[Congressional Record Volume 147, Number 99 (Tuesday, July 17, 2001)]
[House]
[Pages H4023-H4028]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            INTRODUCTION OF ABUSIVE TAX SHELTER SHUTDOWN ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2001, the gentleman from Texas (Mr. Doggett) is recognized 
during morning hour debates for 5 minutes.
  Mr. DOGGETT. Mr. Speaker, most of us can appreciate the feeling of 
the fellow who declared, ``I am proud to be paying taxes, but I could 
be just as proud for half the money!''
  Some taxpayers have, in fact, discovered a way to get out for half 
the money by exploiting abusive tax avoidance schemes, gimmicks, and 
tax shelters. For the millions of Americans who are paying their fair 
share of taxes, it is long past time to plug some of the loopholes and 
eliminate the tax inequities that threaten public confidence in our tax 
system.
  Today, together with the gentleman from New York (Mr. Rangel), the 
ranking member of the Committee on Ways and Means and a number of my 
Democratic colleagues on the committee, I am introducing the Abusive 
Tax Shelter Shutdown Act to address these concerns.
  With the Bush administration already dipping into the Medicare trust 
fund to pay for its many undertakings, we face a challenge. To 
implement a patients' bill of rights, to ensure that the dipping into 
the Medicare trust fund does not extend to an invasion of the Social 
Security trust fund, and to provide reasonable tax relief, we must 
ensure that lower tax revenues are offset. We must secure what are 
known around this House as ``pay-for's'' to pay for the enactment of 
any new initiatives.
  With the bill that we are introducing today, we say: what better 
place to start than with the high rollers who are cheating and gaming 
our tax system.
  This new bill represents a refinement of legislation that I 
originally introduced in 1999. The Washington Post, the Los Angeles 
Times, and several other newspapers have already endorsed that 
initiative. The abuses that it addresses were first brought to my 
attention by a constituent in Austin who directed my attention to this 
Forbes magazine. Forbes, which proudly proclaims itself ``the 
capitalist tool,'' did a cover story called ``Tax Shelter Hustlers'' 
with a fellow in a fedora on the cover, and stated, ``Respectable 
accountants are peddling dicey corporate loopholes.'' Inside, that 
cover story begins, ``Respectable tax professionals and respectable 
corporate clients are exploiting the exotica of modern corporate 
finance to indulge in extravagant tax dodging schemes.''
  Forbes reported that Big 5 accounting firms require staffers, in one 
case, to come up with at least one new corporate tax dodge per week. 
The literal

[[Page H4024]]

 hustling of these improper tax avoidance schemes is so commonplace 
that the representative of one major Texas-based multinational 
indicated that he gets a cold call every day from someone hawking such 
shelters.
  As Stefan Tucker, former Chair of the American Bar Association Tax 
Section, a group comprised of 20,000 tax lawyers across the country, 
told the Senate Finance Committee: ``[T]he concerns being voiced about 
corporate tax shelters are very real; these concerns are not hollow or 
misplaced, as some would assert. We deal with corporate and other major 
taxpayer clients every day who are bombarded, on a regular and 
continuous basis, with ideas or ``products'' of questionable merit.''
  Two years later, we have this sequel from Forbes which raises the 
question, ``How to cheat on your taxes?'' It concludes that the 
marketing of push-the-edge and over-the-edge tax shelters ``represent 
the most striking evidence of the decline in [tax] compliance'' in our 
country today. The ``outrageous shelters'' that it reports about in its 
cover story are literally ``tearing this country's tax system apart.'' 
It raises the question that more and more taxpayers are asking: ``Am I 
a chump for paying what I owe?''
  Here is basically what this bill seeks to do: First, it seeks to stop 
these schemes that have no ``economic substance.'' That is, deals that 
are done not to achieve economic gain in a competitive marketplace or 
for other legitimate business reasons but to generate losses that offer 
a way to avoid the tax collector.
  Second, it prevents tax cheats from buying the equivalent of a ``get-
out-of-jail-free'' card to protect themselves in the unlikely event 
that they get caught. Some fancy legal opinion cannot be used as 
insurance against penalties for tax underpayments on transactions that 
have no economic substance.
  Third, the bill increases and tightens penalties for tax dodging so 
that there is at least some downside risk to cheating.
  Fourth, it requires the promoters and hustlers who market tax 
shelters to share a little of the penalty themselves with the offending 
taxpayer.
  Fifth, it punishes the lawyers who write ``penalty insurance'' 
opinions that any reasonable person would know are unjustified.
  Sixth, it penalizes those who fail to follow the disclosure rules. It 
recognizes that too often secrecy is the growth hormone for these 
complex tax-cheating shelter gimmicks.
  Seventh, it expands the types of tax shelters that must be registered 
with the IRS, thereby facilitating tax enforcement.
  Finally, it targets a few of what some might view as ``attractive 
nuisances.'' That is, tax code provisions that are particularly subject 
to manipulation and misuse.
  Battling these shelters one at a time, through years of costly 
litigation, has not prevented the steady growth in abusive practices. 
Indeed, the creativity and speed with which new and more complicated 
tax shelters are devised is remarkable. Following judicial and 
administrative rulings, tax shelters are repackaged and remarketed with 
creative titles like sequels to bad movies.
  One type of gimmickery, called LILO, has been used by an American 
company, which rents a Swiss town hall, not for any gathering, but only 
to rent it immediately back to the Swiss. The corporation takes a 
deduction from current taxable income for the total rental expense, 
while deferring income from its ``re-rental'' until far into the 
future. Within months of Treasury shutting down such abusive LILO 
transactions, products were soon being sold as the ``Son of LILO,'' 
with only a modicum of difference from the previous version.
  I have modified this legislation to take into account the comments 
that were raised at a November 1999 Committee on Ways and Means 
hearing. I have incorporated recommendations from the American Bar 
Association tax section, and bipartisan suggestions from leaders of the 
Senate Finance Committee last year. This bill has been carefully 
designed to curtail egregious behavior without impacting legitimate 
business deals.
  Most of these refinements have had a very plain purpose: eliminate 
the excuse for inaction. This bill should now be acceptable to everyone 
but most blatant shelter hustlers. But that may not be the case.
  Treasury Secretary Paul O'Neill recently gave an interview to a 
London newspaper in which he favored eliminating corporate taxation. If 
that is the ultimate objective, if he just waits a little while 
maintaining the same attitude of indifference in the face of rapidly 
proliferating shelter schemes it may eventually be accomplished. This 
will leave just a few ``corporate chumps'' paying anything close to 
their fair share.
  Most taxpayers realize that if someone in the corporate towers or 
just down the street is not paying their fair share, you and I, and the 
others who play by the rules, must pay more to pick up the slack. And 
that slack, that loss of revenue to abusive tax shelters, is not 
estimated to exceed $10 billion per year.
  And that lost revenue could be put to better use. The bipartisan 
leaders of the managed care reform bill in the last Congress relied 
upon this proposal to offset any reduced federal revenues associated 
with adopting the Patients Bill of Rights. Although blocked 
procedurally, Representative Charlie Norwood (R-GA) got it right in 
telling the House Rules Committee, ``There is a large difference in 
what you call a tax increase and stopping bogus tax shelters. That is 
really two different things. They aren't just asking them to pay more 
taxes, we are trying to keep them from cheating the system.''
  Today, we sponsors of this legislation offer a constructive way of 
correcting abusive tax shelters, described by former Treasury Secretary 
Larry Summers as ``the most serious compliance issue threatening the 
American tax system.'' Battling corporate tax cheats is not a partisan 
issue, it is a question of fundamental fairness. This Congress should 
promptly respond.

 Technical Explanation of H.R.   , the ``Abusive Tax Shelter Shutdown 
                             Act of 2001''

    TITLE I--CLARIFICATION OF ECONOMIC SUBSTANCE DOCTRINE (SEC. 101)


                              present law

     In general
       The Internal Revenue Code (``Code'') provides specific 
     rules regarding the computation of taxable income, including 
     the amount, timing, and character of items of income, gain, 
     loss and deductions. These rules are designed to provide for 
     the computation of taxable income in a manner that provides 
     for a degree of specificity to both taxpayers and the 
     government. Taxpayers generally may plan their transactions 
     in reliance on these rules to determine the federal income 
     tax consequences arising from the transactions.
       Notwithstanding the presence of these rules for determining 
     tax liability, the claimed tax results of a particular 
     transaction may be challenged by the Secretary of the 
     Treasury. For example, the Code grants the Secretary various 
     authority to challenge tax results that would result in an 
     abuse of these rules or the avoidance or evasion of tax 
     (Secs. 269, 446, 482, 7701(l)). Further, the Secretary can 
     challenge a tax result by applying the so-called ``economic 
     substance doctrine.'' This doctrine has been applied by the 
     courts to deny unwarranted and unintended tax benefits in 
     transactions whose undertaking does not result in a 
     meaningful change to the taxpayer's economic position other 
     than a purported reduction in federal income tax. Closely 
     related doctrines also applied by the courts (sometimes 
     interchangeable with the economic substance doctrine) include 
     the so-called ``sham transaction doctrine'' and the 
     ``business purpose doctrine''. (See, for example, Knetsch v. 
     United States, 364 U.S. 361 (1960) denying interest 
     deductions on a ``sham transaction'' whose only purpose was 
     to create the deductions.) Also, the Secretary can argue that 
     the substance of a transaction is different from the form in 
     which the taxpayer has structured and reported the 
     transaction and therefore, the taxpayer applied the improper 
     rules to determine the tax consequences. Similarly, the 
     Secretary may invoke the ``step-transaction doctrine'' to 
     treat a series of formally separate ``steps'' as a single 
     transaction if the steps are integrated, interdependent, and 
     focused on a particular result.
     Economic substance doctrine
       The economic substance doctrine is a common law doctrine 
     denying tax benefits in transactions which, apart from their 
     claimed tax benefits, have little economic significance.
       The seminal authority for the economic substance doctrine 
     is the Supreme Court and Second Circuit decisions in Gregory 
     v. Helvering (293 U.S. 465 (1935), aff'g 69 F.2d 809 (2d Cir. 
     1934). In that case, a transitory subsidiary was used to 
     effectuate a tax-advantaged distribution form a corporation. 
     Notwithstanding that the transaction satisfied

[[Page H4025]]

     the literal definition of a tax-free reorganization, the 
     courts denied the intended benefits of the transactions, 
     stating: ``The purpose of the [reorganization] section is 
     plain enough, men [and women] engaged in enterprises--
     industrial, commercial, financial, or an other--might wish to 
     consolidate, or divide, to add to, or subtract from, their 
     holdings. Such transactions were not to be considered 
     `realizing' and profit, because the collective interests 
     still remained in solution. But the underlying presupposition 
     is plain that the readjustment shall be undertaken for 
     reasons germane to the conduct of the venture in hand, not as 
     an ephemeral incident, egregious to its prosecution. To dodge 
     the shareholder's taxes is not one of the transactions 
     contemplated as corporate `reorganizations'.'' (69 F.2d at 
     811).
       The economic substance doctrine was applied in the case of 
     Goldstein v. Commissioner (364 F.2d 734 (2d Cir. 1966)) 
     involving a taxpayer who borrowed to acquire Treasury 
     securities. Under the law then in effect, she was able to 
     deduct a substantial amount of prepaid interest. 
     Notwithstanding that the Code allowed a deduction for the 
     prepaid interest, the Court disallowed the deduction stating: 
     ``this provision [sec. 163(a)] should not be construed to 
     permit an interest deduction when it objectively appears that 
     a taxpayer has borrowed funds in order to engage in a 
     transaction that has no substance or purpose other than to 
     obtain the tax benefit of an interest deduction.''
       Likewise in Shelton v. Commissioner (94 T.C. 738 (1990)), a 
     taxpayer borrowed money to purchase Treasury bills. Under the 
     law at that time, the interest on the borrowing was 
     deductible, but interest on the Treasury bills did not have 
     to be accrued currently. The taxpayer deducted the interest 
     on the borrowing currently and deferred the interest income. 
     The court, as in the Goldstein case, disallowed the interest 
     deduction because the transaction lacked economic substance. 
     Similarly, the economic substance doctrine has been applied 
     to disallow losses in cases where taxpayers invested in 
     commodity straddles (Yosha v. Commissioner, 861 F.2d 494 (7th 
     Cir. 1988)).
       Recently, the courts have applied the economic substance 
     doctrine to deny the benefits of an intricate plan 
     principally designed to create losses by investing in a 
     partnership holding debt instruments that were sold for 
     contingent installment notes. Both the Tax Court and the 
     Court of Appeals for the Third Circuit held that the 
     transaction lacked economic substance and thus disallowed the 
     ``artificial loss'' (ACM Partnership v. Commissioner, 157 
     F.3d 231 (3d Cir. 1998), aff'g 73 T.C.M. 2189 (1997)). The 
     Tax Court opinion stated: ``the transaction must be 
     rationally related to a useful nontax purpose that is 
     plausible in light of the taxpayer's conduct and useful in 
     the light of the taxpayer's economic situation and 
     intentions. Both the utility of the stated purpose and the 
     rationality of the means chosen to effectuate it must be 
     evaluated in accordance with the commercial practices in the 
     relevant industry . . . A rational relationship between 
     purpose and means ordinarily will not be found unless there 
     was a reasonable expectation that the nontax benefits would 
     at least be commensurate with the transaction costs.''
       Courts have likewise denied the tax benefits in cases 
     involving the misuse of seller-financed corporate-owned life 
     insurance (Winn-Dixie Stores, Inc. v. Commissioner, 113 T.C. 
     No. 21 (1999); American Electric Power Inc. v. United States 
     (S.D. Ohio, No. C2-99-724, Feb. 20, 2001)) and foreign tax 
     credits (Compaq Computer Corp. v.  Commissioner, 113 T.C. No. 
     17 (1999). However, see IES Industries v. United States, 2001 
     U.S. App. LEXIS 12881 (8th Cir. June 14, 2001) for a contrary 
     decision) in transactions the court determined were lacking 
     economic substance.
     Business purpose doctrine
       The courts use the business purpose doctrine (in 
     combination with economic substance) as part of a two-prong 
     test for determining whether a transaction should be 
     disregarded for tax purposes: (1) the taxpayer was motivated 
     by no business purpose other than obtaining tax benefits in 
     entering the transaction, and (2) the transaction lacks 
     economic substance (Rice's Toyota World, 752 F.2d 89, 91 
     (1985)). In essence a transaction will be respected for tax 
     purposes if it has ``economic substance or encouraged by 
     business or regulatory realities, is imbued with tax-
     independent consideration, and is not shaped solely by tax-
     avoidance features that have meaningless label attached.'' 
     (Frank Lyon Co. v. Commissioner, 435 U.S. 561 (1978)).


                        explanation of provision

     In general
       Under the bill, the economic substance doctrine is made 
     uniform and is enhanced. The bill provides that in applying 
     the economic substance doctrine, a transaction will be 
     treated as having economic substance only if the transaction 
     changes in a meaningful way (apart from Federal income tax 
     consequences) the taxpayer's economic position, and the 
     transaction has a substantial nontax purpose which would be 
     reasonably accomplished by the transaction. This aspect of 
     the bill clarifies the judicial application of the economic 
     substance doctrine and would overturn the results in certain 
     court cases, such as the result in IES Industries (see 
     above). The bill provides that if a profit potential is 
     relied on to demonstrate that a transaction results in a 
     meaningful change in economic position (and therefore has 
     economic substance), the present value of the reasonably 
     expected pre-tax profit must be substantial in relation to 
     the present value of the expected net tax benefits that would 
     be allowed if the transaction were respected. The potential 
     for a profit not in excess of a risk-free rate of return will 
     not satisfy the test. In determining pre-tax profit, fees and 
     other transaction expenses and foreign taxes are treated as 
     expenses.
       Under the bill, a taxpayer may rely on factors other than 
     profit potential for a transaction to have a meaningful 
     change in the taxpayer's economic position; the bill merely 
     sets forth a minimum profit potential if that test is relied 
     on to demonstrate a meaningful change in economic position.
       In applying the profit test to the lessor of tangible 
     property, depreciation and tax credits (such as the 
     rehabilitation tax credit and the low income housing tax 
     credit) are not to be taken into account in measuring tax 
     benefits. Thus, a traditional leveraged lease is not affected 
     by the bill to the extent it meets the present law standards.
       Except as the bill otherwise specifically provides, 
     judicial doctrines disallowing tax benefits for lack of 
     economic substance, business purpose, or similar reasons will 
     continue to apply as under present law.
     Transactions with tax-indifferent parties
       The bill also provides special rules for transactions with 
     tax-indifferent parties. For this purpose, a tax-indifferent 
     party means any person or entity not subject to Federal 
     income tax, or any person to whom an item would have no 
     substantial impact on its income tax liability, for example, 
     by reasons of its method of accounting (such as mark-to-
     market). Under these rules, the form of a financing 
     transaction will not be respected if the present value of the 
     tax deductions to be claimed is substantially in excess of 
     the present value of the anticipated economic returns to the 
     lender. Also, the form of a transaction with a tax-
     indifferent party in excess of the tax-indifferent party's 
     economic gain or income or if it results in the shifting of 
     basis on account of overstating the income or gain of the 
     tax-indifferent party.


                             effective date

       The provision applies to transactions after the date of 
     enactment.

                          TITLE II--PENALTIES

        1. Modifications to accuracy-related penalty (sec. 201)


                              present law

       A 20-percent penalty applies to any portion of an 
     underpayment of income tax required to be shown on a return 
     to the extent that it is attributable to negligence or to 
     a substantial understatement of income tax. For purposes 
     of the penalty, an understatement is considered 
     ``substantial'' if it exceeds the greater of (1) 10 
     percent of the tax required to be shown on the return, or 
     (2) $5,000 ($10,000 in the case of a C corporation that is 
     not a personal holding company).
       The penalty does not apply if there was reasonable cause 
     for the understatement and the taxpayer acted in good faith 
     with respect to the understatement. In addition, except in 
     the case of a tax shelter, the substantial understatement 
     penalty does not apply if there was substantial authority for 
     the tax treatment of an item or if there was adequate 
     disclosure of the item and reasonable basis for the treatment 
     of the item. In the case of a tax shelter of a noncorporate 
     taxpayer, the substantial authority exception applies if the 
     taxpayer reasonably believed that the claimed treatment was 
     more likely than not the proper treatment. For this purpose, 
     a tax shelter means a partnership or other entity, plan or 
     arrangement, if a significant purpose of the entity, plan or 
     arrangement was the avoidance or evasion of Federal income 
     tax.


                        explanation of provision

     Enhanced penalty for disallowed noneconomic tax attributes
       The bill increases the accuracy-related penalty for 
     underpayments attributable to disallowed noneconomic tax 
     attributes. The rate of the penalty is increased to 40 
     percent unless the taxpayer discloses to the Secretary of the 
     Treasury or his delegate such information as the Secretary 
     shall prescribe with respect to such transaction. No 
     exceptions (including the reasonable cause exception) to the 
     imposition of the penalty will apply in the case of 
     disallowed noneconomic tax attributes.
       The enhanced penalty applies to the extent that the 
     underpayment is attributable to the disallowance of any tax 
     benefit because of a lack of economic substance (as provided 
     by the bill), because the transaction was not respected under 
     the rules added by the bill relating to transactions with 
     tax-indifferent parties, because of a lack of business 
     purpose or because the form of the transaction does not 
     reflect its substance, or because of any similar rule of law 
     disregarding meaningless transactions whose undertaking were 
     not in the furtherance of a legitimate business or economic 
     purpose.
     Modifications to substantial understatement penalty
       The bill makes several modifications to the substantial 
     understatement penalty. First, the bill treats an 
     understatement as substantial if it exceeds $500,000, 
     regardless of whether it exceeds 10 percent of the taxpayer's 
     total tax liability. Second, the bill treats tax shelters of 
     noncorporate taxpayers the same as the present law treatment 
     of corporate tax shelter; thus the exception from the penalty 
     for substantial authority (under section 6662(b)(2)(B)(i)) 
     will not apply.

[[Page H4026]]

     Third, the bill provides that the determination of the amount 
     of underpayment shall not be less than the amount that would 
     be determined if the items not attributable to a tax shelter 
     or to a transaction having disallowed noneconomic tax 
     attributes (discussed below) were treated as being correct. 
     Finally, an underpayment may not be reduced by reason of 
     filing an amended return after the taxpayer is first 
     contacted by the IRS regarding the examination of its return.


                             effective date

       The enhanced penalty applies to transactions after the date 
     of enactment. The modifications to the substantial 
     understatement penalty apply to taxable years ending after 
     the date of enactment.

                    2. Promoter penalties (sec. 202)


                              present law

       Any person who (1) organizes any partnership, entity, plan, 
     or arrangement, or (2) participates in the sale of any 
     interest in such a structure, and makes or furnishes a 
     statement (or causes another to make or furnish a statement) 
     with respect to any material tax benefit attributable to the 
     arrangement or structure that the person knows (or has reason 
     to know) is false or fraudulent is subject to a penalty. The 
     amount of the penalty is equal to the lesser of (1) $1,000 or 
     (2) 100 percent of the gross income derived by the promoter 
     from each activity (sec. 6700(a)). There is no statute of 
     limitations on the assessment of a penalty under section 6700 
     (Capozzi v. Commissioner, 980 F.2d 872 (2nd Cir. 1992); Lamb 
     v. Commissioner, 977 F.2d 1296 (8th Cir. 1992)).


                        explanation of provision

       The bill imposes a penalty on any substantial promoter of a 
     tax avoidance strategy if the strategy fails to satisfy any 
     of the judicial doctrines that may be applied in the 
     disallowance of noneconomic tax attributes (as described in 
     section 201 of the bill).
       A tax avoidance strategy means any entity, plan, 
     arrangement, or transaction a significant purpose of which is 
     the avoidance or evasion of Federal income tax. A substantial 
     promoter means any person (and any related person) who 
     participates in the promotion, offering, or sale of a tax 
     avoidance strategy to more than one potential participant and 
     for which the person expects to receive aggregate fees in 
     excess of $500,000.
       The IRS can assess a penalty on a promoter independent of 
     the taxpayer's audit, and the promoter can challenge the 
     penalty prior to a final determination with respect to the 
     taxpayer's disallowed tax benefit. The promoter can challenge 
     the imposition of the penalty in court independent of any 
     litigation with the taxpayer.
       The amount of the penalty equals 100 percent of the gross 
     income derived (or to be derived) by the promoter from the 
     strategy. This would include contingent fees, rebated fees, 
     and fees that are structured as an interest in the 
     transaction. Coordination rules are provided to avoid the 
     imposition of multiple penalties on promoters (i.e., the 
     penalty does not apply if a penalty is imposed on the 
     substantial promoter for promoting an abusive tax shelter 
     under present-law section 6700(a)). As under present-law 
     section 6700, there is not statute of limitations on the 
     assessment of the penalty.
       The bill also increases the present-law promoter penalty to 
     the greater of $1,000 or 100 percent of the gross income 
     derived (or to be derived) by the promoter from each 
     activity.


                             effective date

       The penalty for promoting tax avoidance strategies applies 
     with respect to any interest in a tax avoidance strategy that 
     is offered after the date of enactment. The increase in the 
     present-law penalty for promoting abusive tax shelters 
     applies to transactions after the date of enactment.

     3. Modifications to the aiding and abetting penalty (sec. 203)


                              present law

       A penalty is imposed on any person who aids, assists in, 
     procures, or advises with respect to the preparation or 
     presentation of any return or other document if (1) the 
     person knows (or has reason to believe) that the return or 
     other document will be used in connection with any material 
     matter arising under the tax laws, and (2) the person knows 
     that if the portion of the return or other document were so 
     used, an understatement of the tax liability would result 
     (sec. 6701). An exception is provided for individuals who 
     furnish mechanical assistance with respect to a document.
       The amount of the penalty is $1,000 for each return or 
     other document ($10,000 in the case of returns and documents 
     relating to the tax of a corporation).


                        explanation of provision

       The bill modifies the aiding and abetting penalty as it 
     relates to any person who offers an opinion regarding the tax 
     treatment of an item attributable to a tax shelter or any 
     other transaction involving a noneconomic tax attribute.
       Under the bill, a penalty is imposed on any person who is 
     involved in the creation, sale, implementation, management, 
     or reporting of a tax shelter, or of any partnership, entity, 
     plan or arrangement that involves the disallowance of a 
     noneconomic tax attribute (as described in section 201 of the 
     bill), but only if (1) the person opines, advises, or 
     indicates that the taxpayer's treatment of an item 
     attributable to such a transaction would more likely than not 
     prevail or not give rise to a penalty, and (2) the opinion, 
     advice, or indication is unreasonable. If the opinion 
     involved a higher standard (for example, a `should opinion), 
     and the opinion was unreasonable, then the person who offered 
     the opinion would be subject to the proposed penalty. An 
     opinion would be considered unreasonable if a reasonably 
     prudent and careful person under similar circumstances would 
     not have offered such an opinion.
       The amount of the penalty is 100 percent of the gross 
     proceeds derived by the person from the transaction. In 
     addition, upon the imposition of this penalty, the Secretary 
     is required to notify the IRS Director of Practice and any 
     appropriate State licensing authority of the penalty and the 
     circumstances under which it was imposed. Also, the Secretary 
     must publish the identity of the person and the fact that the 
     penalty was imposed on the person.


                             effective date

       The provision applies to transactions entered into after 
     date of enactment.

    4. Penalty for failure to maintain list of investors (sec. 204)


                              Present Law

       Any person who organizes a potentially abusive tax shelter 
     or who sells an interest in such a shelter must maintain a 
     list that identifies each person who purchased an interest in 
     the shelter (sec. 6112). A potentially abusive tax shelter 
     means (i) any tax shelter with respect to which registration 
     is required under section 6111, and (ii) any entity, 
     investment plan or arrangement, or any other plan or 
     arrangement that is of a type that has a potential for tax 
     avoidance or evasion and that is designated in regulations 
     issued by the Secretary. The investor list must include the 
     name, address and taxpayer identification number of each 
     purchaser, as well as any other information that the 
     Secretary may require. The lists must generally be maintained 
     for seven years.
       The penalty for any failure to meet any of the requirements 
     of this provision if $50 for each person with respect to whom 
     there is a failure, up to a maximum of $50,000 in any 
     calendar year. The penalty is not imposed where the failure 
     is due to reasonable cause and not due to willful neglect. 
     This penalty is in addition to any other penalty provided by 
     law.


                        explanation of provision

       The bill increases the penalty for the failure to maintain 
     investor lists in connection with the sale of interests in a 
     tax shelter (as defined in section 6662(d)(2)(C)(iii) or in 
     any partnership, entity, plan or arrangement that involves 
     the disallowance of a noneconomic tax attribute (as described 
     in section 201 of the bill). In these cases, the penalty is 
     equal to the greater of 50 percent of the gross proceeds 
     derived (or to be derived) from each person with respect to 
     which there was a failure (with no maximum limitation).


                             effective date

       The increased penalty applies to transactions entered into 
     after date of enactment.

 5. Penalty for failure to disclose reportable transactions (sec. 205)


                              present law

       A taxpayer must file a return or statement in accordance 
     with the forms and regulations prescribed by the Secretary 
     (including any required information). (See Section 6011). In 
     February 2000, the Treasury Department issued temporary and 
     proposed regulations under section 6011 that require 
     corporate taxpayers to include in their tax return 
     information with respect to certain large transactions with 
     characteristics that may be indicative of tax shelter 
     activity.
       Specifically, the regulations require the disclosure of 
     information with respect to ``reportable transactions.'' 
     There are two categories of reportable transactions. The 
     first category covers transactions that are the same as (or 
     substantially similar to) tax avoidance transactions the IRS 
     has identified in published guidance (a ``listed'' 
     transaction) and that are expected to reduce a corporation's 
     income tax liability by more than $1 million in any year or 
     by more than $2 million for any combination of years. (Treas. 
     Reg. sec. 1.6011-4T(b)(2) and -(b)(4)). The second category 
     covers transactions that are expected to reduce a 
     corporation's income tax liability by more than $5 million in 
     any single year or $10 million for any combination of years 
     and that exhibit at least two of six enumerated 
     characteristics. (Treas. Reg. sec. 1.6011-4T(b)(3) and -
     (b)(4)).
       There is no penalty for failing to adequately disclose a 
     reportable transaction. However, the nondisclosure could 
     indicate that the taxpayer has not acted in ``good faith'' 
     with respect to the underpayment. (T.D.8877).


                        explanation of provision

       The bill imposes a penalty for failing to disclose the 
     required information with respect to a reportable transaction 
     (unless the failure was due to reasonable cause and not due 
     to willful neglect). The amount of the penalty is equal to 
     the greater of (1) five percent of any increase in Federal 
     income tax which results from a difference between the 
     taxpayer's treatment of the items attributable to the 
     reportable transaction and the proper tax treatment of such 
     items, or (2) $100,000. If the failure to disclose relates to 
     a listed transaction (or a substantially similar 
     transaction), the percentage rate is increased to 10 percent 
     of any increase in tax from the transaction (or, if greater, 
     $100,000).

[[Page H4027]]

       The penalty for failure to disclose information with 
     respect to a reportable transaction is in addition to any 
     accuracy-related penalty that may be imposed on the taxpayer.


                             effective date

       The provision applies to transactions entered into after 
     date of enactment.

   6. Registration of certain tax shelters offered to non-corporate 
                        participants (sec. 206)


                              present law

       A promoter of a confidential corporate tax shelter is 
     required to register the tax shelter with the IRS (sec. 
     6111(d)). Registration is required not later than the next 
     business day after the day when the tax shelter is first 
     offered to potential users. For this purpose, a confidential 
     corporate tax shelter includes any entity, plan, arrangement 
     or transaction (1) a significant purpose of which is the 
     avoidance or evasion of Federal income tax for a direct or 
     indirect participant that is a corporation, (2) that is 
     offered to any potential participant under conditions of 
     confidentiality, and (3) for which the tax shelter promoters 
     may receive aggregate fees in excess of $100,000.
       The penalty for failing to timely register a confidential 
     corporate tax shelter is the greater of $10,000 or 50 percent 
     of the fees payable to any promoter with respect to offerings 
     prior to the date of late registration unless due to 
     reasonable cause (sec. 6707(a)(3)). Intentional disregard of 
     the requirement to register increases the 50-percent penalty 
     to 75 percent of the applicable fees.


                        explanation of provision

       The bill deletes the requirement that a direct or indirect 
     participant must be a corporation. Thus, the provision 
     extends the present-law registration requirements to include 
     a promoter of any confidential tax shelter (regardless of the 
     participant). The penalty for failing to timely register a 
     confidential tax shelter remains unchanged (i.e., the greater 
     of $10,000 or 50 percent of the fees payable to any promoter 
     with respect to offerings prior to the date of late 
     registration).


                             Effective Date

       The provision applies to any tax shelter interest that is 
     offered to potential participants after the date of 
     enactment.

 TITLE III--LIMITATIONS ON IMPORTATION AND TRANSFER OF BUILT-IN LOSSES

       1. Limitation on importation of built-in losses (sec. 301)


                              present law

       Under present law, the basis of property received by a 
     corporation in a tax-free incorporation, reorganization, or 
     liquidation of a subsidiary corporation is the same as the 
     adjusted basis in the hands of the transferor, adjusted for 
     gain or loss recognized by the transferor (Secs. 334(b) and 
     362(a) and (b)). If a person or entity that is not subject to 
     U.S. income tax transfers property with an adjusted basis 
     higher than its fair market value to a corporation that is 
     subject to U.S. income tax, the ``built-in'' loss would be 
     imported into the U.S. tax system, and the transferee 
     corporation would be able to recognize the loss in computing 
     its U.S. income tax.


                        explanation of provision

       The bill provides that if a net built-in loss is imported 
     into the U.S. in a tax-free organization or reorganization 
     from persons not subject to U.S. tax, the basis of all 
     properties so transferred will be their fair market value. A 
     similar rule will apply in the case of the tax-free 
     liquidation by a domestic corporation of its foreign 
     subsidiary.
       Under the bill, a net built-in loss is considered imported 
     into the U.S. if the aggregate adjusted bases of property 
     received by a transferee corporation subject to U.S. tax from 
     persons not subject to U.S. tax with respect to the property 
     exceeds the fair market value of the properties transferred. 
     Thus, for example, if in a tax-free incorporation, some 
     properties are received by a corporation from U.S. persons, 
     and some properties are relieved from foreign persons not 
     subject to U.S. tax, this provision applies to the aggregate 
     properties relieved from the foreign persons. In the case of 
     a transfer by a partnership (either domestic or foreign), 
     this provision applies as if the properties had been 
     transferred by each of the partners in proportion to their 
     interests in the partnership.


                             Effective Date

       The provision applies to transactions after the date of 
     enactment.

        2. Disallowance of partnership loss transfers (sec. 302)


                              present law

     Contributions of property
       Under present law, if a partner contributes property to a 
     partnership, generally no gain or loss is recognized to the 
     contributing partner at the time of contribution (Sec. 721). 
     The partnership takes the property at an adjusted basis equal 
     to the contributing partner's adjusted basis in the 
     property (Sec. 723). The contributing partner increases 
     its basis in its partnership interest by the adjusted 
     basis of the contributed property (Sec. 722). Any items of 
     partnership income, gain, loss and deduction with respect 
     to the contributed property is allocated among the 
     partners to take into account any built-in gain or loss at 
     the time of the contribution (Sec. 704(c)(1)(A)). This 
     rule is intended to prevent the transfer of built-in gain 
     or loss from the contributing partner to the other 
     partners by generally allocating items to the 
     noncontributing partners based on the value of their 
     contributions and by allocating to the contributing 
     partner the remainder of each item. (Note: where there is 
     an insufficient amount of an item to allocate to the 
     noncontributing partners, Treasury regulations allow for 
     reasonable allocations to remedy this insufficiency. 
     Treas. Reg. sec. 1-704(c) and (d)).
       If the contributing partner transfer its partnership 
     interest, the built-in gain or loss will be allocated to the 
     transferee partner as it would have been allocated to the 
     contributing partner (Treas. Reg. sec. 1.704-3(a)(7). If the 
     contributing partner's interest is liquidated, there is no 
     specific guidance preventing the allocation of the built-in 
     loss to the remaining partners. Thus, it appears that losses 
     can be ``transferred'' to other partners where the 
     contributing partner no longer remains a partner.
     Transfers of partnership interests
       Under present law, a partnership does not adjust the basis 
     of partnership property following the transfer of a 
     partnership interest unless the partnership has made a one-
     time election under section 754 to make basis adjustments 
     (Sec. 743(a)). If an election is in effect, adjustments are 
     made with respect to the transferee partner in order to 
     account for the difference between the transferee partner's 
     proportionate share of the adjusted basis of the partnership 
     property and the transferee's basis in its partnership 
     interest (Sec. 743(b)). These adjustments are intended to 
     adjust the basis of partnership property to approximate the 
     result of a direct purchase of the property by the transferee 
     partner. Under these rules, if a partner purchases an 
     interest in a partnership with an existing built-in loss and 
     no election under section 754 in effect, the transferee 
     partner may be allocated a share of the loss when the 
     partnership disposes of the property (or depreciates the 
     property).
     Distributions of partnership property
       With certain exceptions, partners may receive distributions 
     of partnership property without recognition of gain or loss 
     by either the partner or the partnership (Sec. 731 (a) and 
     (b)). In the case of a distribution in liquidation of a 
     partner's interest, the basis of the property distributed in 
     the liquidation is equal to the partner's adjusted basis in 
     its partnership interest (reduced by any money distributed in 
     the transaction) (Sec. 732(b)). In a distribution other than 
     in liquidation of a partner's interest, the distributee 
     partner's basis in the distributed property is equal to the 
     partnership's adjusted basis in the property immediately 
     before the distribution, but not to exceed the partner's 
     adjusted basis in the partnership interest (reduced by any 
     money distributed in the same transaction )(Sec. 734(a)).
       Adjustments to the basis of the partnership's undistributed 
     properties are not required unless the partnership has made 
     the election under section 754 to make basis adjustments 
     (sec. 734(a)). If an election is in effect under section 754, 
     adjustments are made by a partnership to increase or decrease 
     the remaining partnership assets to reflect any increase or 
     decrease in the adjusted basis of the distributed properties 
     in the hands of the distributee partner (Sec. 734(b)). To the 
     extent the adjusted basis of the distributed properties 
     increases (or loss is recognized) the partnership's adjusted 
     basis in its properties is decreased by a like amount; 
     likewise, to the extent the adjusted basis of the 
     distributed properties decrease (or gain is recognized), 
     the partnership's adjusted basis in its properties is 
     increased by a like amount. Under these rules, a 
     partnership with no election in effect under section 754 
     may distribute property with an adjusted basis lower than 
     the distributee partner's proportionate share of the 
     adjusted basis of all partnership property and leave the 
     remaining partners with a smaller net built-in gain or a 
     larger net built-in loss than before the distribution.


                        description of provision

     Contributions of property
       Under the bill, a built-in loss may be taken into account 
     only by the contributing partner and not by other partners. 
     Except as provided in regulations, in determining the amount 
     of items allocated to partners other than the contributing 
     partner, the basis of the contributed property shall be 
     treated as the fair market value on the date of contribution. 
     Thus, if the contributing partner's partnership interest is 
     transferred or liquidated, the partnership's adjusted basis 
     in the property will be based on its fair market value at the 
     date of contribution, and the built-in loss will be 
     eliminated. (Note: it is intended that a corporation 
     succeeding to attributes of the contributing corporate 
     partner under section 381 shall be treated in the same manner 
     as the contributing partner).
     Transfers of partnership interests
       The bill provides that the basis adjustment rules under 
     section 743 will be required in the case of the transfer of a 
     partnership interest with respect to which there is a 
     substantial built-in loss. For this purpose, a substantial 
     built-in loss exists where the transferee partner's 
     proportionate share of the adjusted basis of the partnership 
     property exceeds 110 percent of the transferee partner's 
     basis in the partnership interest in the partnership. Thus, 
     for example, assume that partner A sells his partnership 
     interest to B for its fair market value of $100. Also assume 
     that B's proportionate share of the adjusted basis of the 
     partnership assets is $120. Under the bill, section 743(b) 
     will apply and require a $20 decrease in the adjusted basis 
     of the partnership assets with respect to B, so that B

[[Page H4028]]

     would recognize no gain or loss if the partnership 
     immediately sold all of its assets for their fair market 
     value.
     Distribution of partnership property
       The bill provides that the basis adjustments under section 
     734 are required in the case of a distribution with respect 
     to which there is a substantial basis reduction. A 
     substantial basis reduction means a downward adjustment to 
     the partnership assets (had a section 754 election been in 
     effect) greater than 10 percent of the adjusted basis of the 
     assets.
       Thus, for example, assume that A and B each contributed $25 
     to a newly formed partnership and C contributed $50 and that 
     the partnership purchased LMN stock for $30 and XYZ stock for 
     $70. Assume that the value of each stock declined to $10. 
     Assume LMN stock is distributed to C in liquidation of its 
     partnership interest. As under present law, the basis of LMN 
     stock in C's hands if $50. C would recognize a loss of $40 if 
     the LMN stock were sold for $10.
       Under the bill, there is a substantial basis adjustment 
     because the $20 increase in the adjusted basis of asset 1 
     (sec. 734(b)(2)(B)) is greater than 10 percent of the 
     adjusted basis of partnership assets of $70. Thus, the 
     partnership would be required to decrease the basis of XYZ 
     stock (under section 734(b)(2)) by $20 (the amount by which 
     the basis LMN stock was increased), leaving a basis of $50. 
     If the XYZ stock were then sold by the partnership for $10, A 
     and B would each recognize a loss of $20.


                             effective date

       The provision applies to contributions, transfers, and 
     distributions (as the case may be) after date of enactment.

                          ____________________