[Federal Register Volume 74, Number 247 (Monday, December 28, 2009)]
[Rules and Regulations]
[Pages 68530-68537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30547]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 9476]
RIN 1545-BI62; RIN 1545-BG39


Apportionment of Tax Items Among the Members of a Controlled 
Group of Corporations

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations and removal of temporary regulations.

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SUMMARY: This document contains final regulations that provide guidance 
to corporations that are component members of a controlled group of 
corporations and to consolidated groups filing life-nonlife Federal 
income tax returns. They provide guidance to component members 
regarding the apportionment of tax benefit items and the amount and 
type of information they are required to submit with their returns.

DATES: Effective Date: These regulations are effective on December 28, 
2009.
    Applicability Date: For dates of applicability, see Sec. Sec.  
1.1502-43(e), 1.1502-47(t), 1.1561-1(d), 1.1561-2(f) and 1.1561-3(d). 
In accordance with section 7805(b)(1), respective portions of this 
Treasury decision are applicable to consolidated Federal income tax 
returns due on or after December 21, 2009 or to taxable years beginning 
on or after December 21, 2009, as the case may be.

FOR FURTHER INFORMATION CONTACT: Grid Glyer, (202) 622-7930 (not a 
toll-free number).

SUPPLEMENTARY INFORMATON:

Background

    On December 22, 2006, the IRS and the Treasury Department published 
several temporary regulations, including temporary regulations under 
sections 1502 and 1561. See TD 9304 (71 FR 76904), 2007-1 CB 423. Also 
on December 22, 2006, the IRS and the Treasury Department issued a 
notice of proposed rulemaking cross-referencing those temporary 
regulations. See REG-161919-05 (71 FR 76955), 2007-1 CB 463. For 
administrative reasons, these regulations were relocated in REG-113688-
09. See TD 9451 (74 FR 25147), 2009-23 IRB 1060.
    On December 26, 2007, the IRS and the Treasury Department published 
several temporary regulations, including an additional temporary 
regulation under section 1561. See TD 9369 (72 FR 72929), 2008-6 IRB 
394. Also on December 26, 2007, the IRS and the Treasury Department 
issued a notice of proposed rulemaking cross-referencing those 
temporary regulations. See REG-104713-07 (72 FR 72970), 2008-6 IRB 409.

Explanation of Provisions

    This Treasury decision adopts the proposed regulations (Sec. Sec.  
1.1502-43, 1.1502-47, 1.1561-0, 1.1561-1, 1.1561-2 and 1.1561-3) with 
no substantive changes. However, this Treasury decision makes 
clarifying changes to Sec. Sec.  1.1561-2 and 1.1561-3. These changes 
are discussed in the following portion of this preamble.
    1. Only the Positive Taxable Income or Positive Alternative Minimum 
Taxable Income of the Component Members of a Controlled Group of 
Corporations Shall Be Combined for Purposes of Determining the Amount 
of

[[Page 68531]]

the Additional Tax Imposed by Section 11(b)(1) and the Reduction in the 
Alternative Minimum Tax Exemption Amount Under Section 55(d)(3), 
Respectively.
    Section 1561(a) provides that in computing the amount of additional 
tax imposed by section 11(b)(1) (the additional tax), and the phase-out 
of the alternative minimum tax exemption amount under section 55(d)(3) 
(the exemption amount), the component members of a controlled group of 
corporations (as defined in section 1563) shall, as a first step, 
combine their taxable incomes (or alternative minimum taxable incomes) 
for their tax years that include the same December 31st date. This 
taxable income (or alternative minimum taxable income) is for the 
entire tax year of a component member, even if it was not a member of 
the group for each day of that tax year. In the case of the 
determination of the additional tax, the calculation is limited to the 
taxable incomes of those component members to which any part of the tax 
bracket amounts are apportioned.
    The question has arisen whether a component member that incurs a 
loss for a tax year may apply that loss to reduce the amount of the 
combined taxable income (or combined alternative minimum taxable 
income) of the controlled group for purposes of determining the amount 
of the additional tax or the reduction in the exemption amount, 
respectively. This Treasury decision clarifies that, for these 
purposes, only the positive taxable incomes (or positive alternative 
minimum taxable incomes) of those component members can be combined.
    Only if the members of an affiliated group of corporations, as 
defined in section 1504, elect to file a consolidated return, as 
defined in section 1502, may these members offset their income and 
losses in determining their consolidated Federal income tax liability. 
See, for example, Woolford Realty Co. v. Rose, 286 U.S. 319 (1932). 
Since the members of a controlled group have not elected to file a 
consolidated return (even if such controlled group meets the section 
1504 definition of an affiliated group), they may not offset their 
income and losses in determining their combined Federal income tax 
liability. Hence, they cannot offset such income and losses to 
determine their combined additional tax liability or their combined 
alternative minimum taxable income for purposes of determining the 
reduction in the exemption amount.
    2. A Component Member That Has a Short Taxable Year That Does Not 
Include a December 31st Date Calculates Its Additional Tax and 
Alternative Minimum Tax Liability on Just Its Own Income.
    Section 1561(b) and Sec.  1.1561-2(e) provide rules for 
apportioning the tax bracket amounts and accumulated earnings credit to 
a member with a short taxable year that does not include a December 
31st date (a short-year member). However, Sec.  1.1561-2(e) does not 
provide guidance to a short-year member for determining its additional 
tax liability. This Treasury decision clarifies that such a member 
determines its additional tax liability on its own income for such 
short taxable year. Further, such income is not combined with the 
taxable incomes of the other component members of the same controlled 
group for purposes of determining the additional tax liability of such 
other component members.
    In addition, for purposes of a short-year member determining its 
alternative minimum tax liability, this Treasury decision includes a 
reference to section 443(d). Section 443(d) provides that if a taxpayer 
has a return of less than 12 months (whether or not the tax year of 
that taxpayer includes a December 31st date), its alternative minimum 
tax liability is determined on an annualized basis.
    3. Clarification of the Rules Under Which an Apportionment Plan Is 
Terminated.
    Section 1.1561-3(c)(3) provides the circumstances under which an 
apportionment plan is terminated. Paragraphs (iii) and (iv) of Sec.  
1.1561-3(c)(3) of the proposed regulations provided:
    (iii) Any corporation which was a component member of such group on 
the particular December 31 is not a component member of such group on 
such succeeding December 31; or
    (iv) Any corporation which was not a component member of such group 
on the particular December 31 is a component member of such group on 
such succeeding December 31.
    It is often not feasible for the members of a controlled group to 
know for the current tax year whether a corporation will or will not be 
a component member of such group for the succeeding tax year. 
Accordingly, this Treasury decision clarifies these paragraphs by 
rewriting them to refer to the previous tax year and the current tax 
year, instead of the succeeding tax year. In addition, this Treasury 
decision clarifies that the fact that a corporation is joining or 
leaving a consolidated group, when such consolidated group is treated 
collectively as constituting one component member of the controlled 
group, will not serve to affect the ongoing status of such controlled 
group, provided that, after that corporation has either left or joined 
such consolidated group, such consolidated group remains in existence 
within the meaning of Sec.  1.1502-75(d).
    The IRS and the Treasury Department received no written or 
electronic comments from the public in response to the notice of 
proposed rulemaking and no public hearing was requested or held.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in Executive Order 12866. 
Therefore, a regulatory assessment is not required. It has also been 
determined that section 553(b) of the Administrative Procedure Act (5 
U.S.C. chapter 5) does not apply to these regulations. Therefore, a 
regulatory flexibility analysis under the Regulatory Flexibility Act (5 
U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the 
Code, the notices of proposed rulemaking preceding these regulations 
were submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on their impact on small business.

Drafting Information

    The principal author of these regulations is Grid Glyer, Office of 
Associate Chief Counsel (Corporate). However, other personnel from the 
IRS and the Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

0
Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by adding 
entries in numerical order and removing the entries for Sec. Sec.  
1.1502-43T and 1.1561-2T to read as follows:

    Authority:  26 U.S.C. 7805 * * *
    Section 1.1502-43 also issued under 26 U.S.C. 1502. * * *
    Section 1.1561-2 also issued under 26 U.S.C. 1561. * * *


Sec.  1.924(a)-1T  [Amended]

0
Par. 2. Section 1.924(a)-1T (j)(2)(i), fifth sentence, is amended by 
removing the language ``Sec.  1.1561-3T'' and adding ``Sec.  1.1561-3'' 
in its place.

0
Par. 3. Section 1.924(a)-1T (j)(2)(i), sixth sentence, is amended by 
removing

[[Page 68532]]

the language ``Sec.  1.1561-3T(a)'' and adding ``Sec.  1.1561-3'' in 
its place.

0
Par. 4. Section 1.1502-43 is amended by revising paragraphs (d) and (e) 
to read as follows:


Sec.  1.1502-43  Consolidated accumulated earnings tax.

* * * * *
    (d) Consolidated accumulated earnings credit--(1) In general. 
[Reserved]
    (2) Special rule if a consolidated group is part of a controlled 
group. If a consolidated group is treated collectively as being one 
component member of a controlled group, or if each member of a 
consolidated group is treated as being a separate component member of a 
controlled group, see section 1561 for determining the portion of the 
accumulated earnings credit to be allocated to such group or to such 
members.
    (e) Effective/applicability date. This section applies to any 
consolidated Federal income tax return due (without extensions) on or 
after December 21, 2009. However, a consolidated group may apply this 
section to any consolidated Federal income tax return filed on or after 
December 21, 2009. For returns due before December 21, 2009, see Sec.  
1.1502-43T as contained in 26 CFR part 1 in effect on April 1, 2009.


Sec.  1.1502-43T  [Removed]

0
Par. 5. Section 1.1502-43T is removed.

0
Par. 6. Section 1.1502-47 is amended by revising paragraphs (s) and (t) 
to read as follows:


Sec.  1.1502-47  Consolidated returns by life-nonlife groups.

* * * * *
    (s) Filing requirements--(1) In general. To file a consolidated 
income tax return for a life-nonlife consolidated group, the common 
parent shall--
    (i) File the applicable consolidated corporate income tax return: a 
Form 1120-L, ``U.S. Life Insurance Company Income Tax Return,'' where 
the common parent is a life insurance company; a Form 1120-PC, ``U.S. 
Property and Casualty Insurance Company Income Tax Return,'' where the 
common parent is an insurance company, other than a life insurance 
company; or a Form 1120, ``U.S. Corporation Income Tax Return,'' where 
the common parent is any other type of corporation;
    (ii) Indicate clearly on the face of this return that such 
corporate tax return is a life-nonlife return;
    (iii) Show any set offs required by paragraphs (g), (m), and (n) of 
this section;
    (iv) Report separately the nonlife consolidated taxable income or 
loss, determined under paragraph (h) of this section, on a Form 1120 or 
1120-PC (whether filed by the common parent or as an attachment to the 
consolidated return), as the case may be, of all nonlife members of the 
consolidated group; and
    (v) Report separately the consolidated partial Life Insurance 
Company Taxable Income (as defined by paragraph (d)(3) of this 
section), determined under paragraph (j) of this section, on a Form 
1120-L (whether filed by the common parent or as an attachment to the 
consolidated return), of all life members of the consolidated group.
    (2) Cross reference. See Sec.  1.1502-75(j), regarding the 
inclusion in a corporate tax return of the required statements and 
schedules for subsidiaries.
    (t) Effective/applicability date. Paragraph (s) of this section 
applies to any consolidated Federal income tax return due (without 
extensions) on or after December 21, 2009. However, a consolidated 
group may apply paragraph (s) of this section to any consolidated 
Federal income tax return filed on or after December 21, 2009. For 
returns due before December 21, 2009, see Sec.  1.1502-47T as contained 
in 26 CFR part 1 in effect on April 1, 2009.


Sec.  1.1502-47T  [Removed]

0
Par. 7. Section 1.1502-47T is removed.
0
Par. 8. Section 1.1561-0 is added to read as follows:


Sec.  1.1561-0  Table of contents.

    This section lists the table of contents for Sec. Sec.  1.1561-1 
through 1.1561-3.


Sec.  1.1561-1  General rules regarding certain tax benefits available 
to the component members of a controlled group of corporations.

    (a) In general.
    (1) Limitation.
    (2) Definitions.
    (b) Special rules.
    (1) S Corporation.
    (2) 52-53-week taxable year.
    (c) Tax avoidance.
    (d) Effective/applicability date.


Sec.  1.1561-2  Special rules for allocating reductions of certain 
Section 1561(a) tax-benefit items.

    (a) Additional tax.
    (1) Calculation.
    (2) Apportionment.
    (3) Examples.
    (b) Reduction to the amount exempted from the alternative minimum 
tax.
    (1) Calculation.
    (2) Apportionment.
    (3) Examples.
    (c) Accumulated earnings credit.
    (d) [Reserved].
    (e) Short taxable year not including a December 31st date.
    (1) General rule.
    (2) Additional rules.
    (3) Calculation of the additional tax.
    (4) Calculation of the alternative minimum tax.
    (5) Examples.
    (f) Effective/applicability date.


Sec.  1.1561-3  Allocation of the section 1561(a) tax items.

    (a) Filing of form.
    (1) In general.
    (2) Exception for component members that are members of a 
consolidated group.
    (b) No apportionment plan in effect.
    (c) Apportionment plan in effect.
    (1) Adoption of plan.
    (2) Limitation on adopting a plan.
    (3) Termination of plan.
    (d) Effective/applicability date.


Sec.  1.1561-0T  [Removed]

0
Par. 9. Section 1.1561-0T is removed.

0
Par. 10. Section 1.1561-1 is added to read as follows:


Sec.  1.1561-1  General rules regarding certain tax benefits available 
to the component members of a controlled group of corporations.

    (a) In general--(1)--Limitation. Part II (section 1561 and 
following) of subchapter B of chapter 6 of the Internal Revenue Code 
(Code) (part II) provides rules to limit the amounts of certain 
specified tax benefit items of component members of a controlled group 
of corporations for their tax years which include a particular December 
31st date, or, in the case of a short taxable year member (see section 
1561(b) and Sec.  1.1561-2(e)), the date substituted for that December 
31st date. The amount of the tax items enumerated in section 1561(a) 
available to any of the component members of a controlled group shall 
be determined for purposes of subtitle A of the Code as if the 
component members were a single corporation. Certain other tax items 
also set forth in section 1561(a) (for example, the additional tax 
imposed by section 11(b)(1) and the section 55(d)(3) phase out of the 
alternative minimum tax exemption amount) will be determined by 
combining the positive taxable income or positive alternative minimum 
taxable income of the component members of such a group and then 
allocating the amount of such items among those members.
    (2) Definitions. For certain definitions (including the definition 
of a controlled

[[Page 68533]]

group of corporations and a component member) and special rules for 
purposes of this part II see section 1563.
    (b) Special rules--(1) S Corporation. For purposes of this part II, 
the term corporation includes a small business corporation (as defined 
in section 1361). However, for the treatment of such a corporation as 
an excluded member of a controlled group of corporations see Sec.  
1.1563-1(b)(2)(ii)(C).
    (2) 52-53-week taxable year. In the case of corporations electing a 
52-53-week taxable year under section 441(f)(1), the provisions of this 
part II shall be applied in accordance with the special rule of section 
441(f)(2)(A). See Sec.  1.441-2.
    (c) Tax avoidance. The provisions of this part II do not delimit or 
abrogate any principle of law established by judicial decision, or any 
existing provisions of the Code, such as sections 269, 482, and 1551, 
which serve to prevent any avoidance or evasion of income taxes.
    (d) Effective/applicability date. This section applies to any tax 
year beginning on or after December 21, 2009. However, taxpayers may 
apply this section to any Federal income tax return filed on or after 
December 21, 2009. For tax years beginning before December 21, 2009, 
see Sec.  1.1561-1T as contained in 26 CFR part 1 in effect on April 1, 
2009.


Sec.  1.1561-1T  [Removed]

0
Par. 11. Section 1.1561-1T is removed.

0
Par. 12. Section 1.1561-2 is added to read as follows:


Sec.  1.1561-2  Special rules for allocating reductions of certain 
section 1561(a) tax-benefit items.

    (a) Additional tax--(1) Calculation--(i) In general. For the 
purpose of determining the amount, if any, of the additional tax 
imposed by section 11(b)(1) (the additional tax), the taxable incomes 
of all of the component members of a controlled group of corporations 
shall be combined to determine whether either of the income thresholds 
for imposing the additional tax have been attained.
    (ii) Special rules. For purposes of paragraph (a)(1)(i) of this 
section--
    (A) Component member means a corporation that is apportioned some 
part of any applicable tax bracket amount; and
    (B) Taxable income means the positive taxable income of a component 
member for its entire tax year (even if it was not a member of the 
group for each day of that tax year) that includes the same December 
31st testing date, which is also applicable to the other component 
members of that same controlled group.
    (2) Apportionment--(i) General rule. Any additional tax determined 
under paragraph (a)(1) of this section shall be apportioned among such 
members in the same manner as the corresponding tax bracket of section 
11(b)(1) is apportioned. For rules to apportion the section 11(b)(1) 
tax brackets among the component members of a controlled group, see 
Sec.  1.1561-3(b) or (c).
    (ii) Apportionment methods. Unless the component members of a 
controlled group elect to use the first-in-first-out (FIFO) method 
described in paragraph (a)(2)(ii)(B) of this section, such members are 
required to apportion the amount of the additional tax using the 
proportionate method described in paragraph (a)(2)(ii)(A) of this 
section. These component members may elect the FIFO method by 
specifically adopting such method in their apportionment plan.
    (A) Proportionate method. Under the proportionate method, the 
additional tax is allocated to each component member in the same 
proportion as the portion of the tax-benefit amount that inured to a 
member from utilizing lower tax brackets bears to the amount of the 
group's total tax-benefit amount inuring to it from utilizing those 
lower tax brackets. The tax-benefit amount that inures to a corporation 
from using a particular tax bracket is the tax savings that such 
corporation realizes from having a portion of its taxable income taxed 
at the lower rate attributed to that tax bracket instead of the high 
tax rates to which it would otherwise be subject. The steps for 
applying the proportionate method of allocation are as follows:
    (1) Step 1. The regular tax (not including the additional tax) owed 
by a component member under a particular tax bracket is divided by the 
total tax owed by all component members under that tax bracket;
    (2) Step 2. The percentage calculated under Step 1 is multiplied by 
the total tax-benefit amount inuring to all the members of the group 
from their use of this tax bracket. This computed amount equals the 
portion of the group's tax-benefit amount that inured to such member 
from using its portion of this tax bracket;
    (3) Step 3. The amount determined under Step 2 is divided by the 
total tax-benefit amount, inuring to all the component members of the 
group from using all the tax brackets to which any component member's 
income was subject;
    (4) Step 4. The percentage calculated under Step 3 is multiplied by 
the amount of the group's additional tax. The amount determined under 
this Step 4 equals the amount of the additional tax apportioned to such 
member for that tax bracket; and
    (5) Step 5. If a component member is liable for regular tax (not 
including the additional tax) under more than one tax bracket, that 
member must calculate the amount of the additional tax apportioned to 
it with respect to each tax bracket. Accordingly, steps 1 through 4 
must be applied for each tax bracket applicable to that member. The sum 
of all the apportioned amounts of additional tax from each tax bracket 
for which the member is subject is the total amount of the additional 
tax apportioned to that member.
    (B) FIFO method. Under the FIFO method, the first dollars of the 
additional tax are to be allocated proportionately to the members 
starting with the lowest tax bracket (that is, the first tax bracket), 
up to the amount of the tax benefit inuring to those members from using 
that tax bracket. Any remaining amount of additional tax is then 
allocated proportionately among the component members who use the next 
higher tax bracket, and so on, until the entire amount of the 
additional tax has been fully apportioned among the members. For 
example, the first $9,500 of the additional tax liability of a 
controlled group is apportioned entirely to the member(s) that availed 
themselves of the benefit of the 15 percent tax bracket.
    (3) Examples. The provisions of this paragraph (a) may be 
illustrated by the following examples:

    Example 1. (i) Facts. A controlled group of corporations 
consists of three members: X, Y and Z. X owns all the stock of Y and 
Z. Each corporation files its separate return on a calendar year 
basis. For calendar year 2007, the component members of the 
controlled group have an apportionment plan in effect. The members 
apportioned 80% of the 15 percent tax-bracket amount ($40,000) to X 
and the remaining 10% ($10,000) to Y. The members apportioned 100% 
of the 25 percent tax-bracket amount ($25,000) to Y. However, these 
members have not adopted the FIFO method for apportioning the 
additional taxes. Therefore, they must follow the proportionate 
method. For 2007, X had taxable income (TI) of $40,000, Y had TI of 
$60,000 and Z had TI of $100,000. Thus the total TI of the group is 
$200,000.
    (ii) Calculating the tax from the tax brackets and the tax 
benefit derived from such tax. (A) Regular tax of group subject to a 
15 percent tax rate. (1) Calculating the group's tax which resulted 
from applying a 15 percent tax rate. The amount of tax under the 15 
percent tax bracket is $7,500 (15% x $50,000).
    (2) The tax-benefit amount inuring to the group from using the 
15 percent tax bracket.

[[Page 68534]]

A tax benefit inures to those members of the group who avail 
themselves of the 15 percent tax bracket. That tax benefit results 
from having the first $50,000 of its income taxed at the 15 percent 
tax rate, instead of at the 34 percent tax rate. Thus, the tax-
benefit amount inuring to this group from using the 15 percent tax 
bracket is $9,500 ($17,000 (34% x $50,000) minus $7,500 (15% x 
$50,000)).
    (B) Regular tax of group subject to a 25 percent tax rate. (1) 
Calculating the group's tax which resulted from applying a 25 
percent tax rate. The amount of tax under the 25 percent tax bracket 
is $6,250 (25% x $25,000 ($75,000-$50,000)).
    (2) The tax-benefit amount inuring to the group from using the 
25 percent tax bracket. A tax benefit inures to those members of the 
group who avail themselves of the 25 percent tax bracket. That tax 
benefit results from having $25,000 of its income taxed at the 25 
percent tax rate, instead of at the 34 percent tax rate. Thus, the 
tax-benefit amount inuring to this group from using the 25 percent 
tax bracket is $2,250 ($8,500 (34% x $25,000) minus $6,250 (25% x 
$25,000)).
    (C) Regular tax of group subject to a 34 percent tax rate. (1) 
Calculating the group's tax which resulted from applying a 34 
percent tax rate. The amount of tax under the 34 percent tax bracket 
is $42,500 (34% x $125,000 ($200,000 (total TI)-$75,000) (amount 
taxed at lower rates)).
    (2) The tax-benefit amount inuring to the group from using the 
34 percent tax bracket. The group's total TI of $200,000 is less 
than the $15,000,000 income threshold for imposing any 3 percent 
additional tax on the group. Therefore, there is no tax benefit 
inuring to the members of this group for using the 34 percent tax 
bracket.
    (D) The computation of the additional tax. Since the combined TI 
of the group exceeds $100,000, a 5 percent additional tax is imposed 
on the group. That 5 percent additional tax is the lesser amount of 
5 percent of the group's taxable income exceeding $100,000 or 
$11,750. Five percent of that excess amount of taxable income is 
$5,000 (5% x $100,000 ($200,000-$100,000)). Since $5,000 is less 
than $11,750, the group's 5 percent additional tax is $5,000.
    (iii) Apportioning the amount of additional tax to each 
applicable tax bracket. (A) The apportioned tax under each bracket. 
The amount of tax owed by each member under each tax bracket 
pursuant to the apportionment plan is as follows:

 
----------------------------------------------------------------------------------------------------------------
                                                           Amount of tax      Amount of tax      Amount of tax
                Name of component member                   owed under the     owed under the     owed under the
                                                          15% tax bracket    25% tax bracket    34% tax bracket
----------------------------------------------------------------------------------------------------------------
X......................................................             $6,000                  0                  0
Y......................................................              1,500             $6,250             $8,500
Z......................................................                  0                  0             34,000
----------------------------------------------------------------------------------------------------------------

     (B) Apportioning the 5 percent additional tax among the 
component members of the controlled group. Since the group did not 
elect to adopt the FIFO method of apportionment, it is required to 
apportion the $5,000 of its 5 percent additional tax pursuant to the 
proportionate method in the following manner:
    (1) Amount of the additional tax apportioned to X. Pursuant to 
the plan, X was liable for $6,000 of the group's $7,500 regular tax 
(80%) owed under the 15 percent tax bracket (and X is not liable for 
any regular tax under any higher tax bracket). See Step 1 of 
paragraph (a)(2)(ii)(A) of this section. X's portion of the group's 
tax benefit which it derived from using the 15 percent tax rate is 
$7,600 (0.8 x $9,500). See Step 2. The tax benefit inuring to the 
entire group from using the 15 percent and 25 percent tax brackets 
is $11,750 ($9,500 (from the 15 percent tax bracket) + $2,250 (from 
the 25 percent tax bracket)). So, X's percentage portion of the 
group's total tax benefit is $7,600/$11,750 (64.68%). See Step 3. 
Thus, X's allocated portion of the 5 percent additional tax from 
using the 15 percent tax bracket is $3,234 (0.6468 x $5,000). See 
Step 4.
    (2) Amount of the additional tax apportioned to Y. (i) Regular 
tax apportioned to Y from using the 15 percent tax bracket. Pursuant 
to the plan, Y was liable for the remaining $1,500 of the group's 
$7,500 regular tax (20%) owed under the 15 percent tax bracket. See 
Step 1. Y's portion of the group's tax benefit which it derived from 
using the 15 percent tax rate is $1,900 ($9,500-$7,600, or 0.2 x 
$9,500). See Step 2. So, Y's percentage portion of the group's total 
tax benefit is $1,900/$11,750 (16.17%). See Step 3. Thus, Y's 
allocated portion of the 5 percent additional tax from using the 15 
percent tax bracket is $809 (0.1617 x $5,000). See Step 4.
    (ii) Regular tax apportioned to Y from using the 25 percent tax 
bracket. Pursuant to the plan, Y was liable for 100% of the group's 
regular tax owed under the 25 percent tax bracket, an amount of 
$6,250. See Step 1. Y is, therefore, entitled to 100% of the group's 
tax benefit which it derived from using this tax bracket, an amount 
of $2,250. See Step 2. So, Y's percentage portion of the group's 
total tax benefit is $2,250/$11,750 (19.15%). See Step 3. Thus, Y's 
allocated portion of the 5 percent additional tax from using the 25 
percent tax bracket is $957 (0.1915 x $5,000). See Step 4. Y's total 
allocated portion of the additional tax is $1,766 ($809 + $957). See 
Step 5.
    Example 2. (i) Facts. The facts are the same as in Example 1, 
except that on August 31, 2007, X of the X-Y-Z controlled group sold 
all of the stock of Z to M of the M-N controlled group, a pair of 
corporations unrelated to the X-Y group. Pursuant to the terms of 
the sales agreement, the members of the M-N group properly notified 
the members of the X-Y group on a timely basis that Z's taxable 
income for its 2007 tax year, as based on the group's December 31st 
testing date, was $100,000.
    (ii) Controlled group analysis. On December 31st, 2007, X and Y 
are members of the selling controlled group and M, N and Z are 
members of the buying controlled group. However, pursuant to section 
1563(b)(3), Z is treated as an additional member of the X-Y group on 
December31st 2007, since it was a member for at least one-half the 
number of days (243 out of 364) during the period beginning on 
January 1 and ending on December 30, 2007. Conversely, pursuant to 
section 1563(b)(2)(A), Z is treated as an excluded member of the M-N 
controlled group. Therefore, on December 31st, 2007, X, Y, and Z 
qualify as component members of the selling group, and only M and N 
qualify as component members of the buying group.
    (iii) Additional tax analysis. With regard to X and Y's 2007 tax 
years, X and Y together owed $5,000 of additional tax, as calculated 
in Example 1. X's allocated portion of the additional tax is $3,234, 
as calculated in the manner set forth in Example 1. Y's allocated 
portion of the additional tax is $1,766, also as calculated in the 
manner set forth in Example 1.
    Example 3. (i) Facts. The facts are the same as in Example 2, 
except that in 2012, pursuant to an IRS audit, Z's 2007 taxable 
income was re-determined. It was adjusted by an income increase of 
$10,000. Pursuant to the terms of the sales agreement, the members 
of the M-N group timely notified the members of the X-Y group of Z's 
income adjustment.
    (ii) Additional tax analysis. For 2007 the X-Y-Z group owed a 
revised additional tax in the amount of $5,500, allocated as 
follows: $3,557.40 to X and $1,942.60 to Y. X and Y each filed an 
amended 2007 tax return to report their portions of the $500 
increase to the group's additional tax. Pursuant to their 
apportionment plan for allocating their regular tax, and as a result 
of defaulting to the proportionate method for allocating the group's 
additional tax, X reported $323.40 as its share of the group's 
increase to its additional tax and Y reported $176.60 as its share 
of the group's increase to its additional tax.
    Example 4. The facts are the same as in Example 1, except that 
the members elected in their apportionment plan to adopt the FIFO 
method for apportioning the additional tax. Under the FIFO method, 
the 5 percent additional tax amount of $5,000 will be apportioned 
entirely to those members who would benefit from using the 15 
percent tax bracket, by reason that $5,000 of the group's

[[Page 68535]]

additional tax is less than $9,500, which is the full tax-benefit 
amount inuring to a controlled group from having a 15 percent tax 
rate applied to the full income bracket subject to that rate. Since 
X derived 80 percent of the group's tax benefit by its use of the 15 
percent tax bracket, its share of the group's 5 percent additional 
tax is $4,000 (80% x $5,000), and Y's share of the group's 5 percent 
additional tax is, therefore, $1,000, which is the remaining amount 
of the group's 5 percent additional tax, attributable to the 15 
percent tax bracket.

    (b) Reduction to the amount exempted from the alternative minimum 
tax--(1) Calculation. The alternative minimum taxable incomes of the 
component members of a controlled group of corporations shall be taken 
into account in calculating the reduction set forth in section 55(d)(3) 
to the amount exempted from the alternative minimum tax (the exemption 
amount). For purposes of the preceding sentence, alternative minimum 
taxable income means the positive alternative minimum taxable income of 
a component member for its entire tax year (even if it was not a member 
of the group for each day of that tax year) that includes the same 
December 31st testing date, which is also applicable to the other 
component members of that same controlled group.
    (2) Apportionment. Any reduction to the exemption amount shall be 
apportioned to the component members of a controlled group in the same 
manner that the amount of the exemption (provided in section 55(d)(2)) 
to the alternative minimum tax was allocated under section 1561(a). For 
rules to apportion the section 55(d)(2) exemption amount among the 
component members of a controlled group, see Sec.  1.1561-3(b) or (c).
    (3) Examples. The provisions of this paragraph (b) may be 
illustrated by the following example:

    Example. (i) Facts. A controlled group of corporations consists 
of three members: X, Y and Z. X owns all of the stock of Y and Z. 
Each corporation files its separate return on a calendar year basis. 
For calendar year 2007, the component members of this controlled 
group have an apportionment plan in effect. The group has chosen to 
apportion the entire section 55(d)(2) exemption amount of $40,000 to 
Z. For 2007, X had alternative minimum taxable income (AMTI) of 
$40,000, Y had AMTI of $60,000 and Z had AMTI of $100,000. Thus the 
total AMTI of the group is $200,000.
    (ii) Calculating the reduction to the exemption amount. Section 
55(d)(3)(A) provides that the section 55(d)(2) exemption amount 
shall be reduced (but not below zero) by an amount equal to 25 
percent of the amount by which the AMTI of a corporation exceeds 
$150,000. For the purpose of computing the group's AMTI, the AMTI of 
each of the component members, for their tax years that have the 
same December 31st testing date, shall be taken into account. In 
accordance with these provisions, the $40,000 exemption amount is 
reduced by $12,500 (25% x $50,000 ($200,000-$150,000)). Pursuant to 
the group's allocation plan, the entire $12,500 reduction to the 
exemption amount is allocated to Z. Thus, after such allocation, Z's 
$40,000 exemption amount is reduced to $27,500 ($40,000-$12,500).
    (c) Accumulated earnings credit. The component members of a 
controlled group of corporations are permitted to allocate the amount 
of the accumulated earnings credit unequally if they have an 
apportionment plan in effect.
    (d) [Reserved].
    (e) Short taxable years not including a December 31st date--(1) 
General rule. If a corporation has a short taxable year not including a 
December 31st date and, after applying the rules of section 1561(b) and 
paragraph (e)(2)(i) of this section, it qualifies as a component member 
of the group with respect to its short taxable year (short-year 
member), then, for purposes of subtitle A of the Internal Revenue Code, 
the amount of any tax-benefit item described in section 1561(b) 
allocated to that component member's short taxable year shall be the 
amount specified in section 1561(a) for that item, divided by the 
number of corporations which are component members of that group on the 
last day of that component member's short taxable year. The component 
members of such group may not apportion, by an apportionment plan, an 
amount of such tax-benefit item to any short-year member that differs 
from equal apportionment of that item.
    (2) Additional rules. For purposes of paragraph (e)(1) of this 
section--
    (i) Section 1563(b) shall be applied as if the last day of the 
taxable year of a short-year member were substituted for December 31st; 
and
    (ii) The term short taxable year does not refer to any portion of a 
tax year of a corporation for which its income is required to be 
included in a consolidated return pursuant to Sec.  1.1502-76(b).
    (3) Calculation of the additional tax. A short-year member (as 
defined in paragraph (e)(1) of this section) for its short taxable year 
calculates its additional tax liability imposed by section 11(b)(1) 
only on its own income, and therefore the subsequent calculation of the 
additional tax liability with regard to the remaining members of the 
group will not include the income of this short-year member.
    (4) Calculation of the alternative minimum tax. If a component 
member has a tax year of less than 12 months, whether or not such tax 
year includes a December 31st date, see section 443(d) for the 
annualization method required for calculating the alternative minimum 
tax.
    (5) Examples. The provisions of this paragraph (e) may be 
illustrated by the following examples:

    Example 1.  Formation of a new member of a controlled group. (i) 
Facts. On January 2, 2007, corporation X transfers cash to newly 
formed corporation Y (which begins business on that date) and 
receives all of the stock of Y in return. X also owns all of the 
stock of corporation Z on each day of 2006 and 2007. X, Y and Z have 
an apportionment plan in effect, apportioning the 15 percent tax-
bracket amount as follows: 40% ($20,000) to each of X and Y and 20% 
($10,000) to Z. X, Y and Z each file a separate return with respect 
to the group's December 31st, 2007 testing date. X is on a calendar 
tax year and Z is on a fiscal tax year ending on March 31. Y adopts 
a fiscal year ending on June 30 and timely files a tax return for 
its short taxable year beginning on January 2, 2007, and ending on 
June 30, 2007.
    (ii) Y's short taxable year. On June 30, 2007, Y is a component 
member of a parent-subsidiary controlled group of corporations 
composed of X, Y and Z. Pursuant to paragraph (e)(1) of this 
section, the group may not apportion any amount of the 15 percent 
tax bracket to Y's short taxable year ending on June 30, 2007. 
Rather, Y is entitled to exactly \1/3\ of such bracket amount, or 
$16,667.
    (iii) The members' subsequent tax years. On December 31st, 2007, 
X, Y and Z are component members of a parent-subsidiary controlled 
group of corporations. For their tax years that include December 
31st, 2007 (X's calendar year ending December 31st, 2007, Z's fiscal 
year ending March 31, 2008 and Y's fiscal year ending June 30, 
2008), X, Y and Z apportion among themselves the full amount of all 
of the applicable tax brackets pursuant to their apportionment plan. 
For example, 40% of the 15 percent tax-bracket amount, or $20,000, 
was apportioned to each of X and Y, and the remaining 10%, or 
$10,000, was apportioned to Z.
    Example 2.  Allocating a tax bracket to the short taxable year 
of a liquidated member of a controlled group. (i) Facts. On January 
1, 2007, corporation P owns all of the stock of corporations 
S1, S2 and S3 (the P group). Each 
of these four component members of the P group, with respect to the 
group's December 31st, 2007 testing date, files its separate return 
on a calendar year basis. These members have an apportionment plan 
in effect (the P group plan) under which S1 and 
S2 are each entitled to 40% of the 15 percent tax-bracket 
amount ($20,000), and P and S3 are each entitled to 10% 
of the 15 percent tax-bracket amount ($5,000). On May 31, 2007, 
S1 liquidates and therefore files a return for the short 
taxable year beginning on January 1, 2007, and ending on May 31, 
2007. On July 31, 2007, S2 liquidates and therefore files 
a return for the short taxable year beginning on January 1, 2007 and 
ending on July 31, 2007. P and S3 each file a return for 
their 2007 calendar tax years.
    (ii) Apportionment of the 15 percent tax bracket to 
S1 for its short taxable year. On

[[Page 68536]]

May 31, 2007, S1 is a component member of the P group 
composed of P, S1, S2 and S3. 
Pursuant to paragraph (e)(1) of this section, the group may not 
apportion any amount of the 15 percent tax bracket to 
S1's short taxable year ending on June 30, 2007. Rather, 
S1 is entitled to exactly \1/4\ of such bracket amount, 
or $12,500.
    (iii) Apportionment of the 15 percent tax bracket to 
S2 for its short taxable year. On July 31, 2007, 
S2 is a component member of the P group composed of P, 
S2 and S3. Pursuant to paragraph (e)(1) of 
this section, the group may not apportion any amount of the 15 
percent tax bracket to S2's short taxable year ending on 
June 30, 2007. Rather, S2 is entitled to exactly \1/3\ of 
such bracket amount, or $16,667.
    (iv) Apportionment of the 15 percent tax bracket to P and 
S3 for each of their calendar tax years. On December 
31st, 2007, P and S3 are component members of the P 
group. Accordingly, for P and S3's 2007 calendar tax 
year, they are each apportioned $25,000 of the 15 percent tax 
bracket, pursuant to the applicable P group plan.
    Example 3.  Liquidation of member after its transfer to another 
controlled group. (i) Facts. The facts are the same as in Example 2, 
except that P, on April 30, 2007, sold all of the stock of 
S2 to the M-N controlled group. At the time of the sale, 
M and N are both unrelated to any members of the P group. As in 
Example 2, S2 liquidates on July 31, 2007, and therefore 
files a tax return for its short taxable year beginning on January 
1, 2007, and ending on July 31, 2007. Pursuant to the sales 
agreement, the N-M group timely notified P that S2 had 
liquidated.
    (ii) Controlled group analysis. On April 30, 2007, the date of 
the sale of S2, the P group reasonably expected that 
S2 would be treated as an excluded member with respect to 
its December 31st, 2007 testing date. On that April 30th date, 
S2 had been a member of the P group for less than one-
half the number of days of what it expected would be a full 2007 
calendar tax year preceding December 31st, 2007 (120 days (January 
1-April 30) out of 364 days (January 1-December 30)). Yet, as a 
result of S2's subsequent liquidation by the M-N group 
prior to December 31st, 2007, S2 became a component 
member of the P group with respect to the P group's December 31st, 
2007 testing date. With respect to that December 31st testing date, 
S2 thus was a member of the P group for more than one-
half of the number of days of its tax year ending on July 31, 2007, 
which days proceeded December 31st, 2007 (120 days (January 1-April 
30 of 2007) out of 211 days (January 1-July 30 of 2007)). The 
allocation of the 15 percent tax-bracket amount to the P group 
members is determined in the same manner as in Example 2 and, 
therefore, the bracket amounts allocated to P, S1, 
S2 and S3 are the same as determined in 
Example 2. The allocation of the bracket amounts would be the same 
if, at the time P sold all of the S2 stock, the parties 
had made a section 338(h)(10) election.
    Example 4.  Short tax year including a December 31st date. 
Corporation X owns all of the stock of corporations Y and Z. X, Y 
and Z each file separate returns. X and Y are on a calendar tax year 
and Z is on a fiscal tax year beginning October 1 and ending 
September 30. On January 2, 2007, Z liquidates. Because Z's final 
tax year (beginning on October 1, 2006 and ending on January 2, 
2007) includes a December 31st date, that is, December 31, 2006, it 
is therefore not subject to the short taxable year rule provided by 
section 1561(b) and paragraph (e) of this section. Accordingly, Z is 
a component member of the X-Y-Z group, for the group's December 
31st, 2006 testing date. Thus, the rules of this paragraph (e) do 
not limit the amount of any of the tax-benefit items of section 
1561(a) available to Z or to this controlled group.

    (f) Effective/applicability date. This section applies to any tax 
year beginning on or after December 21, 2009. However, taxpayers may 
apply this section to any Federal income tax return filed on or after 
December 21, 2009. For tax years beginning before December 21, 2009, 
see Sec.  1.1561-2T as contained in 26 CFR part 1 in effect on April 1, 
2009.


Sec.  1.1561-2T  [Removed]

0
Par. 13. Section 1.1561-2T is removed.

0
Par. 14. Section 1.1561-3 is added to read as follows:


Sec.  1.1561-3  Allocation of the section 1561(a) tax items.

    (a) Filing of form--(1) In general. For each tax year that a 
corporation is a component member of the same controlled group of 
corporations on a December 31st (its testing date), or, in the case of 
a short-year member (see section 1561(b) and Sec.  1.1561-2(e)), the 
date substituted for that December 31st date (its testing date), such 
corporation and all the other component members of such group each must 
file the required form (that is, Schedule O or any successor form) with 
the Federal income tax return for that component member's tax year that 
includes a particular testing date. Each such corporation must file 
that form with its return whether or not--
    (i) An apportionment plan is in effect; or
    (ii) Any change is made to the group's apportionment of its section 
1561(a) tax benefit items from the previous year.
    (2) Exception for component members that are members of a 
consolidated group. If any of the component members of a controlled 
group of corporations are also members of a consolidated group, the 
parent of such consolidated group shall file only one form on behalf of 
all such members. Such form shall contain the information required for 
each such member.
    (b) No apportionment plan in effect. If the component members of a 
controlled group of corporations do not have an apportionment plan in 
effect, the amounts of the section 1561(a) items must be divided 
equally among all such members. For purposes of the preceding sentence, 
if any of the component members of a controlled group of corporations 
are also members of a consolidated group, such members will each be 
treated as a separate component member of the controlled group.
    (c) Apportionment plan in effect--(1) Adoption of plan. The 
component members of a controlled group of corporations consent to the 
adoption (or amendment) of an apportionment plan by checking the box to 
that effect on such form. For purposes of this paragraph (c)--
    (i) An apportionment plan that is adopted (including a plan that 
has been amended) continues in effect until it is terminated;
    (ii) A consolidated group is treated collectively as one component 
member of such group. This treatment occurs even where a member of that 
consolidated group has joined or left the group, if after such 
corporation joins or leaves the consolidated group, that group remains 
in existence, pursuant to Sec.  1.1502-75(d); and
    (iii) The members must allocate the amounts of the section 1561(a) 
items between/among themselves as described in the plan.
    (2) Limitation on adopting a plan--(i) Sufficient statute of 
limitations period for making an assessment of tax. The members may 
only adopt or amend such a plan if there is at least one year remaining 
in the statutory period (including any extensions thereof) for the 
assessment of a deficiency against every member the tax liability of 
which would be increased by the adoption of such a plan.
    (ii) Insufficient statute of limitations period for making an 
assessment of tax. If any member cannot satisfy the requirement of 
paragraph (c)(2)(i) of this section, the members may not adopt or amend 
such a plan unless the member not satisfying such requirement has 
entered into an agreement with the Internal Revenue Service to extend 
the statute of limitations for the limited purpose of assessing any 
deficiency against such member attributable to the adoption of such a 
plan.
    (3) Termination of plan. An apportionment plan that is in effect 
for the component members of a controlled group with respect to a 
preceding December 31st is terminated with respect to the current 
December 31st if--
    (i) Each member of such group consents to the termination of such a 
plan for the current December 31st by

[[Page 68537]]

checking the box to that effect on its form;
    (ii) The controlled group ceases to remain in existence (within the 
meaning of section 1563(a)) during the calendar year ending on the 
current December 31st;
    (iii) Any corporation which was a component member of such group on 
the preceding December 31st is not a component member of such group on 
the current December 31st; or
    (iv) Any corporation which was not a component member of such group 
on the preceding December 31st is a component member of such group on 
the current December 31st.
    (d) Effective/applicability date. This section applies to any tax 
year beginning on or after December 21, 2009. However, taxpayers may 
apply this section to any Federal income tax return filed on or after 
December 21, 2009. For tax years beginning before December 21, 2009, 
see Sec.  1.1561-3T as contained in 26 CFR part 1 in effect on April 1, 
2009.


Sec.  1.1561-3T  [Removed]

0
Par. 15. Section 1.1561-3T is removed.

Steven T. Miller,
Deputy Commissioner for Services and Enforcement.
    Approved: December 17, 2009.
Michael Mundaca,
Acting Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. E9-30547 Filed 12-22-09; 4:15 pm]
BILLING CODE 4830-01-P