[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11612]


[[Page Unknown]]

[Federal Register: May 13, 1994]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8539]
RIN 1545-A078

 

Application of Section 514(c)(9)(E) of the Internal Revenue Code 
to Partnerships in Which One or More (but not all) of the Partners Are 
Qualified Organizations Within the Meaning of Section 514(c)(9)(C)

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations relating to the 
application of section 514(c)(9)(E) of the Internal Revenue Code to 
partnerships in which one or more (but not all) of the partners are 
qualified tax-exempt organizations within the meaning of section 
514(c)(9)(C). These organizations include educational organizations 
described in section 170(b)(1)(A)(ii) and their affiliated support 
organizations, and qualified trusts described in section 401. The final 
regulations provide rules governing the application of section 
514(c)(9)(E) of the Internal Revenue Code (Code). Section 514(c)(9)(E) 
was added to the Code by the Omnibus Budget Reconciliation Act of 1987, 
and was amended by the Technical and Miscellaneous Revenue Act of 1988. 
The final regulations are necessary to provide affected partnerships 
and their partners with the guidance they need to comply with the 
applicable tax law.

EFFECTIVE DATE: May 13, 1994.
    For dates of applicability of these regulations, see ``Effective 
dates'' under SUPPLEMENTARY INFORMATION in the preamble.

FOR FURTHER INFORMATION CONTACT: Deane M. Burke at (202) 622-3080 (not 
a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    This document amends 26 CFR part 1, which provides rules governing 
the application of section 514(c)(9)(E) of the Internal Revenue Code of 
1986 (Code), as amended. Section 514(c)(9)(E) was added to the Code by 
section 10214 of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 
100-203, and was amended by section 2004(h) of the Technical and 
Miscellaneous Revenue Act of 1988, Pub. L. 100-647.
    On June 25, 1990, Notice 90-41, 1990-1 C.B. 350, was published in 
the Internal Revenue Bulletin to provide interim guidance regarding the 
application of section 514(c)(9)(E) of the Code and to request 
comments. On December 30, 1992, the IRS published a notice of proposed 
rulemaking in the Federal Register (57 FR 62266) (the proposed 
regulations) regarding section 514(c)(9)(E). The preamble to that 
notice contains an explanation to the proposed rules.
    The IRS received written comments on the proposed regulations, but 
cancelled a public hearing scheduled for March 31, 1993, because no one 
requested to testify. After consideration of all the public comments on 
the proposed regulations, the regulations are adopted as revised by 
this Treasury decision.

Explanation of Provisions

I. Statutory Provisions

    Section 511 of the Code provides that tax-exempt organizations are 
generally taxable on their unrelated business taxable income. Section 
514(a) provides that unrelated business taxable income includes a 
specified percentage of the gross income derived from debt-financed 
property described in section 514(b). Section 514(c)(9) provides an 
exception for income derived from certain debt-financed investments in 
real property by qualified organizations. Under section 514(c)(9)(C), 
qualified organizations include educational organizations described in 
section 170(b)(1)(A)(ii) and their affiliated support organizations, 
and qualified trusts described in section 401.
    If a qualified organization (QO) invests in debt-financed real 
property through a partnership in which one or more (but not all) of 
the partners are qualified organizations, the QO is eligible for the 
exception provided in section 514(c)(9) only if the partnership 
satisfies an additional requirement. Either each allocation to a 
partner that is a qualified organization must be a qualified allocation 
within the meaning of section 168(h)(6), or the partnership must 
satisfy the requirements of section 514(c)(9)(E). These regulations 
provide rules governing the application of section 514(c)(9)(E).

II. Overview of the Regulations

    To satisfy the requirements of section 514(c)(9)(E), a partnership 
must establish that the allocation of items to any partner that is a QO 
cannot result in that partner having a percentage share of overall 
partnership income for any taxable year greater than that partner's 
percentage share of overall partnership loss for the taxable year for 
which that partner's percentage loss share will be the smallest (that 
partner's fractions rule percentage). This requirement, commonly 
referred to as the fractions rule, must be satisfied both on a 
prospective basis and on an actual basis for each taxable year of the 
partnership.
    The fractions rule is applied on an overall partnership basis. 
Therefore, if partnership allocations to one QO partner fail to satisfy 
the requirements of the fractions rule, that partner, and other QO 
partners in the partnership, are subject to the debt-financed property 
rules, even if the allocations to those other QO partners would 
otherwise have complied with the requirements of the fractions rule.
    A second requirement under section 514(c)(9)(E) is that each 
partnership allocation must either have substantial economic effect or 
(in the case of certain allocations that cannot have economic effect) 
otherwise appropriately comply with the requirements of the regulations 
under section 704(b).
    For purposes of the fractions rule, overall partnership income is 
the amount by which the aggregate items of partnership income and gain 
for the taxable year exceed the aggregate items of partnership loss and 
deduction for the year. Overall partnership loss is the amount by which 
the aggregate items of partnership loss and deduction for the taxable 
year exceed the aggregate items of partnership income and gain for the 
year. In general, all items of partnership income, gain, loss, and 
deduction that increase or decrease the partners' capital accounts 
under Sec. 1.704-1(b)(2)(iv) are taken into account in computing 
overall partnership income or loss.
    The proposed regulations exclude allocations of certain items--
generally by disregarding those items in computing overall partnership 
income or loss and the partners' allocable shares of overall 
partnership income or loss. In some situations, however, items are 
disregarded only until an allocation is actually made. The purpose of 
the exclusions is to allow ordinary economic business allocations (such 
as preferred returns), to avoid technical violations arising due to the 
requirements of section 704(b), and to avoid foot-faults.

III. Public Comments and Clarifying Changes

A. Manner in Which the Fractions Rule Is Applied
    One commentator requested clarification regarding the prospective 
application of the fractions rule, especially with respect to 
allocations that are taken into account only when an allocation is 
made. The final regulations clarify that a partnership generally does 
not qualify for the fractions rule exception for any taxable year of 
its existence unless it satisfies the fractions rule--both on a 
prospective and actual basis--for every year. The regulations also 
clarify that if the partnership violates the fractions rule by reason 
of an allocation that the regulations provide is ``disregarded'' or 
``not taken into account'' until an actual allocation is made, the 
partnership is treated (subject to the anti-abuse rule) as violating 
the fractions rule only for the taxable year of that actual allocation 
and subsequent taxable years. The final regulations also add an example 
illustrating this wait-and-see approach.
B. Section 704(c) Allocations
    The proposed regulations provide that tax items allocable under 
section 704(c) (or Sec. 1.704-1(b)(2)(iv)(f)(4)), are not included in 
computing overall partnership income or loss. The final regulations 
clarify that those types of tax allocations may nonetheless be relevant 
in determining if the partnership violates the anti-abuse rule.
C. Exclusion of Reasonable Preferred Returns and Guaranteed Payments
    Under the exception for reasonable preferred returns, items of 
income and gain allocated with respect to a reasonable preferred return 
for capital are disregarded in computing overall partnership income or 
loss for purposes of the fractions rule. Reasonable guaranteed payments 
for capital or services also are disregarded. However, to qualify for 
the exception, the income allocation (or the deduction of the 
guaranteed payment) generally must not precede the making of the 
related cash payment.
    The final regulations adopt a commentator's recommendation that the 
exception for reasonable preferred returns should apply not only to 
allocations effected with items of income or gain, but also to 
allocations effected with overall partnership income. In implementing 
this change, the regulations refer to ``an allocation of what would 
otherwise be overall partnership income.'' (This technical refinement 
also was made to several parts of the regulation that previously 
referred to allocations of overall partnership income.) This is 
necessary because the exclusion of an allocated item from the 
computation of overall partnership income or loss for purposes of the 
fractions rule means that the item is not overall partnership income or 
overall partnership loss.
    Although the exception for reasonable preferred returns contained 
in the proposed regulations applies only to those allocations made to a 
QO, the final regulations apply the exception to all partners. Without 
this change, a partnership that paid a reasonable preferred return to 
both its QO and taxable partners arguably could disregard the 
allocations to its QO partners in computing overall partnership income 
or loss, but at the same time, take the corresponding allocations to 
its taxable partners into account in computing overall partnership 
income or loss. Although the anti-abuse rule of the proposed 
regulations does not permit the excessive allocation of income or gain 
to the QO partners that would result if this argument were accepted, 
the final regulations clarify this issue. A similar change was not 
called for with respect to guaranteed payments because guaranteed 
payments to taxable partners automatically are excluded from overall 
partnership income or loss.
    The proposed regulations generally provide that a material 
distribution is a return of capital if it is not attributable to the 
partnership's cash flow from its business operations. Concern was 
expressed that under this rule certain returns on capital might 
inappropriately be characterized as a return of capital. There also was 
a separate concern that this rule inappropriately implied that 
distributions of operating cash flow would generally not be respected 
as a return of capital.
    To address these concerns and to reflect that capital may be 
returned from a number of different sources, the final regulations 
provide that a designation of distributions in a written partnership 
agreement generally will be respected in determining a partner's 
unreturned capital so long as the designation is economically 
reasonable. Although the regulations do not specify when the 
designation must be made, timing may be relevant in determining whether 
the designation is reasonable.
    Some commentators characterized the cash payment requirement as a 
significant limitation on the exception for preferred returns and 
guaranteed payments. The principal objection voiced on this point is 
that requiring a cash payment may prevent partners from achieving their 
economic deal. Since real estate partnerships often lack free cash in 
their early years, the money partners are forced to rely on the 
partnership having sufficient income in subsequent years to ultimately 
provide them with their preferred return.
    The IRS and Treasury Department are concerned that if the 
requirement were eliminated, partnerships might attempt to optimize 
their overall economics by allocating significant amounts of 
partnership income and gain to QOs in the form of preferred returns and 
guaranteed payments. It is believed that in many instances this would 
be a departure from the normal commercial practice followed by 
partnerships in which the money partners are generally subject to 
income tax. Taxable partners generally are not willing to bear the tax 
burden attributable to income allocations that precede the 
corresponding distribution of cash by many years. A suggestion that 
partnerships be required to compound allocated but unpaid amounts could 
exacerbate the problem. Compounding would increase the amount of 
undistributed income or gain allocated to the tax-exempt partners.
    The final regulations retain the cash payment requirement. However, 
the regulations also provide more explicitly that the normal rules of 
accrual accounting are overridden with respect to the deduction of 
reasonable guaranteed payments. The deduction is delayed until the 
partnership taxable year in which the payment is made in cash. 
(Similarly, the inclusion of the guaranteed payment in the QO's income 
is delayed because the regulation does not change the existing rule 
under Sec. 1.707-1(c) that a guaranteed payment is included in income 
in the same taxable year it is deducted by the partnership.) For 
partnerships that are concerned about the availability of sufficient 
future income to ensure the payment of a preferred return, this 
clarification may help them use guaranteed payments to achieve greater 
assurance that the partnership ultimately will pay a return on capital.
D. Chargebacks and Offsets
    The final regulations continue to provide exceptions for four types 
of chargebacks and offsets: (1) Allocations that charge back prior 
disproportionately large allocations (i.e., in excess of a qualified 
organization's fractions rule percentage) of overall partnership loss 
to a qualified organization, or prior disproportionately small 
allocations of overall partnership income to a qualified organization; 
(2) minimum gain chargebacks of nonrecourse deductions; (3) chargebacks 
of partner nonrecourse deductions (and of compensating allocations of 
recourse deductions to another partner); and (4) qualified income 
offsets. The final regulations also continue to provide that 
allocations of minimum gain that may be made with respect to 
distributions of proceeds of nonrecourse liabilities are taken into 
account only to the extent an allocation is actually made (to avoid 
technical violations of the fractions rule that would otherwise arise 
from including a minimum gain chargeback provision in a partnership 
agreement). In addition, a limited new chargeback exception (described 
in greater detail below) applies to allocations of minimum gain 
attributable to certain distributions of proceeds of nonrecourse 
liabilities.
    A suggestion that all chargebacks be permitted without regard to 
whether the initial allocation was ``disproportionate'' was carefully 
considered and rejected. A principal consideration in rejecting the 
proposal was that it would represent a significant departure from the 
mechanical approach contained in the proposed regulations, which, 
overall, is relatively simple for taxpayers to apply and for the IRS to 
administer and enforce. Accordingly, the final regulations retain the 
basic approach of the proposed regulations, but add a number of 
technical and clarifying changes. In addition, two examples have been 
added to further clarify the operation of these provisions.
    The final regulations clarify that disproportionate allocations 
need not be reversed in full, but may also be reversed in part. In 
addition, the provision requiring that an initial allocation of less 
than the entire overall partnership income or loss consist of a pro 
rata portion of each item of partnership income, gain, loss, or 
deduction now excepts from the pro rata requirement nonrecourse 
deductions and certain other allocations relating to nonrecourse debt. 
Absent this change, the disproportionate chargeback provisions might 
have overly limited applicability, because real estate partnerships 
typically have borrowed on a nonrecourse basis.
    One commentator accurately noted that the exception for allocations 
of overall partnership loss (or, more precisely, what would otherwise 
be overall partnership loss) that charge back disproportionately small 
allocations of overall partnership income to a QO partner is somewhat 
confusing and counterintuitive. Part of the confusion arises because 
the Code refers to chargebacks of disproportionately large income 
allocations to taxable partners. However, the equivalent approach taken 
in the regulations is desirable because it avoids the need to determine 
the analog of a fractions rule percentage for taxable partners and 
because it is simpler to apply to partnerships with more than one QO 
partner. Accordingly, an example has been added to the final 
regulations, as requested by the commentator, to illustrate a 
qualifying allocation of overall partnership loss that charges back a 
disproportionately small allocation of overall partnership income to a 
QO partner.
    The final regulations revise the formula approach in the proposed 
regulations for determining the extent to which a minimum gain 
chargeback is attributable to nonrecourse deductions (or partner 
nonrecourse deductions) to properly interact with the Sec. 1.704-2 
regulations governing partnership minimum gain and partner nonrecourse 
debt minimum gain. The Sec. 1.704-2 regulations effect minimum gain 
chargebacks on the basis of the partners' percentage shares of minimum 
gain. Accordingly, the final regulations require partnerships to 
determine--in a reasonable and consistent manner--the extent to which a 
partner's percentage share of the partnership minimum gain is 
attributable to nonrecourse deductions. The final regulations also 
provide, by way of example, a formula for determining in certain 
circumstances the extent to which a partner's percentage share of 
minimum gain is attributable to nonrecourse deductions. Although the 
final regulations do not explicitly so provide, a partnership that 
computes the extent to which minimum gain is attributable to 
nonrecourse deductions, also computes, by default, the extent to which 
minimum gain is attributable to prior distributions of proceeds of 
nonrecourse liabilities.
    There is a limited new chargeback exception that applies if QO 
partners initially contribute capital used to purchase depreciable real 
property and are allocated the resulting depreciation deductions. If 
the partnership later borrows money on a nonrecourse basis (using that 
depreciable real property as security) and distributes the proceeds to 
the QO partners as a return of capital, the resulting minimum gain 
chargeback is permanently disregarded in computing overall partnership 
income or loss for purposes of the fractions rule. Without a special 
rule, the distribution of nonrecourse proceeds and the resulting 
minimum gain chargeback might cause a violation of the fractions rule 
in the year the minimum gain is triggered. In effect, the new exception 
allows the partnership to apply the general chargeback rule for 
nonrecourse deductions (rather than the general chargeback rule for 
nonrecourse distributions) even though the initial depreciation 
deductions allocated to the QO partners were not nonrecourse.
    This new rule is narrow. It provides complete relief to 
partnerships only to the extent the amount of the partnership 
depreciation deduction for the property for the year does not exceed 
the overall partnership loss for the year. The reason for making this 
rule narrow is that chargebacks attributable to distributions of 
proceeds of nonrecourse liabilities may provide greater potential for 
manipulation than other chargebacks. Nonetheless, the new provision 
should provide significant relief from a problem that may be fairly 
common.
E. Exclusion of Partner-Specific Items of Deduction
    The final regulations continue to exclude from the computation of 
overall partnership income or loss, certain expenditures allocated to 
the partners to whom they are attributable. Furthermore, in partial 
response to a commentator's request that certain other exceptions be 
added, the final regulations expand the exception for expenditures 
incurred in computing section 743(b) basis adjustments to generally 
encompass additional record-keeping and accounting expenditures 
incurred in connection with transfers of partnership interests. To 
allow proper consideration of other items that might be excepted, the 
final regulations also permit the list of qualifying expenditures to be 
expanded in the future by revenue ruling, revenue procedure, or private 
letter ruling.
F. Unlikely Losses and Deductions
    The requirement that a loss or expenditure not be reasonably 
foreseeable to qualify as unlikely has been revised in response to 
concerns that were voiced. To qualify as ``unlikely'' under the final 
regulations, a loss or deduction must have a low likelihood of 
occurring, taking into account the relevant facts and circumstances.
    In addition, the final regulations clarify that the types of events 
described in the regulations are not per se unlikely. They merely 
illustrate possible situations giving rise to allocations to which the 
exception for unlikely losses and deductions applies (if they have a 
low likelihood of occurring taking into account the relevant facts and 
circumstances). In response to a comment, the discovery of 
environmental conditions that require remediation has been added to the 
illustrative list of potential relevant events.
    Contrary to a commentator's request, the final regulations do not 
sanction pre-funding of a loss or deduction. Generally, pre-funding is 
incompatible with a conclusion that a loss or deduction is unlikely.
G. Changes in Partnership Allocations
    The final regulations retain the rule that changes in partnership 
allocations resulting from transfers or shifts in partnership interests 
will be closely scrutinized, but generally will be relevant only on a 
prospective basis. However, the final regulations provide taxpayers 
with more specific guidance. The scope of the scrutiny relates to the 
determination of whether the transfers or shifts stem from a prior 
agreement, understanding, or plan, or could otherwise be expected given 
the structure of the transaction (e.g., a situation where the structure 
and economics is such that it could well be anticipated that a sale of 
an interest would occur at some particular phase of the partnership's 
(or transaction's) life). This approach bears some similarity to the 
approach of Sec. 1.704-1(b)(4)(vi) (relating to the scrutiny given to 
amendments to partnership agreements).
H. De Minimis Exceptions
    In response to comments, changes were also made to the two de 
minimis rules. One commentator asked for clarification on the exception 
for de minimis interests. In response, the rule has been slightly 
clarified and an example has been added to illustrate the rule's 
application.
    The nature of the comments received with respect to the de minimis 
allocation exception indicated that the exception was viewed 
differently than had been intended. The intent of this exception was to 
provide relief for what would otherwise be minor inadvertent violations 
of the fractions rule. One example would be a plumber's bill that is 
paid directly by a taxable partner, or that is paid by the partnership 
but is overlooked until after the partnership's allocations have been 
computed and then is allocated entirely to the taxable partner. It was 
not intended that this provision be used routinely by partnerships to 
allocate some of the partnership's losses and deductions. Consistent 
with the intent underlying this provision, the final regulations limit 
the total amount (rather than the amount allocated to the QO partner) 
to which the exception applies to the lesser of $50,000 and one percent 
of the partnership's total losses and deductions.
I. Anti-Abuse Rule
    At least one commentator suggested that the anti-abuse rule in the 
proposed regulations was vague. To address this concern, the final 
regulations provide a more complete statement of the purpose of the 
fractions rule, which largely tracks the wording of the Conference 
Committee Report accompanying the enactment of the Revenue Act of 1987. 
See H.R. Conf. Rep. No. 495, 100th Cong., 1st Sess. 957 (1987).
J. Tiered Partnerships
    The rules regarding tiered partnerships were well received and 
remain largely the same as in the proposed regulations. However, some 
changes were made. First, the final regulations clarify that the 
relevant partnerships (as opposed to individual QOs) must demonstrate 
that the relevant chains satisfy the requirements of the regulations 
under any reasonable method. Also, although the same three basic 
examples contained in the proposed regulations continue to illustrate 
the application of this rule, a number of changes were made to those 
examples. Most of the changes to the examples are stylistic or 
clarifying.
    One clarification is that tiered partnerships may not simply be 
used to achieve results that could not be achieved in the absence of a 
tiered-partnership structure. For example, the facts in the second 
tiered-partnership example (relating to the entity-by-entity approach) 
now state that each of the upper-tier partnerships has been established 
for the purpose of investing in numerous real estate properties 
independently of the other upper-tier partnership and its partners. 
Thus, the tiered-partnership rules may not be used simply to apply the 
fractions rule on a QO-by-QO basis instead of the regulation's 
generally applicable overall partnership basis.
    The facts in the second example also now contain a statement that 
neither of the upper-tier partnerships have outstanding debt. The 
reason for that statement is that in some cases, debt might be used to 
attempt to achieve allocations that would not satisfy the fractions 
rule if, for example, the lower-tier partnership had incurred the debt. 
The inclusion of this added fact should not be viewed as flatly 
precluding the existence of debt at any level other than the lower-tier 
partnership. The absence of debt was added as a fact to obviate the 
need to complicate the example by addressing the precise effect of 
debt, in what likely would have been a fact pattern that would have 
been of limited value in analyzing other debt arrangements. 
Accordingly, the existence of debt at a level other than the lower-tier 
partnership should be viewed as something to be taken into 
consideration in determining whether a partnership can demonstrate that 
the requirements of the regulations have been satisfied. It should also 
be noted that the existence of debt at the partner level might also be 
relevant in situations where tiered partnerships are not used.
    One clarifying change and one technical change were made with 
respect to the third example in the tiered-partnership rules (relating 
to the independent chain approach). The clarifying change was to state 
that the upper-tier partnership separately allocates to its upper-tier 
partners the items allocated to the upper-tier partnership by the 
lower-tier partnerships. This change emphasizes that, as a practical 
matter, partnerships would not otherwise be able to demonstrate that 
the requirements of the fractions rule are complied with.
    The technical change, which is related, is to provide that for 
purposes of applying Sec. 1.704-2(k) under the independent chain 
approach, minimum gain chargebacks are taken into account on an if-and-
when basis. Absent this change, no tiered-partnership structure in 
which a lower-tier partnership incurred nonrecourse debt would be able 
to comply with the fractions rule. This is because Sec. 1.704-2(k) 
would be treated on a prospective basis as giving rise to: (1) an 
allocation of a decrease in minimum gain to the upper-tier partnership 
(and, in turn, an upper-tier QO partner) from one lower-tier 
partnership lacking sufficient income and gain to effect a minimum gain 
chargeback; and (2) a corresponding minimum gain chargeback by the 
upper-tier partnership using income and gain allocated to the upper-
tier partnership by the other lower-tier partnership.
K. Effective Date
    The final regulations retain December 30, 1992, as their general 
effective date, i.e., the date the proposed regulations were published 
in the Federal Register. However, the final regulations also permit 
reliance on the proposed regulations during the window period beginning 
December 30, 1992, and ending on May 13, 1994. The regulations provide 
transition rules for partnerships commencing after October 13, 1987, 
property acquired by partnerships after October 13, 1987, and 
partnership interests acquired by qualified organizations after October 
13, 1987.
Special Analyses
    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It also has been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to 
these regulations, and, therefore, a Regulatory Flexibility Analysis is 
not required. Pursuant to section 7805(f) of the Internal Revenue Code, 
the notice of proposed rulemaking preceding these regulations was 
submitted to the Small Business Administration for comment on its 
impact on small business.
Drafting Information
    The principal author of these regulations is Deane M. Burke, Office 
of Assistant Chief Counsel (Passthroughs and Special Industries), 
Internal Revenue Service. However, other personnel from the IRS and 
Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income Taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:
    Paragraph 1. The authority citation for part 1 is amended by adding 
an entry in numerical order to read as follows:

    Authority: 26 U.S.C. 7805 * * *

    Section 1.514(c)-2 also issued under 26 U.S.C. 
514(c)(9)(E)(iii). * * *
    Par. 2. Section 1.514(c)-2 is added to read as follows:


Sec. 1.514(c)-2.  Permitted allocations under section 514(c)(9)(E).

    (a) Table of contents. This paragraph contains a listing of the 
major headings of this Sec. 1.514(c)-2.

(a) Table of contents.
(b) Application of section 514(c)(9)(E), relating to debt-financed 
real property held by partnerships.
    (1) In general.
    (i) The fractions rule.
    (ii) Substantial economic effect.
    (2) Manner in which fractions rule is applied.
    (i) In general.
    (ii) Subsequent changes.
(c) General definitions.
    (1) Overall partnership income and loss.
    (i) Items taken into account in determining overall partnership 
income and loss.
    (ii) Guaranteed payments to qualified organizations.
    (2) Fractions rule percentage.
    (3) Definitions of certain terms by cross reference to 
partnership regulations.
    (4) Example.
(d) Exclusion of reasonable preferred returns and guaranteed 
payments.
    (1) Overview.
    (2) Preferred returns.
    (3) Guaranteed payments.
    (4) Reasonable amount.
    (i) In general.
    (ii) Safe harbor.
    (5) Unreturned capital.
    (i) In general.
    (ii) Return of capital.
    (6) Timing rules.
    (i) Limitation on allocations of income with respect to 
reasonable preferred returns for capital.
    (ii) Reasonable guaranteed payments may be deducted only when 
paid in cash.
    (7) Examples.
(e) Chargebacks and offsets.
    (1) In general.
    (2) Disproportionate allocations.
    (i) In general.
    (ii) Limitation on chargebacks of partial allocations.
    (3) Minimum gain chargebacks attributable to nonrecourse 
deductions.
    (4) Minimum gain chargebacks attributable to distribution of 
nonrecourse debt proceeds.
    (i) Chargebacks disregarded until allocations made.
    (ii) Certain minimum gain chargebacks related to returns of 
capital.
    (5) Examples.
(f) Exclusion of reasonable partner-specific items of deduction or 
loss.
(g) Exclusion of unlikely losses and deductions.
(h) Provisions preventing deficit capital account balances.
(i) [Reserved].
(j) Exception for partner nonrecourse deductions.
    (1) Partner nonrecourse deductions disregarded until actually 
allocated.
    (2) Disproportionate allocation of partner nonrecourse 
deductions to a qualified organization.
(k) Special rules.
    (1) Changes in partnership allocations arising from a change in 
the partners' interests.
    (2) De minimis interest rule.
    (i) In general.
    (ii) Example.
    (3) De minimis allocations disregarded.
    (4) Anti-abuse rule.
(l) [Reserved].
(m) Tiered partnerships.
    (1) In general.
    (2) Examples.
(n) Effective date.
    (1) In general.
    (2) General effective date of the regulations.
    (3) Periods after June 24, 1990, and prior to December 30, 1992.
    (4) Periods prior to the issuance of Notice 90-41.
    (5) Material modifications to partnership agreements.

    (b) Application of section 514(c)(9)(E), relating to debt-financed 
real property held by partnerships--(1) In general. This Sec. 1.514(c)-
2 provides rules governing the application of section 514(c)(9)(E). To 
comply with section 514(c)(9)(E), the following two requirements must 
be met:
    (i) The fractions rule. The allocation of items to a partner that 
is a qualified organization cannot result in that partner having a 
percentage share of overall partnership income for any partnership 
taxable year greater than that partner's fractions rule percentage (as 
defined in paragraph (c)(2) of this section).
    (ii) Substantial economic effect. Each partnership allocation must 
have substantial economic effect. However, allocations that cannot have 
economic effect must be deemed to be in accordance with the partners' 
interests in the partnership pursuant to Sec. 1.704-1(b)(4), or (if 
Sec. 1.704-1(b)(4) does not provide a method for deeming the 
allocations to be in accordance with the partners' interests in the 
partnership) must otherwise comply with the requirements of Sec. 1.704-
1(b)(4). Allocations attributable to nonrecourse liabilities or partner 
nonrecourse debt must comply with the requirements of Sec. 1.704-2(e) 
or Sec. 1.704-2(i).
    (2) Manner in which fractions rule is applied--(i) In general. A 
partnership must satisfy the fractions rule both on a prospective basis 
and on an actual basis for each taxable year of the partnership, 
commencing with the first taxable year of the partnership in which the 
partnership holds debt-financed real property and has a qualified 
organization as a partner. Generally, a partnership does not qualify 
for the unrelated business income tax exception provided by section 
514(c)(9)(A) for any taxable year of its existence unless it satisfies 
the fractions rule for every year the fractions rule applies. However, 
if an actual allocation described in paragraph (e)(4), (h), (j)(2), or 
(m)(1)(ii) of this section (regarding certain allocations that are 
disregarded or not taken into account for purposes of the fractions 
rule until an actual allocation is made) causes the partnership to 
violate the fractions rule, the partnership ordinarily is treated as 
violating the fractions rule only for the taxable year of the actual 
allocation and subsequent taxable years. For purposes of applying the 
fractions rule, the term partnership agreement is defined in accordance 
with Sec. 1.704-1(b)(2)(ii)(h), and informal understandings are 
considered part of the partnership agreement in appropriate 
circumstances. See paragraph (k) of this section for rules relating to 
changes in the partners' interests and de minimis exceptions to the 
fractions rule.
    (ii) Subsequent changes. A subsequent change to a partnership 
agreement that causes the partnership to violate the fractions rule 
ordinarily causes the partnership's income to fail the exception 
provided by section 514(c)(9)(A) only for the taxable year of the 
change and subsequent taxable years.
    (c) General definitions--(1) Overall partnership income and loss. 
Overall partnership income is the amount by which the aggregate items 
of partnership income and gain for the taxable year exceed the 
aggregate items of partnership loss and deduction for the year. Overall 
partnership loss is the amount by which the aggregate items of 
partnership loss and deduction for the taxable year exceed the 
aggregate items of partnership income and gain for the year.
    (i) Items taken into account in determining overall partnership 
income and loss. Except as otherwise provided in this section, the 
partnership items that are included in computing overall partnership 
income or loss are those items of income, gain, loss, and deduction 
(including expenditures described in section 705(a)(2)(B)) that 
increase or decrease the partners' capital accounts under Sec. 1.704-
1(b)(2)(iv). Tax items allocable pursuant to section 704(c) or 
Sec. 1.704-1(b)(2)(iv)(f)(4) are not included in computing overall 
partnership income or loss. Nonetheless, allocations pursuant to 
section 704(c) or Sec. 1.704-1(b)(2)(iv)(f)(4) may be relevant in 
determining that this section is being applied in a manner that is 
inconsistent with the fractions rule. See paragraph (k)(4) of this 
section.
    (ii) Guaranteed payments to qualified organizations. Except to the 
extent otherwise provided in paragraph (d) of this section--
    (A) A guaranteed payment to a qualified organization is not treated 
as an item of partnership loss or deduction in computing overall 
partnership income or loss; and
    (B) Income that a qualified organization may receive or accrue with 
respect to a guaranteed payment is treated as an allocable share of 
overall partnership income or loss for purposes of the fractions rule.
    (2) Fractions rule percentage. A qualified organization's fractions 
rule percentage is that partner's percentage share of overall 
partnership loss for the partnership taxable year for which that 
partner's percentage share of overall partnership loss will be the 
smallest.
    (3) Definitions of certain terms by cross reference to partnership 
regulations. Minimum gain chargeback, nonrecourse deduction, 
nonrecourse liability, partner nonrecourse debt, partner nonrecourse 
debt minimum gain, partner nonrecourse debt minimum gain chargeback, 
partner nonrecourse deduction, and partnership minimum gain have the 
meanings provided in Sec. 1.704-2.
    (4) Example. The following example illustrates the provisions of 
this paragraph (c).

    Example. Computation of overall partnership income and loss for 
a taxable year. (i) Taxable corporation TP and qualified 
organization QO form a partnership to own and operate encumbered 
real property. Under the partnership agreement, all items of income, 
gain, loss, deduction, and credit are allocated 50 percent to TP and 
50 percent to QO. Neither partner is entitled to a preferred return. 
However, the partnership agreement provides for a $900 guaranteed 
payment for services to QO in each of the partnership's first two 
taxable years. No part of the guaranteed payments qualify as a 
reasonable guaranteed payment under paragraph (d) of this section.
    (ii) The partnership violates the fractions rule. Due to the 
existence of the guaranteed payment, QO's percentage share of any 
overall partnership income in the first two years will exceed QO's 
fractions rule percentage. For example, the partnership might have 
bottom-line net income of $5,100 in its first taxable year that is 
comprised of $10,000 of rental income, $4,000 of salary expense, and 
the $900 guaranteed payment to QO. The guaranteed payment would not 
be treated as an item of deduction in computing overall partnership 
income or loss because it does not qualify as a reasonable 
guaranteed payment. See paragraph (c)(1)(ii)(A) of this section. 
Accordingly, overall partnership income for the year would be 
$6,000, which would consist of $10,000 of rental income less $4,000 
of salary expense. See paragraph (c)(1)(i) of this section. The $900 
QO would include in income with respect to the guaranteed payment 
would be treated as an allocable share of the $6,000 of overall 
partnership income. See paragraph (c)(1)(ii)(B) of this section. 
Therefore, QO's allocable share of the overall partnership income 
for the year would be $3,450, which would be comprised of the $900 
of income pertaining to QO's guaranteed payment, plus QO's $2,550 
allocable share of the partnership's net income for the year (50 
percent of $5,100). QO's $3,450 allocable share of overall 
partnership income would equal 58 percent of the $6,000 of overall 
partnership income and would exceed QO's fractions rule percentage, 
which is less than 50 percent. (If there were no guaranteed payment, 
QO's fractions rule percentage would be 50 percent. However, the 
existence of the guaranteed payment to QO that is not disregarded 
for purposes of the fractions rule pursuant to paragraph (d) of this 
section means that QO's fractions rule percentage is less than 50 
percent.)

    (d) Exclusion of reasonable preferred returns and guaranteed 
payments--(1) Overview. This paragraph (d) sets forth requirements for 
disregarding reasonable preferred returns for capital and reasonable 
guaranteed payments for capital or services for purposes of the 
fractions rule. To qualify, the preferred return or guaranteed payment 
must be set forth in a binding, written partnership agreement.
    (2) Preferred returns. Items of income (including gross income) and 
gain that may be allocated to a partner with respect to a current or 
cumulative reasonable preferred return for capital (including 
allocations of minimum gain attributable to nonrecourse liability (or 
partner nonrecourse debt) proceeds distributed to the partner as a 
reasonable preferred return) are disregarded in computing overall 
partnership income or loss for purposes of the fractions rule. 
Similarly, if a partnership agreement effects a reasonable preferred 
return with an allocation of what would otherwise be overall 
partnership income, those items comprising that allocation are 
disregarded in computing overall partnership income for purposes of the 
fractions rule.
    (3) Guaranteed payments. A current or cumulative reasonable 
guaranteed payment to a qualified organization for capital or services 
is treated as an item of deduction in computing overall partnership 
income or loss, and the income that the qualified organization may 
receive or accrue from the current or cumulative reasonable guaranteed 
payment is not treated as an allocable share of overall partnership 
income or loss. The treatment of a guaranteed payment as reasonable for 
purposes of section 514(c)(9)(E) does not affect its possible 
characterization as unrelated business taxable income under other 
provisions of the Internal Revenue Code.
    (4) Reasonable amount--(i) In general. A guaranteed payment for 
services is reasonable only to the extent the amount of the payment is 
reasonable under Sec. 1.162-7 (relating to the deduction of 
compensation for personal services). A preferred return or guaranteed 
payment for capital is reasonable only to the extent it is computed, 
with respect to unreturned capital, at a rate that is commercially 
reasonable based on the relevant facts and circumstances.
    (ii) Safe harbor. For purposes of this paragraph (d)(4), a rate is 
deemed to be commercially reasonable if it is no greater than four 
percentage points more than, or if it is no greater than 150 percent 
of, the highest long-term applicable federal rate (AFR) within the 
meaning of section 1274(d), for the month the partner's right to a 
preferred return or guaranteed payment is first established or for any 
month in the partnership taxable year for which the return or payment 
on capital is computed. A rate in excess of the rates described in the 
preceding sentence may be commercially reasonable, based on the 
relevant facts and circumstances.
    (5) Unreturned capital--(i) In general. Unreturned capital is 
computed on a weighted-average basis and equals the excess of--
    (A) The amount of money and the fair market value of property 
contributed by the partner to the partnership (net of liabilities 
assumed, or taken subject to, by the partnership); over
    (B) The amount of money and the fair market value of property (net 
of liabilities assumed, or taken subject to, by the partner) 
distributed by the partnership to the partner as a return of capital.
    (ii) Return of capital. In determining whether a distribution 
constitutes a return of capital, all relevant facts and circumstances 
are taken into account. However, the designation of distributions in a 
written partnership agreement generally will be respected in 
determining whether a distribution constitutes a return of capital, so 
long as the designation is economically reasonable.
    (6) Timing rules--(i) Limitation on allocations of income with 
respect to reasonable preferred returns for capital. Items of income 
and gain (or part of what would otherwise be overall partnership 
income) that may be allocated to a partner in a taxable year with 
respect to a reasonable preferred return for capital are disregarded 
for purposes of the fractions rule only to the extent the allocable 
amount will not exceed--
    (A) The aggregate of the amount that has been distributed to the 
partner as a reasonable preferred return for the taxable year of the 
allocation and prior taxable years, on or before the due date (not 
including extensions) for filing the partnership's return for the 
taxable year of the allocation; minus
    (B) The aggregate amount of corresponding income and gain (and what 
would otherwise be overall partnership income) allocated to the partner 
in all prior years.
    (ii) Reasonable guaranteed payments may be deducted only when paid 
in cash. If a partnership that avails itself of paragraph (d)(3) of 
this section would otherwise be required (by virtue of its method of 
accounting) to deduct a reasonable guaranteed payment to a qualified 
organization earlier than the taxable year in which it is paid in cash, 
the partnership must delay the deduction of the guaranteed payment 
until the taxable year it is paid in cash. For purposes of this 
paragraph (d)(6)(ii), a guaranteed payment that is paid in cash on or 
before the due date (not including extensions) for filing the 
partnership's return for a taxable year may be treated as paid in that 
prior taxable year.
    (7) Examples. The following examples illustrate the provisions of 
this paragraph (d).

    Facts. Qualified organization QO and taxable corporation TP form 
a partnership. QO contributes $9,000 to the partnership and TP 
contributes $1,000. The partnership borrows $50,000 from a third 
party lender and purchases an office building for $55,000. At all 
relevant times the safe harbor rate described in paragraph 
(d)(4)(ii) of this section equals 10 percent.
    Example 1. Allocations made with respect to preferred returns. 
(i) The partnership agreement provides that in each taxable year the 
partnership's distributable cash is first to be distributed to QO as 
a 10 percent preferred return on its unreturned capital. To the 
extent the partnership has insufficient cash to pay QO its preferred 
return in any taxable year, the preferred return is compounded (at 
10 percent) and is to be paid in future years to the extent the 
partnership has distributable cash. The partnership agreement first 
allocates gross income and gain 100 percent to QO, to the extent 
cash has been distributed to QO as a preferred return. All remaining 
profit or loss is allocated 50 percent to QO and 50 percent to TP.
    (ii) The partnership satisfies the fractions rule. Items of 
income and gain that may be specially allocated to QO with respect 
to its preferred return are disregarded in computing overall 
partnership income or loss for purposes of the fractions rule 
because the requirements of paragraph (d) of this section are 
satisfied. After disregarding those allocations, QO's fractions rule 
percentage is 50 percent (see paragraph (c)(2) of this section), and 
under the partnership agreement QO may not be allocated more than 50 
percent of overall partnership income in any taxable year.
    (iii) The facts are the same as in paragraph (i) of this Example 
1, except that QO's preferred return is computed on unreturned 
capital at a rate that exceeds a commercially reasonable rate. The 
partnership violates the fractions rule. The income and gain that 
may be specially allocated to QO with respect to the preferred 
return is not disregarded in computing overall partnership income or 
loss to the extent it exceeds a commercially reasonable rate. See 
paragraph (d) of this section. As a result, QO's fractions rule 
percentage is less than 50 percent (see paragraph (c)(2) of this 
section), and allocations of income and gain to QO with respect to 
its preferred return could result in QO being allocated more than 50 
percent of the overall partnership income in a taxable year.
    Example 2. Guaranteed payments and the computation of overall 
partnership income or loss. (i) The partnership agreement allocates 
all bottom-line partnership income and loss 50 percent to QO and 50 
percent to TP throughout the life of the partnership. The 
partnership agreement provides that QO is entitled each year to a 10 
percent guaranteed payment on unreturned capital. To the extent the 
partnership is unable to make a guaranteed payment in any taxable 
year, the unpaid amount is compounded at 10 percent and is to be 
paid in future years.
    (ii) Assuming the requirements of paragraph (d)(6)(ii) of this 
section are met, the partnership satisfies the fractions rule. The 
guaranteed payment is disregarded for purposes of the fractions rule 
because it is computed with respect to unreturned capital at the 
safe harbor rate described in paragraph (d)(4)(ii) of this section. 
Therefore, the guaranteed payment is treated as an item of deduction 
in computing overall partnership income or loss, and the 
corresponding income that QO may receive or accrue with respect to 
the guaranteed payment is not treated as an allocable share of 
overall partnership income or loss. See paragraph (d)(3) of this 
section. Accordingly, QO's fractions rule percentage is 50 percent 
(see paragraph (c)(2) of this section), and under the partnership 
agreement QO may not be allocated more than 50 percent of overall 
partnership income in any taxable year.

    (e) Chargebacks and offsets--(1) In general. The following 
allocations are disregarded in computing overall partnership income or 
loss for purposes of the fractions rule--
    (i) Allocations of what would otherwise be overall partnership 
income that may be made to chargeback (i.e., reverse) prior 
disproportionately large allocations of overall partnership loss (or 
part of the overall partnership loss) to a qualified organization, and 
allocations of what would otherwise be overall partnership loss that 
may be made to chargeback prior disproportionately small allocations of 
overall partnership income (or part of the overall partnership income) 
to a qualified organization;
    (ii) Allocations of income or gain that may be made to a partner 
pursuant to a minimum gain chargeback attributable to prior allocations 
of nonrecourse deductions to the partner;
    (iii) Allocations of income or gain that may be made to a partner 
pursuant to a minimum gain chargeback attributable to prior allocations 
of partner nonrecourse deductions to the partner and allocations of 
income or gain that may be made to other partners to chargeback 
compensating allocations of other losses, deductions, or section 
705(a)(2)(B) expenditures to the other partners; and
    (iv) Allocations of items of income or gain that may be made to a 
partner pursuant to a qualified income offset, within the meaning of 
Sec. 1.704-1(b)(2)(ii)(d).
    (2) Disproportionate allocations--(i) In general. To qualify under 
paragraph (e)(1)(i) of this section, prior disproportionate allocations 
may be reversed in full or in part, and in any order, but must be 
reversed in the same ratio as originally made. A prior allocation is 
disproportionately large if the qualified organization's percentage 
share of that allocation exceeds its fractions rule percentage. A prior 
allocation is disproportionately small if the qualified organization's 
percentage share of that allocation is less than its fractions rule 
percentage. However, a prior allocation (or allocations) is not 
considered disproportionate unless the balance of the overall 
partnership income or loss for the taxable year of the allocation is 
allocated in a manner that would independently satisfy the fractions 
rule.
    (ii) Limitation on chargebacks of partial allocations. Except in 
the case of a chargeback allocation pursuant to paragraph (e)(4) of 
this section, and except as otherwise provided by the Internal Revenue 
Service by revenue ruling, revenue procedure, or, on a case-by-case 
basis, by letter ruling, paragraph (e)(1)(i) of this section applies to 
a chargeback of an allocation of part of the overall partnership income 
or loss only if that part consists of a pro rata portion of each item 
of partnership income, gain, loss, and deduction (other than 
nonrecourse deductions, as well as partner nonrecourse deductions and 
compensating allocations) that is included in computing overall 
partnership income or loss.
    (3) Minimum gain chargebacks attributable to nonrecourse 
deductions. Commencing with the first taxable year of the partnership 
in which a minimum gain chargeback (or partner nonrecourse debt minimum 
gain chargeback) occurs, a chargeback to a partner is attributable to 
nonrecourse deductions (or separately, on a debt-by-debt basis, to 
partner nonrecourse deductions) in the same proportion that the 
partner's percentage share of the partnership minimum gain (or 
separately, on a debt-by-debt basis, the partner nonrecourse debt 
minimum gain) at the end of the immediately preceding taxable year is 
attributable to nonrecourse deductions (or partner nonrecourse 
deductions). The partnership must determine the extent to which a 
partner's percentage share of the partnership minimum gain (or partner 
nonrecourse debt minimum gain) is attributable to deductions in a 
reasonable and consistent manner. For example, in those cases in which 
none of the exceptions contained in Sec. 1.704-2(f) (2) through (5) are 
relevant, a partner's percentage share of the partnership minimum gain 
generally is attributable to nonrecourse deductions in the same ratio 
that--
    (i) The aggregate amount of the nonrecourse deductions previously 
allocated to the partner but not charged back in prior taxable years; 
bears to
    (ii) The sum of the amount described in paragraph (e)(3)(i) of this 
section, plus the aggregate amount of distributions previously made to 
the partner of proceeds of a nonrecourse liability allocable to an 
increase in partnership minimum gain but not charged back in prior 
taxable years.
    (4) Minimum gain chargebacks attributable to distribution of 
nonrecourse debt proceeds--(i) Chargebacks disregarded until 
allocations made. Allocations of items of income and gain that may be 
made pursuant to a provision in the partnership agreement that charges 
back minimum gain attributable to the distribution of proceeds of a 
nonrecourse liability (or a partner nonrecourse debt) are taken into 
account for purposes of the fractions rule only to the extent an 
allocation is made. (See paragraph (d)(2) of this section, pursuant to 
which there is permanently excluded chargeback allocations of minimum 
gain that are attributable to proceeds distributed as a reasonable 
preferred return.)
    (ii) Certain minimum gain chargebacks related to returns of 
capital. Allocations of items of income or gain that (in accordance 
with Sec. 1.704-2(f)(1)) may be made to a partner pursuant to a minimum 
gain chargeback attributable to the distribution of proceeds of a 
nonrecourse liability are disregarded in computing overall partnership 
income or loss for purposes of the fractions rule to the extent that 
the allocations (subject to the requirements of paragraph (e)(2) of 
this section) also charge back prior disproportionately large 
allocations of overall partnership loss (or part of the overall 
partnership loss) to a qualified organization. This exception applies 
only to the extent the disproportionately large allocation consisted of 
depreciation from real property (other than items of nonrecourse 
deduction or partner nonrecourse deduction) that subsequently was used 
to secure the nonrecourse liability providing the distributed proceeds, 
and only if those proceeds were distributed as a return of capital and 
in the same proportion as the disproportionately large allocation.
    (5) Examples. The following examples illustrate the provisions of 
this paragraph (e).

    Example 1. Chargebacks of disproportionately large allocations 
of overall partnership loss. (i) Qualified organization QO and 
taxable corporation TP form a partnership. QO contributes $900 to 
the partnership and TP contributes $100. The partnership agreement 
allocates overall partnership loss 50 percent to QO and 50 percent 
to TP until TP's capital account is reduced to zero; then 100 
percent to QO until QO's capital account is reduced to zero; and 
thereafter 50 percent to QO and 50 percent to TP. Overall 
partnership income is allocated first 100 percent to QO to 
chargeback overall partnership loss allocated 100 percent to QO, and 
thereafter 50 percent to QO and 50 percent to TP.
    (ii) The partnership satisfies the fractions rule. QO's 
fractions rule percentage is 50 percent. See paragraph (c)(2) of 
this section. Therefore, the 100 percent allocation of overall 
partnership loss to QO is disproportionately large. See paragraph 
(e)(2)(i) of this section. Accordingly, the 100 percent allocation 
to QO of what would otherwise be overall partnership income (if it 
were not disregarded), which charges back the disproportionately 
large allocation of overall partnership loss, is disregarded in 
computing overall partnership income and loss for purposes of the 
fractions rule. The 100 percent allocation is in the same ratio as 
the disproportionately large loss allocation, and the rest of the 
allocations for the taxable year of the disproportionately large 
loss allocation will independently satisfy the fractions rule. See 
paragraph (e)(2)(i) of this section. After disregarding the 
chargeback allocation of 100 percent of what would otherwise be 
overall partnership income, QO will not be allocated a percentage 
share of overall partnership income in excess of its fractions rule 
percentage for any taxable year.
    Example 2. Chargebacks of disproportionately small allocations 
of overall partnership income. (i) Qualified organization QO and 
taxable corporation TP form a partnership. QO contributes $900 to 
the partnership and TP contributes $100. The partnership purchases 
real property with money contributed by its partners and with money 
borrowed by the partnership on a recourse basis. In any year, the 
partnership agreement allocates the first $500 of overall 
partnership income 50 percent to QO and 50 percent to TP; the next 
$100 of overall partnership income 100 percent to TP (as an 
incentive for TP to achieve significant profitability in managing 
the partnership's operations); and all remaining overall partnership 
income 50 percent to QO and 50 percent to TP. Overall partnership 
loss is allocated first 100 percent to TP to chargeback overall 
partnership income allocated 100 percent to TP at any time in the 
prior three years and not reversed; and thereafter 50 percent to QO 
and 50 percent to TP.
    (ii) The partnership satisfies the fractions rule. QO's 
fractions rule percentage is 50 percent because qualifying 
chargebacks are disregarded pursuant to paragraph (e)(1)(i) in 
computing overall partnership income or loss. See paragraph (c)(2) 
of this section. The zero percent allocation to QO of what would 
otherwise be overall partnership loss is a qualifying chargeback 
that is disregarded because it is in the same ratio as the income 
allocation it charges back, because the rest of the allocations for 
the taxable year of that income allocation will independently 
satisfy the fractions rule (see paragraph (e)(2)(i) of this 
section), and because it charges back an allocation of zero overall 
partnership income to QO, which is proportionately smaller (i.e., 
disproportionately small) than QO's 50 percent fractions rule 
percentage. After disregarding the chargeback allocation of 100 
percent of what would otherwise be overall partnership loss, QO will 
not be allocated a percentage share of overall partnership income in 
excess of its fractions rule percentage for any taxable year.
    Example 3. Chargebacks of partner nonrecourse deductions and 
compensating allocations of other items. (i) Qualified organization 
QO and taxable corporation TP form a partnership to own and operate 
encumbered real property. QO and TP each contribute $500 to the 
partnership. In addition, QO makes a $300 nonrecourse loan to the 
partnership. The partnership agreement contains a partner 
nonrecourse debt minimum gain chargeback provision and a provision 
that allocates partner nonrecourse deductions to the partner who 
bears the economic burden of the deductions in accordance with 
Sec. 1.704-2. The partnership agreement also provides that to the 
extent partner nonrecourse deductions are allocated to QO in any 
taxable year, other compensating items of partnership loss or 
deduction (and, if appropriate, section 705(a)(2)(B) expenditures) 
will first be allocated 100 percent to TP. In addition, to the 
extent items of income or gain are allocated to QO in any taxable 
year pursuant to a partner nonrecourse debt minimum gain chargeback 
of deductions, items of partnership income and gain will first be 
allocated 100 percent to TP. The partnership agreement allocates all 
other overall partnership income or loss 50 percent to QO and 50 
percent to TP.
    (ii) The partnership satisfies the fractions rule on a 
prospective basis. The allocations of the partner nonrecourse 
deductions and the compensating allocation of other items of loss, 
deduction, and expenditure that may be made to TP (but which will 
not be made unless there is an allocation of partner nonrecourse 
deductions to QO) are not taken into account for purposes of the 
fractions rule until a taxable year in which an allocation is made. 
See paragraph (j)(1) of this section. In addition, partner 
nonrecourse debt minimum gain chargebacks of deductions and 
allocations of income or gain to other partners that chargeback 
compensating allocations of other deductions are disregarded in 
computing overall partnership income or loss for purposes of the 
fractions rule. See paragraph (e)(1)(iii) of this section. Since all 
other overall partnership income and loss is allocated 50 percent to 
QO and 50 percent to TP, QO's fractions rule percentage is 50 
percent (see paragraph (c)(2) of this section), and QO will not be 
allocated a percentage share of overall partnership income in excess 
of its fractions rule percentage for any taxable year.
    (iii) The facts are the same as in paragraph (i) of this Example 
3, except that the partnership agreement provides that compensating 
allocations of loss or deduction (and section 705(a)(2)(B) 
expenditures) to TP will not be charged back until year 10. The 
partners expect $300 of partner nonrecourse deductions to be 
allocated to QO in year 1 and $300 of income or gain to be allocated 
to QO in year 2 pursuant to the partner nonrecourse debt minimum 
gain chargeback provision.
    (iv) The partnership fails to satisfy the fractions rule on a 
prospective basis under the anti-abuse rule of paragraph (k)(4) of 
this section. If the partners' expectations prove correct, at the 
end of year 2, QO will have been allocated $300 of partner 
nonrecourse deductions and an offsetting $300 of partner nonrecourse 
debt minimum gain. However, the $300 of compensating deductions and 
losses that may be allocated to TP will not be charged back until 
year 10. Thus, during the period beginning at the end of year 2 and 
ending eight years later, there may be $300 more of unreversed 
deductions and losses allocated to TP than to QO, which would be 
inconsistent with the purpose of the fractions rule.
    Example 4. Minimum gain chargeback attributable to distributions 
of nonrecourse debt proceeds. (i) Qualified organization QO and 
taxable corporation TP form a partnership. QO contributes $900 to 
the partnership and TP contributes $100. The partnership agreement 
generally allocates overall partnership income and loss 90 percent 
to QO and 10 percent to TP. However, the partnership agreement 
contains a minimum gain chargeback provision, and also provides that 
in any partnership taxable year in which there is a chargeback of 
partnership minimum gain to QO attributable to distributions of 
proceeds of nonrecourse liabilities, all other items comprising 
overall partnership income or loss will be allocated in a manner 
such that QO is not allocated more than 90 percent of the overall 
partnership income for the year.
    (ii) The partnership satisfies the fractions rule on a 
prospective basis. QO's fractions rule percentage is 90 percent. See 
paragraph (c)(2) of this section. The chargeback that may be made to 
QO of minimum gain attributable to distributions of nonrecourse 
liability proceeds is taken into account for purposes of the 
fractions rule only to the extent an allocation is made. See 
paragraph (e)(4) of this section. Accordingly, that potential 
allocation to QO is disregarded in applying the fractions rule on a 
prospective basis (see paragraph (b)(2) of this section), and QO is 
treated as not being allocated a percentage share of overall 
partnership income in excess of its fractions rule percentage in any 
taxable year. (Similarly, QO is treated as not being allocated items 
of income or gain in a taxable year when the partnership has an 
overall partnership loss.)
    (iii) In year 3, the partnership borrows $400 on a nonrecourse 
basis and distributes it to QO as a return of capital. In year 8, 
the partnership has $400 of gross income and cash flow and $300 of 
overall partnership income, and the partnership repays the $400 
nonrecourse borrowing.
    (iv) The partnership violates the fractions rule for year 8 and 
all future years. Pursuant to the minimum gain chargeback provision, 
the entire $400 of partnership gross income is allocated to QO. 
Accordingly, notwithstanding the curative provision in the 
partnership agreement that would allocate to TP the next $44 
(($400.9) x 10%) of income and gain included in computing 
overall partnership income, the partnership has no other items of 
income and gain to allocate to QO. Because the $400 of gross income 
actually allocated to QO is taken into account for purposes of the 
fractions rule in the year an allocation is made (see paragraph 
(e)(4) of this section), QO's percentage share of overall 
partnership income in year 8 is greater than 100 percent. Since this 
exceeds QO's fractions rule percentage (i.e., 90 percent), the 
partnership violates the fractions rule for year 8 and all 
subsequent taxable years. See paragraph (b)(2) of this section.

    (f) Exclusion of reasonable partner-specific items of deduction or 
loss. Provided that the expenditures are allocated to the partners to 
whom they are attributable, the following partner-specific expenditures 
are disregarded in computing overall partnership income or loss for 
purposes of the fractions rule--
    (1) Expenditures for additional record-keeping and accounting 
incurred in connection with the transfer of a partnership interest 
(including expenditures incurred in computing basis adjustments under 
section 743(b));
    (2) Additional administrative costs that result from having a 
foreign partner;
    (3) State and local taxes or expenditures relating to those taxes; 
and
    (4) Expenditures designated by the Internal Revenue Service by 
revenue ruling or revenue procedure, or, on a case-by-case basis, by 
letter ruling. (See Sec. 601.601(d)(2)(ii)(b) of this chapter).
    (g) Exclusion of unlikely losses and deductions. Unlikely losses or 
deductions (other than items of nonrecourse deduction) that may be 
specially allocated to partners that bear the economic burden of those 
losses or deductions are disregarded in computing overall partnership 
income or loss for purposes of the fractions rule, so long as a 
principal purpose of the allocation is not tax avoidance. To be 
excluded under this paragraph (g), a loss or deduction must have a low 
likelihood of occurring, taking into account all relevant facts, 
circumstances, and information available to the partners (including 
bona fide financial projections). The types of events that may give 
rise to unlikely losses or deductions, depending on the facts and 
circumstances, include tort and other third-party litigation that give 
rise to unforeseen liabilities in excess of reasonable insurance 
coverage; unanticipated labor strikes; unusual delays in securing 
required permits or licenses; abnormal weather conditions (considering 
the season and the job site); significant delays in leasing property 
due to an unanticipated severe economic downturn in the geographic 
area; unanticipated cost overruns; and the discovery of environmental 
conditions that require remediation. No inference is drawn as to 
whether a loss or deduction is unlikely from the fact that the 
partnership agreement includes a provision for allocating that loss or 
deduction.
    (h) Provisions preventing deficit capital account balances. A 
provision in the partnership agreement that allocates items of loss or 
deduction away from a qualified organization in instances where 
allocating those items to the qualified organization would cause or 
increase a deficit balance in its capital account that the qualified 
organization is not obligated to restore (within the meaning of 
Sec. 1.704-1(b)(2)(ii) (b) or (d)), is disregarded for purposes of the 
fractions rule in taxable years of the partnership in which no such 
allocations are made pursuant to the provision. However, this exception 
applies only if, at the time the provision becomes part of the 
partnership agreement, all relevant facts, circumstances, and 
information (including bona fide financial projections) available to 
the partners reasonably indicate that it is unlikely that an allocation 
will be made pursuant to the provision during the life of the 
partnership.
    (i) [Reserved]
    (j) Exception for partner nonrecourse deductions--(1) Partner 
nonrecourse deductions disregarded until actually allocated. Items of 
partner nonrecourse deduction that may be allocated to a partner 
pursuant to Sec. 1.704-2, and compensating allocations of other items 
of loss, deduction, and section 705(a)(2)(B) expenditures that may be 
allocated to other partners, are not taken into account for purposes of 
the fractions rule until the taxable years in which they are allocated.
    (2) Disproportionate allocation of partner nonrecourse deductions 
to a qualified organization. A violation of the fractions rule will be 
disregarded if it arises because an allocation of partner nonrecourse 
deductions to a qualified organization that is not motivated by tax 
avoidance reduces another qualified organization's fractions rule 
percentage below what it would have been absent the allocation of the 
partner nonrecourse deductions.
    (k) Special rules--(1) Changes in partnership allocations arising 
from a change in the partners' interests. A qualified organization that 
acquires a partnership interest from another qualified organization is 
treated as a continuation of the prior qualified organization partner 
(to the extent of that acquired interest) for purposes of applying the 
fractions rule. Changes in partnership allocations that result from 
other transfers or shifts of partnership interests will be closely 
scrutinized (to determine whether the transfer or shift stems from a 
prior agreement, understanding, or plan or could otherwise be expected 
given the structure of the transaction), but generally will be taken 
into account only in determining whether the partnership satisfies the 
fractions rule in the taxable year of the change and subsequent taxable 
years.
    (2) De minimis interest rule--(i) In general. Section 
514(c)(9)(B)(vi) does not apply to a partnership otherwise subject to 
that section if--
    (A) Qualified organizations do not hold, in the aggregate, 
interests of greater than five percent in the capital or profits of the 
partnership; and
    (B) Taxable partners own substantial interests in the partnership 
through which they participate in the partnership on substantially the 
same terms as the qualified organization partners.
    (ii) Example. Partnership PRS has two types of limited partnership 
interests that participate in partnership profits and losses on 
different terms. Qualified organizations (QOs) only own one type of 
limited partnership interest and own no general partnership interests. 
In the aggregate, the QOs own less than five percent of the capital and 
profits of PRS. Taxable partners also own the same type of limited 
partnership interest that the QOs own. These limited partnership 
interests owned by the taxable partners are 30 percent of the capital 
and profits of PRS. Thirty percent is a substantial interest in the 
partnership. Therefore, PRS satisfies paragraph (k)(2) of this section 
and section 514(c)(9)(B)(vi) does not apply.
    (3) De minimis allocations disregarded. A qualified organization's 
fractions rule percentage of the partnership's items of loss and 
deduction, other than nonrecourse and partner nonrecourse deductions, 
that are allocated away from the qualified organization and to other 
partners in any taxable year are treated as having been allocated to 
the qualified organization for purposes of the fractions rule if--
    (i) The allocation was neither planned nor motivated by tax 
avoidance; and
    (ii) The total amount of those items of partnership loss or 
deduction is less than both--
    (A) One percent of the partnership's aggregate items of gross loss 
and deduction for the taxable year; and
    (B) $50,000.
    (4) Anti-abuse rule. The purpose of the fractions rule is to 
prevent tax avoidance by limiting the permanent or temporary transfer 
of tax benefits from tax-exempt partners to taxable partners, whether 
by directing income or gain to tax-exempt partners, by directing 
losses, deductions, or credits to taxable partners, or by some other 
similar manner. This section may not be applied in a manner that is 
inconsistent with the purpose of the fractions rule.
    (l) [Reserved].
    (m) Tiered partnerships--(1) In general. If a qualified 
organization holds an indirect interest in real property through one or 
more tiers of partnerships (a chain), the fractions rule is satisfied 
only if--
    (i) The avoidance of tax is not a principal purpose for using the 
tiered-ownership structure (investing in separate real properties 
through separate chains of partnerships so that section 514(c)(9)(E) 
is, effectively, applied on a property-by-property basis is not, in and 
of itself, a tax avoidance purpose); and
    (ii) The relevant partnerships can demonstrate under any reasonable 
method that the relevant chains satisfy the requirements of paragraphs 
(b)(2) through (k) of this section. For purposes of applying 
Sec. 1.704-2(k) under the independent chain approach described in 
Example 3 of paragraph (m)(2) of this section, allocations of items of 
income or gain that may be made pursuant to a provision in the 
partnership agreement that charges back minimum gain are taken into 
account for purposes of the fractions rule only to the extent an 
allocation is made.
    (2) Examples. The following examples illustrate the provisions of 
this paragraph (m).

    Example 1. Tiered partnerships--collapsing approach. (i) 
Qualified organization QO3 and taxable individual TP3 form upper-
tier partnership P2. The P2 partnership agreement allocates overall 
partnership income 20 percent to QO3 and 80 percent to TP3. Overall 
partnership loss is allocated 30 percent to QO3 and 70 percent to 
TP3. P2 and taxable individual TP2 form lower-tier partnership P1. 
The P1 partnership agreement allocates overall partnership income 60 
percent to P2 and 40 percent to TP2. Overall partnership loss is 
allocated 40 percent to P2 and 60 percent to TP2. The only asset of 
P2 (which has no outstanding debt) is its interest in P1. P1 
purchases real property with money contributed by its partners and 
with borrowed money. There is no tax avoidance purpose for the use 
of the tiered-ownership structure, which is illustrated by the 
following diagram.


TR13MY94.006

    (ii) P2 can demonstrate that the P2/P1 chain satisfies the 
requirements of paragraphs (b)(2) through (k) of this section by 
collapsing the tiered-partnership structure. On a collapsed basis, 
QO3's fractions rule percentage is 12 percent (30 percent of 40 
percent). See paragraph (c)(2) of this section. P2 satisfies the 
fractions rule because QO3 may not be allocated more than 12 percent 
(20 percent of 60 percent) of overall partnership income in any 
taxable year.
    Example 2. Tiered partnerships--entity-by-entity approach. (i) 
Qualified organization QO3A is a partner with taxable individual 
TP3A in upper-tier partnership P2A. Qualified organization QO3B is a 
partner with taxable individual TP3B in upper-tier partnership P2B. 
P2A, P2B, and taxable individual TP2 are partners in lower-tier 
partnership P1, which owns encumbered real estate. None of QO3A, 
QO3B, TP3A, TP3B or TP2 has a direct or indirect ownership interest 
in each other. P2A has been established for the purpose of investing 
in numerous real estate properties independently of P2B and its 
partners. P2B has been established for the purpose of investing in 
numerous real estate properties independently of P2A and its 
partners. Neither P2A nor P2B has outstanding debt. There is no tax 
avoidance purpose for the use of the tiered-ownership structure, 
which is illustrated by the following diagram.

TR13MY94.007


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    (ii) The P2A/P1 chain (Chain A) will satisfy the fractions rule 
if P1 and P2A can demonstrate in a reasonable manner that they 
satisfy the requirements of paragraphs (b)(2) through (k) of this 
section. The P2B/P1 chain (Chain B) will satisfy the fractions rule 
if P1 and P2B can demonstrate in a reasonable manner that they 
satisfy the requirements of paragraphs (b)(2) through (k) of this 
section. To meet its burden, P1 treats P2A and P2B as qualified 
organizations. Provided that the allocations that may be made by P1 
would satisfy the fractions rule if P2A and P2B were direct 
qualified organization partners in P1, Chain A will satisfy the 
fractions rule (for the benefit of QO3A) if the allocations that may 
be made by P2A satisfy the requirements of paragraphs (b)(2) through 
(k) of this section. Similarly, Chain B will satisfy the fractions 
rule (for the benefit of QO3B) if the allocations that may be made 
by P2B satisfy the requirements of paragraphs (b)(2) through (k) of 
this section. Under these facts, QO3A does not have to know how 
income and loss may be allocated by P2B, and QO3B does not have to 
know how income and loss may be allocated by P2A. QO3A's and QO3B's 
burden would not change even if TP2 were not a partner in P1.
    Example 3. Tiered partnerships--independent chain approach. (i) 
Qualified organization QO3 and taxable corporation TP3 form upper-
tier partnership P2. P2 and taxable corporation TP2 form lower-tier 
partnership P1A. P2 and qualified organization QO2 form lower-tier 
partnership P1B. P2 has no outstanding debt. P1A and P1B each 
purchase real property with money contributed by their respective 
partners and with borrowed money. Each partnership's real property 
is completely unrelated to the real property owned by the other 
partnership. P1B's allocations do not satisfy the requirements of 
paragraphs (b)(2) through (k) of this section because of allocations 
that may be made to QO2. However, if P2's interest in P1B were 
completely disregarded, the P2/P1A chain would satisfy the 
requirements of paragraphs (b)(2) through (k) of this section. There 
is no tax avoidance purpose for the use of the tiered-ownership 
structure, which is illustrated by the following diagram.

TR13MY94.008


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    (ii) P2 satisfies the fractions rule with respect to the P2/P1A 
chain, but only if the P2 partnership agreement allocates those 
items allocated to P2 by P1A separately from those items allocated 
to P2 by P1B. For this purpose, allocations of items of income or 
gain that may be made pursuant to a provision in the partnership 
agreement that charges back minimum gain, are taken into account for 
purposes of the fractions rule only to the extent an allocation is 
made. See paragraph (m)(1)(ii) of this section. P2 does not satisfy 
the fractions rule with respect to the P2/P1B chain.

    (n) Effective date--(1) In general. Section 514(c)(9)(E), as 
amended by sections 2004(h) (1) and (2) of the Technical and 
Miscellaneous Revenue Act of 1988, Pub. L. 100-647, applies generally 
with respect to property acquired by partnerships after October 13, 
1987, and to partnership interests acquired after October 13, 1987.
    (2) General effective date of the regulations. Section 1.514(c)-2 
(a) through (m) applies with respect to partnership agreements entered 
into after December 30, 1992, property acquired by partnerships after 
December 30, 1992, and partnership interests acquired by qualified 
organizations after December 30, 1992 (other than a partnership 
interest that at all times after October 13, 1987, and prior to the 
acquisition was held by a qualified organization). For this purpose, 
paragraphs (a) through (m) of this section will be treated as satisfied 
with respect to partnership agreements entered into on or before May 
13, 1994, property acquired by partnerships on or before May 13, 1994, 
and partnership interests acquired by qualified organizations on or 
before May 13, 1994, if the guidance set forth in (paragraphs (a) 
through (m) of Sec. 1.514(c)-2 of) PS-56-90, published at 1993-5 I.R.B. 
42, February 1, 1993, is satisfied. (See Sec. 601.601(d)(2)(ii)(b) of 
this chapter).
    (3) Periods after June 24, 1990, and prior to December 30, 1992. To 
satisfy the requirements of section 514(c)(9)(E) with respect to 
partnership agreements entered into after June 24, 1990, property 
acquired by partnerships after June 24, 1990, and partnership interests 
acquired by qualified organizations after June 24, 1990, (other than a 
partnership interest that at all times after October 13, 1987, and 
prior to the acquisition was held by a qualified organization) to which 
paragraph (n)(2) of this section does not apply, paragraphs (a) through 
(m) of this section must be satisfied as of the first day that section 
514(c)(9)(E) applies with respect to the partnership, property, or 
acquired interest. For this purpose, paragraphs (a) through (m) of this 
section will be treated as satisfied if the guidance in sections I 
through VI of Notice 90-41, 90-1 C.B. 350, (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter) has been followed.
    (4) Periods prior to the issuance of Notice 90-41. With respect to 
partnerships commencing after October 13, 1987, property acquired by 
partnerships after October 13, 1987, and partnership interests acquired 
by qualified organizations after October 13, 1987, to which neither 
paragraph (n)(2) nor (n)(3) of this section applies, the Internal 
Revenue Service will not challenge an interpretation of section 
514(c)(9)(E) that is reasonable in light of the underlying purposes of 
section 514(c)(9)(E) (as reflected in its legislative history) and that 
is consistently applied as of the first day that section 514(c)(9)(E) 
applies with respect to the partnership, property, or acquired 
interest. A reasonable interpretation includes an interpretation that 
substantially follows the guidance in either sections I through VI of 
Notice 90-41, (see Sec. 601.601(d)(2)(ii)(b) of this chapter) or 
paragraphs (a) through (m) of this section.
    (5) Material modifications to partnership agreements. A material 
modification will cause a partnership agreement to be treated as a new 
partnership agreement in appropriate circumstances for purposes of this 
paragraph (n).

Margaret Milner Richardson,
Commissioner of Internal Revenue.
    Approved: April 21, 1994.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 94-11612 Filed 5-11-94; 8:45 am]
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