[Federal Register Volume 63, Number 156 (Thursday, August 13, 1998)]
[Rules and Regulations]
[Pages 43303-43305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X98-20813]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1


Income Tax; Taxable Years Beginning After December 31, 1953

CFR Correction

    In Title 26 of the Code of Federal Regulations, part 1 (Secs. 1.401 
to 1.440), revised as of April 1, 1998, in Sec. 1.402(a)-1, paragraphs 
(b)(2)(ii)(d) and (c) were inadvertently omitted. The reinstated text 
of these paragraphs and the source note read as follows:

Sec. 1.402(a)-1  Taxability of beneficiary under a trust which meets 
the requirements of section 401(a).

* * * * *
    (b)* * *
    (2)* * *
    (ii)* * *
    (d)(1) In all other cases, there shall be used the average cost (or 
other basis) to the trust of all securities of the employer corporation 
of the type distributed to the distributee which the trust has on hand 
at the time of the distribution, or which the trust had on hand on a 
specified inventory date which date does not precede the date of 
distribution by more than twelve calendar months. If a distribution 
includes securities of the employer corporation of more than one type, 
the average cost (or other basis) to the trust of each type of security 
distributed shall be determined. The average cost to the trust of 
securities of the employer corporation on hand on a specified inventory 
date (or on hand at the time of distribution) shall be computed on the 
basis of their actual cost, considering the securities most recently 
purchased to be those on hand, or by means of a moving average 
calculated by subtracting from the total cost of securities on hand 
immediately preceding a particular sale or distribution an amount 
computed by multiplying the number of securities sold or distributed by 
the average cost of all securities on hand preceding such sale or 
distribution.
    (2) These methods of computing average cost may be illustrated by 
the following examples:

    Example (1). A, a distributee who makes his income tax returns 
on the basis of a calendar year, receives on August 1, 1954, in a 
total distribution, to which paragraph (a)(6) of this section is 
applicable, ten shares of class D stock of the employer corporation. 
On July 1, 1954 (the specified inventory date of the trust), the 
trust had on hand 80 shares of class D stock. The average cost of 
the 10 shares distributed, on the basis of the actual cost method, 
is $100 computed as follows:

------------------------------------------------------------------------
                                                          Cost          
              Shares                  Purchase date       per     Total 
                                                         share     cost 
------------------------------------------------------------------------
20...............................  June 24, 1954......     $101   $2,020
40...............................  Jan. 10, 1953......      102    4,080
20...............................  Oct. 20, 1952......       95    1,900
----------------------------------                              --------
80...............................  ...................    8,000         
------------------------------------------------------------------------

    Example (2). B, a distributee who makes his income tax returns 
on the basis of a calendar year, receives on October 31, 1954, in a 
total distribution, to which paragraph (a)(6) of this section is 
applicable, 20 shares of class E stock of the employer corporation. 
The specified inventory date of the trust is the last day of each 
calendar year. The trust had on hand on December 31, 1952, 1,000 
shares of class E stock of the employer corporation. During the 
calendar year 1953 the trust distributed to four distributees a 
total of 100 shares of such stock and acquired, through a number of 
purchases, a total of 120 shares. The average cost of the

[[Page 43304]]

20 shares distributed to B, on the basis of the moving average 
method, is $52 computed as follows:

------------------------------------------------------------------------
                                                        Total    Average
                                              Shares    cost      cost  
------------------------------------------------------------------------
On hand Dec. 31, 1952......................    1,000   $50,000       $50
Distributed during 1953 at average cost of                              
 $50.......................................      100     5,000       (0)
                                            ----------------------------
                                                 900    45,000       (0)
Purchased during 1953......................      120     8,000       (0)
On hand Dec. 31, 1953......................    1,020    53,040        52
------------------------------------------------------------------------

    (3) Unrealized appreciation attributable to employee contributions. 
In any case in which it is necessary to determine the amount of net 
unrealized appreciation in securities of the employer corporation which 
is attributable to contributions made by an employee:
    (i) The cost or other basis of the securities to the trust and the 
amount of net unrealized appreciation shall first be determined in 
accordance with the regulations in subparagraph (2) of this paragraph;
    (ii) The amount contributed by the employee to the purchase of the 
securities shall be solely the portion of his actual contributions to 
the trust properly allocable to such securities, and shall not include 
any part of the increment in the trust fund expended in the purchase of 
the securities;
    (iii) The amount of net unrealized appreciation in the securities 
distributed which is attributable to the contributions of the employee 
shall be that proportion of the net unrealized appreciation determined 
under the regulations of subparagraph (2) of this paragraph which the 
contributions of the employee properly allocable to such securities 
bear to the cost or other basis to the trust of the securities;
    (iv) If a distribution consists solely of securities of the 
employer corporation, the contributions of the employee expended in the 
purchase of such securities shall be allocated to the securities 
distributed in a manner consistent with the principles set forth in 
subparagraph (2)(ii) (a), (b), (c), or (d) of this paragraph, whichever 
is applicable. Thus, the amount of the employee's contribution which 
can be identified as having been expended in the purchase of a 
particular security shall be allocated to such security, and the amount 
of such contribution which cannot be so identified shall be allocated 
ratably among the securities distributed. If a distribution consists in 
part of securities of the employer corporation and in part of cash or 
other property, appropriate allocation of a portion of the employee's 
contribution to such cash or other property shall be made unless such a 
location is inconsistent with the terms of the plan or trust.
    (v) The application of this subparagraph may be illustrated by the 
following example:

    Example. A trust distributes ten shares of stock issued by the 
employer corporation each of which has an average cost to the trust 
of $100, consisting of employee contributions in the amount of $60 
and employer contributions in the amount of $40, and on the date of 
distribution has a fair market value of $180. The portion of the net 
unrealized appreciation attributable to the contributions of the 
employee with respect to each of the shares of stock is $48 computed 
as follows:


(1) Value of one share of stock on distribution date............    $180
                                                                 =======
(2) Employee contributions......................................      60
(3) Employer contributions......................................      40
                                                                 -------
(4) Total contributions.........................................     100
                                                                 =======
(5) Net unrealized appreciation.................................      80
(6) Portion of net unrealized appreciation attributable to              
 employee contributions \60/100\ (amount of employee                    
 contributions (item 2) over total contributions (item 4) of $80        
 (item 5).......................................................      48
                                                                        

    (vi) For the purpose of determining gain or loss to the distributee 
in the year or years in which any share of stock referred to in the 
example in subdivision (v) of this subparagraph is sold or otherwise 
disposed of in a taxable transaction, the basis of each such share in 
the hands of the distributee at the time of the distribution by the 
trust will be $132 computed as follows:


(a) Employee contributions......................................     $60
(b) Employer contributions (taxable as ordinary income in the           
 year the securities were distributed)..........................      40
(c) Portion of net unrealized appreciation attributable to              
 employer contributions (item 5) minus (item 6) (taxable as             
 ordinary income in the year the securities were distributed)...      32
                                                                 -------
(d) Basis of stock..............................................     132
                                                                        

    (4) Change in exempt status of trust. For principles applicable in 
making appropriate adjustments if the trust was not exempt for one or 
more years before the year of distribution, see paragraph (a) of this 
section.
    (c) Certain distributions by United States to nonresident alien 
individuals. (1) This paragraph applies to a distribution--
    (i) Which is made by the United States under a pension plan 
described in section 401(a);
    (ii) Which is made in respect of services performed by an employee 
of the United States; and
    (iii) Which is received by, or made available to, a nonresident 
alien individual (including a nonresident alien individual who is a 
beneficiary of a deceased employee) during a taxable year beginning 
after December 31, 1959.

The amount of such a distribution that is includible in the gross 
income of the nonresident alien individual under section 402(a) (1) or 
(2) shall not exceed an amount which bears the same ratio to the amount 
which would be includible in gross income if it were not for this 
paragraph, as--
    (a) The aggregate basic salary paid by the United States to the 
employee for his services in respect of which the distribution is being 
made, reduced by the amount of such basic salary which was not 
includible in the employee's gross income by reason of being from 
sources without the United States, bears to
    (b) The aggregate basic salary paid by the United States to the 
employee for his services in respect of which the distribution is being 
made.

See section 402(a)(4). See, also, paragraph (a) of this section for 
rules relating to the amount that is includible in gross income under 
section 402(a) (1) or (2) in the case of a distribution under a pension 
plan described in section 401(a).
    (2) For purposes of applying section 402(a)(4) and this paragraph 
to distributions under the Civil Service Retirement Act (5 U.S.C. 
2251), the term ``basic salary'' shall have the meaning provided in 
section 1(d) of such Act. In applying section 402(a)(4) and this 
paragraph to distributions under any other qualified pension plan of 
the United States, such term shall have a similar meaning. Thus, for 
example, ``basic salary'' does not, in any case, include bonuses, 
allowances, or overtime pay.
    (3) The rules in this paragraph may be illustrated by the following 
examples:
    Example (1). A, a retired employee of the United States who 
performed all of his services for the United States in a foreign 
country, receives, in respect of such services, a monthly pension of 
$200 under the Civil Service Retirement Act (a pension plan described 
in section 410(a)). A received an aggregate basic salary for his 
services for the United States of $100,000. A was a nonresident alien 
individual during the whole of his employment with the United States 
and,

[[Page 43305]]

therefore, his basic salary from the United States was not includible 
in his gross income by reason of being from sources without the United 
States. A would be requited, under section 72 but without regard to 
section 402(a)(4) and this paragraph, to include $60 of each monthly 
pension payment in his gross income. The amount that is includible in 
A's gross income under section 402(a)(1) with respect to the monthly 
payments received during taxable years beginning after December 31, 
1959, and while A is a nonresident alien individual, is computed as 
follows:


(i) Amount of distribution includible in gross income under             
 section 72 without regard to section 402(a)(4)...............       $60
(ii) Aggregate basic salary for services for United States....   100,000
(iii) Aggregate basic salary for services for United States             
 reduced by amount of such salary not includible in A's gross           
 income by reason of being from sources without the United              
 States.......................................................         0
(iv) Amount includible in A's gross income under section                
 402(a)(1) ((iii)(ii) x (i), or $0/$100,000 x $60)....         0
                                                                        

    Example (2). B, a retired employee of the United States who 
performed services for the United States both in a foreign country 
and in the United States, receives, in respect of such services, a 
monthly pension of $240 under the Civil Service Retirement Act. B 
received an aggregate basic salary for his services for the United 
States of $120,000; $80,000 of which was for his services performed 
in the United States, and $40,000 of which was for his services 
performed in the foreign country. B was a nonresident alien 
individual during the whole of his employment with the United States 
and, consequently, the $40,000 basic salary for his services 
performed in the foreign country was not includible in his gross 
income by reason of being from sources without the United States. B 
would be required, under section 72 but without regard to section 
402(a)(4) and this paragraph, to include $165 of each monthly 
pension in his gross income. The amount that is includible in B's 
gross income under section 402(a)(1) with respect to the monthly 
payments received during taxable years beginning after December 31, 
1959, and while B is a nonresident alien individual, is computed as 
follows:


(i) Amount of distribution includible in gross income under             
 section 72 without regard to section 402(a)(4)...............      $165
(ii) Aggregate basic salary for services for United States....   120,000
(iii) Aggregate basic salary for services for United States             
 reduced by amount of such salary not includible in B's gross           
 income by reason of being from sources without the United              
 States ($120,000-$40,000)....................................    80,000
(iv) Amount includible in B's gross income under section                
 402(a)(1)(iii)(ii) x (i), or $80,000/$120,000 x $165)       110
                                                                        

* * * * *

[T.D. 6500, 25 FR 11675, Nov. 26, 1960, as amended by T.D. 6497, 25 
FR 10021, Oct. 20, 1960; T.D. 6676, 28 FR 10142, Sept. 17, 1963; 
T.D. 6717, 29 FR 4092, Mar. 28, 1964; T.D. 6722, 29 FR 5073, Apr. 
14, 1964; T.D. 6823, 30 FR 6340, May 6, 1965; T.D. 6885, 31 FR 7800, 
June 2, 1966; T.D. 6887, 31 FR 8786, June 24, 1966; T.D. 8217, 53 FR 
29673, Aug. 8, 1988; T.D. 8357, 56 FR 40545, Aug. 15, 1991; T.D. 
8357, 57 FR 10290, Mar. 25, 1992; T.D. 8581, 59 FR 66180, Dec. 23, 
1994]

BILLING CODE 1505-01-D