[Federal Register Volume 64, Number 6 (Monday, January 11, 1999)]
[Rules and Regulations]
[Pages 1505-1516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-149]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8805]
RIN 1545-AQ43; 1545-AT41


Allocation of Loss With Respect to Stock and Other Personal 
Property; Application of Section 904 to Income Subject to Separate 
Limitations

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final and temporary regulations.

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[[Page 1506]]

SUMMARY: This document contains final and temporary Income Tax 
Regulations relating to the allocation of loss recognized on the 
disposition of stock and other personal property and the computation of 
the foreign tax credit limitation. The loss allocation regulations 
primarily will affect taxpayers that claim the foreign tax credit and 
that incur losses with respect to personal property and are necessary 
to modify existing guidance with respect to loss allocation. The 
foreign tax credit limitation regulations will affect taxpayers 
claiming foreign tax credits that have passive income or losses and are 
necessary to modify existing guidance with respect to the computation 
of the limitation.

DATES: Effective dates: These regulations are effective January 11, 
1999, except that Sec. 1.904-4(c)(2)(ii) (A) and (B) are effective 
March 12, 1999 and Sec. 1.904-4(c)(3)(iv) is effective December 31, 
1998.
    Dates of applicability: For dates of applicability of Secs. 1.865-
1T, 1.865-2, and 1.865-2T, see Secs. 1.865-1T(f), 1.865-2(e), and 
1.865-2T(e), respectively. For dates of applicability of Sec. 1.904-
4(c), see Sec. 1.904-4(c)(2)(i).

FOR FURTHER INFORMATION CONTACT: Seth B. Goldstein, (202) 622-3810, 
regarding section 865(j); and Rebecca Rosenberg, (202) 622-3850, 
regarding section 904(d) (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background

    On May 14, 1992, the IRS published a notice of proposed rulemaking 
in the Federal Register (REG-209527-92, formerly INTL-1-92 (1992-1 C.B. 
1209), 57 FR 20660), proposing amendments to the Income Tax Regulations 
(26 CFR part 1) under section 904(d). The regulations included proposed 
amendments to the grouping rules under Sec. 1.904-4(c)(3) for purposes 
of determining whether passive income is high taxed. The amendments 
were proposed to be effective for taxable years beginning after 
December 31, 1991. A public hearing was held on September 24, 1992, but 
no written or oral comments were received with respect to these 
provisions. These regulations are finalized as proposed. However, as 
described below, the effective date of the regulations has been 
modified.
    On July 8, 1996, the IRS published proposed amendments (REG-209750-
95, formerly INTL-4-95 (1996-2 C.B. 484), 61 FR 35696) to the Income 
Tax Regulations (26 CFR part 1) under sections 861, 865, and 904 of the 
Internal Revenue Code in the Federal Register. The regulations 
addressed the allocation of loss on the disposition of stock 
(Sec. 1.865-2) and other personal property (Sec. 1.865-1) and also 
contained proposed amendments to the grouping rules under Sec. 1.904-
4(c). The proposed regulations generally allocate loss with respect to 
stock based upon the residence of the seller (reciprocal to gain), but 
allocate loss on other personal property based upon the income 
generated by the property. A public hearing was held on November 6, 
1996, and several written comments were received. The written comments 
endorsed the regulations' general approach with respect to the 
allocation of stock loss. In addition, on June 18, 1997, the Tax Court 
held in International Multifoods Corporation v. Commissioner, 108 T.C. 
579 (1997), that loss on the disposition of stock is generally 
allocated based on the residence of the seller, consistent with the 
approach of the proposed regulations. After consideration of all the 
comments, the regulations proposed by INTL-4-95 with respect to stock 
loss and with respect to the grouping rules are adopted as amended by 
this Treasury decision. The principal changes to these regulations, as 
well as the major comments and suggestions, are discussed below. An 
additional anti-abuse rule, not previously proposed, is issued as a 
proposed and temporary regulation.
    The written comments criticized the proposed regulation concerning 
the allocation of loss on other personal property (Sec. 1.865-1). This 
proposed regulation is withdrawn and replaced with a new proposed and 
temporary regulation that is more consistent with the approach of the 
stock loss allocation rules. The new rules are issued as a temporary 
regulation because of the need for immediate guidance following the 
International Multifoods opinion.

Explanation of Provisions

Section 1.861-8T(e)(8): Net Operating Loss

    Section 1.861-8T(e)(8) clarifies that a net operating loss 
deduction allowed under section 172 is allocated and apportioned in the 
same manner as the deductions giving rise to the net operating loss 
deduction.

Section 1.865-1T: Loss With Respect to Personal Property Other Than 
Stock

    Section 1.865-1T(a) provides the general rule that loss with 
respect to personal property is allocated in the same manner in which 
gain on the sale of the property would be sourced. Thus, for example, 
loss on the sale or worthlessness of a foreign bond held by a U.S. 
resident generally would be allocated against U.S. source income. 
Notice 89-58 (1989-1 C.B. 699), which addressed the allocation of loss 
with respect to certain bank loans, is revoked as inconsistent with 
this approach. Taxpayers may rely on the Notice for loss recognized 
prior to the effective date of the temporary regulations (see 
discussion of effective dates, below). Following the general rule, loss 
attributable to a foreign office of a U.S. resident is allocated 
against foreign source income where gain would be foreign source under 
the foreign branch rule of section 865(e)(1).
    Section 1.865-1T(b) provides special rules of application. Loss on 
depreciable property generally is allocated based upon the allocation 
of depreciation deductions taken with respect to the property, 
consistent with the depreciation-recapture source rule of section 
865(c)(1). Similarly, loss with respect to a contingent payment debt 
instrument subject to Reg. Sec. 1.1275-4(b) is allocated against 
interest income because gain on the instrument generally is treated as 
interest income.
    Section 1.865-1T(c) provides exceptions from the reciprocal-to-gain 
rule. The regulations do not apply to certain financial products (to be 
addressed in a future guidance project), loss governed by section 988, 
inventory (which is not governed by section 865), or trade receivables 
and certain interest equivalents (which are governed by Sec. 1.861-
9T(b)). When Prop. Sec. 1.863-3(h) (the global dealing sourcing 
regulation) is finalized, Sec. 1.865-1T will not apply to any loss 
sourced under that regulation. Loss attributable to accrued-but-unpaid 
interest income is allocated against interest income. Also, loss on a 
debt instrument is allocated against interest income to the extent the 
taxpayer did not amortize bond premium to the full extent permitted by 
the Code. Anti-abuse exceptions are also provided. Section 1.865-
1T(c)(6)(i), which prevents taxpayers from manipulating loss allocation 
through related-party transfers, reorganizations, or similar 
transactions, and Sec. 1.865-1T(c)(6)(ii), which addresses offsetting 
positions, are similar to the anti-abuse rules previously proposed with 
respect to stock losses. In addition, section 1.865-1T(c)(6)(iii) has 
been included to prevent taxpayers from accelerating foreign source 
income with respect to property and claiming an offsetting U.S. loss.
    The temporary regulations are effective for loss recognized on or 
after January 11, 1999. A taxpayer may apply the regulations, however, 
to loss

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recognized in any taxable year beginning on or after January 1, 1987, 
subject to certain conditions.

Section 1.865-2: Stock Loss

    The proposed regulations issued in 1996 provide that generally loss 
with respect to stock is allocated to the residence of the seller, but 
contain three major exceptions: an exclusion for dispositions of 
portfolio stock and stock in regulated investment companies (RICs) and 
S corporations, a dividend recapture rule, and a consistency rule for 
certain dispositions of foreign affiliates. The final regulations 
modify these exceptions. The principal comments and changes to the 
regulations are discussed below.

Section 1.865-2(a): General Rule for Allocation of Stock Loss

    Commentators criticized the exclusion of portfolio stock and RIC 
stock from the general residence-based rule, arguing that the rationale 
for residence-based allocation applies equally to these classes of 
stock. The final regulations eliminate the exception for portfolio 
stock and RIC stock.
    In response to a comment, the final regulations clarify that 
Sec. 1.865-2 does not apply to stock that constitutes inventory.
    The proposed regulations allocate loss recognized on the ``sale or 
other disposition'' of stock. Proposed Sec. 1.865-2(c)(2) provides that 
worthlessness giving rise to a deduction under section 165(g)(3) with 
respect to stock is treated as a disposition. Questions have been 
raised as to whether the regulations apply to other recognized losses 
that are not the result of a sale or disposition (for example, loss 
recognized under the mark-to-market rules of section 475). The final 
regulations are intended to apply to all recognized stock losses. To 
avoid confusion, the reference to sales or other dispositions has been 
deleted in the final regulations. The special reference to 
worthlessness deductions is therefore unnecessary and also has been 
deleted.

Section 1.865-2(b)(1): Dividend Recapture Exception

    Some commentators questioned the dividend recapture rule of 
Sec. 1.865-2(b)(1) and suggested that the rule should be limited to 
cases in which the dividends were fully sheltered from U.S. tax by 
foreign tax credits or the taxpayer did not meet a minimum holding 
period. Others suggested that the two-year recapture period defined in 
Sec. 1.865-2(d)(5) of the proposed regulations should be shortened. 
Sections 1.865-2(b)(1)(i) and 1.865-2(d)(3) of the final regulations 
retain the two-year rule.
    Section 1.865-2(b)(1)(iii) of the final regulations provides an 
exception from dividend recapture for passive-basket dividends. This 
new exception will exempt most portfolio investors (other than 
financial services entities) from the dividend recapture rule. The 
rule, which will reduce administrative burdens, reflects the fact that 
passive income is generally subject to residual U.S. tax and the high-
tax kick-out of section 904(d)(2)(A)(iii)(III) limits the potential for 
cross-crediting in the passive basket, thus reducing the need for 
recapture. In addition, allocation of loss to the passive basket may 
lead to investment incentives that violate the policies underlying the 
passive basket. For example, where a loss allocated to the passive 
basket creates a separate limitation loss under section 904(f)(5) that 
reduces high-taxed income in other baskets, this creates an incentive 
in subsequent years for the taxpayer to earn low-taxed foreign passive 
income to utilize the foreign tax credits in the high-taxed basket (due 
to the recharacterization rules of section 904(f)(5)(C)).
    Commentators also suggested alternatives to the de minimis rule of 
Sec. 1.865-2(b)(1)(ii), which exempts from recapture dividends that are 
less than 10 percent of the recognized loss. The proposed de minimis 
rule is retained in the final regulations. The de minimis rule is 
intended to exempt from recapture, as a matter of administrative 
convenience, dividends that are relatively insignificant in comparison 
to the loss.
    Two commentators questioned why the dividend recapture rule and the 
definition of the recapture period in Sec. 1.865-2(d)(5) of the 
proposed regulations refer to realized, rather than recognized, loss. 
The wording was intended to avoid confusion over the application of the 
rule to loss that is deferred under section 267(f). The final 
regulation refers to ``recognized'' loss, but examples have been added 
in Sec. 1.865-2(b)(1)(iv) of the final regulations to illustrate the 
application of the dividend recapture rule in the context of section 
267(f) and how the result differs in the context of a consolidated 
group.

Proposed Sec. 1.865-2(b)(2): Consistency Rule

    Proposed Sec. 1.865-2(b)(2) requires a taxpayer to allocate loss on 
the sale of a foreign affiliate to passive-basket foreign source income 
if the taxpayer recognized foreign source gain under section 865(f) at 
any time during the 5-year period preceding the loss sale. Commentators 
criticized this rule as producing disproportionate results where the 
foreign source gain is small in comparison to the subsequent loss. 
Furthermore, even where the gain and loss are of similar magnitude, the 
results may be disproportionate because sourcing the gain foreign may 
provide the taxpayer with minimal tax benefits (because the gain is 
assigned to the passive basket) but the loss may reduce (sometimes as a 
separate limitation loss) income that is otherwise sheltered by foreign 
tax credits. In addition, allocating loss to the passive basket raises 
the policy concerns described above with respect to passive-basket 
dividend recapture. After consideration of the comments, the 
consistency rule has been eliminated from the final regulations.

Section 1.865-2(b)(2): Anti-Abuse Rules

    The anti-abuse rules of Sec. 1.865-2(b)(3) of the proposed 
regulations, finalized as Sec. 1.865-2(b)(4), have been refined and 
modified. One commentator requested examples illustrating the anti-
abuse rules. Examples have been provided. An additional rule is 
provided in Sec. 1.865-2T, discussed below.

Section 1.865-2(e): Effective Date and Retroactive Election

    The proposed regulations are proposed to be effective for taxable 
years beginning 61 days after final regulations are promulgated. 
Because of the immediate need for guidance following the International 
Multifoods opinion, the final regulations are effective for losses 
recognized on or after January 11, 1999.
    Several commentators requested that the regulations clarify the 
scope of the retroactive election and reduce the administrative burden 
of making the election. In response to these comments, Sec. 1.865-
2(e)(2) is amended to provide that a taxpayer need not make a formal 
election to retroactively apply the regulations to losses recognized in 
any post-1986 year and all subsequent pre-effective date years. An 
amended return will be required only if retroactive application results 
in a change in tax liability.
    One commentator urged that the overall foreign loss transition rule 
in Sec. 1.904(f)-12 be modified to provide that an overall foreign loss 
account attributable to a stock loss recognized in a pre-1987 year be 
recomputed under the new regulations in the first election year. This 
suggestion was rejected because the allocation of a stock loss is 
governed by the rules in effect in the year the loss is recognized, and 
the

[[Page 1508]]

retroactive election is available only with respect to post-1986 years. 
Section 1.865-2(e)(3) provides examples to illustrate the effect of the 
retroactive application of the regulations on overall foreign loss 
accounts, capital loss carryovers, and foreign tax credit carryovers.

Section 1.865-2T: Stock Loss Matching Rule

    Section 1.865-2T(b)(4)(iii) provides a rule intended to prevent 
taxpayers from avoiding the dividend recapture rule of Sec. 1.865-
2(b)(1) or from accelerating foreign source income and recognizing an 
offsetting U.S. loss. This rule is substantially the same as the 
matching rule of Sec. 1.865-1T(c)(6)(iii). The rule is promulgated as a 
temporary regulation because it is necessary to prevent abuse of the 
residence-based general allocation rule.

Section 1.904-4(c): Grouping Rules

    The high-tax kick-out grouping rules of Sec. 1.904-4(c) provide 
rules for determining when particular groups of passive income are 
high-taxed and, therefore, treated as general limitation income under 
sections 904(d)(2)(A)(iii)(III) and 904(d)(2)(F). As described above, 
the proposed amendments to these rules that were proposed in 1992 are 
finalized as proposed, but taxpayers are afforded some flexibility with 
respect to the effective date. The amendments were proposed to be 
effective for taxable years beginning after December 31, 1991. The 
final regulations are effective for taxable years ending on or after 
December 31, 1998, but taxpayers may apply the amended regulations to 
any taxable year beginning after December 31, 1991 and all subsequent 
years. An example is also added to clarify that foreign taxes that are 
not creditable (e.g., under section 901(k)) are not withholding taxes 
for purposes of the grouping rules.
    The proposed amendments to the grouping rules that were proposed in 
1996 are finalized with two clarifications. Proposed Sec. 1.904-
4(c)(2)(ii)(B) provides guidance where deductions allocated to a group 
of passive income exceed the income in that group (i.e., a loss group). 
A question has been raised as to the proper treatment of foreign taxes 
in a group that has no taxable income or loss (either because the 
deductions allocated to the group exactly equal the income in the group 
or because the foreign taxes assigned to the group are imposed on U.S. 
source income or income that is not currently taken into account under 
U.S. tax principles). Consistent with the approach taken in the 
proposed regulations with respect to loss groups, the final regulations 
clarify that foreign taxes allocated to a group with no foreign source 
income are ``kicked out'' and treated as related to general limitation 
income.
    Proposed Sec. 1.904-4(c)(2)(ii)(A) provides that foreign tax 
imposed on sales that result in loss for U.S. tax purposes is allocated 
to the group of passive income to which the loss is allocated. While 
this correctly states the result where loss on the disposition of 
property is allocated to passive income under a reciprocal-to-gain 
rule, under the temporary and final regulations loss may be allocated 
to reduce the group of passive income where income from the property 
was assigned (for example, dividends or interest under the anti-abuse 
rules or the accrued-but-unpaid interest rule) or a separate category 
of income other than passive income. Accordingly, Sec. 1.904-
4(c)(2)(ii)(A) of the final regulations is clarified to state that 
foreign tax imposed on a loss sale is allocated to the group of passive 
income to which a gain would have been assigned. The examples in 
Sec. 1.904-4(c)(8) of the final regulations are modified to reflect the 
fact that the consistency rule of Sec. 1.865-2(b)(2) of the proposed 
regulations has been deleted.
    One commentator inquired whether the rule of Sec. 1.904-
4(c)(2)(ii)(A) allocating foreign tax on a loss sale to a group of 
passive income is consistent with the tax allocation rule of 
Sec. 1.904-6(a)(1)(iv). The latter rule provides that a foreign tax 
imposed on an item of income that does not constitute income under U.S. 
tax principles (a base difference) shall be treated as imposed with 
respect to general limitation income, whereas a foreign tax imposed on 
an item that would be income under U.S. tax principles in another year 
(a timing difference) will be allocated to the appropriate separate 
category as if the U.S. recognized the income in the same year. 
Treasury and the Service believe that a base difference exists within 
the meaning of Sec. 1.904-6(a)(1)(iv) only when a foreign country taxes 
items that the United States would never treat as taxable income, for 
example, gifts or life insurance proceeds. A sale that results in gain 
under foreign law but in loss for U.S. tax purposes is attributable to 
differences in basis calculations rather than to a difference in the 
concept of taxable income and, therefore, does not constitute a base 
difference. The tax allocation rule of Sec. 1.904-4(c)(2)(ii)(A), 
allocating foreign taxes on a loss sale to the same group of passive 
income to which gain would have been assigned had the United States 
recognized gain on the sale, is conceptually consistent with the 
treatment of timing differences in Sec. 1.904-6(a)(1)(iv).

Effect on Other Documents

    The following document is obsolete as of January 11, 1999:
    Notice 89-58, 1989-1 C.B. 699.

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.
    This Treasury Decision finalizes notices of proposed rulemaking 
published May 14, 1992 (57 FR 20660) and July 8, 1996 (61 FR 35696). It 
has been determined that section 553(b) of the Administrative Procedure 
Act (5 U.S.C. chapter 5) does not apply to the final regulations issued 
pursuant to the notice of proposed rulemaking published on May 14, 
1992. Furthermore, the Regulatory Flexibility Act (5 U.S.C. chapter 6) 
does not apply to those regulations, because the notice of proposed 
rulemaking was issued prior to March 29, 1996.
    It also has been determined that section 553(b) of the 
Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to the 
portion of the notice of proposed rulemaking published on July 8, 1996, 
relating to section 904 of the Internal Revenue Code. Because the 
regulation does not impose a collection of information on small 
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not 
apply.
    A final regulatory flexibility analysis under 5 U.S.C. Sec. 604 has 
been prepared for the final regulations portion of this Treasury 
Decision with respect to the regulations issued under section 865 of 
the Internal Revenue Code. A summary of the analysis is set forth below 
under the heading ``Summary of Regulatory Flexibility Analysis.'' 
Because no preceding notice of proposed rulemaking is required for the 
temporary regulations portion of this Treasury Decision relating to 
sections 861 and 865 of the Code, the provisions of the Regulatory 
Flexibility Act do not apply. However, an initial Regulatory 
Flexibility Analysis was prepared for the proposed regulations 
published elsewhere in this issue of the Federal Register.
    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.

[[Page 1509]]

Summary of Regulatory Flexibility Analysis

    It has been determined that a final regulatory flexibility analysis 
is required under 5 U.S.C. Sec. 604 with respect to the final 
regulations portion of this Treasury Decision with respect to the 
regulations issued under section 865 of the Internal Revenue Code. 
These regulations will affect small entities such as small businesses 
but not other small entities, such as local government or tax exempt 
organizations, which do not pay taxes. The IRS and Treasury Department 
are not aware of any federal rules that duplicate, overlap or conflict 
with these regulations. The final regulations address the allocation of 
loss with respect to stock. These regulations are necessary primarily 
for the proper computation of the foreign tax credit limitation under 
section 904 of the Internal Revenue Code. With respect to U.S. resident 
taxpayers, the regulations generally allocate losses against U.S. 
source income. Generally, this allocation simplifies the computation of 
the foreign tax credit limitation. None of the significant alternatives 
considered in drafting the regulations would have significantly altered 
the economic impact of the regulations on small entities. There are no 
alternative rules that are less burdensome to small entities but that 
accomplish the purposes of the statute.

Drafting Information

    The principal author of these regulations is Seth B. Goldstein, of 
the Office of the Associate Chief Counsel (International), IRS. 
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 is amended by adding 
entries in numerical order to read as follows:

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

    Section 1.865-1T also issued under 26 U.S.C. 865(j)(1).
    Section 1.865-2 also issued under 26 U.S.C. 865(j)(1).
    Section 1.865-2T also issued under 26 U.S.C. 865(j)(1). * * *
    Par. 2. Section 1.861-8 is amended by adding paragraph (e)(7)(iii) 
and revising paragraph (e)(8) to read as follows:


Sec. 1.861-8  Computation of taxable income from sources within the 
United States and from other sources and activities.

* * * * *
    (e) * * *
    (7) * * *
    (iii) Allocation of loss recognized in taxable years after 1986. 
See Secs. 1.865-1T, 1.865-2, and 1.865-2T for rules regarding the 
allocation of certain loss recognized in taxable years beginning after 
December 31, 1986.
    (8) Net operating loss deduction. [Reserved.] For guidance, see 
Sec. 1.861-8T(e)(8).
* * * * *
    Par. 3. Section 1.861-8T is amended by adding paragraph (e)(8) and 
a sentence at the end of paragraph (h) to read as follows:


Sec. 1.861-8T  Computation of taxable income from sources within the 
United States and from other sources and activities (Temporary).

* * * * *
    (e) * * *
    (8) Net operating loss deduction. A net operating loss deduction 
allowed under section 172 shall be allocated and apportioned in the 
same manner as the deductions giving rise to the net operating loss 
deduction.
* * * * *
    (h) * * * Paragraph (e)(8) of this section shall cease to be 
effective January 8, 2002.
    Par. 4. Section 1.865-1T is added immediately following Sec. 1.864-
8T, to read as follows:


Sec. 1.865-1T  Loss with respect to personal property other than stock 
(Temporary).

    (a) General rules for allocation of loss--(1) Allocation against 
gain. Except as otherwise provided in Secs. 1.865-2 and 1.865-2T and 
paragraph (c) of this section, loss recognized with respect to personal 
property shall be allocated to the class of gross income and, if 
necessary, apportioned between the statutory grouping of gross income 
(or among the statutory groupings) and the residual grouping of gross 
income, with respect to which gain from a sale of such property would 
give rise in the hands of the seller. Thus, for example, loss 
recognized by a United States resident on the sale of a bond generally 
is allocated to reduce United States source income.
    (2) Loss attributable to foreign office. Except as otherwise 
provided in Secs. 1.865-2 and 1.865-2T and paragraph (c) of this 
section, and except with respect to loss subject to paragraph (b) of 
this section, in the case of loss recognized by a United States 
resident with respect to property that is attributable to an office or 
other fixed place of business in a foreign country within the meaning 
of section 865(e)(3), the loss shall be allocated to reduce foreign 
source income if a gain on the sale of the property would have been 
taxable by the foreign country and the highest marginal rate of tax 
imposed on such gains in the foreign country is at least 10 percent. 
However, paragraph (a)(1) of this section and not this paragraph (a)(2) 
will apply if gain on the sale of such property would be sourced under 
section 865(c), (d)(1)(B), or (d)(3).
    (3) Loss recognized by United States citizen or resident alien with 
foreign tax home. Except as otherwise provided in Secs. 1.865-2 and 
1.865-2T and paragraph (c) of this section, and except with respect to 
loss subject to paragraph (b) of this section, in the case of loss with 
respect to property recognized by a United States citizen or resident 
alien that has a tax home (as defined in section 911(d)(3)) in a 
foreign country, the loss shall be allocated to reduce foreign source 
income if a gain on the sale of such property would have been taxable 
by a foreign country and the highest marginal rate of tax imposed on 
such gains in the foreign country is at least 10 percent.
    (4) Allocation for purposes of section 904. For purposes of section 
904, loss recognized with respect to property that is allocated to 
foreign source income under this paragraph (a) shall be allocated to 
the separate category under section 904(d) to which gain on the sale of 
the property would have been assigned (without regard to section 
904(d)(2)(A)(iii)(III)). For purposes of Sec. 1.904-4(c)(2)(ii)(A), any 
such loss allocated to passive income shall be allocated (prior to the 
application of Sec. 1.904-4(c)(2)(ii)(B)) to the group of passive 
income to which gain on a sale of the property would have been assigned 
had a sale of the property resulted in the recognition of a gain under 
the law of the relevant foreign jurisdiction or jurisdictions.
    (5) Loss recognized by partnership. A partner's distributive share 
of loss recognized by a partnership with respect to personal property 
shall be allocated and apportioned in accordance with this section as 
if the partner had recognized the loss. If loss is attributable to an 
office or other fixed place of business of the partnership within the 
meaning of section 865(e)(3), such office or fixed place of business 
shall be considered to be an office of the partner for purposes of this 
section.

[[Page 1510]]

    (b) Special rules of application--(1) Depreciable property. In the 
case of a loss recognized with respect to depreciable personal 
property, the gain referred to in paragraph (a)(1) of this section is 
the gain that would be sourced under section 865(c)(1) (depreciation 
recapture).
    (2) Contingent payment debt instrument. Except to the extent 
provided in Sec. 1.1275-4(b)(9)(iv), loss recognized with respect to a 
contingent payment debt instrument to which Sec. 1.1275-4(b) applies 
(instruments issued for money or publicly traded property) shall be 
allocated to the class of gross income and, if necessary, apportioned 
between the statutory grouping of gross income (or among the statutory 
groupings) and the residual grouping of gross income, with respect to 
which interest income from the instrument (in the amount of the loss 
subject to this paragraph (b)(2)) would give rise.
    (c) Exceptions--(1) Foreign currency and certain financial 
instruments. This section does not apply to loss governed by section 
988 and loss recognized with respect to options contracts or derivative 
financial instruments, including futures contracts, forward contracts, 
notional principal contracts, or evidence of an interest in any of the 
foregoing.
    (2) Inventory. This section does not apply to loss recognized with 
respect to property described in section 1221(1).
    (3) Interest equivalents and trade receivables. Loss subject to 
Sec. 1.861-9T(b) (loss equivalent to interest expense and loss on trade 
receivables) shall be allocated and apportioned under the rules of 
Sec. 1.861-9T and not under the rules of this section.
    (4) Unamortized bond premium. To the extent a taxpayer recognizing 
loss with respect to a bond (within the meaning of Sec. 1.171-1(b)) did 
not amortize bond premium to the full extent permitted by Secs. 1.171-2 
or 1.171-3 (or Sec. 1.171-1, as contained in the 26 CFR part 1 edition 
revised as of April 1, 1997) (as applicable), loss recognized with 
respect to the bond shall be allocated to the class of gross income 
and, if necessary, apportioned between the statutory grouping of gross 
income (or among the statutory groupings) and the residual grouping of 
gross income, with respect to which interest income from the bond was 
assigned.
    (5) Accrued interest. Loss attributable to accrued but unpaid 
interest on a debt obligation shall be allocated to the class of gross 
income and, if necessary, apportioned between the statutory grouping of 
gross income (or among the statutory groupings) and the residual 
grouping of gross income, with respect to which interest income from 
the obligation was assigned. For purposes of this section, whether loss 
is attributable to accrued but unpaid interest (rather than to 
principal) shall be determined under the principles of Secs. 1.61-7(d) 
and 1.446-2(e).
    (6) Anti-abuse rules--(i) Transactions involving built-in losses. 
If one of the principal purposes of a transaction is to change the 
allocation of a built-in loss with respect to personal property by 
transferring the property to another person, qualified business unit, 
office or other fixed place of business, or branch that subsequently 
recognizes the loss, the loss shall be allocated by the transferee as 
if it were recognized by the transferor immediately prior to the 
transaction. If one of the principal purposes of a change of residence 
is to change the allocation of a built-in loss with respect to personal 
property, the loss shall be allocated as if the change of residence had 
not occurred. If one of the principal purposes of a transaction is to 
change the allocation of a built-in loss on the disposition of personal 
property by converting the original property into other property and 
subsequently recognizing loss with respect to such other property, the 
loss shall be allocated as if it were recognized with respect to the 
original property immediately prior to the transaction. Transactions 
subject to this paragraph shall include, without limitation, 
reorganizations within the meaning of section 368(a), liquidations 
under section 332, transfers to a corporation under section 351, 
transfers to a partnership under section 721, transfers to a trust, 
distributions by a partnership, distributions by a trust, transfers to 
or from a qualified business unit, office or other fixed place of 
business, or branch, or exchanges under section 1031. A person may have 
a principal purpose of affecting loss allocation even though this 
purpose is outweighed by other purposes (taken together or separately).
    (ii) Offsetting positions. If a taxpayer recognizes loss with 
respect to personal property and the taxpayer (or any person described 
in section 267(b) (after application of section 267(c), 267(e), 318 or 
482 with respect to the taxpayer) holds (or held) offsetting positions 
with respect to such property with a principal purpose of recognizing 
foreign source income and United States source loss, the loss shall be 
allocated and apportioned against such foreign source income. For 
purposes of this paragraph (c)(6)(ii), positions are offsetting if the 
risk of loss of holding one or more positions is substantially 
diminished by holding one or more other positions.
    (iii) Matching rule. To the extent a taxpayer (or a person 
described in section 1059(c)(3)(C) with respect to the taxpayer) 
recognizes foreign source income for tax purposes that results in the 
creation of a corresponding loss with respect to personal property, the 
loss shall be allocated and apportioned against such income. For 
examples illustrating a similar rule with respect to stock loss, see 
Examples 3 through 6 of Sec. 1.865-2T(b)(4)(iv).
    (d) Definitions--(1) Contingent payment debt instrument. A 
contingent payment debt instrument is any debt instrument that is 
subject to Sec. 1.1275-4.
    (2) Depreciable personal property. Depreciable personal property is 
any property described in section 865(c)(4)(A).
    (3) Terms defined in Sec. 1.861-8. See Sec. 1.861-8 for the meaning 
of class of gross income, statutory grouping of gross income, and 
residual grouping of gross income.
    (e) Examples. The application of this section may be illustrated by 
the following examples:

    Example 1. On January 1, 1997, A, a domestic corporation, 
purchases for $1,000 a machine that produces widgets, which A sells 
in the United States and throughout the world. Throughout A's 
holding period, the machine is located and used in Country X. During 
A's holding period, A incurs depreciation deductions of $400 with 
respect to the machine. Under Sec. 1.861-8, A allocates and 
apportions depreciation deductions of $250 against foreign source 
general limitation income and $150 against U.S. source income. On 
December 12, 1999, A sells the machine and recognizes a loss of 
$500. Because the machine was used predominantly outside the United 
States, under section 865(c)(1)(B) and (c)(3)(B)(ii), gain on the 
disposition of the machine would be foreign source general 
limitation income to the extent of the depreciation adjustments. 
Therefore, under paragraph (b)(1) of this section, the entire $500 
loss is allocated against foreign source general limitation income.
    Example 2. On January 1, 1997, A, a domestic corporation, loans 
$2,000 to N, its wholly-owned controlled foreign corporation, in 
exchange for a contingent payment debt instrument subject to 
Sec. 1.1275-4(b). During 1997 through 1999, A accrues and receives 
interest income of $630, $150 of which is foreign source general 
limitation income and $480 of which is foreign source passive income 
under section 904(d)(3). Assume there are no positive or negative 
adjustments pursuant to Sec. 1.1275-4(b)(6) in 1997 through 1999. On 
January 1, 2000, A disposes of the debt instrument and recognizes a 
$770 loss. Under Sec. 1.1275-4(b)(8)(ii), $630 of the loss is 
treated as ordinary loss and $140 is treated as capital loss. Assume 
that $140 of interest income earned in 2000 with respect to the debt

[[Page 1511]]

instrument would be foreign source passive income under section 
904(d)(3). Under Sec. 1.1275-4(b)(9)(iv), $150 of the ordinary loss 
is allocated against foreign source general limitation income and 
$480 of the ordinary loss is allocated against foreign source 
passive income. Under paragraph (b)(2) of this section, the $140 
capital loss is allocated against foreign source passive income.
    Example 3. On January 1, 1997, A, a domestic corporation, 
purchases for $1,000 a bond maturing January 1, 2009, with a stated 
principal amount of $1,000, payable at maturity. The bond provides 
for unconditional payments of interest of $100, payable December 31 
of each year. The issuer of the bond is a foreign corporation and 
interest on the bond is thus foreign source. Between 1997 and 2001, 
A accrues and receives foreign source interest income of $500 with 
respect to the bond. On January 1, 2002, A sells the bond and 
recognizes a $500 loss. Under paragraph (a)(1) of this section, the 
$500 loss is allocated against U.S. source income. Paragraph 
(c)(6)(iii) of this section is not applicable because A's 
recognition of the foreign source income did not result in the 
creation of a corresponding loss with respect to the bond.
    Example 4. On January 1, 1999, A, a domestic corporation on the 
accrual method of accounting, purchases for $1,000 a bond maturing 
January 1, 2009, with a stated principal amount of $1,000, payable 
at maturity. The bond provides for unconditional payments of 
interest of $100, payable December 31 of each year. The issuer of 
the bond is a foreign corporation and interest on the bond is thus 
foreign source. On June 10, 1999, after A has accrued $44 of 
interest income, but before any interest has been paid, the issuer 
suddenly becomes insolvent and declares bankruptcy. A sells the bond 
(including the accrued interest) for $20. Assuming that A properly 
accrued $44 interest income, A treats the $20 proceeds from the sale 
of the bond as payment of interest previously accrued and recognizes 
a $1000 loss with respect to the bond principal and a $24 loss with 
respect to the accrued interest. See Sec. 1.61-7(d). Under paragraph 
(a)(1) of this section, the $1000 loss with respect to the principal 
is allocated against U.S. source income. Under paragraph (c)(5) of 
this section, the $24 loss with respect to accrued but unpaid 
interest is allocated against foreign source interest income.

    (f) Effective date--(1) In general. Except as provided in paragraph 
(f)(2) of this section, this section is effective for loss recognized 
on or after January 11, 1999. For purposes of this paragraph (f), loss 
that is recognized but deferred (for example, under section 267 or 
1092) shall be treated as recognized at the time the loss is taken into 
account. This section shall cease to be effective January 8, 2002.
    (2) Application to prior periods. A taxpayer may apply the rules of 
this section to losses recognized in any taxable year beginning on or 
after January 1, 1987, and all subsequent years, provided that--
    (i) The taxpayer's tax liability as shown on an original or amended 
tax return is consistent with the rules of this section for each such 
year for which the statute of limitations does not preclude the filing 
of an amended return on June 30, 1999; and
    (ii) The taxpayer makes appropriate adjustments to eliminate any 
double benefit arising from the application of this section to years 
that are not open for assessment.
    (3) Examples. See Sec. 1.865-2(e)(3) for examples illustrating an 
effective date provision similar to the effective date provided in this 
paragraph (f).
    Par. 5. Section 1.865-2 is added immediately after Sec. 1.865-1T, 
to read as follows:


Sec. 1.865-2  Loss with respect to stock.

    (a) General rules for allocation of loss with respect to stock--(1) 
Allocation against gain. Except as otherwise provided in paragraph (b) 
of this section, loss recognized with respect to stock shall be 
allocated to the class of gross income and, if necessary, apportioned 
between the statutory grouping of gross income (or among the statutory 
groupings) and the residual grouping of gross income, with respect to 
which gain (other than gain treated as a dividend under section 
964(e)(1) or 1248) from a sale of such stock would give rise in the 
hands of the seller (without regard to section 865(f)). Thus, for 
example, loss recognized by a United States resident on the sale of 
stock generally is allocated to reduce United States source income.
    (2) Stock attributable to foreign office. Except as otherwise 
provided in paragraph (b) of this section, in the case of loss 
recognized by a United States resident with respect to stock that is 
attributable to an office or other fixed place of business in a foreign 
country within the meaning of section 865(e)(3), the loss shall be 
allocated to reduce foreign source income if a gain on the sale of the 
stock would have been taxable by the foreign country and the highest 
marginal rate of tax imposed on such gains in the foreign country is at 
least 10 percent.
    (3) Loss recognized by United States citizen or resident alien with 
foreign tax home--(i) In general. Except as otherwise provided in 
paragraph (b) of this section, in the case of loss with respect to 
stock that is recognized by a United States citizen or resident alien 
that has a tax home (as defined in section 911(d)(3)) in a foreign 
country, the loss shall be allocated to reduce foreign source income if 
a gain on the sale of the stock would have been taxable by a foreign 
country and the highest marginal rate of tax imposed on such gains in 
the foreign country is at least 10 percent.
    (ii) Bona fide residents of Puerto Rico. Except as otherwise 
provided in paragraph (b) of this section, in the case of loss with 
respect to stock in a corporation described in section 865(g)(3) 
recognized by a United States citizen or resident alien that is a bona 
fide resident of Puerto Rico during the entire taxable year, the loss 
shall be allocated to reduce foreign source income.
    (4) Stock constituting a United States real property interest. Loss 
recognized by a nonresident alien individual or a foreign corporation 
with respect to stock that constitutes a United States real property 
interest shall be allocated to reduce United States source income. For 
additional rules governing the treatment of such loss, see section 897 
and the regulations thereunder.
    (5) Allocation for purposes of section 904. For purposes of section 
904, loss recognized with respect to stock that is allocated to foreign 
source income under this paragraph (a) shall be allocated to the 
separate category under section 904(d) to which gain on a sale of the 
stock would have been assigned (without regard to section 
904(d)(2)(A)(iii)(III)). For purposes of Sec. 1.904-4(c)(2)(ii)(A), any 
such loss allocated to passive income shall be allocated (prior to the 
application of Sec. 1.904-4(c)(2)(ii)(B)) to the group of passive 
income to which gain on a sale of the stock would have been assigned 
had a sale of the stock resulted in the recognition of a gain under the 
law of the relevant foreign jurisdiction or jurisdictions.
    (b) Exceptions--(1) Dividend recapture exception--(i) In general. 
If a taxpayer recognizes a loss with respect to shares of stock, and 
the taxpayer (or a person described in section 1059(c)(3)(C) with 
respect to such shares) included in income a dividend recapture amount 
(or amounts) with respect to such shares at any time during the 
recapture period, then, to the extent of the dividend recapture amount 
(or amounts), the loss shall be allocated and apportioned on a 
proportionate basis to the class or classes of gross income or the 
statutory or residual grouping or groupings of gross income to which 
the dividend recapture amount was assigned.
    (ii) Exception for de minimis amounts. Paragraph (b)(1)(i) of this 
section shall not apply to a loss recognized by a taxpayer on the 
disposition of stock if the sum of all dividend recapture amounts 
(other than dividend recapture amounts eligible for

[[Page 1512]]

the exception described in paragraph (b)(1)(iii) of this section 
(passive limitation dividends)) included in income by the taxpayer (or 
a person described in section 1059(c)(3)(C)) with respect to such stock 
during the recapture period is less than 10 percent of the recognized 
loss.
    (iii) Exception for passive limitation dividends. Paragraph 
(b)(1)(i) of this section shall not apply to the extent of a dividend 
recapture amount that is treated as income in the separate category for 
passive income described in section 904(d)(2)(A) (without regard to 
section 904(d)(2)(A)(iii)(III)). The exception provided for in this 
paragraph (b)(1)(iii) shall not apply to any dividend recapture amount 
that is treated as income in the separate category for financial 
services income described in section 904(d)(2)(C).
    (iv) Examples. The application of this paragraph (b)(1) may be 
illustrated by the following examples:

    Example 1. (i) P, a domestic corporation, is a United States 
shareholder of N, a controlled foreign corporation. N has never had 
any subpart F income and all of its earnings and profits are 
described in section 959(c)(3). On May 5, 1998, N distributes a 
dividend to P in the amount of $100. The dividend gives rise to a $5 
foreign withholding tax, and P is deemed to have paid an additional 
$45 of foreign income tax with respect to the dividend under section 
902. Under the look-through rules of section 904(d)(3) the dividend 
is general limitation income described in section 904(d)(1)(I).
    (ii) On February 6, 2000, P sells its shares of N and recognizes 
a $110 loss. In 2000, P has the following taxable income, excluding 
the loss on the sale of N:
    (A) $1,000 of foreign source income that is general limitation 
income described in section 904(d)(1)(I);
    (B) $1,000 of foreign source capital gain from the sale of stock 
in a foreign affiliate that is sourced under section 865(f) and is 
passive income described in section 904(d)(1)(A); and
    (C) $1,000 of U.S. source income.
    (iii) The $100 dividend paid in 1998 is a dividend recapture 
amount that was included in P's income within the recapture period 
preceding the disposition of the N stock. The de minimis exception 
of paragraph (b)(1)(ii) of this section does not apply because the 
$100 dividend recapture amount exceeds 10 percent of the $110 loss. 
Therefore, to the extent of the $100 dividend recapture amount, the 
loss must be allocated under paragraph (b)(1)(i) of this section to 
the separate limitation category to which the dividend was assigned 
(general limitation income).
    (iv) P's remaining $10 loss on the disposition of the N stock is 
allocated to U.S. source income under paragraph (a)(1) of this 
section.
    (v) After allocation of the stock loss, P's foreign source 
taxable income in 2000 consists of $900 of foreign source general 
limitation income and $1,000 of foreign source passive income.
    Example 2. (i) P, a domestic corporation, owns all of the stock 
of N1, which owns all of the stock of N2, which owns all of the 
stock of N3. N1, N2, and N3 are controlled foreign corporations. All 
of the corporations use the calendar year as their taxable year. On 
February 5, 1997, N3 distributes a dividend to N2. The dividend is 
foreign personal holding company income of N2 under section 
954(c)(1)(A) that results in an inclusion of $100 in P's income 
under section 951(a)(1)(A)(i) as of December 31, 1997. Under section 
904(d)(3)(B) the inclusion is general limitation income described in 
section 904(d)(1)(I). The income inclusion to P results in a 
corresponding increase in P's basis in the stock of N1 under section 
961(a).
    (ii) On March 5, 1999, P sells its shares of N1 and recognizes a 
$110 loss. The $100 1997 subpart F inclusion is a dividend recapture 
amount that was included in P's income within the recapture period 
preceding the disposition of the N1 stock. The de minimis exception 
of paragraph (b)(1)(ii) of this section does not apply because the 
$100 dividend recapture amount exceeds 10 percent of the $110 loss. 
Therefore, to the extent of the $100 dividend recapture amount, the 
loss must be allocated under paragraph (b)(1)(i) of this section to 
the separate limitation category to which the dividend recapture 
amount was assigned (general limitation income). The remaining $10 
loss is allocated to U.S. source income under paragraph (a)(1) of 
this section.
    Example 3. (i) P, a domestic corporation, owns all of the stock 
of N1, which owns all of the stock of N2. N1 and N2 are controlled 
foreign corporations. All the corporations use the calendar year as 
their taxable year and the U.S. dollar as their functional currency. 
On May 5, 1998, N2 pays a dividend of $100 to N1 out of general 
limitation earnings and profits.
    (ii) On February 5, 2000, N1 sells its N2 stock to an unrelated 
purchaser. The sale results in a loss to N1 of $110 for U.S. tax 
purposes. In 2000, N1 has the following current earnings and 
profits, excluding the loss on the sale of N2:
    (A) $1,000 of non-subpart F foreign source general limitation 
earnings and profits described in section 904(d)(1)(I);
    (B) $1,000 of foreign source gain from the sale of stock that is 
taken into account in determining foreign personal holding company 
income under section 954(c)(1)(B)(i) and which is passive limitation 
earnings and profits described in section 904(d)(1)(A);
    (C) $1,000 of foreign source interest income received from an 
unrelated person that is foreign personal holding company income 
under section 954(c)(1)(A) and which is passive limitation earnings 
and profits described in section 904(d)(1)(A).
    (iii) The $100 dividend paid in 1998 is a dividend recapture 
amount that was included in N1's income within the recapture period 
preceding the disposition of the N2 stock. The de minimis exception 
of paragraph (b)(1)(ii) of this section does not apply because the 
$100 dividend recapture amount exceeds 10 percent of the $110 loss. 
Therefore, to the extent of the $100 dividend recapture amount, the 
loss must be allocated under paragraph (b)(1)(i) of this section to 
the separate limitation category to which the dividend was assigned 
(general limitation earnings and profits).
    (iv) N1's remaining $10 loss on the disposition of the N2 stock 
is allocated to foreign source passive limitation earnings and 
profits under paragraph (a)(1) of this section.
    (v) After allocation of the stock loss, N1's current earnings 
and profits for 1998 consist of $900 of foreign source general 
limitation earnings and profits and $1,990 of foreign source passive 
limitation earnings and profits.
    (vi) After allocation of the stock loss, N1's subpart F income 
for 2000 consists of $1,000 of foreign source interest income that 
is foreign personal holding company income under section 
954(c)(1)(A) and $890 of foreign source net gain that is foreign 
personal holding company income under section 954(c)(1)(B)(i). P 
includes $1,890 in income under section 951(a)(1)(A)(i) as passive 
income under sections 904(d)(1)(A) and 904(d)(3)(B).
    Example 4. P, a foreign corporation, has two wholly-owned 
subsidiaries, S, a domestic corporation, and B, a foreign 
corporation. On January 1, 2000, S purchases a one-percent interest 
in N, a foreign corporation, for $100. On January 2, 2000, N 
distributes a $20 dividend to S. The $20 dividend is foreign source 
financial services income. On January 3, 2000, S sells its N stock 
to B for $80 and recognizes a $20 loss that is deferred under 
section 267(f). On June 10, 2008, B sells its N stock to an 
unrelated person for $55. Under section 267(f) and Sec. 1.267(f)-
1(c)(1), S's $20 loss is deferred until 2008. Under this paragraph 
(b)(1), the $20 loss is allocated to reduce foreign source financial 
services income in 2008 because the loss was recognized (albeit 
deferred) within the 24-month recapture period following the receipt 
of the dividend. See Secs. 1.267(f)-1(a)(2)(i)(B) and 1.267(f)-
1(c)(2).
    Example 5. The facts are the same as in Example 4, except P, S, 
and B are domestic corporations and members of the P consolidated 
group. Under the matching rule of Sec. 1.1502-13(c)(1), the separate 
entity attributes of S's intercompany items and B's corresponding 
items are redetermined to the extent necessary to produce the same 
effect on consolidated taxable income as if S and B were divisions 
of a single corporation and the intercompany transaction was a 
transaction between divisions. If S and B were divisions of a single 
corporation, the transfer of N stock on January 3, 2000 would be 
ignored for tax purposes, and the corporation would be treated as 
selling that stock only in 2008. Thus, the corporation's entire $45 
loss would have been allocated against U.S. source income under 
paragraph (a)(1) of this section because a dividend recapture amount 
was not received during the corporation's recapture period. 
Accordingly, S's $20 loss and B's $25 loss are allocated to reduce 
U.S. source income.

    (2) Exception for inventory. This section does not apply to loss

[[Page 1513]]

recognized with respect to stock described in section 1221(1).
    (3) Exception for stock in an S corporation. This section does not 
apply to loss recognized with respect to stock in an S corporation (as 
defined in section 1361).
    (4) Anti-abuse rules--(i) Transactions involving built-in losses. 
If one of the principal purposes of a transaction is to change the 
allocation of a built-in loss with respect to stock by transferring the 
stock to another person, qualified business unit (within the meaning of 
section 989(a)), office or other fixed place of business, or branch 
that subsequently recognizes the loss, the loss shall be allocated by 
the transferee as if it were recognized with respect to the stock by 
the transferor immediately prior to the transaction. If one of the 
principal purposes of a change of residence is to change the allocation 
of a built-in loss with respect to stock, the loss shall be allocated 
as if the change of residence had not occurred. If one of the principal 
purposes of a transaction is to change the allocation of a built-in 
loss with respect to stock (or other personal property) by converting 
the original property into other property and subsequently recognizing 
loss with respect to such other property, the loss shall be allocated 
as if it were recognized with respect to the original property 
immediately prior to the transaction. Transactions subject to this 
paragraph shall include, without limitation, reorganizations within the 
meaning of section 368(a), liquidations under section 332, transfers to 
a corporation under section 351, transfers to a partnership under 
section 721, transfers to a trust, distributions by a partnership, 
distributions by a trust, or transfers to or from a qualified business 
unit, office or other fixed place of business. A person may have a 
principal purpose of affecting loss allocation even though this purpose 
is outweighed by other purposes (taken together or separately).
    (ii) Offsetting positions. If a taxpayer recognizes loss with 
respect to stock and the taxpayer (or any person described in section 
267(b) (after application of section 267(c)), 267(e), 318 or 482 with 
respect to the taxpayer) holds (or held) offsetting positions with 
respect to such stock with a principal purpose of recognizing foreign 
source income and United States source loss, the loss will be allocated 
and apportioned against such foreign source income. For purposes of 
this paragraph (b)(4)(ii), positions are offsetting if the risk of loss 
of holding one or more positions is substantially diminished by holding 
one or more other positions.
    (iii) Matching rule. [Reserved] For further guidance, see 
Sec. 1.865-2T(b)(4)(iii).
    (iv) Examples. The application of this paragraph (b)(4) may be 
illustrated by the following examples. No inference is intended 
regarding the application of any other Internal Revenue Code section or 
judicial doctrine that may apply to disallow or defer the recognition 
of loss. The examples are as follows:

    Example 1. (i) Facts. On January 1, 2000, P, a domestic 
corporation, owns all of the stock of N1, a controlled foreign 
corporation, which owns all of the stock of N2, a controlled foreign 
corporation. N1's basis in the stock of N2 exceeds its fair market 
value, and any loss recognized by N1 on the sale of N2 would be 
allocated under paragraph (a)(1) of this section to reduce foreign 
source passive limitation earnings and profits of N1. In 
contemplation of the sale of N2 to an unrelated purchaser, P causes 
N1 to liquidate with principal purposes of recognizing the loss on 
the N2 stock and allocating the loss against U.S. source income. P 
sells the N2 stock and P recognizes a loss.
    (ii) Loss allocation. Because one of the principal purposes of 
the liquidation was to transfer the stock to P in order to change 
the allocation of the built-in loss on the N2 stock, under paragraph 
(b)(4)(i) of this section the loss is allocated against P's foreign 
source passive limitation income.
    Example 2. (i) Facts. On January 1, 2000, P, a domestic 
corporation, forms N and F, foreign corporations, and contributes 
$1,000 to the capital of each. N and F enter into offsetting 
positions in financial instruments that produce financial services 
income. Holding the N stock substantially diminishes P's risk of 
loss with respect to the F stock (and vice versa). P holds N and F 
with a principal purpose of recognizing foreign source income and 
U.S. source loss. On March 31, 2000, when the financial instrument 
held by N is worth $1,200 and the financial instrument held by F is 
worth $800, P sells its F stock and recognizes a $200 loss.
    (ii) Loss allocation. Because P held an offsetting position with 
respect to the F stock with a principal purpose of recognizing 
foreign source income and U.S. source loss, the $200 loss is 
allocated against foreign source financial services income under 
paragraph (b)(4)(ii) of this section.

    (c) Loss recognized by partnership. A partner's distributive share 
of loss recognized by a partnership shall be allocated and apportioned 
in accordance with this section as if the partner had recognized the 
loss. If loss is attributable to an office or other fixed place of 
business of the partnership within the meaning of section 865(e)(3), 
such office or fixed place of business shall be considered to be an 
office of the partner for purposes of this section.
    (d) Definitions--(1) Terms defined in Sec. 1.861-8. See Sec. 1.861-
8 for the meaning of class of gross income, statutory grouping of gross 
income, and residual grouping of gross income.
    (2) Dividend recapture amount. A dividend recapture amount is a 
dividend (except for an amount treated as a dividend under section 78), 
an inclusion described in section 951(a)(1)(A)(i) (but only to the 
extent attributable to a dividend (including a dividend under section 
964(e)(1)) included in the earnings of a controlled foreign corporation 
(held directly or indirectly by the person recognizing the loss) that 
is included in foreign personal holding company income under section 
954(c)(1)(A)) and an inclusion described in section 951(a)(1)(B).
    (3) Recapture period. A recapture period is the 24-month period 
preceding the date on which a taxpayer recognizes a loss with respect 
to stock, increased by any period of time in which the taxpayer has 
diminished its risk of loss in a manner described in section 246(c)(4) 
and the regulations thereunder and by any period in which the assets of 
the corporation are hedged against risk of loss with a principal 
purpose of enabling the taxpayer to hold the stock without significant 
risk of loss until the recapture period has expired.
    (4) United States resident. See section 865(g) and the regulations 
thereunder for the definition of United States resident.
    (e) Effective date--(1) In general. This section is effective for 
loss recognized on or after January 11, 1999. For purposes of this 
paragraph (e), loss that is recognized but deferred (for example, under 
section 267 or 1092) shall be treated as recognized at the time the 
loss is taken into account.
    (2) Application to prior periods. A taxpayer may apply the rules of 
this section to losses recognized in any taxable year beginning on or 
after January 1, 1987, and all subsequent years, provided that--
    (i) The taxpayer's tax liability as shown on an original or amended 
tax return is consistent with the rules of this section and Sec. 1.865-
2T for each such year for which the statute of limitations does not 
preclude the filing of an amended return on June 30, 1999; and
    (ii) The taxpayer makes appropriate adjustments to eliminate any 
double benefit arising from the application of this section to years 
that are not open for assessment.
    (3) Examples. The rules of this paragraph (e) may be illustrated by 
the following examples:

    Example 1. (i) P, a domestic corporation, has a calendar taxable 
year. On March 10, 1985, P recognizes a $100 capital loss on the 
sale of N, a foreign corporation. Pursuant to sections 1211(a) and 
1212(a), the loss is not allowed in 1985 and is carried over to the 
1990 taxable year. The loss is allocated

[[Page 1514]]

against foreign source income under Sec. 1.861-8(e)(7). In 1999, P 
chooses to apply this section to all losses recognized in its 1987 
taxable year and in all subsequent years.
    (ii) Allocation of the loss on the sale of N is not affected by 
the rules of this section because the loss was recognized in a 
taxable year that did not begin after December 31, 1986.
    Example 2. (i) P, a domestic corporation, has a calendar taxable 
year. On March 10, 1988, P recognizes a $100 capital loss on the 
sale of N, a foreign corporation. Pursuant to sections 1211(a) and 
1212(a), the loss is not allowed in 1988 and is carried back to the 
1985 taxable year. The loss is allocated against foreign source 
income under Sec. 1.861-8(e)(7) on P's federal income tax return for 
1985 and increases an overall foreign loss account under 
Sec. 1.904(f)-1.
    (ii) In 1999, P chooses to apply this section to all losses 
recognized in its 1987 taxable year and in all subsequent years. 
Consequently, the loss on the sale of N is allocated against U.S. 
source income under paragraph (a)(1) of this section. Allocation of 
the loss against U.S. source income reduces P's overall foreign loss 
account and increases P's tax liability in 2 years: 1990, a year 
that will not be open for assessment on June 30, 1999, and 1997, a 
year that will be open for assessment on June 30, 1999. Pursuant to 
paragraph (e)(2)(i) of this section, P must file an amended federal 
income tax return that reflects the rules of this section for 1997, 
but not for 1990.
    Example 3. (i) P, a domestic corporation, has a calendar taxable 
year. On March 10, 1989, P recognizes a $100 capital loss on the 
sale of N, a foreign corporation. The loss is allocated against 
foreign source income under Sec. 1.861-8(e)(7) on P's federal income 
tax return for 1989 and results in excess foreign tax credits for 
that year. The excess credit is carried back to 1988, pursuant to 
section 904(c). In 1999, P chooses to apply this section to all 
losses recognized in its 1989 taxable year and in all subsequent 
years. On June 30, 1999, P's 1988 taxable year is closed for 
assessment, but P's 1989 taxable year is open with respect to claims 
for refund.
    (ii) Because P chooses to apply this section to its 1989 taxable 
year, the loss on the sale of N is allocated against U.S. source 
income under paragraph (a)(1) of this section. Allocation of the 
loss against U.S. source income would have permitted the foreign tax 
credit to be used in 1989, reducing P's tax liability in 1989. 
Nevertheless, under paragraph (e)(2)(ii) of this section, because 
the credit was carried back to 1988, P may not claim the foreign tax 
credit in 1989.

    Par. 6. Section 1.865-2T is added immediately after Sec. 1.865-2, 
to read as follows:


Sec. 1.865-2T  Loss with respect to stock (Temporary).

    (a) through (b)(4)(ii) [Reserved] For further guidance, see 
Sec. 1.865-2(a) through (b)(4)(ii).
    (b)(4)(iii) Matching rule. To the extent a taxpayer (or a person 
described in section 1059(c)(3)(C) with respect to the taxpayer) 
recognizes foreign source income for tax purposes that results in the 
creation of a corresponding loss with respect to stock, the loss shall 
be allocated and apportioned against such income. This paragraph 
(b)(4)(iii) shall not apply to the extent a loss is related to a 
dividend recapture amount and Sec. 1.865-2(b)(1)(ii) (de minimis 
exception) or (b)(1)(iii) (passive dividend exception) exempts the loss 
from Sec. 1.865-2(b)(1)(i) (dividend recapture rule), unless the stock 
is held with a principal purpose of producing foreign source income and 
corresponding loss.
    (iv) Examples. The application of this paragraph (b)(4) may be 
illustrated by the following examples. No inference is intended 
regarding the application of any other Internal Revenue Code section or 
judicial doctrine that may apply to disallow or defer the recognition 
of loss. The examples are as follows:

    Examples 1 and 2. [Reserved] For further guidance, see 
Sec. 1.865-2(b)(4)(iv).
    Example 3. (i) Facts. On January 1, 1999, P and Q, domestic 
corporations, form R, a domestic partnership. The corporations and 
partnership use the calendar year as their taxable year. P 
contributes $900 to R in exchange for a 90-percent partnership 
interest and Q contributes $100 to R in exchange for a 10-percent 
partnership interest. R purchases a dance studio in country X for 
$1,000. On January 2, 1999, R enters into contracts to provide dance 
lessons in Country X for a 5-year period beginning January 1, 2000. 
These contracts are prepaid by the dance studio customers on 
December 31, 1999, and R recognizes foreign source taxable income of 
$500 from the prepayments (R's only income in 1999). P takes into 
income its $450 distributive share of partnership taxable income. On 
January 1, 2000, P's basis in its partnership interest is $1,350 
($900 from its contribution under section 722, increased by its $450 
distributive share of partnership income under section 705). On 
September 22, 2000, P contributes its R partnership interest to S, a 
newly-formed domestic corporation, in exchange for all the stock of 
S. Under section 358, P's basis in S is $1,350. On December 1, 2000, 
P sells S to an unrelated party for $1050 and recognizes a $300 
loss.
    (ii) Loss allocation. Because P recognized foreign source income 
for tax purposes that resulted in the creation of a corresponding 
loss with respect to the S stock, the $300 loss is allocated against 
foreign source income under paragraph (b)(4)(iii) of this section.
    Example 4. (i) Facts. On January 1, 2000, P, a domestic 
corporation that uses the calendar year as its taxable year forms N, 
a foreign corporation. P contributes $1,000 to the capital of N in 
exchange for 100 shares of common stock. P contributes an additional 
$1,000 to the capital of N in exchange for 100 shares of preferred 
stock. Each preferred share is entitled to 15-percent dividend but 
is redeemable by N on or after January 1, 2010, for $1. Prior to 
January 10, 2005, P receives a total of $750 of distributions from N 
with respect to its preferred shares, which P treats as foreign 
source general limitation dividends. On January 10, 2005, P sells 
its 100 preferred shares in N to an unrelated purchaser for $600. 
Assume that this arrangement is not recharacterized under Notice 97-
21 (1997-1 C.B. 407).
    (ii) Loss allocation. Because P recognized foreign source income 
for tax purposes that resulted in the creation of a corresponding 
loss with respect to the N stock, the $400 loss is allocated against 
foreign source general limitation income under paragraph (b)(4)(iii) 
of this section.
    Example 5. (i) Facts. On January 1, 2000, P, a domestic 
corporation that uses the calendar year as its taxable year, and F, 
a newly-formed controlled foreign corporation wholly-owned by P, 
form N, a foreign corporation. P contributes $1,000 to the capital 
of N in exchange for 100 shares of common stock and $1,000 to the 
capital of F in exchange for 100 shares of common stock. F 
contributes LC1,000 to the capital of N in exchange for 100 shares 
of preferred stock. Each preferred share is entitled to a 65-percent 
LC dividend. At the time of the contributions, $1=LC1. The LC is 
expected to depreciate significantly in relation to the U.S. dollar. 
Prior to June 10, 2005, P receives a total of $1,900 of 
distributions from F, which it treats as foreign source general 
limitation dividends. On June 10, 2005, the N preferred stock has a 
fair market value of $25 and P sells F for $25 to an unrelated 
person. Assume that this arrangement is not recharacterized under 
Notice 97-21 (1997-1 C.B. 407).
    (ii) Loss allocation. Because P recognized foreign source income 
for tax purposes that resulted in the creation of a corresponding 
loss with respect to the F stock, the $975 loss is allocated against 
foreign source general limitation income under paragraph (b)(4)(iii) 
of this section.
    Example 6. (i) Facts. On January 1, 1998, P, a domestic 
corporation, purchases N, a foreign corporation, for $1000. On March 
1, 1998, N sells its operating assets, distributes a $400 general 
limitation dividend to P, and invests its remaining $600 in short 
term government securities. N earns interest income from the 
securities. The income constitutes subpart F income that is included 
in P's income under section 951, increasing P's basis in the N stock 
under section 961(a). On March 1, 2002, P sells N and recognizes a 
$400 loss.
    (ii) Loss allocation. The $400 dividend received by P resulted 
in a $400 built-in loss in the N stock, which was locked in for P's 
four-year holding period. Because P recognized foreign source income 
for tax purposes that resulted in the creation of a corresponding 
loss with respect to the N stock, under paragraph (b)(4)(iii) of 
this section the $400 loss is allocated against foreign source 
general limitation income.

    (e) Effective date--(1) In general. This section is effective 
for loss recognized on or after January 11, 1999. For purposes of 
this paragraph (e), loss that is recognized but deferred (for 
example, under section 267 or 1092) shall be treated as recognized 
at the time the loss is taken into account. This

[[Page 1515]]

section shall cease to be effective January 8, 2002.
    (2) Application to prior periods. A taxpayer may apply the rules 
of this section to losses recognized in any taxable year beginning 
on or after January 1, 1987, and all subsequent years, provided 
that--
    (i) The taxpayer's tax liability as shown on an original or 
amended tax return is consistent with the rules of this section and 
Sec. 1.865-2 for each such year for which the statute of limitations 
does not preclude the filing of an amended return on June 30, 1999; 
and
    (ii) The taxpayer makes appropriate adjustments to eliminate any 
double benefit arising from the application of this section to years 
that are not open for assessment.
    Par. 7. Section 1.904-0 is amended by revising the entry for 
Sec. 1.904-4(c)(2)(i) and (ii) and adding entries for paragraphs 
(c)(2)(i)(A), (c)(2)(i)(B), (c)(2)(ii)(A) and (c)(2)(ii)(B) to read 
as follows:


Sec. 1.904-0  Outline of regulation provisions for section 904.

* * * * *

Sec. 1.904-4  Separate application of section 904 with respect to 
certain categories of income.

* * * * *
    (c) * * *
    (2) * * *
    (i) Effective dates.
    (A) In general.
    (B) Application to prior periods.
    (ii) Grouping rules.
    (A) Initial allocation and apportionment of deductions and 
taxes.
    (B) Reallocation of loss groups.
* * * * *
    Par. 8. Section 1.904-4 is amended by:
    1. Revising paragraphs (c)(1) and (c)(2),
    2. Revising paragraph (c)(3)(iii),
    3. Adding paragraph (c)(3)(iv), and
    4. Amending paragraph (c)(8) by adding Example 11, Example 12 and 
Example 13.
    5. The additions and revisions read as follows:


Sec. 1.904-4  Separate application of section 904 with respect to 
certain categories of income.

* * * * *
    (c) High-taxed income--(1) In general. Income received or accrued 
by a United States person that would otherwise be passive income shall 
not be treated as passive income if the income is determined to be 
high-taxed income. Income shall be considered to be high-taxed income 
if, after allocating expenses, losses and other deductions of the 
United States person to that income under paragraph (c)(2)(ii) of this 
section, the sum of the foreign income taxes paid or accrued by the 
United States person with respect to such income and the foreign taxes 
deemed paid or accrued by the United States person with respect to such 
income under section 902 or section 960 exceeds the highest rate of tax 
specified in section 1 or 11, whichever applies (and with reference to 
section 15 if applicable), multiplied by the amount of such income 
(including the amount treated as a dividend under section 78). If, 
after application of this paragraph (c), income that would otherwise be 
passive income is determined to be high-taxed income, such income shall 
be treated as general limitation income, and any taxes imposed on that 
income shall be considered related to general limitation income under 
Sec. 1.904-6. If, after application of this paragraph (c), passive 
income is zero or less than zero, any taxes imposed on the passive 
income shall be considered related to general limitation income. For 
additional rules regarding losses related to passive income, see 
paragraph (c)(2) of this section. Income and taxes shall be translated 
at the appropriate rates, as determined under sections 986, 987 and 989 
and the regulations under those sections, before application of this 
paragraph (c). For purposes of allocating taxes to groups of income, 
United States source passive income is treated as any other passive 
income. In making the determination whether income is high-taxed, 
however, only foreign source income, as determined under United States 
tax principles, is relevant. See paragraph (c)(8) Examples 10 through 
13 of this section for examples illustrating the application of this 
paragraph (c)(1) and paragraph (c)(2) of this section.
    (2) Grouping of items of income in order to determine whether 
passive income is high-taxed income--(i) Effective dates--(A) In 
general. For purposes of determining whether passive income is high-
taxed income, the grouping rules of paragraphs (c)(3)(i) and (ii), 
(c)(4), and (c)(5) of this section apply to taxable years beginning 
after December 31, 1987. Except as provided in paragraph (c)(2)(i)(B) 
of this section, the rules of paragraph (c)(3)(iii) apply to taxable 
years beginning after December 31, 1987, and ending before December 31, 
1998, and the rules of paragraph (c)(3)(iv) apply to taxable years 
ending on or after December 31, 1998. See Notice 87-6 (1987-1 C.B.417) 
for the grouping rules applicable to taxable years beginning after 
December 31, 1986 and before January 1, 1988. The fourth sentence of 
paragraph (c)(2)(ii)(A) and paragraph (c)(2)(ii)(B) of this section are 
effective for taxable years beginning after March 12, 1999.
    (B) Application to prior periods. A taxpayer may apply the rules of 
paragraph (c)(3)(iv) to any taxable year beginning after December 31, 
1991, and all subsequent years, provided that--
    (1) The taxpayer's tax liability as shown on an original or amended 
tax return is consistent with the rules of this section for each such 
year for which the statute of limitations does not preclude the filing 
of an amended return on June 30, 1999; and
    (2) The taxpayer makes appropriate adjustments to eliminate any 
double benefit arising from the application of this section to years 
that are not open for assessment.
    (ii) Grouping rules--(A) Initial allocation and apportionment of 
deductions and taxes. For purposes of determining whether passive 
income is high-taxed, expenses, losses and other deductions shall be 
allocated and apportioned initially to each of the groups of passive 
income (described in paragraphs (c)(3), (4), and (5) of this section) 
under the rules of Secs. 1.861-8 through 1.861-14T and 1.865-1T through 
1.865-2T. Taxpayers that allocate and apportion interest expense on an 
asset basis may nevertheless apportion passive interest expense among 
the groups of passive income on a gross income basis. Foreign taxes are 
allocated to groups under the rules of Sec. 1.904-6(a)(iii). If a loss 
on a disposition of property gives rise to foreign tax (i.e., the 
transaction giving rise to the loss is treated under foreign law as 
having given rise to a gain), the foreign tax shall be allocated to the 
group of passive income to which gain on the sale would have been 
assigned under paragraph (c)(3) or (4) of this section. A determination 
of whether passive income is high-taxed shall be made only after 
application of paragraph (c)(2)(ii)(B) of this section (if applicable).
    (B) Reallocation of loss groups. If, after allocation and 
apportionment of expenses, losses and other deductions under paragraph 
(c)(2)(ii)(A) of this section, the sum of the allocable deductions 
exceeds the gross income in one or more groups, the excess deductions 
shall proportionately reduce income in the other groups (but not below 
zero).
    (3) * * *
    (iii) For taxable years ending before December 31, 1998 (except as 
provided in paragraph (c)(2)(i)(B) of this section), all passive income 
received during the taxable year that is subject to no withholding tax 
shall be treated as one item of income.

[[Page 1516]]

    (iv) For taxable years ending on or after December 31, 1998, all 
passive income received during the taxable year that is subject to no 
withholding tax or other foreign tax shall be treated as one item of 
income, and all passive income received during the taxable year that is 
subject to no withholding tax but is subject to a foreign tax other 
than a withholding tax shall be treated as one item of income.
* * * * *
    (8) * * *

    Example 11. In 2001, P, a U.S. citizen with a tax home in 
Country X, earns the following items of gross income: $400 of 
foreign source, passive limitation interest income not subject to 
foreign withholding tax but subject to Country X income tax of $100, 
$200 of foreign source, passive limitation royalty income subject to 
a 5 percent foreign withholding tax (foreign tax paid is $10), 
$1,300 of foreign source, passive limitation rental income subject 
to a 25 percent foreign withholding tax (foreign tax paid is $325), 
$500 of foreign source, general limitation income that gives rise to 
a $250 foreign tax, and $2,000 of U.S. source capital gain that is 
not subject to any foreign tax. P has a $900 deduction allocable to 
its passive rental income. P's only other deduction is a $700 
capital loss on the sale of stock that is allocated to foreign 
source passive limitation income under Sec. 1.865-2(a)(3)(i). The 
$700 capital loss is initially allocated to the group of passive 
income subject to no withholding tax but subject to foreign tax 
other than withholding tax. The $300 amount by which the capital 
loss exceeds the income in the group must be reapportioned to the 
other groups under paragraph (c)(2)(ii)(B) of this section. The 
royalty income is thus reduced by $100 to $100 ($200 - ($300  x  
(200/600))) and the rental income is thus reduced by $200 to $200 
($400 - ($300  x  (400/600))). The $100 royalty income is not high-
taxed and remains passive income because the foreign taxes do not 
exceed the highest United States rate of tax on that income. Under 
the high-tax kick-out, the $200 of rental income and the $325 of 
associated foreign tax are assigned to the general limitation 
category.
    Example 12. The facts are the same as in Example 11 except the 
amount of the capital loss that is allocated under Sec. 1.865-
2(a)(3)(i) and paragraph (c)(2) of this section to the group of 
foreign source passive income subject to no withholding tax but 
subject to foreign tax other than withholding tax is $1,200. Under 
paragraph (c)(2)(ii)(B) of this section, the excess deductions of 
$800 must be reapportioned to the $200 of net royalty income subject 
to a 5 percent withholding tax and the $400 of net rental income 
subject to a 15 percent or greater withholding tax. The income in 
each of these groups is reduced to zero, and the foreign taxes 
imposed on the rental and royalty income are considered related to 
general limitation income. The remaining loss of $200 constitutes a 
separate limitation loss with respect to passive income.
    Example 13. In 2001, P, a domestic corporation, earns a $100 
dividend that is foreign source passive limitation income subject to 
a 30-percent withholding tax. A foreign tax credit for the 
withholding tax on the dividend is disallowed under section 901(k). 
A deduction for the tax is allowed, however, under sections 164 and 
901(k)(7). In determining whether P's passive income is high-taxed, 
the $100 dividend and the $30 deduction are allocated to the first 
group of income described in paragraph (c)(3)(iv) of this section 
(passive income subject to no withholding tax or other foreign tax).
* * * * *
Robert E. Wenzel,
Deputy Commissioner of Internal Revenue.

    Approved: December 15, 1998.
Donald C. Lubick,
Assistant Secretary of the Treasury.
[FR Doc. 99-149 Filed 1-8-99; 8:45 am]
BILLING CODE 3830-01-U