such ratings will be considered to be the seller's gross 
vehicle weight rating specified or established for purposes of the tax 
imposed by section 4051(a)(1).
    (v) The seller's gross vehicle weight rating must take into account, 
among other things, the strength of the chassis frame and the axle 
capacity and placement. The Commissioner may exclude from the gross 
vehicle weight rating any readily attachable parts to the extent the 
Commissioner finds that the use of such parts in computing the gross 
vehicle weight rating is unreasonable.
    (f) Tax-free sales. With respect to tax-free sales of a chassis or 
body for use as a component of a vehicle other than a highway vehicle, 
similar provisions to paragraphs (e)(2) (ii), (iii), and (iv) of Sec.  
48.4061(a)-1 shall apply.
    (g) Effective date. The provisions of this section shall be 
effective for articles sold on or after April 1, 1983.

[T.D. 7882, 48 FR 14362, Apr. 4, 1983, as amended by T.D. 8879, 65 FR 
17164, Mar. 31, 2000]



Sec.  145.4052-1  Special rules and definitions.

    (a) First retail sale--(1) General rule. For purposes of section 
4051(a)(1) and Sec.  145.4051-1, the term ``first retail sale'' means a 
taxable sale described in paragraph (a)(2) of this section.
    (2) Taxable sale. The sale of an article is a taxable sale unless--
    (i) The sale is a tax-free sale under section 4221,
    (ii) [Reserved]. For sales after June 30, 1998, see Sec.  48.4052-1 
of this chapter.
    (iii) There has been a prior taxable sale of the article. 
Notwithstanding the preceding clause, the sale of a chassis or body of a 
trailer or semitrailer (``trailer or semitrailer'') less than six months 
after a taxable sale of the article shall be treated as a taxable sale.
    (3) Computation of tax--(i) In general. If the sale of an article is 
a taxable sale under paragraph (a)(2) of this section, the tax shall be 
computed on the price as determined under paragraph (d) of this section.
    (ii) Exception. If the taxable sale of an article is a taxable use 
of such article under paragraph (c) of this section, the tax shall be 
computed on the price as determined under paragraph (c) of this section.
    (4) Special rule for tax-paid trailer and semitrailer. In the case 
of a taxable sale of a trailer or semitrailer less than six months after 
a taxable sale of the article, the seller in the subsequent sale (``the 
subsequent seller'') may claim a credit equal to the amount of tax 
previously paid by another person (``the previous taxpayer'') under 
section 4051(a)(1) with respect to the prior taxable sale of the 
article. The credit for

[[Page 690]]

such tax will be allowed to the subsequent seller only if the form on 
which the credit is claimed is accompanied by a statement, signed by the 
subsequent seller, indicating the amount of the credit being claimed 
under this paragraph (a)(4) and stating that--
    (i) The subsequent seller has not been repaid any portion of such 
tax by the previous taxpayer,
    (ii) The subsequent seller has not provided the previous taxpayer 
with written consent to allow the previous taxpayer to claim a credit or 
refund of such tax under section 6416 (a), and
    (iii) The subsequent seller has records (e.g., invoices) 
substantiating the amount of tax paid by the previous taxpayer with 
respect to the prior taxable sale of such article.

In no case shall the amount of the credit allowable under this paragraph 
(a)(4) with respect to an article exceed the tax liability of the 
subsequent seller with respect to the sale of such article.
    (5) No installment payments of tax. If a lease or an installment 
sale (or another form of sale under which the sales price is paid in 
installments) is, or is deemed to be, a taxable sale under this section, 
then the liability for the entire tax arises at the time of the lease or 
installment sale. No portion of the tax is deferred by reason of the 
fact that the sales price is paid in installments.
    (6) Certificate. A certificate signed by the purchaser, or an 
officer or employee authorized by the purchaser to sign the certificate, 
may be accepted by a seller in support of a nontaxable sale to the 
purchaser. If it is impracticable to furnish a separate certificate for 
each sale because of the frequency of sales to such purchaser, a 
certificate covering all orders between given dates (such period not to 
exceed 12 calendar quarters) will be acceptable. The purchaser may 
revoke the certificate by sending a written revocation to the seller. 
The certificate and proper records of invoices, orders, etc., relating 
to sales made pursuant to such certificate, must be retained by the 
seller as provided in section 6001 and the regulations thereunder. The 
certificate shall be substantially in the following form:

                          Exemption Certificate

    I hereby certify that I am ______ (Title) of ______, (Name of 
purchaser) that I am authorized to execute this certificate, and that:
    (Check appropriate line)
___ the article or articles specified in the accompanying order, or on 
the reverse side hereof, (or)
___ all orders placed by the purchaser for the period commencing _______ 
(Date) (period not to exceed 12 calendar quarters), are purchased either 
for resale or for lease on a long-term basis.
    I have filed Form 637 and have received registration number ____.
I understand that the fraudulent use of this certificate to secure 
exemption will subject me and all parties making such fraudulent use to 
a fine of not more than $10,000, or to imprisonment for not more than 5 
years, or both, together with costs of prosecution.

________________________________________________________________________
(Signature)

________________________________________________________________________
(Address)

    (b) Tax treatment of leases--(1) Long-term lease. For purposes of 
this section and Sec.  145.4051-1, the leasing of an article on a long-
term basis (as defined in paragraph (d)(6) of this section) will be 
deemed to be a sale of the article and will be deemed to be a taxable 
sale unless one of the exceptions contained in paragraph (a)(2) of this 
section applies. Thus, if a dealer purchases an article tax-free under 
an exception contained in paragraph (a)(2) of this section and then 
leases the article on a long-term basis, the leasing of the article will 
be treated as a taxable sale.
    (2) Short-term lease. For purposes of this section and Sec.  
145.4051-1, the leasing of an article on a short-term basis (as defined 
in paragraph (d)(6) of this section) will be deemed to be a taxable use 
of such article under paragraph (c) of this section and will be deemed 
to be a taxable sale unless one of the exceptions contained in paragraph 
(a)(2) of this section applies.
    (3) Computation of tax--(i) Long-term lease by manufacturer, 
producer, or importer. When a manufacturer, producer, or importer is the 
lessor of an article on a long-term basis (as defined in paragraph 
(d)(6) of this section) and such lease is deemed to be a taxable sale 
under paragraph (b)(1) of this section, the tax shall be computed on a

[[Page 691]]

presumptive retail sales price as determined under paragraph (d)(4)(i) 
of this section. The manufacturer, producer, or importer shall be liable 
for the tax as if the article were sold at retail by such manufacturer, 
importer, or retailer.
    (ii) Long-term lease by persons other than manufacturer, producer, 
or importer. When a person other than a manufacturer, producer, or 
importer is the lessor of an article on a long-term basis (as defined in 
paragraph (d)(6) of this section) and such lease is deemed to be a 
taxable sale under paragraph (b)(1) of this section, the tax shall be 
computed on a presumptive retail sales price as determined under 
paragraph (d)(5) (i) of this section. Such person shall be liable for 
the tax as if the article were sold at retail by such person.
    (c) Use treated as sale--(1) In general. For purposes of this 
section and Sec.  145.4051-1, the use of an article will be deemed to be 
a sale of the article. Furthermore, if a person purchases a vehicle for 
which no tax was imposed under section 4051(a)(1) and thereafter 
converts such vehicle into an article which would have been taxable 
under section 4051(a)(1) and uses it, such person shall be liable for 
the tax as if such article were sold at retail by such person. For 
example, a truck having a gross vehicle weight rating of 24,000 pounds 
is sold at retail. The purchaser adds a lift axle, thereby increasing 
the gross vehicle weight rating to 34,000 pounds. If the purchaser 
thereafter uses the vehicle the purchaser shall be liable for the tax as 
if such article were sold at retail.
    (2) Exemption for use in further manufacture. The tax on the use of 
an article to which paragraph (c)(1) of this section applies shall not 
apply to use of the article by such person as material in the 
manufacture or production of, or as a component part of, another article 
to be manufactured or produced by the same user.
    (3) Time of application of tax. In the case of taxable use of an 
article by the seller, the tax attaches at the time such use begins. It 
tax applies by reason of the sale of an article on or in connection 
with, or with the sale of another article, the tax attaches at the time 
of the sale of such other article.
    (4) Events subsequent to taxable use of article. Liability for tax 
incurred on the use of an article is not extinguished or reduced because 
of any subsequent sale or lease of the article even if such sale or 
lease would have been exempt if the article had been sold or leased 
prior to use. If a seller of an article incurs liability for tax on his 
or her use of an article, and thereafter sells or leases the article in 
a transaction which otherwise would be subject to tax, liability for tax 
is not incurred on such sale or lease.
    (5) Computation of tax. (i) Except as provided in paragraphs 
(c)(5)(ii) and (c)(5)(iii) of this section.
    (ii) If the seller of an article regularly sells such articles at 
retail in arm's length transactions, tax liability on its use of any 
such article shall be computed on its lowest established retail price 
for such articles in effect at the time of the taxable use. In 
establishing such price, there shall be included and excluded, as 
applicable, the charges and readjustments specified in sections 4216(a), 
4216(f), and 6416(b)(1) as in effect at the time the tax liability on 
the use of the article is incurred. If the seller of an article does not 
regularly sell such articles at retail in arm's length transactions, a 
constructive price on which the tax shall be computed will be determined 
by the Commissioner. This price will be established after considering 
the selling practices and price structures of sellers of similar 
articles.
    (iii) In the case of any short-term lease (as defined in paragraph 
(d)(6) of this section) by any person other than a manufacturer, 
producer, or importer (or related person as defined in paragraph 
(d)(2)(ii) of this section) of an article that is deemed to be a taxable 
use of such article under paragraph (b)(2) of this section, the tax 
imposed by section 4051(a)(1) shall be computed on a price equal to the 
sum of--
    (A) The price (as determined under paragraph (d) of this section) at 
which such article was sold to the lessor plus the cost of any parts and 
accessories installed by the lessor (or an agent of the lessor) on such 
article before the first use or lease by the lessor, plus

[[Page 692]]

    (B) The product of the sum described in paragraph (c)(5)(iii)(A) of 
this section and the presumed markup percentage (as defined in paragraph 
(d)(7) of this section).
    (d) Determination of price--(1) In general. The price for which an 
article is sold includes the total consideration paid for the article 
whether that consideration is paid in money, services, or other forms. 
In addition, there shall be included any charge incident to placing the 
article in condition ready for use. Similar rules to section 4216(a) and 
the regulations thereunder, relating to charges to be included in the 
price and excluded from the price, shall apply. For example, charges for 
transportation, delivery, insurance, and installation (other than 
installation charges to which section 4051(b) applies), and other 
expenses actually incurred in connection with the delivery of an article 
to a purchaser pursuant to a bona fide sale shall be excluded from the 
price in computing the tax.
    (2) Presumptive retail sales price where tax paid by manufacturer, 
producer, or importer--(i) In general. In the case of a taxable sale 
(other than a taxable sale described in paragraph (b)(1) of this 
section) where a manufacturer, producer, importer, or related person is 
liable for the tax imposed by section 4051, such tax shall be computed 
on a price equal to the sum of--
    (A) The price that would (but for this paragraph (d)(2)) be 
determined under this paragraph (d), and
    (B) The product of the price determined under paragraph (d)(2)(i)(A) 
of this section and the presumed markup percentage (as defined in 
paragraph (d)(7) of this section).
    (ii) Related person defined--(A) In general. Except as provided in 
paragraph (d)(2)(ii)(B) of this section, the term ``related person'' 
means any person that is a member of the same controlled group (within 
the meaning of section 5061(e)(3)) as the manufacturer, producer, or 
importer.
    (B) Exception for permanent retail establishment. A person shall not 
be treated as a related person with respect to the sale of any article 
if--
    (1) Such person sells the article through a permanent retail 
establishment in the normal course of business of being a retailer, and
    (2) Such person has records (e.g., invoices) that substantiate that 
the article was sold for a price that included a markup equal to or 
greater than the presumed markup percentage (as defined in paragraph 
(d)(7) of this section).
    (3) Retail sales price where tax paid by person other than a 
manufacturer, producer, importer, or related person--(i) In general. In 
the case of a taxable sale (other than a taxable sale defined in 
paragraph (b)(1) of this section) where a person other than a 
manufacturer, producer, importer, or related person is liable for the 
tax imposed by section 4051, such tax shall be computed on a price 
determined under paragraph (d)(1) of this section.
    (ii) Exception. When a person other than a manufacturer, producer, 
importer, or related person is liable for the tax imposed by section 
4051, such tax shall be computed on a price determined under paragraph 
(d)(2)(i) of this section if--
    (A) Such person does not perform any significant activities relating 
to the processing of the sale of an article,
    (B) The principal purpose for processing the sale through such 
person is to avoid or evade the presumed markup under paragraph 
(d)(2)(i)(B) of this section, and
    (C) Such person does not have records (e.g., invoices) 
substantiating that the article was sold for a price that included a 
markup equal to or greater than the presumed markup percentage as 
defined in paragraph (d)(7) of this section.
    (4) Presumptive retail sales price in the case of a lease by a 
manufacturer, producer, or importer. In the case of any long-term lease 
(as defined in paragraph (d)(6) of this section) by a manufacturer, 
producer, importer, or a related person (as defined in paragraph 
(d)(2)(ii) of this section) of an article that is deemed to be a taxable 
sale of such article under paragraph (b)(1) of this section, the tax 
imposed by section 4051(a)(1) shall be computed on a price equal to the 
sum of--
    (i) A constructive sales price established by the Commissioner based 
on the price at which such article would

[[Page 693]]

be sold by a manufacturer, producer, or importer in a sale other than a 
taxable sale (e.g., a sale to which the exceptions contained in 
paragraph (a)(2)(ii) of this section applies) on the date the lease is 
made, and
    (ii) The product of the constructive sales price referred to in 
paragraph (d)(4)(i) of this section and the presumed markup percentage 
as defined in paragraph (d)(7) of this section.
    (5) Presumptive retail sales price in the case of a long-term lease 
by any other person. In the case of any long-term lease (as defined in 
paragraph (d)(6) of this section) of an article in which any person 
other than a manufacturer, producer, or importer (or related person as 
defined in paragraph (d)(2)(ii) of this section) is the lessor and the 
long-term lease is deemed to be a taxable sale of such article under 
paragraph (b)(1) of this section, the tax imposed by section 4051(a)(1) 
shall be computed on a price equal to the sum of--
    (i) The price (as determined under this paragraph (d)) at which such 
article was sold to the lessor plus the cost of any parts and 
accessories installed by the lessor (or an agent of the lessor) on such 
article before the first use by the lessee or leased in connection with 
such long-term lease, and
    (ii) The product of the sum described in paragraph (d)(5)(i) of this 
section and the presumed markup percentage as defined in paragraph 
(d)(7) of this section.
    (6) Long-term and short-term lease defined. For purposes of this 
section, the term ``long-term lease'' means any lease with a term of one 
year or more. The term ``short-term lease'' means any lease with a term 
of less than one year. In determining a lease term, options to renew 
shall be taken into account. In addition, two or more successive leases 
that are part of the same transaction (or a series of related 
transactions) with respect to the same or substantially similar article, 
shall be treated as one lease.
    (7) Presumed markup percentage--(i) In general. Except as provided 
in paragraph (d)(7)(ii) of this section, for purposes of this section 
the term ``presumed markup percentage'' shall be four percent.
    (ii) Exceptions. For purposes of this section the ``presumed markup 
percentage'' for trailers, semitrailers, and remanufactured automobile 
truck chassis and bodies and tractors shall be zero percent. For 
purposes of this section an article is a remanufactured article if--
    (A) The refurbishing, renovation, or repair of the article causes it 
to be subject to the tax imposed by section 4051, and
    (B) Before remanufacture, such article was previously subject to the 
tax imposed by section 4051 (or section 4061 prior to its repeal).
    (8) Items excluded from price. There shall be excluded from the 
price:
    (i) The amount ot tax imposed under sections 4051(a)(1) and (b)(1);
    (ii) If stated as a separate charge, the amount of any retail sales 
tax imposed by any state or political subdivision thereof or the 
District of Columbia, whether the liability for such tax is imposed on 
the vendor or vendee; and
    (iii) The fair market value (including any tax imposed by section 
4071) at retail of any tires (not including any metal rim or rim base). 
For purposes of this paragraph (d)(8)(iii), fair market value at retail 
shall be determined by the lowest established price for which the 
vehicle retailer would sell such tires at retail in the ordinary course 
of trade. The lowest established price is the lowest price for which the 
vehicle retailer sells, or offers to sell, a single tire to an 
independent purchaser who would not ordinarily be expected to buy more 
than one. If the vehicle retailer has no lowest established price the 
Commissioner will accept any price provided, under the facts and 
circumstances, such price is not unreasonable. For vehicles sold on or 
after April 1, 1983, and before October 13, 1985, a price will not be 
considered unreasonable if it is no more than an amount equal to 50 
percent of the manufacturer's suggested retail price.
    (9) Trade-ins. If, in connection with the sale of an article subject 
to the tax imposed under section 4051(a)(1) or (b)(1) on the price for 
which sold, a vendor receives from its vendee another article in 
exchange, the tax on the vendor's sale shall be computed on the basis of 
the full price of the article

[[Page 694]]

sold, unreduced by any amount allowed for the article received from the 
vendee. For example, where a vehicle costing $20,000 is purchased for 
$16,000 cash plus a used vehicle valued at $4,000, tax is $2,400 (12 
percent x $20,000).
    (10) Sales not at arm's length. For purposes of Sec.  145.4051-1 and 
this section, a sale is considered to be made under circumstances 
otherwise than at ``arm's length'' if:
    (i) One of the parties is controlled (in law or in fact) by the 
other, or there is common control, whether or not such control is 
actually exercised to influence the sale price, or
    (ii) The sale is made pursuant to special arrangements between a 
seller and a purchaser.

In the case of an article sold otherwise than at arm's length, and sold 
at less than the fair market price, the tax imposed under section 
4051(a)(1) or (b)(1) shall be computed on the price for which similar 
articles are sold at retail in the ordinary course of trade, as 
determined by the Commissioner. Once such a price has been determined, 
no further adjustment of such price shall be made.
    (e) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. M manufactures trucks that are taxable under section 
4051. On July 11, 1988, D, a corporation that is a dealer, purchases one 
truck from M for $50,000. M does not own any stock in D. Prior to this 
transaction, D gave M a certificate that meets the specifications 
detailed in paragraph (a)(6) of this section. The certificate states 
that the truck will be resold or leased on a long-term basis. M's sale 
to D is not a taxable sale of the truck (within the meaning of paragraph 
(a)(2) of this section). On July 20, 1988, D resells the truck to a 
purchaser, P, for $52,000. The additional $2,000 includes the dealer's 
mark-up, costs of transporting the truck from M to D, and overhead. No 
parts or accessories were added to the truck. P did not give D a 
certificate and did not have an agreement with D under which all 
vehicles purchased were to be resold. The sale of the truck by D to P is 
a taxable sale within the meaning of paragraph (a)(3) of this section. 
Therefore, D has a tax liability of $6,240 (12% x $52,000).
    Example 2. Assume the same facts as in example (1) except that M 
owns 80 percent of D's stock. D and M are members of the same controlled 
group (within the meaning of section 5061(e)(3)). Therefore, D is a 
related person under paragraph (d)(2)(ii)(A) of this section. On July 
20, 1988, D sells the truck to P for $51,000. D does not have records 
substantiating that the truck was sold for a price that included a 
markup equal to or greater than the presumed markup percentage. The tax 
on the sale of the truck to P is determined under paragraph (d)(2)(i) of 
this section. Therefore, D has a tax liability of $6,240 [(12% x 
($50,000 + ($50,000 x 4%))].
    Example 3. Assume the same facts as in example (1) except that D 
does not perform any significant activities relating to the sale. Assume 
further that the principal purpose for processing the sale through D is 
to avoid the presumed markup and that D did not sell the truck for a 
price that included a markup equal to or greater than the presumed 
markup percentage. D, however, is designated the seller of the truck on 
the invoice. Pursuant to paragraph (d)(3)(ii) of this section, the price 
of the truck shall be computed on a price determined under paragraph 
(d)(2)(i). Therefore, D, the taxpayer, has a tax liability of $6,240 
[12% x ($50,000 + ($50,000 x 4%))].
    Example 4. Assume the same facts as in example (1) except that on 
July 20, 1988, D leases the truck for a two-year period (i.e., on a 
long-term basis) to L, a lessee. D's leasing of the truck to L is 
treated as a taxable sale under paragraph (b)(1) of this section and the 
tax is computed on the price as determined under paragraph (d)(5)(i) of 
this section. D has a tax liability of $6,240 [12% x ($50,000 + ($50,000 
x 4%))].
    Example 5. Assume the same facts as in example (1) except that on 
July 20, 1988. D leases the truck to L for a six-month period (i.e., a 
short-term lease). The lease is treated as a use under paragraph (b)(2) 
of this section. The tax is computed on the price as determined under 
paragraph (c)(5) of this section. D has a tax liability of $6,240 [12% x 
($50,000 + ($50,000 x 4%))].
    Example 6. Assume the same facts as in example (1) except that D 
does not give M a certificate. The sale by M to D is a taxable sale of 
the truck under paragraph (a)(2) of this section. M's tax liability is 
$6,240 [12% x ($50,000 + ($50,000 x 4%))]. On July 20, 1988, D leases 
the truck to L, a lessee. The lease has a two-year term. Since the lease 
to L occurred after a taxable sale of the truck, paragraph (b)(1) of 
this section does not apply, and the lease is not treated as a taxable 
sale under this section.
    Example 7. M manufactures trucks that are taxable under section 
4051. On July 11, 1988, M leases a truck to a lessee, L. The lease has a 
two-year term. The lease is treated as a taxable sale under paragraph 
(b)(1) of this section and the tax is computed on the price as 
determined under paragraph (d)(4)(i) of this section. The constructive 
sales price established by the Commissioner, pursuant to paragraph 
(d)(4)(i) of this section, is $50,000.

[[Page 695]]

M has a tax liability of $6,240 [12% x ($50,000 + ($50,000 x 4%))].
    Example 8. Assume the same facts as in example (7) except that the 
lease has a six-month term. The lease is treated as a taxable use under 
paragraph (b)(2) of this section and the tax is computed under paragraph 
(c)(5) of this section. The constructive sales price established by the 
Commissioner, pursuant to paragraph (c)(5)(i) of this section, is 
$52,000. M has a tax liability of $6,240 (12% x $52,000).
    Example 9. M manufactures truck trailers and semitrailers that are 
taxable under section 4051. On July 5, 1988, D, a dealer, purchases a 
trailer from M for $10,000. Prior to this transaction, D did not give M 
a certificate and D did not have an agreement with M to resell all 
articles purchased. The sale by M to D is a taxable sale of the trailer 
under paragraph (a)(2) of this section. M has a tax liability of $1,200 
(12% x $10,000 + ($10,000 x 0%)).
    Example 10. Assume the same facts as in example (9) except that on 
July 12, 1988, D resells the trailer to P, a purchaser, for $10,500 (the 
additional $500 includes the dealer's markup, costs of transporting the 
trailer from M to D, and overhead). P did not give D a certificate and P 
did not have an agreement with D that stipulates that all articles 
purchased were to be leased on a long-term basis or resold. The sale of 
the trailer by D to P is a taxable sale within the meaning of paragraph 
(a)(3) of this section. Therefore, D has a tax liability of $1,260(12% x 
$10,500). D, however, may file for a credit of $1,200 under section 6402 
provided that the requirements of paragraph (a)(4) of this section are 
met.

    (f) Other rules made applicable. For purposes of Sec.  145.4051-1 
and this section, rules similar to the following provisions shall apply:
    (1) Section 48.0-2, relating to general definitions and attachment 
of tax;
    (2) Paragraphs (a) (2) and (3) of Sec.  48.4061 (a)-1;
    (3) The exemptions provided by sections 4063 (a) and (d) and the 
regulations thereunder;
    (4) Section 4216(f) and the regulations thereunder, relating to the 
incorporation of used components; and
    (5) Section 4221 and the regulations thereunder, relating to certain 
tax-free sales.
    (g) Effective date--(1) In general. Except as provided below, the 
provisions of this section shall be effective for articles sold or 
leased on or after April 1, 1983.
    (2) Certain sales made prior to November 12, 1985. If a sale to a 
lessor before November 12, 1985, was not taxable under Sec.  145.4052-1 
of the temporary regulations contained in 26 CFR part 145 revised as of 
April 1, 1983, (the ``prior regulations'') and it was so treated by the 
parties, a subsequent sale or lease that was or would have been treated 
as the first retail sale of the article under the prior regulations will 
be treated as a taxable sale for purposes of this section. The tax on 
such subsequent sale will be based on a price determined under paragraph 
(d) of this section. For example, if an article was sold to a purchaser 
who intended to lease such article long-term, the sale would not have 
been taxable under the prior regulations even though the seller did not 
receive a certificate of the purchaser's intent to lease the vehicle. If 
such a sale was treated as nontaxable by the parties, and the purchaser 
leases it long-term on or after October 1, 1987, the lease will be 
treated as a taxable sale of the article. The tax is to be computed 
under paragraph (b)(3)(ii) of this section and the price will be 
computed under paragraph (d)(5).
    (3) Certain sales made after November 11, 1985, and before October 
1, 1987--(i) Sales not treated as taxable by purchaser and seller. If a 
sale to a purchaser after November 11, 1985, and before October 1, 1987, 
was not treated as taxable by the parties, a subsequent sale or lease 
that was or would have been treated as the first retail sale of the 
article under the temporary regulations published in the September 13, 
1985, issue of the Federal Register (50 FR 37350) (``the interim 
regulations'') will be treated as a taxable sale for purposes of this 
section. The tax on a sale or lease after September 30, 1987, will be 
based on a price determined under paragraph (d) of this section. For 
example, if a vehicle was sold on January 3, 1987, to a purchaser who 
intended to resell the article and who was not in the business of 
leasing to any extent, the sale would not have been taxable under the 
interim regulations even though the seller did not receive a certificate 
indicating the purchaser's intent to resell the article. If such a sale 
was not treated as a taxable sale by the parties, and the purchaser 
resells the article, the resale will be treated as a taxable sale

[[Page 696]]

of the article under paragraph (a)(2) of this section.
    (ii) Sales treated as first retail sale by purchaser and seller. If 
the sale of an article after November 11, 1985, and before October 1, 
1987, was treated as a taxable sale by the parties and tax was paid with 
respect to the article under the interim regulations, the subsequent 
sale of the article by the purchaser will not be treated as a taxable 
sale under paragraph (a)(2) of this section.

[T.D. 7882, 48 FR 14362, Apr. 4, 1983, as amended by T.D. 8050, 50 FR 
37351, Sept. 13, 1985; T.D. 8200, 53 FR 16869, May 12, 1988; T.D. 8774, 
63 FR 35804, July 1, 1998; T.D. 8879, 65 FR 17164, Mar. 31, 2000]



Sec.  145.4061-1  Application to manufacturers tax.

    The provisions of Sec.  145.4051-1(e) (1) and (2), relating to the 
definition of tractors and trucks, shall apply to section 4061(a)(1) for 
sales made on or after January 7, 1983. However, an incomplete chassis 
cab will be treated as a truck chassis for sales made on or after 
January 7, 1983, and before April 1, 1983. For purposes of section 4061, 
gross vehicle weight shall be determined under Sec.  48.4061(a)-1(f)(3) 
(i) through (iv) for sales made on or after January 7, 1983, and before 
April 1, 1983.

                        PARTS 151	155 [RESERVED]



PART 156_EXCISE TAX ON GREENMAIL--Table of Contents



                       Subpart A_Tax on Greenmail

Sec.
156.5881-1 Imposition of excise tax on greenmail.

                 Subpart B_Procedure and Administration

156.6001-1 Notice or regulations requiring records, statements, and 
          special returns.
156.6011-1 General requirement of return, statement, or list.
156.6060-1 Reporting requirements for tax return preparers.
156.6061-1 Signing of returns and other documents.
156.6065-1 Verification of returns.
156.6071-1 Time for filing returns relating to greenmail.
156.6081-1 Automatic extension of time for filing a return due under 
          chapter 54.
156.6091-1 Place for filing chapter 54 (Greenmail) tax returns.
156.6091-2 Exceptional cases.
156.6107-1 Tax return preparer must furnish copy of return and claim for 
          refund to taxpayer and must retain a copy or record.
156.6109-1 Tax return preparers furnishing identifying numbers for 
          returns or claims for refund.
156.6151-1 Time and place for paying of tax shown on returns.
156.6161-1 Extension of time for paying tax or deficiency.
156.6165-1 Bonds where time to pay tax or deficiency has been extended.
156.6694-1 Section 6694 penalties applicable to tax return preparer.
156.6694-2 Penalties for understatement due to an unreasonable position.
156.6694-3 Penalty for understatement due to willful, reckless, or 
          intentional conduct.
156.6694-4 Extension of period of collection when tax return preparer 
          pays 15 percent of a penalty for understatement of taxpayer's 
          liability and certain other procedural matters.
156.6695-1 Other assessable penalties with respect to the preparation of 
          tax returns or claims for refund for other persons.
156.6696-1 Claims for credit or refund by tax return preparers.
156.7701-1 Tax return preparer.

    Authority: 26 U.S.C. 6001, 6011, 6061, 6071, 6091, 6161, and 7805.
    Section 156.6060-1 also issued under 26 U.S.C. 6060(a);
    Section 156.6081-1 also issued under 26 U.S.C. 6081(a);
    Section 156.6109-1 also issued under 26 U.S.C. 6109(a);
    Section 156.6109-2 also issued under 26 U.S.C. 6109(a);
    Section 156.6695-1 also issued under 26 U.S.C. 6695(b).

    Source: T.D. 8379, 56 FR 65685, Dec. 18, 1991, unless otherwise 
noted.



                       Subpart A_Tax on Greenmail



Sec.  156.5881-1  Imposition of excise tax on greenmail.

    (a) In general. Section 5881 of the Code imposes a tax equal to 50 
percent of the gain or other income realized by any person on the 
receipt of greenmail, whether or not the gain or other income is 
recognized.
    (b) Transactions occurring on or after March 31, 1988. For 
transactions occurring on or after March 31, 1988, greenmail is defined 
as any consideration transferred by a corporation (or

[[Page 697]]

any person acting in concert with the corporation) to directly or 
indirectly acquire stock of the corporation from any shareholder if:
    (1) The transferring shareholder has held the stock (as determined 
under section 1223) for less than two years before entering into the 
agreement to transfer the stock,
    (2) The shareholder, any person acting in concert with the 
shareholder, or any person related to the shareholder or to a person 
acting in concert with the shareholder made or threatened to make a 
public tender offer for stock of the corporation at some time during the 
two-year period ending on the date of the acquisition of the stock by 
the corporation, and
    (3) The acquisition is pursuant to an offer that was not made on the 
same terms to all shareholders.
    (c) Transactions occurring before March 31, 1988. For transactions 
occurring before March 31, 1988, greenmail has the same meaning as in 
paragraph (b) of this section, except that it does not include any 
consideration transferred by any person acting in concert with the 
corporation described in that paragraph.
    (d) Effective date. Generally, section 5881 of the Code applies to 
consideration received after December 22, 1987, in taxable years ending 
after that date. However, section 5881 does not apply to any acquisition 
of stock pursuant to a written binding contract in effect on December 
15, 1987, and at all times thereafter before the acquisition.



                 Subpart B_Procedure and Administration



Sec.  156.6001-1  Notice or regulations requiring records, statements, 
and special returns.

    (a) In general. Any person subject to tax under chapter 54 
(Greenmail) of the Code shall keep such complete and detailed records as 
are sufficient to enable the district director to determine accurately 
the amount of liability under chapter 54.
    (b) Notice by district director requiring returns, statements, or 
the keeping of records. The district director may require any person, by 
notice served upon him, to make such returns, render such statements, or 
keep such specific records as will enable the district director to 
determine whether or not the person is liable for tax under chapter 54 
of the Code.
    (c) Retention of records. The records required by this section shall 
be kept at all times available for inspection by authorized internal 
revenue officers or employees, and shall be retained so long as the 
contents thereof may become material in the administration of any 
internal revenue law.

[T.D. 8379, 56 FR 65685, Dec. 18, 1991; 57 FR 5931, Feb. 18, 1992]



Sec.  156.6011-1  General requirement of return, statement, or list.

    Every person liable for tax under section 5881 of the Code shall 
file a return with respect to the tax on the form prescribed by the 
Internal Revenue Service (Form 8725). Each such person shall include 
therein the information required by the form and the instructions issued 
with respect thereto.



Sec.  156.6060-1  Reporting requirements for tax return preparers.

    (a) In general. A person that employs one or more tax return 
preparers to prepare a return or claim for refund under section 5881 of 
the Internal Revenue Code, other than for the person, at any time during 
a return period, shall satisfy the record keeping and inspection 
requirements in the manner stated in Sec.  1.6060-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  156.6061-1  Signing of returns and other documents.

    Any return, statement, or other document required to be made with 
respect to a tax imposed by chapter 54 (Greenmail) of the Code or the 
regulations thereunder shall be signed by the person required to file 
the return, statement, or other document, or by the persons required or 
duly authorized to sign in accordance with the regulations, forms, or 
instructions prescribed with respect to such return, statement, or 
document. An individual's signature

[[Page 698]]

on such a return, statement, or other document shall be prima facie 
evidence that the individual is authorized to sign the return, 
statement, or other document.



Sec.  156.6065-1  Verification of returns.

    If a return, statement, or other document made under the provisions 
of chapter 54 (Greenmail) or of subtitle F of the Code, or the 
regulations thereunder with respect to any tax imposed by chapter 54, or 
the form and instructions issued with respect to such return, statement, 
or other document, requires that it shall contain or be verified by a 
written declaration that it is made under the penalties of perjury, it 
must be so verified by the person or persons required to sign such 
return, statement, or other document. In addition, any other statement 
or document submitted under any provision of chapter 54 or of subtitle F 
of the Code, or the regulations thereunder with respect to any tax 
imposed by chapter 54 may be required to contain or be verified by 
written declaration that is made under the penalties of perjury.



Sec.  156.6071-1  Time for filing returns relating to greenmail.

    (a) In general. Returns required by Sec.  156.6011-1 (relating to 
liability for tax on greenmail under section 5881) shall be filed on or 
before the ninetieth day following receipt of any portion of the 
greenmail. Greenmail is considered to be received when gain or other 
income is realized, as determined according to the taxpayer's method of 
accounting, without regard to any provision of the Code providing for 
deferral of recognition.
    (b) Returns relating to greenmail received before the date these 
regulations become final. Returns required by Sec.  156.6011-1 that 
relate to greenmail received on or before December 18, 1991, shall be 
filed on or before March 18, 1992.



Sec.  156.6081-1  Automatic extension of time for filing a return 
due under chapter 54.

    (a) In general. A taxpayer required to file a return on Form 8725, 
``Excise Tax on Greenmail,'' will be allowed an automatic 6-month 
extension of time to file the return after the date prescribed for 
filing the return if the taxpayer files an application under this 
section in accordance with paragraph (b) of this section.
    (b) Requirements. To satisfy this paragraph (b), a taxpayer must--
    (1) Submit a complete application on Form 7004, ``Application for 
Automatic Extension of Time to File Certain Business Income Tax, 
Information, and Other Returns,'' or in any other manner prescribed by 
the Commissioner;
    (2) File the application on or before the date prescribed for filing 
the return with the Internal Revenue Service office designated in the 
application's instructions; and
    (3) Remit the amount of the properly estimated unpaid tax liability 
on or before the date prescribed for payment.
    (c) No extension of time for the payment of tax. An automatic 
extension of time for filing a return granted under paragraph (a) of 
this section will not extend the time for payment of any tax due on such 
return.
    (d) Termination of automatic extension. The Commissioner may 
terminate an automatic extension at any time by mailing to the taxpayer 
a notice of termination at least 10 days prior to the termination date 
designated in such notice. The Commissioner must mail the notice of 
termination to the address shown on the Form 7004 or to the taxpayer's 
last known address. For further guidance regarding the definition of 
last known address, see Sec.  301.6212-2 of this chapter.
    (e) Penalties. See section 6651 for failure to file or failure to 
pay the amount shown as tax on the return.
    (f) Effective/applicable dates. This section is applicable for 
applications for an automatic extension of time to file a return due 
under chapter 54, filed after July 1, 2008.

[T.D. 9407, 73 FR 37370, July 1, 2008]



Sec.  156.6091-1  Place for filing chapter 54 (Greenmail) tax returns.

    Except as provided in Sec.  156.6091-2 (relating to exceptional 
cases):
    (a) Individuals, estates, and trusts. In general, tax returns under 
chapter 54 of the Code of individuals, estates, and

[[Page 699]]

trusts shall be filed with any person assigned the responsibility to 
receive returns in the local Internal Revenue Service office that serves 
the legal residence or the principal place of business of the person 
required to make the return.
    (b) Corporations. In general, tax returns under chapter 54 of the 
Code of corporations shall be filed with any person assigned the 
responsibility to receive returns in the local Internal Revenue Service 
office that serves the principal place of business or the principal 
office or agency of the corporation.
    (c) Partnerships. In general, tax returns under chapter 54 of the 
Code of partnerships shall be filed with any person assigned the 
responsibility to receive returns in the local Internal Revenue Service 
office that serves the principal place of business or the principal 
office or agency of the partnership.
    (d) Returns of taxpayers outside the United States. The return of a 
person (other than a partnership or a corporation) outside the United 
States having no legal residence or principal place of business or 
agency in the United States, or the return of a partnership or a 
corporation having no principal place of business or principal office or 
agency in the United States, shall be filed with the Internal Revenue 
Service, Philadelphia, PA 19255, or as otherwise directed in the 
applicable forms and instructions.
    (e) Returns filed with service centers or by hand carrying. 
Notwithstanding paragraph (a), (b), (c), or (d) of this section, unless 
a return is filed by hand carrying, whenever instructions applicable to 
tax returns under chapter 54 of the Code provide that the returns be 
filed with a service center, the returns must be so filed in accordance 
with the instructions. Returns that are filed by hand carrying shall be 
filed with any person assigned the responsibility to receive hand-
carried returns in the local Internal Revenue Service office in 
accordance with paragraphs (a), (b), (c), or (d) of this section.

[T.D. 8379, 56 FR 65685, Dec. 18, 1991; 57 FR 5931, Feb. 18, 1992, as 
amended by T.D. 9156, 69 FR 55746, Sept. 16, 2004]



Sec.  156.6091-2  Exceptional cases.

    Notwithstanding the provisions of Sec.  156.6091-1, the Commissioner 
may permit the filing of any tax return under chapter 54 (Greenmail) of 
the Code in any local Internal Revenue Service office.

[T.D. 8379, 56 FR 65685, Dec. 18, 1991, as amended by T.D. 9156, 69 FR 
55747, Sept. 16, 2004]



Sec.  156.6107-1  Tax return preparer must furnish copy of return 
and claim for refund to taxpayer and must retain a copy or record.

    (a) In general. A person who is a signing tax return preparer of any 
return or claim for refund of tax under section 5881 of the Internal 
Revenue Code shall furnish a completed copy of the return or claim for 
refund to the taxpayer and retain a completed copy or record in the 
manner stated in Sec.  1.6107-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  156.6109-1  Tax return preparers furnishing identifying numbers 
for returns or claims for refund.

    (a) In general. Each tax return or claim for refund for tax under 
section 5881 of the Internal Revenue Code prepared by one or more 
signing tax return preparers must include the identifying number of the 
preparer required by Sec.  1.6695-1(b) of this chapter to sign the 
return or claim for refund in the manner stated in Sec.  1.6109-2 of 
this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed after December 31, 
2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  156.6151-1  Time and place for paying of tax shown on returns.

    The tax under chapter 54 (Greenmail) of the Code shown on any return 
shall, without notice of assessment and demand, be paid to the internal 
revenue officer with whom the return is filed at the time and place for 
filing such return (determined without regard to

[[Page 700]]

any extension of time for filing the return). For provisions relating to 
the time and place for filing such return, see Sec. Sec.  156.6071-1 and 
156.6091-1. For provisions relating to the extension of time for paying 
the tax, see Sec.  156.6161-1.



Sec.  156.6161-1  Extension of time for paying tax or deficiency.

    (a) In general--(1) Tax shown or required to be shown on return. A 
reasonable extension of the time for payment of the amount of any tax 
imposed by chapter 54 (Greenmail) of the Code and shown or required to 
be shown on any return may be granted by the appropriate district 
director at the request of the taxpayer. The period of such extension 
shall not exceed 6 months from the date for payment of such tax.
    (2) Deficiency. The time for payment of any amount determined as a 
deficiency in respect of tax imposed by chapter 54 of the Code may, at 
the request of the taxpayer, be extended by the internal revenue officer 
to whom the tax is required to be paid. The extension may be for a 
period not to exceed 18 months from the date fixed for payment of the 
deficiency, as shown on the notice and demand. In exceptional cases, a 
further extension for a period not in excess of 12 months may be 
granted. No extension of time for payment of a deficiency shall be 
granted if the deficiency is due to negligence, to intentional disregard 
of rules and regulations, or to fraud with intent to evade tax.
    (3) Extension of time for filing distinguished. The granting of an 
extension of time for filing a return does not operate to extend the 
time for the payment of the tax or any part thereof unless so specified 
in the extension.
    (b) Certain rules relating to extensions of time for paying income 
tax to apply. The provisions of Sec.  1.6161-1 (b), (c), and (d) of this 
chapter (relating to a requirement for undue hardship, to the 
application for extension, and to payment pursuant to an extension) 
shall apply to extensions of time for payment of the tax imposed by 
chapter 54 of the Code.



Sec.  156.6165-1  Bonds where time to pay tax or deficiency has been extended.

    If an extension of time for payment is granted under section 6161 of 
the Code, the district director or the director of the service center 
may, if he deems it necessary, require a bond for the payment of the 
amount in respect to which the extension is granted in accordance with 
the terms of the extension. However, the bond shall not exceed double 
the amount with respect to which the extension is granted. For 
provisions relating to form of bonds, see the regulations under section 
7101 of the Code contained in part 301 of title 26 (Regulations on 
Procedure and Administration).



Sec.  156.6694-1  Section 6694 penalties applicable to tax return preparer.

    (a) In general. For general definitions regarding section 6694 
penalties applicable to preparers of tax returns or claims for refund 
for tax under section 5881 of the Internal Revenue Code, see Sec.  
1.6694-1 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed, and advice provided, 
after December 31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  156.6694-2  Penalties for understatement due to an unreasonable position.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under section 5881 of the Internal Revenue 
Code (Code) shall be subject to penalties under section 6694(a) of the 
Code in the manner stated in Sec.  1.6694-2 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  156.6694-3  Penalty for understatement due to willful, reckless, 
or intentional conduct.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under section 5881 of the Internal Revenue 
Code (Code) shall

[[Page 701]]

be subject to penalties under section 6694(b) of the Code in the manner 
stated in Sec.  1.6694-3 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  156.6694-4  Extension of period of collection when tax return preparer 
pays 15 percent of a penalty for understatement of taxpayer's liability 
and certain other procedural matters.

    (a) In general. For rules relating to the extension of period of 
collection when a tax return preparer who prepared a return or claim for 
refund for tax under section 5881 of the Internal Revenue Code pays 15 
percent of a penalty for understatement of taxpayer's liability and 
procedural matters relating to the investigation, assessment and 
collection of the penalties under section 6694(a) and (b), the rules 
under Sec.  1.6694-4 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78461, Dec. 22, 2008]



Sec.  156.6695-1  Other assessable penalties with respect to the preparation 
of tax returns or claims for refund for other persons.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under section 5881 of the Internal Revenue 
Code (Code) shall be subject to penalties for failure to furnish a copy 
to the taxpayer under section 6695(a) of the Code, failure to sign the 
return under section 6695(b) of the Code, failure to furnish an 
identification number under section 6695(c) of the Code, failure to 
retain a copy or list under section 6695(d) of the Code, failure to file 
a correct information return under section 6695(e) of the Code, and 
negotiation of a check under section 6695(f) of the Code, in the manner 
stated in Sec.  1.6695-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  156.6696-1  Claims for credit or refund by tax return preparers.

    (a) In general. For rules for claims for credit or refund by a tax 
return preparer who prepared a return or claim for refund for tax under 
section 5881 of the Internal Revenue Code, the rules under Sec.  1.6696-
1 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  156.7701-1  Tax return preparer.

    (a) In general. For the definition of a tax return preparer, see 
Sec.  301.7701-15 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



PART 157_EXCISE TAX ON STRUCTURED SETTLEMENT FACTORING TRANSACTIONS--
Table of Contents



      Subpart A_Tax on Structured Settlement Factoring Transactions

Sec.
157.5891-1 Imposition of excise tax on structured settlement factoring 
          transactions.

                 Subpart B_Procedure and Administration

157.6001-1 Records, statements, and special returns.
157.6011-1 General requirement of return, statement, or list.
157.6060-1 Reporting requirements for tax return preparers.
157.6061-1 Signing of returns and other documents.
157.6065-1 Verification of returns.
157.6071-1 Time for filing returns.
157.6081-1 Automatic extension of time for filing a return due under 
          chapter 55.
157.6091-1 Place for filing returns.
157.6107-1 Tax return preparer must furnish copy of return or claim for 
          refund to taxpayer and must retain a copy or record.
157.6109-1 Tax return preparers furnishing identifying numbers for 
          returns or claims for refund.
157.6151-1 Time and place for paying of tax shown on returns.
157.6161-1 Extension of time for paying tax.

[[Page 702]]

157.6165-1 Bonds where time to pay tax has been extended.
157.6694-1 Section 6694 penalties applicable to tax return preparer.
157.6694-2 Penalties for understatement due to an unreasonable position.
157.6694-3 Penalty for understatement due to willful, reckless, or 
          intentional conduct.
157.6694-4 Extension of period of collection when preparer pays 15 
          percent of a penalty for understatement of taxpayer's 
          liability and certain other procedural matters.
157.6695-1 Other assessable penalties with respect to the preparation of 
          tax returns or claims for refund for other persons.
157.6696-1 Claims for credit or refund by tax return preparers.
157.7701-1 Tax return preparer.

    Authority: 26 U.S.C. 7805.
    Section 157.6001-1 also issued under 26 U.S.C. 6001;
    Section 157.6011-1 also issued under 26 U.S.C. 6011;
    Section 157.6061-1 also issued under 26 U.S.C. 6061;
    Section 157.6071-1 also issued under 26 U.S.C. 6071;
    Section 157.6081-1 also issued under 26 U.S.C. 6081(a);
    Section 157.6091-1 also issued under 26 U.S.C. 6091;
    Section 157.6060-1 also issued under 26 U.S.C. 6060(a);
    Section 157.6109-1 also issued under 26 U.S.C. 6109(a);
    Section 157.6109-2 also issued under 26 U.S.C. 6109(a);
    Section 157.6161-1 also issued under 26 U.S.C. 6161;
    Section 157.6695-1 also issued under 26 U.S.C. 6695(b).

    Source: T.D. 9134, 69 FR 41193, July 8, 2004, unless otherwise 
noted.



      Subpart A_Tax on Structured Settlement Factoring Transactions



Sec.  157.5891-1  Imposition of excise tax on structured settlement 
factoring transactions.

    (a) In general. Section 5891 imposes on any person who acquires, 
directly or indirectly, structured settlement payment rights in a 
structured settlement factoring transaction a tax equal to 40 percent of 
the factoring discount with respect to such factoring transaction.
    (b) Exceptions for certain approved transactions--(1) In general. 
The excise tax shall not apply to a structured settlement factoring 
transaction if the transfer of structured settlement payment rights is 
approved in advance in a qualified order.
    (2) Qualified order dispositive. A qualified order shall be treated 
as dispositive for purposes of this exception.
    (c) Definitions--(1) Applicable state statute means--
    (i) A statute that is enacted by the state in which the payee of the 
structured settlement is domiciled and provides for the entry of an 
order, judgment, or decree described in paragraph (c)(4)(i) of this 
section; or
    (ii) If there is no such statute, a statute that--
    (A) Is enacted by the state in which either the party to the 
structured settlement (including an assignee under a qualified 
assignment under section 130) or the person issuing the funding asset 
for the structured settlement is domiciled or has its principal place of 
business; and
    (B) Provides for the entry of such an order, judgment, or decree.
    (2) Applicable state court means, with respect to any applicable 
state statute, a court of the state that enacted such statute. If the 
payee of the structured settlement is not domiciled in the state that 
enacted the statute, the term also includes a court of the state in 
which the payee is domiciled.
    (3) Factoring discount means an amount equal to the excess of--
    (i) The aggregate undiscounted amount of structured settlement 
payments being acquired in the structured settlement factoring 
transaction; over
    (ii) The total amount actually paid by the acquirer to the person 
from whom such structured settlement payments are acquired.
    (4) Qualified order means a final order, judgment, or decree that--
    (i) Finds that the transfer of structured settlement payment rights 
does not contravene any Federal or state statute, or the order of any 
court or responsible administrative authority, and is in the best 
interest of the payee, taking into account the welfare and support of 
the payee's dependents; and
    (ii) Is issued under the authority of an applicable state statute by 
an applicable state court, or is issued by the responsible 
administrative authority (if any) which has exclusive jurisdiction

[[Page 703]]

over the underlying action or proceeding which was resolved by means of 
the structured settlement.
    (5) Responsible administrative authority means the administrative 
authority that had jurisdiction over the underlying action or proceeding 
that was resolved by means of the structured settlement.
    (6) State includes the Commonwealth of Puerto Rico and any 
possession of the United States.
    (7) Structured settlement means an arrangement--
    (i) That is established by--
    (A) Suit or agreement for the periodic payment of damages excludable 
from the gross income of the recipient under section 104(a)(2); or
    (B) Agreement for the periodic payment of compensation under any 
workers' compensation law excludable from the gross income of the 
recipient under section 104(a)(1); and
    (ii) Under which the periodic payments are--
    (A) Of the character described in section 130(c)(2)(A) and (B); and
    (B) Payable by a person who is a party to the suit or agreement or 
to the workers' compensation claim or by a person who has assumed the 
liability for such periodic payments under a qualified assignment in 
accordance with section 130.
    (8) Structured settlement factoring transaction means a transfer of 
structured settlement payment rights (including portions of structured 
settlement payments) made for consideration by means of sale, 
assignment, pledge, or other form of encumbrance or alienation for 
consideration other than--
    (i) The creation or perfection of a security interest in structured 
settlement payment rights under a blanket security agreement entered 
into with an insured depository institution in the absence of any action 
to redirect the structured settlement payments to such institution (or 
agent or successor thereof) or otherwise to enforce such blanket 
security interest as against the structured settlement payment rights; 
or
    (ii) A subsequent transfer of structured settlement payment rights 
acquired in a structured settlement factoring transaction.
    (9) Structured settlement payment rights means rights to receive 
payments under a structured settlement.
    (d) Coordination with other provisions of the Internal Revenue 
Code--(1) In general. If the applicable requirements of sections 72, 
104(a)(1), 104(a)(2), 130, and 461(h) were satisfied at the time the 
structured settlement involving structured settlement payment rights was 
entered into, the subsequent occurrence of a structured settlement 
factoring transaction shall not affect the application of the provisions 
of such sections to the parties to the structured settlement (including 
an assignee under a qualified assignment under section 130) in any 
taxable year.
    (2) No withholding of tax. The provisions of section 3405 regarding 
withholding of tax shall not apply to the person making the payments in 
the event of a structured settlement factoring transaction.
    (e) Effective dates. This section applies to structured settlement 
factoring transactions entered into on or after July 8, 2004. For 
structured settlement factoring transactions entered into before July 8, 
2004, see Sec.  157.5891-1T of this chapter (2003-1 C.B. 564. See Sec.  
601.601(d)(2) of this chapter.), as it appeared in the April 1, 2003, 
edition of 26 CFR part 157.



                 Subpart B_Procedure and Administration



Sec.  157.6001-1  Records, statements, and special returns.

    (a) In general. Any person subject to tax under chapter 55 
(Structured Settlement Factoring Transactions) of the Internal Revenue 
Code must keep such complete and detailed records as are sufficient to 
enable the Internal Revenue Service (IRS) to determine accurately the 
amount of liability under chapter 55.
    (b) Notice by the IRS requiring returns, statements, or the keeping 
of records. The IRS may require any person, by notice served upon him, 
to make such returns, render such statements, or keep such specific 
records as will enable the IRS to determine whether or not the person is 
liable for tax under chapter 55.

[[Page 704]]

    (c) Retention of records. The records required by this section must 
be kept at all times available for inspection by the IRS, and shall be 
retained so long as the contents thereof may become material in the 
administration of any internal revenue law.



Sec.  157.6011-1  General requirement of return, statement, or list.

    Every person liable for tax under section 5891 must file a return 
with respect to the tax in accordance with the forms and instructions 
provided by the Internal Revenue Service.



Sec.  157.6060-1  Reporting requirements for tax return preparers.

    (a) In general. A person that employs one or more tax return 
preparers to prepare a return or claim for refund for tax under section 
5891 of the Internal Revenue Code, other than for the person, at any 
time during a return period, shall satisfy the record keeping and 
inspection requirements in the manner stated in Sec.  1.6060-1 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  157.6061-1  Signing of returns and other documents.

    Any return, statement, or other document required to be made with 
respect to a tax imposed by chapter 55 (Structured Settlement Factoring 
Transactions) of the Internal Revenue Code or the regulations under 
chapter 55 must be signed by the person required to file the return, 
statement, or other document, or by the persons required or duly 
authorized to sign in accordance with the regulations, forms, or 
instructions prescribed with respect to such return, statement, or 
document. An individual's signature on such return, statement, or other 
document shall be prima facie evidence that the individual is authorized 
to sign the return, statement, or other document.



Sec.  157.6065-1  Verification of returns.

    If a return, statement, or other document made under the provisions 
of chapter 55 (Structured Settlement Factoring Transactions) or of 
subtitle F of the Internal Revenue Code, or the regulations under those 
provisions with respect to any tax imposed by chapter 55, or the form 
and instructions issued with respect to such return, statement, or other 
document, requires that it shall contain or be verified by a written 
declaration that it is made under the penalties of perjury, it must be 
so verified by the person or persons required to sign such return, 
statement, or other document. In addition, any other statement or 
document submitted under any provision of chapter 55 or subtitle F, or 
the regulations under those provisions, with respect to any tax imposed 
by chapter 55 may be required to contain or be verified by written 
declaration that it is made under the penalties of perjury.



Sec.  157.6071-1  Time for filing returns.

    (a) In general. Except as provided in paragraph (b) of this section, 
returns required by Sec.  157.6011-1 (relating to returns of tax with 
respect to structured settlement factoring transactions) must be filed 
on or before the ninetieth day following the receipt of structured 
settlement payment rights in a structured settlement factoring 
transaction.
    (b) Returns relating to structured settlement payment rights 
received before February 19, 2003. Returns required by Sec.  157.6011-1 
that relate to structured settlement payment rights received on or 
before February 19, 2003, must be filed on or before May 20, 2003.



Sec.  157.6081-1  Automatic extension of time for filing a return due 
under chapter 55.

    (a) In general. A taxpayer required to file a return on Form 8876, 
``Excise Tax on Structured Settlement Factoring Transactions'', will be 
allowed an automatic 6-month extension of time to file the return after 
the date prescribed for filing the return if the taxpayer files an 
application under this section in accordance with paragraph (b) of this 
section.
    (b) Requirements. To satisfy this paragraph (b), the taxpayer must--
    (1) Submit a complete application on Form 7004, ``Application for 
Automatic Extension of Time to File Certain Business Income Tax, 
Information, and

[[Page 705]]

Other Returns,'' or in any other manner prescribed by the Commissioner;
    (2) File the application on or before the date prescribed for filing 
the return with the Internal Revenue Service office designated in the 
application's instructions; and
    (3) Remit the amount of the properly estimated unpaid tax liability 
on or before the date prescribed for payment.
    (c) No extension of time for the payment of tax. An automatic 
extension of time for filing a return granted under paragraph (a) of 
this section will not extend the time for payment of any tax due on such 
return.
    (d) Termination of automatic extension. The Commissioner may 
terminate an automatic extension at any time by mailing to the taxpayer 
a notice of termination at least 10 days prior to the termination date 
designated in such notice. The Commissioner must mail the notice of 
termination to the address shown on the Form 7004 or to the taxpayer's 
last known address. For further guidance regarding the definition of 
last known address, see Sec.  301.6212-2 of this chapter.
    (e) Penalties. See section 6651 for failure to file or failure to 
pay the amount shown as tax on the return.
    (f) Effective/applicability dates. This section is applicable for 
applications for an automatic extension of time to file a return due 
under chapter 55, filed after July 1, 2008.

[T.D. 9407, 73 FR 37370, July 1, 2008]



Sec.  157.6091-1  Place for filing returns.

    The return required by Sec.  157.6011-1 (relating to returns of tax 
with respect to structured settlement factoring transactions) must be 
filed at the place specified in the forms and instructions provided by 
the Internal Revenue Service.



Sec.  157.6107-1  Tax return preparer must furnish copy of return 
or claim for refund to taxpayer and must retain a copy or record.

    (a) In general. A person who is a signing tax return preparer of any 
return or claim for refund of tax under section 5891 of the Internal 
Revenue Code shall furnish a completed copy of the return or claim for 
refund to the taxpayer and retain a completed copy or record in the 
manner stated in Sec.  1.6107-1 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  157.6109-1  Tax return preparers furnishing identifying numbers 
for returns or claims for refund.

    (a) In general. Each tax return or claim for refund for tax under 
section 5891 of the Internal Revenue Code prepared by one or more 
signing tax return preparers must include the identifying number of the 
preparer required by Sec.  1.6695-1(b) of this chapter to sign the 
return or claim for refund in the manner stated in Sec.  1.6109-2 of 
this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed after December 31, 
2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  157.6151-1  Time and place for paying of tax shown on returns.

    The tax under chapter 55 (Structured Settlement Factoring 
Transactions) of the Internal Revenue Code shown on any return must, 
without assessment or notice and demand, be paid at the time and place 
specified in the forms and instructions provided by the Internal Revenue 
Service. For provisions relating to the time and place for filing such 
return, see Sec.  157.6071-1 and Sec.  157.6091-1. For provisions 
relating to the extension of time for paying the tax, see Sec.  
157.6161-1.



Sec.  157.6161-1  Extension of time for paying tax.

    (a) In general--(1) Tax shown or required to be shown on return. The 
Internal Revenue Service may, at the request of the taxpayer, grant a 
reasonable extension of time for payment of the amount of any tax 
imposed by chapter 55 (Structured Settlement Factoring Transactions) of 
the Internal Revenue Code and shown or required to be shown on any 
return. The period of such extension shall not exceed 6 months from the 
date fixed for payment of such tax, except that in the

[[Page 706]]

case of a taxpayer that is abroad, such extension may exceed 6 months.
    (2) Extension of time for filing distinguished. The granting of an 
extension of time for filing a return does not extend the time for the 
payment of the tax or any part thereof unless so specified in the 
extension.
    (b) Certain rules relating to extension of time for paying income 
tax to apply. The provisions of Sec.  1.6161-1(b), (c), and (d) of this 
chapter (relating to a requirement for undue hardship, to the 
application for extension, and to payment pursuant to an extension) 
shall apply to extensions of time for payment of the tax imposed by 
chapter 55 of the Code.



Sec.  157.6165-1  Bonds where time to pay tax has been extended.

    If an extension of time for payment is granted under section 6161, 
the Internal Revenue Service may, if it deems necessary, require a bond 
for the payment, in accordance with the terms of the extension, of the 
amount with respect to which the extension is granted. However, the bond 
shall not exceed double the amount with respect to which the extension 
is granted. For provisions relating to the form of bonds, see the 
regulations under section 7101 contained in part 301 (Regulations on 
Procedure and Administration) of this chapter.



Sec.  157.6694-1  Section 6694 penalties applicable to tax return preparer.

    (a) In general. For general definitions regarding section 6694 
penalties applicable to preparers of tax returns or claims for refund 
for tax under section 5891 of the Internal Revenue Code see Sec.  
1.6694-1 of this chapter.
    (b) Effective/applicability date. Paragraph (a) of this section is 
applicable to returns and claims for refund filed, and advice provided, 
after December 31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  157.6694-2  Penalties for understatement due to an unreasonable position.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under section 5891 of the Internal Revenue 
Code (Code) shall be subject to penalties under section 6694(a) of the 
Code in the manner stated in Sec.  1.6694-2 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  157.6694-3  Penalty for understatement due to willful, reckless, 
or intentional conduct.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under section 5891 of the Internal Revenue 
Code (Code) shall be subject to penalties under section 6694(b) of the 
Code in the manner stated in Sec.  1.6694-3 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  157.6694-4  Extension of period of collection when preparer 
pays 15 percent of a penalty for understatement of taxpayer's liability 
and certain other procedural matters.

    (a) In general. For rules relating to the extension of period of 
collection when a tax return preparer who prepared a return or claim for 
refund for tax under section 5891 of the Internal Revenue Code pays 15 
percent of a penalty for understatement of taxpayer's liability and 
procedural matters relating to the investigation, assessment and 
collection of the penalties under section 6694(a) and (b), the rules 
under Sec.  1.6694-4 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78462, Dec. 22, 2008]



Sec.  157.6695-1  Other assessable penalties with respect to the preparation 
of tax returns or claims for refund for other persons.

    (a) In general. A person who is a tax return preparer of any return 
or claim for refund of tax under section 5891 of the Internal Revenue 
Code (Code) shall be subject to penalties for failure to furnish a copy 
to the taxpayer under section 6695(a) of the Code, failure to sign the 
return under section 6695(b) of

[[Page 707]]

the Code, failure to furnish an identification number under section 
6695(c) of the Code, failure to retain a copy or list under section 
6695(d) of the Code, failure to file a correct information return under 
section 6695(e) of the Code, and negotiation of a check under section 
6695(f) of the Code, in the manner stated in Sec.  1.6695-1 of this 
chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed after December 31, 2008.

[T.D. 9436, 73 FR 78463, Dec. 22, 2008]



Sec.  157.6696-1  Claims for credit or refund by tax return preparers.

    (a) In general. For rules for claims for credit or refund by a tax 
return preparer who prepared a return or claim for refund for tax under 
section 5891 of the Internal Revenue Code, the rules under Sec.  1.6696-
1 of this chapter will apply.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78463, Dec. 22, 2008]



Sec.  157.7701-1  Tax return preparer.

    (a) In general. For the definition of a tax return preparer, see 
Sec.  301.7701-15 of this chapter.
    (b) Effective/applicability date. This section is applicable to 
returns and claims for refund filed, and advice provided, after December 
31, 2008.

[T.D. 9436, 73 FR 78463, Dec. 22, 2008]

                        PARTS 158	169 [RESERVED]



                         SUBCHAPTER E [RESERVED]



                        PARTS 170	299 [RESERVED]

[[Page 709]]



                              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 711]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2021)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 712]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 713]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 714]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Part 10101)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 715]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  (Parts 1600--1699) [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  (Parts 2200--2299) [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 716]]

         L  Rural Business-Cooperative Service, Rural Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Part 5001)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Fair Trade Practices 
                Program), Department of Agriculture (Parts 200--
                299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  (Parts 500--599) [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999) [Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)

[[Page 717]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 718]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 719]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 720]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)

[[Page 721]]

      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

[[Page 722]]

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)

[[Page 723]]

        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. 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

[[Page 724]]

         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

[[Page 725]]

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  (Parts 103-001--104-099) [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]

[[Page 726]]

            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 727]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 728]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)

[[Page 729]]

        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 730]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 731]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2021)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

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     5, 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, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  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
  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
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 732]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           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; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
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 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
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            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

[[Page 733]]

  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             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
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
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
  Career, Technical, and Adult Education, Office  34, IV
       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
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 Policy, National Commission for        1, IV
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
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  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

[[Page 734]]

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 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 Permitting Improvement Steering Council   40, IX
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 of                          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
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

[[Page 735]]

  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
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
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, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  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; 5, XXXVI; 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, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office 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
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
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

[[Page 736]]

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 of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  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
  Safety and Enforcement Bureau, Bureau of        30, II
  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 Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
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
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 of                            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
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  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

[[Page 737]]

  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  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, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
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
Military Compensation and Retirement              5, XCIX
     Modernization Commission
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, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 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 Geospatial-Intelligence Agency           32, I
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 of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II
National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
   Administration
[[Page 738]]

National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               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
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
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, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
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
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of, and     32, XXIV; 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 of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6

[[Page 739]]

Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  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
  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 of the                       2, X; 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
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   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
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 741]]







                      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--Table of Contents





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
1.25-1T....................................................    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
1.42-5.....................................................    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
1.47-1.....................................................    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
1.50B-4....................................................    1545-0895
1.50B-5....................................................    1545-0895
1.51-1.....................................................    1545-0219

[[Page 742]]

 
                                                               1545-0241
                                                               1545-0244
                                                               1545-0797
1.52-2.....................................................    1545-0219
1.52-3.....................................................    1545-0219
1.56(g)-1..................................................    1545-1233
1.57-5.....................................................    1545-0227
1.58-1.....................................................    1545-0175
1.59-1.....................................................    1545-1903
1.61-2.....................................................    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
1.103A-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)-1.................................................    1545-2147
1.108(i)-2.................................................    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
1.132-2....................................................    1545-0771
1.132-5....................................................    1545-0771
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
                                                               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(i)-1.................................................    1545-1331
1.168-5....................................................    1545-0172
1.169-4....................................................    1545-0172

[[Page 743]]

 
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
1.170A-15..................................................    1545-1953
1.170A-16..................................................    1545-1953
1.170A-17..................................................    1545-1953
1.170A-18..................................................    1545-1953
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
1.179-2....................................................    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)-1.................................................    1545-2248
1.263(a)-3.................................................    1545-2248
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
1.336-2....................................................    1545-2125
1.336-4....................................................    1545-2125
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
1.351-3....................................................    1545-2019
1.355-5....................................................    1545-2019
1.362-2....................................................    1545-0123
1.362-4....................................................    1545-2247
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

[[Page 744]]

 
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)(9)-1..............................................    1545-1573
1.401(a)(9)-3..............................................    1545-1466
1.401(a)(9)-4..............................................    1545-1573
1.401(a)(9)-6..............................................    1545-2234
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
1.401-14...................................................    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)-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(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
1.432(e)(9)-1T.............................................    1545-2260
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
                                                               1545-1855
1.451-1....................................................    1545-0091
1.451-4....................................................    1545-0123
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
1.453A-1...................................................    1545-0152
                                                               1545-1134
1.453A-3...................................................    1545-0963
1.454-1....................................................    1545-0074
1.455-2....................................................    1545-0152
1.455-6....................................................    1545-0123

[[Page 745]]

 
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
1.481-4....................................................    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
1.501(r)-3.................................................    1545-0047
1.501(r)-4.................................................    1545-0047
1.501(r)-6.................................................    1545-0047
1.503(c)-1.................................................    1545-0047
                                                               1545-0052
1.505(c)-1T................................................    1545-0916
1.506-1....................................................    1545-2268
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
1.529A-2...................................................    1545-2293
1.529A-5...................................................    1545-2262
1.529A-6...................................................    1545-2262
1.529A-7...................................................    1545-2262
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
1.561-1....................................................    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
1.597-2....................................................    1545-1300
1.597-4....................................................    1545-1300
1.597-6....................................................    1545-1300
1.597-7....................................................    1545-1300
1.611-2....................................................    1545-0099
1.611-3....................................................    1545-0007
                                                               1545-0099
                                                               1545-1784
1.612-4....................................................    1545-0074
1.612-5....................................................    1545-0099
1.613-3....................................................    1545-0099
1.613-4....................................................    1545-0099
1.613-6....................................................    1545-0099
1.613-7....................................................    1545-0099
1.613A-3...................................................    1545-0919
1.613A-3(e)................................................    1545-1251
1.613A-3(l)................................................    1545-0919
1.613A-5...................................................    1545-0099
1.613A-6...................................................    1545-0099
1.614-2....................................................    1545-0099
1.614-3....................................................    1545-0099
1.614-5....................................................    1545-0099
1.614-6....................................................    1545-0099
1.614-8....................................................    1545-0099
1.617-1....................................................    1545-0099

[[Page 746]]

 
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
1.706-4(f).................................................    1545-0123
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
1.822-5....................................................    1545-1027
1.822-6....................................................    1545-1027
1.822-8....................................................    1545-1027
1.822-9....................................................    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
1.832-4....................................................    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
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

[[Page 747]]

 
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
1.927(a)-1T................................................    1545-0935
1.927(d)-2T................................................    1545-0935
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
1.964-1....................................................    1545-0126
                                                               1545-0704
                                                               1545-1072
                                                               1545-2104
1.964-3....................................................    1545-0126
1.970-2....................................................    1545-0126
1.985-2....................................................    1545-1051
                                                               1545-1131
1.985-3....................................................    1545-1051
1.987-1....................................................    1545-2265
1.987-3....................................................    1545-2265
1.987-9....................................................    1545-2265
1.987-10...................................................    1545-2265
1.988-0....................................................    1545-1131
1.988-1....................................................    1545-1131
1.988-2....................................................    1545-1131
1.988-3....................................................    1545-1131
1.988-4....................................................    1545-1131
1.988-5....................................................    1545-1131
1.988-6....................................................    1545-1831
1.992-1....................................................    1545-0190
                                                               1545-0938
1.992-2....................................................    1545-0190
                                                               1545-0884
                                                               1545-0938
1.992-3....................................................    1545-0190
                                                               1545-0938
1.992-4....................................................    1545-0190
                                                               1545-0938
1.993-3....................................................    1545-0938
1.993-4....................................................    1545-0938
1.994-1....................................................    1545-0938
1.995-5....................................................    1545-0938
1.1001-1...................................................    1545-1902
1.1012-1...................................................    1545-0074
                                                               1545-1139
1.1014-4...................................................    1545-0184
1.1015-1...................................................    1545-0020
1.1017-1...................................................    1545-1539
1.1031(d)-1T...............................................    1545-1021
1.1033(a)-2................................................    1545-0184
1.1033(g)-1................................................    1545-0184
1.1039-1...................................................    1545-0184

[[Page 748]]

 
1.1041-1T..................................................    1545-0074
1.1041-2...................................................    1545-1751
1.1042-1T..................................................    1545-0916
1.1044(a)-1................................................    1545-1421
1.1045-1...................................................    1545-1893
1.1060-1...................................................    1545-1658
                                                               1545-1990
1.1071-1...................................................    1545-0184
1.1071-4...................................................    1545-0184
1.1081-4...................................................    1545-0028
                                                               1545-0046
                                                               1545-0123
1.1081-11..................................................    1545-2019
1.1082-1...................................................    1545-0046
1.1082-2...................................................    1545-0046
1.1082-3...................................................    1545-0046
                                                               1545-0184
1.1082-4...................................................    1545-0046
1.1082-5...................................................    1545-0046
1.1082-6...................................................    1545-0046
1.1083-1...................................................    1545-0123
1.1092(b)-1T...............................................    1545-0644
1.1092(b)-2T...............................................    1545-0644
1.1092(b)-3T...............................................    1545-0644
1.1092(b)-4T...............................................    1545-0644
1.1092(b)-5T...............................................    1545-0644
1.1211-1...................................................    1545-0074
1.1212-1...................................................    1545-0074
1.1221-2...................................................    1545-1480
1.1231-1...................................................    1545-0177
                                                               1545-0184
1.1231-2...................................................    1545-0177
                                                               1545-0184
1.1231-2...................................................    1545-0074
1.1232-3...................................................    1545-0074
1.1237-1...................................................    1545-0184
1.1239-1...................................................    1545-0091
1.1242-1...................................................    1545-0184
1.1243-1...................................................    1545-0123
1.1244(e)-1................................................    1545-0123
                                                               1545-1447
1.1245-1...................................................    1545-0184
1.1245-2...................................................    1545-0184
1.1245-3...................................................    1545-0184
1.1245-4...................................................    1545-0184
1.1245-5...................................................    1545-0184
1.1245-6...................................................    1545-0184
1.1248-7...................................................    1545-0074
1.1248(f)-2................................................    1545-2183
1.1248(f)-3T...............................................    1545-2183
1.1250-1...................................................    1545-0184
1.1250-2...................................................    1545-0184
1.1250-3...................................................    1545-0184
1.1250-4...................................................    1545-0184
1.1250-5...................................................    1545-0184
1.1251-1...................................................    1545-0184
1.1251-2...................................................    1545-0074
                                                               1545-0184
1.1251-3...................................................    1545-0184
1.1251-4...................................................    1545-0184
1.1252-1...................................................    1545-0184
1.1252-2...................................................    1545-0184
1.1254-1(c)(3).............................................    1545-1352
1.1254-4...................................................    1545-1493
1.1254-5(d)(2).............................................    1545-1352
1.1258-1...................................................    1545-1452
1.1272-3...................................................    1545-1353
1.1273-2(f)(9).............................................    1545-1353
1.1273-2(h)(2).............................................    1545-1353
1.1274-3(d)................................................    1545-1353
1.1274-5(b)................................................    1545-1353
1.1274A-1(c)...............................................    1545-1353
1.1275-2...................................................    1545-1450
1.1275-3...................................................    1545-0887
                                                               1545-1353
                                                               1545-1450
1.1275-4...................................................    1545-1450
1.1275-6...................................................    1545-1450
1.1287-1...................................................    1545-0786
1.1291-9...................................................    1545-1507
1.1291-10..................................................    1545-1304
                                                               1545-1507
1.1294-1T..................................................    1545-1002
                                                               1545-1028
1.1295-1...................................................    1545-1555
1.1295-3...................................................    1545-1555
1.1298-3...................................................    1545-1507
1.1301-1...................................................    1545-1662
1.1311(a)-1................................................    1545-0074
1.1361-1...................................................    1545-0731
                                                               1545-1591
                                                               1545-2114
1.1361-3...................................................    1545-1590
1.1361-5...................................................    1545-1590
1.1362-1...................................................    1545-1308
1.1362-2...................................................    1545-1308
1.1362-3...................................................    1545-1308
1.1362-4...................................................    1545-1308
1.1362-5...................................................    1545-1308
1.1362-6...................................................    1545-1308
1.1362-7...................................................    1545-1308
1.1362-8...................................................    1545-1590
1.1363-2...................................................    1545-1906
1.1366-1...................................................    1545-1613
1.1367-1(f)................................................    1545-1139
1.1368-1(f)(2).............................................    1545-1139
1.1368-1(f)(3).............................................    1545-1139
1.1368-1(f)(4).............................................    1545-1139
1.1368-1(g)(2).............................................    1545-1139
1.1374-1A..................................................    1545-0130
1.1377-1...................................................    1545-1462
1.1378-1...................................................    1545-1748
1.1383-1...................................................    1545-0074
1.1385-1...................................................    1545-0074
                                                               1545-0098
1.1388-1...................................................    1545-0118
                                                               1545-0123
1.1397E-1..................................................    1545-1908
1.1398-1...................................................    1545-1375
1.1398-2...................................................    1545-1375
1.1402(a)-2................................................    1545-0074
1.1402(a)-5................................................    1545-0074
1.1402(a)-11...............................................    1545-0074
1.1402(a)-15...............................................    1545-0074
1.1402(a)-16...............................................    1545-0074
1.1402(b)-1................................................    1545-0171
1.1402(c)-2................................................    1545-0074
1.1402(e)(1)-1.............................................    1545-0074
1.1402(e)(2)-1.............................................    1545-0074
1.1402(e)-1A...............................................    1545-0168
1.1402(e)-2A...............................................    1545-0168
1.1402(e)-3A...............................................    1545-0168
1.1402(e)-4A...............................................    1545-0168
1.1402(e)-5A...............................................    1545-0168
1.1402(f)-1................................................    1545-0074
1.1402(h)-1................................................    1545-0064
1.1411-10(g)...............................................    1545-2227
1.1441-1...................................................    1545-1484
1.1441-2...................................................    1545-0795
1.1441-3...................................................    1545-0165
                                                               1545-0795
1.1441-4...................................................    1545-1484
1.1441-5...................................................    1545-0096
                                                               1545-0795

[[Page 749]]

 
                                                               1545-1484
1.1441-6...................................................    1545-0055
                                                               1545-0795
                                                               1545-1484
1.1441-7...................................................    1545-0795
1.1441-8...................................................    1545-1053
                                                               1545-1484
1.1441-9...................................................    1545-1484
1.1443-1...................................................    1545-0096
1.1445-1...................................................    1545-0902
1.1445-2...................................................    1545-0902
                                                               1545-1060
                                                               1545-1797
1.1445-3...................................................    1545-0902
                                                               1545-1060
                                                               1545-1797
1.1445-4...................................................    1545-0902
1.1445-5...................................................    1545-0902
1.1445-6...................................................    1545-0902
                                                               1545-1060
1.1445-7...................................................    1545-0902
1.1445-8...................................................    1545-0096
1.1445-9T..................................................    1545-0902
1.1445-10T.................................................    1545-0902
1.1446-1...................................................    1545-1934
1.1446-3...................................................    1545-1934
1.1446-4...................................................    1545-1934
1.1446-5...................................................    1545-1934
1.1446-6...................................................    1545-1934
1.1451-1...................................................    1545-0054
1.1451-2...................................................    1545-0054
1.1461-1...................................................    1545-0054
                                                               1545-0055
                                                               1545-0795
                                                               1545-1484
1.1461-2...................................................    1545-0054
                                                               1545-0055
                                                               1545-0096
                                                               1545-0795
1.1462-1...................................................    1545-0795
1.1502-5...................................................    1545-0257
1.1502-9...................................................    1545-1634
1.1502-9A..................................................    1545-0121
1.1502-13..................................................    1545-0123
                                                               1545-0885
                                                               1545-1161
                                                               1545-1433
1.1502-16..................................................    1545-0123
1.1502-18..................................................    1545-0123
1.1502-19..................................................    1545-0123
                                                               1545-1774
1.1502-20..................................................    1545-1774
1.1502-21..................................................    1545-1237
1.1502.21T.................................................    1545-0123
1.1502-31..................................................    1545-1344
1.1502-32..................................................    1545-1344
                                                               1545-1774
1.1502-33..................................................    1545-1344
1.1502-35..................................................    1545-1828
1.1502-36..................................................    1545-2096
1.1502-47..................................................    1545-0123
1.1502-75..................................................    1545-0025
                                                               1545-0123
                                                               1545-0133
                                                               1545-0152
1.1502-76..................................................    1545-1344
1.1502-76T.................................................    1545-2019
1.1502-77..................................................    1545-1699
1.1502-77A.................................................    1545-0123
                                                               1545-1046
1.1502-77B.................................................    1545-1699
1.1502-78..................................................    1545-0582
1.1502-95..................................................    1545-1218
1.1502-95A.................................................    1545-1218
1.1502-96..................................................    1545-1218
1.1503-2...................................................    1545-1583
1.1503-2A..................................................    1545-1083
1.1503(d)-1................................................    1545-1946
1.1503(d)-3................................................    1545-1946
1.1503(d)-4................................................    1545-1946
1.1503(d)-5................................................    1545-1946
1.1503(d)-6................................................    1545-1946
1.1552-1...................................................    1545-0123
1.1561-3...................................................    1545-0123
1.1563-1...................................................    1545-0123
                                                               1545-0797
                                                               1545-2019
1.1563-3...................................................    1545-0123
1.5000A-3..................................................    1545-0074
1.5000A-4..................................................    1545-0074
1.5000C-2..................................................    1545-0096
                                                               1545-2263
1.5000C-3..................................................    1545-0096
                                                               1545-2263
1.5000C-4..................................................    1545-1223
                                                               1545-0074
1.6001-1...................................................    1545-0058
                                                               1545-0074
                                                               1545-0099
                                                               1545-0123
                                                               1545-0865
1.6011-1...................................................    1545-0055
                                                               1545-0074
                                                               1545-0085
                                                               1545-0089
                                                               1545-0090
                                                               1545-0091
                                                               1545-0096
                                                               1545-0121
                                                               1545-0458
                                                               1545-0666
                                                               1545-0675
                                                               1545-0908
1.6011-2...................................................    1545-0055
                                                               1545-0938
1.6011-3...................................................    1545-0238
                                                               1545-0239
1.6011-4...................................................    1545-1685
1.6012-1...................................................    1545-0067
                                                               1545-0074
                                                               1545-0085
                                                               1545-0089
                                                               1545-0675
1.6012-2...................................................    1545-0047
                                                               1545-0051
                                                               1545-0067
                                                               1545-0123
                                                               1545-0126
                                                               1545-0128
                                                               1545-0130
                                                               1545-0175
                                                               1545-0687
                                                               1545-0890
                                                               1545-1023
                                                               1545-1027
1.6012-3...................................................    1545-0047
                                                               1545-0067
                                                               1545-0092
                                                               1545-0196
                                                               1545-0687
1.6012-4...................................................    1545-0067
1.6012-5...................................................    1545-0067
                                                               1545-0936
                                                               1545-0967

[[Page 750]]

 
                                                               1545-0970
                                                               1545-0991
                                                               1545-1023
                                                               1545-1033
                                                               1545-1079
1.6012-6...................................................    1545-0067
                                                               1545-0089
                                                               1545-0129
1.6013-1...................................................    1545-0074
1.6013-2...................................................    1545-0091
1.6013-6...................................................    1545-0074
1.6013-7...................................................    1545-0074
1.6015-5...................................................    1545-1719
1.6015(a)-1................................................    1545-0087
1.6015(b)-1................................................    1545-0087
1.6015(d)-1................................................    1545-0087
1.6015(e)-1................................................    1545-0087
1.6015(f)-1................................................    1545-0087
1.6015(g)-1................................................    1545-0087
1.6015(h)-1................................................    1545-0087
1.6015(i)-1................................................    1545-0087
1.6017-1...................................................    1545-0074
                                                               1545-0087
                                                               1545-0090
1.6031(a)-1................................................    1545-1583
1.6031(b)-1T...............................................    1545-0099
1.6031(c)-1T...............................................    1545-0099
1.6032-1...................................................    1545-0099
1.6033-2...................................................    1545-0047
                                                               1545-0049
                                                               1545-0052
                                                               1545-0092
                                                               1545-0687
                                                               1545-1150
                                                               1545-2117
1.6033-3...................................................    1545-0052
1.6034-1...................................................    1545-0092
                                                               1545-0094
1.6035-2...................................................    1545-0704
1.6037-1...................................................    1545-0130
                                                               1545-1023
1.6038-2...................................................    1545-1617
                                                               1545-2020
1.6038-3...................................................    1545-1617
1.6038A-2..................................................    1545-1191
1.6038A-3..................................................    1545-1191
                                                               1545-1440
1.6038B-1..................................................    1545-1617
                                                               1545-2183
1.6038B-1T.................................................    1545-0026
                                                               1545-2183
1.6038B-2..................................................    1545-1617
1.6039-2...................................................    1545-0820
1.6041-1...................................................    1545-0008
                                                               1545-0108
                                                               1545-0112
                                                               1545-0115
                                                               1545-0120
                                                               1545-0295
                                                               1545-0350
                                                               1545-0367
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
                                                               1545-1705
1.6041-2...................................................    1545-0008
                                                               1545-0119
                                                               1545-0350
                                                               1545-0441
                                                               1545-1729
1.6041-3...................................................    1545-1148
1.6041-4...................................................    1545-0115
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
1.6041-5...................................................    1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
1.6041-6...................................................    1545-0008
                                                               1545-0115
1.6041-7...................................................    1545-0112
                                                               1545-0295
                                                               1545-0350
                                                               1545-0367
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
1.6042-1...................................................    1545-0110
1.6042-2...................................................    1545-0110
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
1.6042-3...................................................    1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
1.6042-4...................................................    1545-0110
1.6043-1...................................................    1545-0041
1.6043-2...................................................    1545-0041
                                                               1545-0110
                                                               1545-0295
                                                               1545-0387
1.6043-3...................................................    1545-0047
1.6044-1...................................................    1545-0118
1.6044-2...................................................    1545-0118
1.6044-3...................................................    1545-0118
1.6044-4...................................................    1545-0118
1.6044-5...................................................    1545-0118
1.6045-1...................................................    1545-0715
                                                               1545-1705
1.6045-1(c)(3)(xi)(C)......................................    1545-2186
1.6045-1(n)(5).............................................    1545-2186
1.6045A-1..................................................    1545-2186
1.6045-2...................................................    1545-0115
1.6045-4...................................................    1545-1085
1.6046-1...................................................    1545-0704
                                                               1545-0794
                                                               1545-1317
1.6046-2...................................................    1545-0704
1.6046-3...................................................    1545-0704
1.6046A....................................................    1545-1646
1.6047-1...................................................    1545-0119
                                                               1545-0295
                                                               1545-0387
1.6047-2...................................................    1545-2234
1.6049-1...................................................    1545-0112
                                                               1545-0117
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0597
                                                               1545-0957
1.6049-2...................................................    1545-0117
1.6049-3...................................................    1545-0117
1.6049-4...................................................    1545-0096
                                                               1545-0112
                                                               1545-0117
                                                               1545-1018
                                                               1545-1050
1.6049-5...................................................    1545-0096
                                                               1545-0112

[[Page 751]]

 
                                                               1545-0117
1.6049-6...................................................    1545-0096
1.6049-7...................................................    1545-1018
1.6050A-1..................................................    1545-0115
1.6050B-1..................................................    1545-0120
1.6050D-1..................................................    1545-0120
                                                               1545-0232
1.6050E-1..................................................    1545-0120
1.6050H-1..................................................    1545-0901
                                                               1545-1380
1.6050H-2..................................................    1545-0901
                                                               1545-1339
                                                               1545-1380
1.6050I-2..................................................    1545-1449
1.6050J-1T.................................................    1545-0877
1.6050K-1..................................................    1545-0941
1.6050S-1..................................................    1545-1678
1.6050S-2..................................................    1545-1729
1.6050S-3..................................................    1545-1678
1.6050S-4..................................................    1545-1729
1.6052-1...................................................    1545-0008
1.6052-2...................................................    1545-0008
1.6055-1...................................................    1545-2252
1.6055-2...................................................    1545-2252
1.6060-1...................................................    1545-0074
1.6060-1(a)(1).............................................    1545-1231
1.6061-1...................................................    1545-0123
1.6062-1...................................................    1545-0123
1.6063-1...................................................    1545-0123
1.6065-1...................................................    1545-0123
1.6071-1...................................................    1545-0123
                                                               1545-0810
1.6072-1...................................................    1545-0074
1.6072-2...................................................    1545-0123
                                                               1545-0807
1.6073-1...................................................    1545-0087
1.6073-2...................................................    1545-0087
1.6073-3...................................................    1545-0087
1.6073-4...................................................    1545-0087
1.6074-1...................................................    1545-0123
1.6074-2...................................................    1545-0123
1.6081-1...................................................    1545-0066
                                                               1545-0148
                                                               1545-0233
                                                               1545-1057
                                                               1545-1081
1.6081-2...................................................    1545-0148
                                                               1545-1036
                                                               1545-1054
1.6081-3...................................................    1545-0233
1.6081-4...................................................    1545-0188
                                                               1545-1479
1.6081-6...................................................    1545-0148
                                                               1545-1054
1.6081-7...................................................    1545-0148
                                                               1545-1054
1.6091-3...................................................    1545-0089
1.6107-1...................................................    1545-0074
                                                               1545-1231
1.6109-1...................................................    1545-0074
1.6109-2...................................................    1545-2176
1.6115-1...................................................    1545-1464
1.6151-1...................................................    1545-0074
1.6153-1...................................................    1545-0087
1.6153-4...................................................    1545-0087
1.6161-1...................................................    1545-0087
1.6162-1...................................................    1545-0087
1.6164-1...................................................    1545-0135
1.6164-2...................................................    1545-0135
1.6164-3...................................................    1545-0135
1.6164-5...................................................    1545-0135
1.6164-6...................................................    1545-0135
1.6164-7...................................................    1545-0135
1.6164-8...................................................    1545-0135
1.6164-9...................................................    1545-0135
1.6302-1...................................................    1545-0257
1.6302-2...................................................    1545-0098
                                                               1545-0257
1.6411-1...................................................    1545-0098
                                                               1545-0135
                                                               1545-0582
1.6411-2...................................................    1545-0098
                                                               1545-0582
1.6411-3...................................................    1545-0098
                                                               1545-0582
1.6411-4...................................................    1545-0582
1.6414-1...................................................    1545-0096
1.6425-1...................................................    1545-0170
1.6425-2...................................................    1545-0170
1.6425-3...................................................    1545-0170
1.6654-1...................................................    1545-0087
                                                               1545-0140
1.6654-2...................................................    1545-0087
1.6654-3...................................................    1545-0087
1.6655(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
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

[[Page 752]]

 
5c.305-1...................................................    1545-0110
5c.442-1...................................................    1545-0152
5f.103-1...................................................    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
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
20.2010-2..................................................    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
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

[[Page 753]]

 
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(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
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
31.3511-1..................................................    1545-2266
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

[[Page 754]]

 
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
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
48.4041-19.................................................    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
48.4101-1..................................................    1545-1418
48.4101-1T.................................................    1545-1418
48.4101-2..................................................    1545-1418
48.4161(a)-1...............................................    1545-0723

[[Page 755]]

 
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
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
49.5000B-1.................................................    1545-2177
51.2(f)(2)(ii).............................................    1545-2209
51.7.......................................................    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

[[Page 756]]

 
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
54.4975-7..................................................    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
54.6011-1..................................................    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
57.2(e)(2)(i)..............................................    1545-2249
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
301.6036-1.................................................    1545-0013
                                                               1545-0773
301.6047-1.................................................    1545-0367
                                                               1545-0957
301.6056-1.................................................    1545-2251
301.6056-2.................................................    1545-2251
301.6057-1.................................................    1545-0710
301.6057-2.................................................    1545-0710
301.6058-1.................................................    1545-0710
301.6059-1.................................................    1545-0710
301.6103(c)-1..............................................    1545-1816
301.6103(n)-1..............................................    1545-1841
301.6103(p)(2)(B)-1........................................    1545-1757
301.6104(a)-1..............................................    1545-0495
301.6104(a)-5..............................................    1545-0056
301.6104(a)-6..............................................    1545-0056
301.6104(b)-1..............................................    1545-0094
                                                               1545-0742
301.6104(d)-1..............................................    1545-1655
301.6104(d)-2..............................................    1545-1655
301.6104(d)-3..............................................    1545-1655
301.6109-1.................................................    1545-0003
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
                                                               1545-1461
                                                               1545-2242
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
301.6316-4.................................................    1545-0074
301.6316-5.................................................    1545-0074
301.6316-6.................................................    1545-0074
301.6316-7.................................................    1545-0029
301.6324A-1................................................    1545-0015

[[Page 757]]

 
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
301.6511(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
301.6903-1.................................................    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
301.7705-1.................................................    1545-2266
301.7705-2.................................................    1545-2266
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
420.0-1....................................................    1545-0710
Part 509...................................................    1545-0846
Part 513...................................................    1545-0834
Part 514...................................................    1545-0845
Part 521...................................................    1545-0848
601.104....................................................    1545-0233
601.105....................................................    1545-0091
601.201....................................................    1545-0019
                                                               1545-0819
601.204....................................................    1545-0152
601.401....................................................    1545-0257
601.504....................................................    1545-0150
601.601....................................................    1545-0800
601.602....................................................    1545-0295
                                                               1545-0387
                                                               1545-0957
601.702....................................................    1545-0429
------------------------------------------------------------------------


[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.govinfo.gov.

[[Page 759]]



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, 2016 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.govinfo.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.govinfo.gov.

                                  2016

26 CFR
                                                                   81 FR
                                                                    Page
Chapter I
53.4944-3 (a)(2)(ii) amended; (b) Examples 11 through 19 and (c) 
        added......................................................24017
54.9801-2 Amended..................................................75324
54.9815-2711 (c) revised...........................................75324
54.9831-1 (b)(1), (c)(2)(vii) and (viii) amended; (c)(2)(ix) 
        added; (c)(5)(i)(C) revised................................75324
54.9833-1 Amended..................................................75325

                                  2017

26 CFR
                                                                   82 FR
                                                                    Page
Chapter I
51 Authority citation revised......................................34611
51.2 (e)(3) revised................................................34612
51.2T Removed......................................................34612
51.11 Heading and (b) revised; (c) removed.........................34612
51.11T Removed.....................................................34612
54 Policy statement................................................55507
54.9815-2713 (a)(1) introductory text and (iv) revised; interim....47828
54.9815-2713T Added; interim.......................................47828
    (a)(1)(iv) amended; interim....................................47861
54.9815-2713A Revised; interim.....................................47829
54.9815-2713AT Added; interim......................................47829
    (a)(1), (2), (b)(1)(ii) introductory text, (B), (c)(1)(ii) 
introductory text, (B) and (2) introductory text amended; interim 
                                                                   47861

                                  2018

26 CFR
                                                                   83 FR
                                                                    Page
Chapter I
54 Notification....................................................19431
54.9801-2 Amended..................................................38241
54.9815-2713 (a)(1) introductory text and (iv) revised.............57586
54.9815-2713 (a)(1)(iv) amended....................................57630
54.9815-2713A Revised..............................................57586
54.9815-2713A (a)(1), (2), (b)(1)(ii) introductory text, (B), 
        (c)(1)(ii) introductory text, (B), and (2) amended.........57630
54.9815-2713T Removed..............................................57589
54.9815-2713AT Removed.............................................57589
54.9833-1 Amended..................................................38242
57.2 (b)(3) and (c)(3)(ii) revised..................................8174
57.2T Removed.......................................................8174
57.10 (b) revised...................................................8175
57.10T Removed......................................................8175

[[Page 760]]

                                  2019

26 CFR
                                                                   84 FR
                                                                    Page
Chapter I
53.4963-1 (a) and (c) amended......................................14009
53.6011-1 (b) amended..............................................14009
53.6071-1 (i) redesignated as (j); new (i) and (j)(3) added........14009
54 Authority citation amended......................................28987
54.4972-1 Removed...................................................9239
54.4981A-1T Removed.................................................9239
54.9801-2 Amended..................................................28987
54.9802-4 Added....................................................28987
54.9815-2711 (c), (d), and (e) revised.............................28997
54.9831-1 (c)(3)(i) revised; (c)(3)(viii) added....................28999
55 Authority citation amended.......................................9239
55.4981-1 Removed...................................................9239
55.4981-2 Amended...................................................9239
57.3 (a)(2) revised................................................61547
57.10 Heading and (a) revised; (c) added...........................61547
148 Removed.........................................................9239

                                  2020

26 CFR
                                                                   85 FR
                                                                    Page
Chapter I
53.4968-1 Added....................................................65557
53.4968-2 Added....................................................65557
53.4968-3 Added....................................................65557
53.4968-4 Added....................................................65557
54 Policy statement................................................26351
54 Authority citation amended......................................72294
54.9815-1251 (g)(3) and (4) redesignated as (g)(4) and (5); new 
        (g)(3) added; new (g)(4)(i) and new (ii) revised; (g)(1) 
        introductory text, (iii), (iv)(A), (B), (v), and new (5) 
        amended....................................................81116
54.9815-2713T Added; interim.......................................71193
54.9815-2715A1 Added...............................................72295
54.9815-2715A2 Added...............................................72295
54.9815-2715A3 Added...............................................72295
56.4911-9 (d)(2), (3), and (4) introductory text amended...........31969
56.4911-10 (f)(1) amended..........................................31969

                                  2021

   (Regulations published from January 1, 2021, through April 1, 2021)

26 CFR
                                                                   86 FR
                                                                    Page
Chapter I
53 Authority citation revised.......................................6219
53.4960-0 Added.....................................................6219
53.4960-1 Added.....................................................6219
53.4960-2 Added.....................................................6219
53.4960-3 Added.....................................................6219
53.4960-4 Added.....................................................6219
53.4960-5 Added.....................................................6219
53.4960-6 Added.....................................................6219


                                  [all]