[Federal Register Volume 63, Number 50 (Monday, March 16, 1998)]
[Rules and Regulations]
[Pages 12641-12643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6561]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8766]
RIN 1545-AV98


Consolidated Returns--Limitations on the Use of Certain Credits; 
Overall Foreign Loss Accounts

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final and temporary regulations.

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SUMMARY: This document contains temporary amendments to the 
consolidated return regulations. The temporary amendments modify the 
date temporary regulations apply as published in the Federal Register 
on January 12, 1998, relating to the use of tax credits of a 
consolidated group and its members. The amendments provide guidance to 
consolidated groups that have a taxable year beginning on or after 
January 1, 1997, for which the income tax return is due on or before 
March 13, 1998. The text of the temporary regulations also serves as 
the text of the proposed regulations set forth in the notice of 
proposed rulemaking on this subject in the Proposed Rules section of 
this issue of the Federal Register.

DATES: Effective dates: These amendments are effective March 13, 1998.
    Applicability dates: For dates of application, see the Effective 
Dates portion of the preamble under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Roy A. Hirschhorn, (202) 622-7770.

SUPPLEMENTARY INFORMATION:

Background and Explanation of Provisions

    On January 12, 1998, the IRS and Treasury published in the Federal 
Register final, temporary and proposed regulations (``the January 12, 
1998, regulations'') relating to limitations on the use of certain tax 
credits and related attributes by corporations filing consolidated 
income tax returns. In general, the January 12, 1998, regulations 
relate to the separate return limitation year provisions (and certain 
consolidated return changes in ownership) for general business credits, 
alternative minimum tax credits, foreign tax credits and overall 
foreign loss accounts. The January 12, 1998, regulations were generally 
applicable to consolidated return years beginning on or after January 
1, 1997. IRS and Treasury have determined that the appropriate 
effective date of those regulations should be for consolidated return 
years for which the due date (without extensions) of the income tax 
return is after March 13, 1998. In lieu of applying this effective 
date, a consolidated group may choose to apply the effective date 
provisions as published in the January 12, 1998, regulations. Taxpayers 
making this choice must apply all of those effective date provisions 
for all relevant years. Thus, such taxpayers may not choose to apply 
one provision of the January 12, 1998, regulations and not another.

Effective Dates

    The temporary amendments are applicable to consolidated return 
years for which the due date of the income tax return (without 
extensions) is after March 13, 1998. As explained in the Background 
portion of this preamble, taxpayers may instead choose to apply the 
effective date provisions of the January 12, 1998, regulations (i.e., 
generally taxable years beginning on or after January 1, 1997).

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 do not have a significant economic impact on a 
substantial number of small entities. This certification is based on 
the fact

[[Page 12642]]

that these regulations principally affect corporations filing 
consolidated federal income tax returns that have carryover or 
carryback of credits from separate return limitation years. Available 
data indicates that many consolidated return filers are large companies 
(not small businesses). In addition, the data indicates that an 
insubstantial number of consolidated return filers that are smaller 
companies have credit carryovers or carrybacks, and thus even fewer of 
these filers have credit carryovers or carrybacks that are subject to 
the separate return limitation year rules. Therefore, a Regulatory 
Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. 
chapter 6) is not required. It has also been determined that under 
section 553(d) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
these regulations should be effective immediately because they involve 
the applicability of regulations that modify the limitations on the use 
of certain tax attributes for taxable years beginning on or after 
January 1, 1997. Pursuant to section 7805(f) of the Internal Revenue 
Code, the notice of proposed rulemaking accompanying these regulations 
is being sent to the Small Business Administration for comment on their 
impact on small businesses.

Drafting Information

    The principal author of these regulations is Roy A. Hirschhorn of 
the Office of Assistant Chief Counsel (Corporate). Other personnel from 
the IRS and Treasury 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 1.1502-3 is amended by revising paragraphs (c)(3), 
(d)(2) and (e)(3) to read as follows:


Sec. 1.1502-3  Consolidated investment credit.

* * * * *
    (c) * * *
    (3) Special effective date. This paragraph (c) applies to 
consolidated return years for which the due date of the income tax 
return (without extensions) is on or before March 13, 1998. See 
Sec. 1.1502-3T(c) for the rule that limits the group's use of a section 
38 credit carryover or carryback from a SRLY for a consolidated return 
year for which the due date of the income tax return (without 
extensions) is after March 13, 1998. For taxable years not subject to 
Sec. 1.1502-3T(c), prior law applies. See Sec. 1.1502-3(c) in effect 
prior to January 12, 1998 (Sec. 1.1502-3(c) as contained in the 26 CFR 
part 1 edition revised April 1, 1997) for prior law. See also 
Sec. 1.1502-3T(c)(4) for an optional effective date rule (generally 
making the rules of this paragraph (c) inapplicable to a consolidated 
return year beginning after December 31, 1996, if the due date of the 
income tax return (without extensions) for such year is on or before 
March 13, 1998).
    (d) Examples. * * *
    (2) Example (2) and Example (3) of this paragraph (d) do not apply 
to consolidated return years for which the due date of the income tax 
return (without extensions) is after March 13, 1998. For consolidated 
return years for which the due date of the income tax return (without 
extensions) is after March 13, 1998, see Sec. 1.1502-3T(d).
    (e) * * *
    (3) Special effective date. This paragraph (e) applies only to a 
consolidated return change of ownership that occurred during a 
consolidated return year for which the due date of the income tax 
return (without extensions) is on or before March 13, 1998. See 
Sec. 1.1502-3T(c)(4) for an optional effective date rule (generally 
making the rules of this paragraph (e) inapplicable if the consolidated 
return change of ownership occurred on or after January 1, 1997, and 
during a consolidated return year for which the due date of the income 
tax return (without extensions) is on or before March 13, 1998).
* * * * *
    Par. 3. Section 1.1502-3T is amended by revising paragraphs (c)(3) 
and (d)(2) and adding a new paragraph (c)(4) to read as follows:


Sec. 1.1502-3T  Consolidated investment credit (temporary).

* * * * *
    (c) * * *
    (3) Effective date. This paragraph (c) applies to consolidated 
return years for which the due date of the income tax return (without 
extensions) is after March 13, 1998. However, a group does not take 
into account a consolidated taxable year for which the due date of the 
income tax return (without extensions) is on or before March 13, 1998, 
in determining a member's (or subgroup's) contributions to the 
consolidated section 38(c) limitation under this paragraph (c). See 
also Sec. 1.1502-3(c).
    (4) Optional effective date of January 1, 1997. In lieu of 
paragraphs (c)(3) and (d)(2) of this section and Secs. 1.1502-3(c)(3), 
(d)(2) and (e)(3) (relating to the general business credit), 1.1502-
4(f)(3) and (g)(3), 1.1502-4T(f) and (g)(3) (relating to the foreign 
tax credit), 1.1502-9(a) (the next to last sentence), 1.1502-
9T(b)(1)(v) (relating to overall foreign losses), and 1.1502-
55T(h)(4)(iii)(C) (relating to the alternative minimum tax credit), a 
consolidated group may apply such paragraphs as they appear in 1998-10 
I.R.B. 23 (see Sec. 601.601(d)(2) of this chapter). A consolidated 
group making this choice must apply all such paragraphs for all 
relevant years.
    (d) * * *
    (2) This paragraph (d) applies to consolidated return years for 
which the due date of the income tax return (without extensions) is 
after March 13, 1998. See also Sec. 1.1502-3(d) for years for which the 
due date of the income tax return (without extensions) is on or before 
March 13, 1998.
* * * * *
    Par. 4. Section 1.1502-4 is amended by revising paragraphs (f)(3) 
and (g)(3) to read as follows:


Sec. 1.1502-4  Consolidated foreign tax credit.

* * * * *
    (f) * * *
    (3) Special effective date ending SRLY limitation. See Sec. 1.1502-
4T(f) for the rule that ends the SRLY limitation with respect to 
foreign tax credits for consolidated return years for which the due 
date of the income tax return (without extensions) is after March 13, 
1998. See also Sec. 1.1502-3T(c)(4) for an optional effective date rule 
(generally making the rules of this paragraph (f) inapplicable to a 
consolidated return year beginning after December 31, 1996, if the due 
date of the income tax return (without extensions) for such year is on 
or before March 13, 1998).
    (g) * * *
    (3) Special effective date for CRCO limitation. See Sec. 1.1502-
4T(g)(3) for the rule that ends the CRCO limitation with respect to a 
consolidated return change of ownership that occurs on or after the 
first day of a taxable year for which the due date of the income tax 
return (without extensions) is after March 13, 1998. See also 
Sec. 1.1502-3T(c)(4) for an optional effective date rule (generally 
making the rules of this paragraph (g) inapplicable if the consolidated 
return change of ownership occurred on or

[[Page 12643]]

after January 1, 1997, and during a consolidated return year for which 
the due date of the income tax return (without extensions) is on or 
before March 13, 1998).
* * * * *
    Par. 5. Section 1.1502-4T is amended by revising paragraphs (f) and 
(g)(3) to read as follows:


Sec. 1.1502-4T  Consolidated foreign tax credit (temporary).

* * * * *
    (f) Limitation on unused foreign tax carryover or carryback from 
separate return limitation years. Section 1.1502-4(f) does not apply 
for consolidated return years for which the due date of the income tax 
return (without extensions) is after March 13, 1998. For consolidated 
return years for which the due date of the income tax return (without 
extensions) is after March 13, 1998, a group shall include an unused 
foreign tax of a member arising in a SRLY without regard to the 
contribution of the member to consolidated tax liability for the 
consolidated return year. See also Sec. 1.1502-3T(c)(4) for an optional 
effective date rule (generally making the rules of this paragraph (f) 
applicable to a consolidated return year beginning after December 31, 
1996, if the due date of the income tax return (without extensions) for 
such year is on or before March 13, 1998).
* * * * *
    (g)(3) Special effective date for CRCO limitation. Section 1.1502-
4(g) applies only to a consolidated return change of ownership that 
occurred during a consolidated return year for which the due date of 
the income tax return (without extensions) is on or before March 13, 
1998. See also Sec. 1.1502-3T(c)(4) for an optional effective date rule 
(generally making the rules of this paragraph (g)(3) applicable if the 
consolidated return change of ownership occurred on or after January 1, 
1997, and during a consolidated return year for which the due date of 
the income tax return (without extensions) is on or before March 13, 
1998).
    Par. 6. In Sec. 1.1502-9, paragraph (a) is amended by removing the 
last sentence and adding two sentences in its place to read as follows:


Sec. 1.1502-9  Application of overall foreign loss recapture rules to 
corporations filing consolidated returns.

    (a) * * * See Sec. 1.1502-9T(b)(1)(v) for the rule that ends the 
separate return limitation year limitation for consolidated return 
years for which the due date of the income tax return (without 
extensions) is after March 13, 1998. See also Sec. 1.1502-3T(c)(4) for 
an optional effective date rule (generally making the rules of 
paragraphs (b)(1)(iii) and (iv) of this section inapplicable for a 
consolidated return year beginning after December 31, 1996, if the due 
date of the income tax return (without extensions) for such year is on 
or before March 13, 1998).
* * * * *
    Par. 7. Section 1.1502-9T is amended by revising paragraph 
(b)(1)(v) to read as follows:


Sec. 1.1502-9T  Application of overall foreign loss recapture rules to 
corporations filing consolidated returns (temporary).

* * * * *
    (b)(1)(v) Special effective date for SRLY limitation. Sections 
1.1502-9(b)(1)(iii) and (iv) apply only to consolidated return years 
for which the due date of the income tax return (without extensions) is 
on or before March 13, 1998. For consolidated return years for which 
the due date of the income tax return (without extensions) is after 
March 13, 1998, the rules of Sec. 1.1502-9(b)(1)(ii) shall apply to 
overall foreign losses from separate return years that are separate 
return limitation years. For purposes of applying Sec. 1.1502-
9(b)(1)(ii) in such years, the group treats a member with a balance in 
an overall foreign loss account from a separate return limitation year 
on the first day of the first consolidated return year for which the 
due date of the income tax return (without extensions) is after March 
13, 1998, as a corporation joining the group on such first day. An 
overall foreign loss that is part of a net operating loss or net 
capital loss carryover from a separate return limitation year of a 
member that is absorbed in a consolidated return year for which the due 
date of the income tax return (without extensions) is after March 13, 
1998, shall be added to the appropriate consolidated overall foreign 
loss account in the year that it is absorbed. For consolidated return 
years for which the due date of the income tax return (without 
extensions) is after March 13, 1998, similar principles apply to 
overall foreign losses when there has been a consolidated return change 
of ownership (regardless of when the change of ownership occurred). See 
also Sec. 1.1502-3T(c)(4) for an optional effective date rule 
(generally making this paragraph (b)(1)(v) applicable to a consolidated 
return year beginning after December 31, 1996, if the due date of the 
income tax return (without extensions) for such year is on or before 
March 13, 1998).
* * * * *
    Par. 8. Section 1.1502-55T is amended by revising paragraph 
(h)(4)(iii)(C) to read as follows:


Sec. 1.1502-55T  Computation of alternative minimum tax of consolidated 
groups (temporary).

* * * * *
    (h)(4) * * *
    (iii) * * *
    (C) Effective date. This paragraph (h)(4)(iii) applies to 
consolidated return years for which the due date of the income tax 
return (without extensions) is after March 13, 1998. However, a group 
does not take into account a consolidated taxable year for which the 
due date of the income tax return (without extensions) is on or before 
March 13, 1998, in determining a member's (or subgroup's) contributions 
to the consolidated section 53(c) limitation under this paragraph 
(h)(4)(iii). See Sec. 1.1502-3T(c)(4) for an optional effective date 
rule (generally making this paragraph (h)(4)(iii) applicable to a 
consolidated return year beginning after December 31, 1996, if the due 
date of the income tax return (without extensions) for such year is on 
or before March 13, 1998).

    Approved: March 9, 1998.
Michael P. Dolan,
Deputy Commissioner of Internal Revenue.
Donald C. Lubick,
Assistant Secretary of the Treasury.
[FR Doc. 98-6561 Filed 3-13-98; 8:45 am]
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