[Federal Register Volume 64, Number 20 (Monday, February 1, 1999)]
[Proposed Rules]
[Pages 4801-4812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1515]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-209619-93]
RIN 1545-AR82


Escrow Funds and Other Similar Funds

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 relating to the 
designation of the person required to report the income earned on 
qualified settlement funds and certain other funds, trusts, and escrow 
accounts, and other related rules. The proposed regulations would 
affect qualified settlement funds, qualified escrow accounts and 
qualified trusts established in connection with deferred like-kind 
exchanges, escrow accounts established in connection with sales of 
property, disputed ownership funds, and parties to these escrow 
accounts, trusts, and funds. This document also provides notice of a 
public hearing on these proposed regulations.

DATES: Written comments must be received by May 3, 1999. Requests to 
speak and outlines of topics to be discussed at the public hearing 
scheduled for May 12, 1999, at 10 a.m., must be received by April 21, 
1999.

ADDRESSES: Send submissions to: CC:DOM:CORP:R (REG-209619-93), 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-
209619-93), 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, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Michael L. 
Gompertz of the Office of Assistant Chief Counsel (Income Tax & 
Accounting), (202) 622-4910; concerning submissions of comments, the 
hearing, and/or to be placed on the building access list to attend the 
hearing, Michael Slaughter, (202) 622-7190 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collections of information contained in this notice of proposed 
rulemaking have 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 collections of information should be 
sent to the Office of Management and Budget, Attn: Desk Officer for the 
Department of the 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 on the collections of information should be received by 
April 2, 1999. Comments are specifically requested concerning:
    Whether the proposed collections of information are necessary for 
the proper performance of the functions of the Internal Revenue 
Service, including whether the information will have practical utility;
    The accuracy of the estimated burden associated with the proposed 
collections of information (see below);
    How the quality, utility, and clarity of the information to be 
collected may be enhanced;
    How the burden of complying with the proposed collections of 
information may be minimized, including through the application of 
automated collection techniques or other forms of information 
technology; and
    Estimates of capital or start-up costs and costs of operation, 
maintenance, and purchase of service to provide information.
    The collections of information in this proposed regulation are in 
Secs. 1.468B-

[[Page 4802]]

1(k)(2), 1.468B-1(k)(3)(iv), 1.468B-6(e)(1), 1.468B-6(f), 1.468B-7(d), 
1.468B-8(f), 1.468B-8(g)(1), 1.468B-9(c)(1), and 1.468B-9(f)(3).
    The collections of information in Secs. 1.468B-1(k)(3)(iv), 1.468B-
6(e)(1), 1.468B-7(d), 1.468B-8(g)(1), and 1.468B-9(c)(1) are satisfied 
by including the required information on Forms 1099, 1041, 1120, or 
1120-SF. The burden for these requirements is reflected in the burden 
estimates for these forms.
    The other collections of information in this proposed regulation 
(in Secs. 1.468B-1(k)(2), 1.468B-6(f), 1.468B-8(f), and 1.468B-9(f)(3)) 
are discussed below.
    The collection of information in Sec. 1.468B-1(k)(2) is an election 
statement attached to a tax return filed for a qualified settlement 
fund (QSF). The statement notifies the IRS that the transferor to the 
QSF has elected grantor trust treatment for the QSF. This collection is 
required to obtain a benefit.
    The collections of information in Secs. 1.468B-6(f) and 1.468B-8(f) 
are statements that third parties must provide to an escrow holder, 
trustee, or administrator to enable the escrow holder, trustee, or 
administrator to properly report the income of an escrow account or 
trust on Form 1099. These collections are mandatory.
    The collection of information in Sec. 1.468B-9(f)(3) is a statement 
that a transferor must provide with respect to the transfer of cash or 
property to a disputed ownership fund. This collection is mandatory.
    The likely respondents are individuals, business or other for-
profit institutions, small businesses or organizations, nonprofit 
institutions, and government entities.
    Estimated total annual reporting burden: 4,650 hours.
    Estimated average annual burden per respondent: .5 hours.
    Estimated number of respondents: 9,300.
    Estimated annual frequency of responses: on occasion.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number assigned by the Office of 
Management and Budget.
    Books and 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

    This notice contains proposed amendments to the Income Tax 
Regulations (26 CFR part 1) under section 468B of the Internal Revenue 
Code. Section 468B was added to the Code by section 1807(a)(7)(A) of 
the Tax Reform Act of 1986 (Public Law 99-514, 100 Stat. 2814) and was 
amended by section 1018(f) of the Technical and Miscellaneous Revenue 
Act of 1988 (Public Law 100-647, 102 Stat. 3582). Section 468B(g) 
provides that nothing in any provision of law shall be construed as 
providing that an escrow account, settlement fund, or similar fund is 
not subject to current income tax. Section 468B(g) further provides 
that the Secretary shall prescribe regulations providing for the 
taxation of any such account or fund whether as a grantor trust or 
otherwise.
    On December 23, 1992, final regulations (TD 8459) under section 
468B(g) were published in the Federal Register (57 FR 60983). The 
regulations provide guidance concerning qualified settlement funds, but 
do not address other types of funds, escrow accounts, or trusts subject 
to current taxation under section 468B(g).
    Section 1.468B-1(c) defines a qualified settlement fund (QSF) as a 
fund, account, or trust meeting three requirements. A QSF is a separate 
taxpayer subject to tax on its modified gross income. QSF 
classification is not elective. The preamble to the QSF regulations 
(see 1993-1 C.B. 69) states that the IRS and the Treasury Department 
rejected an elective approach because it would result in inconsistent 
tax treatment for similar funds, claimants, or transferors, and 
accompanying complexity.
    The preamble to the QSF regulations also states (see 1993-1 C.B. 
73) that future regulations will address the tax treatment of funds, 
accounts, or trusts other than QSFs, specifically, escrow accounts used 
in the sale of property and section 1031 qualified escrow accounts.
    Section 1031(a)(3) was added to the Internal Revenue Code by 
section 77 of the Tax Reform Act of 1984 (Public Law 98-369, 98 Stat. 
595). On May 1, 1991, final regulations (TD 8346) under section 
1031(a)(3) were published in the Federal Register (56 FR 19933). These 
regulations were amended by final regulations (TD 8535) published in 
the Federal Register for April 20, 1994 (59 FR 18747). The regulations 
provide four safe harbors, the use of any of which will result in a 
determination that the taxpayer (i.e., the party transferring the 
property in the exchange) is not in actual or constructive receipt of 
money or other property for purposes of section 1031. In particular, 
the regulations provide that the taxpayer is not in actual or 
constructive receipt of money or other property held in a qualified 
escrow account or qualified trust. Section 1.1031(k)-1(g)(3) defines 
qualified escrow account and qualified trust.
    The regulations under section 1031(a)(3) do not address the 
taxation of income earned on a qualified escrow or qualified trust. The 
preamble to these regulations (see 1991-1 C.B. 154) states that this 
issue will be addressed in future regulations.

Explanation of Provisions

1. Election To Treat a QSF as a Grantor Trust Under Sec. 1.468B-1(k) of 
the Proposed Regulations

    The proposed regulations provide that if there is only one 
transferor to a QSF, the transferor is allowed to make an election that 
results in the QSF being treated as a grantor trust all of which is 
treated as owned by the transferor. In general, the election is made on 
a statement attached to the first Form 1041 filed on behalf of the QSF. 
The transferor may make a grantor trust election whether or not the 
requirements are otherwise satisfied for classification of the QSF as a 
grantor trust.
    In general, grantor trust treatment for a QSF is available under 
the proposed regulations only if the QSF is established after the date 
final regulations are published in the Federal Register. However, the 
proposed regulations provide a narrow exception applicable to any QSF 
established by the U.S. government on or before the date final 
regulations are published if the QSF would otherwise have been 
classified as a grantor trust in the absence of the QSF regulations 
(see Rev. Rul. 77-230 (1977-2 C.B. 214)). Under the exception, such a 
QSF will be automatically treated as a grantor trust for all taxable 
years and a grantor trust election is thus unnecessary. If a QSF is 
established after the date final regulations are published, a grantor 
trust election will be required in order for the QSF to be treated as a 
grantor trust. This rule applies whether or not the U.S. government is 
the grantor.

2. Section 1031 Qualified Escrow Accounts and Qualified Trusts Under 
Sec. 1.468B-6 of the Proposed Regulations

    In general, the proposed regulations treat the assets of a 
qualified escrow account or qualified trust established in connection 
with a deferred exchange

[[Page 4803]]

under section 1031(a)(3) as owned by the taxpayer, i.e., the party that 
transfers the relinquished property. Thus, the taxpayer is taxable on 
the income earned on these assets. However, if the transferee or the 
qualified intermediary has all the beneficial use and enjoyment of the 
assets of a qualified escrow account or qualified trust, then the 
assets of the escrow account or trust are treated as owned by the 
transferee or qualified intermediary, and the income earned on the 
assets is taxable to the transferee or qualified intermediary.
    Further, the proposed regulations require the escrow holder of a 
qualified escrow account or trustee of a qualified trust to report the 
income of the escrow account or trust on Forms 1099 to the extent the 
information reporting provisions of the Code otherwise require the 
filing of Forms 1099. In general, the taxpayer is treated as the payee 
of the income of the escrow account or trust unless the parties to the 
transaction provide a statement to the escrow holder or trustee 
indicating that the transferee or qualified intermediary is the payee. 
Such a statement must be provided if the transferee or qualified 
intermediary has all the beneficial use and enjoyment of the assets of 
the escrow account or trust.
    The proposed regulations provide that the escrow holder or trustee 
is not liable for penalties under sections 6721 and 6722 if the escrow 
holder or trustee relies on an incorrect statement provided to the 
escrow holder or trustee (see above) or relies on the parties' failure 
to provide such a statement.
    The proposed regulations also provide that if the transferee or the 
qualified intermediary has all the beneficial use and enjoyment of the 
assets of a qualified escrow account or trust, the deferred exchange 
may involve a below-market loan of these assets from the taxpayer to 
the transferee or qualified intermediary subject to the provisions of 
section 7872.

3. Pre-closing Escrows Under Sec. 1.468B-7 of the Proposed Regulations

    A pre-closing escrow is an escrow account, trust, or fund that 
satisfies five requirements. First, it must be established in 
connection with a sale or exchange of real or personal property. 
Second, it must be funded with a down payment, earnest money, or 
similar payment prior to the sale or exchange of the property (as 
determined for federal income tax purposes). Third, its assets must be 
used to secure the purchaser's obligation to pay the purchase price (in 
the case of an exchange of property, the term purchaser means the 
transferee of the property and the term purchase price means the 
required consideration for the property). Fourth, its assets (including 
income earned thereon) must be paid to the purchaser or otherwise used 
for the purchaser's benefit, for example, as a credit against the 
purchase price. Fifth, it must not be a qualified escrow or qualified 
trust established in connection with a deferred section 1031 exchange.
    The proposed regulations treat the assets of a pre-closing escrow 
as owned by the purchaser for federal income tax purposes. Thus, the 
income earned on the assets is taxable to the purchaser. The escrow 
holder, trustee, or other person responsible for administering a pre-
closing escrow must report the income of the escrow on Forms 1099 to 
the extent the information reporting provisions of the Code otherwise 
require the filing of Forms 1099.

4. Contingent At-closing Escrows Under Sec. 1.468B-8 of the Proposed 
Regulations

    The proposed regulations provide rules for taxing the income of a 
contingent at-closing escrow, which is an escrow account, trust, or 
fund satisfying three requirements. First, a contingent at-closing 
escrow must be established in connection with the sale or exchange of 
real or personal property used in a trade or business or held for 
investment (other than an exchange to which section 354, 355, or 356 
applies). Second, the assets of the escrow must be distributable to the 
purchaser or seller based on bona fide contingencies that will be 
resolved after the sale or exchange (as determined for federal income 
tax purposes). (If a contingent at-closing escrow is established in 
connection with an exchange of property, rather than a sale, the term 
purchaser refers to the transferee of the property and the term seller 
refers to the transferor of the property.) Thus, for example, the 
agreement between the parties may provide that all or a portion of the 
assets of the escrow are distributable to the purchaser if specified 
liabilities associated with the property arise within a specified 
period of time after closing or if certain earnings targets are not met 
by a specified date. Third, the escrow must not be a qualified escrow 
account or qualified trust established in connection with a deferred 
section 1031 exchange.
    Prior to the date (called the determination date) on which the 
specified events occur or fail to occur, thereby fixing the amounts 
payable from the escrow to the purchaser and seller, the proposed 
regulations provide that the assets of the escrow are treated as owned 
by the purchaser, and the income earned on the assets is thus taxable 
to the purchaser.
    Beginning on the determination date, the proposed regulations 
provide that the purchaser and the seller are taxable on the income of 
the escrow corresponding to their respective ownership interests in 
each asset of the escrow. Further, the proposed regulations require the 
purchaser and seller to provide the escrow holder, trustee, or other 
administrator of the escrow with a statement within 30 days of the 
determination date indicating what these ownership interests are. Also, 
the escrow holder, trustee, or other administrator is required to 
prepare Forms 1099 to report the income of a contingent at-closing 
escrow to the extent the information reporting provisions of the Code 
otherwise require the filing of Forms 1099.
    In preparing the Forms 1099, the escrow holder, trustee, or other 
administrator may rely on the statement (discussed above) provided to 
the administrator within 30 days of the determination date. Also, if 
the statement is not provided, the escrow holder, trustee, or other 
administrator may rely on the parties' failure to provide a statement 
and continue to treat the purchaser as the owner. The administrator's 
ability to rely on a statement, or its absence, protects the 
administrator from liability for penalties under sections 6721 and 
6722.

5. Disputed Ownership Funds Under Sec. 1.468B-9 of the Proposed 
Regulations

    A disputed ownership fund (DOF) is an escrow account, trust, or 
fund other than a QSF that satisfies three requirements. First, a DOF 
must be established to hold money or property subject to conflicting 
claims of ownership. Second, a DOF must be subject to the continuing 
jurisdiction of a court of law or equity. Third, money or property 
cannot be paid or distributed from a DOF to a claimant without court 
approval. An interpleader fund may qualify as a DOF.
    In general, a DOF is taxed under the proposed regulations as if it 
were a qualified settlement fund if all the DOF's assets are passive 
investment assets, for example, cash or cash equivalents, stock, and 
debt obligations. However, if the DOF holds assets other than passive 
investment assets (for example, real estate or business property the 
ownership of which is in dispute), the DOF is taxed as if it were a C 
corporation. The claimants to the fund may, however, submit a letter 
ruling request proposing an alternative method of taxation if they 
believe that

[[Page 4804]]

there is a more appropriate method of taxing a DOF than under the rules 
stated above.
    In addition to providing rules for the taxation of the income of a 
DOF, the proposed regulations also provide rules concerning the 
transfer of property to and from a DOF. In particular, a transfer of 
property to a DOF is not a sale or other disposition by the transferor 
under section 1001(a) if the transferor claims ownership of the 
transferred property. Also, a DOF is not allowed a deduction for a 
distribution of disputed property to a claimant and the distribution is 
not a taxable event to the DOF.

6. Request for Comments

    Comments are requested on the appropriate tax treatment of a fund, 
account, or trust that meets the requirements for more than one type of 
entity subject to the proposed regulations. Comments are also requested 
on the appropriate tax treatment of a fund, account, or trust that 
changes over time so that a different portion of the proposed 
regulations would apply to it. For example, an escrow initially may 
meet the requirements for a contingent at-closing escrow, but may 
subsequently satisfy the requirements for a DOF. This could occur if a 
dispute were to arise between the purchaser and the seller concerning 
their respective interests in the escrow after the determination date 
and the administrator of the DOF files an interpleader action to 
resolve the dispute.
    Comments are also requested concerning the appropriate tax 
treatment of a contingent-at-closing escrow if multiple contingencies 
are specified in the agreement between the purchaser and the seller. 
The proposed regulations provide that (1) the income of a contingent 
at-closing escrow is taxable entirely to the purchaser prior to the 
determination date, and (2) the determination date is the date on which 
(or by which) the last of the contingent events has either occurred or 
failed to occur. Therefore, if multiple contingencies are provided for 
in the agreement between the parties and some, but not all, of the 
contingencies have been resolved, the proposed regulations provide that 
the income of the escrow is taxable entirely to the purchaser (because 
the determination date has not yet occurred) regardless of the effect 
of the contingencies that have been resolved. The purchaser is thus 
taxed on all the income earned on the escrow even though it may be 
known (based on the resolution of one or more contingencies) that a 
fixed portion of the escrowed assets will be distributed to the seller. 
The proposed rule is simple and easy to administer because it treats 
the escrow in a unitary manner and avoids the need for multiple 
determination dates. Arguably, however, a more complex approach should 
be adopted involving a separate determination date for each 
contingency. Under the more complex approach, as each contingency is 
resolved, a new determination would be made concerning the taxation of 
the fund's income. The income earned on the fund's assets would be 
taxable to the purchaser and seller in accordance with their ownership 
interests as determined on each determination date as each separate 
contingency is resolved.
    Comments are also requested on the requirement that the assets of a 
contingent at-closing escrow must be distributable to the purchaser or 
seller based on bona fide contingencies that are resolved after the 
sale or exchange. Issues may arise as to whether a particular 
contingency is bona fide in at least two ways: whether the outcome is 
sufficiently in doubt and whether the effect of the outcome on the fund 
is significant. A contingency may not be bona fide if the parties can 
reasonably be expected to know the outcome, e.g., a contingency based 
on whether, in ten years, the consumer price index will be at least 
equal to the consumer price index today. In addition, a contingency may 
not be bona fide if the effect on the fund is minimal even though the 
outcome is uncertain.
    Finally, comments are requested regarding whether there are other 
types of funds for which rules under section 468B are required.

7. Proposed Effective Date

    In general, the regulations are proposed to be applicable for QSFs, 
qualified escrow accounts and qualified trusts, pre-closing escrows, 
contingent at-closing escrows, and DOFs established after the date 
final regulations are published in the Federal Register. However, the 
proposed regulations contain transition rules.

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 assessment is not required. It also has been determined 
that section 553(b) of the Administrative Procedure Act (5 U.S.C. 
chapter 5) does not apply to these regulations. Pursuant to section 
7805(f) of the Internal Revenue Code, 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. An initial regulatory flexibility analysis has been prepared 
for the collections of information contained in this notice of proposed 
rulemaking under 5 U.S.C. 603. The analysis is set forth below.

Initial Regulatory Flexibility Act Analysis

    The objective of the proposed regulations is to ensure that the 
income of certain escrow accounts, trusts, and funds is subject to 
current taxation by identifying the proper party or parties subject to 
tax and by requiring appropriate information reporting for the income 
of the escrow account, trust, or fund. Section 468B(g) provides the 
legal basis for the requirements of the proposed regulations. The IRS 
and Treasury Department are not aware of any federal rules that may 
duplicate, overlap, or conflict with the proposed regulations.
    An explanation is provided below of the burdens on small entities 
resulting from the requirements of the proposed regulations. Also, a 
description is provided of alternative rules that were considered by 
the IRS and the Treasury Department but rejected as too burdensome.

1. Grantor Trust Election Under Sec. 1.468B-1(k)

    Under Sec. 1.468B-1(k), the transferor to a QSF may elect to have 
the QSF treated as a grantor trust all of which is treated as owned by 
the transferor (grantor trust election). If the transferor makes the 
grantor trust election, the administrator of the QSF must file Form 
1041 rather than the QSF income tax return, Form 1120-SF.
    Approximately 900 QSF returns are filed each year. Only a small 
number of these returns are filed for newly created QSFs. Because a 
grantor trust election may be made only for the year in which a QSF is 
established, and may only be made for a QSF that has one transferor, 
the IRS and Treasury Department believe that a very small number of 
grantor trust elections will be made each year.
    Because of the availability of the grantor trust election, the 
proposed regulations provide a choice of filing Form 1041 or Form 1120-
SF in certain situations. Small entities may choose the filing 
requirement that is less burdensome.
    The alternative to the proposed regulations is to retain the 
current rules for QSFs and not provide qualifying taxpayers with the 
opportunity to make a grantor trust election.

[[Page 4805]]

2. Qualified Escrow Accounts and Qualified Trusts Established in 
Connection With Deferred Exchanges; Pre-closing Escrows; and Contingent 
At-Closing Escrows

    Sections 1.468B-6(e)(1), 1.468B-7(d), and 1.468B-8(g)(1) require 
specified escrow holders, trustees, and administrators to file Forms 
1099 with the IRS and furnish payee statements in accordance with the 
information reporting requirements of subpart B, Part III, subchapter 
A, chapter 61, Subtitle F of the Internal Revenue Code.
    Also, Sec. 1.468B-6(f) requires the parties to a qualified escrow 
account or qualified trust to provide a statement to the escrow holder 
or trustee if the qualified intermediary or transferee has all the 
beneficial use and enjoyment of the assets of the escrow account or 
trust. This statement facilitates the filing of Forms 1099 by the 
escrow holder or trustee.
    Similarly, Sec. 1.468B-8(f) requires the parties to a contingent 
at-closing escrow to provide statements to the escrow holder or other 
administrator. These statements facilitate the filing of Forms 1099 by 
the escrow holder or other administrator.
    The IRS and Treasury Department estimate that annually there are 
approximately 16,000 deferred exchange transactions involving the 
creation of a qualified escrow account or qualified trust; 
approximately 200,000 transactions involving the creation of a pre-
closing escrow; and approximately 10,000 transactions involving the 
creation of a contingent at-closing escrow.
    As an alternative to the proposed regulations, the IRS and the 
Treasury Department considered, but rejected as too burdensome, a rule 
that would have required the filing of grantor trust returns (Form 
1041) for qualified escrow accounts and qualified trusts, pre-closing 
escrows, and contingent at-closing escrows. Instead of requiring 
grantor trust returns, the proposed regulations require the filing of 
Forms 1099. This is less burdensome on small entities because, unlike 
Form 1041, Form 1099 is simple, does not require a signature, and 
requires only the reporting of gross income.
    Further, the IRS and the Treasury Department considered an 
alternative rule for contingent at-closing escrows under which the 
income of the escrow for the period before the determination date would 
have been taxable to the purchaser or the seller depending on the 
required tax treatment by the purchaser and seller of the principal 
amount deposited into the escrow. This alternative rule would not have 
provided certainty, would have required a difficult legal analysis 
(namely, the determination of the required tax treatment of the 
principal amount deposited into the escrow), and would have required 
the purchaser and seller to provide a signed statement to the 
administrator of the escrow identifying the party to whom the 
administrator should report the income for the period before the 
determination date. Under the proposed regulations, the income of the 
escrow is always taxable to the purchaser for the period before the 
determination date, thereby eliminating the need for a signed statement 
to be provided to the administrator and the need to determine the 
required tax treatment of the principal amount deposited into the 
escrow. This rule is simpler than the alternative.

3. Disputed Ownership Funds (DOFs)

    Section 1.468B-9(c)(1) of the proposed regulations generally 
provides that a DOF is taxable as a QSF if all its assets are passive 
investment assets or taxable as a C corporation in all other cases. 
However, the regulations also provide that if there is a more 
appropriate method of taxing a DOF, the claimants to the fund may 
request a private letter ruling to permit the use of that method.
    Section 1.468B-9(f)(3) of the proposed regulations requires that a 
transferor provide a statement to the administrator of a DOF that 
itemizes the cash or property transferred to the DOF during the 
calendar year. The statement must also indicate the DOF's basis and 
holding period in the property.
    The IRS and the Treasury Department estimate that annually there 
are approximately 5,000 transactions involving the creation of a 
disputed ownership fund.
    As an alternative to the proposed regulations, the IRS and the 
Treasury Department considered, but rejected as too burdensome, a rule 
that would have required all DOFs to file corporate income tax returns 
(Form 1120) regardless of the nature of the assets held by the DOF. 
This alternative was rejected because it was concluded that a QSF 
return (Form 1120-SF) is more appropriate than a corporate income tax 
return if all the assets of the DOF are passive investment assets. The 
proposed regulations thus impose less of an administrative burden on 
small entities than would have resulted from the alternative rule as 
Form 1120-SF is generally easier to prepare than Form 1120. Only DOFs 
that hold assets other than passive investment assets will be required 
to file Form 1120 under the proposed regulations. In addition, the 
proposed regulations provide taxpayers with the additional flexibility 
of being able to request an alternative method of taxation if that 
method is more appropriate than QSF or C corporation treatment as 
provided under the general rule.
    There are no known alternative rules that are less burdensome to 
small entities but that accomplish the purpose of the statute. The IRS 
and Treasury Department request comments from small entities concerning 
possible alternatives to these rules.

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) or electronic comments that are submitted timely 
(in the manner described in the ADDRESSES portion of the preamble) to 
the IRS. The IRS and Treasury Department request comments on the 
clarity of the proposed rules and how they can be made easier to 
understand. All comments will be available for public inspection and 
copying.
    A public hearing is scheduled for May 12, 1999, at 10 a.m. in Room 
2615, 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 by May 3, 1999 and submit an outline of the 
topics to be discussed and the time devoted to each topic (signed 
original and eight (8) copies) by April 21, 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.

[[Page 4806]]

Drafting Information

    The principal author of these proposed regulations is Michael L. 
Gompertz of the Office of Assistant Chief Counsel (Income Tax and 
Accounting). 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.

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 adding 
entries in numerical order to read as follows:

    Authority: 26 U.S.C. 7805 * * *
    Sec. 1.468B-6 also issued under 26 U.S.C. 468B.
    Sec. 1.468B-7 also issued under 26 U.S.C. 468B.
    Sec. 1.468B-8 also issued under 26 U.S.C. 468B.
    Sec. 1.468B-9 also issued under 26 U.S.C. 468B. * * *

    Par. 2. Section 1.468B-0 is amended as follows:
    1. The introductory text is revised.
    2. The entry for Sec. 1.468B-1, paragraph (k), is redesignated as 
paragraph (l).
    3. A new entry for Sec. 1.468B-1, paragraph (k), is added.
    4. The section heading in the entry for Sec. 1.468B-5 is revised.
    5. New entries are added for Secs. 1.468B-5, paragraph (c), 1.468B-
6, 1.468B-7, 1.468B-8, and 1.468B-9.
    6. The revised and added provisions read as follows:


Sec. 1.468B-0  Table of contents.

    This section lists the table of contents for Secs. 1.468B-1 through 
1.468B-9.

Sec. 1.468B-1  Qualified settlement funds.

* * * * *
    (k) Election to treat a qualified settlement fund as a subpart E 
trust.
    (1) In general.
    (2) Manner of making grantor trust election.
    (i) In general.
    (ii) Requirements for election statement.
    (3) Effect of making the election.
* * * * *

Sec. 1.468B-5  Effective dates and transition rules applicable to 
qualified settlement funds.

* * * * *
    (c) Grantor trust elections under Sec. 1.468B-1(k).
    (1) In general.
    (2) Qualified settlement funds established by the U.S. 
government on or before the date of publication of final regulations 
in the Federal Register.

Sec. 1.468B-6  Qualified escrow accounts and qualified trusts used 
in deferred exchanges of like-kind property under section 
1031(a)(3).

    (a) Scope.
    (b) Definitions.
    (c) Income of qualified escrow account or qualified trust.
    (1) In general.
    (2) Transferee or qualified intermediary has all the beneficial 
use and enjoyment of assets of a qualified escrow account or 
qualified trust.
    (d) Application of section 7872.
    (e) Reporting obligations of the escrow holder or trustee.
    (1) In general.
    (2) Person treated as payee.
    (3) Relief from penalties for filing incorrect information 
return or payee statement.
    (f) Statement provided to escrow holder or trustee.
    (g) Effective date.
    (1) In general.
    (2) Transition rule.
    (h) Examples.

Sec. 1.468B-7  Pre-closing escrows.

    (a) Scope.
    (b) Definition.
    (c) Taxation of pre-closing escrows.
    (d) Reporting obligations of the administrator.
    (e) Effective date.
    (1) In general.
    (2) Transition rule.
    (f) Example.

Sec. 1.468B-8  Contingent at-closing escrows.

    (a) Scope.
    (b) Definitions.
    (c) Tax liability of purchaser and seller for the period prior 
to the determination date.
    (d) Transfer of interest in the assets of the escrow on the 
determination date.
    (e) Tax liability of purchaser and seller for the period 
beginning on the determination date.
    (f) Statement required to be provided to administrator within 30 
days after the determination date.
    (g) Reporting obligations of the administrator.
    (1) In general.
    (2) Person treated as payee.
    (3) Relief from penalties for filing incorrect information 
return or payee statement.
    (h) Effective date.
    (1) In general.
    (2) Transition rule.
    (i) [Reserved]
    (j) Example.

Sec. 1.468B-9  Disputed ownership funds.

    (a) In general.
    (b) Definitions.
    (c) Taxation of a disputed ownership fund.
    (1) In general.
    (2) Exception.
    (3) Special rules.
    (d) Basis of property held by a disputed ownership fund.
    (e) Request for prompt assessment.
    (f) Rules applicable to the transferor.
    (1) Transfer of property.
    (i) In general.
    (ii) Exceptions.
    (2) Economic performance.
    (i) In general.
    (ii) Obligations of the transferor.
    (3) Statement to the disputed ownership fund and the Internal 
Revenue Service.
    (i) In general.
    (ii) Information required on statement.
    (A) In general.
    (B) Combined statements.
    (4) Distributions to transferors.
    (i) In general.
    (ii) Exception.
    (iii) Deemed distributions.
    (g) Distribution to a claimant other than a transferor.
    (h) Effective date.
    (1) In general.
    (2) Transition rule.
    (i) [Reserved].
    (j) Examples.

    Par. 3. Section 1.468B-1 is amended by redesignating paragraph (k) 
as paragraph (l) and adding a new paragraph (k) to read as follows:


Sec. 1.468B-1  Qualified settlement funds.

* * * * *
    (k) Election to treat a qualified settlement fund as a subpart E 
trust--(1) In general. If a qualified settlement fund has only one 
transferor (see paragraph (d)(1) of this section for the definition of 
transferor), the transferor may make an irrevocable election (grantor 
trust election) to treat the qualified settlement fund as a trust all 
of which is treated as owned by the transferor under section 671 and 
the regulations thereunder. A grantor trust election may be made 
whether or not the qualified settlement fund would be classified, in 
the absence of paragraph (b) of this section, as a trust all of which 
is treated as owned by the transferor under section 671 and the 
regulations thereunder.
    (2) Manner of making grantor trust election--(i) In general. To 
make a grantor trust election, a transferor must attach an election 
statement satisfying the requirements of paragraph (k)(2)(ii) of this 
section to a timely filed (including extensions) Form 1041 that the 
administrator files on behalf of the qualified settlement fund for the 
taxable year in which the qualified settlement fund is established. 
However, if a Form 1041 would not otherwise be required to be filed 
(for example, because the provisions of Sec. 1.671-4(b) are 
applicable), then the transferor makes a grantor trust election by 
attaching an election statement satisfying the requirements of 
paragraph (k)(2)(ii) of this section to a timely filed (including 
extensions) income tax return of the transferor for the taxable year in 
which the qualified settlement fund is established.

[[Page 4807]]

    (ii) Requirements for election statement. The election statement 
must include a statement by the transferor that the transferor will 
treat the qualified settlement fund as a grantor trust. The election 
statement must also include the transferor's name, signature, address, 
taxpayer identification number, and the legend, ``Sec. 1.468B-1(k) 
Election''. The election statement and the statement described in 
Sec. 1.671-4(a) may be combined into a single statement.
    (3) Effect of making the election. If a grantor trust election is 
made--
    (i) Paragraph (b) of this section, and Secs. 1.468B-2, 1.468B-3, 
and 1.468B-5 do not apply to the qualified settlement fund. However, 
this section (except for paragraph (b) of this section) and 
Sec. 1.468B-4 apply to the qualified settlement fund;
    (ii) The qualified settlement fund is treated for federal income 
tax purposes as a trust all of which is treated as owned by the 
transferor under section 671 and the regulations thereunder;
    (iii) The transferor must take into account in computing the 
transferor's income tax liability all items of income, deduction, and 
credit (including capital gains and losses) of the qualified settlement 
fund in accordance with Sec. 1.671-3(a)(1); and
    (iv) The reporting obligations imposed by Sec. 1.671-4 on the 
trustee of a trust apply to the administrator.
* * * * *
    Par. 4. Section 1.468B-5 is amended by revising the section heading 
and adding paragraph (c) to read as follows:


Sec. 1.468B-5  Effective dates and transition rules applicable to 
qualified settlement funds.

* * * * *
    (c) Grantor trust elections under Sec. 1.468B-1(k)--(1) In general. 
A transferor may make a grantor trust election under Sec. 1.468B-1(k) 
only if the qualified settlement fund is established after the date of 
publication of final regulations in the Federal Register.
    (2) Qualified settlement funds established by the U.S. government 
on or before the date of publication of final regulations in the 
Federal Register. If the U.S. government, or any agency or 
instrumentality thereof, establishes a qualified settlement fund on or 
before the date of publication of final regulations in the Federal 
Register, and the fund would have been classified as a trust all of 
which is treated as owned by the U.S. government under section 671 and 
the regulations thereunder without regard to the regulations under 
section 468B, then the U.S. government is deemed to have made a grantor 
trust election under Sec. 1.468B-1(k), and the election is effective 
for all taxable years of the fund.
    Par. 5. Sections 1.468B-6 through 1.468B-9 are added to read as 
follows:


Sec. 1.468B-6  Qualified escrow accounts and qualified trusts used in 
deferred exchanges of like-kind property under section 1031(a)(3).

    (a) Scope. This section provides rules under section 468B(g) 
relating to the current taxation of income of a qualified escrow 
account or qualified trust established in connection with a deferred 
exchange under section 1031(a)(3).
    (b) Definitions. As used in this section, deferred exchange, 
relinquished property, replacement property, qualified escrow account, 
qualified trust, qualified intermediary, exchange period, and escrow 
holder have the same meanings as in Sec. 1.1031(k)-1. Also, as used in 
this section, taxpayer means the transferor of the relinquished 
property, and transferee means the person who is treated as owning the 
relinquished property for federal income tax purposes after its 
transfer by the taxpayer. Further, owner means the person treated as 
owning the assets of the qualified escrow account or qualified trust 
under paragraph (c) of this section.
    (c) Income of qualified escrow account or qualified trust--(1) In 
general. Except as otherwise provided in paragraph (c)(2) of this 
section, and except for purposes of determining whether a transaction 
qualifies as a deferred exchange, the taxpayer is the owner. Thus, the 
taxpayer must take into account in computing the taxpayer's income tax 
liability all items of income, deduction, and credit (including capital 
gains and losses) of the qualified escrow account or qualified trust.
    (2) Transferee or qualified intermediary has all the beneficial use 
and enjoyment of assets of a qualified escrow account or qualified 
trust. If the transferee or the qualified intermediary has all the 
beneficial use and enjoyment of assets of a qualified escrow account or 
qualified trust, the transferee or qualified intermediary is the owner. 
Thus, the transferee or qualified intermediary must take into account 
in computing its income tax liability all items of income, deduction, 
and credit (including capital gains and losses) of the account or 
trust. The following factors, and other relevant facts and 
circumstances in a particular case, will be considered in determining 
whether the transferee or the qualified intermediary, rather than the 
taxpayer, has the beneficial use and enjoyment of assets of an account 
or trust and thus is the owner--
    (i) Which person enjoys the use of the earnings of the account or 
trust;
    (ii) Which person receives the benefit from appreciation, if any, 
in the value of the assets of the account or trust; and
    (iii) Which person is subject to a risk of loss from a decline, if 
any, in the value of the assets of the account or trust.
    (d) Application of section 7872. If the transferee or the qualified 
intermediary is the owner under paragraph (c)(2) of this section, 
section 7872 may apply if the deferred exchange involves a below-market 
loan from the taxpayer to the owner. See section 7872(c)(1) for the 
loans to which section 7872 applies.
    (e) Reporting obligations of the escrow holder or trustee-- (1) In 
general. The escrow holder of a qualified escrow account and the 
trustee of a qualified trust must, for each calendar year (or portion 
thereof) that the account or trust is in existence, report the income 
of the account or trust on Forms 1099 in accordance with the 
information reporting requirements of subpart B, Part III, subchapter 
A, chapter 61, Subtitle F of the Internal Revenue Code. The Forms 1099 
must show the escrow holder or trustee as the payor and must show the 
proper payee. See paragraph (e)(2) of this section for the 
determination of the proper payee.
    (2) Person treated as payee. In satisfying the reporting 
obligations of paragraph (e)(1) of this section, the following rules 
apply to the escrow holder of a qualified escrow account and the 
trustee of a qualified trust--
    (i) If no written statement described in paragraph (f) of this 
section is provided to the escrow holder or trustee, the escrow holder 
or trustee must treat the taxpayer as the owner and the payee of the 
income of the account or trust; and
    (ii) If a written statement described in paragraph (f) of this 
section is provided to the escrow holder or trustee, the escrow holder 
or trustee must treat the person specified on the statement (see 
paragraph (f)(3) of this section) as the owner and the payee of the 
income of the account or trust.
    (3) Relief from penalties for filing incorrect information return 
or payee statement. For purposes of sections 6721 and 6722, the escrow 
holder of a qualified escrow account or trustee of a qualified trust 
will not be treated as failing to file or furnish a correct information 
return or payee statement solely because, in preparing a Form 1099, the 
escrow holder or trustee relies on a statement described in paragraph 
(f) of this section and therefore treats the

[[Page 4808]]

person specified on the statement (see paragraph (f)(3) of this 
section) as the owner and the payee of the income of the account or 
trust. If a statement described in paragraph (f) of this section is not 
provided to the escrow holder or trustee, the escrow holder or trustee 
will not be treated as failing to file or furnish a correct information 
return or payee statement solely because, in preparing a Form 1099, the 
escrow holder or trustee relies on the absence of the statement and 
therefore treats the taxpayer as the owner and the payee of the income 
of the account or trust.
    (f) Statement provided to escrow holder or trustee. If under 
paragraph (c)(2) of this section, the qualified intermediary or 
transferee is the owner, the taxpayer and the owner must furnish to the 
escrow holder or trustee a statement that--
    (1) Is signed by the taxpayer and the owner;
    (2) Is furnished to the escrow holder or trustee within 30 days 
after the taxpayer transfers the relinquished property; and
    (3) Specifies the person treated as the owner and thus as the payee 
of the income of the account or trust.
    (g) Effective date--(1) In general. This section applies to 
qualified escrow accounts and qualified trusts established after the 
date of publication of final regulations in the Federal Register.
    (2) Transition rule. With respect to a qualified escrow account or 
qualified trust established after August 16, 1986, but on or before the 
date of publication of final regulations in the Federal Register, the 
Internal Revenue Service will not challenge a reasonable, consistently 
applied method of taxation for income earned by the account or trust. 
The Internal Revenue Service will also not challenge a reasonable, 
consistently applied method for reporting such income.
    (h) Examples. The provisions of this section may be illustrated by 
the following examples in which T is the taxpayer, B is the transferee, 
and QI is the qualified intermediary:

    Example 1. (i) T uses the calendar year as the taxable year and 
the cash receipts and disbursements method of accounting. T enters 
into a deferred exchange agreement with B. Under the agreement, T 
will transfer property (the relinquished property) to B, and B must 
transfer to T within the exchange period consideration (cash or 
replacement property or both) having the same market value as that 
of the relinquished property. B's obligations under the agreement 
are secured by the assets of a qualified escrow account. The 
deferred exchange does not involve the use of a qualified 
intermediary.
    (ii) Under the agreement, B must deposit cash into the qualified 
escrow account equal to the agreed upon fair market value of the 
relinquished property on the date the property is transferred to B. 
The agreement provides that the cash deposited into the escrow 
account must be invested in a money market fund.
    (iii) The agreement provides that B is entitled to receive the 
interest earned on the escrow account in consideration for B's 
performance of services in connection with the exchange.
    (iv) On September 1, 1999, T transfers the relinquished property 
to B. The property is unencumbered and has a fair market value of 
$100,000 on September 1, 1999. B deposits $100,000 into a qualified 
escrow account. The $100,000 is invested in accordance with the 
exchange agreement in a money market fund. During 1999, $2,000 of 
interest is earned on the escrow account. During January 2000, an 
additional $400 of interest is earned on the escrow account. On 
February 1, 2000, B uses $100,000 of the funds in the escrow account 
to purchase replacement property identified by T, and on this same 
date B transfers the replacement property to T. The interest earned 
on the escrow account, $2,400, is paid to B from the escrow account 
in consideration for B's performance of services.
    (v) Paragraph (c)(1) of this section applies and T must take 
into account in computing T's income tax liability for 1999 and 2000 
the $2400 of interest earned on the escrow account in those years 
even though the interest is paid to B as compensation for B's 
services. Paragraph (c)(1) of this section applies for the following 
reasons. T, rather than B, enjoys the use of the earnings of the 
escrow account since the earnings are used to discharge T's 
obligation to pay B for B's services. B is not considered to have 
all the beneficial use and enjoyment of the assets of the escrow 
account merely because the compensation that B is entitled to 
receive is based on the earnings of the escrow account.
    (vi) The escrow holder must file Forms 1099 for 1999 and 2000 
and furnish T with payee statements with respect to the interest 
earned on the escrow in 1999 and 2000. See paragraph (e)(1) of this 
section.
    Example 2. (i) The facts are the same as in Example 1 except 
that the agreement between B and T requires B to pay $100,000 to QI; 
under the agreement between T and QI, QI is obligated to transfer to 
T within the exchange period consideration (cash or replacement 
property or both) equal to $100,000 plus interest thereon at 4 
percent compounded semiannually; QI's obligation to transfer this 
consideration is secured by the $100,000 received from B, which QI 
must deposit into a qualified escrow account; the assets of the 
escrow account must be invested in a money market fund; and, as 
compensation for QI's performance of services to facilitate the 
deferred exchange, QI is entitled to receive the excess of the 
interest earned on the escrow account over the amount of interest 
(computed at 4 percent compounded semiannually) payable to T in cash 
or property.
    (ii) QI deposits the $100,000 received from B into a qualified 
escrow account, and the $100,000 is invested in a money market fund 
earning interest at 4.8 percent compounded semiannually. During 
1999, $1,600 of interest is earned on the escrow account. During 
January 2000, an additional $400 of interest is earned on the escrow 
account. On February 1, 2000, QI uses $101,667 of the funds in the 
escrow account to purchase replacement property, which is 
transferred to T. This transfer satisfies QI's obligations under the 
agreement because $1,667 is the amount of interest that is earned on 
$100,000 at 4 percent compounded semiannually for 5 months. Of the 
$2,000 in interest earned on the escrow account in 1999 and 2000, 
$1,667 is used to purchase replacement property, and the remaining 
$333 is paid in cash to QI as compensation for QI's services.
    (iii) Paragraph (c)(1) of this section applies and T must take 
into account in computing T's income tax liability for 1999 and 2000 
the $2000 of interest earned on the escrow account in those years 
even though $333 of the interest is paid to QI as compensation for 
QI's services.
    (iv) The escrow holder must file Forms 1099 and furnish T with 
payee statements with respect to the $2000 of interest earned on the 
escrow in 1999 and 2000. See paragraph (e)(1) of this section.


Sec. 1.468B-7  Pre-closing escrows.

    (a) Scope. This section provides rules under section 468B(g) for 
the taxation of income earned on pre-closing escrows.
    (b) Definition. A pre-closing escrow is an escrow account, trust, 
or fund--
    (1) Established in connection with the sale or exchange of real or 
personal property;
    (2) Funded with a down payment, earnest money, or similar payment 
that is deposited into the escrow prior to the sale or exchange of the 
property;
    (3) Used to secure the obligation of the purchaser to pay the 
purchase price for the property (in the case of an exchange, purchaser 
means the transferee of the property, and purchase price means the 
required consideration for the property);
    (4) The assets of which, including the income earned thereon, will 
be paid to the purchaser or otherwise distributed for the purchaser's 
benefit when the property is sold or exchanged (for example, by being 
distributed to the seller as a credit against the purchase price); and
    (5) Which is not a qualified escrow account or qualified trust 
established in connection with a deferred exchange under section 
1031(a)(3).
    (c) Taxation of pre-closing escrows. The purchaser is treated for 
federal income tax purposes as owning the assets of a pre-closing 
escrow. Thus, the purchaser must take into account in computing the 
purchaser's income tax liability all items of income, deduction, and 
credit (including capital gains and losses) of the escrow.

[[Page 4809]]

    (d) Reporting obligations of the administrator. For each calendar 
year (or portion thereof) that a pre-closing escrow is in existence, 
the escrow agent, escrow holder, trustee, or other person responsible 
for administering the escrow (the administrator) must report the income 
of the escrow on Forms 1099 in accordance with the information 
reporting requirements of subpart B, Part III, subchapter A, chapter 
61, Subtitle F of the Internal Revenue Code. The Form 1099 must show 
the administrator as the payor and the purchaser as the payee.
    (e) Effective date--(1) In general. The provisions of this section 
apply to pre-closing escrows established after the date of publication 
of final regulations in the Federal Register.
    (2) Transition rule. With respect to a pre-closing escrow 
established after August 16, 1986, but on or before the date of 
publication of final regulations in the Federal Register, the Internal 
Revenue Service will not challenge a reasonable, consistently applied 
method of taxation for income earned by the escrow. The Internal 
Revenue Service will also not challenge a reasonable, consistently 
applied method for reporting such income.
    (f) Example. The provisions of this section may be illustrated by 
the following example:

    Example. P enters into a contract with S for the purchase of 
residential property owned by S for the price of $200,000. P is 
required to deposit $10,000 of earnest money into an escrow. At 
closing, the $10,000 and the interest earned thereon will be 
credited against the purchase price of the property. The escrow is a 
pre-closing escrow. P is treated as owning the assets of the escrow, 
and P is taxable on the interest earned on the escrow prior to 
closing. The escrow holder must report the income earned on the 
escrow on Forms 1099 and furnish payee statements to P. The Forms 
1099 must show the escrow holder as the payor and P as the payee.


Sec. 1.468B-8  Contingent at-closing escrows.

    (a) Scope. This section provides rules under section 468B(g) for 
the taxation of income earned on a contingent at-closing escrow, which 
is defined in paragraph (b) of this section. No inference should be 
drawn from this section concerning the tax treatment of a contingent 
at-closing escrow, or of parties to the escrow, under sections of the 
Internal Revenue Code other than section 468B. See also paragraph (d) 
of this section.
    (b) Definitions. For purposes of this section, the following 
definitions apply--
    Administrator means an escrow agent, escrow holder, trustee, or 
other person responsible for administering an escrow account, trust, or 
fund (the purchaser or the seller may be the administrator);
    Contingent at-closing escrow means an escrow account, trust, or 
fund that satisfies the following requirements--
    (1) The escrow is established in connection with the sale or 
exchange (other than an exchange to which section 354, 355, or 356 
applies) of real or personal property used in a trade or business or 
held for investment (including stock in a corporation or an interest in 
a partnership);
    (2) Depending on whether events specified in the agreement between 
the purchaser and the seller that are subject to bona fide 
contingencies (not including events that are certain, or reasonably 
certain, to occur, such as the passage of time, or that are certain, or 
reasonably certain, not to occur) either occur or fail to occur, the 
escrow's assets (except for assets set aside for taxes or expenses) 
will be distributable--
    (i) Entirely to the purchaser;
    (ii) Entirely to the seller; or
    (iii) In part, to the purchaser with the remainder to the seller; 
and
    (3) The escrow is not a qualified escrow account or qualified trust 
established in connection with a deferred exchange under section 
1031(a)(3);
    Determination date means the date on which (or by which) the last 
of the events subject to a bona fide contingency specified in the 
agreement between the purchaser and the seller (referred to in the 
definition of contingent at-closing escrow) has either occurred or 
failed to occur;
    Purchaser means, in the case of an exchange of property, the 
transferee of the property; and
    Seller means, in the case of an exchange of property, the 
transferor of the property.
    (c) Tax liability of purchaser and seller for the period prior to 
the determination date. For the period prior to the determination date, 
the purchaser is treated as owning the assets of the contingent at-
closing escrow for federal income tax purposes. Thus, in computing the 
purchaser's income tax liability, the purchaser must take into account 
all items of income, deduction, and credit (including capital gains and 
losses) of the escrow until the determination date.
    (d) Transfer of interest in the assets of the escrow on the 
determination date. No inference should be drawn from this section 
whether, for purposes of Internal Revenue Code sections other than 
468B, there is a transfer of ownership of the assets of a contingent 
at-closing escrow on the determination date from the purchaser to the 
seller or from the seller to the purchaser, or the tax consequences of 
such a transfer. Thus, for example, if there is a transfer of ownership 
of the assets of the escrow from the purchaser to the seller on the 
determination date for purposes of other Code sections, no inference 
should be drawn from this section whether any portion of the amount 
transferred is unstated interest. See Sec. 1.483-4.
    (e) Tax liability of purchaser and seller for the period beginning 
on the determination date. For the period beginning on the 
determination date, the purchaser and the seller must each take into 
account in determining their income tax liabilities the income, 
deductions, and credits (including capital gains and losses) 
corresponding to their ownership interests in the assets of the escrow.
    (f) Statement required to be provided to administrator within 30 
days after the determination date. Within 30 days after the 
determination date, the purchaser and the seller must provide the 
administrator with a written statement that--
    (1) Is signed by the purchaser and the seller;
    (2) Specifies the determination date; and
    (3) Specifies the purchaser's and seller's ownership interests in 
each asset of the escrow.
    (g) Reporting obligations of the administrator--(1) In general. The 
administrator of a contingent at-closing escrow must, for each calendar 
year (or portion thereof) that the escrow is in existence, report the 
income of the escrow on Forms 1099 in accordance with the information 
reporting requirements of subpart B, Part III, subchapter A, chapter 
61, Subtitle F of the Internal Revenue Code. The Forms 1099 must show 
as payor the administrator of the escrow and as payee the person (or 
persons) treated as the payee (or payees) under paragraph (g)(2) of 
this section.
    (2) Person treated as payee. In satisfying the reporting 
obligations of paragraph (g)(1) of this section, the following rules 
apply to the administrator--
    (i) For the period prior to the determination date, the 
administrator must treat the purchaser as the payee of the income of 
the escrow;
    (ii) For the period beginning on the determination date, if the 
written statement described in paragraph (f) of this section is timely 
provided to the administrator, the administrator must treat as the 
payee (or payees) of the income of the escrow the purchaser or seller 
(or both) in accordance with their

[[Page 4810]]

respective ownership interests as shown on the statement; and
    (iii) If the written statement described in paragraph (f) of this 
section is not provided to the administrator, the administrator must 
continue to treat the purchaser as the payee of the income of the 
escrow.
    (3) Relief from penalties for filing incorrect information return 
or payee statement. For purposes of sections 6721 and 6722, the 
administrator will not be treated as failing to file or furnish a 
correct information return or payee statement solely because, in 
preparing a Form 1099, the administrator relies on a statement 
described in paragraph (f) of this section and therefore treats the 
purchaser or seller (or both) as the payee (or payees) of the income of 
the escrow in accordance with their respective ownership interests in 
the assets of the escrow as shown on the statement. If a statement 
described in paragraph (f) of this section is not provided to the 
administrator, the administrator will not be treated as failing to file 
or furnish a correct information return or payee statement solely 
because, in preparing a Form 1099, the administrator relies on the 
absence of the statement and therefore treats the purchaser as the 
payee.
    (h) Effective date--(1) In general. The provisions of this section 
apply to contingent at-closing escrows that are established after the 
date of publication of final regulations in the Federal Register.
    (2) Transition rule. With respect to a contingent at-closing escrow 
established after August 16, 1986, but on or before the date of 
publication of final regulations in the Federal Register, the Internal 
Revenue Service will not challenge a reasonable, consistently applied 
method of taxation for income earned by the escrow. The Internal 
Revenue Service will also not challenge a reasonable, consistently 
applied method for reporting such income.
    (i) [Reserved]
    (j) Example. The provisions of this section may be illustrated by 
the following example:

    Example. (i) P and S are corporations. In 1999, P enters into a 
contract with S for the purchase of rental real estate. On October 
1, 1999, the date of sale, S transfers the real estate to P, and P 
pays S a portion of the purchase price, $9,000,000. P deposits the 
remaining portion of the purchase price, $850,000, into an escrow 
account as required by the contract. H is the escrow holder.
    (ii) The contract provides that the escrow balance as of 
November 1, 2000, is payable entirely to P, entirely to S, or 
partially to P and partially to S depending on the amount, if any, 
by which the average rental income from the real estate during a 
specified testing period ending on September 30, 2000, exceeds one 
or more specified earnings targets.
    (iii) According to the terms of the contract, the income earned 
on the escrow must be accumulated and is not currently distributable 
to P or S during the period prior to November 1, 2000.
    (iv) During the testing period specified in the contract between 
P and S, the average rental income earned on the property exceeds 
one (but not all) of the specified earnings targets. As a result, on 
September 30, 2000, the end of the testing period, P became entitled 
to 40% of the escrow assets and S became entitled to 60% of the 
escrow assets.
    (v) On October 30, 2000, P and S provide H with the written 
statement described in paragraph (f) of this section. The written 
statement is thus provided within 30 days of September 30, 2000. The 
statement indicates that P's ownership interest in each asset of the 
escrow is 40 percent and S's ownership interest in each asset is 60 
percent.
    (vi) The escrow is a contingent at-closing escrow. September 30, 
2000, is the determination date because this is the date on which 
the testing period ends. As of this date, all contingencies 
specified in the contract are resolved.
    (vii) P must take into account all of the income, deductions, 
and credits (including capital gains and losses) of the escrow in 
computing P's income tax liability for the period prior to September 
30, 2000. See paragraph (c) of this section.
    (viii) For the period beginning on September 30, 2000, P must 
take into account in computing P's income tax liability 40 percent 
of each item of income, deduction, and credit of the escrow 
(including capital gains and losses), and S must take into account 
in computing S's income tax liability 60 percent of these items. See 
paragraph (e) of this section.
    (ix) H is subject to the information reporting requirements of 
paragraph (g)(1) of this section. H must file Forms 1099 and furnish 
payee statements to reflect the fact that prior to September 30, 
2000, P is the payee of all the income of the escrow, and for the 
period beginning on September 30, 2000, P is the payee of 40 percent 
of the income, and S is the payee of 60 percent of the income.


Sec. 1.468B-9  Disputed ownership funds.

    (a) In general. An escrow account, trust, or fund that is not a 
qualified settlement fund is a disputed ownership fund if--
    (1) It is established to hold money or property subject to 
conflicting claims of ownership;
    (2) The escrow account, trust, or fund is subject to the continuing 
jurisdiction of a court; and
    (3) Money or property cannot be paid or distributed from the escrow 
account, trust, or fund to, or on behalf of, a claimant or a transferor 
without the approval of the court.
    (b) Definitions. For purposes of this section--
    (1) Administrator means the person designated as such by the court 
having jurisdiction over a disputed ownership fund. If no person is 
designated, the administrator is the escrow agent, escrow holder, 
trustee, receiver, or other person responsible for administering the 
fund;
    (2) Claimant means a person, including a transferor, who claims 
ownership of, or a legal or equitable interest in, money or property 
held by a disputed ownership fund;
    (3) Court means a court of law or equity of the United States, any 
state (including the District of Columbia), territory, possession, or 
political subdivision thereof;
    (4) Related person means any person who is related to the 
transferor within the meaning of section 267(b) or 707(b)(1);
    (5) Transferor means, in general, a person that transfers to a 
disputed ownership fund money or property that is subject to 
conflicting claims of claimants. However, a payor of interest or other 
income earned by a disputed ownership fund is not a transferor (unless 
the payor is also a claimant). A transferor may also be a claimant.
    (c) Taxation of a disputed ownership fund--(1) In general. For 
federal income tax purposes, a disputed ownership fund is treated as 
the owner of all assets that it holds. A disputed ownership fund is 
treated as a C corporation for purposes of subtitle F of the Internal 
Revenue Code, and the administrator of the fund must obtain an employer 
identification number for the fund, make all required income tax and 
information returns, and deposit all payments of tax. Also, except as 
otherwise provided in this section, a disputed ownership fund is 
taxable as if it were either--
    (i) A qualified settlement fund under Sec. 1.468B-2 if all the 
assets transferred to the fund by or on behalf of transferors are 
passive investment assets, for example, cash or cash equivalents, 
stock, and debt obligations; or
    (ii) A C corporation in all other cases.
    (2) Exception. If there is a more appropriate method of taxing a 
disputed ownership fund than as provided in paragraph (c)(1) of this 
section, the claimants to the fund may submit a private letter ruling 
request proposing an alternative method of taxation.
    (3) Special rules. (i) In general, money or property subject to 
conflicting claims of claimants (disputed property) that is transferred 
to a disputed ownership fund by, or on behalf of, a transferor is 
excluded from the gross income of the fund. However, this exclusion 
does not

[[Page 4811]]

apply to income earned on assets of the fund such as--
    (A) Payments to a disputed ownership fund made in compensation for 
late or delayed transfers of money or property;
    (B) Dividends on stock of a transferor (or a related person) held 
by the fund; and
    (C) Interest on debt of a transferor (or a related person) held by 
the fund.
    (ii) A distribution to a claimant of disputed property by a 
disputed ownership fund is not a taxable event to the fund.
    (iii) A disputed ownership fund is not allowed a deduction for a 
distribution of disputed property to, or on behalf of, a transferor or 
a claimant.
    (iv) Upon the termination of a disputed ownership fund, if the fund 
has an unused net operating loss carryover under section 172, an unused 
capital loss carryover under section 1212, or an unused tax credit 
carryover, or if the fund has, for its last taxable year, deductions in 
excess of gross income, the claimant to whom the fund's net assets are 
distributable will succeed to and take into account the fund's unused 
net operating loss carryover, unused capital loss carryover, unused tax 
credit carryover, or excess of deductions over gross income for the 
last taxable year of the fund. If the fund's net assets are 
distributable to more than one claimant, the unused net operating loss 
carryover, unused capital loss carryover, unused tax credit carryover, 
or excess of deductions over gross income for the last taxable year 
must be allocated among the claimants in proportion to the value of the 
assets distributable to each claimant from the fund.
    (v) In the case of a disputed ownership fund taxable as if it were 
a C corporation under paragraph (c)(1)(ii) of this section, this 
section does not, in general, restrict the fund's use of an otherwise 
allowable method of accounting or taxable year.
    (vi) Appropriate adjustments must be made by a disputed ownership 
fund or transferors to the fund to prevent the fund and the transferors 
from taking into account the same item of income, deduction, gain, 
loss, or credit more than once or from omitting such items.
    (d) Basis of property held by a disputed ownership fund. In 
general, the initial basis of property transferred by, or on behalf of, 
a transferor to a disputed ownership fund is the fair market value of 
the property on the date of transfer to the fund as determined by the 
transferor for purposes of the rules in paragraph (f)(1)(i) of this 
section. However, if paragraph (f)(1)(ii) of this section applies, the 
fund's initial basis in the property is the same as the basis of the 
transferor immediately before the transfer to the fund.
    (e) Request for prompt assessment. A disputed ownership fund is 
eligible to request the prompt assessment of tax under section 6501(d). 
For purposes of section 6501(d), a disputed ownership fund is treated 
as dissolving on the date the fund no longer has any assets (other than 
a reasonable reserve for potential tax liabilities and related 
professional fees) and will not receive any more transfers.
    (f) Rules applicable to the transferor--(1) Transfer of property--
(i) In general. A transferor must treat a transfer of property to a 
disputed ownership fund as a sale or other disposition of that property 
for purposes of section 1001(a). In computing the gain or loss, the 
amount realized by the transferor is the fair market value of the 
property on the date the transfer is made to the disputed ownership 
fund.
    (ii) Exceptions. A transfer of property to a disputed ownership 
fund is not a sale or other disposition of the property for purposes of 
section 1001(a) if--
    (A) The transferor claims ownership of the transferred property 
immediately before and immediately after the transfer to the fund; or
    (B) The transferor is an agent, fiduciary, or other person acting 
in a similar capacity acting on behalf of a person claiming ownership 
of the transferred property immediately before and immediately after 
the transfer to the fund.
    (2) Economic performance--(i) In general. For purposes of section 
461(h), if a transferor has a liability to one or more claimants for 
which economic performance would otherwise occur under Sec. 1.461-4(g) 
when the transferor makes a payment to the claimant or claimants, 
economic performance occurs with respect to the liability to the extent 
the transferor makes a transfer to a disputed ownership fund to resolve 
or satisfy that liability, but only if the transferor and related 
persons are not claimants and have no right to receive payments or 
distributions from the fund.
    (ii) Obligations of the transferor. With respect to a transferor 
described in paragraph (f)(2)(i) of this section, economic performance 
does not occur when the transferor transfers to a disputed ownership 
fund its debt (or the debt of a related person). Instead, economic 
performance occurs as the transferor (or related person) makes 
principal payments on the debt. Similarly, economic performance does 
not occur when the transferor transfers to a disputed ownership fund 
its obligation (or the obligation of a related person) to provide 
property in the future or to make a payment described in Sec. 1.461-
4(g). Instead, economic performance occurs with respect to such an 
obligation as property or payments are provided or made to the disputed 
ownership fund or a claimant.
    (3) Statement to the disputed ownership fund and the Internal 
Revenue Service--(i) In general. By February 15 of the year following 
each calendar year in which a transferor (or other person acting on 
behalf of a transferor) makes a transfer to a disputed ownership fund, 
the transferor (or other person) must provide a statement to the 
administrator of the fund setting forth the information described in 
paragraph (f)(3)(ii) of this section. The transferor must attach a copy 
of the statement to (and as part of) its timely filed income tax return 
(including extensions) for the taxable year of the transferor in which 
the transfer is made.
    (ii) Information required on statement--(A) In general. The 
statement required by paragraph (f)(3)(i) of this section must include 
the following information--
    (1) A legend, ``Sec. 1.468B-9(f) Statement'', at the top of the 
first page;
    (2) The transferor's name, address, and taxpayer identification 
number;
    (3) The disputed ownership fund's name, address, and employer 
identification number;
    (4) The date of each transfer;
    (5) The amount of cash transferred;
    (6) A description of property transferred, the disputed ownership 
fund's basis in the property as provided in paragraph (d) of this 
section, and, if the rules of paragraph (f)(1)(ii) of this section 
apply, the fund's holding period on the date of transfer; and
    (7) Whether or not the transferor is also a claimant.
    (B) Combined statements. If a disputed ownership fund has more than 
one transferor, any two or more of the transferors may provide a 
combined statement to the administrator that does not identify the 
amount of cash or the property transferred by a particular transferor. 
If a combined statement is used, however, each transferor must include 
with its copy of the statement that is attached to its income tax 
return a schedule describing each asset that the transferor transferred 
to the disputed ownership fund.
    (4) Distributions to transferors--(i) In general. A transferor must 
include in gross income any distribution to a transferor (including a 
deemed distribution described in paragraph (f)(4)(iii) of this section) 
from a disputed

[[Page 4812]]

ownership fund. If property is distributed, the amount includible in 
gross income and the basis in that property is generally the fair 
market value of the property on the date of distribution.
    (ii) Exception. The gross income of a transferor does not include a 
distribution to the transferor of property from a disputed ownership 
fund if the transferor previously transferred the property to the fund 
and paragraph (f)(1)(ii) of this section applied to that transfer. 
Also, the transferor's gross income does not include a distribution of 
money from the disputed ownership fund equal to the net income earned 
on that property while it was held by the fund. Further, the 
transferor's basis in the property is the same as the disputed 
ownership fund's basis in the property immediately before the 
distribution to the transferor.
    (iii) Deemed distributions. If a disputed ownership fund makes a 
distribution on behalf of a transferor to a person that is not a 
claimant, the distribution is deemed made by the fund to the 
transferor. The transferor, in turn, is deemed to have made a payment 
to the actual recipient.
    (g) Distribution to a claimant other than a transferor. Whether a 
claimant other than a transferor must include in gross income a 
distribution of money or property from a disputed ownership fund is 
generally determined by reference to the claim in respect of which the 
distribution is made. If a disputed ownership fund distributes property 
to a claimant other than a transferor in satisfaction of the claimant's 
claim of ownership to that property, the claimant's basis in the 
property must be adjusted to reflect the adjustments to the basis of 
the property required under section 1016 for the period the property 
was held by the fund.
    (h) Effective date--(1) In general. This section applies to 
disputed ownership funds established after the date of publication of 
final regulations in the Federal Register.
    (2) Transition rule. With respect to a disputed ownership fund 
established after August 16, 1986, but on or before the date of 
publication of final regulations in the Federal Register, the Internal 
Revenue Service will not challenge a reasonable, consistently applied 
method of taxation for income earned by the fund, transfers to the 
fund, and distributions made by the fund.
    (i) [Reserved].
    (j) Examples. The following examples illustrate the rules of this 
section:

    Example 1. (i) Prior to A's death, A was the insured under a 
life insurance contract (policy) issued by X, an insurance company. 
A's current spouse and A's former spouse each claim to be the 
beneficiary under the policy and thus entitled to the policy 
proceeds ($1 million). In 1999, X files an interpleader action and 
deposits the policy proceeds into the registry of the court. On June 
1, 2000, a final determination is made that A's current spouse is 
the beneficiary under the policy and thus entitled to the funds held 
in the registry of the court. These funds are distributed to A's 
current spouse.
    (ii) The funds held in the registry of the court consisting of 
the policy proceeds and the earnings thereon are a disputed 
ownership fund taxable as if it were a qualified settlement fund. 
See paragraph (c)(1)(i) of this section. The fund's gross income 
does not include the $1 million transferred to the fund by X.
    Example 2. (i) Two unrelated individuals, A and B, claim 
ownership of certain rental property. A claims to have purchased the 
property from B's father. However, B asserts that the purported sale 
to A was ineffective and that B acquired ownership of the property 
through intestate succession upon the death of B's father. For 
several years, A has maintained the property and received the rent 
from the property.
    (ii) Pending the resolution of the title dispute between A and 
B, the title to the property is transferred into a court-supervised 
escrow on February 1, 2000. Also, on that date the court appoints R 
as receiver for the property. R collects the rent earned on the 
property and hires employees necessary for the maintenance of the 
property. The rents paid to R cannot be distributed to A or B 
without the court's approval.
    (iii) On June 1, 2001, the court makes a final determination 
that the rental property is owned by B. The court orders B to refund 
to A the purchase price paid by A to B's father plus interest on 
that amount from February 1, 2000. Also, the court orders that a 
distribution be made to B of all funds held in the court registry 
consisting of the rent collected by R and the income earned thereon. 
In addition, title to the property is returned to B.
    (iv) The rental property and the funds held by the court 
registry are held in a disputed ownership fund.
    (v) A is the transferor to the fund. A does not realize gain or 
loss under section 1001(a) on A's transfer of the property to the 
disputed ownership fund.
    (vi) The fund is taxable as if it were a C corporation because 
the rental property is not a passive investment asset. See paragraph 
(c)(1)(ii) of this section. The fund is not taxable upon receipt of 
the property. The fund's initial basis in the property is the same 
as A's adjusted basis immediately before the transfer to the fund. 
The fund's gross income includes the rents paid to R and the income 
earned thereon. For the period between February 1, 2000, and June 1, 
2001, the fund may be allowed deductions for depreciation and for 
the costs of maintenance of the property because the fund is treated 
as owning the property during this period. See sections 162, 167, 
and 168.
    (vii) The fund is not allowed a deduction for the distribution 
to B of the rent earned on the property while held by the fund (or 
the income earned thereon). No tax consequences to the fund result 
from this distribution or from the fund's transfer of the rental 
property to B pursuant to the court's determination that B owns the 
property.

    Par. 6. Section 1.1031(k)-1 is amended by adding a sentence at the 
end of paragraphs (g)(3)(i) and (h)(2) to read as follows:


Sec. 1.1031(k)-1  Treatment of deferred exchanges.

* * * * *
    (g) * * *
    (3) * * * (i) * * * For rules under section 468B(g) relating to the 
current taxation of income of a qualified escrow account or qualified 
trust, see Sec. 1.468B-6.
* * * * *
    (h) * * *
    (2) * * * For rules under section 468B(g) relating to the current 
taxation of income of a qualified escrow account or qualified trust, 
see Sec. 1.468B-6.
* * * * *
Michael P. Dolan,
Deputy Commissioner of Internal Revenue.
[FR Doc. 99-1515 Filed 1-29-99; 8:45 am]
BILLING CODE 4830-01-U