[Federal Register Volume 60, Number 155 (Friday, August 11, 1995)]
[Rules and Regulations]
[Pages 40997-41016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19446]



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DEPARTMENT OF THE TREASURY
Internal Revenue Service

26 CFR Parts 1 and 602

[TD 8611]
RIN 1545-AS40


Conduit Arrangements Regulations

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations relating to conduit 
financing arrangements issued under the authority granted by section 
7701(l). The final regulations apply to persons engaging in multiple-
party financing arrangements. The final regulations are necessary to 
determine whether such arrangements should be recharacterized under 
section 7701(l).
EFFECTIVE DATE: The regulations are effective September 11, 1995.

FOR FURTHER INFORMATION CONTACT: Elissa J. Shendalman of the Office of 
the Associate Chief Counsel (International), (202) 622-3870 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collection of information contained in these final regulations 
has been reviewed and approved by the Office of Management and Budget 
for review in accordance with the Paperwork Reduction Act (44 U.S.C. 
3504(h)) under control number 1545-1440. The estimated annual burden 
per recordkeeper is 10 hours.
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden should be sent to the Internal 
Revenue Service, Attn: IRS Reports Clearance Officer, PC:FP, 
Washington, DC 20224, and to the Office of Management and Budget, Attn: 
Desk Officer for the Department of Treasury, Office of Information and 
Regulatory Affairs, Washington, DC 20503.

Background

    On August 10, 1993, Congress enacted section 7701(l) of the 
Internal Revenue Code (Code), which authorizes the 

[[Page 40998]]
Secretary to ``prescribe regulations recharacterizing any multiple-
party financing transaction as a transaction directly among any 2 or 
more parties where such recharacterization is necessary to prevent 
avoidance of any tax imposed by [title 26].'' The legislative history 
to section 7701(l) noted with approval a series of tax court and IRS 
pronouncements that used ``substance over form'' principles to 
recharacterize conduit financing arrangements, but stated that the 
Secretary was not bound by the principles of these pronouncements in 
developing regulations.
    On October 14, 1994, the IRS published a notice of proposed 
rulemaking in the Federal Register (59 FR 52110) under section 7701(l) 
of the Code. These proposed regulations permit the district director to 
disregard the participation of one or more intermediate entities in a 
conduit financing arrangement for purposes of sections 871, 881, 1441, 
and 1442.
    Written comments responding to the notice were received, and a 
public hearing was held on December 16, 1994. After considering the 
written comments received and the statements made at the hearing, the 
IRS and Treasury adopt the proposed regulation as revised by this 
Treasury decision.

Explanation of Provisions and Summary of Significant Comments

A. Overview of Provisions

    The final regulations make few substantive changes to the proposed 
regulations. Most changes are in the nature of refinements to, and 
clarifications of, the principles in the proposed regulations. It 
should be noted that the IRS and Treasury will continue to monitor 
conduit financing arrangements in the context of sections 871, 881, 
1441 and 1442 after the publication of these final regulations. If the 
rules announced herein do not sufficiently address the avoidance of 
these taxes, the IRS and Treasury will consider modifying or 
supplementing these rules as they find necessary.
    Section 1.881-3(a)(2) of the final regulations provides definitions 
of certain terms used throughout the regulations. A financing 
arrangement is defined as a series of transactions by which one person 
(the financing entity) advances money or other property, or grants 
rights to use property, and another person (the financed entity) 
receives money or other property, or the right to use property, if the 
advance and receipt are effected through one or more other persons 
(intermediate entities) and there are financing transactions linking 
the financing entity, each of the intermediate entities, and the 
financed entity. The final regulations supplement this basic rule with 
an anti-abuse rule that allows the IRS to treat related persons as a 
single entity where a taxpayer interposes a related person in an 
arrangement that would otherwise qualify as a financing arrangement to 
circumvent the application of the conduit rules.
    A financing transaction includes a debt instrument, lease or 
license. In addition, an equity instrument may qualify as a financing 
transaction if the equity has certain debt-like characteristics. The 
term financing transaction also includes any other advance of money or 
property pursuant to which the transferee is obligated to repay or 
return a substantial portion of the money or other property advanced or 
the equivalent in value.
    Section 1.881-3(a)(3)(i) authorizes the district director to 
determine that an intermediate entity is a conduit entity under the 
rules set forth in Sec. 1.881-3(a)(4). Section 1.881-3(a)(3)(ii) 
describes the effects of conduit treatment. Section 1.881-
3(a)(3)(ii)(B) generally provides that the character of the payments 
made under the recharacterized transaction (i.e. interest, rents, etc.) 
is determined by reference to the character of the payments made to the 
financing entity. However, if the financing transaction to which the 
financing entity is a party gives rise to a type of payment that would 
not be deductible if paid by the financed entity (e.g., dividends, as 
determined under U.S. tax principles), the character of the payments is 
not affected by the recharacterization.
    Section 1.881-3(a)(3)(ii)(E) provides that a financing entity that 
is unrelated to both the intermediate entity and the financed entity is 
not liable for the tax imposed by section 881 unless it knows or has 
reason to know of a conduit financing arrangement. Moreover, the final 
regulations create a presumption that an unrelated financing entity 
does not know or have reason to know of a conduit financing arrangement 
where the intermediate entity that is a party to the financing 
transaction with the financing entity is engaged in a substantial trade 
or business.
    Section 1.881-3(a)(4) provides the standards for determining 
whether an intermediate entity is a conduit entity for purposes of 
section 881. If an intermediate entity is related to either the 
financing entity or the financed entity, the intermediate entity will 
be a conduit entity only if (i) the participation of the intermediate 
entity in the financing arrangement reduces the U.S. withholding tax 
that otherwise would have been imposed, and (ii) the participation of 
the intermediate entity in the financing arrangement is pursuant to a 
plan one of the principal purposes of which is the avoidance of the 
withholding tax.
    If a financing arrangement involves multiple intermediate entities, 
Sec. 1.881-3(a)(4)(ii)(A) provides that the district director will 
determine whether each of the intermediate entities is a conduit 
entity. The factors, presumptions, and other rules in the regulations 
generally state how they should be applied in the case of multiple 
intermediate entities. The regulations state that, if no such rule is 
provided, the district director should apply principles consistent with 
the standards described above. Section 1.881-3(a)(4)(ii)(B) provides a 
general anti-abuse rule that allows the district director to treat 
related intermediate entities as a single intermediate entity if he 
determines that one of the principal purposes for the involvement of 
multiple intermediate entities in the financing arrangement is to 
prevent the characterization of an intermediate entity as a conduit 
entity, to reduce the portion of a payment that is subject to 
withholding tax or otherwise to circumvent the provisions of this 
section. The district director's determination is to be based upon all 
of the facts and circumstances, including, but not limited to, the 
factors indicating whether the intermediate entity's participation in a 
financing arrangement is pursuant to a tax avoidance plan.
    Section 1.881-3(b) provides that the district director will weigh 
all available evidence regarding the purposes for the intermediate 
entity's participation in the financing arrangement. Moreover, 
Sec. 1.881-3(b)(3) provides a presumption that a tax avoidance plan 
does not exist where an intermediate entity that is related to either 
the financing entity or the financed entity performs significant 
financing activities with respect to the financing transactions making 
up the financing arrangement.
    In the case of an intermediate entity that is not related to either 
the financing entity or the financed entity, the intermediate entity 
will not be a conduit entity unless the requirements applicable to 
related parties are met (that is, there is a reduction in the tax 
imposed by section 881 and a tax avoidance plan) and, in addition, the 
intermediate entity would not have participated in the financing 
arrangement on substantially the same terms but for the fact that the 
financing entity advanced money or property to (or entered into a lease 
or license with) the intermediate entity. See Sec. 1.881-

[[Page 40999]]
3(a)(4)(i)(C). Under Sec. 1.881-3(c)(2), the district director may 
presume that the intermediate entity would not have participated in the 
financing arrangement on substantially the same terms but for the 
financing transaction between the financing entity and the intermediate 
entity if another person has provided a guarantee of the financed 
entity's obligation to the intermediate entity. The term guarantee 
includes, but is not limited to, a right of offset between the two 
financing transactions to which the intermediate entity is a party.
    Once the district director has disregarded the participation of a 
conduit entity in a conduit financing arrangement, Sec. 1.881-
3(d)(1)(i) provides that a portion of each payment made by the financed 
entity is recharacterized as a payment directly between the financed 
entity and the financing entity. If the aggregate principal amount of 
the financing transaction(s) to which the financed entity is a party is 
less than or equal to the aggregate principal amount of the financing 
transaction(s) linking any of the parties to the financing arrangement, 
the entire amount of the payment by the financed entity shall be 
recharacterized. If the aggregate principal amount of the financing 
transaction(s) to which the financed entity is a party is greater than 
the aggregate principal amount of the financing transaction(s) linking 
any of the parties to the financing arrangement, then the 
recharacterized portion shall be determined by multiplying the payment 
by a fraction the numerator of which is equal to the lowest aggregate 
principal amount of the financing transaction(s) linking any of the 
parties to the financing arrangement and the denominator of which is 
the aggregate principal amount of the financing transaction(s) to which 
the financed entity is a party.
    Under Sec. 1.881-3(d)(1)(ii)(A), the principal amount of a 
financing transaction generally equals the amount of money, or the fair 
market value of other property, advanced, or subject to a lease or 
license, valued at the time of the financing transaction. However, in 
the case of a financing arrangement where the same property is 
advanced, or rights granted from the financing entity through the 
intermediate entity (or entities) to the financed entity, the property 
is valued on the date of the last financing arrangement. This rule is 
intended to minimize the distortive effect of currency or other market 
fluctuations when there is a time lag between financing transactions. 
In addition, the principal amount of certain types of financing 
transactions is subject to adjustment. Sections 1.881-3(d)(1)(ii) (B) 
through (D) provide more detailed guidance regarding how these general 
rules are applied to different types of financing transactions.
    Section 1.881-4 uses the general recordkeeping requirements under 
section 6001 to require a financed entity or any other person to keep 
records relevant to determining whether such person is a party to a 
financing arrangement and whether that financing arrangement may be 
recharacterized under Sec. 1.881-3. Corporations that otherwise would 
report certain information on total annual payments to related parties 
pursuant to sections 6038(a) and 6038A(a) must also maintain such 
records where the corporation knows or has reason to know that such 
transactions are part of a financing arrangement. Specifically, the 
final regulations require the entity to retain all records relating to 
the circumstances surrounding its participation in the financing 
transactions and financing arrangements, including minutes of board of 
directors meetings and board resolutions and materials from investment 
advisors regarding the structuring of the transaction.
    Under Sec. 1.1441-7(d), any person that is a withholding agent for 
purposes of section 1441 with respect to the transaction (whether the 
financed entity or an intermediate entity that is treated as an agent 
of the financing entity) must withhold in accordance with the 
recharacterization if it knows or has reason to know that the financing 
arrangement is a conduit financing arrangement. The final regulations 
provide examples of how the ``knows or has reason to know'' standard, 
which generally applies to all withholding agents, is to be applied in 
this context.

B. Discussion of Significant Comments

    Significant comments that relate to the application of the proposed 
regulation and the responses to them, including an explanation of the 
revisions made to the final regulation, are summarized below. Technical 
or drafting comments that have been reflected in the final regulations 
generally are not discussed.
1. General Approach
    As described above, the final regulations adopt the general ``tax 
avoidance'' standard of the proposed regulations. Several commentators 
criticized the proposed regulations for setting forth new standards for 
the recharacterization of conduit transactions. They argued that the 
rulings that preceded these regulations required matching cash flows 
from the financed entity to the conduit entity and from the conduit 
entity to the financing entity. Some commentators argued that, because 
in their view the regulations adopt new standards, the regulations 
should only be effective for transactions entered into after the 
enactment of section 7701(l), while others argued that the regulations 
should only apply to transactions entered into after the publication of 
the final regulations. Finally, some commentators suggested that the 
regulations constituted an override of our treaty obligations and might 
therefore be invalid.
    The IRS and Treasury believe that pre-section 7701(l) conduit 
rulings rested on a taxpayer having a tax avoidance purpose for 
structuring its transactions. The fact that an intermediate entity 
received and paid matching, or nearly matching, cash flows was evidence 
that the participation of the intermediate entity in the transaction 
did not serve a business purpose. Nevertheless, the fact that cash 
flows were not matched did not mean that the transaction had a business 
purpose.
    The final regulations generally apply to payments made by financed 
entities after the date which is 30 days after the date of publication 
of the regulations because the IRS and Treasury believe that the 
regulations reflect existing conduit principles. Moreover, even if the 
regulations had adopted a new standard, it would be inappropriate to 
grandfather transactions that admittedly had a tax avoidance purpose. 
The final regulations do not apply to interest payments covered by 
section 127(g)(3) of the Tax Reform Act of 1984, and to interest 
payments with respect to other debt obligations issued prior to October 
15, 1984 (whether or not such debt was issued by a Netherlands Antilles 
corporation). Prior law continues to apply with respect to payments on 
any such debt instruments.
    As noted in the preamble to the proposed regulations, the IRS and 
Treasury believe that these regulations supplement, but do not conflict 
with, the limitation on benefits articles in tax treaties. They do so 
by determining which person is the beneficial owner of income with 
respect to a particular financing arrangement. Because the financing 
entity is the beneficial owner of the income, it is entitled to claim 
the benefits of any income tax treaty to which it is entitled to reduce 
the amount of tax imposed by section 881 on that income. The conduit 
entity, as an agent of the financing entity, cannot claim the benefits 
of a treaty to reduce the amount of tax due under section 881 

[[Page 41000]]
with respect to payments made pursuant to the financing arrangement.
2. Discretion given to District Director
    a. Determination of whether conduit entity's participation will be 
disregarded. Because the proposed regulations utilize a tax avoidance 
test that depends on the facts and circumstances, discretion is given 
to the district director to determine whether the participation of an 
intermediate entity had as one of its principal purposes the avoidance 
of U.S. withholding tax. Among other things, the district director may 
determine the composition of the financing arrangement and the number 
of parties to the financing arrangement.
    Some commentators criticized this grant of discretion because they 
claimed that the regulations provide insufficient guidance regarding 
what factors the district director should take into account. Several 
commentators proposed adding presumptions, making certain existing 
presumptions irrebuttable or otherwise providing bright-line tests. One 
commentator suggested that the district director's discretion to 
determine the parties to a financing arrangement should be limited to 
the extent necessary to ensure that a taxpayer could prove that a 
different party that was entitled to treaty benefits was the real 
financing entity. Finally, another commentator suggested that the 
determination whether an intermediate entity's participation will be 
disregarded should be subject to review by a central control board in 
the National Office of the IRS.
    Because the final regulations retain the facts and circumstances 
test used in the proposed regulations, the final regulations do not 
significantly reduce the district director's discretion. As discussed 
below, it was not considered necessary to add additional factors 
because the objective list of factors is not exclusive. The final 
regulations do, however, provide more guidance regarding the tax 
avoidance purpose test by adding several more examples. In addition, 
the final regulations modify the factor relating to whether there has 
been a significant reduction in tax to allow the taxpayer to produce 
evidence that there was not a reduction in tax because the entity that 
was the ultimate source of funds also was entitled to treaty benefits. 
See Sec. 1.881-3(b)(2)(i).
    The final regulations do not adopt the suggestion that the district 
director's discretion be subject to review at the National Office 
level. The final regulations, like the proposed regulations, provide 
that the determination of whether a tax avoidance plan exists is based 
on all of the facts and circumstances surrounding the intermediate 
entity's participation in the financing arrangement. The IRS and 
Treasury believe that such a determination would best be made at the 
local level.
    b. Judicial standard of review. Because the district director is 
granted discretion by the regulations, his determinations generally 
will be reviewed by the court under an abuse of discretion standard. 
Commentators suggested that the district director's determination that 
an intermediate entity's participation should be disregarded should be 
reviewed by the court under this standard. One commentator instead 
suggested that courts review a district director's determination using 
a de novo standard of review. Another suggested that the IRS should be 
afforded only its normal presumption of correctness. The final 
regulations do not adopt these suggestions because they are 
fundamentally inconsistent with the grant of discretion to the district 
director.
3. Definitions
    a. Financing transaction, in general. Commentators pointed out that 
thedefinition of financing transaction in the proposed regulations 
encompassed transactions that clearly were not meant to be covered by 
the proposed regulations. For example, under the proposed regulations, 
a foreign parent that contributed an existing note from its domestic 
subsidiary to a foreign subsidiary in exchange for common stock of the 
subsidiary that did not have any debt-like features nevertheless would 
be treated as a financing entity because the foreign parent had made an 
advance of property (the note) pursuant to which the foreign subsidiary 
had ``become a party to an existing financing transaction''.
    The definitions of financing transaction and financing arrangement 
have been redrafted to address these concerns. See Sec. 1.881-3(a)(2) 
(i) and (ii). The effect of the new definitions is to take a 
``snapshot'' after all the transactions are in place to determine 
whether there is a financing arrangement.
    b. Equity. Commentators noted that the proposed regulations were 
inconsistent in their treatment of how a controlling interest in a 
corporation, either before or after a default, affected whether an 
equity arrangement was a financing transaction. In addition, 
commentators requested that the final regulations explicitly exempt 
``common stock'' and ``ordinary preferred stock'' from treatment as 
financing transactions.
    In response to the first of these comments and in a general attempt 
to clarify the types of equity instruments that are financing 
transactions, the final regulations revise the definition of financing 
transaction with respect to equity. See Sec. 1.881-3(a)(2)(ii) (A)(2) 
and (B). The new definition provides that the right to elect the 
majority of the board of directors will not, in and of itself, cause an 
equity instrument to be a financing arrangement. See Sec. 1.881-
3(a)(2)(ii)(B)(2)(i).
    As to the second suggestion, the final regulations do not create a 
separate exception from the definition of financing transaction for 
``common stock'' or ``ordinary perpetual preferred stock.'' Whether a 
transaction constitutes a financing transaction depends upon the terms 
of the transaction, not simply on the label attached to the 
transaction. Moreover, because these terms are not themselves well-
defined in either the Code or common law, the IRS and Treasury believe 
that excluding these categories of instruments would lead to disputes 
as to whether a particular instrument is ``common stock'' or, if not, 
whether it is ``ordinary'' perpetual preferred stock.
    c. Guarantees. Commentators asked that final regulations explicitly 
provide that guarantees are exempted from treatment as financing 
transactions. The IRS and Treasury believe that the new definition of 
financing transaction, which does not treat becoming a party to a 
financing transaction as itself a financing transaction, clarifies that 
a guarantee is not a financing transaction. Moreover, the final 
regulations add an example to eliminate any doubt in this regard. See 
Sec. 1.881-3(e) Example 1.
    d. Leases and licenses. The proposed regulations provide that 
leases and licenses are financing transactions. Some commentators 
suggested that the regulations not include leases and licenses in the 
definition of financing transaction or that the IRS reserve on the 
subject of leases until it had more time to study the matter.
    Other commentators proposed that certain types of leases, for 
instance short-term leases and leveraged leases, be excluded from the 
definition of financing transaction. The commentators pointed out that 
certain leveraged leases would be subject to recharacterization under 
the proposed regulations even though, in substance, the financing 
arrangement is the equivalent of a loan from a financing entity 
entitled to a zero rate of withholding on interest. Under Sec. 1.881-
3(d)(2) of the proposed regulations, 

[[Page 41001]]
which provides that the nature of the recharacterized payments is 
determined by reference to the transaction to which the financed entity 
is a party, the participation of the intermediate entity in a leveraged 
lease would substantially reduce the tax imposed under section 881 if 
the treaty between the United States and the country in which the 
lender was organized allowed withholding on rental payments. Because 
all of the negative factors of Sec. 1.881-3(c)(2) and the ``but-for'' 
test of Sec. 1.881-3(b) of the proposed regulations are met in a 
standard leveraged lease, this reduction in tax would allow the 
district director to recharacterize the financing arrangement as a 
conduit financing arrangement.
    The IRS and Treasury believe that all leases and licenses, of 
whatever duration, can be used by taxpayers to structure a conduit 
financing arrangement. Accordingly, the final regulations continue to 
include leases and licenses in the definition of financing transaction. 
See Sec. 1.881-3(a)(2)(ii)(A)(3). However, the final regulations change 
the character rule in the case of deductible payments. In those cases, 
the character of the payments under the recharacterized transaction is 
determined by reference to the financing transaction to which the 
financing entity is a party. As a result, under the final regulations, 
a leveraged lease generally will not be recharacterized as a conduit 
arrangement if the ultimate lender would be entitled to an exemption 
from withholding tax on interest received from the financed entity, 
even if rental payments made by the financed entity to the financing 
entity would have been subject to withholding tax.
    e. Related. As noted above, it is more difficult for an 
intermediate entity to be a conduit entity if it is not related to 
either the financing entity or the financed entity. The definition of 
persons who are related to another person generally follows the 
definition used in section 6038A. One commentator suggested that the 
final regulations eliminate the constructive ownership rule of section 
267(c)(3) from the definition of related. The same commentator further 
suggested that a person under common control within the meaning of 
section 482 should not be a related person for purposes of this 
regulation.
    The IRS and Treasury believe that the term related should be 
broadly defined to ensure that the additional protection from 
recharacterization provided by the so-called ``but for'' test flows 
only to those entities that are not under the effective control of 
either the financing or the financed entity. Accordingly, the final 
regulations retain the definition of related provided in the proposed 
regulations. See Sec. 1.881-3(a)(2)(v).
4. Factors Indicating the Presence or Absence of a Tax Avoidance Plan
    a. In general. The proposed regulations provide that whether the 
participation of the intermediary in the financing arrangement is 
pursuant to a tax avoidance plan is determined based on all the 
relevant facts and circumstances. In addition, the proposed regulations 
provide a list of some of the factors that will be taken into account: 
the extent of the reduction in tax; the liquidity of the intermediate 
entity; the timing of the transactions; and, in the case of related 
entities, the nature of the business(es) of such entities.
    Commentators asked that the final regulations adopt a number of 
additional factors. For example, commentators asked that the 
dissimilarity of cash flows or of financing transactions making up the 
financing arrangement constitute a positive factor (i.e., a factor that 
evidences the absence of a tax avoidance plan). Commentators also 
suggested that the positive factors include the fact that income was 
subject to net tax in the United States or in a foreign jurisdiction 
or, alternatively, that the transaction reduced other U.S. or foreign 
taxes more than it reduced the U.S. withholding tax (indicating that 
the purpose of the transaction was to avoid taxes other than the tax 
imposed by section 881).
    The factors proposed by commentators generally relate to the issue 
of whether there were purposes, other than the avoidance of the tax 
imposed by section 881, for the participation of the intermediate 
entity in the financing arrangement. The final regulations do not add 
factors relating to purposes for the participation of an intermediate 
entity in a financing arrangement. However, Sec. 1.881-3(b)(1) of the 
final regulations addresses the issue by clarifying that the district 
director will consider all available evidence regarding the purposes 
for the participation of the intermediate entity.
    b. Factor relating to a complementary or integrated business. One 
of the factors listed in the proposed regulations is whether, if the 
intermediate entity is related to the financed entity, the two parties 
enter into a financing transaction to finance a trade or business 
actively engaged in by the financed entity that forms a part of, or is 
complementary to, a substantial trade or business actively engaged in 
by the intermediate entity. One commentator expressed uncertainty as to 
the policy behind this factor.
    The intent of this factor was to take into account the fact that 
related corporations engaged in integrated businesses may enter into 
many financing transactions in the course of conducting those 
businesses, the vast majority of which have no tax avoidance purpose. 
Accordingly, Sec. 1.881-3(b)(2)(iv) of the final regulations clarifies 
that the district director will take into account whether a transaction 
is entered into in the ordinary course of integrated or complementary 
trades or businesses in determining whether there is a tax avoidance 
plan. In addition, the factor is broadened so as to apply not only to 
transactions between the intermediate entity and the financed entity 
but to transactions between any two parties to the financing 
arrangement that are related to each other.
5. Presumption Regarding Significant Financing Activities
    The proposed regulations provide that, in the case of an 
intermediate entity that is related to either the financing entity or 
the financed entity, a presumption of no tax avoidance arises where the 
intermediate entity performs significant financing activities for such 
entities. Among other things, the provision required employees of the 
intermediate entity (other than an intermediate entity that earned 
``active rents'' or ``active royalties'') to manage ``business risks'' 
arising from the transaction on an ongoing basis. The proposed 
regulations provide an example showing that, if there are no such 
business risks because the intermediate entity has hedged itself fully 
at the time it entered into the financing transactions, the entity is 
not described in the provision.
    One commentator criticized the articulation of the significant 
financing activities presumption in the proposed regulations on the 
grounds that the test should be solely whether the participation of the 
intermediate entity produces (or could be expected to produce) 
efficiency savings through a reduction in overhead costs and the 
ability to hedge the group's positions on a net basis. Another 
commentator proposed extending the presumption for significant 
financing activities to intermediate entities that are unrelated to 
both the financed entity and the financing entity.
    As to the first comment, the IRS and Treasury agree that there is 
not a sufficient business purpose for the centralization of financing 
activities of a group of related corporations in a single 

[[Page 41002]]
corporation unless the taxpayer anticipates efficiency savings. 
Although the prospect of such savings in general may establish a 
business purpose for the establishment of the subsidiary, it does not 
prevent the subsidiary from acting as a conduit with respect to any 
particular financing arrangement. This is demonstrated by the hedging 
example described above, the rationale for which is that either the 
financed entity or the financing entity could have entered into the 
long-term hedge so there is no economic justification for the 
participation of the intermediate entity in the particular financing 
arrangement. The IRS and Treasury believe that an affiliate that is not 
taking a continuing active role in coordinating and managing a 
financing transaction should not be entitled to the presumption that 
its participation is not pursuant to a tax avoidance plan.
    As to the suggestion of extending the significant financing 
activities presumption to unrelated parties, the IRS and Treasury 
believe that this extension would be inconsistent with the purpose of 
the presumption. The significant financing presumption recognizes that 
there are legitimate business reasons for conducting financing 
activities through a centralized financing and hedging subsidiary. The 
decision to have an unrelated intermediate entity participate in a 
financing transaction is based on different considerations, including 
the regulatory effects of such transactions and the interests of the 
shareholders of the unrelated intermediary. These considerations are 
addressed by providing that such entities will not be conduit entities 
unless they satisfy the ``but for'' test. The final regulations do not 
extend the significant financing activities presumption to unrelated 
parties.
    Accordingly, the requirements for the significant financing 
activities presumption in Sec. 1.881-3(b)(3) of the final regulations 
are generally the same as those in the proposed regulations. However, 
the final regulations do add a requirement that the participation of 
the intermediate entity generate efficiency savings, and change the 
term business risks to market risks (to differentiate the risks of 
currency and interest rate movements from other, primarily credit, 
risks). In addition, one of the examples that illustrates the 
significant financing activities presumption has been revised to 
indicate that a finance subsidiary may be managing market risks even in 
the case of a fully-hedged transaction if the intermediate entity 
routinely terminates such long term arrangements when it finds cheaper 
hedging alternatives. See Sec. 1.881-3(e) Example 22.
6. ``But for'' Test
    a. In general. Under the proposed regulations, if the intermediate 
entity is not related to either the financing entity or the financed 
entity, the financing arrangement will not be recharacterized unless 
the intermediate entity would not have participated in the financing 
arrangement on substantially the same terms ``but for'' the fact that 
the financing entity advanced money or property to (or entered into a 
lease or license with) the intermediate entity.
    Commentators asked for clarification regarding what it means for 
terms to be not substantially the same. One commentator proposed using 
the standards for material modifications under section 1001.
    The IRS and Treasury believe that an attempt to set forth a 
comprehensive system of bright-line rules like those suggested by 
commentators would add unnecessary complexity to the regulation, given 
its anti-abuse purpose. Accordingly, the final regulations make no 
change to the proposed regulations in this regard.
    b. Presumption where financing entity guarantees the liability of 
the financed entity. Under the proposed regulations, it is presumed 
that the intermediate entity would not have participated in the 
financing arrangement on substantially the same terms if, in addition 
to entering into a financing transaction with the intermediate entity, 
the financing entity guarantees the financed entity's liabilities under 
its financing transaction with the intermediate entity. A taxpayer may 
rebut this presumption by producing clear and convincing evidence that 
the intermediate entity would have participated in the financing 
arrangement on substantially the same terms even if the financing 
entity had not entered into a financing transaction with the 
intermediate entity.
    Several commentators asked for clarification of this presumption. 
Some commentators suggested that the existence of a guarantee makes the 
existence of the financing transaction between the financing entity and 
the intermediate entity irrelevant to the determination of whether the 
intermediate entity would have participated in the financing 
arrangement on substantially the same terms. Another commentator 
proposed eliminating the ``clear and convincing evidence'' standard on 
the grounds that it is too difficult an evidentiary burden for the 
taxpayer to overcome.
    The presumption regarding guarantees originated in Rev. Rul. 87-89 
(1987-2 C.B. 195), which articulated the ``but for'' test in 
substantially the same terms as adopted in the final regulations. Rev. 
Rul. 87-89 provided that a statutory or contractual right of offset is 
presumptive evidence that the unrelated intermediary would not have 
participated in the financing arrangement on substantially the same 
terms without the financing transaction from the financing entity. The 
proposed regulations extend the presumption to all guarantees in order 
to prevent taxpayers from using forms of credit support other than the 
right of offset to avoid this presumption. The final regulations retain 
this rule. See Sec. 1.881-3(c)(2).
    The final regulations also retain the ``clear and convincing 
evidence'' standard. The taxpayer always must overcome the presumption 
of correctness in favor of the government by a preponderance of the 
evidence. Therefore, in order for this additional presumption to have 
any effect, it is necessary to raise the evidentiary standard. In 
addition, this standard of proof is not unreasonable, because an 
intermediate entity that is unrelated to the financing entity and the 
financed entity and that proves, by clear and convincing evidence, that 
it would have entered into the financing arrangement on substantially 
the same terms will avoid recharacterization as a conduit entity even 
though its participation in the financing arrangement is pursuant to a 
tax avoidance plan.
7. Multiple Intermediate Entities
    a. In general. The proposed regulations provide guidance as to how 
some but not all of the operative provisions and presumptions apply to 
multiple intermediate entities. Several commentators asked that the 
final regulations clarify the manner in which the operative rules apply 
in the case of multiple intermediate entities. The final regulations 
provide additional guidance in the relevant operative rules and 
presumptions. In addition, the final regulations modify the example in 
the proposed regulations relating to multiple intermediate entities to 
clarify how some of these provisions and presumptions apply. See 
Sec. 1.881-3(e) Example 8.
    b. Special rule for related persons. Section 1.881-3(a)(4)(ii)(B) 
of the proposed regulations allows the district director to treat 
related persons as a single intermediate entity if he determines that 
one of the principal purposes for the structuring of a transaction was 
the avoidance of the 

[[Page 41003]]
application of the conduit financing arrangement rules. Several 
commentators suggested that the final regulations eliminate this 
section. One commentator suggested that the rule be limited to 
situations where one related corporation made an equity investment in 
another. Another believed that the IRS and Treasury should ``wait and 
see'' whether such a rule was really necessary to prevent taxpayers 
from circumventing the conduit financing arrangement rules.
    The IRS and Treasury believe that an anti-abuse rule is necessary 
to prevent the circumvention of these rules through manipulation of the 
definition of financing arrangement. Accordingly, Sec. 1.881-
3(a)(2)(i)(B) of the final regulations retains the related party anti-
abuse rule. Moreover, the final regulations include another more 
general anti-abuse rule that allows the district director to treat 
related intermediate entities as a single intermediate entity if he 
determines that one of the principal purposes for the involvement of 
multiple intermediate entities in the financing arrangement is to 
prevent the characterization of an entity as a conduit, to reduce the 
portion of a payment that is subject to withholding tax or otherwise to 
circumvent any other provision of this section. See Sec. 1.881-
3(a)(4)(ii)(B). This rule prevents a taxpayer from structuring a 
financing transaction with a small principal amount to reduce the 
amount of the recharacterized payment, and thus replaces the second 
half of the rule set forth in proposed regulation Sec. 1.881-
3(a)(4)(ii)(B). This rule is illustrated in Sec. 1.881-3(e) Example 7.
8. Principal Amount
    The proposed regulations provide that the principal amount of a 
financing transaction shall be determined on the basis of all of the 
facts and circumstances. Under the proposed regulations, the principal 
amount generally equals the amount of money, or the fair market value 
of other property (determined as of the time that the financing 
transaction is entered into), advanced in the financing transaction. 
The principal amount of a financing transaction is subject to 
adjustments, as appropriate.
    Some commentators asked for clarification regarding whether 
adjustments would be made to the principal amount of a financing 
transaction to take account of amortization or depreciation. Another 
commentator suggested that the final regulations provide that 
calculations be performed in the functional currency of the 
intermediate entity in order to isolate currency fluctuations.
    The final regulations provide that adjustments for depreciation and 
amortization are made when calculating the principal amount of a 
leasing or licensing financing transaction. See Sec. 1.881-
3(d)(1)(ii)(A).
    Although the IRS and Treasury agree that the effect of currency 
fluctuations should be minimized, they believe that determining the 
principal amount in the functional currency of the intermediate entity 
would not always yield the correct result. Accordingly, the final 
regulations eliminate currency and market fluctuations to the extent 
possible by providing that, when the same property has been advanced by 
the financing entity and received by the financed entity, the 
determination of the principal amount is made as of the date the last 
financing transaction is entered into. See Sec. 1.881-3(d)(1)(ii)(A). 
An example has been added to demonstrate how this rule applies to 
transactions in currencies other than the U.S. dollar. See Sec. 1.881-
3(e) Example 25.
9. Correlative Adjustments
    The proposed regulations do not provide for correlative adjustments 
in the case of the district director's recharacterization of a 
financing arrangement as a transaction directly between a financing 
entity and a financed entity.
    Commentators have requested that taxpayers be allowed to make 
correlative adjustments if their transactions are recharacterized. 
Commentators generally would not, however, allow the IRS to make 
correlative adjustments where such adjustments would result in greater 
tax liability.
    The final regulations, like the proposed regulations, do not 
provide for correlative adjustments. The IRS and Treasury agree with 
commentators that it is not appropriate to use regulations that are 
intended to prevent the avoidance of tax under section 881 to 
recharacterize transactions for purposes of other code sections. 
Accordingly, taxpayers should not be able to use these regulations to 
make correlative adjustments to their tax returns.
10. Recordkeeping and Reporting Requirements
    The proposed regulations require corporations that would otherwise 
report certain information on total annual payments to related parties 
pursuant to sections 6038(a) and 6038A(a) to report such information on 
a transaction-by-transaction basis where the corporation knows or has 
reason to know that such transactions are part of a financing 
arrangement. In addition, the proposed regulations require a financed 
entity or any other person to keep records relevant to determining 
whether such person is a party to a financing arrangement that is 
subject to recharacterization as part of their general recordkeeping 
requirements under section 6001.
    Commentators criticized the reporting requirements imposed by the 
proposed regulation as unduly burdensome in that they would require 
reporting of all financing arrangements and not simply those subject to 
recharacterization as conduit financing arrangements. Moreover, they 
pointed out that, because the regulations only would require reporting 
of those transactions to which the financed entity is a party, the 
information reported would not be of significant value. The reported 
information would not be sufficient to allow the IRS to connect the 
reported financing transaction to the other financing transactions 
making up a financing arrangement.
    The final regulations eliminate the reporting requirements provided 
in the proposed regulations and provide more specific guidance as to 
the type of records affected entities must retain. The recordkeeping 
requirements of Sec. 1.881-4 have been revised to incorporate all of 
the information that entities would have had to report under the 
proposed regulations. In addition, the final regulations require the 
entity to retain all records relating to the circumstances surrounding 
its participation in the financing transactions and financing 
arrangements, including minutes of board of directors meetings and 
board resolutions and materials from investment advisors regarding the 
structuring of the transaction. See Sec. 1.881-4(c)(2).
11. Withholding Obligations
    Under the proposed regulations, a person that is otherwise a 
withholding agent is required to withhold tax under section 1441 or 
section 1442 in accordance with the recharacterization of a financing 
arrangement if the person knows or has reason to know that the 
financing arrangement is subject to recharacterization under sections 
871 or 881. Commentators asked for additional guidance regarding the 
application of the ``know or have reason to know'' standard in the 
context of conduit financing arrangements. The final regulations 
include several examples regarding the circumstances in which a 
financed entity does and does not have 

[[Page 41004]]
reason to know of the existence of a conduit financing arrangement.

C. Status of Revenue Rulings

    The proposed regulations did not address the status of the existing 
revenue rulings relating to conduit arrangements. Commentators have 
asked for guidance regarding their status.
    Concurrent with the publication of these regulations, the IRS is 
issuing a revenue ruling modifying the existing rulings. The revenue 
ruling limits the application of the old revenue rulings in the context 
of withholding tax to payments made before the effective date of the 
final regulations and to other provisions not covered by the conduit 
regulations.

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 is hereby certified that 
these regulations will not have a significant economic impact on a 
substantial number of small entities. Accordingly, a regulatory 
flexibility analysis is not required. This certification is based on 
the information that follows. These regulations affect entities engaged 
in cross-border multiple-party financing arrangements. It is assumed 
that a substantial number of small entities will not engage in such 
financing arrangements. 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 businesses.

    Drafting Information: The principal author of these regulations 
is Elissa J. Shendalman, Office of the Associate Chief Counsel 
(International). However, other personnel from the IRS and the 
Treasury Department participated in their development.

List of Subjects

26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

    Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by 
removing the entry for ``Sections 1.6038A-1 through 1.6038A-7'' and 
adding entries in numerical order to read as follows:

    Authority: 26 U.S.C. 7805 * * *
    Section 1.871-1 also issued under 26 U.S.C. 7701(l). * * *
    Section 1.881-3 also issued under 26 U.S.C. 7701(l).
    Section 1.881-4 also issued under 26 U.S.C. 7701(l). * * *
    Section 1.1441-3 also issued under 26 U.S.C. 7701(l). * * *
    Section 1.1441-7 also issued under 26 U.S.C. 7701(l). * * *
    Section 1.6038A-1 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-2 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-3 also issued under 26 U.S.C. 6038A and 7701(l).
    Section 1.6038A-4 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-5 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-6 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-7 also issued under 26 U.S.C. 6038A. * * *
    Section 1.7701(l)-1 also issued under 26 U.S.C. 7701(l). * * *

    Par. 2. In Sec. 1.871-1, paragraph (b)(7) is added to read as 
follows:


Sec. 1.871-1   Classification and manner of taxing alien individuals.

* * * * *
    (b) * * *
    (7) Conduit financing arrangements. For rules regarding conduit 
financing arrangements, see Secs. 1.881-3 and 1.881-4.
* * * * *
    Par. 3. Sections 1.881-0, 1.881-3 and 1.881-4 are added to read as 
follows:


Sec. 1.881-0   Table of contents.

    This section lists the major headings for Secs. 1.881-1 through 
1.881-4.

Sec. 1.881-1  Manner of Taxing Foreign Corporations

    (a) Classes of foreign corporations.
    (b) Manner of taxing.
    (1) Foreign corporations not engaged in U.S. business.
    (2) Foreign corporations engaged in U.S. business.
    (c) Meaning of terms.
    (d) Rules applicable to foreign insurance companies.
    (1) Corporations qualifying under subchapter L.
    (2) Corporations not qualifying under subchapter L.
    (e) Other provisions applicable to foreign corporations.
    (1) Accumulated earnings tax.
    (2) Personal holding company tax.
    (3) Foreign personal holding companies.
    (4) Controlled foreign corporations.
    (i) Subpart F income and increase of earnings invested in U.S. 
property.
    (ii) Certain accumulations of earnings and profits.
    (5) Changes in tax rate.
    (6) Consolidated returns.
    (7) Adjustment of tax of certain foreign corporations.
    (f) Effective date.

Sec. 1.881-2  Taxation of Foreign Corporations Not Engaged in U.S. 
Business

    (a) Imposition of tax.
    (b) Fixed or determinable annual or periodical income.
    (c) Other income and gains.
    (1) Items subject to tax.
    (2) Determination of amount of gain.
    (d) Credits against tax.
    (e) Effective date.

Sec. 1.881-3  Conduit Financing Arrangements

    (a) General rules and definitions.
    (1) Purpose and scope.
    (2) Definitions.
    (i) Financing arrangement.
    (A) In general.
    (B) Special rule for related parties.
    (ii) Financing transaction.
    (A) In general.
    (B) Limitation on inclusion of stock or similar interests.
    (iii) Conduit entity.
    (iv) Conduit financing arrangement.
    (v) Related.
    (3) Disregard of participation of conduit entity.
    (i) Authority of district director.
    (ii) Effect of disregarding conduit entity.
    (A) In general.
    (B) Character of payments made by the financed entity.
    (C) Effect of income tax treaties.
    (D) Effect on withholding tax.
    (E) Special rule for a financing entity that is unrelated to 
both intermediate entity and financed entity.
    (iii) Limitation on taxpayers's use of this section.
    (4) Standard for treatment as a conduit entity.
    (i) In general.
    (ii) Multiple intermediate entities.
    (A) In general.
    (B) Special rule for related persons.
    (b) Determination of whether participation of intermediate 
entity is pursuant to a tax avoidance plan.
    (1) In general.
    (2) Factors taken into account in determining the presence or 
absence of a tax avoidance purpose.
    (i) Significant reduction in tax.
    (ii) Ability to make the advance.
    (iii) Time period between financing transactions.
    (iv) Financing transactions in the ordinary course of business.
    (3) Presumption if significant financing activities performed by 
a related intermediate entity.
    (i) General rule.
    (ii) Significant financing activities.
    (A) Active rents or royalties.
    (B) Active risk management.
    (c) Determination of whether an unrelated intermediate entity 
would not have participated in financing arrangement on 
substantially same terms.
    (1) In general.

[[Page 41005]]

    (2) Effect of guarantee.
    (i) In general.
    (ii) Definition of guarantee.
    (d) Determination of amount of tax liability.
    (1) Amount of payment subject to recharacterization.
    (i) In general.
    (ii) Determination of principal amount.
    (A) In general.
    (B) Debt instruments and certain stock.
    (C) Partnership and trust interests.
    (D) Leases and licenses.
    (2) Rate of tax.
    (e) Examples.
    (f) Effective date.

Sec. 1.881-4  Recordkeeping Requirements Concerning Conduit 
Financing Arrangements

    (a) Scope.
    (b) Recordkeeping requirements.
    (1) In general.
    (2) Application of sections 6038 and 6038A.
    (c) Records to be maintained.
    (1) In general.
    (2) Additional documents.
    (3) Effect of record maintenance requirement.
    (d) Effective date.


Sec. 1.881-3  Conduit financing arrangements.

    (a) General rules and definitions--(1) Purpose and scope. Pursuant 
to the authority of section 7701(l), this section provides rules that 
permit the district director to disregard, for purposes of section 881, 
the participation of one or more intermediate entities in a financing 
arrangement where such entities are acting as conduit entities. For 
purposes of this section, any reference to tax imposed under section 
881 includes, except as otherwise provided and as the context may 
require, a reference to tax imposed under sections 871 or 884(f)(1)(A) 
or required to be withheld under section 1441 or 1442. See Sec. 1.881-4 
for recordkeeping requirements concerning financing arrangements. See 
Secs. 1.1441-3(j) and 1.1441-7(d) for withholding rules applicable to 
conduit financing arrangements.
    (2) Definitions. The following definitions apply for purposes of 
this section and Secs. 1.881-4, 1.1441-3(j) and 1.1441-7(d).
    (i) Financing arrangement--(A) In general. Financing arrangement 
means a series of transactions by which one person (the financing 
entity) advances money or other property, or grants rights to use 
property, and another person (the financed entity) receives money or 
other property, or rights to use property, if the advance and receipt 
are effected through one or more other persons (intermediate entities) 
and, except in cases to which paragraph (a)(2)(i)(B) of this section 
applies, there are financing transactions linking the financing entity, 
each of the intermediate entities, and the financed entity. A transfer 
of money or other property in satisfaction of a repayment obligation is 
not an advance of money or other property. A financing arrangement 
exists regardless of the order in which the transactions are entered 
into, but only for the period during which all of the financing 
transactions coexist. See Examples 1, 2, and 3 of paragraph (e) of this 
section for illustrations of the term financing arrangement.
    (B) Special rule for related parties. If two (or more) financing 
transactions involving two (or more) related persons would form part of 
a financing arrangement but for the absence of a financing transaction 
between the related persons, the district director may treat the 
related persons as a single intermediate entity if he determines that 
one of the principal purposes for the structure of the financing 
transactions is to prevent the characterization of such arrangement as 
a financing arrangement. This determination shall be based upon all of 
the facts and circumstances, including, without limitation, the factors 
set forth in paragraph (b)(2) of this section. See Examples 4 and 5 of 
paragraph (e) of this section for illustrations of this paragraph 
(a)(2)(i)(B).
    (ii) Financing transaction--(A) In general. Financing transaction 
means--
    (1) Debt;
    (2) Stock in a corporation (or a similar interest in a partnership 
or trust) that meets the requirements of paragraph (a)(2)(ii)(B) of 
this section;
    (3) Any lease or license; or
    (4) Any other transaction (including an interest in a trust 
described in sections 671 through 679) pursuant to which a person makes 
an advance of money or other property or grants rights to use property 
to a transferee who is obligated to repay or return a substantial 
portion of the money or other property advanced, or the equivalent in 
value. This paragraph (a)(2)(ii)(A)(4) shall not apply to the posting 
of collateral unless the collateral consists of cash or the person 
holding the collateral is permitted to reduce the collateral to cash 
(through a transfer, grant of a security interest or similar 
transaction) prior to default on the financing transaction secured by 
the collateral.
    (B) Limitation on inclusion of stock or similar interests--(1) In 
general. Stock in a corporation (or a similar interest in a partnership 
or trust) will constitute a financing transaction only if one of the 
following conditions is satisfied--
    (i) The issuer is required to redeem the stock or similar interest 
at a specified time or the holder has the right to require the issuer 
to redeem the stock or similar interest or to make any other payment 
with respect to the stock or similar interest;
    (ii) The issuer has the right to redeem the stock or similar 
interest, but only if, based on all of the facts and circumstances as 
of the issue date, redemption pursuant to that right is more likely 
than not to occur; or
    (iii) The owner of the stock or similar interest has the right to 
require a person related to the issuer (or any other person who is 
acting pursuant to a plan or arrangement with the issuer) to acquire 
the stock or similar interest or make a payment with respect to the 
stock or similar interest.
    (2) Rules of special application--(i) Existence of a right. For 
purposes of this paragraph (a)(2)(ii)(B), a person will be considered 
to have a right to cause a redemption or payment if the person has the 
right (other than rights arising, in the ordinary course, between the 
date that a payment is declared and the date that a payment is made) to 
enforce the payment through a legal proceeding or to cause the issuer 
to be liquidated if it fails to redeem the interest or to make a 
payment. A person will not be considered to have a right to force a 
redemption or a payment if the right is derived solely from ownership 
of a controlling interest in the issuer in cases where the control does 
not arise from a default or similar contingency under the instrument. 
The person is considered to have such a right if the person has the 
right as of the issue date or, as of the issue date, it is more likely 
than not that the person will receive such a right, whether through the 
occurrence of a contingency or otherwise.
    (ii) Restrictions on payment. The fact that the issuer does not 
have the legally available funds to redeem the stock or similar 
interest, or that the payments are to be made in a blocked currency, 
will not affect the determinations made pursuant to this paragraph 
(a)(2)(ii)(B).
    (iii) Conduit entity means an intermediate entity whose 
participation in the financing arrangement may be disregarded in whole 
or in part pursuant to this section, whether or not the district 
director has made a determination that the intermediate entity should 
be disregarded under paragraph (a)(3)(i) of this section.
    (iv) Conduit financing arrangement means a financing arrangement 
that is effected through one or more conduit entities.
    (v) Related means related within the meaning of sections 267(b) or 
707(b)(1), or controlled within the meaning of section 482, and the 
regulations under those sections. For purposes of 

[[Page 41006]]
determining whether a person is related to another person, the 
constructive ownership rules of section 318 shall apply, and the 
attribution rules of section 267(c) also shall apply to the extent they 
attribute ownership to persons to whom section 318 does not attribute 
ownership.
    (3) Disregard of participation of conduit entity--(i) Authority of 
district director. The district director may determine that the 
participation of a conduit entity in a conduit financing arrangement 
should be disregarded for purposes of section 881. For this purpose, an 
intermediate entity will constitute a conduit entity if it meets the 
standards of paragraph (a)(4) of this section. The district director 
has discretion to determine the manner in which the standards of 
paragraph (a)(4) of this section apply, including the financing 
transactions and parties composing the financing arrangement.
    (ii) Effect of disregarding conduit entity--(A) In general. If the 
district director determines that the participation of a conduit entity 
in a financing arrangement should be disregarded, the financing 
arrangement is recharacterized as a transaction directly between the 
remaining parties to the financing arrangement (in most cases, the 
financed entity and the financing entity) for purposes of section 881. 
To the extent that a disregarded conduit entity actually receives or 
makes payments pursuant to a conduit financing arrangement, it is 
treated as an agent of the financing entity. Except as otherwise 
provided, the recharacterization of the conduit financing arrangement 
also applies for purposes of sections 871, 884(f)(1)(A), 1441, and 1442 
and other procedural provisions relating to those sections. This 
recharacterization will not otherwise affect a taxpayer's Federal 
income tax liability under any substantive provisions of the Internal 
Revenue Code. Thus, for example, the recharacterization generally 
applies for purposes of section 1461, in order to impose liability on a 
withholding agent who fails to withhold as required under Sec. 1.1441-
3(j), but not for purposes of Sec. 1.882-5.
    (B) Character of payments made by the financed entity. If the 
participation of a conduit financing arrangement is disregarded under 
this paragraph (a)(3), payments made by the financed entity generally 
shall be characterized by reference to the character (e.g., interest or 
rent) of the payments made to the financing entity. However, if the 
financing transaction to which the financing entity is a party is a 
transaction described in paragraph (a)(2)(ii)(A)(2) or (4) of this 
section that gives rise to payments that would not be deductible if 
paid by the financed entity, the character of the payments made by the 
financed entity will not be affected by the disregard of the 
participation of a conduit entity. The characterization provided by 
this paragraph (a)(3)(ii)(B) does not, however, extend to qualification 
of a payment for any exemption from withholding tax under the Internal 
Revenue Code or a provision of any applicable tax treaty if such 
qualification depends on the terms of, or other similar facts or 
circumstances relating to, the financing transaction to which the 
financing entity is a party that do not apply to the financing 
transaction to which the financed entity is a party. Thus, for example, 
payments made by a financed entity that is not a bank cannot qualify 
for the exemption provided by section 881(i) of the Code even if the 
loan between the financed entity and the conduit entity is a bank 
deposit.
    (C) Effect of income tax treaties. Where the participation of a 
conduit entity in a conduit financing arrangement is disregarded 
pursuant to this section, it is disregarded for all purposes of section 
881, including for purposes of applying any relevant income tax 
treaties. Accordingly, the conduit entity may not claim the benefits of 
a tax treaty between its country of residence and the United States to 
reduce the amount of tax due under section 881 with respect to payments 
made pursuant to the conduit financing arrangement. The financing 
entity may, however, claim the benefits of any income tax treaty under 
which it is entitled to benefits in order to reduce the rate of tax on 
payments made pursuant to the conduit financing arrangement that are 
recharacterized in accordance with paragraph (a)(3)(ii)(B) of this 
section.
    (D) Effect on withholding tax. For the effect of recharacterization 
on withholding obligations, see Secs. 1.1441-3(j) and 1.1441-7(d).
    (E) Special rule for a financing entity that is unrelated to both 
intermediate entity and financed entity--(1) Liability of financing 
entity. Notwithstanding the fact that a financing arrangement is a 
conduit financing arrangement, a financing entity that is unrelated to 
the financed entity and the conduit entity (or entities) shall not 
itself be liable for tax under section 881 unless the financing entity 
knows or has reason to know that the financing arrangement is a conduit 
financing arrangement. But see Sec. 1.1441-3(j) for the withholding 
agent's withholding obligations.
    (2) Financing entity's knowledge--(i) In general. A financing 
entity knows or has reason to know that the financing arrangement is a 
conduit financing arrangement only if the financing entity knows or has 
reason to know of facts sufficient to establish that the financing 
arrangement is a conduit financing arrangement, including facts 
sufficient to establish that the participation of the intermediate 
entity in the financing arrangement is pursuant to a tax avoidance 
plan. A person that knows only of the financing transactions that 
comprise the financing arrangement will not be considered to know or 
have reason to know of facts sufficient to establish that the financing 
arrangement is a conduit financing arrangement.
    (ii) Presumption regarding financing entity's knowledge. It shall 
be presumed that the financing entity does not know or have reason to 
know that the financing arrangement is a conduit financing arrangement 
if the financing entity is unrelated to all other parties to the 
financing arrangement and the financing entity establishes that the 
intermediate entity who is a party to the financing transaction with 
the financing entity is actively engaged in a substantial trade or 
business. An intermediate entity will not be considered to be engaged 
in a trade or business if its business is making or managing 
investments, unless the intermediate entity is actively engaged in a 
banking, insurance, financing or similar trade or business and such 
business consists predominantly of transactions with customers who are 
not related persons. An intermediate entity's trade or business is 
substantial if it is reasonable for the financing entity to expect that 
the intermediate entity will be able to make payments under the 
financing transaction out of the cash flow of that trade or business. 
This presumption may be rebutted if the district director establishes 
that the financing entity knew or had reason to know that the financing 
arrangement is a conduit financing arrangement. See Example 6 of 
paragraph (e) of this section for an illustration of the rules of this 
paragraph (a)(3)(ii)(E).
    (iii) Limitation on taxpayer's use of this section. A taxpayer may 
not apply this section to reduce the amount of its Federal income tax 
liability by disregarding the form of its financing transactions for 
Federal income tax purposes or by compelling the district director to 
do so. See, however, paragraph (b)(2)(i) of this section for rules 
regarding the taxpayer's ability to show that the participation of one 
or more intermediate entities results in no significant reduction in 
tax. 

[[Page 41007]]

    (4) Standard for treatment as a conduit entity--(i) In general. An 
intermediate entity is a conduit entity with respect to a financing 
arrangement if--
    (A) The participation of the intermediate entity (or entities) in 
the financing arrangement reduces the tax imposed by section 881 
(determined by comparing the aggregate tax imposed under section 881 on 
payments made on financing transactions making up the financing 
arrangement with the tax that would have been imposed under paragraph 
(d) of this section);
    (B) The participation of the intermediate entity in the financing 
arrangement is pursuant to a tax avoidance plan; and
    (C) Either--
    (1) The intermediate entity is related to the financing entity or 
the financed entity; or
    (2) The intermediate entity would not have participated in the 
financing arrangement on substantially the same terms but for the fact 
that the financing entity engaged in the financing transaction with the 
intermediate entity.
    (ii) Multiple intermediate entities--(A) In general. If a financing 
arrangement involves multiple intermediate entities, the district 
director will determine whether each of the intermediate entities is a 
conduit entity. The district director will make the determination by 
applying the special rules for multiple intermediate entities provided 
in this section or, if no special rules are provided, applying 
principles consistent with those of paragraph (a)(4)(i) of this section 
to each of the intermediate entities in the financing arrangement.
    (B) Special rule for related persons. The district director may 
treat related intermediate entities as a single intermediate entity if 
he determines that one of the principal purposes for the involvement of 
multiple intermediate entities in the financing arrangement is to 
prevent the characterization of an intermediate entity as a conduit 
entity, to reduce the portion of a payment that is subject to 
withholding tax or otherwise to circumvent the provisions of this 
section. This determination shall be based upon all of the facts and 
circumstances, including, but not limited to, the factors set forth in 
paragraph (b)(2) of this section. If a district director determines 
that related persons are to be treated as a single intermediate entity, 
financing transactions between such related parties that are part of 
the conduit financing arrangement shall be disregarded for purposes of 
applying this section. See Examples 7 and 8 of paragraph (e) of this 
section for illustrations of the rules of this paragraph (a)(4)(ii).
    (b) Determination of whether participation of intermediate entity 
is pursuant to a tax avoidance plan--(1) In general. A tax avoidance 
plan is a plan one of the principal purposes of which is the avoidance 
of tax imposed by section 881. Avoidance of the tax imposed by section 
881 may be one of the principal purposes for such a plan even though it 
is outweighed by other purposes (taken together or separately). In this 
regard, the only relevant purposes are those pertaining to the 
participation of the intermediate entity in the financing arrangement 
and not those pertaining to the existence of a financing arrangement as 
a whole. The plan may be formal or informal, written or oral, and may 
involve any one or more of the parties to the financing arrangement. 
The plan must be in existence no later than the last date that any of 
the financing transactions comprising the financing arrangement is 
entered into. The district director may infer the existence of a tax 
avoidance plan from the facts and circumstances. In determining whether 
there is a tax avoidance plan, the district director will weigh all 
relevant evidence regarding the purposes for the intermediate entity's 
participation in the financing arrangement. See Examples 11 and 12 of 
paragraph (e) of this section for illustrations of the rule of this 
paragraph (b)(1).
    (2) Factors taken into account in determining the presence or 
absence of a tax avoidance purpose. The factors described in paragraphs 
(b)(2)(i) through (iv) of this section are among the facts and 
circumstances taken into account in determining whether the 
participation of an intermediate entity in a financing arrangement has 
as one of its principal purposes the avoidance of tax imposed by 
section 881.
    (i) Significant reduction in tax. The district director will 
consider whether the participation of the intermediate entity (or 
entities) in the financing arrangement significantly reduces the tax 
that otherwise would have been imposed under section 881. The fact that 
an intermediate entity is a resident of a country that has an income 
tax treaty with the United States that significantly reduces the tax 
that otherwise would have been imposed under section 881 is not 
sufficient, by itself, to establish the existence of a tax avoidance 
plan. The determination of whether the participation of an intermediate 
entity significantly reduces the tax generally is made by comparing the 
aggregate tax imposed under section 881 on payments made on financing 
transactions making up the financing arrangement with the tax that 
would be imposed under paragraph (d) of this section. However, the 
taxpayer is not barred from presenting evidence that the financing 
entity, as determined by the district director, was itself an 
intermediate entity and another entity should be treated as the 
financing entity for purposes of applying this test. A reduction in the 
absolute amount of tax may be significant even if the reduction in rate 
is not. A reduction in the amount of tax may be significant if the 
reduction is large in absolute terms or in relative terms. See Examples 
13, 14 and 15 of paragraph (e) of this section for illustrations of 
this factor.
    (ii) Ability to make the advance. The district director will 
consider whether the intermediate entity had sufficient available money 
or other property of its own to have made the advance to the financed 
entity without the advance of money or other property to it by the 
financing entity (or in the case of multiple intermediate entities, 
whether each of the intermediate entities had sufficient available 
money or other property of its own to have made the advance to either 
the financed entity or another intermediate entity without the advance 
of money or other property to it by either the financing entity or 
another intermediate entity).
    (iii) Time period between financing transactions. The district 
director will consider the length of the period of time that separates 
the advances of money or other property, or the grants of rights to use 
property, by the financing entity to the intermediate entity (in the 
case of multiple intermediate entities, from one intermediate entity to 
another), and ultimately by the intermediate entity to the financed 
entity. A short period of time is evidence of the existence of a tax 
avoidance plan while a long period of time is evidence that there is 
not a tax avoidance plan. See Example 16 of paragraph (e) of this 
section for an illustration of this factor.
    (iv) Financing transactions in the ordinary course of business. If 
the parties to the financing transaction are related, the district 
director will consider whether the financing transaction occurs in the 
ordinary course of the active conduct of complementary or integrated 
trades or businesses engaged in by these entities. The fact that a 
financing transaction is described in this paragraph (b)(2)(iv) is 
evidence that the participation of the parties to that transaction in 
the financing arrangement is not pursuant to a tax avoidance plan. A 
loan will not be considered to occur in the ordinary 

[[Page 41008]]
course of the active conduct of complementary or integrated trades or 
businesses unless the loan is a trade receivable or the parties to the 
transaction are actively engaged in a banking, insurance, financing or 
similar trade or business and such business consists predominantly of 
transactions with customers who are not related persons. See Example 17 
of paragraph (e) of this section for an illustration of this factor.
    (3) Presumption if significant financing activities performed by a 
related intermediate entity--(i) General rule. It shall be presumed 
that the participation of an intermediate entity (or entities) in a 
financing arrangement is not pursuant to a tax avoidance plan if the 
intermediate entity is related to either or both the financing entity 
or the financed entity and the intermediate entity performs significant 
financing activities with respect to the financing transactions forming 
part of the financing arrangement to which it is a party. This 
presumption may be rebutted if the district director establishes that 
the participation of the intermediate entity in the financing 
arrangement is pursuant to a tax avoidance plan. See Examples 21, 22 
and 23 of paragraph (e) of this section for illustrations of this 
presumption.
    (ii) Significant financing activities. For purposes of this 
paragraph (b)(3), an intermediate entity performs significant financing 
activities with respect to such financing transactions only if the 
financing transactions satisfy the requirements of either paragraph 
(b)(3)(ii)(A) or (B) of this section.
    (A) Active rents or royalties. An intermediate entity performs 
significant financing activities with respect to leases or licenses if 
rents or royalties earned with respect to such leases or licenses are 
derived in the active conduct of a trade or business within the meaning 
of section 954(c)(2)(A), to be applied by substituting the term 
intermediate entity for the term controlled foreign corporation.
    (B) Active risk management--(1) In general. An intermediate entity 
is considered to perform significant financing activities with respect 
to financing transactions only if officers and employees of the 
intermediate entity participate actively and materially in arranging 
the intermediate entity's participation in such financing transactions 
(other than financing transactions described in paragraph 
(b)(3)(ii)(B)(3) of this section) and perform the business activity and 
risk management activities described in paragraph (b)(3)(ii)(B)(2) of 
this section with respect to such financing transactions, and the 
participation of the intermediate entity in the financing transactions 
produces (or reasonably can be expected to produce) efficiency savings 
by reducing transaction costs and overhead and other fixed costs.
    (2) Business activity and risk management requirements. An 
intermediate entity will be considered to perform significant financing 
activities only if, within the country in which the intermediate entity 
is organized (or, if different, within the country with respect to 
which the intermediate entity is claiming the benefits of a tax 
treaty), its officers and employees--
    (i) Exercise management over, and actively conduct, the day-to-day 
operations of the intermediate entity. Such operations must consist of 
a substantial trade or business or the supervision, administration and 
financing for a substantial group of related persons; and
    (ii) Actively manage, on an ongoing basis, material market risks 
arising from such financing transactions as an integral part of the 
management of the intermediate entity's financial and capital 
requirements (including management of risks of currency and interest 
rate fluctuations) and management of the intermediate entity's short-
term investments of working capital by entering into transactions with 
unrelated persons.
    (3) Special rule for trade receivables and payables entered into in 
the ordinary course of business. If the activities of the intermediate 
entity consist in whole or in part of cash management for a controlled 
group of which the intermediate entity is a member, then employees of 
the intermediate entity need not have participated in arranging any 
such financing transactions that arise in the ordinary course of a 
substantial trade or business of either the financed entity or the 
financing entity. Officers or employees of the financing entity or 
financed entity, however, must have participated actively and 
materially in arranging the transaction that gave rise to the trade 
receivable or trade payable. Cash management includes the operation of 
a sweep account whereby the intermediate entity nets intercompany trade 
payables and receivables arising from transactions among the other 
members of the controlled group and between members of the controlled 
group and unrelated persons.
    (4) Activities of officers and employees of related persons. Except 
as provided in paragraph (b)(3)(ii)(B)(3) of this section, in applying 
this paragraph (b)(3)(ii)(B), the activities of an officer or employee 
of an intermediate entity will not constitute significant financing 
activities if any officer or employee of a related person participated 
materially in any of the activities described in this paragraph, other 
than to approve any guarantee of a financing transaction or to exercise 
general supervision and control over the policies of the intermediate 
entity.
    (c) Determination of whether an unrelated intermediate entity would 
not have participated in financing arrangement on substantially the 
same terms--(1) In general. The determination of whether an 
intermediate entity would not have participated in a financing 
arrangement on substantially the same terms but for the financing 
transaction between the financing entity and the intermediate entity 
shall be based upon all of the facts and circumstances.
    (2) Effect of guarantee--(i) In general. The district director may 
presume that the intermediate entity would not have participated in the 
financing arrangement on substantially the same terms if there is a 
guarantee of the financed entity's liability to the intermediate entity 
(or in the case of multiple intermediate entities, a guarantee of the 
intermediate entity's liability to the intermediate entity that 
advanced money or property, or granted rights to use other property). 
However, a guarantee that was neither in existence nor contemplated on 
the last date that any of the financing transactions comprising the 
financing arrangement is entered into does not give rise to this 
presumption. A taxpayer may rebut this presumption by producing clear 
and convincing evidence that the intermediate entity would have 
participated in the financing transaction with the financed entity on 
substantially the same terms even if the financing entity had not 
entered into a financing transaction with the intermediate entity.
    (ii) Definition of guarantee. For the purposes of this paragraph 
(c)(2), a guarantee is any arrangement under which a person, directly 
or indirectly, assures, on a conditional or unconditional basis, the 
payment of another person's obligation with respect to a financing 
transaction. The term shall be interpreted in accordance with the 
definition of the term in section 163(j)(6)(D)(iii).
    (d) Determination of amount of tax liability--(1) Amount of payment 
subject to recharacterization--(i) In general. If a financing 
arrangement is a conduit financing arrangement, a portion of each 
payment made by the financed entity with respect to the 

[[Page 41009]]
financing transactions that comprise the conduit financing arrangement 
shall be recharacterized as a transaction directly between the financed 
entity and the financing entity. If the aggregate principal amount of 
the financing transaction(s) to which the financed entity is a party is 
less than or equal to the aggregate principal amount of the financing 
transaction(s) linking any of the parties to the financing arrangement, 
the entire amount of the payment shall be so recharacterized. If the 
aggregate principal amount of the financing transaction(s) to which the 
financed entity is a party is greater than the aggregate principal 
amount of the financing transaction(s) linking any of the parties to 
the financing arrangement, then the recharacterized portion shall be 
determined by multiplying the payment by a fraction the numerator of 
which is equal to the lowest aggregate principal amount of the 
financing transaction(s) linking any of the parties to the financing 
arrangement (other than financing transactions that are disregarded 
pursuant to paragraphs (a)(2)(i)(B) and (a)(4)(ii)(B) of this section) 
and the denominator of which is the aggregate principal amount of the 
financing transaction(s) to which the financed entity is a party. In 
the case of financing transactions the principal amount of which is 
subject to adjustment, the fraction shall be determined using the 
average outstanding principal amounts for the period to which the 
payment relates. The average principal amount may be computed using any 
method applied consistently that reflects with reasonable accuracy the 
amount outstanding for the period. See Example 24 of paragraph (e) of 
this section for an illustration of the calculation of the amount of 
tax liability.
    (ii) Determination of principal amount--(A) In general. Unless 
otherwise provided in this paragraph (d)(1)(ii), the principal amount 
equals the amount of money advanced, or the fair market value of other 
property advanced or subject to a lease or license, in the financing 
transaction. In general, fair market value is calculated in U.S. 
dollars as of the close of business on the day on which the financing 
transaction is entered into. However, if the property advanced, or the 
right to use property granted, by the financing entity is the same as 
the property or rights received by the financed entity, the fair market 
value of the property or right shall be determined as of the close of 
business on the last date that any of the financing transactions 
comprising the financing arrangement is entered into. In the case of 
fungible property, property of the same type shall be considered to be 
the same property. See Example 25 of paragraph (e) for an illustration 
of the calculation of the principal amount in the case of financing 
transactions involving fungible property. The principal amount of a 
financing transaction shall be subject to adjustments, as set forth in 
this paragraph (d)(1)(ii).
    (B) Debt instruments and certain stock. In the case of a debt 
instrument or of stock that is subject to the current inclusion rules 
of sections 305(c)(3) or (e), the principal amount generally will be 
equal to the issue price. However, if the fair market value on the 
issue date differs materially from the issue price, the fair market 
value of the debt instrument shall be used in lieu of the instrument's 
issue price. Appropriate adjustments will be made for accruals of 
original issue discount and repayments of principal (including accrued 
original issue discount).
    (C) Partnership and trust interests. In the case of a partnership 
interest or an interest in a trust, the principal amount is equal to 
the fair market value of the money or property contributed to the 
partnership or trust in return for that partnership or trust interest.
    (D) Leases or licenses. In the case of a lease or license, the 
principal amount is equal to the fair market value of the property 
subject to the lease or license on the date on which the lease or 
license is entered into. The principal amount shall be adjusted for 
depreciation or amortization, calculated on a basis that accurately 
reflects the anticipated decline in the value of the property over its 
life.
    (2) Rate of tax. The rate at which tax is imposed under section 881 
on the portion of the payment that is recharacterized pursuant to 
paragraph (d)(1) of this section is determined by reference to the 
nature of the recharacterized transaction, as determined under 
paragraphs (a)(3)(ii)(B) and (C) of this section.
    (e) Examples. The following examples illustrate this section. For 
purposes of these examples, unless otherwise indicated, it is assumed 
that FP, a corporation organized in country N, owns all of the stock of 
FS, a corporation organized in country T, and DS, a corporation 
organized in the United States. Country T, but not country N, has an 
income tax treaty with the United States. The treaty exempts interest, 
rents and royalties paid by a resident of one state (the source state) 
to a resident of the other state from tax in the source state.

    Example 1. Financing arrangement. (i) On January 1, 1996, BK, a 
bank organized in country T, lends $1,000,000 to DS in exchange for 
a note issued by DS. FP guarantees to BK that DS will satisfy its 
repayment obligation on the loan. There are no other transactions 
between FP and BK.
    (ii) BK's loan to DS is a financing transaction within the 
meaning of paragraph (a)(2)(ii)(A)(1) of this section. FP's 
guarantee of DS's repayment obligation is not a financing 
transaction as described in paragraphs (a)(2)(ii)(A)(1) through (4) 
of this section. Therefore, these transactions do not constitute a 
financing arrangement as defined in paragraph (a)(2)(i) of this 
section.
    Example 2. Financing arrangement. (i) On January 1, 1996, FP 
lends $1,000,000 to DS in exchange for a note issued by DS. On 
January 1, 1997, FP assigns the DS note to FS in exchange for a note 
issued by FS. After receiving notice of the assignment, DS remits 
payments due under its note to FS.
    (ii) The DS note held by FS and the FS note held by FP are 
financing transactions within the meaning of paragraph 
(a)(2)(ii)(A)(1) of this section, and together constitute a 
financing arrangement within the meaning of paragraph (a)(2)(i) of 
this section.
    Example 3. Financing arrangement. (i) On December 1, 1994 FP 
creates a special purposes subsidiary, FS. On that date FP 
capitalizes FS with $1,000,000 in cash and $10,000,000 in debt from 
BK, a Country N bank. On January 1, 1995, C, a U.S. person, 
purchases an automobile from DS in return for an installment note. 
On August 1, 1995, DS sells a number of installment notes, including 
C's, to FS in exchange for $10,000,000. DS continues to service the 
installment notes for FS.
    (ii) The C installment note now held by FS (as well as all of 
the other installment notes now held by FS) and the FS note held by 
BK are financing transactions within the meaning of paragraph 
(a)(2)(ii)(A)(1) of this section, and together constitute a 
financing arrangement within the meaning of paragraph (a)(2)(i) of 
this section.
    Example 4. Related persons treated as a single intermediate 
entity. (i) On January 1, 1996, FP deposits $1,000,000 with BK, a 
bank that is organized in country N and is unrelated to FP and its 
subsidiaries. M, a corporation also organized in country N, is 
wholly-owned by the sole shareholder of BK but is not a bank within 
the meaning of section 881(c)(3)(A). On July 1, 1996, M lends 
$1,000,000 to DS in exchange for a note maturing on July 1, 2006. 
The note is in registered form within the meaning of section 
881(c)(2)(B)(i) and DS has received from M the statement required by 
section 881(c)(2)(B)(ii). One of the principal purposes for the 
absence of a financing transaction between BK and M is the avoidance 
of the application of this section.
    (ii) The transactions described above would form a financing 
arrangement but for the absence of a financing transaction between 
BK and M. However, because one of the principal purposes for the 
structuring of these financing transactions is to prevent 
characterization of such arrangement as a financing arrangement, the 
district director may treat the financing transactions between 

[[Page 41010]]
FP and BK, and between M and DS as a financing arrangement under 
paragraphs (a)(2)(i)(B) of this section. In such a case, BK and M 
would be considered a single intermediate entity for purposes of 
this section. See also paragraph (a)(4)(ii)(B) of this section for 
the authority to treat BK and M as a single intermediate entity.
    Example 5. Related persons treated as a single intermediate 
entity. (i) On January 1, 1995, FP lends $10,000,000 to FS in 
exchange for a 10-year note that pays interest annually at a rate of 
8 percent per annum. On January 2, 1995, FS contributes $10,000,000 
to FS2, a wholly-owned subsidiary of FS organized in country T, in 
exchange for common stock of FS2. On January 1, 1996, FS2 lends 
$10,000,000 to DS in exchange for an 8-year note that pays interest 
annually at a rate of 10 percent per annum. FS is a holding company 
whose most significant asset is the stock of FS2. Throughout the 
period that the FP-FS loan is outstanding, FS causes FS2 to make 
distributions to FS, most of which are used to make interest and 
principal payments on the FP-FS loan. Without the distributions from 
FS2, FS would not have had the funds with which to make payments on 
the FP-FS loan. One of the principal purposes for the absence of a 
financing transaction between FS and FS2 is the avoidance of the 
application of this section.
    (ii) The conditions of paragraph (a)(4)(i)(A) of this section 
would be satisfied with respect to the financing transactions 
between FP, FS, FS2 and DS but for the absence of a financing 
transaction between FS and FS2. However, because one of the 
principal purposes for the structuring of these financing 
transactions is to prevent characterization of an entity as a 
conduit, the district director may treat the financing transactions 
between FP and FS, and between FS2 and DS as a financing 
arrangement. See paragraph (a)(4)(ii)(B) of this section. In such a 
case, FS and FS2 would be considered a single intermediate entity 
for purposes of this section. See also paragraph (a)(2)(i)(B) of 
this section for the authority to treat FS and FS2 as a single 
intermediate entity.
    Example 6. Presumption with respect to unrelated financing 
entity. (i) FP is a corporation organized in country T that is 
actively engaged in a substantial manufacturing business. FP has a 
revolving credit facility with a syndicate of banks, none of which 
is related to FP and FP's subsidiaries, which provides that FP may 
borrow up to a maximum of $100,000,000 at a time. The revolving 
credit facility provides that DS and certain other subsidiaries of 
FP may borrow directly from the syndicate at the same interest rates 
as FP, but each subsidiary is required to indemnify the syndicate 
banks for any withholding taxes imposed on interest payments by the 
country in which the subsidiary is organized. BK, a bank that is 
organized in country N, is the agent for the syndicate. Some of the 
syndicate banks are organized in country N, but others are residents 
of country O, a country that has an income tax treaty with the 
United States which allows the United States to impose a tax on 
interest at a maximum rate of 10 percent. It is reasonable for BK 
and the syndicate banks to have determined that FP will be able to 
meet its payment obligations on a maximum principal amount of 
$100,000,000 out of the cash flow of its manufacturing business. At 
various times throughout 1995, FP borrows under the revolving credit 
facility until the outstanding principal amount reaches the maximum 
amount of $100,000,000. On December 31, 1995, FP receives 
$100,000,000 from a public offering of its equity. On January 1, 
1996, FP pays BK $90,000,000 to reduce the outstanding principal 
amount under the revolving credit facility and lends $10,000,000 to 
DS. FP would have repaid the entire principal amount, and DS would 
have borrowed directly from the syndicate, but for the fact that DS 
did not want to incur the U.S. withholding tax that would have 
applied to payments made directly by DS to the syndicate banks.
    (ii) Pursuant to paragraph (a)(3)(ii)(E)(1) of this section, 
even though the financing arrangement is a conduit financing 
arrangement (because the financing arrangement meets the standards 
for recharacterization in paragraph (a)(4)(i)), BK and the other 
syndicate banks have no section 881 liability unless they know or 
have reason to know that the financing arrangement is a conduit 
financing arrangement. Moreover, pursuant to paragraph 
(a)(3)(ii)(E)(2)(ii) of this section, BK and the syndicate banks are 
presumed not to know that the financing arrangement is a conduit 
financing arrangement. The syndicate banks are unrelated to both FP 
and DS, and FP is actively engaged in a substantial trade or 
business--that is, the cash flow from FP's manufacturing business is 
sufficient for the banks to expect that FP will be able to make the 
payments required under the financing transaction. See Sec. 1.1441-
3(j) for the withholding obligations of the withholding agents.
    Example 7. Multiple intermediate entities--special rule for 
related persons. (i) On January 1, 1995, FP lends $10,000,000 to FS 
in exchange for a 10-year note that pays interest annually at a rate 
of 8 percent per annum. On January 2, 1995, FS contributes 
$9,900,000 to FS2, a wholly-owned subsidiary of FS organized in 
country T, in exchange for common stock and lends $100,000 to FS2. 
On January 1, 1996, FS2 lends $10,000,000 to DS in exchange for an 
8-year note that pays interest annually at a rate of 10 percent per 
annum. FS is a holding company that has no significant assets other 
than the stock of FS2. Throughout the period that the FP-FS loan is 
outstanding, FS causes FS2 to make distributions to FS, most of 
which are used to make interest and principal payments on the FP-FS 
loan. Without the distributions from FS2, FS would not have had the 
funds with which to make payments on the FP-FS loan. One of the 
principal purposes for structuring the transactions between FS and 
FS2 as primarily a contribution of capital is to reduce the amount 
of the payment that would be recharacterized under paragraph (d) of 
this section.
    (ii) Pursuant to paragraph (a)(4)(ii)(B) of this section, the 
district director may treat FS and FS2 as a single intermediate 
entity for purposes of this section since one of the principal 
purposes for the participation of multiple intermediate entities is 
to reduce the amount of the tax liability on any recharacterized 
payment by inserting a financing transaction with a low principal 
amount.
    Example 8. Multiple intermediate entities. (i) On January 1, 
1995, FP deposits $1,000,000 with BK, a bank that is organized in 
country T and is unrelated to FP and its subsidiaries, FS and DS. On 
January 1, 1996, at a time when the FP-BK deposit is still 
outstanding, BK lends $500,000 to BK2, a bank that is wholly-owned 
by BK and is organized in country T. On the same date, BK2 lends 
$500,000 to FS. On July 1, 1996, FS lends $500,000 to DS. FP pledges 
its deposit with BK to BK2 in support of FS' obligation to repay the 
BK2 loan. FS', BK's and BK2's participation in the financing 
arrangement is pursuant to a tax avoidance plan.
    (ii) The conditions of paragraphs (a)(4)(i)(A) and (B) of this 
section are satisfied because the participation of BK, BK2 and FS in 
the financing arrangement reduces the tax imposed by section 881, 
and FS', BK's and BK2's participation in the financing arrangement 
is pursuant to a tax avoidance plan. However, since BK and BK2 are 
unrelated to FP and DS, under paragraph (a)(4)(i)(C)(2) of this 
section, BK and BK2 will be treated as conduit entities only if BK 
and BK2 would not have participated in the financing arrangement on 
substantially the same terms but for the financing transaction 
between FP and BK.
    (iii) It is presumed that BK2 would not have participated in the 
financing arrangement on substantially the same terms but for the 
BK-BK2 financing transaction because FP's pledge of an asset in 
support of FS' obligation to repay the BK2 loan is a guarantee 
within the meaning of paragraph (c)(2)(ii) of this section. If the 
taxpayer does not rebut this presumption by clear and convincing 
evidence, then BK2 will be a conduit entity.
    (iv) Because BK and BK2 are related intermediate entities, the 
district director must determine whether one of the principal 
purposes for the involvement of multiple intermediate entities was 
to prevent characterization of an entity as a conduit entity. In 
making this determination, the district director may consider the 
fact that the involvement of two related intermediate entities 
prevents the presumption regarding guarantees from applying to BK. 
In the absence of evidence showing a business purpose for the 
involvement of both BK and BK2, the district director may treat BK 
and BK2 as a single intermediate entity for purposes of determining 
whether they would have participated in the financing arrangement on 
substantially the same terms but for the financing transaction 
between FP and BK. The presumption that applies to BK2 therefore 
will apply to BK. If the taxpayer does not rebut this presumption by 
clear and convincing evidence, then BK will be a conduit entity.
    Example 9. Reduction of tax. (i) On February 1, 1995, FP issues 
debt to the public 

[[Page 41011]]
that would satisfy the requirements of section 871(h)(2)(A) (relating 
to obligations that are not in registered form) if issued by a U.S. 
person. FP lends the proceeds of the debt offering to DS in exchange 
for a note.
    (ii) The debt issued by FP and the DS note are financing 
transactions within the meaning of paragraph (a)(2)(ii)(A)(1) of 
this section and together constitute a financing arrangement within 
the meaning of paragraph (a)(2)(i) of this section. The holders of 
the FP debt are the financing entities, FP is the intermediate 
entity and DS is the financed entity. Because interest payments on 
the debt issued by FP would not have been subject to withholding tax 
if the debt had been issued by DS, there is no reduction in tax 
under paragraph (a)(4)(i)(A) of this section. Accordingly, FP is not 
a conduit entity.
    Example 10. Reduction of tax. (i) On January 1, 1995, FP 
licenses to FS the rights to use a patent in the United States to 
manufacture product A. FS agrees to pay FP a fixed amount in 
royalties each year under the license. On January 1, 1996, FS 
sublicenses to DS the rights to use the patent in the United States. 
Under the sublicense, DS agrees to pay FS royalties based upon the 
units of product A manufactured by DS each year. Although the 
formula for computing the amount of royalties paid by DS to FS 
differs from the formula for computing the amount of royalties paid 
by FS to FP, each represents an arm's length rate.
    (ii) Although the royalties paid by DS to FS are exempt from 
U.S. withholding tax, the royalty payments between FS and FP are 
income from U.S. sources under section 861(a)(4) subject to the 30 
percent gross tax imposed by Sec. 1.881-2(b) and subject to 
withholding under Sec. 1.1441-2(a). Because the rate of tax imposed 
on royalties paid by FS to FP is the same as the rate that would 
have been imposed on royalties paid by DS to FP, the participation 
of FS in the FP-FS-DS financing arrangement does not reduce the tax 
imposed by section 881 within the meaning of paragraph (a)(4)(i)(A) 
of this section. Accordingly, FP is not a conduit entity.
    Example 11. A principal purpose. (i) On January 1, 1995, FS 
lends $10,000,000 to DS in exchange for a 10-year note that pays 
interest annually at a rate of 8 percent per annum. As was intended 
at the time of the loan from FS to DS, on July 1, 1995, FP makes an 
interest-free demand loan of $10,000,000 to FS. A principal purpose 
for FS' participation in the FP-FS-DS financing arrangement is that 
FS generally coordinates the financing for all of FP's subsidiaries 
(although FS does not engage in significant financing activities 
with respect to such financing transactions). However, another 
principal purpose for FS' participation is to allow the parties to 
benefit from the lower withholding tax rate provided under the 
income tax treaty between country T and the United States.
    (ii) The financing arrangement satisfies the tax avoidance 
purpose requirement of paragraph (a)(4)(i)(B) of this section 
because FS participated in the financing arrangement pursuant to a 
plan one of the principal purposes of which is to allow the parties 
to benefit from the country T-U.S. treaty.
    Example 12. A principal purpose. (i) DX is a U.S. corporation 
that intends to purchase property to use in its manufacturing 
business. FX is a partnership organized in country N that is owned 
in equal parts by LC1 and LC2, leasing companies that are unrelated 
to DX. BK, a bank organized in country N and unrelated to DX, LC1 
and LC2, lends $100,000,000 to FX to enable FX to purchase the 
property. On the same day, FX purchases the property and engages in 
a transaction with DX which is treated as a lease of the property 
for country N tax purposes but a loan for U.S. tax purposes. 
Accordingly, DX is treated as the owner of the property for U.S. tax 
purposes. The parties comply with the requirements of section 881(c) 
with respect to the debt obligation of DX to FX. FX and DX 
structured these transactions in this manner so that LC1 and LC2 
would be entitled to accelerated depreciation deductions with 
respect to the property in country N and DX would be entitled to 
accelerated depreciation deductions in the United States. None of 
the parties would have participated in the transaction if the 
payments made by DX were subject to U.S. withholding tax.
    (ii) The loan from BK to FX and from FX to DX are financing 
transactions and, together constitute a financing arrangement. The 
participation of FX in the financing arrangement reduces the tax 
imposed by section 881 because payments made to FX, but not BK, 
qualify for the portfolio interest exemption of section 881(c) 
because BK is a bank making an extension of credit in the ordinary 
course of its trade or business within the meaning of section 
881(c)(3)(A). Moreover, because DX borrowed the money from FX 
instead of borrowing the money directly from BK to avoid the tax 
imposed by section 881, one of the principal purposes of the 
participation of FX was to avoid that tax (even though another 
principal purpose of the participation of FX was to allow LC1 and 
LC2 to take advantage of accelerated depreciation deductions in 
country N). Assuming that FX would not have participated in the 
financing arrangement on substantially the same terms but for the 
fact that BK loaned it $100,000,000, FX is a conduit entity and the 
financing arrangement is a conduit financing arrangement.
    Example 13. Significant reduction of tax. (i) FS owns all of the 
stock of FS1, which also is a resident of country T. FS1 owns all of 
the stock of DS. On January 1, 1995, FP contributes $10,000,000 to 
the capital of FS in return for perpetual preferred stock. On July 
1, 1995, FS lends $10,000,000 to FS1. On January 1, 1996, FS1 lends 
$10,000,000 to DS. Under the terms of the country T-U.S. income tax 
treaty, a country T resident is not entitled to the reduced 
withholding rate on interest income provided by the treaty if the 
resident is entitled to specified tax benefits under country T law. 
Although FS1 may deduct interest paid on the loan from FS, these 
deductions are not pursuant to any special tax benefits provided by 
country T law. However, FS qualifies for one of the enumerated tax 
benefits pursuant to which it may deduct dividends paid with respect 
to the stock held by FP. Therefore, if FS had made a loan directly 
to DS, FS would not have been entitled to the benefits of the 
country T-U.S. tax treaty with respect to payments it received from 
DS, and such payments would have been subject to tax under section 
881 at a 30 percent rate.
    (ii) The FS-FS1 loan and the FS1-DS loan are financing 
transactions within the meaning of paragraph (a)(2)(ii)(A)(1) of 
this section and together constitute a financing arrangement within 
the meaning of paragraph (a)(2)(i) of this section. Pursuant to 
paragraph (b)(2)(i) of this section, the significant reduction in 
tax resulting from the participation of FS1 in the financing 
arrangement is evidence that the participation of FS1 in the 
financing arrangement is pursuant to a tax avoidance plan. However, 
other facts relevant to the presence of such a plan must also be 
taken into account.
    Example 14. Significant reduction of tax. (i) FP owns 90 percent 
of the voting stock of FX, an unlimited liability company organized 
in country T. The other 10 percent of the common stock of FX is 
owned by FP1, a subsidiary of FP that is organized in country N. 
Although FX is a partnership for U.S. tax purposes, FX is entitled 
to the benefits of the U.S.-country T income tax treaty because FX 
is subject to tax in country T as a resident corporation. On January 
1, 1996, FP contributes $10,000,000 to FX in exchange for an 
instrument denominated as preferred stock that pays a dividend of 7 
percent and that must be redeemed by FX in seven years. For U.S. tax 
purposes, the preferred stock is a partnership interest. On July 1, 
1996, FX makes a loan of $10,000,000 to DS in exchange for a 7-year 
note paying interest at 6 percent.
    (ii) Because FX is required to redeem the partnership interest 
at a specified time, the partnership interest constitutes a 
financing transaction within the meaning of paragraph 
(a)(2)(ii)(A)(2) of this section. Moreover, because the FX-DS note 
is a financing transaction within the meaning of paragraph 
(a)(2)(ii)(A)(1) of this section, together the transactions 
constitute a financing arrangement within the meaning of (a)(2)(i) 
of this section. Payments of interest made directly by DS to FP and 
FP1 would not be eligible for the portfolio interest exemption and 
would not be entitled to a reduction in withholding tax pursuant to 
a tax treaty. Therefore, there is a significant reduction in tax 
resulting from the participation of FX in the financing arrangement, 
which is evidence that the participation of FX in the financing 
arrangement is pursuant to a tax avoidance plan. However, other 
facts relevant to the existence of such a plan must also be taken 
into account.
    Example 15. Significant reduction of tax. (i) FP owns a 10 
percent interest in the profits and capital of FX, a partnership 
organized in country N. The other 90 percent interest in FX is owned 
by G, an unrelated corporation that is organized in country T. FX is 
not engaged in business in the United States. On January 1, 1996, FP 
contributes $10,000,000 to FX in exchange for an instrument 
documented as perpetual subordinated debt that provides for 
quarterly interest payments at 9 percent per annum. Under the terms 
of the instrument, payments 

[[Page 41012]]
on the perpetual subordinated debt do not otherwise affect the 
allocation of income between the partners. FP has the right to 
require the liquidation of FX if FX fails to make an interest 
payment. For U.S. tax purposes, the perpetual subordinated debt is 
treated as a partnership interest in FX and the payments on the 
perpetual subordinated debt constitute guaranteed payments within 
the meaning of section 707(c). On July 1, 1996, FX makes a loan of 
$10,000,000 to DS in exchange for a 7-year note paying interest at 8 
percent per annum.
    (ii) Because FP has the effective right to force payment of the 
``interest'' on the perpetual subordinated debt, the instrument 
constitutes a financing transaction within the meaning of paragraph 
(a)(2)(ii)(A)(2) of this section. Moreover, because the note between 
FX and DS is a financing transaction within the meaning of paragraph 
(a)(2)(ii)(A)(1) of this section, together the transactions are a 
financing arrangement within the meaning of (a)(2)(i) of this 
section. Without regard to this section, 90 percent of each interest 
payment received by FX would be treated as exempt from U.S. 
withholding tax because it is beneficially owned by G, while 10 
percent would be subject to a 30 percent withholding tax because 
beneficially owned by FP. If FP held directly the note issued by DS, 
100 percent of the interest payments on the note would have been 
subject to the 30 percent withholding tax. The significant reduction 
in the tax imposed by section 881 resulting from the participation 
of FX in the financing arrangement is evidence that the 
participation of FX in the financing arrangement is pursuant to a 
tax avoidance plan. However, other facts relevant to the presence of 
such a plan must also be taken into account.
    Example 16. Time period between transactions. (i) On January 1, 
1995, FP lends $10,000,000 to FS in exchange for a 10-year note that 
pays no interest annually. When the note matures, FS is obligated to 
pay $24,000,000 to FP. On January 1, 1996, FS lends $10,000,000 to 
DS in exchange for a 10-year note that pays interest annually at a 
rate of 10 percent per annum.
    (ii) The FS note held by FP and the DS note held by FS are 
financing transactions within the meaning of paragraph 
(a)(2)(ii)(A)(1) of this section and together constitute a financing 
arrangement within the meaning of (a)(2)(i) of this section. 
Pursuant to paragraph (b)(2)(iii) of this section, the short period 
of time (twelve months) between the loan by FP to FS and the loan by 
FS to DS is evidence that the participation of FS in the financing 
arrangement is pursuant to a tax avoidance plan. However, other 
facts relevant to the presence of such a plan must also be taken 
into account.
    Example 17. Financing transactions in the ordinary course of 
business. (i) FP is a holding company. FS is actively engaged in 
country T in the business of manufacturing and selling product A. DS 
manufactures product B, a principal component in which is product A. 
FS' business activity is substantial. On January 1, 1995, FP lends 
$100,000,000 to FS to finance FS' business operations. On January 1, 
1996, FS ships $30,000,000 of product A to DS. In return, FS creates 
an interest-bearing account receivable on its books. FS' shipment is 
in the ordinary course of the active conduct of its trade or 
business (which is complementary to DS' trade or business.)
    (ii) The loan from FP to FS and the accounts receivable opened 
by FS for a payment owed by DS are financing transactions within the 
meaning of paragraph (a)(2)(ii)(A)(1) of this section and together 
constitute a financing arrangement within the meaning of paragraph 
(a)(2)(i) of this section. Pursuant to paragraph (b)(2)(iv) of this 
section, the fact that DS' liability to FS is created in the 
ordinary course of the active conduct of DS' trade or business that 
is complementary to a business actively engaged in by DS is evidence 
that the participation of FS in the financing arrangement is not 
pursuant to a tax avoidance plan. However, other facts relevant to 
the presence of such a plan must also be taken into account.
    Example 18. Tax avoidance plan--other factors. (i) On February 
1, 1995, FP issues debt in Country N that is in registered form 
within the meaning of section 881(c)(3)(A). The FP debt would 
satisfy the requirements of section 881(c) if the debt were issued 
by a U.S. person and the withholding agent received the 
certification required by section 871(h)(2)(B)(ii). The purchasers 
of the debt are financial institutions and there is no reason to 
believe that they would not furnish Forms W-8. On March 1, 1995, FP 
lends a portion of the proceeds of the offering to DS.
    (ii) The FP debt and the loan to DS are financing transactions 
within the meaning of paragraph (a)(2)(ii)(A)(1) of this section and 
together constitute a financing arrangement within the meaning of 
paragraph (a)(2)(i) of this section. The owners of the FP debt are 
the financing entities, FP is the intermediate entity and DS is the 
financed entity. Interest payments on the debt issued by FP would be 
subject to withholding tax if the debt were issued by DS, unless DS 
received all necessary Forms W-8. Therefore, the participation of FP 
in the financing arrangement potentially reduces the tax imposed by 
section 881(a). However, because it is reasonable to assume that the 
purchasers of the FP debt would have provided certifications in 
order to avoid the withholding tax imposed by section 881, there is 
not a tax avoidance plan. Accordingly, FP is not a conduit entity.
    Example 19. Tax avoidance plan--other factors. (i) Over a period 
of years, FP has maintained a deposit with BK, a bank organized in 
the United States, that is unrelated to FP and its subsidiaries. FP 
often sells goods and purchases raw materials in the United States. 
FP opened the bank account with BK in order to facilitate this 
business and the amounts it maintains in the account are reasonably 
related to its dollar-denominated working capital needs. On January 
1, 1995, BK lends $5,000,000 to DS. After the loan is made, the 
balance in FP's bank account remains within a range appropriate to 
meet FP's working capital needs.
    (ii) FP's deposit with BK and BK's loan to DS are financing 
transactions within the meaning of paragraph (a)(2)(ii)(A)(1) of 
this section and together constitute a financing arrangement within 
the meaning of paragraph (a)(2)(i) of this section. Pursuant to 
section 881(i), interest paid by BK to FP with respect to the bank 
deposit is exempt from withholding tax. Interest paid directly by DS 
to FP would not be exempt from withholding tax under section 881(i) 
and therefore would be subject to a 30% withholding tax. 
Accordingly, there is a significant reduction in the tax imposed by 
section 881, which is evidence of the existence of a tax avoidance 
plan. See paragraph (b)(2)(i) of this section. However, the district 
director also will consider the fact that FP historically has 
maintained an account with BK to meet its working capital needs and 
that, prior to and after BK's loan to DS, the balance within the 
account remains within a range appropriate to meet those business 
needs as evidence that the participation of BK in the FP-BK-DS 
financing arrangement is not pursuant to a tax avoidance plan. In 
determining the presence or absence of a tax avoidance plan, all 
relevant facts will be taken into account.
    Example 20. Tax avoidance plan--other factors. (i) Assume the 
same facts as in Example 19, except that on January 1, 2000, FP's 
deposit with BK substantially exceeds FP's expected working capital 
needs and on January 2, 2000, BK lends additional funds to DS. 
Assume also that BK's loan to DS provides BK with a right of offset 
against FP's deposit. Finally, assume that FP would have lent the 
funds to DS directly but for the imposition of the withholding tax 
on payments made directly to FP by DS.
    (ii) As in Example 19, the transactions in paragraph (i) of this 
Example 20 are a financing arrangement within the meaning of 
paragraph (a)(2)(i) and the participation of the BK reduces the 
section 881 tax. In this case, the presence of funds substantially 
in excess of FP's working capital needs and the fact that FP would 
have been willing to lend funds directly to DS if not for the 
withholding tax are evidence that the participation of BK in the FP-
BK-FS financing arrangement is pursuant to a tax avoidance plan. 
However, other facts relevant to the presence of such a plan must 
also be taken into account. Even if the district director determines 
that the participation of BK in the financing arrangement is 
pursuant to a tax avoidance plan, BK may not be treated as a conduit 
entity unless BK would not have participated in the financing 
arrangement on substantially the same terms in the absence of FP's 
deposit with BK. BK's right of offset against FP's deposit (a form 
of guarantee of BK's loan to DS) creates a presumption that BK would 
not have made the loan to DS on substantially the same terms in the 
absence of FP's deposit with BK. If the taxpayer overcomes the 
presumption by clear and convincing evidence, BK will not be a 
conduit entity.
    Example 21. Significant financing activities. (i) FS is 
responsible for coordinating the financing of all of the 
subsidiaries of FP, which are engaged in substantial trades or 
businesses and are located in country T, country N, and the United 
States. FS maintains a centralized cash management accounting system 
for FP and its subsidiaries in which it records all 

[[Page 41013]]
intercompany payables and receivables; these payables and receivables 
ultimately are reduced to a single balance either due from or owing 
to FS and each of FP's subsidiaries. FS is responsible for 
disbursing or receiving any cash payments required by transactions 
between its affiliates and unrelated parties. FS must borrow any 
cash necessary to meet those external obligations and invests any 
excess cash for the benefit of the FP group. FS enters into interest 
rate and foreign exchange contracts as necessary to manage the risks 
arising from mismatches in incoming and outgoing cash flows. The 
activities of FS are intended (and reasonably can be expected) to 
reduce transaction costs and overhead and other fixed costs. FS has 
50 employees, including clerical and other back office personnel, 
located in country T. At the request of DS, on January 1, 1995, FS 
pays a supplier $1,000,000 for materials delivered to DS and charges 
DS an open account receivable for this amount. On February 3, 1995, 
FS reverses the account receivable from DS to FS when DS delivers to 
FP goods with a value of $1,000,000.
    (ii) The accounts payable from DS to FS and from FS to other 
subsidiaries of FP constitute financing transactions within the 
meaning of paragraph (a)(2)(ii)(A)(1) of this section, and the 
transactions together constitute a financing arrangement within the 
meaning of paragraph (a)(2)(i) of this section. FS's activities 
constitute significant financing activities with respect to the 
financing transactions even though FS did not actively and 
materially participate in arranging the financing transactions 
because the financing transactions consisted of trade receivables 
and trade payables that were ordinary and necessary to carry on the 
trades or businesses of DS and the other subsidiaries of FP. 
Accordingly, pursuant to paragraph (b)(3)(i) of this section, FS' 
participation in the financing arrangement is presumed not to be 
pursuant to a tax avoidance plan.
    Example 22. Significant financing activities--active risk 
management. (i) The facts are the same as in Example 21, except 
that, in addition to its short-term funding needs, DS needs long-
term financing to fund an acquisition of another U.S. company; the 
acquisition is scheduled to close on January 15, 1995. FS has a 
revolving credit agreement with a syndicate of banks located in 
Country N. On January 14, 1995, FS borrows 10 billion for 10 
years under the revolving credit agreement, paying yen LIBOR plus 50 
basis points on a quarterly basis. FS enters into a currency swap 
with BK, an unrelated bank that is not a member of the syndicate, 
under which FS will pay BK 10 billion and will receive $100 
million on January 15, 1995; these payments will be reversed on 
January 15, 2004. FS will pay BK U.S. dollar LIBOR plus 50 basis 
points on a notional principal amount of $100 million semi-annually 
and will receive yen LIBOR plus 50 basis points on a notional 
principal amount of 10 billion quarterly. Upon the closing of 
the acquisition on January 15, 1995, DS borrows $100 million from FS 
for 10 years, paying U.S. dollar LIBOR plus 50 basis points 
semiannually.
    (ii) Although FS performs significant financing activities with 
respect to certain financing transactions to which it is a party, FS 
does not perform significant financing activities with respect to 
the financing transactions between FS and the syndicate of banks and 
between FS and DS because FS has eliminated all material market 
risks arising from those financing transactions through its currency 
swap with BK. Accordingly, the financing arrangement does not 
benefit from the presumption of paragraph (b)(3)(i) of this section 
and the district director must determine whether the participation 
of FS in the financing arrangement is pursuant to a tax avoidance 
plan on the basis of all the facts and circumstances. However, if 
additional facts indicated that FS reviews its currency swaps daily 
to determine whether they are the most cost efficient way of 
managing their currency risk and, as a result, frequently terminates 
swaps in favor of entering into more cost efficient hedging 
arrangements with unrelated parties, FS would be considered to 
perform significant financing activities and FS' participation in 
the financing arrangements would not be pursuant to a tax avoidance 
plan.
    Example 23. Significant financing activities--presumption 
rebutted. (i) The facts are the same as in Example 21, except that, 
on January 1, 1995, FP lends to FS DM 15,000,000 (worth $10,000,000) 
in exchange for a 10 year note that pays interest annually at a rate 
of 5 percent per annum. Also, on March 15, 1995, FS lends 
$10,000,000 to DS in exchange for a 10-year note that pays interest 
annually at a rate of 8 percent per annum. FS would not have had 
sufficient funds to make the loan to DS without the loan from FP. FS 
does not enter into any long-term hedging transaction with respect 
to these financing transactions, but manages the interest rate and 
currency risk arising from the transactions on a daily, weekly or 
quarterly basis by entering into forward currency contracts.
    (ii) Because FS performs significant financing activities with 
respect to the financing transactions between FS, DS and FP, the 
participation of FS in the financing arrangement is presumed not to 
be pursuant to a tax avoidance plan. The district director may rebut 
this presumption by establishing that the participation of FS is 
pursuant to a tax avoidance plan, based on all the facts and 
circumstances. The mere fact that FS is a resident of country T is 
not sufficient to establish the existence of a tax avoidance plan. 
However, the existence of a plan can be inferred from other factors 
in addition to the fact that FS is a resident of country T. For 
example, the loans are made within a short time period and FS would 
not have been able to make the loan to DS without the loan from FP.
    Example 24. Determination of amount of tax liability. (i) On 
January 1, 1996, FP makes two three-year installment loans of 
$250,000 each to FS that pay interest at a rate of 9 percent per 
annum. The loans are self-amortizing with payments on each loan of 
$7,950 per month. On the same date, FS lends $1,000,000 to DS in 
exchange for a two-year note that pays interest semi-annually at a 
rate of 10 percent per annum, beginning on June 30, 1996. The FS-DS 
loan is not self-amortizing. Assume that for the period of January 
1, 1996 through June 30, 1996, the average principal amount of the 
financing transactions between FP and FS that comprise the financing 
arrangement is $469,319. Further, assume that for the period of July 
1, 1996 through December 31, 1996, the average principal amount of 
the financing transactions between FP and FS is $393,632. The 
average principal amount of the financing transaction between FS and 
DS for the same periods is $1,000,000. The district director 
determines that the financing transactions between FP and FS, and FS 
and DS, are a conduit financing arrangement.
    (ii) Pursuant to paragraph (d)(1)(i) of this section, the 
portion of the $50,000 interest payment made by DS to FS on June 30, 
1996, that is recharacterized as a payment to FP is $23,450 computed 
as follows: ($50,000 x $469,319/$1,000,000) = $23,450. The portion 
of the interest payment made on December 31, 1996 that is 
recharacterized as a payment to FP is $19,650, computed as follows: 
($50,000 x $393,632/$1,000,000) = $19,650. Furthermore, under 
Sec. 1.1441-3(j), DS is liable for withholding tax at a 30 percent 
rate on the portion of the $50,000 payment to FS that is 
recharacterized as a payment to FP, i.e., $7,035 with respect to the 
June 30, 1996 payment and $5,895 with respect to the December 31, 
1996 payment.
    Example 25. Determination of principal amount. (i) FP lends DM 
10,000,000 to FS in exchange for a ten year note that pays interest 
semi-annually at a rate of 8 percent per annum. Six months later, 
pursuant to a tax avoidance plan, FS lends DM 5,000,000 to DS in 
exchange for a 10 year note that pays interest semi-annually at a 
rate of 10 percent per annum. At the time FP make its loan to FS, 
the exchange rate is DM 1.5/$1. At the time FS makes its loan to DS 
the exchange rate is DM 1.4/$1.
    (ii) FP's loan to FS and FS' loan to DS are financing 
transactions and together constitute a financing arrangement. 
Furthermore, because the participation of FS reduces the tax imposed 
under section 881 and FS' participation is pursuant to a tax 
avoidance plan, the financing arrangement is a conduit financing 
arrangement.
    (iii) Pursuant to paragraph (d)(1)(i) of this section, the 
amount subject to recharacterization is a fraction the numerator of 
which is the average principal amount advanced from FS to DS and the 
denominator of which is the average principal amount advanced from 
FP to FS. Because the property advanced in these financing 
transactions is the same type of fungible property, under paragraph 
(d)(1)(ii)(A) of this section, both are valued on the date of the 
last financing transaction. Accordingly, the portion of the payments 
of interest that is recharacterized is ((DM 5,000,000 x DM 1.4/$1)/
(DM 10,000,000 x DM 1.4/$1) or 0.5.

    (f) Effective date. This section is effective for payments made by 
financed entities on or after September 11, 1995. This section shall 
not apply to interest payments covered by section 127(g)(3) of the Tax 
Reform Act of 1984, and to interest payments with respect to other debt 
obligations issued prior to October 

[[Page 41014]]
15, 1984 (whether or not such debt was issued by a Netherlands Antilles 
corporation).


Sec. 1.881-4  Recordkeeping requirements concerning conduit financing 
arrangements.

    (a) Scope. This section provides rules for the maintenance of 
records concerning certain financing arrangements to which the 
provisions of Sec. 1.881-3 apply.
    (b) Recordkeeping requirements--(1) In general. Any person subject 
to the general recordkeeping requirements of section 6001 must keep the 
permanent books of account or records, as required by section 6001, 
that may be relevant to determining whether that person is a party to a 
financing arrangement and whether that financing arrangement is a 
conduit financing arrangement.
    (2) Application of Sections 6038 and 6038A. A financed entity that 
is a reporting corporation within the meaning of section 6038A(a) and 
the regulations under that section, and any other person that is 
subject to the recordkeeping requirements of Sec. 1.6038A-3, must 
comply with those recordkeeping requirements with respect to records 
that may be relevant to determining whether the financed entity is a 
party to a financing arrangement and whether that financing arrangement 
is a conduit financing arrangement. Such records, including records 
that a person is required to maintain pursuant to paragraph (c) of this 
section, shall be considered records that are required to be maintained 
pursuant to section 6038 or 6038A. Accordingly, the provisions of 
sections 6038 and 6038A (including, without limitation, the penalty 
provisions thereof), and the regulations under those sections, shall 
apply to any records required to be maintained pursuant to this 
section.
    (c) Records to be maintained--(1) In general. An entity described 
in paragraph (b) of this section shall be required to retain any 
records containing the following information concerning each financing 
transaction that the entity knows or has reason to know comprises the 
financing arrangement--
    (i) The nature (e.g., loan, stock, lease, license) of each 
financing transaction;
    (ii) The name, address, taxpayer identification number (if any) and 
country of residence of--
    (A) Each person that advanced money or other property, or granted 
rights to use property;
    (B) Each person that was the recipient of the advance or rights; 
and
    (C) Each person to whom a payment was made pursuant to the 
financing transaction (to the extent that person is a different person 
than the person who made the advance or granted the rights);
    (iii) The date and amount of--
    (A) Each advance of money or other property or grant of rights; and
    (B) Each payment made in return for the advance or grant of rights;
    (iv) The terms of any guarantee provided in conjunction with a 
financing transaction, including the name of the guarantor; and
    (v) In cases where one or both of the parties to a financing 
transaction are related to each other or another entity in the 
financing arrangement, the manner in which these persons are related.
    (2) Additional documents. An entity described in paragraph (b) of 
this section must also retain all records relating to the circumstances 
surrounding its participation in the financing transactions and 
financing arrangements. Such documents may include, but are not limited 
to--
    (i) Minutes of board of directors meetings;
    (ii) Board resolutions or other authorizations for the financing 
transactions;
    (iii) Private letter rulings;
    (iv) Financial reports (audited or unaudited);
    (v) Notes to financial statements;
    (vi) Bank statements;
    (vii) Copies of wire transfers;
    (viii) Offering documents;
    (ix) Materials from investment advisors, bankers and tax advisors; 
and
    (x) Evidences of indebtedness.
    (3) Effect of record maintenance requirement. Record maintenance in 
accordance with paragraph (b) of this section generally does not 
require the original creation of records that are ordinarily not 
created by affected entities. If, however, a document that is actually 
created is described in this paragraph (c), it is to be retained even 
if the document is not of a type ordinarily created by the affected 
entity.
    (d) Effective date. This section is effective September 11, 1995. 
This section shall not apply to interest payments covered by section 
127(g)(3) of the Tax Reform Act of 1984, and to interest payments with 
respect to other debt obligations issued prior to October 15, 1984 
(whether or not such debt was issued by a Netherlands Antilles 
corporation).
    Par. 4. In Sec. 1.1441-3, the OMB parenthetical at the end of the 
section is removed and paragraph (j) is added to read as follows:


Sec. 1.1441-3  Exceptions and rules of special application.

* * * * *
    (j) Conduit financing arrangements--(1) Duty to withhold. A 
financed entity or other person required to withhold tax under section 
1441 with respect to a financing arrangement that is a conduit 
financing arrangement within the meaning of Sec. 1.881-3(a)(2)(iv) 
shall be required to withhold under section 1441 as if the district 
director had determined, pursuant to Sec. 1.881-3(a)(3), that all 
conduit entities that are parties to the conduit financing arrangement 
should be disregarded. The amount of tax required to be withheld shall 
be determined under Sec. 1.881-3(d). The withholding agent may withhold 
tax at a reduced rate if the financing entity establishes that it is 
entitled to the benefit of a treaty that provides a reduced rate of tax 
on a payment of the type deemed to have been paid to the financing 
entity. Section 1.881-3(a)(3)(ii)(E) shall not apply for purposes of 
determining whether any person is required to deduct and withhold tax 
pursuant to this paragraph (j), or whether any party to a financing 
arrangement is liable for failure to withhold or entitled to a refund 
of tax under sections 1441 or 1461 to 1464 (except to the extent the 
amount withheld exceeds the tax liability determined under Sec. 1.881-
3(d)). See Sec. 1.1441-7(d) relating to withholding tax liability of 
the withholding agent in conduit financing arrangements subject to 
Sec. 1.881-3.
    (2) Effective date. This paragraph (j) is effective for payments 
made by financed entities on or after September 11, 1995. This 
paragraph shall not apply to interest payments covered by section 
127(g)(3) of the Tax Reform Act of 1984, and to interest payments with 
respect to other debt obligations issued prior to October 15, 1984 
(whether or not such debt was issued by a Netherlands Antilles 
corporation).
    Par. 5. In Sec. 1.1441-7, the OMB parenthetical at the end of the 
section is removed and paragraph (d) is added to read as follows:


Sec. 1.1441-7  General provisions relating to withholding agents.

* * * * *
    (d) Conduit financing arrangements--(1) Liability of withholding 
agent. Subject to paragraph (d)(2) of this section, any person that is 
required to deduct and withhold tax under Sec. 1.1441-3(j) is made 
liable for that tax by section 1461. A person that is required to 
deduct and withhold tax but fails to do so is liable for the payment 

[[Page 41015]]
of the tax and any applicable penalties and interest.
    (2) Exception for withholding agents that do not know of conduit 
financing arrangement--(i) In general. A withholding agent will not be 
liable under paragraph (d)(1) of this section for failing to deduct and 
withhold with respect to a conduit financing arrangement unless the 
person knows or has reason to know that the financing arrangement is a 
conduit financing arrangement. This standard shall be satisfied if the 
withholding agent knows or has reason to know of facts sufficient to 
establish that the financing arrangement is a conduit financing 
arrangement, including facts sufficient to establish that the 
participation of the intermediate entity in the financing arrangement 
is pursuant to a tax avoidance plan. A withholding agent that knows 
only of the financing transactions that comprise the financing 
arrangement will not be considered to know or have reason to know of 
facts sufficient to establish that the financing arrangement is a 
conduit financing arrangement.
    (ii) Examples. The following examples illustrate the operation of 
paragraph (d)(2) of this section.

    Example 1. (i) DS is a U.S. subsidiary of FP, a corporation 
organized in Country N, a country that does not have an income tax 
treaty with the United States. FS is a special purpose subsidiary of 
FP that is incorporated in Country T, a country that has an income 
tax treaty with the United States that prohibits the imposition of 
withholding tax on payments of interest. FS is capitalized with 
$10,000,000 in debt from BK, a Country N bank, and $1,000,000 in 
capital from FS.
    (ii) On May 1, 1995, C, a U.S. person, purchases an automobile 
from DS in return for an installment note. On July 1, 1995, DS sells 
a number of installment notes, including C's, to FS in exchange for 
$10,000,000. DS continues to service the installment notes for FS 
and C is not notified of the sale of its obligation and continues to 
make payments to DS. But for the withholding tax on payments of 
interest by DS to BK, DS would have borrowed directly from BK, 
pledging the installment notes as collateral.
    (iii) The C installment note is a financing transaction, whether 
held by DS or by FS, and the FS note held by BK also is a financing 
transaction. After FS purchases the installment note, and during the 
time the installment note is held by FS, the transactions constitute 
a financing arrangement, within the meaning of Sec. 1.881-
3(a)(2)(i). BK is the financing entity, FS is the intermediate 
entity, and C is the financed entity. Because the participation of 
FS in the financing arrangement reduces the tax imposed by section 
881 and because there was a tax avoidance plan, FS is a conduit 
entity.
    (iv) Because C does not know or have reason to know of the tax 
avoidance plan (and by extension that the financing arrangement is a 
conduit financing arrangement), C is not required to withhold tax 
under section 1441. However, DS, who knows that FS's participation 
in the financing arrangement is pursuant to a tax avoidance plan and 
is a withholding agent for purposes of section 1441, is not relieved 
of its withholding responsibilities.
    Example 2. Assume the same facts as in Example, 1 except that C 
receives a new payment booklet on which DS is described as 
``agent''. Although C may deduce that its installment note has been 
sold, without more C has no reason to know of the existence of a 
financing arrangement. Accordingly, C is not liable for failure to 
withhold, although DS still is not relieved of its withholding 
responsibilities.
    Example 3. (i) DC is a U.S. corporation that is in the process 
of negotiating a loan of $10,000,000 from BK1, a bank located in 
Country N, a country that does not have an income tax treaty with 
the United States. Before the loan agreement is signed, DC's tax 
lawyers point out that interest on the loan would not be subject to 
withholding tax if the loan were made by BK2, a subsidiary of BK1 
that is incorporated in Country T, a country that has an income tax 
treaty with the United States that prohibits the imposition of 
withholding tax on payments of interest. BK1 makes a loan to BK2 to 
enable BK2 to make the loan to DC. Without the loan from BK1 to BK2, 
BK2 would not have been able to make the loan to DC.
    (ii) The loan from BK1 to BK2 and the loan from BK2 to DC are 
both financing transactions and together constitute a financing 
arrangement within the meaning of Sec. 1.881-3(a)(2)(i). BK1 is the 
financing entity, BK2 is the intermediate entity, and DC is the 
financed entity. Because the participation of BK2 in the financing 
arrangement reduces the tax imposed by section 881 and because there 
is a tax avoidance plan, BK2 is a conduit entity.
    (iii) Because DC is a party to the tax avoidance plan (and 
accordingly knows of its existence), DC must withhold tax under 
section 1441. If DC does not withhold tax on its payment of 
interest, BK2, a party to the plan and a withholding agent for 
purposes of section 1441, must withhold tax as required by section 
1441.
    Example 4. (i) DC is a U.S. corporation that has a long-standing 
banking relationship with BK2, a U.S. subsidiary of BK1, a bank 
incorporated in Country N, a country that does not have an income 
tax treaty with the United States. DC has borrowed amounts of as 
much as $75,000,000 from BK2 in the past. On January 1, 1995, DC 
asks to borrow $50,000,000 from BK2. BK2 does not have the funds 
available to make a loan of that size. BK2 considers BK1 to enter 
into a loan with DC but rejects this possibility because of the 
additional withholding tax that would be incurred. Accordingly, BK2 
borrows the necessary amount from BK1 with the intention of on-
lending to DC. BK1 does not make the loan directly to DC because of 
the withholding tax that would apply to payments of interest from DC 
to BK1. DC does not negotiate with BK1 and has no reason to know 
that BK1 was the source of the loan.
    (ii) The loan from BK2 to DC and the loan from BK1 to BK2 are 
both financing transactions and together constitute a financing 
arrangement within the meaning of Sec. 1.881-3(a)(2)(i). BK1 is the 
financing entity, BK2 is the intermediate entity, and DC is the 
financed entity. The participation of BK2 in the financing 
arrangement reduces the tax imposed by section 881. Because the 
participation of BK2 in the financing arrangement reduces the tax 
imposed by section 881 and because there was a tax avoidance plan, 
BK2 is a conduit entity.
    (iii) Because DC does not know or have reason to know of the tax 
avoidance plan (and by extension that the financing arrangement is a 
conduit financing arrangement), DC is not required to withhold tax 
under section 1441. However, BK2, who is also a withholding agent 
under section 1441 and who knows that the financing arrangement is a 
conduit financing arrangement, is not relieved of its withholding 
responsibilities.

    (3) Effective date. This paragraph (d) is effective for payments 
made by financed entities on or after September 11, 1995. This 
paragraph shall not apply to interest payments covered by section 
127(g)(3) of the Tax Reform Act of 1984, and to interest payments with 
respect to other debt obligations issued prior to October 15, 1984 
(whether or not such debt was issued by a Netherlands Antilles 
corporation).
    Par. 6. In Sec. 1.6038A-3, paragraphs (b)(5) and (c)(2)(vii) are 
added to read as follows:


Sec. 1.6038A-3  Record maintenance.

* * * * *
    (b) * * *
    (5) Records relating to conduit financing arrangements. See 
Sec. 1.881-4 relating to conduit financing arrangements.
    (c) * * *
    (2) * * *
    (vii) Records relating to conduit financing arrangements. See 
Sec. 1.881-4 relating to conduit financing arrangements.
* * * * *
    Par. 7. Section 1.7701(l)-1 is added to read as follows:


Sec. 1.7701(l)-1  Conduit financing arrangements.

    (a) Scope. Section 7701(l) authorizes the issuance of regulations 
that recharacterize any multiple-party financing transaction as a 
transaction directly among any two or more of such parties where the 
Secretary determines that such recharacterization is appropriate to 
prevent avoidance of any tax imposed by title 26 of the United States 
Code.
    (b) Regulations issued under authority of section 7701(l). The 
following regulations are issued under the authority of section 
7701(l)--

[[Page 41016]]

    (1) Sec. 1.871-1(b)(7);
    (2) Sec. 1.881-3;
    (3) Sec. 1.881-4;
    (4) Sec. 1.1441-3(j);
    (5) Sec. 1.1441-7(d);
    (6) Sec. 1.6038A-3(b)(5); and
    (7) Sec. 1.6038A-3(c)(2)(vii).

PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

    Par. 8. The authority citation for part 602 continues to read as 
follows:

    Authority: 26 U.S.C. 7805.

    Par. 9. In Sec. 602.101, paragraph (c) is amended by adding an 
entry in numerical order and revising an entry to the table to read as 
follows:


Sec. 602.101  OMB Control numbers.

* * * * *
    (c) * * *

------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      control No.
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
1.881-4....................................................    1545-1440
                                                                        
                  *        *        *        *        *                 
Sec.  1.6038A-3............................................    1545-1191
                                                               1545-1440
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

Margaret Milner Richardson,
Commissioner of Internal Revenue.
    Approved: July 26, 1995.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 95-19446 Filed 8-10-95; 8:45 am]
BILLING CODE 4830-01-U