[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Rules and Regulations]
[Pages 69551-69554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33345]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8799]
RIN 1545-AV15


Certain Investment Income Under the Qualifying Income Provisions 
of Section 7704 and the Application of the Passive Activity Loss Rules 
to Publicly Traded Partnerships

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations relating to the 
treatment of certain investment income under the qualifying income 
provisions of section 7704 and the application of the passive activity 
loss rules to publicly traded partnerships. These regulations provide 
guidance on calculating a publicly traded partnership's qualifying 
income under section 7704. The regulations will affect the 
classification of certain partnerships for federal tax purposes and 
also will affect the passive activity loss limitations with respect to 
items attributable to publicly traded partnerships.

DATES: Effective Date: These regulations are effective December 17, 
1998.
    Applicability Dates: See Effective Dates under SUPPLEMENTARY 
INFORMATION of the preamble.

FOR FURTHER INFORMATION CONTACT: Christopher Kelley or Terri Belanger 
at (202) 622-3080 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    The final regulations add Sec. 1.7704-3 to the Income Tax 
Regulations (26 CFR part 1) relating to the definition of qualifying 
income for publicly traded partnerships under section 7704(d) of the 
Internal Revenue Code (Code). The final regulations also amend 
Sec. 1.469-10 of the Income Tax Regulations relating to the application 
of section 469 to publicly traded partnerships.
    On December 19, 1997, proposed regulations (REG-105163-97, 1998-8 
I.R.B. 31) were published in the Federal Register (62 FR 66575). A 
number of written comments were received on the proposed regulations 
under section 7704(d). Two speakers provided testimony at a public 
hearing held on April 28, 1998. After consideration of all the 
comments, the proposed regulations under section 7704 are adopted, as 
revised by this Treasury decision.
    No comments were received on the proposed regulations under section 
469. The proposed regulations under section 469 are adopted without 
revision by this Treasury decision.

Explanation of Revisions and Summary of Comments

1. Determination of Gross Income for Purposes of Section 7704(c)(2)

a. Capital Losses
    Section 7704(d)(1)(F) provides that, except as otherwise provided, 
the term qualifying income includes any gain from the sale or 
disposition of a capital asset (or property described in section 
1231(b)) held for the production of income described in section 
7704(d). Several commentators requested clarification as to how capital 
losses incurred by the partnership are treated in determining gross 
income of the partnership for purposes of section 7704(c)(2). The final 
regulations clarify that, in general, all losses are ignored in the 
computation of gross income.
b. Straddles
    The proposed regulations requested comments on the appropriate way 
to compute the gross income for a partnership that makes a mixed 
straddle account election under Sec. 1.1092(b)-4T. The final 
regulations provide that, for purposes of applying the general rule 
that a capital gain on an investment is taken into account but a 
capital loss is not, certain rules shall apply that generally net 
capital gains and losses recognized in a taxable year with respect to a 
straddle. This treatment applies to all straddles, not just mixed 
straddle accounts, and to other interests in property that produce a 
substantial diminution of the partnership's risk of loss similar to 
that of straddles. In addition, the final regulations contain a wash 
sale rule for gains in certain

[[Page 69552]]

straddle and straddle-like transactions. This rule provides that, for 
purposes of section 7704(c)(2), if a partnership recognizes gain with 
respect to the disposition of one or more positions of a straddle or 
similar arrangement, and the partnership acquires a substantially 
similar position or positions within a period beginning 30 days before 
and ending 30 days after the date of the disposition, then the gain 
shall not be taken into account to the extent of the amount of 
unrecognized loss (as of the close of the taxable year) in one or more 
offsetting positions of the straddle or similar arrangement.
c. Mark-to-Market
    The proposed regulations provide that qualifying income includes 
capital gain from the sale of stock. The final regulations clarify that 
gain recognized with respect to a position that is marked to market 
(for example, under section 475(f), section 1256, section 1259, or 
section 1296) will not fail to be qualifying income solely because 
there is no sale or disposition.
d. Certain Ordinary Income
    Under certain provisions of the Code, capital gain or loss with 
respect to certain transactions is recharacterized as ordinary income 
or loss. However, such gain or loss may be recognized with respect to a 
capital asset in a manner that is consistent with section 
7704(d)(1)(F). Accordingly, the final regulations provide that gain 
will not fail to be qualifying income solely because it is 
characterized as ordinary income under section 475(f), section 988, 
section 1258, or section 1296.

2. Income Derived From Securities Lending Activities

    Several commentators requested that the final regulations clarify 
that income from securities lending activities of a trader is 
qualifying income. Section 7704(d)(4) provides that qualifying income 
includes income that qualifies under section 851(b)(2). Section 
851(b)(2), which includes income from security loans, does not 
specifically state that it applies to the business of trading, as 
opposed to the business of investing. Thus, commentators have suggested 
that there is uncertainty under section 7704 as to whether income from 
security loans from the business of trading is qualifying income.
    The IRS and Treasury Department believe that section 851(b)(2) 
generally encompasses income from the business of trading as well as 
investing. Thus, income from the securities lending activities of a 
trader will be qualifying income under section 7704. A special 
provision in these final regulations for this income is not necessary 
and could create a negative implication as to the qualification of 
trading income under section 851(b)(2) generally. Accordingly, the 
final regulations do not adopt this comment.

3. Income Derived From Investments in Foreign Corporations

    One commentator requested that the final regulations clarify that 
income from investments in foreign corporations is qualifying income. 
Because taxable income may arise with respect to an investment in a 
foreign corporation that may not literally constitute a dividend, the 
commentator suggested that it is unclear whether these investments 
generate qualifying income under section 7704(d). Specifically, the 
commentator requested clarification regarding whether a U.S. 
shareholder would have qualifying income from an inclusion under (1) 
section 551 (foreign personal holding company income); (2) section 
951(a)(1) (A) or (B) (subpart F income or a section 956 amount); (3) 
section 1291 (excess distributions of a passive foreign investment 
company (PFIC)); and (4) section 1293 (earnings of a PFIC that is a 
qualified electing fund). The commentator requested that the final 
regulations clarify that income realized under these tax regimes with 
respect to stock ownership in a foreign corporation is included in the 
definition of qualifying income under section 7704(d).
    Section 551(b) characterizes amounts included in gross income under 
section 551(a) as dividends for federal tax purposes. Thus, an 
inclusion under section 551 is qualifying income under section 
7704(d)(1)(B). No clarification is necessary in the final regulations.
    Section 851(b)(2), which is cross-referenced in section 7704(d), 
provides rules on the extent to which certain inclusions of subpart F 
income under section 951(a)(1)(A)(i) and certain inclusions under 
section 1293(a) are treated as dividends and, thus, qualifying income 
for purposes of section 851(b)(2). Any expansion of qualifying income 
with respect to investments in foreign corporations should be addressed 
under section 851(b)(2) and the regulations thereunder. Accordingly, 
the final regulations do not adopt this comment.

4. Limitation on the Definition of Qualifying Income

    The proposed regulations provide that qualifying income includes 
capital gain from the sale of stock, income from holding annuities, 
income from notional principal contracts, and other substantially 
similar income from ordinary and routine investments to the extent 
determined by the Commissioner. Several commentators stated that 
partnerships must know that an investment generates qualifying income 
before entering into the transaction. Because passive-type investments 
evolve constantly and rapidly, the commentators suggested that a 
requirement that a type of investment generates qualifying income only 
to the extent determined by the Commissioner creates uncertainty for 
partnerships considering new investments. Thus, these commentators 
requested that the final regulations not include this restriction in 
the definition of qualifying income.
    The IRS and Treasury Department do not believe that the language in 
the proposed regulations creates significant uncertainty in the 
definition of qualifying income. Instead, the standard in the proposed 
regulations provides necessary flexibility to consider the effect of 
new types of financial investments as such investments evolve. The IRS 
and Treasury Department do not believe that it would be appropriate to 
create a broader and more generic rule that would allow taxpayers to 
determine for themselves whether new types of investments generate 
qualifying income. Thus, the final regulations do not adopt this 
comment.

5. List of Specific Items Generating Qualifying Income

    Several commentators requested that the final regulations expand 
the list of specific investments that generate qualifying income. The 
IRS and Treasury Department do not believe that it is appropriate to 
expand the list of specific investments enumerated in the proposed 
regulations. Therefore, the final regulations do not adopt this 
comment.

6. Partnership Reporting Requirements

    Several commentators indicated that the current reporting 
requirements for partnerships do not specifically compel a lower-tier 
partnership to provide the data necessary for an upper-tier partnership 
to determine whether it meets the gross income requirement of section 
7704(c)(2). These commentators requested that the final regulations 
specifically require a lower-tier partnership to report in a level of 
detail that would permit an upper-tier partnership to make the 
necessary calculations.
    The final regulations do not adopt this comment. The current 
reporting requirements for a partnership in

[[Page 69553]]

Sec. 1.6031(b)-1T(a)(3)(ii) require a partnership to furnish its 
partners with statements that include, to the extent provided by form 
or the accompanying instructions, any additional information that a 
partner may need to apply particular provisions of the Code with 
respect to items related to the partnership. The instructions to Form 
1065, ``U.S. Partnership Return of Income,'' specifically require a 
partnership to include on a Schedule K-1 any information a partner may 
need to file its return that is not shown anywhere else on the 
schedule. The information that an upper-tier partnership needs to make 
its gross income calculations must be provided by the lower-tier 
partnership under the current reporting requirements. An additional 
reporting requirement in these final regulations is not necessary.

7. Private Placement Safe Harbor Under Sec. 1.7704-1(h)(1)(ii)

    Several commentators requested that the final regulations amend the 
requirements of the private placement safe harbor under Sec. 1.7704-
1(h)(1) to reflect the adoption of new rules by the Securities and 
Exchange Commission regarding knowledgeable employees. Specifically, 
the commentators requested that the private placement safe harbor be 
amended to provide that knowledgeable employees are not counted for 
purposes of the 100 partner limitation. This issue is beyond the scope 
of these final regulations. Therefore, the final regulations do not 
adopt this comment.

8. Effective Dates

    The proposed regulations provide that the regulations will be 
effective for taxable years of a partnership beginning on or after the 
date final regulations are published in the Federal Register. 
Commentators stated that this effective date would preclude taxpayers 
from relying upon the revised definition of qualifying income in the 
proposed regulations until the regulations are final. These 
commentators requested that the effective date of the regulations be 
changed so that a partnership may rely upon the revised definition of 
qualifying income for taxable years beginning on or after the date the 
regulations were published as proposed regulations in the Federal 
Register.
    The final regulations provide that these regulations apply to 
taxable years of a partnership beginning on or after December 17, 1998. 
However, in response to the comments, the final regulations also 
include a provision that allows a partnership to apply the regulations 
retroactively.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in EO 12866. Therefore, a 
regulatory assessment is not required. It also has been determined that 
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) 
does not apply to these regulations, and because the regulations do not 
impose a collection of information on small entities, a Regulatory 
Flexibility Analysis is not required. Pursuant to section 7805(f) of 
the Internal Revenue Code, the notice of proposed rulemaking preceding 
these regulations was submitted to the Chief Counsel for Advocacy of 
the Small Business Administration for comment on its impact on small 
business.
    Drafting information. The principal authors of these regulations 
are Christopher Kelley and Terri Belanger, Office of Chief Counsel 
(Passthroughs and Special Industries). 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.

Amendments to the Regulations

PART 1--[AMENDED]

    Accordingly, 26 CFR part 1 is amended as follows:
    Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

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

    Par. 2. Section 1.469-10 is revised to read as follows:


Sec. 1.469-10  Application of section 469 to publicly traded 
partnerships.

    (a) [Reserved].
    (b) Publicly traded partnership--(1) In general. For purposes of 
section 469(k), a partnership is a publicly traded partnership only if 
the partnership is a publicly traded partnership as defined in 
Sec. 1.7704-1.
    (2) Effective date. This section applies for taxable years of a 
partnership beginning on or after December 17, 1998.
    Par. 3. Section 1.7704-3 is added to read as follows:


Sec. 1.7704-3  Qualifying income.

    (a) Certain investment income--(1) In general. For purposes of 
section 7704(d)(1), qualifying income includes capital gain from the 
sale of stock, income from holding annuities, income from notional 
principal contracts (as defined in Sec. 1.446-3), and other 
substantially similar income from ordinary and routine investments to 
the extent determined by the Commissioner. Income from a notional 
principal contract is included in qualifying income only if the 
property, income, or cash flow that measures the amounts to which the 
partnership is entitled under the contract would give rise to 
qualifying income if held or received directly by the partnership.
    (2) Limitations. Qualifying income described in paragraph (a)(1) of 
this section does not include income derived in the ordinary course of 
a trade or business. For purposes of the preceding sentence, income 
derived from an asset with respect to which the partnership is a 
broker, market maker, or dealer is income derived in the ordinary 
course of a trade or business; income derived from an asset with 
respect to which the taxpayer is a trader or investor is not income 
derived in the ordinary course of a trade or business.
    (b) Calculation of gross income and qualifying income--(1) 
Treatment of losses. Except as otherwise provided in this section, in 
computing the gross income and qualifying income of a partnership for 
purposes of section 7704(c)(2) and this section, losses do not enter 
into the computation.
    (2) Certain positions that are marked to market. Gain recognized 
with respect to a position that is marked to market (for example, under 
section 475(f), 1256, 1259, or 1296) shall not fail to be qualifying 
income solely because there is no sale or disposition of the position.
    (3) Certain items of ordinary income. Gain recognized with respect 
to a capital asset shall not fail to be qualifying income solely 
because it is characterized as ordinary income under section 475(f), 
988, 1258, or 1296.
    (4) Straddles. In computing the gross income and qualifying income 
of a partnership for purposes of section 7704(c)(2) and this section, a 
straddle (as defined in section 1092(c)) shall be treated as set forth 
in this paragraph (b)(4). For purposes of the preceding sentence, two 
or more straddles that are part of a larger straddle shall be treated 
as a single straddle. The amount of the gain from any straddle to be 
taken into account shall be computed as follows:
    (i) Straddles other than mixed straddle accounts. With respect to 
each straddle (whether or not a straddle during the taxable year) other 
than a mixed straddle account, the amount of gain taken into account 
shall be the excess, if any, of gain recognized during the taxable year 
with respect to property that was at any time a position in that 
straddle over any loss recognized during

[[Page 69554]]

the taxable year with respect to property that was at any time a 
position in that straddle (including loss realized in an earlier 
taxable year).
    (ii) Mixed straddle accounts. With respect to each mixed straddle 
account (as defined in Sec. 1.1092(b)-4T(b)), the amount of gain taken 
into account shall be the annual account gain for that mixed straddle 
account, computed pursuant to Sec. 1.1092(b)-4T(c)(2).
    (5) Certain transactions similar to straddles. In computing the 
gross income and qualifying income of a partnership for purposes of 
section 7704(c)(2) and this section, related interests in property 
(whether or not personal property as defined in section 1092(d)(1)) 
that produce a substantial diminution of the partnership's risk of loss 
similar to that of a straddle (as defined in section 1092(c)) shall be 
combined so that the amount of gain taken into account by the 
partnership in computing its gross income shall be the excess, if any, 
of gain recognized during the taxable year with respect to such 
interests over any loss recognized during the taxable year with respect 
to such interests.
    (6) Wash sale rule--(i) Gain not taken into account. Solely for 
purposes of section 7704(c)(2) and this section, if a partnership 
recognizes gain in a section 7704 wash sale transaction with respect to 
one or more positions in either a straddle (as defined in section 
1092(c)) or an arrangement described in paragraph (b)(5) of this 
section, then the gain shall not be taken into account to the extent of 
the amount of unrecognized loss (as of the close of the taxable year) 
in one or more offsetting positions of the straddle or arrangement 
described in paragraph (b)(5) of this section.
    (ii) Section 7704 wash sale transaction. For purposes of this 
paragraph (b)(6), a section 7704 wash sale transaction is a transaction 
in which--
    (A) A partnership disposes of one or more positions of a straddle 
(as defined in section 1092(c)) or one or more related positions 
described in paragraph (b)(5) of this section; and
    (B) The partnership acquires a substantially similar position or 
positions within a period beginning 30 days before the date of the 
disposition and ending 30 days after such date.
    (c) Effective date. This section applies to taxable years of a 
partnership beginning on or after December 17, 1998. However, a 
partnership may apply this section in its entirety for all of the 
partnership's open taxable years beginning after any earlier date 
selected by the partnership.
Robert E. Wenzel,
Deputy Commissioner of Internal Revenue.
    Approved: December 7, 1998.
Donald C. Lubick,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 98-33345 Filed 12-16-98; 8:45 am]
BILLING CODE 4830-01-U