[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Proposed Rules]
[Pages 4374-4379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1787]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-104924-98]
RIN 1545-AW06


Mark-to-Market Accounting for Dealers in Commodities and Traders 
in Securities or Commodities

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

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SUMMARY: This document contains proposed regulations for dealers in 
commodities and traders in securities or commodities regarding the 
election to use the mark-to-market method of accounting for their 
businesses. Section 1001(b) of the Taxpayer Relief Act of 1997 amended 
the applicable tax law for these taxpayers. This document also contains 
proposed regulations providing guidance on statutory changes to section 
475 contained in the Internal Revenue Service Restructuring and Reform 
Act of 1998 (IRS Restructuring Act). This guidance is necessary because 
section 7003 of the IRS Restructuring Act generally prohibited the 
application of mark-to-market accounting to nonfinancial customer 
paper. Among other things, the proposed regulations provide guidance to 
taxpayers who are using mark-to-market accounting for nonfinancial 
customer paper. This document also provides notice of a public hearing 
on these proposed regulations.

DATES: Written comments and outlines of topics to be discussed at the 
public hearing scheduled for June 3, 1999, at 10 a.m. must be received 
by May 13, 1999.

ADDRESSES: Send submissions to CC:DOM:CORP:R (REG-104924-98), room 
5226, Internal Revenue Service, POB 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand delivered Monday through 
Friday between the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (REG-
104924-98), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue, NW., Washington, DC. Alternatively, taxpayers may submit 
comments electronically via the Internet by selecting the ``Tax Regs'' 
option on the IRS Home Page, or by submitting comments directly to the 
IRS Internet site at http://www.irs.ustreas.gov/prod/tax_regs/
comments.html. The public hearing will be held in room 2615, Internal 
Revenue Building, 1111 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the regulations about 
elections by commodities dealers and securities and commodities 
traders, Jo Lynn Ricks, 202-622-3920; concerning the regulations about 
nonfinancial customer paper, Pamela Lew, 202-622-3950; concerning 
submissions and the hearing, Michael L. Slaughter, Jr., 202-622-7190 
(not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collection of information contained in this notice of proposed 
rulemaking has been submitted to the Office of Management and Budget 
for review in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)). Comments on the collection of information should be 
sent to the Office of Management and Budget, Attn: Desk Officer for the 
Department of Treasury, Office of Information and Regulatory Affairs, 
Washington, DC, 20503, with copies to the Internal Revenue Service, 
Attn: IRS Reports Clearance Officer, OP:FS:FP, Washington, DC 20224. 
Comments concerning the collection of information must be received by 
March 29, 1999.
    The first collection of information in this proposed regulation is 
described in the Explanation of Provisions section of this document 
(rather than being included in the text of the proposed regulations). 
That description indicates that the elections under section 475(e)(1) 
and (f)(1) and (2) may be required to be made on a form to be

[[Page 4375]]

developed by the IRS. This burden will be reflected on that new form.
    The second collection of information in this proposed regulation is 
in Secs. 1.475(e)-1 and 1.475(f)-2. The information required to be 
recorded under Secs. 1.475(e)-1 and 1.475(f)-2 is required by the IRS 
to determine whether an exemption from mark-to-market accounting is 
properly claimed. This information will be used to make that 
determination upon audit of taxpayers' books and records. The likely 
recordkeepers are businesses or other for-profit institutions. 
Estimated total annual recordkeeping burden: 1,000 hours. The estimated 
annual burden per recordkeeper varies from 15 minutes to 3 hours, 
depending on individual circumstances, with an estimated average of 1 
hour. Estimated number of recordkeepers: 1,000.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a valid 
control number assigned by the Office of Management and Budget.
    Books or records relating to a collection of information must be 
retained as long as their contents may become material in the 
administration of any internal revenue law. Generally, tax returns and 
tax return information are confidential, as required by 26 U.S.C. 6103.

Background

    Section 475 provides that dealers in securities generally must use 
mark-to-market accounting for all securities. Exceptions from the mark-
to-market requirement are generally provided for securities not held 
for sale to customers and certain securities held as a hedge, provided 
that the securities are identified as exempt in a proper and timely 
manner.
    For purposes of section 475, a security includes any note, bond, 
debenture, or other evidence of indebtedness. Revenue Ruling 97-37 
(1997-39 I.R.B. 4), clarified that ``other evidence of indebtedness'' 
includes customer paper, commonly referred to as trade accounts 
receivable. The IRS provided procedures for a taxpayer to change its 
method of accounting for customer paper in Revenue Procedure 97-43 
(1997-39 I.R.B. 12).
    The IRS Restructuring Act modified the definition of security for 
purposes of section 475 to exclude nonfinancial customer paper. For 
this purpose, nonfinancial customer paper is any receivable arising out 
of the sale of nonfinancial goods or services by a person the principal 
activity of which is the selling or providing of nonfinancial goods or 
services if the receivable is held by that person (or a related person) 
at all times since its issuance. Section 475(c)(4), added by the IRS 
Restructuring Act, precludes a taxpayer from using mark-to-market 
accounting under section 475 for nonfinancial customer paper. In 
addition, the legislative history of the IRS Restructuring Act 
indicates that taxpayers may not account for nonfinancial customer 
paper using a mark-to-market or lower-of-cost-or-market method of 
accounting under other sections of the Code. See H.R. Conf. Rep. No. 
599, 105th Cong., 2d Sess. 353-54 (1998). Congress, however, authorized 
the Secretary to issue regulations describing situations where 
taxpayers must use mark-to-market accounting for nonfinancial customer 
paper in order to prevent taxpayers from using the exclusion in section 
475(c)(4) to avoid marking to market receivables that are inventory in 
the hands of the taxpayer or a related person.
    Section 475(e) and (f), added by section 1001(b) of the Taxpayer 
Relief Act of 1997, allows securities traders and commodities traders 
and dealers to elect mark-to-market accounting similar to that 
currently required for securities dealers. These provisions are 
effective for all taxable years ending after August 5, 1997, the date 
of enactment of the Taxpayer Relief Act. The proposed regulations 
clarify several issues relating to these elections, including the 
identification of securities and commodities as exempt from mark-to-
market accounting, the character of marked securities and commodities, 
and the time and manner for making the elections.

Explanation of Provisions

Nonfinancial Customer Paper

    Sections 1.446-1(c)(2)(iii), 1.471-12, and 1.475(c)-2(d) of the 
proposed regulations provide that taxpayers may not use mark-to-market 
or lower-of-cost-or-market accounting for any nonfinancial customer 
paper unless a regulation affirmatively provides that the nonfinancial 
customer paper is to be marked to market as inventory.
    The remaining proposed regulations pertaining to section 475(c)(4) 
are cross references or minor technical changes required by the 
addition of Sec. 1.475(c)-2(d).

Dealers in Commodities

    The proposed regulations generally provide that, except as provided 
in guidance prescribed by the Commissioner, the rules for mark-to-
market accounting for securities dealers apply to commodities dealers 
that make an election under section 475(e)(1) (electing commodities 
dealers). Comments are requested whether there are circumstances where 
the specific rules applicable to securities dealers should not be 
applied to electing commodities dealers.
    Under the proposed regulations, unless the Commissioner otherwise 
provides in a revenue ruling, revenue procedure, or letter ruling, the 
exemption from mark-to-market accounting for assets held for investment 
does not apply to a commodity derivative held by an electing dealer in 
commodities. If the rule described in the preceding sentence applies 
(and consequently requires a commodity derivative to be marked to 
market), the gain or loss is ordinary. The IRS and the Treasury 
Department believe that it would be extremely rare for a commodity 
derivative held by a commodities derivative dealer to be acquired other 
than in a dealer capacity. See Sec. 1.475(c)-1(a)(2). Moreover, the IRS 
and the Treasury Department believe that a dealer in physical 
commodities generally engages in derivatives activities that are 
virtually indistinguishable from its dealings in physical commodities. 
This situation invokes many of the practical concerns that led Congress 
to enact section 475(b)(4). The IRS and the Treasury Department welcome 
comments on whether, and under what circumstances, it may be 
appropriate for a dealer in physical commodities to identify commodity 
derivatives as held for investment.
    The proposed regulations also provide that, in all cases, if a 
dealer in commodities identifies a commodity as exempt from mark-to-
market accounting under section 475(b)(2), the identification is 
ineffective unless it is made before the close of the day on which the 
commodity was acquired, originated, or entered into. Thus, a rule 
similar to the 30-day identification rule for certain securities in 
Holding 8 of Rev. Rul. 97-39 (1997-39 I.R.B. 4), does not apply to 
commodities dealers.

Traders in Securities or Commodities

    The proposed regulations provide that the principles underlying the 
rules and administrative interpretations applicable to securities 
dealers also apply to electing traders, unless the proposed regulations 
or the Commissioner provides otherwise. The IRS and the Treasury 
Department request comments on whether there are circumstances under 
which a specific rule applicable to securities dealers

[[Page 4376]]

should not apply to electing securities traders.
    The proposed regulations provide rules for the identification of 
investment securities as exempt from mark-to-market accounting. The 
proposed regulations clarify that a trader in securities who elects 
mark-to-market accounting under section 475(f)(1) for its trading 
business (an electing trader) must identify, in accordance with section 
475(f)(1)(B)(ii), any security held other than in connection with the 
trading business.
    If the electing trader is also a dealer in securities, the trader 
need only identify under section 475(f)(1)(B)(ii) securities that are 
not held in connection with the trading business and that are also 
described in section 475(b)(1) (without regard to section 475(b)(2)). 
That is, the trader need not identify securities that could not 
properly be identified as being exempt from section 475(a).
    The IRS and the Treasury Department believe that in making the 
section 475 election available to securities traders, Congress did not 
want taxpayers selectively to mark to market some securities but 
selectively to identify other securities as exempt from this treatment. 
Congress addressed this concern by establishing a higher burden of 
proof for electing securities traders to identify securities as not 
subject to section 475 than is applicable to securities dealers. The 
IRS and the Treasury Department share this concern, particularly 
because it traditionally has been easier to distinguish investment 
securities from dealer securities than to distinguish investment 
securities from trading securities. Accordingly, the proposed 
regulations provide that in no event is the requirement of section 
475(f)(1)(B)(i) satisfied unless the electing trader demonstrates by 
clear and convincing evidence that a security has no connection to its 
trading activities. The IRS and Treasury Department request comments on 
whether any trader of securities could meet this burden and under what 
circumstances.
    In addition, the IRS and the Treasury Department seek comments on 
the manner in which securities are identified as not held in connection 
with trading activities and, in particular, comments that focus on the 
administrability of rules in this area.
    Because of the fungible nature of certain securities, the proposed 
regulations provide a special rule for identifying securities held 
other than in connection with the electing trader's trading business 
when the electing trader also trades other of the same or substantially 
similar securities. In this circumstance, the electing trader does not 
satisfy section 475(f)(1)(B)(i) unless the security is held in a 
separate, nontrading account maintained with a third party. The IRS and 
the Treasury Department are considering extending this special 
identification rule to all securities, rather than solely to those that 
are fungible, and request comments on the advisability of doing so.
    Under the proposed regulations, all identifications under section 
475(f)(1)(B)(ii) must be made on the same day the electing trader 
acquires, originates, or enters into the security. Thus, a rule similar 
to the 30-day identification rule for certain securities in Holding 8 
of Rev. Rul. 97-39 does not apply to electing traders.
    Because the principles of the rules and administrative 
interpretations applicable to securities dealers apply to electing 
traders, if an electing trader improperly identifies as exempt a 
security that is actually held in connection with that business, the 
gain or loss with respect to the security is ordinary, and the 
consequences described in section 475(d)(2) apply to the security 
(i.e., the security is marked to market and any losses realized with 
respect to the security prior to its disposition are recognized only to 
the extent of gain previously recognized with respect to the security). 
Similarly, under the proposed regulations, if an electing trader fails 
to identify a security that is not held in connection with its trading 
business, the consequences of section 475(d)(2) apply to the security, 
and the gain or loss with respect to the security is ordinary. 
Moreover, in the event of this failure, the Commissioner may 
nevertheless treat the security as if the requirements for exemption 
from mark-to-market accounting were satisfied.
    The proposed regulations further provide that the gain or loss with 
respect to a security that is marked to market under section 
475(f)(1)(A) is ordinary. Under this rule, if an electing trader 
disposes of a security before the close of the taxable year, proposed 
Sec. 1.475(a)-2 applies, and the gain or loss is ordinary income or 
loss. See sections 475(f)(1)(D) and 475(d)(3) and the legislative 
history to section 475(f). H.R. Rep. No. 148, 105th Cong., 1st Sess. 
445 (1997).
    Under the proposed regulations, the above rules for electing 
securities traders also apply to electing commodities traders. In 
addition, the proposed regulations provide a special character rule for 
traders in section 1256 commodity contracts who elect mark-to-market 
accounting for their businesses. For these traders, the proposed 
regulations clarify that the capital character rule of section 1256 
does not apply to these contracts and, thus, the gain or loss with 
respect to such contracts is ordinary.

Making the Elections

    The proposed regulations clarify that if a dealer in securities 
also has a securities or commodities trading business or a commodities 
dealing business, the dealer may make an election for that business.
    The proposed regulations also provide that the mark-to-market 
elections for dealers in commodities and for traders in securities or 
commodities must be made in the time and manner prescribed by the 
Commissioner. The IRS and the Treasury Department anticipate requiring 
taxpayers to make the election by filing a form, to be developed by the 
IRS, not later than 2\1/2\ months after the beginning of the taxable 
year for which the election is made. (See the Paperwork Reduction Act 
section of this preamble, which requests comments on the burden that 
may be imposed by this requirement.) Interim procedures are being 
provided in a revenue procedure.

Proposed Effective Dates

    The proposed regulations in Sec. 1.475(c)-2(d)(1) apply to every 
taxpayer who is required by section 475(c)(4) to cease using mark-to-
market accounting for nonfinancial customer paper. These regulations 
are applicable for all taxable years ending after July 22, 1998. 
Proposed Secs. 1.446-1(c)(2)(iii), 1.471-12, and 1.475(c)-2(d)(2) are 
applicable for all taxable years ending on or after January 28, 1999.
    The proposed regulations in Secs. 1.475(e)-1 and 1.475(f)-2 
generally apply to securities or commodities acquired on or after March 
1, 1999. The rules concerning the time and manner for making the mark-
to-market elections for commodities dealers and securities and 
commodities traders are generally applicable for taxable years ending 
on or after January 28, 1999.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in EO 12866. Therefore, 
a regulatory impact analysis is not required. It is hereby certified 
that the collection of information in these regulations will not have a 
significant economic impact on a substantial number of small entities. 
As previously noted, in those instances where a small entity elects to 
apply the rules in these regulations, the burden of the collection of 
information is not

[[Page 4377]]

significant. Accordingly, a Regulatory Flexibility Analysis is not 
required. Pursuant to section 7805(f), this notice of proposed 
rulemaking will be submitted to the Chief Counsel for Advocacy of the 
Small Business Administration for comment on its impact on small 
business.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments (a signed original 
and eight (8) copies) that are submitted timely to the IRS. The IRS and 
the Treasury Department specifically request comments on the clarity of 
the proposed regulations and how they can be made easier to understand. 
All comments will be available for public inspection and copying.
    A public hearing has been scheduled for June 3, 1999, beginning at 
10 a.m. in room 2615 of the Internal Revenue Building, 1111 
Constitution Avenue, NW., Washington, DC. Due to building security 
procedures, visitors must enter at the 10th Street entrance, located 
between Constitution and Pennsylvania Avenues, NW. In addition, all 
visitors must present photo identification to enter the building. 
Because of access restrictions, visitors will not be admitted beyond 
the immediate entrance area more than 15 minutes before the hearing 
starts. For information about having your name placed on the building 
access list to attend the hearing, see the FOR FURTHER INFORMATION 
CONTACT section of this preamble.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who 
wish to present oral comments at the hearing must submit written 
comments and an outline of the topics to be discussed and the time to 
be devoted to each topic (signed original and eight (8) copies) by May 
13, 1999. A period of 10 minutes will be allotted to each person for 
making comments. An agenda showing the scheduling of the speakers will 
be prepared after the deadline for receiving outlines has passed. 
Copies of the agenda will be available free of charge at the hearing.
    Drafting information. The principal authors of these regulations 
are Jo Lynn Ricks and Pamela Lew of the Office of Assistant Chief 
Counsel (Financial Institutions & Products). However, other personnel 
from the IRS and the Treasury Department participated in their 
development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by 
removing the entries for Secs. 1.475(a)-3 through 1.475(e)-1 and adding 
the following entries in numerical order to read as follows:

    Authority: 26 U.S.C. 7805 * * *
    Section 1.475(a)-3 also issued under 26 U.S.C. 475(g).
    Section 1.475(b)-1 also issued under 26 U.S.C. 475(b)(4) and 26 
U.S.C. 475(g).
    Section 1.475(b)-2 also issued under 26 U.S.C. 475(b)(2) and 26 
U.S.C. 475(g).
    Section 1.475(b)-4 also issued under 26 U.S.C. 475(b)(2), 26 
U.S.C. 475(g), and 26 U.S.C. 6001.
    Section 1.475(c)-1 also issued under 26 U.S.C. 475(g).
    Section 1.475(c)-2 also issued under 26 U.S.C. 475(g) and 26 
U.S.C. 860G(e).
    Section 1.475(d)-1 also issued under 26 U.S.C. 475(g).
    Section 1.475(e)-1 also issued under 26 U.S.C. 475(g).
    Section 1.475(f)-1 also issued under 26 U.S.C. 475(g).
    Section 1.475(f)-2 also issued under 26 U.S.C. 475(g).* * *

    Par. 2. In Sec. 1.446-1, paragraph (c)(2)(iii) is added to read as 
follows:


Sec. 1.446-1  General rule for methods of accounting.

* * * * *
    (c) * * *
    (2) * * *
    (iii) Section 475 is the exclusive authority on which a taxpayer 
may rely to use the mark-to-market method of accounting for 
nonfinancial customer paper, as defined in section 475(c)(4)(B). Thus, 
except to the extent provided in Sec. 1.475(c)-2(d), the mark-to-market 
method of accounting is not a permissible method of accounting for 
nonfinancial customer paper. In addition, the lower-of-cost-or-market 
method of accounting is not a permissible method of accounting for 
these assets. See Sec. 1.471-12. This paragraph (c)(2)(iii) applies to 
all tax years ending on or after January 28, 1999.
* * * * *
    Par. 3. Section 1.471-12 is added as follows:


Sec. 1.471-12  Nonfinancial customer paper.

    Nonfinancial customer paper, as defined in section 475(c)(4)(B), 
may not be treated as inventory except as provided in Sec. 1.475(c)-
2(d). This section applies to taxable years ending on or after January 
28, 1999.
    Par. 4. In Sec. 1.475(c)-1, paragraphs (b)(3)(i) and (b)(4)(ii) are 
revised to read as follows:


Sec. 1.475(c)-1  Definitions--dealer in securities.

* * * * *
    (b) * * *
    (3) * * *
    (i) For purposes of section 471, the taxpayer accounts for any 
security (as defined in section 475(c)) as inventory;
* * * * *
    (4) * * *
    (ii) Continued applicability of an election.--(A) In general. 
Except as provided in paragraph (b)(4)(ii)(B) of this section, an 
election under this paragraph (b)(4) continues in effect for subsequent 
taxable years until revoked. The election may be revoked only with the 
consent of the Commissioner.
    (B) Taxable years ending after July 22, 1998. An election under 
this paragraph (b)(4) is ineffective for taxable years ending after 
July 22, 1998.
* * * * *
    Par. 5. In Sec. 1.475(c)-2, paragraph (d) is added to read as 
follows:


Sec. 1.475(c)-2  Definitions--security.

* * * * *
    (d) Inventory--(1) Nonfinancial customer paper is generally not 
marked to market under section 475. Except as provided in paragraph 
(d)(3) of this section, nonfinancial customer paper (as defined in 
section 475(c)(4)(B)) is not a security even if it is inventory.
    (2) Treatment of nonfinancial customer paper under other sections 
of the Internal Revenue Code. For nonfinancial customer paper that is 
not a security, the mark-to-market method of accounting and the lower-
of-cost-or-market method of accounting are not permissible methods of 
accounting. See Secs. 1.446-1(c)(2)(iii) and 1.471-12.
    (3) Nonfinancial customer paper treated as inventory. [Reserved]


Sec. 1.475(e)-1  [Redesignated as Sec. 1.475(g)-1]

    Par. 6. Section 1.475(e)-1 is redesignated as Sec. 1.475(g)-1.
    Par. 7. New Sec. 1.475(e)-1 and Secs. 1.475(f)-1 and 1.475(f)-2 are 
added to read as follows:


Sec. 1.475(e)-1  Election of mark-to-market accounting for dealers in 
commodities.

    (a) Time and manner of making election. An election under section 
475(e)(1) must be made in the time and manner prescribed by the 
Commissioner.
    (b) Application of securities dealer rules to electing commodities 
dealers. Except as otherwise provided in this

[[Page 4378]]

section or in other guidance prescribed by the Commissioner, the rules 
and administrative interpretations under section 475 for dealers in 
securities apply to dealers in commodities that make an election under 
section 475(e)(1).
    (c) Commodity derivatives deemed not held for investment--(1) In 
general. Except as otherwise determined by the Commissioner in a 
revenue ruling, revenue procedure, or letter ruling, if a dealer in 
commodities that made an election under section 475(e)(1) holds a 
commodity described in section 475(e)(2)(B) or (C) (describing certain 
notional principal contracts and commodity derivatives), section 
475(b)(1)(A) (exempting from mark-to-market accounting certain 
positions that are held for investment) does not apply to that 
commodity.
    (2) Character of commodity derivatives required to be marked to 
market. If a commodity is required to be marked to market because of 
the application of paragraph (c)(1) of this section, the gain or loss 
with respect to that commodity is ordinary.
    (d) Same day identification. An identification of a commodity as 
exempt from mark-to-market accounting under section 475(b)(2) is not 
effective unless it is made before the close of the day on which the 
commodity was acquired, originated, or entered into.


Sec. 1.475(f)-1  Procedures for electing mark-to-market accounting for 
traders.

    (a) Time and manner of making election. An election under section 
475(f)(1) or (2) must be made in the time and manner prescribed by the 
Commissioner.
    (b) Coordination with section 475(a). If a dealer in securities 
also has a securities or commodities trading business or a commodities 
dealing business, the dealer may make an election under section 
475(e)(1), (f)(1), or (f)(2) for that business.


Sec. 1.475(f)-2  Election of mark-to-market accounting for traders in 
securities or commodities.

    (a) Securities not held in connection with trading activities--(1) 
Taxpayer identification of investment securities. If a trader in 
securities makes an election under section 475(f)(1)(A) (electing 
trader) and holds a security other than in connection with that trading 
business, the electing trader must identify that security in accordance 
with section 475(f)(1)(B)(ii). If the electing trader is also a dealer 
in securities, however, the preceding sentence applies only to 
securities described in section 475(b)(1) (without regard to section 
475(b)(2)).
    (2) Satisfaction of Commissioner. In no event is the requirement of 
section 475(f)(1)(B)(i) satisfied unless the electing trader 
demonstrates by clear and convincing evidence that a security has no 
connection to its trading activities.
    (3) Substantially similar securities held for trading and 
investment. An electing trader that holds a security other than in 
connection with its trading business and also trades the same or 
substantially similar securities in no event satisfies the requirement 
of section 475(f)(1)(B)(i) unless the security is held in a separate, 
nontrading account maintained with a third party.
    (4) Consequences of failure to identify investment securities. If 
an electing trader holds a security that is not held in connection with 
its trading business and fails to identify the security in a manner 
that satisfies the requirements of section 475(f)(1)(B)(ii)--
    (i) The consequences described in section 475(d)(2) apply to the 
security; and
    (ii) The character of the gain or loss with respect to the security 
is ordinary.
    (5) Commissioner identification of investment securities. 
Notwithstanding paragraph (a)(4) of this section, the Commissioner may 
treat a security described in that paragraph as meeting the 
requirements of section 475(f)(1)(B)(i) and (ii).
    (b) Character of securities marked to market. The gain or loss with 
respect to a security that is marked to market under section 
475(f)(1)(A) is ordinary.
    (c) Application of securities dealer rules to electing traders. 
Except as otherwise provided in this section or in other guidance 
prescribed by the Commissioner, the principles of the rules and 
administrative interpretations under section 475 for dealers in 
securities apply to traders in securities that make an election under 
section 475(f)(1).
    (d) Same day identification. An identification of a security as 
exempt from mark-to-market accounting under section 475(f)(1)(B) is not 
effective unless it is made before the close of the day on which the 
security was acquired, originated, or entered into.
    (e) Application to traders in commodities--(1) General rule. If a 
trader in commodities makes an election under section 475(f)(2), 
paragraphs (a), (b), (c), and (d) of this section apply to the trader 
in the same manner that they apply to a trader in securities who makes 
an election under section 475(f)(1).
    (2) Coordination with section 1256. If a trader in commodities 
makes an election under section 475(f)(2) and trades section 1256 
contracts that are commodities as defined in section 475(e)(2), then 
the rules of section 475(f) and paragraph (e)(1) of this section apply 
to those contracts, and not the capital character rules of section 
1256.
    Par. 8. Newly designated Sec. 1.475(g)-1 is amended by revising 
paragraphs (h)(2) and (i) and adding paragraphs (k), (l), and (m) to 
read as follows:


Sec. 1.475(g)-1  Effective dates.

* * * * *
    (h) * * *
    (2) Section 1.475(c)-1(b) (concerning sellers of nonfinancial goods 
and services) applies as follows:
    (i) Except as otherwise provided in this paragraph (h)(2), 
Sec. 1.475(c)-1(b) applies to taxable years ending on or after December 
31, 1993.
    (ii) Section 1.475(c)-1(b)(4)(ii)(B) applies to taxable years 
ending after July 22, 1998.
* * * * *
    (i) Section 1.475(c)-2 (concerning the definition of security) 
applies as follows:
    (1) Section 1.475(c)-2(a), (b), and (c) (concerning the definition 
of security) applies to taxable years ending on or after December 31, 
1993. By its terms, however, Sec. 1.475(c)-2(a)(3) applies only to 
residual interests or to interests or arrangements acquired on or after 
January 4, 1995; and the integrated transactions that are referred to 
in Sec. 1.475(c)-2(a)(2) and (b) exist only after August 13, 1996 (the 
effective date of Sec. 1.1275-6).
    (2) Section 1.475(c)-2(d) applies as follows:
    (i) Section 1.475(c)-2(d)(1) applies to taxable years ending after 
July 22, 1998.
    (ii) Section 1.475(c)-2(d)(2) applies to taxable years ending on or 
after January 28, 1999.
* * * * *
    (k) Section 1.475(e)-1(a) (concerning the time and manner for 
making the mark-to-market election for dealers in commodities) applies 
to taxable years ending on or after January 28, 1999. Section 1.475(e)-
1(b), (c) and (d) applies to commodities acquired on or after March 1, 
1999.
    (l) Section 1.475(f)-1 (procedures for electing mark-to-market 
accounting for traders in securities or commodities) applies to taxable 
years ending on or after January 28, 1999.
    (m) Section 1.475(f)-2 (concerning the mark-to-market rules for 
traders in securities or commodities) applies to

[[Page 4379]]

securities or commodities acquired on or after March 1, 1999.
Robert E. Wenzel,
Deputy Commissioner of Internal Revenue.
[FR Doc. 99-1787 Filed 1-27-99; 8:45 am]
Billing Code 4830-01-U