[Federal Register Volume 60, Number 170 (Friday, September 1, 1995)]
[Rules and Regulations]
[Pages 45661-45668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21682]



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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8617]
RIN 1545-AS58; 1545-AT13


Accuracy-Related Penalty

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations implementing changes 
to the accuracy-related penalty under section 6662 of the Internal 
Revenue Code of 1986 that were made by section 13251 of the Omnibus 
Budget Reconciliation Act of 1993 (OBRA 1993) and Title VII of the 
Uruguay Round Agreements Act, implementing the Uruguay Round of the 
General Agreement on Tariffs and Trade 

[[Page 45662]]
(the GATT Act). The final regulations also provide guidance as to when 
a taxpayer may rely upon the advice of others as evidence of reasonable 
cause and good faith within the meaning of section 6664(c) for purposes 
of avoiding the accuracy-related penalty of section 6662, and as to 
what constitutes reasonable cause and good faith within the meaning of 
section 6664(c) as applicable to the substantial understatement penalty 
of section 6662(b)(2) with respect to tax shelter items of a 
corporation. These regulations affect taxpayers subject to the 
accuracy-related penalty.

EFFECTIVE DATE: These regulations are effective September 1, 1995.

FOR FURTHER INFORMATION CONTACT: Rochelle L. Hodes, (202) 622- 6232 
(not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    As part of OBRA 1993, Congress made certain changes to the 
accuracy-related penalty. These changes eliminated the disclosure 
exception for the negligence penalty (section 6662(b)(1) of the 
Internal Revenue Code (Code)) and raised the disclosure standard for 
purposes of the penalties for disregard of rules or regulations 
(section 6662(b)(1) of the Code) and substantial understatement of 
income tax (section 6662(b)(2) of the Code) from ``not frivolous'' to 
``reasonable basis.''
    On March 17, 1994, temporary regulations (TD 8533) reflecting 
changes to the accuracy-related penalty made by OBRA 1993 were 
published in the Federal Register (59 FR 12547). A notice of proposed 
rulemaking (IA-78-93) relating to the temporary regulations was 
published in the Federal Register for the same day (59 FR 12563). On 
March 30, 1994, a correction to the temporary regulations was published 
in the Federal Register (59 FR 14749) clarifying language in 
Sec. 1.6662-7T(a)(2) of the temporary regulations. The same day a 
correction to the notice of proposed rulemaking was published in the 
Federal Register (59 FR 14810) correcting ``RIN 1545-AS58'' to read 
``RIN 1545-AS62'' and other administrative matters and clarifying 
language in Secs. 1.6662-2(d)(2) and 1.6662-7(a)(2) of the proposed 
regulations.
    Section 744 of the GATT Act made further changes to the accuracy-
related penalty. For corporate taxpayers, the GATT Act amended section 
6662(d) of the Code to eliminate the exception to the substantial 
understatement penalty regarding tax shelter items for which the 
taxpayer had substantial authority and reasonably believed that its 
treatment was more likely than not the proper treatment. The 
legislative history of the GATT Act states that ``the standards 
applicable to corporate tax shelters are tightened'' and ``in no 
instance [will] this modification result in a penalty not being imposed 
where a penalty would have been imposed under prior law.'' S. Rep. No. 
412, 103d Cong., 2d Sess. 165 (1994); H.R. Rep. No. 826, 103d Cong., 2d 
Sess. 198-99 (1994).
    On January 4, 1995, a notice of proposed rulemaking (IA-55-94) was 
published in the Federal Register (60 FR 406) implementing the changes 
made by the GATT Act and providing guidance with regard to reliance 
upon the advice of others as evidence of reasonable cause and good 
faith within the meaning of section 6664(c) of the Code for purposes of 
avoiding the accuracy-related penalty of section 6662, and what 
constitutes reasonable cause and good faith within the meaning of 
section 6664(c) as it applies to the substantial understatement penalty 
of section 6662(b)(2) with respect to tax shelter items of a 
corporation.
    Written comments responding to these notices were received. A 
public hearing on the notices regarding changes made by OBRA 1993 was 
held on July 12, 1994. A public hearing on the notice regarding changes 
made by the GATT Act was held on April 28, 1995. After consideration of 
all the comments, the proposed regulations under sections 6662 and 6664 
of the Code are adopted as revised by this Treasury decision.

Explanation of Provisions

Reasonable Basis Standard for Disclosure

    With respect to the reasonable basis standard, the final 
regulations adopt the proposed regulations without substantive change. 
The regulations provide that the reasonable basis standard is 
``significantly higher than the not frivolous standard applicable to 
preparers under section 6694.'' In the preamble to the proposed 
regulations, Treasury requested comments on any additional guidance as 
to the reasonable basis standard for purposes of the negligence, 
disregard of rules or regulations, and substantial understatement 
penalties. Several commentators recommended adopting as the definition 
of reasonable basis the description that existed in Sec. 1.6662-4(d)(2) 
of the regulations prior to amendment by these final regulations. Other 
commentators recommended equating the reasonable basis standard with 
the negligence standard and the realistic possibility of success 
standard, taking into account the relative knowledge and experience of 
the taxpayer. The IRS and Treasury are continuing to consider these 
comments in connection with a separate project to publish a notice of 
proposed rulemaking providing further guidance as to the reasonable 
basis standard. Treasury and the IRS invite additional comments and 
suggestions regarding this project.
Reliance on Tax Advisor

    Under sections 6662 and 6664, and applicable regulations, a 
taxpayer's good faith reliance on the advice (including an opinion) of 
a professional tax advisor will generally be taken into account for 
purposes of determining whether the taxpayer will be subject to an 
accuracy-related penalty. See, e.g., Secs. 1.6662-4(g)(4)(ii) and 
1.6664-4(b). The proposed regulations clarify when a taxpayer may be 
considered to have reasonably relied in good faith upon advice 
(including an opinion provided by a professional tax advisor), for 
purposes of sections 6662 and 6664. In general, Sec. 1.6664-4(c) of the 
proposed regulations requires advice to be based on all material facts 
(including, for example, the taxpayer's purposes for entering into a 
transaction) and to relate applicable law to such facts in reaching its 
conclusion. The advice must not be based upon unreasonable factual or 
legal assumptions (including assumptions as to future events), nor 
unreasonably rely on the representations, findings or agreements of the 
taxpayer or any other person. The proposed regulations also indicate 
that reliance may not be reasonable or in good faith if the taxpayer 
knew, or should have known, that the advisor lacked knowledge in the 
relevant aspects of Federal tax law.
    Several commentators recommended changes to these provisions of the 
proposed regulations. For example, one commentator suggested 
eliminating language in Sec. 1.6664-4(c)(1) of the proposed regulations 
that reliance on advice may not be reasonable and in good faith if the 
taxpayer knew, or should have known, that the advisor lacked knowledge 
in the relevant aspects of Federal tax law.
    The final regulations do not adopt this suggestion. In requiring 
that reliance on advice must be reasonable in light of all of the facts 
and circumstances, the final regulations do not depart from prior law. 
In most situations it will generally be reasonable for a taxpayer to 
conclude that an attorney, an accountant, or an enrolled agent is 
qualified to give advice on Federal tax law.

[[Page 45663]]

    Another commentator suggested eliminating the requirements that 
advice must be based on all material facts and reasonable factual and 
legal assumptions. The commentator stated that taxpayers are not in a 
position to determine what facts are material, particularly in complex 
transactions, nor are they in a position to determine whether the 
advisor based the opinion on material facts and reasonable factual and 
legal assumptions. An additional commentator requested guidance to 
distinguish the term pertinent as it is used throughout the regulations 
and the term material as it is used in Sec. 1.6664-4(c) of the proposed 
regulations.
    In response to these comments, and in order to resolve confusion, 
the final regulations provide that advice must be based upon all 
pertinent facts and circumstances and the law as it relates to those 
facts and circumstances. As used in this context, pertinent is intended 
to have the same meaning as it has in Sec. 1.6662-4(g)(4)(ii), which 
provides that a taxpayer may satisfy the reasonable belief requirement 
of section 6662(d)(2)(C)(i) through reliance on an advisor's analysis 
of pertinent facts and authorities. To clarify that separate rules 
apply to taxpayers and advisors, the final regulations have also been 
revised to include a cross-reference to the preparer penalties under 
Secs. 1.6694-1 through 1.6694-3 and Circular 230 (contained in 31 CFR 
part 10).
    Another commentator recommended eliminating, or in the alternative 
revising and clarifying, the requirement that advice take into account 
the taxpayer's purposes for entering into a transaction or structuring 
a transaction in a particular manner. The final regulations do not 
adopt this recommendation. It is appropriate to consider a taxpayer's 
reasons for structuring a transaction in a particular manner in 
determining whether the taxpayer acted in good faith in its tax return 
treatment of items from the transaction.

Reasonable Cause for Tax Shelter Items of a Corporation

    The proposed regulations provide that a corporation's legal 
justification may be taken into account, as appropriate, in 
establishing that the corporation acted with reasonable cause and in 
good faith in its treatment of a tax shelter item only if there is 
substantial authority for the treatment of the item and the corporation 
reasonably believes in good faith that such treatment is more likely 
than not the proper treatment. Under the proposed regulations, 
satisfaction of the substantial authority and reasonable belief 
criteria is an important factor to be considered in determining whether 
the taxpayer acted with reasonable cause and in good faith, but is not 
necessarily dispositive. The proposed regulations also provide that 
facts and circumstances other than a corporation's legal justification 
may be taken into account, as appropriate, in determining whether it 
acted with reasonable cause and in good faith, regardless of whether 
the substantial authority and reasonable belief requirements are 
satisfied.
    One commentator urged removal of the special reasonable cause 
standard for corporate tax shelter items under the proposed 
regulations. According to the commentator, there is no authority in 
section 6664 or its legislative history for a reasonable cause standard 
for tax shelter items of corporate taxpayers that differs from the 
standard for noncorporate taxpayers.
    Other commentators recommended revising the legal justification 
test for determining reasonable cause. Particularly, these commentators 
recommended removing the objective requirement that substantial 
authority be present for the taxpayer's position (the authority 
requirement). Alternatively, one commentator suggested making the legal 
justification test a ``safe harbor.'' Under this alternative, a 
taxpayer that satisfies the authority requirement and the belief 
requirement under proposed Sec. 1.6664-4(e)(2) would be treated as 
having acted with reasonable cause and in good faith.
    The final regulations do not adopt these suggestions. Treasury and 
the IRS continue to believe that the regulations, including the 
authority requirement, properly implement the statute and Congressional 
intent.
    Satisfaction of the minimum requirements under the legal 
justification test is an important factor to be considered in 
determining whether a corporate taxpayer acted with reasonable cause 
and in good faith, but is not necessarily dispositive. For example, 
depending on the circumstances, satisfaction of the minimum 
requirements may not be dispositive if the taxpayer's participation in 
the tax shelter lacked significant business purpose, if the taxpayer 
claimed tax benefits that are unreasonable in comparison to the 
taxpayer's investment in the tax shelter, or if the taxpayer agreed 
with the organizer or promoter of the tax shelter that the taxpayer 
would protect the confidentiality of the tax aspects of the structure 
of the tax shelter. In addition, a taxpayer that does not satisfy the 
authority requirement may nonetheless demonstrate that it acted with 
reasonable cause and in good faith based on facts and circumstances 
unrelated to its legal justification (the other factors test).
    Although several commentators requested additional guidance with 
regard to the other factors test, they provided no examples of factors 
(other than factors related to legal justification) that they would 
like to be included in the final regulations. The suggested factors 
were not adopted because legal justification is not relevant to the 
other factors test. While the final regulations do not provide 
additional guidance in this area, Treasury and the IRS continue to 
welcome comments on the issue.

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 has also been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to 
these regulations, and therefore, a Regulatory Flexibility Analysis is 
not required. Pursuant to section 7805(f) of the Internal Revenue Code, 
the notices of proposed rulemaking preceding these regulations were 
submitted to the Small Business Administration for comment on their 
impact on small business.

Drafting Information

    The principal authors of these regulations are Rochelle L. Hodes, 
Office of Assistant Chief Counsel (Income Tax and Accounting), and 
David Meyer formerly of that office. However, other personnel from the 
IRS and Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES
    Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

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

    Par. 2. Section 1.6662-0 is amended by:
    1. Revising the introductory language.
    2. Revising the entry for Sec. 1.6662-2(d) and adding entries for 
(d) (1), (2), and (3). 

[[Page 45664]]

    3. Revising the entries for Secs. 1.6662-3(b)(3) and 1.6662-4(g).
    4. Adding an entry for Sec. 1.6662-7.
    5. Removing the entry for Sec. 1.6662-7T.
    The additions and revisions read as follows:


Sec. 1.6662-0  Table of contents.

    This section lists the captions that appear in Secs. 1.6662-1 
through 1.6662-7.
* * * * *

Sec. 1.6662-2  Accuracy related penalty.

* * * * *
    (d) Effective dates.
    (1) Returns due before January 1, 1994.
    (2) Returns due after December 31, 1993.
    (3) Special rules for tax shelter items.
* * * * *

Sec. 1.6662-3  Negligence or disregard of rules or regulations.

* * * * *
    (b) * * *
    (3) Reasonable basis.
    (i) In general [Reserved].
    (ii) Relationship to other standards.
* * * * *

Sec. 1.6662-4  Substantial understatement of income tax.

* * * * *
    (g) Items relating to tax shelters.
    (1) In general.
    (i) Noncorporate taxpayers.
    (ii) Corporate taxpayers.
    (A) In general.
    (B) Special rule for transactions occurring prior to December 9, 
1994.
    (iii) Disclosure irrelevant.
    (iv) Cross-reference.
    (2) Tax shelter.
    (i) In general.
    (ii) Principal purpose.
    (3) Tax shelter item.
    (4) Reasonable belief.
    (i) In general.
    (ii) Facts and circumstances; reliance on professional tax 
advisor.
    (5) Pass-through entities.
* * * * *

Sec. 1.6662-7  Omnibus Budget Reconciliation Act of 1993 changes to 
the accuracy-related penalty.

    (a) Scope.
    (b) No disclosure exception for negligence penalty.
    (c) Disclosure standard for other penalties is reasonable basis.
    (d) Definition of reasonable basis.
    (1) In general [Reserved].
    (2) Relationship to other standards.

    Par. 3. In Sec. 1.6662-1, the second and third sentences of the 
concluding text are revised to read as follows:


Sec. 1.6662-1  Overview of the accuracy-related penalty.

* * * * *
* * * The penalties for disregard of rules or regulations and for a 
substantial understatement of income tax may be avoided by adequately 
disclosing certain information as provided in Sec. 1.6662-3(c) and 
Secs. 1.6662-4(e) and (f), respectively. The penalties for negligence 
and for a substantial (or gross) valuation misstatement under chapter 1 
may not be avoided by disclosure. * * *
    Par. 4. Section 1.6662-2 is amended by:
    1. Revising the heading of paragraph (d), redesignating the text of 
paragraph (d) following the heading as paragraph (d)(1), adding a new 
heading for newly designated paragraph (d)(1), and revising the first 
and second sentences of newly redesignated paragraph (d)(1).
    2. Adding new paragraphs (d)(2) and (3).
    The additions and revisions read as follows:


Sec. 1.6662-2  Accuracy-related penalty.

* * * * *
    (d) Effective dates--(1) Returns due before January 1, 1994. 
Section 1.6662-3(c) and Secs. 1.6662-4 (e) and (f) (relating to methods 
of making adequate disclosure) (as contained in 26 CFR part 1 revised 
April 1, 1995) apply to returns the due date of which (determined 
without regard to extensions of time for filing) is after December 31, 
1991, but before January 1, 1994. Except as provided in the preceding 
sentence and in paragraphs (d)(2) and (3) of this section, 
Secs. 1.6662-1 through 1.6662-5 apply to returns the due date of which 
(determined without regard to extensions of time for filing) is after 
December 31, 1989, but before January 1, 1994. * * *
    (2) Returns due after December 31, 1993. Except as provided in 
paragraph (d)(3) and the last sentence of this paragraph (d)(2), the 
provisions of Secs. 1.6662-1 through 1.6662-4 and Sec. 1.6662-7 (as 
revised to reflect the changes made to the accuracy-related penalty by 
the Omnibus Budget Reconciliation Act of 1993) and of Sec. 1.6662-5 
apply to returns the due date of which (determined without regard to 
extensions of time for filing) is after December 31, 1993. These 
changes include raising the disclosure standard for the penalties for 
disregarding rules or regulations and for a substantial understatement 
of income tax from not frivolous to reasonable basis, eliminating the 
disclosure exception for the negligence penalty, and providing guidance 
on the meaning of reasonable basis. The Omnibus Budget Reconciliation 
Act of 1993 changes relating to the penalties for negligence or 
disregard of rules or regulations will not apply to returns (including 
qualified amended returns) that are filed on or before March 14, 1994, 
but the provisions of Secs. 1.6662-1 through 1.6662-3 (as contained in 
26 CFR part 1 revised April 1, 1995) relating to those penalties will 
apply to such returns.
    (3) Special rules for tax shelter items. Sections 1.6662-4(g)(1) 
and 1.6662-4(g)(4) apply to returns the due date of which (determined 
without regard to extensions of time for filing) is after September 1, 
1995. Except as provided in the last sentence of this paragraph (d)(3), 
Secs. 1.6662-4(g)(1) and 1.6662-4(g)(4) (as contained in 26 CFR part 1 
revised April 1, 1995) apply to returns the due date of which 
(determined without regard to extensions of time for filing) is on or 
before September 1, 1995 and after December 31, 1989. For transactions 
occurring after December 8, 1994, Secs. 1.6662-4(g)(1) and 1.6662-
4(g)(2) (as contained in 26 CFR part 1 revised April 1, 1995) are 
applied taking into account the changes made to section 6662(d)(2)(C) 
(relating to the substantial understatement penalty for tax shelter 
items of corporations) by section 744 of Title VII of the Uruguay Round 
Agreements Act, Pub. L. 103-465 (108 Stat. 4809).
    Par. 5. Section 1.6662-3 is amended by:
    1. Revising the second sentence of paragraph (a).
    2. Revising paragraph (b)(3).
    3. Revising paragraphs (c)(1) and (2).
    The revisions read as follows:


Sec. 1.6662-3  Negligence or disregard of rules or regulations.

    (a) * * * The penalty for disregarding rules or regulations does 
not apply, however, if the requirements of Sec. 1.6662-3(c)(1) are 
satisfied and the position in question is adequately disclosed as 
provided in Sec. 1.6662-3(c)(2), or to the extent that the reasonable 
cause and good faith exception to this penalty set forth in 
Sec. 1.6664-4 applies. * * *
    (b) * * *
    (3) Reasonable basis--(i) In general. [Reserved].
    (ii) Relationship to other standards. The reasonable basis standard 
is significantly higher than the not frivolous standard applicable to 
preparers under section 6694 and defined in Sec. 1.6694-2(c)(2).
    (c) * * * (1) In general. No penalty under section 6662(b)(1) may 
be imposed on any portion of an underpayment that is attributable to a 
position contrary to a rule or regulation if the position is disclosed 
in accordance with the rules of paragraph (c)(2) of this section and, 
in case of a position contrary to a regulation, the 

[[Page 45665]]
position represents a good faith challenge to the validity of the 
regulation. This disclosure exception does not apply, however, in the 
case of a position that does not have a reasonable basis or where the 
taxpayer fails to keep adequate books and records or to substantiate 
items properly.
    (2) Method of disclosure. Disclosure is adequate for purposes of 
the penalty for disregarding rules or regulations if made in accordance 
with the provisions of Secs. 1.6662-4(f)(1), (3), (4), and (5), which 
permit disclosure on a properly completed and filed Form 8275 or 8275-
R, as appropriate. In addition, the statutory or regulatory provision 
or ruling in question must be adequately identified on the Form 8275 or 
8275-R, as appropriate. The provisions of Sec. 1.6662-4(f)(2), which 
permit disclosure in accordance with an annual revenue procedure for 
purposes of the substantial understatement penalty, do not apply for 
purposes of this section.
* * * * *
    Par. 6. Section 1.6662-4 is amended by:
    1. Removing the third sentence in paragraph (d)(2).
    2. Revising paragraph (e)(2).
    3. Revising paragraphs (g)(1), (g)(4), and (g)(5).
    The revisions read as follows:


Sec. 1.6662-4  Substantial understatement of income tax.

* * * * *
    (e) * * *
    (2) Circumstances where disclosure will not have an effect. The 
rules of paragraph (e)(1) of this section do not apply where the item 
or position on the return--
    (i) Does not have a reasonable basis (as defined in Sec. 1.6662-
3(b)(3));
    (ii) Is attributable to a tax shelter (as defined in section 
6662(d)(2)(C)(iii) and paragraph (g)(2) of this section); or
    (iii) Is not properly substantiated, or the taxpayer failed to keep 
adequate books and records with respect to the item or position.
* * * * *
    (g) Items relating to tax shelters--(1) In general--(i) 
Noncorporate taxpayers. Tax shelter items (as defined in paragraph 
(g)(3) of this section) of a taxpayer other than a corporation are 
treated for purposes of this section as if such items were shown 
properly on the return for a taxable year in computing the amount of 
tax shown on the return, and thus the tax attributable to such items is 
not included in the understatement for the year, if--
    (A) There is substantial authority (as provided in paragraph (d) of 
this section) for the tax treatment of that item; and
    (B) The taxpayer reasonably believed at the time the return was 
filed that the tax treatment of that item was more likely than not the 
proper treatment.
    (ii) Corporate taxpayers--(A) In general. Except as provided in 
paragraph (g)(1)(ii)(B) of this section, all tax shelter items (as 
defined in paragraph (g)(3) of this section) of a corporation are taken 
into account in computing the amount of any understatement.
    (B) Special rule for transactions occurring prior to December 9, 
1994. The tax shelter items of a corporation arising in connection with 
transactions occurring prior to December 9, 1994 are treated for 
purposes of this section as if such items were shown properly on the 
return if the requirements of paragraph (g)(1)(i) are satisfied with 
respect to such items.
    (iii) Disclosure irrelevant. Disclosure made with respect to a tax 
shelter item of either a corporate or noncorporate taxpayer does not 
affect the amount of an understatement.
    (iv) Cross-reference. See Sec. 1.6664-4(e) for certain rules 
regarding the availability of the reasonable cause and good faith 
exception to the substantial understatement penalty with respect to tax 
shelter items of corporations.
* * * * *
    (4) Reasonable belief--(i) In general. For purposes of section 
6662(d) and paragraph (g)(1)(i)(B) of this section (pertaining to tax 
shelter items of noncorporate taxpayers), a taxpayer is considered 
reasonably to believe that the tax treatment of an item is more likely 
than not the proper tax treatment if (without taking into account the 
possibility that a return will not be audited, that an issue will not 
be raised on audit, or that an issue will be settled)--
    (A) The taxpayer analyzes the pertinent facts and authorities in 
the manner described in paragraph (d)(3)(ii) of this section, and in 
reliance upon that analysis, reasonably concludes in good faith that 
there is a greater than 50-percent likelihood that the tax treatment of 
the item will be upheld if challenged by the Internal Revenue Service; 
or
    (B) The taxpayer reasonably relies in good faith on the opinion of 
a professional tax advisor, if the opinion is based on the tax 
advisor's analysis of the pertinent facts and authorities in the manner 
described in paragraph (d)(3)(ii) of this section and unambiguously 
states that the tax advisor concludes that there is a greater than 50-
percent likelihood that the tax treatment of the item will be upheld if 
challenged by the Internal Revenue Service.
    (ii) Facts and circumstances; reliance on professional tax advisor. 
All facts and circumstances must be taken into account in determining 
whether a taxpayer satisfies the requirements of paragraph (g)(4)(i) of 
this section. However, in no event will a taxpayer be considered to 
have reasonably relied in good faith on the opinion of a professional 
tax advisor for purposes of paragraph (g)(4)(i)(B) of this section 
unless the requirements of Sec. 1.6664-4(c)(1) are met. The fact that 
the requirements of Sec. 1.6664-4(c)(1) are satisfied will not 
necessarily establish that the taxpayer reasonably relied on the 
opinion in good faith. For example, reliance may not be reasonable or 
in good faith if the taxpayer knew, or should have known, that the 
advisor lacked knowledge in the relevant aspects of Federal tax law.
    (5) Pass-through entities. In the case of tax shelter items 
attributable to a pass-through entity, the actions described in 
paragraphs (g)(4)(i)(A) and (B) of this section, if taken by the 
entity, are deemed to have been taken by the taxpayer and are 
considered in determining whether the taxpayer reasonably believed that 
the tax treatment of an item was more likely than not the proper tax 
treatment.
    Par. 7. Section 1.6662-7 is added to read as follows:


Sec. 1.6662-7  Omnibus Budget Reconciliation Act of 1993 changes to the 
accuracy-related penalty.

    (a) Scope. The Omnibus Budget Reconciliation Act of 1993 made 
certain changes to the accuracy-related penalty in section 6662. This 
section provides rules reflecting those changes.
    (b) No disclosure exception for negligence penalty. The penalty for 
negligence in section 6662(b)(1) may not be avoided by disclosure of a 
return position.
    (c) Disclosure standard for other penalties is reasonable basis. 
The penalties for disregarding rules or regulations in section 
6662(b)(1) and for a substantial understatement of income tax in 
section 6662(b)(2) may be avoided by adequate disclosure of a return 
position only if the position has at least a reasonable basis. See 
Sec. 1.6662-3(c) and Secs. 1.6662-4(e) and (f) for other applicable 
disclosure rules.
    (d) Definition of reasonable basis--(1) In general. [Reserved].
    (2) Relationship to other standards. The reasonable basis standard 
is significantly higher than the not frivolous standard applicable to 

[[Page 45666]]
preparers under section 6694 and defined in Sec. 1.6694-2(c)(2).


Sec. 1.6662-7T  [Removed]

    Par. 8. Section 1.6662-7T is removed.
    Par. 9. Section 1.6664-0 is amended by revising the entries for 
Secs. 1.6664-1(b) and 1.6664-4 to read as follows:

Sec. 1.6664-0  Table of contents.

* * * * *

Sec. 1.6664-1  Accuracy-related and fraud penalties; definitions 
and special rules.

* * * * *
    (b) Effective date.
    (1) In general.
    (2) Reasonable cause and good faith exception to section 6662 
penalties.
* * * * *

Sec. 1.6664-4  Reasonable cause and good faith exception to section 
6662 penalties.

    (a) In general.
    (b) Facts and circumstances taken into account.
    (1) In general.
    (2) Examples.
    (c) Reliance on opinion or advice.
    (1) Fact and circumstances; minimum requirements.
    (i) All facts and circumstances considered.
    (ii) No unreasonable assumptions.
    (iii) Law is related to actual facts.
    (2) Definitions.
    (i) Advice.
    (ii) Material.
    (3) Cross-reference.
    (d) Pass-through items.
    (e) Special rules for substantial understatement penalty 
attributable to tax shelter items of corporations.
    (1) In general; facts and circumstances.
    (2) Reasonable cause based on legal justification.
    (i) Minimum requirements.
    (A) Authority requirement.
    (B) Belief requirement.
    (ii) Legal justification defined.
    (3) Minimum requirements not dispositive.
    (4) Other factors.
    (f) Transactions between persons described in section 482 and 
net section 482 transfer price adjustments. [Reserved]
    (g) Valuation misstatements of charitable deduction property.
    (1) In general.
    (2) Definitions.
    (i) Charitable deduction property.
    (ii) Qualified appraisal.
    (iii) Qualified appraiser.
* * * * *
    Par. 10. Section 1.6664-1 is amended by revising paragraph (b) to 
read as follows:

Sec. 1.6664-1  Accuracy-related and fraud penalties; definitions 
and special rules.

* * * * *
    (b) Effective date--(1) In general. Sections 1.6664-1 through 
1.6664-3 apply to returns the due date of which (determined without 
regard to extensions of time for filing) is after December 31, 1989.
    (2) Reasonable cause and good faith exception to section 6662 
penalties. Section 1.6664-4 applies to returns the due date of which 
(determined without regard to extensions of time for filing) is after 
September 1, 1995. Except as provided in the last sentence of this 
paragraph (b)(2), Sec. 1.6664-4 (as contained in 26 CFR part 1 revised 
April 1, 1995) applies to returns the due date of which (determined 
without regard to extensions of time for filing) is on or before 
September 1, 1995 and after December 31, 1989. For transactions 
occurring after December 8, 1994, Sec. 1.6664-4 (as contained in 26 CFR 
part 1 revised April 1, 1995) is applied taking into account the 
changes made to section 6662(d)(2)(C) (relating to the substantial 
understatement penalty for tax shelter items of corporations) by 
section 744 of Title VII of the Uruguay Round Agreements Act, Pub. L. 
103-465 (108 Stat. 4809).
    Par. 11. Section 1.6664-4 is amended by:
    1. Revising the last sentence of paragraph (a).
    2. Revising paragraph (b)(1).
    3. Revising the introductory language of paragraph (b)(2) and 
Example 1.
    4. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), 
(f), and (g), respectively.
    5. Revising newly designated paragraph (d).
    6. Adding new paragraphs (c) and (e).
    The additions and revisions read as follows:


Sec. 1.6664-4  Reasonable cause and good faith exception to section 
6662 penalties.

    (a) * * * Rules for determining whether the reasonable cause and 
good faith exception applies are set forth in paragraphs (b) through 
(g) of this section.
    (b) Facts and circumstances taken into account--(1) In general. The 
determination of whether a taxpayer acted with reasonable cause and in 
good faith is made on a case-by-case basis, taking into account all 
pertinent facts and circumstances. (See paragraph (e) of this section 
for certain rules relating to a substantial understatement penalty 
attributable to tax shelter items of corporations.) Generally, the most 
important factor is the extent of the taxpayer's effort to assess the 
taxpayer's proper tax liability. Circumstances that may indicate 
reasonable cause and good faith include an honest misunderstanding of 
fact or law that is reasonable in light of all of the facts and 
circumstances, including the experience, knowledge, and education of 
the taxpayer. An isolated computational or transcriptional error 
generally is not inconsistent with reasonable cause and good faith. 
Reliance on an information return or on the advice of a professional 
tax advisor or an appraiser does not necessarily demonstrate reasonable 
cause and good faith. Similarly, reasonable cause and good faith is not 
necessarily indicated by reliance on facts that, unknown to the 
taxpayer, are incorrect. Reliance on an information return, 
professional advice, or other facts, however, constitutes reasonable 
cause and good faith if, under all the circumstances, such reliance was 
reasonable and the taxpayer acted in good faith. (See paragraph (c) of 
this section for certain rules relating to reliance on the advice of 
others.) For example, reliance on erroneous information (such as an 
error relating to the cost or adjusted basis of property, the date 
property was placed in service, or the amount of opening or closing 
inventory) inadvertently included in data compiled by the various 
divisions of a multidivisional corporation or in financial books and 
records prepared by those divisions generally indicates reasonable 
cause and good faith, provided the corporation employed internal 
controls and procedures, reasonable under the circumstances, that were 
designed to identify such factual errors. Reasonable cause and good 
faith ordinarily is not indicated by the mere fact that there is an 
appraisal of the value of property. Other factors to consider include 
the methodology and assumptions underlying the appraisal, the appraised 
value, the relationship between appraised value and purchase price, the 
circumstances under which the appraisal was obtained, and the 
appraiser's relationship to the taxpayer or to the activity in which 
the property is used. (See paragraph (g) of this section for certain 
rules relating to appraisals for charitable deduction property.) A 
taxpayer's reliance on erroneous information reported on a Form W-2, 
Form 1099, or other information return indicates reasonable cause and 
good faith, provided the taxpayer did not know or have reason to know 
that the information was incorrect. Generally, a taxpayer knows, or has 
reason to know, that the information on an information return is 
incorrect if such information is inconsistent with other information 
reported or otherwise furnished to the taxpayer, or with the taxpayer's 
knowledge of the transaction. This knowledge includes, for example, the 
taxpayer's knowledge of the terms of his employment relationship or of 
the rate of return on a payor's obligation.

[[Page 45667]]

    (2) Examples. The following examples illustrate this paragraph (b). 
They do not involve tax shelter items. (See paragraph (e) of this 
section for certain rules relating to the substantial understatement 
penalty attributable to the tax shelter items of corporations.)

    Example 1. A, an individual calendar year taxpayer, engages B, a 
professional tax advisor, to give A advice concerning the 
deductibility of certain state and local taxes. A provides B with 
full details concerning the taxes at issue. B advises A that the 
taxes are fully deductible. A, in preparing his own tax return, 
claims a deduction for the taxes. Absent other facts, and assuming 
the facts and circumstances surrounding B's advice and A's reliance 
on such advice satisfy the requirements of paragraph (c) of this 
section, A is considered to have demonstrated good faith by seeking 
the advice of a professional tax advisor, and to have shown 
reasonable cause for any underpayment attributable to the deduction 
claimed for the taxes. However, if A had sought advice from someone 
that A knew, or should have known, lacked knowledge in the relevant 
aspects of Federal tax law, or if other facts demonstrate that A 
failed to act reasonably or in good faith, A would not be considered 
to have shown reasonable cause or to have acted in good faith.
* * * * *
    (c) Reliance on opinion or advice--(1) Facts and circumstances; 
minimum requirements. All facts and circumstances must be taken into 
account in determining whether a taxpayer has reasonably relied in good 
faith on advice (including the opinion of a professional tax advisor) 
as to the treatment of the taxpayer (or any entity, plan, or 
arrangement) under Federal tax law. However, in no event will a 
taxpayer be considered to have reasonably relied in good faith on 
advice unless the requirements of this paragraph (c)(1) are satisfied. 
The fact that these requirements are satisfied will not necessarily 
establish that the taxpayer reasonably relied on the advice (including 
the opinion of a professional tax advisor) in good faith. For example, 
reliance may not be reasonable or in good faith if the taxpayer knew, 
or should have known, that the advisor lacked knowledge in the relevant 
aspects of Federal tax law.
    (i) All facts and circumstances considered. The advice must be 
based upon all pertinent facts and circumstances and the law as it 
relates to those facts and circumstances. For example, the advice must 
take into account the taxpayer's purposes (and the relative weight of 
such purposes) for entering into a transaction and for structuring a 
transaction in a particular manner. In addition, the requirements of 
this paragraph (c)(1) are not satisfied if the taxpayer fails to 
disclose a fact that it knows, or should know, to be relevant to the 
proper tax treatment of an item.
    (ii) No unreasonable assumptions. The advice must not be based on 
unreasonable factual or legal assumptions (including assumptions as to 
future events) and must not unreasonably rely on the representations, 
statements, findings, or agreements of the taxpayer or any other 
person. For example, the advice must not be based upon a representation 
or assumption which the taxpayer knows, or has reason to know, is 
unlikely to be true, such as an inaccurate representation or assumption 
as to the taxpayer's purposes for entering into a transaction or for 
structuring a transaction in a particular manner.
    (2) Advice defined. Advice is any communication, including the 
opinion of a professional tax advisor, setting forth the analysis or 
conclusion of a person, other than the taxpayer, provided to (or for 
the benefit of) the taxpayer and on which the taxpayer relies, directly 
or indirectly, with respect to the imposition of the section 6662 
accuracy-related penalty. Advice does not have to be in any particular 
form.
    (3) Cross-reference. For rules applicable to advisors, see e.g., 
Secs. 1.6694-1 through 1.6694-3 (regarding preparer penalties), 31 CFR 
10.22 (regarding diligence as to accuracy), 31 CFR 10.33 (regarding tax 
shelter opinions), and 31 CFR 10.34 (regarding standards for advising 
with respect to tax return positions and for preparing or signing 
returns).
    (d) Pass-through items. The determination of whether a taxpayer 
acted with reasonable cause and in good faith with respect to an 
underpayment that is related to an item reflected on the return of a 
pass-through entity is made on the basis of all pertinent facts and 
circumstances, including the taxpayer's own actions, as well as the 
actions of the pass-through entity.
    (e) Special rules for substantial understatement penalty 
attributable to tax shelter items of corporations--(1) In general; 
facts and circumstances. The determination of whether a corporation 
acted with reasonable cause and in good faith in its treatment of a tax 
shelter item (as defined in Sec. 1.6662-4(g)(3)) is based on all 
pertinent facts and circumstances. Paragraphs (e)(2), (3), and (4) of 
this section set forth rules that apply, in the case of a penalty 
attributable to a substantial understatement of income tax (within the 
meaning of section 6662(d)), in determining whether a corporation acted 
with reasonable cause and in good faith with respect to a tax shelter 
item.
    (2) Reasonable cause based on legal justification--(i) Minimum 
requirements. A corporation's legal justification (as defined in 
paragraph (e)(2)(ii) of this section) may be taken into account, as 
appropriate, in establishing that the corporation acted with reasonable 
cause and in good faith in its treatment of a tax shelter item only if 
the authority requirement of paragraph (e)(2)(i)(A) of this section and 
the belief requirement of paragraph (e)(2)(i)(B) of this section are 
satisfied (the minimum requirements). Thus, a failure to satisfy the 
minimum requirements will preclude a finding of reasonable cause and 
good faith based (in whole or in part) on the corporation's legal 
justification.
    (A) Authority requirement. The authority requirement is satisfied 
only if there is substantial authority (within the meaning of 
Sec. 1.6662-4(d)) for the tax treatment of the item.
    (B) Belief requirement. The belief requirement is satisfied only 
if, based on all facts and circumstances, the corporation reasonably 
believed, at the time the return was filed, that the tax treatment of 
the item was more likely than not the proper treatment. For purposes of 
the preceding sentence, a corporation is considered reasonably to 
believe that the tax treatment of an item is more likely than not the 
proper tax treatment if (without taking into account the possibility 
that a return will not be audited, that an issue will not be raised on 
audit, or that an issue will be settled)--
    (1) The corporation analyzes the pertinent facts and authorities in 
the manner described in Sec. 1.6662-4(d)(3)(ii), and in reliance upon 
that analysis, reasonably concludes in good faith that there is a 
greater than 50-percent likelihood that the tax treatment of the item 
will be upheld if challenged by the Internal Revenue Service; or
    (2) The corporation reasonably relies in good faith on the opinion 
of a professional tax advisor, if the opinion is based on the tax 
advisor's analysis of the pertinent facts and authorities in the manner 
described in Sec. 1.6662-4(d)(3)(ii) and unambiguously states that the 
tax advisor concludes that there is a greater than 50-percent 
likelihood that the tax treatment of the item will be upheld if 
challenged by the Internal Revenue Service. (For this purpose, the 
requirements of paragraph (c) of this section must be met with respect 
to the opinion of a professional tax advisor.)
    (ii) Legal justification defined. For purposes of this paragraph 
(e), legal justification includes any justification relating to the 
treatment or characterization under the Federal tax 

[[Page 45668]]
law of the tax shelter item or of the entity, plan, or arrangement that 
gave rise to the item. Thus, a taxpayer's belief (whether independently 
formed or based on the advice of others) as to the merits of the 
taxpayer's underlying position is a legal justification.
    (3) Minimum requirements not dispositive. Satisfaction of the 
minimum requirements of paragraph (e)(2) of this section is an 
important factor to be considered in determining whether a corporate 
taxpayer acted with reasonable cause and in good faith, but is not 
necessarily dispositive. For example, depending on the circumstances, 
satisfaction of the minimum requirements may not be dispositive if the 
taxpayer's participation in the tax shelter lacked significant business 
purpose, if the taxpayer claimed tax benefits that are unreasonable in 
comparison to the taxpayer's investment in the tax shelter, or if the 
taxpayer agreed with the organizer or promoter of the tax shelter that 
the taxpayer would protect the confidentiality of the tax aspects of 
the structure of the tax shelter.
    (4) Other factors. Facts and circumstances other than a 
corporation's legal justification may be taken into account, as 
appropriate, in determining whether the corporation acted with 
reasonable cause and in good faith with respect to a tax shelter item 
regardless of whether the minimum requirements of paragraph (e)(2) of 
this section are satisfied.
* * * * *
Michael P. Dolan,
Acting Commissioner of Internal Revenue.

    Approved: August 18, 1995.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 95-21682 Filed 8-31-95; 8:45 am]
BILLING CODE 4830-01-U