[Federal Register Volume 71, Number 201 (Wednesday, October 18, 2006)]
[Proposed Rules]
[Pages 61441-61445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17301]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-141901-05]
RIN 1545-BE92


Exchanges of Property for an Annuity

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 that provide 
guidance on the taxation of the exchange of property for an annuity 
contract. These regulations are necessary to outline the proper 
taxation of these exchanges and will affect participants in 
transactions involving these exchanges. This document also provides 
notice of public hearing.

DATES: Written or electronic comments must be received by January 16, 
2007.

[[Page 61442]]

Outlines of topics to be discussed at the public hearing scheduled for 
February 16, 2007, at 10 a.m. must be received by January 16, 2007.

ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-141901-05), room 
5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand delivered to CC:PA:LPD:PR 
(REG-141901-05), Courier's Desk, Internal Revenue Service, Crystal Mall 
4 Building, 1901 S. Bell St., Arlington, VA, or sent electronically, 
via the IRS Internet site at http://www.irs.gov/regs or via the Federal 
eRulemaking Portal at http://www.regulations.gov (IRS and REG-141901-
05).

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
James Polfer, at (202) 622-3970; concerning submissions of comments, 
the hearing, and/or to be placed on the building access list to attend 
the hearing, Kelly Banks, at (202) 622-0392 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background

    This document contains proposed amendments to the Income Tax 
Regulations.
    Section 1001 of the Internal Revenue Code (Code) provides rules for 
determining the amount of gain or loss recognized. Gain from the sale 
or other disposition of property equals the excess of the amount 
realized therefrom over the adjusted basis of the property; loss from 
the sale or other disposition of property equals the excess of the 
adjusted basis of the property over the amount realized. Section 
1.1001-1(a) of the Income Tax Regulations provides further that the 
exchange of property for other property differing materially either in 
kind or in extent is treated as income or as loss sustained. Under 
section 1001(b), the amount realized from the sale or other disposition 
of property is the sum of any money received plus the fair market value 
of any property (other than money) received. Except as otherwise 
provided in the Code, the entire amount of gain or loss on the sale or 
exchange of property is recognized.
    Under section 72(a), gross income includes any amount received as 
an annuity (whether for a period certain or for the life or lives of 
one or more individuals) under an annuity, endowment, or life insurance 
contract. Section 72(b) provides that gross income does not include 
that part of any amount received as an annuity which bears the same 
ratio to such amount as the investment in the contract bears to the 
expected return under the contract. Under section 72(e), amounts 
received under an annuity contract before the annuity starting date are 
included in gross income to the extent allocable to income on the 
contract, and are excluded from gross income to the extent allocable to 
the investment in the contract. Investment in the contract is defined 
in section 72(c) as the aggregate amount of premiums or other 
consideration paid, reduced by amounts received before the annuity 
starting date that were excluded from gross income.
    In Lloyd v. Commissioner, 33 B.T.A. 903 (1936), nonacq., XV-2 CB 39 
(1936), nonacq. withdrawn and acq., 1950-2 CB 3, the Board of Tax 
Appeals considered the taxation of gain from a father's sale of 
property to his son for an annuity contract. The Board concluded that 
the annuity contract had no fair market value within the meaning of the 
predecessor of section 1001(b) because of the uncertainty of payment 
from the son. Because the annuity contract had no fair market value 
under that provision, the Board held that the gain from the sale of the 
property was not required to be recognized immediately but rather would 
be included in income only when the annuity payments exceeded the 
property's basis. In reaching its holding, the Board applied the open 
transaction doctrine articulated by the Supreme Court in Burnet v. 
Logan, 283 U.S. 404 (1931). Under this doctrine, if an amount realized 
from a sale cannot be determined with certainty, the seller recovers 
the basis of the property sold before any income is realized on the 
sale.
    In Rev. Rul. 69-74, 1969-1 CB 43, a father transferred a capital 
asset having an adjusted basis of $20,000 and a fair market value of 
$60,000 to his son in exchange for the son's legally enforceable 
promise to pay him a life annuity of $7,200 per year, in equal monthly 
installments of $600. The present value of the life annuity was 
$47,713.08. The ruling concluded that: (1) The father realized capital 
gain based on the difference between the father's basis in the property 
and the present value of the annuity; (2) the gain was reported ratably 
over the father's life expectancy; (3) the investment in the contract 
for purposes of computing the exclusion ratio was the father's basis in 
the property transferred; (4) the excess of the fair market value of 
the property transferred over the present value of the annuity was a 
gift from the father to the son; and (5) the prorated capital gain 
reported annually was derived from the portion of each annuity payment 
that was not excludible.
    In Estate of Bell v. Commissioner, 60 T.C. 469 (1973), acq. in part 
and nonacq. in part, 1974 WL 36039 (Jan. 8, 1974), acq., AOD No. 1979-
184 (August 15, 1979), a husband and wife transferred stock in two 
closely held corporations to their son and daughter and their spouses 
in exchange for an annuity contract. The fair market value of the stock 
substantially exceeded the value of the annuity contract. The stock 
transferred was placed in escrow to secure the promise of the 
transferees. As further security, the annuity agreement provided for a 
cognovit judgment against the transferees in the event of default. 
Because of the secured nature of the annuity, the tax court held that 
(i) the difference between the value of the stock and the value of the 
annuity contract constituted a gift; (ii) the difference between the 
adjusted basis of the stock and the value of the annuity contract 
constituted gain that was taxable in the year of the transfer (which 
was not before the court); and (iii) the investment in the annuity 
contract equaled the present value of the annuity. Similarly, in 212 
Corp. v. Commissioner, 70 T.C. 788 (1978), the tax court held that the 
entire amount of gain realized from the exchange of appreciated real 
property for an annuity contract was fully taxable in the year of the 
exchange because the annuity contract was secured by (i) an agreement 
that the annuity payments would be considered a charge against the 
rents from the property, (ii) an agreement not to mortgage or sell the 
property without written consent of the transferors, and (iii) the 
authorization of a confession of judgment against the transferee in the 
event of default.
    The Treasury Department and the IRS have learned that some 
taxpayers are inappropriately avoiding or deferring gain on the 
exchange of highly appreciated property for the issuance of annuity 
contracts. Many of these transactions involve private annuity contracts 
issued by family members or by business entities that are owned, 
directly or indirectly, by the annuitants themselves or by their family 
members. Many of these transactions involve a variety of mechanisms to 
secure the payment of amounts due under the annuity contracts.
    The Treasury Department and the IRS believe that neither the open 
transaction approach of Lloyd v. Commissioner nor the ratable 
recognition approach of Rev. Rul. 69-74 clearly reflects the income of 
the transferor of property in exchange for an annuity contract. 
Contrary to the premise underlying these authorities, an

[[Page 61443]]

annuity contract--whether secured or unsecured--may be valued at the 
time it is received in exchange for property. See generally section 
7520 (requiring the use of tables to value any annuity contract for 
federal income tax purposes, except for purposes of any provision 
specified in regulations); Sec.  1.1001-1(a) (``The fair market value 
of property is a question of fact, but only in rare and unusual 
circumstances will property be considered to have no fair market 
value.''). The Treasury Department and the IRS believe that the 
transferors should be taxed in a consistent manner regardless of 
whether they exchange property for an annuity or sell that property and 
use the proceeds to purchase an annuity.

Explanation of Provisions

    These proposed amendments provide that, if an annuity contract is 
received in exchange for property (other than money), (i) the amount 
realized attributable to the annuity contract is the fair market value 
(as determined under section 7520) of the annuity contract at the time 
of the exchange; (ii) the entire amount of the gain or loss, if any, is 
recognized at the time of the exchange, regardless of the taxpayer's 
method of accounting; and (iii) for purposes of determining the initial 
investment in the annuity contract under section 72(c)(1), the 
aggregate amount of premiums or other consideration paid for the 
annuity contract equals the amount realized attributable to the annuity 
contract (the fair market value of the annuity contract). Thus, in 
situations where the fair market value of the property exchanged equals 
the fair market value of the annuity contract received, the investment 
in the annuity contract equals the fair market value of the property 
exchanged for the annuity contract.
    In order to apply the proposed regulations to an exchange of 
property for an annuity contract, taxpayers will need to determine the 
fair market value of the annuity contract as determined under section 
7520. In the case of an exchange of property for an annuity contract 
that is in part a sale and in part a gift, the proposed regulations 
apply the same rules that apply to any other such exchange under 
section 1001.
    The proposed regulations provide that, for purposes of determining 
the investment in the annuity contract under section 72(c)(1), the 
aggregate amount of premiums or other consideration paid for the 
annuity contract is the portion of the amount realized on the exchange 
that is attributable to the annuity contract (which is the fair market 
value of the annuity contract at the time of the exchange). This rule 
is intended to ensure that no portion of the gain or loss on the 
exchange is duplicated or omitted by the application of section 72 in 
the years after the exchange. The annuitant's investment in the 
contract would be reduced in subsequent years under section 72(c)(1)(B) 
for amounts already received under the contract subsequent to the 
exchange and excluded from gross income when received as a return of 
the annuitant's investment in the contract.
    The proposed regulations do not distinguish between secured and 
unsecured annuity contracts, or between annuity contracts issued by an 
insurance company subject to tax under subchapter L and those issued by 
a taxpayer that is not an insurance company. Instead, the proposed 
regulations provide a single set of rules that leave the transferor and 
transferee in the same position before tax as if the transferor had 
sold the property for cash and used the proceeds to purchase an annuity 
contract. The same rules would apply whether the exchange produces a 
gain or loss. The regulations do not, however, prevent the application 
of other provisions, such as section 267, to limit deductible losses in 
the case of some exchanges. The proposed regulations apply to exchanges 
of property for an annuity contract, regardless of whether the property 
is exchanged for a newly issued annuity contract or whether the 
property is exchanged for an already existing annuity contract.
    Existing regulations in Sec.  1.1011-2 govern the tax treatment of 
an exchange of property that constitutes a bargain sale to a charitable 
organization (including an exchange of property for a charitable gift 
annuity). Example 8 in section 2(c) of those regulations provides that 
any gain on such an exchange is reported ratably, rather than entirely 
in the year of the exchange. This notice of proposed rulemaking does 
not propose to change the existing regulations in Sec.  1.1011-2. 
However, comments are requested as to whether a change should be made 
in the future to conform the tax treatment of exchanges governed by 
Sec.  1.1011-2 to the tax treatment prescribed in these proposed 
regulations.
    The Treasury Department and the IRS are aware that property is 
sometimes exchanged for an annuity contract, including a private 
annuity contract, for valid, non-tax reasons related to estate planning 
and succession planning for closely held businesses. The proposed 
regulations are not intended to frustrate these transactions, but will 
ensure that income from the transactions is accounted for in the 
appropriate periods. In section 453, Congress set forth rules 
permitting the deferral of income from a transaction that qualifies as 
an installment sale. Taxpayers retain the ability to structure 
transactions as installment sales within the meaning of section 453(b), 
provided the other requirements of section 453 are met. The Treasury 
Department and IRS request comments as to the circumstances, if any, in 
which an exchange of property for an annuity contract should be treated 
as an installment sale, and as to any changes to the regulations under 
section 453 that might be advisable with regard to those circumstances.

Proposed Effective Date

    The Treasury Department and the IRS propose Sec.  1.1001-1(j) to be 
effective generally for exchanges of property for an annuity contract 
after October 18, 2006. Thus, the regulations would not apply to 
amounts received after October 18, 2006 under annuity contracts that 
were received in exchange for property before that date. For a limited 
class of transactions, however, Sec.  1.1001-1(j) is proposed to be 
effective for exchanges of property for an annuity contract after April 
18, 2007.
    The Treasury Department and the IRS propose Sec.  1.72-6(e) to be 
effective generally for annuity contracts received in such exchanges 
after October 18, 2006. For a limited class of transactions, however, 
Sec.  1.72-6(e) is proposed to be effective for annuity contracts 
received in exchange for property after April 18, 2007. The Treasury 
Department and the IRS also propose to declare Rev. Rul. 69-74 obsolete 
effective contemporaneously with the effective date of these 
regulations. Thus, the obsolescence would be effective April 18, 2007 
for exchanges described in Sec.  1.1001-1(j)(2)(ii) and Sec.  1.72-
6(e)(2)(ii), and effective October 18, 2006 for all other exchanges of 
property for an annuity contract.
    In both regulations, the effective date is delayed for six months 
for transactions in which (i) the issuer of the annuity contract is an 
individual; (ii) the obligations under the annuity contract are not 
secured, either directly or indirectly; and (iii) the property 
transferred in the exchange is not subsequently sold or otherwise 
disposed of by the transferee during the two-year period beginning on 
the date of the exchange. The Treasury Department and the IRS believe 
that the later proposed effective date for these transactions provides 
ample notice of the proposed

[[Page 61444]]

rules for taxpayers currently planning transactions that present the 
least opportunity for abuse.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in Executive Order 
12866. Therefore, a regulatory assessment is not required. It is hereby 
certified that these regulations will not have a significant economic 
impact on a substantial number of small entities. Accordingly, a 
regulation flexibility analysis is not required. This certification is 
based on the fact that typically only natural persons within the 
meaning of section 72(u) exchange property for an annuity contract. In 
addition, these regulations do not impose new reporting, recordkeeping, 
or other compliance requirements on taxpayers. Pursuant to section 
7805(f) of the Code, the notice of proposed rulemaking will be 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on their impact on small business.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written (a signed original and eight 
(8) copies) or electronic comments that are timely submitted to the 
IRS. In addition to comments on the proposed regulations more 
generally, the Treasury Department and the IRS specifically request 
comments on (i) the clarity of the proposed regulations and how they 
can be made easier to understand; (ii) what guidance, if any, is needed 
in addition to Rev. Rul. 55-119, 1955-1 CB 352, see Sec.  
601.601(d)(2), on the treatment of the issuer of an annuity contract 
that is not taxed under the provisions of subchapter L of the Code; 
(iii) whether any changes to Sec.  1.1011-2 (concerning a bargain sale 
to a charitable organization in exchange for an annuity contract), 
conforming those regulations to the proposed regulations, would be 
appropriate; (iv) circumstances (and corresponding changes to the 
regulations under section 453, if any) in which it might be appropriate 
to treat an exchange of property for an annuity contract as an 
installment sale; (v) circumstances, if any, in which the fair market 
value of an annuity contract for purposes of Sec.  1.1001-1(j) should 
be determined other than by tables promulgated under the authority of 
section 7520; and (vi) additional transactions, if any, for which the 
six month delayed effective date would be appropriate. All comments 
will be available for public inspection and copying.
    A public hearing has been scheduled for February 16, 2007, at 10 
a.m., in the auditorium, Internal Revenue Service, New Carrollton 
Building, 5000 Ellin Road, Lanham, MD 20706. All visitors must present 
photo identification to enter the building. Because of access 
restrictions, visitors will not be admitted beyond the immediate 
entrance area lobby more than 30 minutes before the hearing starts. For 
information about having your name placed on the access list to attend 
the hearing, see the FOR FURTHER INFORMATION CONTACT portion 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 January 16, 2007, and submit an outline of 
the topics to be discussed and the time to be devoted to each topic (a 
signed original and eight (8) copies) by that same date.
    A period of 10 minutes will be allotted to each person 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 author of these proposed regulations is James Polfer, 
Office of the Associate Chief Counsel (Financial Institutions and 
Products), Internal Revenue Service.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendment to the Regulations

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

PART 1--INCOME TAX

    Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

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

    Par. 2. In Sec.  1.72-6, paragraph (e) is added to read as follows:


Sec.  1.72-6  Investment in the contract.

* * * * *
    (e) Certain annuity contracts received in exchange for property--
(1) In general. If an annuity contract is received in an exchange 
subject to Sec.  1.1001-1(j), the aggregate amount of premiums or other 
consideration paid for the contract equals the amount realized 
attributable to the annuity contract, determined according to Sec.  
1.1001-1(j).
    (2) Effective date--(i) In general. Except as provided in paragraph 
(e)(2)(ii), this paragraph (e) is applicable for annuity contracts 
received after October 18, 2006 in an exchange subject to Sec.  1.1001-
1(j).
    (ii) This paragraph (e) is applicable for annuity contracts 
received after April 18, 2007 in an exchange subject to Sec.  1.1001-
1(j) if the following conditions are met--
    (A) The issuer of the annuity contract is an individual;
    (B) The obligations under the annuity contract are not secured, 
either directly or indirectly; and
    (C) The property transferred in exchange for the annuity contract 
is not subsequently sold or otherwise disposed of by the transferee 
during the two-year period beginning on the date of the exchange. For 
purposes of this provision, a disposition includes without limitation a 
transfer to a trust (whether a grantor trust, a revocable trust, or any 
other trust) or to any other entity even if solely owned by the 
transferor.
    Par. 3. In Sec.  1.1001-1, paragraphs (h), (i) and (j) are added to 
read as follows:


Sec.  1.1001-1  Computation of gain or loss.

* * * * *
    (h) [Reserved.]
    (i) [Reserved.]
    (j) Certain annuity contracts received in exchange for property--
(1) In general. If an annuity contract (other than an annuity contract 
that either is a debt instrument subject to sections 1271 through 1275, 
or is received from a charitable organization in a bargain sale 
governed by Sec.  1.1011-2) is received in exchange for property, 
receipt of the contract shall be treated as a receipt of property in an 
amount equal to the fair market value of the contract, whether or not 
the contract is the equivalent of cash. The amount realized 
attributable to the annuity contract is the fair market value of the 
annuity contract at the time of the exchange, determined under section 
7520. For the timing of the recognition of gain or loss, if any, see 
Sec.  1.451-1(a). In the case of a transfer in part a sale and in part 
a gift, see paragraph (e) of this section. In the case of an annuity 
contract that is a debt instrument subject to sections 1271 through 
1275, see paragraph (g) of this section. In the case of a bargain sale 
to a charitable organization, see Sec.  1.1011-2.
    (2) Effective date--(i) In general. Except as provided in paragraph 
(j)(2)(ii), this paragraph (j) is effective for

[[Page 61445]]

exchanges of property for an annuity contract (other than an annuity 
contract that either is a debt instrument subject to sections 1271 
through 1275, or is received from a charitable organization in a 
bargain sale governed by Sec.  1.1011-2) after October 18, 2006.
    (ii) This paragraph (j) is effective for exchanges of property for 
an annuity contract (other than an annuity contract that either is a 
debt instrument subject to sections 1271 through 1275, or is received 
from a charitable organization in a bargain sale governed by Sec.  
1.1011-2) after April 18, 2006 if the following conditions are met--
    (A) The issuer of the annuity contract is an individual;
    (B) The obligations under the annuity contract are not secured, 
either directly or indirectly; and
    (C) The property transferred in exchange for the annuity contract 
is not subsequently sold or otherwise disposed of by the transferee 
during the two-year period beginning on the date of the exchange. For 
purposes of this provision, a disposition includes without limitation a 
transfer to a trust (whether a grantor trust, a revocable trust, or any 
other trust) or to any other entity even if solely owned by the 
transferor.

Mark E. Matthews,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E6-17301 Filed 10-17-06; 8:45 am]
BILLING CODE 4830-01-P