[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 26

Internal Revenue


________________________

Part 1 (Sec. 1.1551 to end of part 1)

                         Revised as of April 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

          Legal Status and Use of Seals and Logos
          
          
          The seal of the National Archives and Records Administration 
              (NARA) authenticates the Code of Federal Regulations (CFR) as 
              the official codification of Federal regulations established 
              under the Federal Register Act. Under the provisions of 44 
              U.S.C. 1507, the contents of the CFR, a special edition of the 
              Federal Register, shall be judicially noticed. The CFR is 
              prima facie evidence of the original documents published in 
              the Federal Register (44 U.S.C. 1510).

          It is prohibited to use NARA's official seal and the stylized Code 
              of Federal Regulations logo on any republication of this 
              material without the express, written permission of the 
              Archivist of the United States or the Archivist's designee. 
              Any person using NARA's official seals and logos in a manner 
              inconsistent with the provisions of 36 CFR part 1200 is 
              subject to the penalties specified in 18 U.S.C. 506, 701, and 
              1017.

          Use of ISBN Prefix

          This is the Official U.S. Government edition of this publication 
              and is herein identified to certify its authenticity. Use of 
              the 0-16 ISBN prefix is for U.S. Government Publishing Office 
              Official Editions only. The Superintendent of Documents of the 
              U.S. Government Publishing Office requests that any reprinted 
              edition clearly be labeled as a copy of the authentic work 
              with a new ISBN.

              
              
          U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E

          ------------------------------------------------------------------

          U.S. Superintendent of Documents   Washington, DC 20402-
              0001

          http://bookstore.gpo.gov

          Phone: toll-free (866) 512-1800; DC area (202) 512-1800

[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 26:
          Chapter I--Internal Revenue Service, Department of 
          the Treasury (Continued)                                   3
  Finding Aids:
      Table of CFR Titles and Chapters........................     843
      Alphabetical List of Agencies Appearing in the CFR......     863
      Table of OMB Control Numbers............................     873
      List of CFR Sections Affected...........................     891

[[Page iv]]


      


                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 26 CFR 1.1551-1 
                       refers to title 26, part 
                       1, section 1551-1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2017), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected]

SALES

    The Government Publishing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll-free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2104, 24 hours a day. For payment by check, 
write to: US Government Publishing Office - New Orders, P.O. Box 979050, 
St. Louis, MO 63197-9000.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.ofr.gov. For more 
information, contact the GPO Customer Contact Center, U.S. Government 
Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected]
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    April 1, 2017.

                                
                                      
                            

  

[[Page ix]]



                               THIS TITLE

    Title 26--Internal Revenue is composed of twenty-two volumes. The 
contents of these volumes represent all current regulations issued by 
the Internal Revenue Service, Department of the Treasury, as of April 1, 
2017. The first fifteen volumes comprise part 1 (Subchapter A--Income 
Tax) and are arranged by sections as follows: Secs. 1.0-1.60; 
Secs. 1.61-1.139; Secs. 1.140-1.169; Secs. 1.170-1.300; Secs. 1.301-
1.400; Secs. 1.401-1.409; Secs. 1.410-1.440; Secs. 1.441-1.500; 
Secs. 1.501-1.640; Secs. 1.641-1.850; Secs. 1.851-1.907; Secs. 1.908-
1.1000; Secs. 1.1001-1.1400; Secs. 1.1401-1.1550; and Sec. 1.1551 to end 
of part 1. The sixteenth volume containing parts 2-29, includes the 
remainder of subchapter A and all of Subchapter B--Estate and Gift 
Taxes. The last six volumes contain parts 30-39 (Subchapter C--
Employment Taxes and Collection of Income Tax at Source); parts 40-49; 
parts 50-299 (Subchapter D--Miscellaneous Excise Taxes); parts 300-499 
(Subchapter F--Procedure and Administration); parts 500-599 (Subchapter 
G--Regulations under Tax Conventions); and part 600 to end (Subchapter 
H--Internal Revenue Practice).

    The OMB control numbers for Title 26 appear in Sec. 602.101 of this 
chapter. For the convenience of the user, Sec. 602.101 appears in the 
Finding Aids section of the volumes containing parts 1 to 599.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of John Hyrum 
Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




        (This book contains part 1, Sec. 1.1551 to end of part 1)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Internal Revenue Service, Department of the 
  Treasury (Continued)......................................           1

[[Page 3]]



    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)




  --------------------------------------------------------------------


  Editorial Note: IRS published a document at 45 FR 6088, January 25, 
1980, deleting statutory sections from their regulations. In Chapter I 
cross references to the deleted material have been changed to the 
corresponding sections of the IRS Code of 1954 or to the appropriate 
regulations sections. When either such change produced a redundancy, the 
cross reference has been deleted. For further explanation, see 45 FR 
20795, Mar. 31, 1980.

                  SUBCHAPTER A--INCOME TAX (CONTINUED)
Part                                                                Page
1               Income taxes (Continued)....................           5

Supplementary Publications: Internal Revenue Service Looseleaf 
  Regulations System.
  Additional supplementary publications are issued covering Alcohol and 
Tobacco Tax Regulations, and Regulations Under Tax Conventions.

[[Page 5]]



                   SUBCHAPTER A_INCOME TAX (CONTINUED)





PART 1_INCOME TAXES (CONTINUED)--Table of Contents



                              RELATED RULES

Sec.
1.1551-1  Disallowance of surtax exemption and accumulated earnings 
          credit.
1.1552-1  Earnings and profits.

                     Certain Controlled Corporations

1.1561-0  Table of contents.
1.1561-1  General rules regarding certain tax benefits available to the 
          component members of a controlled group of corporations.
1.1561-2  Special rules for allocating reductions of certain section 
          1561(a) tax-benefit items.
1.1561-3  Allocation of the section 1561(a) tax items.
1.1563-1  Definition of controlled group of corporations and component 
          members and related concepts.
1.1563-2  Excluded stock.
1.1563-3  Rules for determining stock ownership.
1.1563-4  Franchised corporations.

  Individual Shared Responsibility Payment for Not Maintaining Minimum 
                           Essential Coverage

                      PROCEDURE AND ADMINISTRATION

                         INFORMATION AND RETURNS

1.5000A-0  Table of contents.
1.5000A-1  Maintenance of minimum essential coverage and liability for 
          the shared responsibility payment.
1.5000A-2  Minimum essential coverage.
1.5000A-3  Exempt individuals.
1.5000A-4  Computation of shared responsibility payment.
1.5000A-5  Administration and procedure.

                   Tax on Certain Foreign Procurement

1.5000C-0  Outline of regulation provisions for section 5000C.
1.5000C-1  Tax on specified Federal procurement payments.
1.5000C-2  Withholding on specified Federal procurement payments.
1.5000C-3  Payment and returns of tax withheld by the acquiring agency.
1.5000C-4  Requirement for the foreign contracting party to file a 
          return and pay tax, and procedures for the contracting party 
          to seek a refund.
1.5000C-5  Anti-abuse rule.
1.5000C-6  Examples.
1.5000C-7  Effective/applicability date.

                           Returns and Records

                Records, Statements, and Special Returns

1.6001-1  Records.
1.6001-2  Returns.

                        Tax Returns or Statements

1.6011-1  General requirement of return, statement, or list.
1.6011-2  Returns, etc., of DISC's and former DISC's.
1.6011-3  Requirement of statement from payees of certain gambling 
          winnings.
1.6011-4  Requirement of statement disclosing participation in certain 
          transactions by taxpayers.
1.6011-5  Required use of magnetic media for corporate income tax 
          returns.
1.6011-6  [Reserved]
1.6011-7  Specified tax return preparers required to file individual 
          income tax returns using magnetic media.
1.6011-8  Requirement of income tax return for taxpayers who claim the 
          premium tax credit under section 36B.
1.6012-1  Individuals required to make returns of income.
1.6012-2  Corporations required to make returns of income.
1.6012-3  Returns by fiduciaries.
1.6012-4  Miscellaneous returns.
1.6012-5  Composite return in lieu of specified form.
1.6012-6  Returns by political organizations.
1.6013-1  Joint returns.
1.6013-2  Joint return after filing separate return.
1.6013-3  Treatment of joint return after death of either spouse.
1.6013-4  Applicable rules.
1.6013-6  Election to treat nonresident alien individual as resident of 
          the United States.
1.6013-7  Joint return for year in which nonresident alien becomes 
          resident of the United States.
1.6014-1  Tax not computed by taxpayer for taxable years beginning 
          before January 1, 1970.
1.6014-2  Tax not computed by taxpayer for taxable years beginning after 
          December 31, 1969.
1.6015-0  Table of contents.
1.6015-1  Relief from joint and several liability on a joint return.
1.6015-2  Relief from liability applicable to all qualifying joint 
          filers.
1.6015-3  Allocation of deficiency for individuals who are no longer 
          married, are legally separated, or are not members of the same 
          household.
1.6015-4  Equitable relief.

[[Page 6]]

1.6015-5  Time and manner for requesting relief.
1.6015-6  Nonrequesting spouse's notice and opportunity to participate 
          in administrative proceedings.
1.6015-7  Tax Court review.
1.6015-8  Applicable liabilities.
1.6015-9  Effective date.
1.6016-1  Declarations of estimated income tax by corporations.
1.6016-2  Contents of declaration of estimated tax.
1.6016-3  Amendment of declaration.
1.6016-4  Short taxable year.
1.6017-1  Self-employment tax returns.

                           Information Returns

1.6031(a)-1  Return of partnership income.
1.6031(b)-1T  Statements to partners (temporary).
1.6031(b)-2T  REMIC reporting requirements (temporary). [Reserved]
1.6031(c)-1T  Nominee reporting of partnership information (temporary).
1.6031(c)-2T  Nominee reporting of REMIC information (temporary). 
          [Reserved]
1.6032-1  Returns of banks with respect to common trust funds.
1.6033-1  Returns by exempt organizations; taxable years beginning 
          before January 1, 1970.
1.6033-2  Returns by exempt organizations (taxable years beginning after 
          December 31, 1969) and returns by certain nonexempt 
          organizations (taxable years beginning after December 31, 
          1980).
1.6033-3  Additional provisions relating to private foundations.
1.6033-4  Required use of magnetic media for returns by organizations 
          required to file returns under section 6033.
1.6033-5  Disclosure by tax-exempt entities that are parties to certain 
          reportable transactions.
1.6033-6  Notification requirement for entities not required to file an 
          annual information return under section 6033(a)(1) (taxable 
          years beginning after December 31, 2006).
1.6034-1  Information returns required of trusts described in section 
          4947(a)(2) or claiming charitable or other deductions under 
          section 642(c).
1.6035-1  Returns of U.S. officers, directors and 10-percent 
          shareholders of foreign personal holding companies for taxable 
          years beginning after September 3, 1982.
1.6035-2  Transitional relief.
1.6035-3  Returns of 50-percent U.S. shareholders of foreign personal 
          holding companies for taxable years beginning before September 
          4, 1982.
1.6036-1  Notice of qualification as executor or receiver.
1.6037-1  Return of electing small business corporation.
1.6037-2  Required use of magnetic media for income tax returns of 
          electing small business corporations.
1.6038-1  Information returns required of domestic corporations with 
          respect to annual accounting periods of certain foreign 
          corporations beginning before January 1, 1963.
1.6038-2  Information returns required of United States persons with 
          respect to annual accounting periods of certain foreign 
          corporations beginning after December 31, 1962.
1.6038-3  Information returns required of certain United States persons 
          with respect to controlled foreign partnerships (CFPs).
1.6038-4  Information returns required of certain United States persons 
          with respect to such person's U.S. multinational enterprise 
          group.
1.6038A-0  Table of contents.
1.6038A-1  General requirements and definitions.
1.6038A-2  Requirement of return.
1.6038A-3  Record maintenance.
1.6038A-4  Monetary penalty.
1.6038A-5  Authorization of agent.
1.6038A-6  Failure to furnish information.
1.6038A-7  Noncompliance.
1.6038B-1  Reporting of certain transfers to foreign corporations.
1.6038B-1T  Reporting of certain transactions to foreign corporations 
          (temporary).
1.6038B-2  Reporting of certain transfers to foreign partnerships.
1.6038B-2T  Reporting of certain transfers to foreign partnerships 
          (temporary).
1.6038D-0  Outline of regulation provisions.
1.6038D-1  Reporting with respect to specified foreign financial assets, 
          definition of terms.
1.6038D-2  Requirement to report specified foreign financial assets.
1.6038D-3  Specified foreign financial assets.
1.6038D-4  Information required to be reported.
1.6038D-5  Valuation guidelines.
1.6038D-6  Specified domestic entities.
1.6038D-7  Exceptions from the reporting of certain assets under Section 
          6038D.
1.6038D-8  Penalties for failure to disclose.
1.6039-1  Returns required in connection with certain options.
1.6039-2  Statements to persons with respect to whom information is 
          reported.
1.6039I-1  Reporting of certain employer-owned life insurance contracts.
1.6041-1  Return of information as to payments of $600 or more.
1.6041-2  Return of information as to payments to employees.
1.6041-3  Payments for which no return of information is required under 
          section 6041.
1.6041-4  Foreign-related items and other exceptions.

[[Page 7]]

1.6041-5  Information as to actual owner.
1.6041-6  Returns made on Forms 1096 and 1099 under section 6041; 
          contents and time and place for filing.
1.6041-7  Magnetic media requirement.
1.6041-8  Cross-reference to penalties.
1.6041-9  Coordination with reporting rules for widely held fixed 
          investment trusts under Sec. 1.671-5.
1.6041-10  Return of information as to payments of winnings from bingo, 
          keno, and slot machine play.
1.6041A-1  Returns regarding payments of remuneration for services and 
          certain direct sales.
1.6042-1  Return of information as to dividends paid in calendar years 
          before 1963.
1.6042-2  Returns of information as to dividends paid.
1.6042-3  Dividends subject to reporting.
1.6042-4  Statements to recipients of dividend payments.
1.6042-5  Coordination with reporting rules for widely held fixed 
          investment trusts under Sec. 1.671-5.
1.6043-1  Return regarding corporate dissolution or liquidation.
1.6043-2  Return of information respecting distributions in liquidation.
1.6043-3  Return regarding liquidation, dissolution, termination, or 
          substantial contraction of organizations exempt from taxation 
          under section 501(a).
1.6043-4  Information returns relating to certain acquisitions of 
          control and changes in capital structure.
1.6044-1  Returns of information as to patronage dividends with respect 
          to patronage occurring in taxable years beginning before 1963.
1.6044-2  Returns of information as to payments of patronage dividends.
1.6044-3  Amounts subject to reporting.
1.6044-4  Exemption for certain consumer cooperatives.
1.6044-5  Statements to recipients of patronage dividends.
1.6045-1  Returns of information of brokers and barter exchanges.
1.6045-2  Furnishing statement required with respect to certain 
          substitute payments.
1.6045-3  Information reporting for an acquisition of control or a 
          substantial change in capital structure.
1.6045-4  Information reporting on real estate transactions with dates 
          of closing on or after January 1, 1991.
1.6045-5  Information reporting on payments to attorneys.
1.6045A-1  Statements of information required in connection with 
          transfers of securities.
1.6045B-1  Returns relating to actions affecting basis of securities.
1.6046-1  Returns as to organization or reorganization of foreign 
          corporations and as to acquisitions of their stock.
1.6046A-1  Return requirement for United States persons who acquire or 
          dispose of an interest in a foreign partnership, or whose 
          proportional interest in a foreign partnership changes 
          substantially.
1.6046-2  Returns as to foreign corporations which are created or 
          organized, or reorganized, on or after September 15, 1960, and 
          before January 1, 1963.
1.6046-3  Returns as to formation or reorganization of foreign 
          corporations prior to September 15, 1960.
1.6047-1  Information to be furnished with regard to employee retirement 
          plan covering an owner-employee.
1.6047-2  Information relating to qualifying longevity annuity 
          contracts.
1.6049-1  Returns of information as to interest paid in calendar years 
          before 1983 and original issue discount includible in gross 
          income for calendar years before 1983.
1.6049-2  Interest and original issue discount subject to reporting in 
          calendar years before 1983.
1.6049-3  Statements to recipients of interest payments and holders of 
          obligations to which there is attributed original issue 
          discount in calendar years before 1983.
1.6049-4  Return of information as to interest paid and original issue 
          discount includible in gross income after December 31, 1982.
1.6049-5  Interest and original issue discount subject to reporting 
          after December 31, 1982.
1.6049(d)-5T  Reporting by brokers of interest and original issue 
          discount on and after January 1, 1986 (temporary).
1.6049-6  Statements to recipients of interest payments and holders of 
          obligations for attributed original issue discount.
1.6049-7  Returns of information with respect to REMIC regular interests 
          and collateralized debt obligations.
1.6049-7T  Market discount fraction reported with other financial 
          information with respect to REMICs and collateralized debt 
          obligations (temporary).
1.6049-8  Interest and original issue discount paid to certain 
          nonresident aliens.
1.6049-9  Premium subject to reporting for a debt instrument acquired on 
          or after January 1, 2014.
1.6049-10  Reporting of original issue discount on a tax-exempt 
          obligation.
1.6050A-1  Reporting requirements of certain fishing boat operators.
1.6050B-1  Information returns by person making unemployment 
          compensation payments.
1.6050D-1  Information returns relating to energy grants and financing.
1.6050E-1  Reporting of State and local income tax refunds.
1.6050H-0  Table of contents.

[[Page 8]]

1.6050H-1  Information reporting of mortgage interest received in a 
          trade or business from an individual.
1.6050H-1T  Information reporting of mortgage interest received in a 
          trade or business from individuals after 1985 and before 1988 
          (temporary).
1.6050H-2  Time, form, and manner of reporting interest received on 
          qualified mortgage.
1.6050H-3  Information reporting of mortgage insurance premiums.
1.6050I-0  Table of contents.
1.6050I-1  Returns relating to cash in excess of $10,000 received in a 
          trade or business.
1.6050I-2  Returns relating to cash in excess of $10,000 received as 
          bail by court clerks.
1.6050J-1T  Questions and answers concerning information returns 
          relating to foreclosures and abandonments of security 
          (temporary).
1.6050K-1  Returns relating to sales or exchanges of certain partnership 
          interests.
1.6050L-1  Information return by donees relating to certain dispositions 
          of donated property.
1.6050L-2  Information returns by donees relating to qualified 
          intellectual property contributions.
1.6050M-1  Information returns relating to persons receiving contracts 
          from certain Federal executive agencies.
1.6050N-1  Statements to recipients of royalties paid after December 31, 
          1986.
1.6050N-2  Coordination with reporting rules for widely held fixed 
          investment trusts under Sec. 1.671-5.
1.6050P-0  Table of contents.
1.6050P-1  Information reporting for discharges of indebtedness by 
          certain entities.
1.6050P-2  Organization a significant trade or business of which is the 
          lending of money.
1.6050S-0  Table of contents.
1.6050S-1  Information reporting for qualified tuition and related 
          expenses.
1.6050S-2  Information reporting for payments and reimbursements or 
          refunds of qualified tuition and related expenses.
1.6050S-3  Information reporting for payments of interest on qualified 
          education loans.
1.6050S-4  Information reporting for payments of interest on qualified 
          education loans.
1.6050W-1  Information reporting for payments made in settlement of 
          payment card and third party network transactions.
1.6050W-2  Electronic furnishing of information statements for payments 
          made in settlement of payment card and third party network 
          transactions.
1.6052-1  Information returns regarding payment of wages in the form of 
          group-term life insurance.
1.6052-2  Statements to be furnished employees with respect to wages 
          paid in the form of group-term life insurance.
1.6055-1  Information reporting for minimum essential coverage.
1.6055-2  Electronic furnishing of statements.
1.6060-1  Reporting requirements for tax return preparers.

          Signing and Verifying of Returns and Other Documents

1.6061-1  Signing of returns and other documents by individuals.
1.6062-1  Signing of returns, statements, and other documents made by 
          corporations.
1.6063-1  Signing of returns, statements, and other documents made by 
          partnerships.
1.6065-1  Verification of returns.

               Time for Filing Returns and Other Documents

1.6071-1  Time for filing returns and other documents.
1.6072-1  Time for filing returns of individuals, estates, and trusts.
1.6072-2  Time for filing returns of corporations.
1.6072-3  Income tax due dates postponed in case of China Trade Act 
          corporations.
1.6072-4  Time for filing other returns of income.
1.6073-1  Time and place for filing declarations of estimated income tax 
          by individuals.
1.6073-2  Fiscal years.
1.6073-3  Short taxable years.
1.6073-4  Extension of time for filing declarations by individuals.
1.6074-1  Time and place for filing declarations of estimated income tax 
          by corporations.
1.6074-2  Time for filing declarations by corporations in case of a 
          short taxable year.
1.6074-3  Extension of time for filing declarations by corporations.

                  Extension of Time for Filing Returns

1.6081-1  Extension of time for filing returns.
1.6081-2  Automatic extension of time to file certain returns filed by 
          partnerships.
1.6081-3  Automatic extension of time for filing corporation income tax 
          returns.
1.6081-4  Automatic extension of time for filing individual income tax 
          return.
1.6081-5  Extensions of time in the case of certain partnerships, 
          corporations and U.S. citizens and residents.
1.6081-6  Automatic extension of time to file estate or trust income tax 
          return.
1.6081-7  Automatic extension of time to file Real Estate Mortgage 
          Investment Conduit (REMIC) income tax return.
1.6081-8  Automatic extension of time to file certain information 
          returns.

[[Page 9]]

1.6081-8T  Extension of time to file certain information returns 
          (temporary).
1.6081-9  Automatic extension of time to file exempt organization 
          returns.
1.6081-10  Automatic extension of time to file withholding tax return 
          for U.S. source income of foreign persons.
1.6081-11  Automatic extension of time for filing certain employee plan 
          returns.

               Place for Filing Returns or Other Documents

1.6091-1  Place for filing returns or other documents.
1.6091-2  Place for filing income tax returns.
1.6091-3  Filing certain international income tax returns.
1.6091-4  Exceptional cases.

                        Miscellaneous Provisions

1.6102-1  Computations on returns or other documents.
1.6107-1  Tax return preparer must furnish copy of return or claim for 
          refund to taxpayer and must retain a copy or record.
1.6107-2  Form and manner of furnishing copy of return and retaining 
          copy or record.
1.6109-1  Identifying numbers.
1.6109-2  Tax return preparers furnishing identifying numbers for 
          returns or claims for refund and related requirements.
1.6115-1  Disclosure requirements for quid pro quo contributions.

 Regulations Applicable to Returns or Claims for Refund Filed Prior to 
                             January 1, 2000

1.6109-2A  Furnishing identifying number of income tax return preparer.

                      TIME AND PLACE FOR PAYING TAX

                  Place and Due Date for Payment of Tax

1.6151-1  Time and place for paying tax shown on returns.
1.6153-1  Payment of estimated tax by individuals.
1.6153-2  Fiscal years.
1.6153-3  Short taxable years.
1.6153-4  Extension of time for paying the estimated tax.

                     Extensions of Time for Payment

1.6161-1  Extension of time for paying tax or deficiency.
1.6162-1  Extension of time for payment of tax on gain attributable to 
          liquidation of personal holding companies.
1.6164-1  Extensions of time for payment of taxes by corporations 
          expecting carrybacks.
1.6164-2  Amount of tax the time for payment of which may be extended.
1.6164-3  Computation of the amount of reduction of the tax previously 
          determined.
1.6164-4  Payment of remainder of tax where extension relates to only 
          part of the tax.
1.6164-5  Period of extension.
1.6164-6  Revised statements.
1.6164-7  Termination by district director.
1.6164-8  Payments on termination.
1.6164-9  Cross references.
1.6165-1  Bonds where time to pay the tax or deficiency has been 
          extended.

                               COLLECTION

                           General Provisions

1.6302-1  Deposit rules for corporation income and estimated income 
          taxes and certain taxes of tax-exempt organizations.
1.6302-2  Deposit rules for tax withheld on nonresident aliens and 
          foreign corporations.
1.6302-3  Deposit rules for estimated taxes of certain trusts.
1.6302-4  Voluntary payments by electronic funds transfer.
1.6361-1  Collection and administration of qualified State individual 
          income taxes.

                    ABATEMENTS, CREDITS, AND REFUNDS

1.6411-1  Tentative carryback adjustments.
1.6411-2  Computation of tentative carryback adjustment.
1.6411-3  Allowance of adjustments.
1.6411-4  Consolidated groups.
1.6414-1  Credit or refund of tax withheld on nonresident aliens and 
          foreign corporations.
1.6425-1  Adjustment of overpayment of estimated income tax by 
          corporation.
1.6425-2  Computation of adjustment of overpayment of estimated tax.
1.6425-3  Allowance of adjustments.

   ADDITIONS TO THE TAX, ADDITIONAL AMOUNTS, AND ASSESSABLE PENALTIES

1.6654-1  Addition to the tax in the case of an individual.
1.6654-2  Exceptions to imposition of the addition to the tax in the 
          case of individuals.
1.6654-3  Short taxable years of individuals.
1.6654-4  Waiver of penalty for underpayment of 1971 estimated tax by an 
          individual.
1.6654-5  Payments of estimated tax.
1.6654-6  Nonresident alien individuals.
1.6654-7  Applicability.
1.6655-0  Table of contents.
1.6655-1  Addition to the tax in the case of a corporation.
1.6655-2  Annualized income installment method.
1.6655-2T  Safe harbor for certain installments of tax due before July 
          1, 1987 (temporary).

[[Page 10]]

1.6655-3  Adjusted seasonal installment method.
1.6655-4  Large corporations.
1.6655-5  Short taxable year.
1.6655-6  Methods of accounting.
1.6655-7  Addition to tax on account of excessive adjustment under 
          section 6425.
1.6655(e)-1  Time and manner for making election under the Omnibus 
          Budget Reconciliation Act of 1993.
1.6662-0  Table of contents.
1.6662-1  Overview of the accuracy-related penalty.
1.6662-2  Accuracy-related penalty.
1.6662-3  Negligence or disregard of rules or regulations.
1.6662-4  Substantial understatement of income tax.
1.6662-5  Substantial and gross valuation misstatements under chapter 1.
1.6662-5T  Substantial and gross valuation misstatements under chapter 1 
          (temporary).
1.6662-6  Transactions between persons described in section 482 and net 
          section 482 transfer price adjustments.
1.6662-7  Omnibus Budget Reconciliation Act of 1993 changes to the 
          accuracy-related penalty.
1.6664-0  Table of contents.
1.6664-1  Accuracy-related and fraud penalties; definitions, effective 
          date and special rules.
1.6664-2  Underpayment.
1.6664-3  Ordering rules for determining the total amount of penalties 
          imposed.
1.6664-4  Reasonable cause and good faith exception to section 6662 
          penalties.
1.6664-4T  Reasonable cause and good faith exception to section 6662 
          penalties.
1.6694-0  Table of contents.
1.6694-1  Section 6694 penalties applicable to tax return preparers.
1.6694-2  Penalty for understatement due to an unreasonable position.
1.6694-3  Penalty for understatement due to willful, reckless, or 
          intentional conduct.
1.6694-4  Extension of period of collection when tax return preparer 
          pays 15 percent of a penalty for understatement of taxpayer's 
          liability and certain other procedural matters.
1.6695-1  Other assessable penalties with respect to the preparation of 
          tax returns for other persons.
1.6695-2  Tax return preparer due diligence requirements for certain 
          credits.
1.6695-2T  Tax return preparer due diligence requirements for certain 
          credits (temporary).
1.6696-1  Claims for credit or refund by tax return preparers or 
          appraisers.
1.6709-1T  Penalties with respect to mortgage credit certificates 
          (temporary).

                 JEOPARDY, BANKRUPTCY, AND RECEIVERSHIPS

1.6851-1  Termination assessments of income tax.
1.6851-2  Certificates of compliance with income tax laws by departing 
          aliens.
1.6851-3  Furnishing of bond to insure payment; cross reference.

                              THE TAX COURT

 Declaratory Judgements Relating to Qualification of Certain Retirement 
                                  Plans

1.7476-1  Interested parties.
1.7476-2  Notice to interested parties.
1.7476-3  Notice of determination.
1.7519-0T  Table of contents (temporary).
1.7519-1T  Required payments for entities electing not to have required 
          year (temporary).
1.7519-2T  Required payments--procedures and administration (temporary).
1.7519-3T  Effective date (temporary).

                      General Actuarial Valuations

1.7520-1  Valuation of annuities, unitrust interests, interests for life 
          or terms of years, and remainder or reversionary interests.
1.7520-2  Valuation of charitable interests.
1.7520-3  Limitation on the application of section 7520.
1.7520-4  Transitional rules.
1.7701-1  Definitions; spouse, husband and wife, husband, wife, 
          marriage.
1.7701(l)-0  Table of contents.
1.7701(l)-1  Conduit financing arrangements.
1.7701(l)-3  Recharacterizing financing arrangements involving fast-pay 
          stock.
1.7701(l)-4T  Rules regarding inversion transactions (temporary).
1.7702-0  Table of contents.
1.7702-2  Attained age of the insured under a life insurance contract.
1.7702B-1  Consumer protection provisions.
1.7702B-2  Special rules for pre-1997 long-term care insurance 
          contracts.
1.7703-1  Determination of marital status.
1.7704-1  Publicly traded partnerships.
1.7704-2  Transition provisions.
1.7704-3  Qualifying income.
1.7704-4  Qualifying income--mineral and natural resources.
1.7872-1--1.7872-4  [Reserved]
1.7872-5  Exempted loans.
1.7872-5T  Exempted loans (temporary).
1.7872-15  Split-dollar loans.
1.7872-16  Loans to an exchange facilitator under Sec. 1.468B-6.
1.7874-1  Disregard of affiliate-owned stock.
1.7874-1T  Disregard of affiliate-owned stock (temporary).
1.7874-2  Surrogate foreign corporation.
1.7874-2T  Surrogate foreign corporation (temporary).
1.7874-3  Substantial business activities.

[[Page 11]]

1.7874-3T  Substantial business activities (temporary).
1.7874-4  Disregard of certain stock related to the domestic entity 
          acquisition.
1.7874-5  Effect of certain transfers of stock related to the 
          acquisition.
1.7874-6T  Stock transferred by members of the EAG (temporary).
1.7874-7T  Disregard of certain stock attributable to passive assets 
          (temporary).
1.7874-8T  Disregard of certain stock attributable to multiple domestic 
          entity acquisitions (temporary).
1.7874-9T  Disregard of certain stock in third-country transactions 
          (temporary).
1.7874-10T  Disregard of certain distributions (temporary).
1.7874-11T  Rules regarding inversion gain (temporary).
1.7874-12T  Definitions (temporary).

                      PUBLIC LAW 74, 84TH CONGRESS

1.9000-1  Statutory provisions.
1.9000-2  Effect of repeal in general.
1.9000-3  Requirement of statement showing increase in tax liability.
1.9000-4  Form and content of statement.
1.9000-5  Effect of filing statement.
1.9000-6  Provisions for the waiver of interest.
1.9000-7  Provisions for estimated tax.
1.9000-8  Extension of time for making certain payments.

             RETIREMENT-STRAIGHT LINE ADJUSTMENT ACT OF 1958

1.9001  Statutory provisions; Retirement-Straight Line Adjustment Act of 
          1958.
1.9001-1  Change from retirement to straight-line method of computing 
          depreciation.
1.9001-2  Basis adjustments for taxable years beginning on or after 1956 
          adjustment date.
1.9001-3  Basis adjustments for taxable years between changeover date 
          and 1956 adjustment date.
1.9001-4  Adjustments required in computing excess-profits credit.

              DEALER RESERVE INCOME ADJUSTMENT ACT OF 1960

1.9002  Statutory provisions; Dealer Reserve Income Adjustment Act of 
          1960 (74 Stat. 124).
1.9002-1  Purpose, applicability, and definitions.
1.9002-2  Election to have the provisions of section 481 of the Internal 
          Revenue Code of 1954 apply.
1.9002-3  Election to have the provisions of section 481 of the Internal 
          Revenue Code of 1954 not apply.
1.9002-4  Election to pay net increase in tax in installments.
1.9002-5  Special rules relating to interest.
1.9002-6  Acquiring corporation.
1.9002-7  Statute of limitations.
1.9002-8  Manner of exercising elections.

             PUBLIC DEBT AND TAX RATE EXTENSION ACT OF 1960

1.9003  Statutory provisions; section 4 of the Act of September 14, 1960 
          (Pub. L. 86-781, 74 Stat. 1017).
1.9003-1  Election to have the provisions of section 613(c)(2) and (4) 
          of the 1954 Code, as amended, apply for past years.
1.9003-2  Effect of election.
1.9003-3  Statutes of limitation.
1.9003-4  Manner of exercising election.
1.9003-5  Terms; applicability of other laws.

CERTAIN BRICK AND TILE CLAY, FIRE CLAY, AND SHALE; REGULATIONS UNDER THE 
                        ACT OF SEPTEMBER 26, 1961

1.9004  Statutory provisions; the Act of September 26, 1961 (Pub. L. 87-
          312, 75 Stat. 674).
1.9004-1  Election relating to the determination of gross income from 
          the property for taxable years beginning prior to 1961 in the 
          case of certain clays and shale.
1.9004-2  Effect of election.
1.9004-3  Statutes of limitation.
1.9004-4  Manner of exercising election.
1.9004-5  Terms; applicability of other laws.

 QUARTZITE AND CLAY USED IN PRODUCTION OF REFRACTORY PRODUCTS; ELECTION 
                         FOR PRIOR TAXABLE YEARS

1.9005  Statutory provisions; section 2 of the Act of September 26, 1961 
          (Pub. L. 87-321, 75 Stat. 683).
1.9005-1  Election relating to the determination of gross income from 
          the property for taxable years beginning prior to 1961 in the 
          case of clay and quartzite used in making refractory products.
1.9005-2  Effect of election.
1.9005-3  Statutes of limitation.
1.9005-4  Manner of exercising election.
1.9005-5  Terms; applicability of other laws.

                         Tax Reform Act of 1969

1.9006  Statutory provisions; Tax Reform Act of 1969.
1.9006-1  Interest and penalties in case of certain taxable years.

                        MISCELLANEOUS PROVISIONS

1.9101-1  Permission to submit information required by certain returns 
          and statements on magnetic tape.
1.9200-1  Deduction for motor carrier operating authority.
1.9200-2  Manner of taking deduction.
1.9300-1  Reduction in taxable income for housing displaced individuals.


[[Page 12]]


    Authority: 26 U.S.C. 7805, unless otherwise noted.
    Section 1.1561-2 also issued under 26 U.S.C. 1561.
    Section 1.5000A-3 also issued under 26 U.S.C. 5000A(e)(4).
    Section 1.5000C-1 is also issued under 26 U.S.C. 5000C
    Section 1.5000C-2 is also issued under 26 U.S.C. 5000C
    Section 1.5000C-3 is also issued under 26 U.S.C. 5000C
    Section 1.5000C-4 is also issued under 26 U.S.C. 5000C
    Section 1.5000C-5 is also issued under 26 U.S.C. 5000C
    Section 1.5000C-6 is also issued under 26 U.S.C. 5000C
    Section 1.6011-4T also issued under 26 U.S.C. 6001 and 6011(a).
    Section 1.6011-4T also issued under 26 U.S.C. 6011.
    Section 1.6011-6 also issued under 26 U.S.C. 6011(a).
    Section 1.6011-7 also issued under 26 U.S.C. 6011(e).
    Section 1.6012-2 is also issued under the authority of 26 U.S.C. 
6011 and 6012.
    Section 1.6013-6 also issued under 26 U.S.C. 7701(b)(11).
    Section 1.6015-1 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-2 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-3 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-4 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-5 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-6 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-7 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-8 also issued under 26 U.S.C. 6015(h).
    Section 1.6015-9 also issued under 26 U.S.C. 6015(h).
    Section 1.6031(a)-1 also issued under section 404 of the Tax Equity 
and Fiscal Responsibility Act of 1982 (Public Law 97-248; 96 Stat. 324, 
669) (TEFRA).
    Section 1.6033-6 also issued under 26 U.S.C. 6033(i)(1).
    Sections 1.6035-1 through 1.6035-3 also issued under 26 U.S.C. 6035 
(a), (d), and (e).
    Section 1.6035-2 also issued under 26 U.S.C. 6035(b).
    Section 1.6035-2T also issued under 26 U.S.C. 6035.
    Section 1.6038-2 also issued under 26 U.S.C. 6038.
    Section 1.6038-2T also issued under 26 U.S.C. 6038(d).
    Section 1.6038-3 also issued under 26 U.S.C. 6038.
    Section 1.6038-4 also issued under 26 U.S.C. 6001, 6011, 6012, 6031, 
and 6038.
    Section 1.6038A-1 also issued under 26 U.S.C. 6001.
    Section 1.6038A-2 also issued under 26 U.S.C. 6001.
    Section 1.6038A-3 also issued under 26 U.S.C. 6038A and 7701(l).
    Section 1.6038A-4 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-5 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-6 also issued under 26 U.S.C. 6038A.
    Section 1.6038A-7 also issued under 26 U.S.C. 6038A.
    Section 1.6038B-1 also issued under 26 U.S.C. 6038B.
    Section 1.6038B-1T also issued under 26 U.S.C 6038B.
    Section 1.6038B-2 also issued under 26 U.S.C. 6038B.
    Section 1.6038B-2T also issued under 26 U.S.C. 6038B.
    Section 1.6038D-0 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-1 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-2 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-3 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-4 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-5 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-6 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-7 also issued under 26 U.S.C. 6038D.
    Section 1.6038D-8 also issued under 26 U.S.C. 6038D.
    Section 1.6039I-1 also issued under 26 U.S.C. 6039I.
    Section 1.6041-1 also issued under 26 U.S.C. 6041(a).
    Section 1.6041-2 also issued under 26 U.S.C. 6041(d).
    Section 1.6041-3 also issued under 26 U.S.C. 62 and 6041(a).
    Section 1.6042-3 also issued under 26 U.S.C. 6045.
    Section 1.6043-4 also issued under 26 U.S.C. 6043(c).
    Section 1.6045-1 also issued under 26 U.S.C. 6045.
    Section 1.6045-1T also issued under 26 U.S.C. 6045(g).
    Section 1.6045-2 also issued under 26 U.S.C. 6045.
    Section 1.6045-3 also issued under 26 U.S.C. 6045.
    Section 1.6045-4 also issued under 26 U.S.C. 6045.
    Section 1.6045A-1 also issued under 26 U.S.C. 6045A(a), (b), (c).

[[Page 13]]

    Section 1.6045B-1 also issued under 26 U.S.C. 6045B(a), (c), (e).
    Section 1.6046-1 also issued 26 U.S.C. 6046(b).
    Section 1.6046-1T also issued under 26 U.S.C. 6046(b).
    Section 1.6046A-1 also issued under 26 U.S.C. 6046A.
    Section 1.6047-2 is also issued under 26 U.S.C. 6047(d).
    Section 1.6049-4 also issued under 26 U.S.C. 6049 (a), (b), and (d).
    Section 1.6049-5 also issued under 26 U.S.C. 6049 (a), (b), and (d).
    Section 1.6049-5T also issued under 26 U.S.C. 6049.
    Section 1.6049-6 also issued under 6049(a), (b), and (d).
    Section 1.6049-7 also issued under 26 U.S.C. 860G(e), 1275(c) and 26 
U.S.C. 6049(d)(7)(D).
    Section 1.6049-9 also issued under 26 U.S.C. 6049(a).
    Section 1.6049-10 also issued under 26 U.S.C. 6049(a).
    Section 1.6050E-1 also issued under 26 U.S.C. 6050E.
    Section 1.6050H-1 also issued under 26 U.S.C. 6050H.
    Section 1.6050H-1T also issued under 26 U.S.C. 6050H.
    Section 1.6050H-2 also issued under 26 U.S.C. 6050H.
    Section 1.6050H-3 also issued under 26 U.S.C. 6050H(h).
    Section 1.6050I-1 also issued under 26 U.S.C. 6050I.
    Section 1.6050I-2 also issued under 26 U.S.C. 6050I.
    Section 1.6050K-1 also issued under 26 U.S.C. 6050K.
    Section 1.6050M-1 also issued under 26 U.S.C. 6050M.
    Section 1.6050P-1 also issued under 26 U.S.C. 6050P.
    Section 1.6050P-2 also issued under 26 U.S.C. 6050P.
    Section 1.6050S-1 also issued under 26 U.S.C. 6050S(g).
    Section 1.6050S-2 also issued under 26 U.S.C. 6050S(g).
    Section 1.6050S-3 also issued under 26 U.S.C. 6050S(g).
    Section 1.6050S-4 also issued under 26 U.S.C. 6050S(g).
    Sections 1.6055-1 and 1.6055-2 also issued under 26 U.S.C. 6055.
    Section 1.6060-1 also issued under 26 U.S.C. 6060(a).
    Section 1.6061-2T also issued under 26 U.S.C. 6061.
    Section 1.6065-2T also issued under 26 U.S.C. 6065.
    Section 1.6081-1 also issued under 26 U.S.C. 6081.
    Section 1.6081-2 also issued under 26 U.S.C. 6081.
    Section 1.6081-2T also issued under 26 U.S.C. 6081.
    Section 1.6081-3 also issued under 26 U.S.C. 6081.
    Section 1.6081-4 also issued under 26 U.S.C. 6081.
    Section 1.6081-5 also issued under 26 U.S.C. 6081.
    Section 1.6081-6 also issued under 26 U.S.C. 6081.
    Section 1.6081-6T also issued under 26 U.S.C. 6081.
    Section 1.6081-7 also issued under 26 U.S.C. 6081.
    Section 1.6081-8 also issued under 26 U.S.C. 6081(a).
    Section 1.6081-9 also issued under 26 U.S.C. 6081(a).
    Section 1.6081-10 also issued under 26 U.S.C. 6081.
    Section 1.6081-11 also issued under 26 U.S.C. 6081.
    Section 1.6109-2 also issued under 26 U.S.C. 6109(a).
    Sections 1.6302-1, 1.6302-2, 1.6302-3 and 1.6302-4 also issued under 
26 U.S.C. 6302(h).
    Section 1.6411-4 also issued under 26 U.S.C. 6402(i) and 6411(c).
    Section 1.6655-5 also issued under 26 U.S.C. 6655(i)(2).
    Section 1.6662-6 also issued under 26 U.S.C. 6662.
    Section 1.6695-1 also issued under 26 U.S.C. 6060(b) and 6695(b).
    Section 1.6695-1 also issued under 26 U.S.C. 6695(b).
    Section 1.6695-2 also issued under 26 U.S.C. 6695(g).
    Section 1.6695-2T also issued under 26 U.S.C. 6695(g).
    Section 1.6851-2 also issued under 26 U.S.C 6851(d).
    Section 1.7520-1 also issued under 26 U.S.C. 7520(c)(2).
    Section 1.7520-1T also issued under 26 U.S.C. 7520(c)(2).
    Section 1.7520-2 also issued under 26 U.S.C. 7520(c)(2).
    Section 1.7520-3 also issued under 26 U.S.C. 7520(c)(2).
    Section 1.7520-4 also issued under 26 U.S.C. 7520(c)(2).
    Section 1.7701(l)-1 also issued under 26 U.S.C. 7701(l).
    Section 1.7701(l)-3 also issued under 26 U.S.C. 7701(l).
    Section 1.7701(l)-4T also issued under 26 U.S.C. 7701(l) and 
954(c)(6)(A).
    Section 1.7702-2 also issued under 26 U.S.C. 7702(k).
    Section 1.7872-5T also issued under 26 U.S.C. 7872.
    Section 1.7872-15 also issued under 26 U.S.C. 1275 and 7872.
    Section 1.7874-1 also issued under 26 U.S.C. 7874(c)(6) and (g).

[[Page 14]]

    Section 1.7874-1T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-2T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-3 is also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-3T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-4 also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-4T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-5 also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-5T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-6T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-7T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-8T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-9T also issued under 26 U.S.C. 7874(c)(6) and (g).
    Section 1.7874-10T also issued under 26 U.S.C. 7874(c)(4) and (g).
    Section 1.7874-11T also issued under 26 U.S.C. 7874(g).
    Section 1.7874-12T also issued under 26 U.S.C. 7874(g).

    Source: Sections 1.1401-1 through 1.1403-1 contained in T.D. 6691, 
28 FR 12796, Dec. 3, 1963, unless otherwise noted.



RELATED RULES--Table of Contents





Sec. 1.1551-1  Disallowance of surtax exemption and accumulated 
earnings credit.

    (a) In general. If:
    (1) Any corporation transfers, on or after January 1, 1951, and 
before June 13, 1963, all or part of its property (other than money) to 
a transferee corporation,
    (2) Any corporation transfers, directly or indirectly, after June 
12, 1963, all or part of its property (other than money) to a transferee 
corporation, or
    (3) Five or fewer individuals are in control of a corporation and 
one or more of them transfer, directly or indirectly, after June 12, 
1963, property (other than money) to a transferee corporation, and the 
transferee was created for the purpose of acquiring such property or was 
not actively engaged in business at the time of such acquisition, and if 
after such transfer the transferor or transferors are in control of the 
transferee during any part of the taxable year of the transferee, then 
for such taxable year of the transferee the Secretary or his delegate 
may disallow the surtax exemption defined in section 11(d) or the 
accumulated earnings credit of $150,000 ($100,000 in the case of taxable 
years beginning before January 1, 1975) provided in paragraph (2) or (3) 
of section 535(c), unless the transferee establishes by the clear 
preponderance of the evidence that the securing of such exemption or 
credit was not a major purpose of the transfer.
    (b) Purpose of section 1551. The purpose of section 1551 is to 
prevent avoidance or evasion of the surtax imposed by section 11(c) or 
of the accumulated earnings tax imposed by section 531. It is not 
intended, however, that section 1551 be interpreted as delimiting or 
abrogating any principle of law established by judicial decision, or any 
existing provisions of the Code, such as sections 269 and 482, which 
have the effect of preventing the avoidance or evasion of income taxes. 
Such principles of law and such provisions of the Code, including 
section 1551, are not mutually exclusive, and in appropriate cases they 
may operate together or they may operate separately.
    (c) Application of section 269(b) to cases covered by section 1551. 
The provisions of section 269(b) and the authority of the district 
director thereunder, to the extent not inconsistent with the provisions 
of section 1551, are applicable to cases covered by section 1551. 
Pursuant to the authority provided in section 269(b) the district 
director may allow to the transferee any part of a surtax exemption or 
accumulated earnings credit for a taxable year for which such exemption 
or credit would otherwise be disallowed under section 1551(a); or he may 
apportion such exemption or credit among the corporations involved. For 
example, corporation A transfers on January 1, 1955, all of its property 
to corporations B and C in exchange for all of the stock of such 
corporations. Immediately thereafter, corporation A is dissolved and its 
stockholders become the sole stockholders of corporations B and C. 
Assuming that corporations B and C are unable to establish by the clear 
preponderance of the evidence that the securing of the surtax exemption 
defined in section 11(d) or

[[Page 15]]

the accumulated earnings credit provided in section 535, or both, was 
not a major purpose of the transfer, the district director is authorized 
under sections 1551(c) and 269(b) to allow one such exemption and credit 
and to apportion such exemption and credit between corporations B and C.
    (d) Actively engaged in business. For purposes of this section, a 
corporation maintaining an office for the purpose of preserving its 
corporate existence is not considered to be ``actively engaged in 
business'' even though such corporation may be deemed to be ``doing 
business'' for other purposes. Similarly, for purposes of this section, 
a corporation engaged in winding up its affairs, prior to an acquisition 
to which section 1551 is applicable, is not considered to be ``actively 
engaged in business.''
    (e) Meaning and application of the term ``control''--(1) In general. 
For purposes of this section, the term ``control'' means:
    (i) With respect to a transferee corporation described in paragraph 
(a) (1) or (2) of this section, the ownership by the transferor 
corporation, its shareholders, or both, of stock possessing either (a) 
at least 80 percent of the total combined voting power of all classes of 
stock entitled to vote, or (b) at least 80 percent of the total value of 
shares of all classes of stock.
    (ii) With respect to each corporation described in paragraph (a)(3) 
of this section, the ownership by five or fewer individuals of stock 
possessing (a) at least 80 percent of the total combined voting power of 
all classes of stock entitled to vote or at least 80 percent of the 
total value of shares of all classes of the stock of each corporation, 
and (b) more than 50 percent of the total combined voting power of all 
classes of stock entitled to vote or more than 50 percent of the total 
value of shares of all classes of stock of each corporation, taking into 
account the stock ownership of each such individual only to the extent 
such stock ownership is identical with respect to each such corporation.
    (2) Special rules. In determining for purposes of this section 
whether stock possessing at least 80 percent (or more than 50 percent in 
the case of subparagraph (1)(ii)(b) of this paragraph) of the total 
combined voting power of all classes of stock entitled to vote is owned, 
all classes of such stock shall be considered together; it is not 
necessary that at least 80 percent (or more than 50 percent) of each 
class of voting stock be owned. Likewise, in determining for purposes of 
this section whether stock possessing at least 80 percent (or more than 
50 percent) of the total value of shares of all classes of stock is 
owned, all classes of stock of the corporation shall be considered 
together; it is not necessary that at least 80 percent (or more than 50 
percent) of the value of shares of each class be owned. The fair market 
value of a share shall be considered as the value to be used for 
purposes of this computation. With respect to transfers described in 
paragraph (a) (2) or (3) of this section, the ownership of stock shall 
be determined in accordance with the provisions of section 1563(e) and 
the regulations thereunder. With respect to transfers described in 
paragraph (a)(1) of this section, the ownership of stock shall be 
determined in accordance with the provisions of section 544 and the 
regulations thereunder, except that constructive ownership under section 
544(a)(2) shall be determined only with respect to the individual's 
spouse and minor children. In determining control, no stock shall be 
excluded because such stock was acquired before January 1, 1951 (the 
effective date of section 1551(a)(1)), or June 13, 1963 (the effective 
date of section 1551(a) (2) and (3)).
    (3) Example. This paragraph may be illustrated by the following 
example:

    Example. On January 1, 1964, individual A, who owns 50 percent of 
the voting stock of corporation X, and individual B, who owns 30 percent 
of such voting stock, transfer property (other than money) to 
corporation Y (newly created for the purpose of acquiring such property) 
in exchange for all of Y's voting stock. After the transfer, A and B own 
the voting stock of corporations X and Y in the following proportions:

------------------------------------------------------------------------
                                                               Identical
             Individual                 Corp. X     Corp. Y    ownership
------------------------------------------------------------------------
A...................................          50          30          30
B...................................          30          50          30
                                     -----------------------------------
  Total.............................          80          80          60
------------------------------------------------------------------------


[[Page 16]]


The transfer of property by A and B to corporation Y is a transfer 
described in paragraph (a)(3) of this section since (i) A and B own at 
least 80 percent of the voting stock of corporations X and Y, and (ii) 
taking into account each such individual's stock ownership only to the 
extent such ownership is identical with respect to each such 
corporation, A and B own more than 50 percent of the voting stock of 
corporations X and Y.

    (f) Taxable year of allowance or disallowance--(1) In general. The 
district director's authority with respect to cases covered by section 
1551 is not limited to the taxable year of the transferee corporation in 
which the transfer of property occurs. Such authority extends to the 
taxable year in which the transfer occurs or any subsequent taxable year 
of the transferee corporation if, during any part of such year, the 
transferor or transferors are in control of the transferee.
    (2) Examples. This paragraph may be illustrated by the following 
examples:

    Example 1. On January 1, 1955, corporation D transfers property 
(other than money) to corporation E, a corporation not actively engaged 
in business at the time of the acquisition of such property, in exchange 
for 60 percent of the voting stock of E. During a later taxable year of 
E, corporation D acquires an additional 20 percent of such voting stock. 
As a result of such additional acquisition, D owns 80 percent of the 
voting stock of E. Accordingly, section 1551(a)(1) is applicable for the 
taxable year in which the later acquisition of stock occurred and for 
each taxable year thereafter in which the requisite control continues.
    Example 2. On June 20, 1963, individual A, who owns all of the stock 
of corporation X, transfers property (other than money) to corporation 
Y, a corporation not actively engaged in business at the time of the 
acquisition of such property, in exchange for 60 percent of the voting 
stock of Y. During a later taxable year of Y, A acquires an additional 
20 percent of such voting stock. After such acquisition A owns at least 
80 percent of the voting stock of corporations X and Y. Accordingly, 
section 1551(a)(3) is applicable for the taxable year in which the later 
acquisition of stock occurred and for each taxable year thereafter in 
which the requisite control continues.
    Example 3. Individuals A and B each owns 50 percent of the stock of 
corporation X. On January 15, 1964, A transfers property (other than 
money) to corporation Y (newly created by A for the purpose of acquiring 
such property) in exchange for all the stock of Y. In a subsequent 
taxable year of Y, individual B buys 50 percent of the stock which A 
owns in Y (or he transfers money to Y in exchange for its stock, as a 
result of which he owns 50 percent of Y's stock). Immediately thereafter 
the stock ownership of A and B in corporation Y is identical to their 
stock ownership in corporation X. Accordingly, section 1551(a)(3) is 
applicable for the taxable year in which B acquires stock in corporation 
Y (see paragraph (g)(3) of this section) and for each taxable year 
thereafter in which the requisite control continues. Moreover, if B's 
acquisition of stock in Y is pursuant to a preexisting agreement with A, 
A's transfer to Y and B's acquisition of Y's stock are considered a 
single transaction and section 1551(a)(3) also would be applicable for 
the taxable year in which A's transfer to Y took place and for each 
taxable year thereafter in which the requisite control continues.

    (g) Nature of transfer--(1) Corporate transfers before June 13, 
1963. A transfer made before June 13, 1963, by any corporation of all or 
part of its assets, whether or not such transfer qualifies as a 
reorganization under section 368, is within the scope of section 
1551(a)(1), except that section 1551(a)(1) does not apply to a transfer 
of money only. For example, the transfer of cash for the purpose of 
expanding the business of the transferor corporation through the 
formation of a new corporation is not a transfer within the scope of 
section 1551(a)(1), irrespective of whether the new corporation uses the 
cash to purchase from the transferor corporation stock in trade or 
similar property.
    (2) Corporate transfers after June 12, 1963. A direct or indirect 
transfer made after June 12, 1963, by any corporation of all or part of 
its assets to a transferee corporation, whether or not such transfer 
qualifies as a reorganization under section 368, is within the scope of 
section 1551(a)(2) except that section 1551(a)(2) does not apply to a 
transfer of money only. For example, if a transferor corporation 
transfers property to its shareholders or to a subsidiary, the transfer 
of that property by the shareholders or the subsidiary to a transferee 
corporation as part of the same transaction is a transfer of property by 
the transferor corporation to which section 1551(a)(2) applies. A 
transfer of property pursuant to a purchase by a transferee corporation 
from a transferor corporation controlling the transferee is within the 
scope of section 1551(a)(2), whether or not the purchase

[[Page 17]]

follows a transfer of cash from the controlling corporation.
    (3) Other transfers after June 12, 1963. A direct or indirect 
transfer made after June 12, 1963, by five or fewer individuals to a 
transferee corporation, whether or not such transfer qualifies under one 
or more other provisions of the Code (for example, section 351), is 
within the scope of section 1551(a)(3) except that section 1551(a)(3) 
does not apply to a transfer of money only. Thus, if one of five or 
fewer individuals who are in control of a corporation transfers property 
(other than money) to a controlled transferee corporation, the transfer 
is within the scope of section 1551(a)(3) notwithstanding that the other 
individuals transfer nothing or transfer only money.
    (4) Examples. This paragraph may be illustrated by the following 
examples:

    Example 1. Individuals A and B each owns 50 percent of the voting 
stock of corporation X. On January 15, 1964, A and B each acquires 
property (other than money) from X and, as part of the same transaction, 
each transfers such property to his wholly owned corporation (newly 
created for the purpose of acquiring such property). A and B retain 
substantial continuing interests in corporation X. The transfers to the 
two newly created corporations are within the scope of section 
1551(a)(2).
    Example 2. Corporation W organizes corporation X, a wholly owned 
subsidiary, for the purpose of acquiring the properties of corporation 
Y. Pursuant to a reorganization qualifying under section 368(a)(1)(C), 
substantially all of the properties of corporation Y are transferred on 
June 15, 1963, to corporation X solely in exchange for voting stock of 
corporation W. There is a transfer of property from W to X within the 
meaning of section 1551(a)(2).
    Example 3. Individuals A and B, each owning 50 percent of the voting 
stock of corporation X, organize corporation Y to which each transfers 
money only in exchange for 50 percent of the stock of Y. Subsequently, Y 
uses such money to acquire other property from A and B after June 12, 
1963. Such acquisition is within the scope of section 1551(a)(3).
    Example 4. Individual A owns 55 percent of the stock of corporation 
X. Another 25 percent of corporation X's stock is owned in the aggregate 
by individuals B, C, D, and E. On June 15, 1963, individual A transfers 
property to corporation Y (newly created for the purpose of acquiring 
such property) in exchange for 60 percent of the stock of Y, and B, C, 
and D acquire all of the remaining stock of Y. The transfer is within 
the scope of section 1551(a)(3).

    (h) Purpose of transfer. In determining, for purposes of this 
section, whether the securing of the surtax exemption or accumulated 
earnings credit constituted ``a major purpose'' of the transfer, all 
circumstances relevant to the transfer shall be considered. ``A major 
purpose'' will not be inferred from the mere purchase of inventory by a 
subsidiary from a centralized warehouse maintained by its parent 
corporation or by another subsidiary of the parent corporation. For 
disallowance of the surtax exemption and accumulated earnings credit 
under section 1551, it is not necessary that the obtaining of either 
such credit or exemption, or both, have been the sole or principal 
purpose of the transfer of the property. It is sufficient if it appears, 
in the light of all the facts and circumstances, that the obtaining of 
such exemption or credit, or both, was one of the major considerations 
that prompted the transfer. Thus, the securing of the surtax exemption 
or the accumulated earnings credit may constitute ``a major purpose'' of 
the transfer, notwithstanding that such transfer was effected for a 
valid business purpose and qualified as a reorganization within the 
meaning of section 368. The taxpayer's burden of establishing by the 
clear preponderance of the evidence that the securing of either such 
exemption or credit or both was not ``a major purpose'' of the transfer 
may be met, for example, by showing that the obtaining of such 
exemption, or credit, or both, was not a major factor in relationship to 
the other consideration or considerations which prompted the transfer.

[T.D. 6911, 32 FR 3214, Feb. 24, 1967, as amended by T.D. 7376, 40 FR 
42745, Sept. 16, 1975]



Sec. 1.1552-1  Earnings and profits.

    (a) General rule. For the purpose of determining the earnings and 
profits of each member of an affiliated group which is required to be 
included in a consolidated return for such group filed for a taxable 
year beginning after December 31, 1953, and ending after August 16, 
1954, the tax liability of the group shall be allocated among the 
members of the group in accordance

[[Page 18]]

with one of the following methods, pursuant to an election under 
paragraph (c) of this section:
    (1)(i) The tax liability of the group shall be apportioned among the 
members of the group in accordance with the ratio which that portion of 
the consolidated taxable income attributable to each member of the group 
having taxable income bears to the consolidated taxable income.
    (ii) For consolidated return years beginning after December 31, 
1965, a member's portion of the tax liability of the group under the 
method of allocation provided by subdivision (i) of this subparagraph is 
an amount equal to the tax liability of the group multiplied by a 
fraction, the numerator of which is the taxable income of such member, 
and the denominator of which is the sum of the taxable incomes of all 
the members. For purposes of this subdivision the taxable income of a 
member shall be the separate taxable income determined under 
Sec. 1.1502-12, adjusted for the following items taken into account in 
the computation of consolidated taxable income:
    (a) The portion of the consolidated net operating loss deduction, 
the consolidated charitable contributions deduction, the consolidated 
dividends received deduction, the consolidated section 247 deduction, 
the consolidated section 582(c) net loss, and the consolidated section 
922 deduction, attributable to such member;
    (b) Such member's capital gain net income (net capital gain for 
taxable years beginning before January 1, 1977) (determined without 
regard to any net capital loss carryover attributable to such member);
    (c) Such member's net capital loss and section 1231 net loss, 
reduced by the portion of the consolidated net capital loss attributable 
to such member; and
    (d) The portion of any consolidated net capital loss carryover 
attributable to such member which is absorbed in the taxable year.


If the computation of the taxable income of a member under this 
subdivision results in an excess of deductions over gross income, then 
for purposes of this subdivision such member's taxable income shall be 
zero.
    (2)(i) The tax liability of the group shall be allocated to the 
several members of the group on the basis of the percentage of the total 
tax which the tax of such member if computed on a separate return would 
bear to the total amount of the taxes for all members of the group so 
computed.
    (ii) For consolidated return years beginning after December 31, 
1965, a member's portion of the tax liability of the group under the 
method of allocation provided by subdivision (i) of this subparagraph is 
an amount equal to the tax liability of the group multiplied by a 
fraction, the numerator of which is the separate return tax liability of 
such member, and the denominator of which is the sum of the separate 
return tax liabilities of all the members. For purposes of this 
subdivision the separate return tax liability of a member is its tax 
liability computed as if it has filed a separate return for the year 
except that:
    (a) Gains and losses on intercompany transactions shall be taken 
into account as provided in Sec. 1.1502-13 as if a consolidated return 
had been filed for the year;
    (b) Gains and losses relating to inventory adjustments shall be 
taken into account as provided in Sec. 1.1502-18 as if a consolidated 
return had been filed for the year;
    (c) Transactions with respect to stock, bonds, or other obligations 
of members shall be reflected as provided in Sec. 1.1502-13 (f) and (g) 
as if a consolidated return had been filed for the year;
    (d) Excess losses shall be included in income as provided in 
Sec. 1.1502-19 as if a consolidated return had been filed for the year;
    (e) In the computation of the deduction under section 167, property 
shall not lose its character as new property as a result of a transfer 
from one member to another member during the year;
    (f) A dividend distributed by one member to another member during 
the year shall not be taken into account in computing the deductions 
under section 243(a)(1), 244(a), 245, or 247 (relating to deductions 
with respect to dividends received and dividends paid);

[[Page 19]]

    (g) Basis shall be determined under Secs. 1.1502-31 and 1.1502-32, 
and earnings and profits shall be determined under Sec. 1.1502-33, as if 
a consolidated return had been filed for the year;
    (h) Subparagraph (2) of Sec. 1.1502-3(f) shall apply as if a 
consolidated return had been filed for the year; and
    (i) For purposes of Subtitle A of the Code, the surtax exemption of 
the member shall be an amount equal to $25,000 ($50,000 in the case of a 
taxable year ending in 1975), divided by the number of members (or such 
portion of $25,000 or $50,000 which is apportioned to the member 
pursuant to a schedule attached to the consolidated return for the 
taxable year). (However, if for the taxable year some or all of the 
members are component members of a controlled group of corporations 
(within the meaning of section 1563) and if there are other such 
component members which do not join in filing the consolidated return 
for such year, the amount to be divided among the members filing the 
consolidated return shall be (in lieu of $25,000 or $50,000) the sum of 
the amounts apportioned to the component members which join in filing 
the consolidated return (as determined for taxable years beginning after 
December 31, 1974 under Sec. 1.1561-2(a)(2) or Sec. 1.1561-3, whichever 
is applicable, and for taxable years beginning before January 1, 1975, 
under Sec. 1.561-2A(a)(2) or Sec. 1.1561-3A whichever is applicable).)


If the computation of the separate return tax liability of a member 
under this subdivision does not result in a positive tax liability, then 
for purposes of this subdivision such member's separate return tax 
liability shall be zero.
    (3)(i) The tax liability of the group (excluding the tax increases 
arising from the consolidation) shall be allocated on the basis of the 
contribution of each member of the group to the consolidated taxable 
income of the group. Any tax increases arising from the consolidation 
shall be distributed to the several members in direct proportion to the 
reduction in tax liability resulting to such members from the filing of 
the consolidated return as measured by the difference between their tax 
liabilities determined on a separate return basis and their tax 
liabilities (determined without regard to the 2-percent increase 
provided by section 1503(a) and paragraph (a) of Sec. 1.1502-30A (as 
contained in the 26 CFR edition revised as of April 1, 1996) for taxable 
years beginning before January 1, 1964) based on their contributions to 
the consolidated taxable income.
    (ii) For consolidated return years beginning after December 31, 
1965, a member's portion of the tax liability of the group under the 
method of allocation provided by subdivision (i) of this subparagraph 
shall be determined by:
    (a) Allocating the tax liability of the group in accordance with 
subparagraph (1)(ii) of this paragraph, but
    (b) The amount of tax liability allocated to any member shall not 
exceed the separate return tax liability of such member, determined in 
accordance with subparagraph (2)(ii) of this paragraph, and
    (c) The sum of the amounts which would be allocated to the members 
but for (b) of this subdivision (ii) shall be apportioned among the 
other members in direct proportion to, but limited to, the reduction in 
tax liability resulting to such other members. Such reduction for any 
member shall be the excess, if any, of (1) its separate this paragraph.
    (4) The tax liability of the group shall be allocated in accordance 
with any other method selected by the group with the approval of the 
Commissioner. No method of allocation may be approved under this 
subparagraph which may result in the allocation of a positive tax 
liability for a taxable year, among the members who are allocated a 
positive tax liability for such year, in a total amount which is more or 
less than the tax liability of the group for such year. (However, see 
paragraph (d) of Sec. 1.1502-33.)
    (b) Application of rules--(1) Tax liability of the group. For 
purposes of section 1552 and this section, the tax liability of the 
group for a taxable year shall consist of the Federal income tax 
liability of the group for such year determined in accordance with 
Sec. 1.1502-2 or Sec. 1.1502-30A (as contained in the 26 CFR edition 
revised as of April 1, 1996), which-ever is applicable. Thus, in the 
case of a carryback of a loss or credit to such year, although the 
earnings and profits of the members of the group

[[Page 20]]

may not be adjusted until the subsequent taxable year from which the 
loss or credit was carried back, the effect of the carryback, for 
purposes of this section, shall be determined by allocating the amount 
of the adjustment as a part of the tax liability of the group for the 
taxable year to which the loss or credit is carried. For example, if a 
consolidated net operating loss is carried back from 1969 to 1967, the 
allocation of the tax liability of the group for 1967 shall be 
recomputed in accordance with the method of allocation used for 1967, 
and the changes resulting from such recomputation shall, for accrual 
method taxpayers, be reflected in the earnings and profits of the 
appropriate members in 1969.
    (2) Effect of allocation. The amount of tax liability allocated to a 
corporation as its share of the tax liability of the group, pursuant to 
this section, shall (i) result in a decrease in the earnings and profits 
of such corporation in such amount, and (ii) be treated as a liability 
of such corporation for such amount. If the full amount of such 
liability is not paid by such corporation, pursuant to an agreement 
among the members of the group or otherwise, the amount which is not 
paid will generally be treated as a distribution with respect to stock, 
a contribution to capital, or a combination thereof, as the case may be.
    (c) Method of election. (1) The election under paragraph (a) (1), 
(2), or (3) of this section shall be made not later than the time 
prescribed by law for filing the first consolidated return of the group 
for a taxable year beginning after December 31, 1953, and ending after 
August 16, 1954 (including extensions thereof). If the group elects to 
allocate its tax liability in accordance with the method prescribed in 
paragraph (a) (1), (2), or (3) of this section, a statement shall be 
attached to the return stating which method is elected. Such statement 
shall be made by the common parent corporation and shall be binding upon 
all members of the group. In the event that the group desires to 
allocate its tax liability in accordance with any other method pursuant 
to paragraph (a)(4) of this section, approval of such method by the 
Commissioner must be obtained within the time prescribed above. If such 
approval is not obtained in such time, the group shall allocate in 
accordance with the method prescribed in paragraph (a)(1) of this 
section. The request shall state fully the method which the group wishes 
to apply in apportioning the tax liability. Except as provided in 
subparagraph (2) of this paragraph, an election once made shall be 
irrevocable and shall be binding upon the group with respect to the year 
for which made and for all future years for which a consolidated return 
is filed or required to be filed unless the Commissioner authorizes a 
change to another method prior to the time prescribed by law for filing 
the return for the year in which such change is to be effective.
    (2) Each group may make a new election to use any one of the methods 
prescribed in paragraph (a) (1), (2), or (3) of this section for its 
first consolidated return year beginning after December 31, 1965, or in 
conjunction with an election under paragraph (d) of Sec. 1.1502-33, or 
may request the Commissioner's approval of a method under paragraph 
(a)(4) of this section for its first consolidated return year beginning 
after December 31, 1965, irrespective of its previous method of 
allocation under this section. If such new election is not made in 
conjunction with an election under paragraph (d) of Sec. 1.1502-33, it 
shall be effective for the first consolidated return year beginning 
after December 31, 1965, and all succeeding years. (See Sec. 1.1502-33 
for the method of making such new election in conjunction with an 
election under paragraph (d) of Sec. 1.1502-33.) Any other such new 
election (or request for the Commissioner's approval of a method under 
paragraph (a)(4) of this section) shall be made within the time 
prescribed by law for filing the consolidated return for the first 
taxable year beginning after December 31, 1965 (including extensions 
thereof), or within 60 days after July 3, 1968, whichever is later. Such 
new election shall be made by attaching a statement to the consolidated 
return for the first taxable year beginning after December 31, 1965, or 
if such election is made within the time prescribed above but after such 
return is filed, by filing a statement with the

[[Page 21]]

internal revenue officer with whom such return was filed.
    (d) Failure to elect. If a group fails to make an election in its 
first consolidated return, or any other election, in accordance with 
paragraph (c) of this section, the method prescribed under paragraph 
(a)(1) of this section shall be applicable and shall be binding upon the 
group in the same manner as if an election had been made to so allocate.
    (e) Definitions. Except as otherwise provided in this section, the 
terms used in this section shall have the same meaning as provided in 
the regulations under section 1502.
    (f) Example. The provisions of this section may be illustrated by 
the following example:

    Example. Corporation P is the common parent owning all of the stock 
of corporations S1 and S2, members of an affiliated group. A 
consolidated return is filed for the taxable year ending December 31, 
1966, by P, S1, and S2. For 1966 such corporations had the following 
taxable incomes or losses computed in accordance with paragraph 
(a)(1)(ii) of this section:

P......................................................................0
S1................................................................$2,000
S2...............................................................(1,000)


The group has not made an election under paragraph (c) of this section 
or paragraph (d) of Sec. 1.1502-33. Accordingly, the method of 
allocation provided by paragraph (a)(1) of this section is in effect for 
the group. Assuming that the consolidated taxable income is equal to the 
sum of the members taxable income and losses, or $1,000, the tax 
liability of the group for the year (assuming a 22-percent rate) is 
$220, all of which is allocated to S1. S1 accordingly reduces its 
earnings and profits in the amount of $220, irrespective of who actually 
pays the tax liability. If S1 pays the $220 tax liability there will be 
no further effect upon the income, earnings and profits, or the basis of 
stock of any member. If, however, P pays the $220 tax liability (and 
such payment is not in fact a loan from P to S1), then P shall be 
treated as having made a contribution to the capital of S1 in the amount 
of $220. On the other hand, if S2 pays the $220 tax liability (and such 
payment is not in fact a loan from S2), then S2 shall be treated as 
having made a distribution with respect to its stock to P in the amount 
of $220, and P shall be treated as having made a contribution to the 
capital of S1 in the amount of $220.

[T.D. 6962, 33 FR 9655, July 3, 1968, as amended by T.D. 7825, 42 FR 
64694, Dec. 28, 1977; T.D. 7728, 45 FR 72650, Nov. 3, 1980; T.D. 8560, 
59 FR 41675, Aug. 15, 1994; T.D. 8597, 60 FR 36680, July 18, 1995; T.D. 
8677, 61 FR 33325, June 27, 1996]

                     Certain Controlled Corporations



Sec. 1.1561-0  Table of contents.

    This section lists the table of contents for Secs. 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.

[T.D. 9476, 74 FR 68532, Dec. 28, 2009]

[[Page 22]]



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 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.

[T.D. 9476, 74 FR 68532, Dec. 28, 2009]



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

[[Page 23]]

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. A

[[Page 24]]

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
                                                                  owed under the  owed under the  owed under the
                    Name of component member                          15% tax         25% tax         34% tax
                                                                      bracket         bracket         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

[[Page 25]]

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 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

[[Page 26]]

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 taxbracket 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 parentsubsidiary 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

[[Page 27]]

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 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 \1/4\ 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.

[T.D. 9476, 74 FR 68533, Dec. 28, 2009]



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

[[Page 28]]

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 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

[[Page 29]]

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.

[T.D. 9476, 74 FR 68536, Dec. 28, 2009]



Sec. 1.1563-1  Definition of controlled group of corporations and
component members and related concepts.

    (a) Controlled group of corporations--(1) In general--(i) Types of 
controlled groups. For purposes of sections 1561 through 1563, the term 
controlled group of corporations means any group of corporations which 
is--
    (A) A parent-subsidiary controlled group (as defined in paragraph 
(a)(2) of this section);
    (B) A brother-sister controlled group (as defined in paragraph 
(a)(3)(i) of this section);
    (C) A combined group (as defined in paragraph (a)(4) of this 
section); or
    (D) A life insurance controlled group (as defined in paragraph 
(a)(5) of this section).
    (ii) Special rules. In determining whether a corporation is included 
in a controlled group of corporations, section 1563(b) and paragraph (b) 
of this section shall not be taken into account. For rules defining a 
component member of a controlled group of corporations, including rules 
defining an excluded member and an additional member, see section 
1563(b) and paragraph (b) of this section.
    (iii) Cross reference. For the exclusion of certain stock for 
purposes of applying the definitions contained in this paragraph, see 
section 1563(c) and Sec. 1.1563-2.
    (2) Parent-subsidiary controlled group--(i) Definition. The term 
parent-subsidiary controlled group means one or more chains of 
corporations connected through stock ownership with a common parent 
corporation if--
    (A) Stock possessing at least 80 percent of the total combined 
voting power of all classes of stock entitled to vote or at least 80 
percent of the total value of shares of all classes of stock of each of 
the corporations, except the common parent corporation, is owned 
(directly and with the application of Sec. 1.1563-3(b)(1), relating to 
options) by one or more of the other corporations; and
    (B) The common parent corporation owns (directly and with the 
application of Sec. 1.1563-3(b)(1), relating to options) stock 
possessing at least 80 percent of the total combined voting power of all 
classes of stock entitled to vote or at least 80 percent of the total 
value of shares of all classes of stock of at least one of the other 
corporations, excluding, in computing such voting power or value, stock 
owned directly by such other corporations.
    (ii) Examples. The definition of a parent-subsidiary controlled 
group of corporations may be illustrated by the following examples:

    Example 1. P Corporation owns stock possessing 80 percent of the 
total combined voting power of all classes of stock entitled to vote of 
S Corporation. P is the common parent of a parent-subsidiary controlled 
group consisting of member corporations P and S.
    Example 2. Assume the same facts as in Example 1. Assume further 
that S owns stock possessing 80 percent of the total value of shares of 
all classes of stock of X Corporation. P is the common parent of a 
parent-subsidiary controlled group consisting of member corporations P, 
S, and X. The result would be the same if P, rather than S, owned the X 
stock.
    Example 3. P Corporation owns 80 percent of the only class of stock 
of S Corporation and S, in turn, owns 40 percent of the only class of 
stock of X Corporation. P also owns 80 percent of the only class of 
stock of Y Corporation and Y, in turn, owns 40 percent of the only class 
of stock of X. P is the common parent of a parent-subsidiary controlled 
group consisting of member corporations P, S, X, and Y.
    Example 4. P Corporation owns 75 percent of the only class of stock 
of Y and Z Corporations; Y owns all the remaining stock of Z; and Z owns 
all the remaining stock of Y. Since intercompany stockholdings are 
excluded (that is, are not treated as outstanding) for purposes of 
determining whether P owns stock possessing at least 80 percent of the 
voting power or value of at least one of the other corporations, P is 
treated as the owner of stock possessing 100 percent of the voting power 
and value of Y and of Z for purposes of paragraph (a)(2)(i)(B) of this 
section. Also, stock possessing 100 percent of the voting power and 
value of Y and Z is owned by the other corporations in the group within 
the meaning of paragraph (a)(2)(i)(A) of this section. (P and Y together 
own stock possessing 100 percent of the voting power and value of Z, and 
P and Z together own stock possessing 100 percent of the voting power 
and value of Y.) Therefore, P is the

[[Page 30]]

common parent of a parent-subsidiary controlled group of corporations 
consisting of member corporations P, Y, and Z.

    (3) Brother-sister controlled group--(i) Definition. The term 
brother-sister controlled group means two or more corporations if the 
same five or fewer persons who are individuals, estates, or trusts own 
(directly and with the application of the rules contained in 
Sec. 1.1563-3(b)) stock possessing more than 50 percent of the total 
combined voting power of all classes of stock entitled to vote or more 
than 50 percent of the total value of shares of all classes of stock of 
each corporation, taking into account the stock ownership of each such 
person only to the extent such stock ownership is identical with respect 
to each such corporation.
    (ii) Additional stock ownership requirement for purposes of certain 
other provisions of law. For purposes of any provision of law (other 
than sections 1561 through 1563) that incorporates the section 1563(a) 
definition of a controlled group, the term brother-sister controlled 
group means two or more corporations if the same five or fewer persons 
who are individuals, estates, or trusts own (directly and with the 
application of the rules contained in Sec. 1.1563-3(b)) stock 
possessing--
    (A) At least 80 percent of the total combined voting power of all 
classes of stock entitled to vote or at least 80 percent of the total 
value of shares of all classes of stock of each corporation (the 80 
percent requirement);
    (B) More than 50 percent of the total combined voting power of all 
classes of stock entitled to vote or more than 50 percent of the total 
value of shares of all classes of stock of each corporation, taking into 
account the stock ownership of each such person only to the extent such 
stock ownership is identical with respect to each such corporation (the 
more-than-50 percent identical ownership requirement); and
    (C) The five or fewer persons whose stock ownership is considered 
for purposes of the 80 percent requirement must be the same persons 
whose stock ownership is considered for purposes of the more-than-50 
percent identical ownership requirement.
    (iii) Examples. The principles of paragraph (a)(3)(ii) of this 
section may be illustrated by the following examples:

    Example 1. (i) The outstanding stock of corporations P, W, X, Y, and 
Z, which have only one class of stock outstanding, is owned by the 
following unrelated individuals:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Individuals                     P (%)        W (%)        X (%)        Y (%)        Z (%)                Identical ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...........................................           55           51           55           55           55  51.
B...........................................           45           49  ...........  ...........  ...........  (45% in P and W).
C...........................................  ...........  ...........           45  ...........  ...........
D...........................................  ...........  ...........  ...........           45  ...........
E...........................................  ...........  ...........  ...........  ...........           45
                                             -----------------------------------------------------------------------------------------------------------
    Total...................................          100          100          100          100          100
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (ii) Corporations P and W are members of a brother-sister controlled 
group of corporations. Although the more-than-50 percent identical 
ownership requirement is met for all 5 corporations, corporations X, Y, 
and Z are not members because at least 80 percent of the stock of each 
of those corporations is not owned by the same 5 or fewer persons whose 
stock ownership is considered for purposes of the more-than-50 percent 
identical ownership requirement.
    Example 2. (i) The outstanding stock of corporations X and Y, which 
have only one class of stock outstanding, is owned by the following 
unrelated individuals:

------------------------------------------------------------------------
                                                      Corporations
                  Individuals                  -------------------------
                                                   X (%)        Y (%)
------------------------------------------------------------------------
A.............................................           12           12
B.............................................           12           12
C.............................................           12           12
D.............................................           12           12
E.............................................           13           13
F.............................................           13           13
G.............................................           13           13
H.............................................           13           13
                                               -------------------------
    Total.....................................          100          100
------------------------------------------------------------------------

    (ii) Any group of five of the shareholders will own more than 50 
percent of the stock in each corporation, in identical holdings. 
However, X and Y are not members of a brother-

[[Page 31]]

sister controlled group because at least 80 percent of the stock of each 
corporation is not owned by the same five or fewer persons.
    Example 3. (i) Corporation X and Y each have two classes of stock 
outstanding, voting common and non-voting common. (None of this stock is 
excluded from the definition of stock under section 1563(c).) Unrelated 
individuals A and B own the following percentages of the class of stock 
entitled to vote (voting) and of the total value of shares of all 
classes of stock (value) in each of corporations X and Y:

------------------------------------------------------------------------
                                               Corporations
           Individuals           ---------------------------------------
                                           X                   Y
------------------------------------------------------------------------
A...............................  100% voting; 60%    75% voting; 60%
                                   value.              value.
B...............................  0% voting; 10%      25% voting; 10%
                                   value.              value.
------------------------------------------------------------------------

    (ii) No other shareholder of X owns (or is considered to own) any 
stock in Y. X and Y are a brother-sister controlled group of 
corporations. The group meets the more-than-50 percent identical 
ownership requirement because A and B own more than 50 percent of the 
total value of shares of all classes of stock of X and Y in identical 
holdings. (The group also meets the more-than-50 percent identical 
ownership requirement because of A's voting stock ownership.) The group 
meets the 80 percent requirement because A and B own at least 80 percent 
of the total combined voting power of all classes of stock entitled to 
vote.
    Example 4. Assume the same facts as in Example 3 except that the 
value of the stock owned by A and B is not more than 50 percent of the 
total value of shares of all classes of stock of each corporation in 
identical holdings. X and Y are not a brother-sister controlled group of 
corporations. The group meets the more-than-50 percent identical 
ownership requirement because A owns more than 50 percent of the total 
combined voting power of the voting stock of each corporation. For 
purposes of the 80 percent requirement, B's voting stock in Y cannot be 
combined with A's voting stock in Y since B, who does not own any voting 
stock in X, is not a person whose ownership is considered for purposes 
of the more-than-50 percent identical ownership requirement. Because no 
other shareholder owns stock in both X and Y, these other shareholders' 
stock ownership is not counted towards meeting either the more-than-50 
percent identical ownership requirement or the 80 percent ownership 
requirement.

    (iv) Special rule if prior law applies. Paragraph (a)(3)(ii) of this 
section, as amended by TD 8179, applies to taxable years ending on or 
after December 31, 1970. See, however, the transitional rule in 
paragraph (d) of this section.
    (4) Combined group--(i) Definition. The term combined group means 
any group of three or more corporations if--
    (A) Each such corporation is a member of either a parent-subsidiary 
controlled group of corporations or a brother-sister controlled group of 
corporations; and
    (B) At least one of such corporations is the common parent of a 
parent-subsidiary controlled group and also is a member of a brother-
sister controlled group.
    (ii) Examples. The definition of a combined group of corporations 
may be illustrated by the following examples:

    Example 1. A, an individual, owns stock possessing 80 percent of the 
total combined voting power of all classes of the stock of corporations 
X and Y. Y, in turn, owns stock possessing 80 percent of the total 
combined voting power of all classes of the stock of corporation Z. X, 
Y, and Z are members of the same combined group since--
    (i) X, Y, and Z are each members of either a parent-subsidiary or 
brother-sister controlled group of corporations; and
    (ii) Y is the common parent of a parent-subsidiary controlled group 
of corporations consisting of Y and Z, and also is a member of a 
brother-sister controlled group of corporations consisting of X and Y.
    Example 2. Assume the same facts as in Example 1, and further assume 
that corporation X owns 80 percent of the total value of shares of all 
classes of stock of corporation S. X, Y, Z, and S are members of the 
same combined group.

    (5) Life insurance controlled group--(i) Definition. The term life 
insurance controlled group means two or more life insurance companies 
each of which is a member of a controlled group of corporations 
described in paragraph (a)(2), (a)(3)(i), or (a)(4) of this section and 
to which Sec. 1.1502-47(f)(6) does not apply. Such insurance companies 
shall be treated as a controlled group of corporations separate from any 
other corporations which are members of a controlled group described in 
such paragraph (a)(2), (a)(3)(i), or (a)(4) of this section. For 
purposes of this section, the common parent of the controlled group 
described in paragraph (a)(2) of this section shall be referred to as 
the common parent of the life insurance controlled group.

[[Page 32]]

    (ii) Examples. The following examples illustrate the definition of a 
life insurance controlled group. In these examples, L indicates a life 
company, another letter indicates a nonlife company and each corporation 
uses the calendar year as its taxable year:

    Example 1. Since January 1, 1999, corporation P has owned all the 
stock of corporations L 1 and Y, and L 1 has owned 
all the stock of corporation X. On January 1, 2005, Y acquired all of 
the stock of corporation L 2. Since L 1 and L 
2 are members of a parent-subsidiary controlled group of 
corporations, such companies are treated as members of a life insurance 
controlled group separate from the parent-subsidiary controlled group 
consisting of P, X and Y. For purposes of this section, P is referred to 
as the common parent of the life insurance controlled group even though 
P is not a member of such group.
    Example 2. The facts are the same as in Example 1, except that, 
beginning with the 2005 tax year, the P affiliated group elected to file 
a consolidated return and P made a section 1504(c)(2) election. Pursuant 
to paragraph (a)(5)(i) of this section, L 1 and L 
2 are not members of a separate life insurance controlled 
group. Instead, P, X, Y, L 1 and L 2 constitute 
one controlled group. See Sec. 1.1502-47(f)(6).

    (6) Voting power of stock. For purposes of this section, and 
Secs. 1.1563-2 and 1.1563-3, in determining whether the stock owned by a 
person (or persons) possesses a certain percentage of the total combined 
voting power of all classes of stock entitled to vote of a corporation, 
consideration will be given to all the facts and circumstances of each 
case. A share of stock will generally be considered as possessing the 
voting power accorded to such share by the corporate charter, by-laws, 
or share certificate. On the other hand, if there is any agreement, 
whether express or implied, that a shareholder will not vote his stock 
in a corporation, the formal voting rights possessed by his stock may be 
disregarded in determining the percentage of the total combined voting 
power possessed by the stock owned by other shareholders in the 
corporation, if the result is that the corporation becomes a component 
member of a controlled group of corporations. Moreover, if a shareholder 
agrees to vote his stock in a corporation in the manner specified by 
another shareholder in the corporation, the voting rights possessed by 
the stock owned by the first shareholder may be considered to be 
possessed by the stock owned by such other shareholder if the result is 
that the corporation becomes a component member of a controlled group of 
corporations.
    (b) Component members--(1) In general--(i) Definition. For purposes 
of sections 1561 through 1563, a corporation is with respect to its 
taxable year a component member of a controlled group of corporations 
for the group's testing date if such corporation--
    (A) Is a member of such controlled group on such testing date and is 
not treated as an excluded member under paragraph (b)(2) of this 
section; or
    (B) Is not a member of such controlled group on such testing date 
but is treated as an additional member under paragraph (b)(3) of this 
section.
    (ii) Member of a controlled group of corporations. For purposes of 
sections 1561 through 1563, a member of a controlled group is a 
corporation connected with other member(s) of a controlled group under 
the stock ownership rules and the stock qualification rules set forth in 
section 1563. Under these rules, for a corporation to qualify as a 
component member of the group with respect to a group's December 31st 
testing date (or the short-year testing date for a short-year member), 
that corporation does not have to be a member of that group on that 
group's testing date. In addition, a corporation that is a member of a 
controlled group on the group's testing date does not necessarily 
qualify as a component member of that group with respect to that testing 
date.
    (iii) Additional concepts used in applying the controlled group 
rules.
    (A) The term testing date means the date used for determining the 
status of controlled group members as either component members or 
excluded members. That testing date is then also used to determine which 
taxable years of those component members are to be subjected to the 
controlled group rules. Generally, a member's testing date is the 
December 31st date included within that member's taxable year, whether 
such member is on a calendar or fiscal taxable year. However, if a 
component member of a controlled group has a

[[Page 33]]

short taxable year that does not include a December 31st date, then the 
last day of that short taxable year becomes that member's testing date.
    (B) The term testing period means the time period used for 
determining the status of controlled group members as either component 
members or excluded members. The testing period begins on the first day 
of a member's taxable year and ends on the day before its testing date. 
(Generally, the testing date is December 31st, but for a component 
member having a short taxable year not ending on December 31st, the 
testing date for the short taxable year of that member (and only that 
member) becomes the last day of that member's short taxable year.) Thus, 
for a member on a fiscal taxable year, the portion of its taxable year 
beginning on December 31st and ending on the last day of its taxable 
year is not taken into account for determining its status as a component 
member or an excluded member.
    (2) Excluded members--(i) Temporal test. A corporation, which is a 
member of a controlled group of corporations on the group's testing 
date, a date included within that member's taxable year, but who was a 
member of such group for less than one-half of the number of days of its 
testing period, shall be treated as an excluded member of such group for 
that group's testing date.
    (ii) Qualification test. A corporation which is a member of a 
controlled group of corporations on a testing date shall be treated as 
an excluded member of such group on such date if, for its taxable year 
including such date, such corporation is--
    (A) Exempt from taxation under section 501(a) (except a corporation 
which is subject to tax on its unrelated business taxable income under 
section 511) or 521 for such taxable year;
    (B) A foreign corporation not subject to taxation under section 
882(a) for the taxable year;
    (C) An S corporation (as defined in section 1361) for purposes of 
any tax benefit item described in section 1561(a) to which it is not 
subject;
    (D) A franchised corporation (as defined in section 1563(f)(4) and 
Sec. 1.1563-4); or
    (E) An insurance company subject to taxation under section 801, 
unless such insurance company (without regard to this paragraph 
(b)(2)(ii)(E)) is a component member of a life insurance controlled 
group described in paragraph (a)(5)(i) of this section or unless 
Sec. 1.1502-47(f)(6) applies (which treats a life insurance company, for 
which a section 1504(c)(2) election is effective, as a member (whether 
eligible or ineligible) of a life-nonlife affiliated group).
    (3) Additional members. A corporation shall be treated as an 
additional member of a controlled group of corporations, that is, an 
additional component member, on the group's testing date if it--
    (i) Is not a member of such group on such date;
    (ii) Is not described, with respect to such taxable year, in 
paragraph (b)(2)(ii)(A), (b)(2)(ii)(B), (b)(2)(ii)(C), (b)(2)(ii)(D), or 
(b)(2)(ii)(E) of this section; and
    (iii) Was a member of such group for one-half (or more) of the 
number of days in its testing period.
    (4) Examples. The provisions of this paragraph (b) may be 
illustrated by the following examples:

    Example 1. B, an individual, owns all of the stock of corporations W 
and X on each day of 1964. W and X each use the calendar year as their 
taxable year. On January 1, 1964, B also owns all the stock of 
corporation Y (a fiscal year corporation with a taxable year beginning 
on July 1, 1964, and ending on June 30, 1965), which stock he sells on 
October 15, 1964. On December 1, 1964, B purchases all the stock of 
corporation Z (a fiscal year corporation with a taxable year beginning 
on September 1, 1964, and ending on August 31, 1965). On December 31, 
1964, W, X, and Z are members of the same controlled group. However, the 
component members of the group on such December 31st are W, X, and Y. 
Under paragraph (b)(2)(i) of this section, Z is treated as an excluded 
member of the group on December 31, 1964, since Z was a member of the 
group for less than one-half of the number of days (29 out of 121 days) 
during the period beginning on September 1, 1964 (the first day of its 
taxable year) and ending on December 30, 1964. Under paragraph (b)(3) of 
this section, Y is treated as an additional member of the group on 
December 31, 1964, since Y was a member of the group for at least one-
half of the number of days (107 out of 183 days) during the period 
beginning on July 1, 1964 (the first day of its taxable year) and ending 
on December 30, 1964.

[[Page 34]]

    Example 2. On January 1, 1964, corporation P owns all the stock of 
corporation S, which in turn owns all the stock of corporation S-1. On 
November 1, 1964, P purchases all of the stock of corporation X from the 
public and sells all of the stock of S to the public. Corporation X owns 
all the stock of corporation Y during 1964. P, S, S-1, X, and Y file 
their returns on the basis of the calendar year. On December 31, 1964, 
P, X, and Y are members of a parent-subsidiary controlled group of 
corporations; also, corporations S and S-1 are members of a different 
parent-subsidiary controlled group on such date. However, since X and Y 
have been members of the parent-subsidiary controlled group of which P 
is the common parent for less than one-half the number of days during 
the period January 1 through December 30, 1964, they are not component 
members of such group on such date. On the other hand, X and Y have been 
members of a parent-subsidiary controlled group of which X is the common 
parent for at least one-half the number of days during the period 
January 1 through December 30, 1964, and therefore they are component 
members of such group on December 31, 1964. Also since S and S-1 were 
members of the parent-subsidiary controlled group of which P is the 
common parent for at least one-half the number of days in the taxable 
years of each such corporation during the period January 1 through 
December 30, 1964, P, S, and S-1 are component members of such group on 
December 31, 1964.
    Example 3. Throughout 1964, corporation M owns all the stock of 
corporation F which, in turn, owns all the stock of corporations 
L1, L2, X, and Y. M is a domestic mutual insurance 
company subject to taxation under section 821, F is a foreign 
corporation not engaged in a trade or business within the United States, 
L1 and L2 are domestic life insurance companies 
subject to taxation under section 802, and X and Y are domestic 
corporations subject to tax under section 11 of the Code. Each 
corporation uses the calendar year as its taxable year. On December 31, 
1964, M, F, L1, L2, X, and Y are members of a 
parent-subsidiary controlled group of corporations. However, under 
paragraph (b)(2)(ii) of this section, M, F, L1, and 
L2 are treated as excluded members of the group on December 
31, 1964. Thus, on December 31, 1964, the component members of the 
parent-subsidiary controlled group of which M is the common parent 
include only X and Y.
    Furthermore, since paragraph (b)(2)(ii)(E) of this section does not 
result in L1 and L2 being treated as excluded 
members of a life insurance controlled group, L1 and 
L2 are component members of a life insurance controlled group 
on December 31, 1964.
    Example 4. Individual A owns all of the stock of corporations X, Y 
and Z. Each of these corporations is an S corporation. X, Y, and Z are 
each members of a brother-sister controlled group, even though each such 
corporation is treated as an excluded member of such group. See 
Sec. 1.1563-1(b)(2)(ii)(C).

    (5) Application of constructive ownership rules. For purposes of 
paragraphs (b)(2)(i) and (b)(3)(iii) of this section, it is necessary to 
determine whether a corporation was a member of a controlled group of 
corporations for one-half (or more) of the number of days in its taxable 
year which precede the December 31st falling within such taxable year. 
Therefore, the constructive ownership rules contained in Sec. 1.1563-
3(b) (to the extent applicable in making such determination) must be 
applied on a day-by-day basis. For example, if P Corporation owns all 
the stock of X Corporation on each day of 1964, and on December 30, 
1964, acquires an option to purchase all the stock of Y Corporation (a 
calendar-year taxpayer which has been in existence on each day of 1964), 
the application of Sec. 1.1563-3(b)(1) on a day-by-day basis results in 
Y being a member of the brother-sister controlled group on only one day 
of Y's 1964 year which precedes December 31, 1964. Accordingly, since Y 
is not a member of such group for one-half or more of the number of days 
in its 1964 year preceding December 31, 1964, Y is treated as an 
excluded member of such group on December 31, 1964.
    (c) Overlapping groups--(1) In general. If on a December 31st a 
corporation is a component member of a controlled group of corporations 
by reason of ownership of stock possessing at least 80 percent of the 
total value of shares of all classes of stock of the corporation, and if 
on such December 31st such corporation is also a component member of 
another controlled group of corporations by reason of ownership of other 
stock (that is, stock not used to satisfy the at-least-80 percent total 
value test) possessing at least 80 percent of the total combined voting 
power of all classes of stock of the corporation entitled to vote, then 
such corporation shall be treated as a component member only of the 
controlled group of which it is a component member by reason of the 
ownership of at least 80 percent of the total value of its shares.
    (2) Brother-sister controlled groups--(i) One corporation. If on a 
December 31st,

[[Page 35]]

a corporation would, without the application of this paragraph (c)(2), 
be a component member of more than one brother-sister controlled group 
on such date, the corporation will be treated as a component member of 
only one such group on such date. Such corporation may elect the group 
in which it is to be included by including on or with its income tax 
return for the taxable year that includes such date a statement 
entitled, ``STATEMENT TO ELECT CONTROLLED GROUP PURSUANT TO Sec. 1.1563-
1(c)(2).'' This statement must include--
    (A) A description of each of the controlled groups in which the 
corporation could be included. The description must include the name and 
employer identification number of each component member of each such 
group and the stock ownership of the component members of each such 
group; and
    (B) The following representation: [INSERT NAME AND EMPLOYER 
IDENTIFICATION NUMBER OF CORPORATION] ELECTS TO BE TREATED AS A 
COMPONENT MEMBER OF THE [INSERT DESIGNATION OF GROUP].
    (ii) Multiple corporations. If more than one corporation would, 
without the application of this paragraph (c)(2), be a component member 
of more than one controlled group, those corporations electing to be 
component members of the same group must file a single statement. The 
statement must contain the information described in paragraph (c)(2)(i) 
of this section, plus the names and employer identification numbers of 
all other corporations designating the same group. The original 
statement must be included on or with the original Federal income tax 
return (including any amended return filed on or before the due date 
(including extensions) of such return) of the corporation that, among 
those corporations which would (without the application of this 
paragraph (c)(2)) belong to more than one group, has the taxable year 
including such December 31st which ends on the earliest date. That 
corporation must provide a copy of the statement to each other 
corporation included in the statement and represent in its statement 
that it has done so. Either the original or a copy of the statement must 
be retained by each corporation as part of its records. See Sec. 1.6001-
1(e) of this chapter.
    (iii) Election. (A) An election filed under this paragraph (c)(2) is 
irrevocable and effective until a change in the stock ownership of the 
corporation results in termination of membership in the controlled group 
in which such corporation has been included.
    (B) In the event no election is filed in accordance with the 
provisions of this paragraph (c)(2), then the Internal Revenue Service 
will determine the group in which such corporation is to be included. 
Such determination will be binding for all subsequent years unless the 
corporation files a valid election with respect to any such subsequent 
year or until a change in the stock ownership of the corporation results 
in termination of membership in the controlled group in which such 
corporation has been included.
    (iv) Examples. The provisions of this paragraph (c)(2) may be 
illustrated by the following examples (in which it is assumed that all 
the individuals are unrelated):

    Example 1. (i) On each day of 1970 all the outstanding stock of 
corporations X, Y, and Z is held in the following manner:

------------------------------------------------------------------------
                                                      Corporations
                 Individuals                  --------------------------
                                                X (%)    Y (%)    Z (%)
------------------------------------------------------------------------
A............................................       55       40        5
B............................................       40       20       40
C............................................        5       40       55
------------------------------------------------------------------------

    (ii) Since the more-than-50 percent identical ownership requirement 
of section 1563(a)(2) is met with respect to corporations X and Y and 
with respect to corporations Y and Z, but not with respect to 
corporations X, Y, and Z, corporation Y would, without the application 
of this paragraph (c)(2), be a component member on December 31, 1970, of 
overlapping groups consisting of X and Y and of Y and Z. If Y does not 
file an election in accordance with paragraph (c)(2)(i) of this section, 
the Internal Revenue Service will determine the group in which Y is to 
be included.
    Example 2. (i) On each day of 1970, all the outstanding stock of 
corporations V, W, X, Y, and Z is held in the following manner:

----------------------------------------------------------------------------------------------------------------
                                                                                     Corporations
                            Individuals                             --------------------------------------------
                                                                        V        W        X        Y        Z
----------------------------------------------------------------------------------------------------------------
D..................................................................       52       52       52       52       52
E..................................................................       40        2        2        2        2
F..................................................................        2       40        2        2        2

[[Page 36]]

 
G..................................................................        2        2       40        2        2
H..................................................................        2        2        2       40        2
I..................................................................        2        2        2        2       40
----------------------------------------------------------------------------------------------------------------

    (ii) On December 31, 1970, the more-than-50 percent identical 
ownership requirement of section 1563(a)(2) may be met with regard to 
any combination of the corporations but all five corporations cannot be 
included as component members of a single controlled group because the 
inclusion of all the corporations in a single group would be dependent 
upon taking into account the stock ownership of more than five persons. 
Therefore, if the corporations do not file a statement in accordance 
with paragraph (c)(2)(ii) of this section, the Internal Revenue Service 
will determine the group in which each corporation is to be included. 
The corporations or the Internal Revenue Service, as the case may be, 
may designate that three corporations be included in one group and two 
corporations in another, or that any four corporations be included in 
one group and that the remaining corporation not be included in any 
group.

    (d) Transitional rules--(1) In general. Treasury decision 8179 
amended paragraph (a)(3)(ii) of this section to revise the definition of 
a brother-sister controlled group of corporations. In general, those 
amendments are effective for taxable years ending on or after December 
31, 1970.
    (2) Limited nonretroactivity--(i) Old group. Under the authority of 
section 7805(b), the Internal Revenue Service will treat an old group as 
a brother-sister controlled group corporations for purposes of applying 
sections 401, 404(a), 408(k), 409A, 410, 411, 412, 414, 415, and 4971 of 
the Internal Revenue Code (Code) and sections 202, 203, 204, and 302 of 
the Employment Retirement Income Security Act of 1974 (ERISA) in a plan 
year or taxable year beginning before March 2, 1988, to the extent 
necessary to prevent an adverse effect on any old member (or any other 
corporation), or on any plan or other entity described in such sections 
(including plans, etc., of corporations not part of such old group), 
that would result solely from the retroactive effect of the amendment to 
this section by TD 8179. An adverse effect includes the disqualification 
of a plan or the disallowance of a deduction or credit for a 
contribution to a plan. The Internal Revenue Service, however, will not 
treat an old member as a member of an old group to the extent that such 
treatment will have an adverse effect on that old member.
    (ii) Old member of old group. Section 7805(b) will not be applied 
pursuant to paragraph (d)(2)(i) of this section to treat an old member 
of an old group as a member of a brother-sister controlled group to 
prevent an adverse effect for a taxable year if, for that taxable year, 
that old member treats or has treated itself as not being a member of 
that old group for purposes of sections 401, 404(a), 408(k), 409A, 410, 
411, 412, 414, 415, and 4971 of the Code and sections 202, 203, 204, and 
302 and title IV of ERISA for such taxable year (such as by filing, with 
respect to such taxable year, a return, amended return, or claim for 
credit or refund in which the amount of any deduction, credit, 
limitation, or tax due is determined by treating itself as not being a 
member of the old group for purposes of those sections). However, the 
fact that one or more (but not all) of the old members do not qualify 
for section 7805(b) treatment because of the preceding sentence will not 
preclude that old member (or members) from being treated as a member of 
the old group under paragraph (d)(2)(i) of this section in order to 
prevent the disallowance of a deduction or credit of another old member 
(or other corporation) or to prevent the disqualification of, or other 
adverse effect on, another old member's plan (or other entity) described 
in the sections of the Code and ERISA enumerated in such paragraph.
    (3) Election of general nonretroactivity. In the case of a taxable 
year ending on or after December 31, 1970, and before March 2, 1988, an 
old group will be treated as a brother-sister controlled group of 
corporations for all purposes of the Code for such taxable year if--
    (i) Each old member files a statement consenting to such treatment 
for such taxable year with the District Director having audit 
jurisdiction over its return within six months after March 2, 1988; and
    (ii) No old member--
    (A) Files or has filed, with respect to such taxable year, a return, 
amended return, or claim for credit or refund in which the amount of any 
deduction,

[[Page 37]]

credit, limitation, or tax due is determined by treating any old member 
as not a member of the old group; or
    (B) Treats the employees of all members of the old group as not 
being employed by a single employer for purposes of sections 401, 
404(a), 408(k), 409A, 410, 411, 412, 414, 415, and 4971 of the Code and 
sections 202, 203, 204, and 302 of ERISA for such taxable year.
    (4) Definitions. For purposes of this paragraph (d)--
    (i) An old group is a brother-sister controlled group of 
corporations, determined by applying paragraph (a)(3)(ii) of this 
section as in effect before the amendments made by TD 8179, that is not 
a brother-sister controlled group of corporations, determined by 
applying paragraph (a)(3)(ii) of this section as amended by such 
Treasury decision; and
    (ii) An old member is any corporation that is a member of an old 
group.
    (5) Election to choose between membership in more than one 
controlled group--(i) In general. A corporation may make an election 
under paragraph (c)(2) of this section by filing an amended return on or 
before September 2, 1988 if--
    (A) An old member has filed an election under paragraph (c)(2) of 
this section to be treated as a component member of an old group for a 
December 31st before March 2, 1988; and
    (B) That corporation would (without regard to such paragraph (c)(2)) 
be a component member of more than one brother-sister controlled group 
(not including an old group) on December 31st.
    (ii) Exception. This paragraph (d)(5) does not apply to a 
corporation that is treated as a member of an old group under paragraph 
(d)(3) of this section.
    (6) Refunds. See section 6511(a) for period of limitation on filing 
claims for credit or refund.
    (e) Effective/applicability date. This section applies to taxable 
years beginning on or after May 26, 2009. However, taxpayers may apply 
this section to taxable years beginning before May 26, 2009. For taxable 
years beginning before May 26, 2009, see Sec. 1.1563-1T as contained in 
26 CFR part 1 in effect on April 1, 2009. Paragraph (a)(1)(ii) of this 
section applies to taxable years beginning on or after April 11, 2011.

[T.D. 9451, 74 FR 25148, May 27, 2009, as amended by T.D. 9522, 76 FR 
19907, Apr. 11, 2011]



Sec. 1.1563-2  Excluded stock.

    (a) Certain stock excluded. For purposes of sections 1561 through 
1563 and the regulations thereunder, the term ``stock'' does not 
include:
    (1) Nonvoting stock which is limited and preferred as to dividends, 
and
    (2) Treasury stock.
    (b) Stock treated as excluded stock--(1) Parent-subsidiary 
controlled group. If a corporation (hereinafter in this paragraph 
referred to as ``parent corporation'') owns 50 percent or more of the 
total combined voting power of all classes of stock entitled to vote or 
50 percent or more of the total value of shares of all classes of stock 
in another corporation (hereinafter in this paragraph referred to as 
``subsidiary corporation''), the provisions of subparagraph (2) of this 
paragraph shall apply. For purposes of this subparagraph, stock owned by 
a corporation means stock owned directly plus stock owned with the 
application of the constructive ownership rules of paragraph (b) (1) and 
(4) of Sec. 1.1563-3, relating to options and attribution from 
corporations. In determining whether the stock owned by a corporation 
possesses the requisite percentage of the total combined voting power of 
all classes of stock entitled to vote of another corporation, see 
paragraph (a)(6) of Sec. 1.1563-1.
    (2) Stock treated as not outstanding. If the provisions of this 
subparagraph apply, then for purposes of determining whether the parent 
corporation or the subsidiary corporation is a member of a parent-
subsidiary controlled group of corporations within the meaning of 
paragraph (a)(2) of Sec. 1.1563-1, the following stock of the subsidiary 
corporation shall, except as otherwise provided in paragraph (c) of this 
section, be treated as if it were not outstanding:
    (i) Plan of deferred compensation. Stock in the subsidiary 
corporation held by a trust which is part of a plan of deferred 
compensation for the benefit of the employees of the parent corporation 
or the subsidiary corporation.

[[Page 38]]

The term ``plan of deferred compensation'' shall have the same meaning 
such term has in section 406(a)(3) and the regulations thereunder.
    (ii) Principal stockholders and officers. Stock in the subsidiary 
corporation owned (directly and with the application of the rules 
contained in paragraph (b) of Sec. 1.1563-3) by an individual who is a 
principal stockholder or officer of the parent corporation. A principal 
stockholder of the parent corporation is an individual who owns 
(directly and with the application of the rules contained in paragraph 
(b) of Sec. 1.1563-3) 5 percent or more of the total combined voting 
power of all classes of stock entitled to vote or 5 percent or more of 
the total value of shares of all classes of stock of the parent 
corporation. An officer of the parent corporation includes the 
president, vice-presidents, general manager, treasurer, secretary, and 
comptroller of such corporation, and any other person who performs 
duties corresponding to those normally performed by persons occupying 
such positions.
    (iii) Employees. Stock in the subsidiary corporation owned (directly 
and with the application of the rules contained in paragraph (b) of 
Sec. 1.1563-3) by an employee of the subsidiary corporation if such 
stock is subject to conditions which substantially restrict or limit the 
employee's right (or if the employee constructively owns such stock, the 
direct owner's right) to dispose of such stock and which run in favor of 
the parent or subsidiary corporation. In general, any condition which 
extends, directly or indirectly, to the parent corporation or the 
subsidiary corporation preferential rights with respect to the 
acquisition of the employee's (or direct owner's) stock will be 
considered to be a condition described in the preceding sentence. It is 
not necessary, in order for a condition to be considered to be in favor 
of the parent corporation or the subsidiary corporation, that the parent 
or subsidiary be extended a discriminatory concession with respect to 
the price of the stock. For example, a condition whereby the parent 
corporation is given a right of first refusal with respect to any stock 
of the subsidiary corporation offered by an employee for sale is a 
condition which substantially restricts or limits the employee's right 
to dispose of such stock and runs in favor of the parent corporation. 
Moreover, any legally enforceable condition which prohibits the employee 
from disposing of his stock without the consent of the parent (or a 
subsidiary of the parent) will be considered to be a substantial 
limitation running in favor of the parent corporation.
    (iv) Controlled exempt organization. Stock in the subsidiary 
corporation owned (directly and with the application of the rules 
contained in paragraph (b) of Sec. 1.1563-3) by an organization (other 
than the parent corporation):
    (a) To which section 501 (relating to certain educational and 
charitable organizations which are exempt from tax) applies, and
    (b) Which is controlled directly or indirectly by the parent 
corporation or subsidiary corporation, by an individual, estate, or 
trust that is a principal stockholder of the parent corporation, by an 
officer of the parent corporation, or by any combination thereof.


The terms ``principal stockholder of the parent corporation'' and 
``officer of the parent corporation'' shall have the same meanings in 
this subdivision as in subdivision (ii) of this subparagraph. The term 
``control'' as used in this subdivision means control in fact and the 
determination of whether the control requirement of (b) of this 
subdivision is met will depend upon all the facts and circumstances of 
each case, without regard to whether such control is legally enforceable 
and irrespective of the method by which such control is exercised or 
exercisable.
    (3) Brother-sister controlled group. If five or fewer persons 
(hereinafter referred to as common owners) who are individuals, estates, 
or trusts own (directly and with the application of the rules contained 
in paragraph (b) of Sec. 1.1563-3) stock possessing 50 percent or more 
of the total combined voting power of all classes of stock entitled to 
vote or 50 percent or more of the total value of shares of all classes 
of stock in a corporation, the provisions of subparagraph (4) of this 
paragraph shall apply. In determining whether the

[[Page 39]]

stock owned by such person or persons possesses the requisite percentage 
of the total combined voting power of all classes of stock entitled to 
vote of a corporation, see paragraph (a)(6) of Sec. 1.1563-1.
    (4) Stock treated as not outstanding. If the provisions of this 
subparagraph apply, then for purposes of determining whether a 
corporation is a member of a brother-sister controlled group of 
corporations within the meaning of paragraph (a)(3) of Sec. 1.1563-1, 
the following stock of such corporation shall, except as otherwise 
provided in paragraph (c) of this section, be treated as if it were not 
outstanding:
    (i) Exempt employees' trust. Stock in such corporation held by an 
employees' trust described in section 401(a) which is exempt from tax 
under section 501(a), if such trust is for the benefit of the employees 
of such corporation.
    (ii) Employees. Stock in such corporation owned (directly and with 
the application of the rules contained in paragraph (b) of Sec. 1.1563-
3) by an employee of such corporation if such stock is subject to 
conditions which run in favor of a common owner of such corporation (or 
in favor of such corporation) and which substantially restrict or limit 
the employee's right (or if the employee constructively owns such stock, 
the record owner's right) to dispose of such stock. The principles of 
subparagraph (2)(iii) of this paragraph shall apply in determining 
whether a condition satisfies the requirements of the preceding 
sentence. Thus, in general, a condition which extends, directly or 
indirectly, to a common owner or such corporation preferential rights 
with respect to the acquisition of the employee's (or record owner's) 
stock will be considered to be a condition which satisfies such 
requirements. For purposes of this subdivision, if a condition which 
restricts or limits an employee's right (or record owner's right) to 
dispose of his stock also applies to the stock in such corporation held 
by such common owner pursuant to a bona fide reciprocal stock purchase 
arrangement, such condition shall not be treated as one which restricts 
or limits the employee's (or record owner's) right to dispose of such 
stock. An example of a reciprocal stock purchase arrangement is an 
agreement whereby a common owner and the employee are given a right of 
first refusal with respect to stock of the employer corporation owned by 
the other party. If, however, the agreement also provides that the 
common owner has the right to purchase the stock of the employer 
corporation owned by the employee in the event that the corporation 
should discharge the employee for reasonable cause, the purchase 
arrangement would not be reciprocal within the meaning of this 
subdivision.
    (iii) Controlled exempt organization. Stock in such corporation 
owned (directly and with the application of the rules contained in 
paragraph (b) of Sec. 1.1563-3) by an organization:
    (a) To which section 501(c)(3) (relating to certain educational and 
charitable organizations which are exempt from tax) applies, and
    (b) Which is controlled directly or indirectly by such corporation, 
by an individual, estate, or trust that is a principal stockholder of 
such corporation, by an officer of such corporation, or by any 
combination thereof.


The terms ``principal stockholder'' and ``officer'' shall have the same 
meanings in this subdivision as in subparagraph (2)(ii) of this 
paragraph. The term ``control'' as used in this subdivision means 
control in fact and the determination of whether the control requirement 
of (b) of this subdivision is met will depend upon all the facts and 
circumstances of each case, without regard to whether such control is 
legally enforceable and irrespective of the method by which such control 
is exercised or exercisable.
    (5) Other controlled groups. The provisions of subparagraphs (1), 
(2), (3), and (4) of this paragraph shall apply in determining whether a 
corporation is a member of a combined group (within the meaning of 
paragraph (a)(4) of Sec. 1.1563-1) or an insurance group (within the 
meaning of paragraph (a)(5) of Sec. 1.1563-1). For example, under 
paragraph (a)(4) of Sec. 1.1563-1, in order for a corporation to be a 
member of a combined group such corporation must be a member of a 
parent-subsidiary group or a brother-sister group. Accordingly, the 
excluded stock rules provided by

[[Page 40]]

this paragraph are applicable in determining whether the corporation is 
a member of such group.
    (6) Meaning of employee. For purposes of this section Secs. 1.1563-3 
and 1.1563-4, the term ``employee'' has the same meaning such term is 
given in section 3306(i) of the Code (relating to definitions for 
purposes of the Federal Unemployment Tax Act). Accordingly, the term 
employee as used in such sections includes an officer of a corporation.
    (7) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Corporation P owns 70 of the 100 shares of the only class 
of stock of corporation S. The remaining shares of S are owned as 
follows: 4 shares by Jones (the general manager of P), and 26 shares by 
Smith (who also owns 5 percent of the total combined voting power of the 
stock of P). P satisfies the 50 percent stock ownership requirement of 
subparagraph (1) of this paragraph with respect to S. Since Jones is an 
officer of P and Smith is a principal stockholder of P, under 
subparagraph (2)(ii) of this paragraph the S stock owned by Jones and 
Smith is treated as not outstanding for purposes of determining whether 
P and S are members of a parent-subsidiary controlled group of 
corporations within the meaning of paragraph (a)(2) of Sec. 1.1563-1. 
Thus, P is considered to own stock possessing 100 percent (70  70) of 
the total voting power and value of all the S stock. Accordingly, P and 
S are members of a parent-subsidiary controlled group of corporations.
    Example 2. Assume the same facts as in example (1) and further 
assume that Jones owns 15 shares of the 100 shares of the only class of 
stock of corporation S-1, and corporation S owns 75 shares of such 
stock. P satisfies the 50 percent stock ownership requirement of 
subparagraph (1) of this paragraph with respect to S-1 since P is 
considered as owning 52.5 percent (70 percent  x  75 percent) of the S-1 
stock with the application of paragraph (b)(4) of Sec. 1.1563-3. Since 
Jones is an officer of P, under subparagraph (2)(ii) of this paragraph, 
the S-1 stock owned by Jones is treated as not outstanding for purposes 
of determining whether S-1 is a member of the parent-subsidiary 
controlled group of corporations. Thus, S is considered to own stock 
possessing 88.2 percent (75  85) of the voting power and value of the 
S-1 stock. Accordingly, P, S, and S-1 are members of a parent-subsidiary 
controlled group of corporations.
    Example 3. Corporation X owns 60 percent of the only class of stock 
of corporation Y. Davis, the president of Y, owns the remaining 40 
percent of the stock of Y. Davis has agreed that if he offers his stock 
in Y for sale he will first offer the stock to X at a price equal to the 
fair market value of the stock on the first date the stock is offered 
for sale. Since Davis is an employee of Y within the meaning of section 
3306(i) of the Code, and his stock in Y is subject to a condition which 
substantially restricts or limits his right to dispose of such stock and 
runs in favor of X, under subparagraph (2)(iii) of this paragraph such 
stock is treated as if it were not outstanding for purposes of 
determining whether X and Y are members of a parent-subsidiary 
controlled group of corporations. Thus, X is considered to own stock 
possessing 100 percent of the voting power and value of the stock of Y. 
Accordingly, X and Y are members of a parent-subsidiary controlled group 
of corporations. The result would be the same if Davis's wife, instead 
of Davis, owned directly the 40 percent stock interest in Y and such 
stock was subject to a right of first refusal running in favor of X.

    (c) Exception--(1) General. If stock of a corporation is owned by a 
person directly or with the application of the rules contained in 
paragraph (b) of Sec. 1.1563-3 and such ownership results in the 
corporation being a component member of a controlled group of 
corporations on a December 31, then the stock shall not be treated as 
excluded stock under the provisions of paragraph (b) of this section if 
the result of applying such provisions is that such corporation is not a 
component member of a controlled group of corporations on such December 
31.
    (2) Illustration. The provisions of this paragraph may be 
illustrated by the following example:

    Example. On each day of 1965, corporation P owns directly 50 of the 
100 shares of the only class of stock of corporation S. Jones, an 
officer of P, owns directly 30 shares of S stock and P has an option to 
acquire such 30 shares from Jones. The remaining shares of S are owned 
by unrelated persons. If, pursuant to the provisions of paragraph 
(b)(2)(ii) of this section, the 30 shares of S stock owned directly by 
Jones is treated as not outstanding, the result is that P would be 
treated as owning stock possessing only 71 percent (50  70) of the 
total voting power and value of S stock, and S would not be a component 
member of a controlled group of corporations on December 31, 1965. 
However, since P is considered as owning the 30 shares of S stock with 
the application of paragraph (b)(1) of this section, and such ownership 
plus the S stock directly owned by P (50 shares) results in S being a 
component member of a controlled group of corporations on

[[Page 41]]

December 31, 1965, the provisions of this paragraph apply. Therefore, 
the provisions of paragraph (b)(2)(ii) of this section do not apply with 
respect to the 30 shares of S stock, and on December 31, 1965, S is a 
component member of a controlled group of corporations consisting of P 
and S.

[T.D. 6845, 30 FR 9753, Aug. 5, 1965, as amended by T.D. 7181, 37 FR 
8070, Apr. 4, 1972]



Sec. 1.1563-3  Rules for determining stock ownership.

    (a) In general. In determining stock ownership for purposes of 
Secs. 1.1562-5, 1.1563-1, 1.1563-2, and this section, the constructive 
ownership rules of paragraph (b) of this section apply to the extent 
such rules are referred to in such sections. The application of such 
rules shall be subject to the operating rules and special rules 
contained in paragraphs (c) and (d) of this section.
    (b) Constructive ownership--(1) Options. If a person has an option 
to acquire any outstanding stock of a corporation, such stock shall be 
considered as owned by such person. For purposes of this subparagraph, 
an option to acquire such an option, and each one of a series of such 
options, shall be considered as an option to acquire such stock. For 
example, assume Smith owns an option to purchase 100 shares of the 
outstanding stock of M Corporation. Under this subparagraph, Smith is 
considered to own such 100 shares. The result would be the same if Smith 
owned an option to acquire the option (or one of a series of options) to 
purchase 100 shares of M stock.
    (2) Attribution from partnerships. (i) Stock owned, directly or 
indirectly, by or for a partnership shall be considered as owned by any 
partner having an interest of 5 percent or more in either the capital or 
profits of the partnership in proportion to his interest in capital or 
profits, whichever such proportion is the greater.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. Green, Jones, and White, unrelated individuals, are 
partners in the GJW partnership. The partners' interests in the capital 
and profits of the partnership are as follows:

------------------------------------------------------------------------
                                                    Capital     Profits
                     Partner                     -----------------------
                                                    Percent     Percent
------------------------------------------------------------------------
Green...........................................          36          25
Jones...........................................          60          71
White...........................................           4           4
------------------------------------------------------------------------


The GJW partnership owns the entire outstanding stock (100 shares) of X 
Corporation. Under this subparagraph, Green is considered to own the X 
stock owned by the partnership in proportion to his interest in capital 
(36 percent) or profits (25 percent), whichever such proportion is the 
greater. Therefore, Green is considered to own 36 shares of the X stock. 
However, since Jones has a greater interest in the profits of the 
partnership, he is considered to own the X stock in proportion to his 
interest in such profits. Therefore, Jones is considered to own 71 
shares of the X stock. Since White does not have an interest of 5 
percent or more in either the capital or profits of the partnership, he 
is not considered to own any shares of the X stock.

    (3) Attribution from estates or trusts. (i) Stock owned, directly or 
indirectly, by or for an estate or trust shall be considered as owned by 
any beneficiary who has an actuarial interest of 5 percent or more in 
such stock, to the extent of such actuarial interest. For purposes of 
this subparagraph, the actuarial interest of each beneficiary shall be 
determined by assuming the maximum exercise of discretion by the 
fiduciary in favor of such beneficiary and the maximum use of such stock 
to satisfy his rights as a beneficiary. A beneficiary of an estate or 
trust who cannot under any circumstances receive any interest in stock 
held by the estate or trust, including the proceeds from the disposition 
thereof, or the income therefrom, does not have an actuarial interest in 
such stock. Thus, where stock owned by a decedent's estate has been 
specifically bequeathed to certain beneficiaries and the remainder of 
the estate is bequeathed to other beneficiaries, the stock is 
attributable only to the beneficiaries to whom it is specifically 
bequeathed. Similarly, a remainderman of a trust who cannot under any 
circumstances receive any interest in the stock of a corporation which 
is a part of the corpus of the trust (including any accumulated income 
therefrom or the proceeds from a disposition thereof) does not have an 
actuarial interest in such stock. However, an income beneficiary

[[Page 42]]

of a trust does have an actuarial interest in stock if he has any right 
to the income from such stock even though under the terms of the trust 
instrument such stock can never be distributed to him. The factors and 
methods prescribed in Sec. 20.2031-7 of this chapter (Estate Tax 
Regulations) for use in ascertaining the value of an interest in 
property for estate tax purposes shall be used for purposes of this 
subdivision in determining a beneficiary's actuarial interest in stock 
owned directly or indirectly by or for a trust.
    (ii) For the purposes of this subparagraph, property of a decedent 
shall be considered as owned by his estate if such property is subject 
to administration by the executor or administrator for the purposes of 
paying claims against the estate and expenses of administration 
notwithstanding that, under local law, legal title to such property 
vests in the decedent's heirs, legatees or devisees immediately upon 
death. With respect to an estate, the term ``beneficiary'' includes any 
person entitled to receive property of the decedent pursuant to a will 
or pursuant to laws of descent and distribution. A person shall no 
longer be considered a beneficiary of an estate when all the property to 
which he is entitled has been received by him, when he no longer has a 
claim against the estate arising out of having been a beneficiary, and 
when there is only a remote possibility that it will be necessary for 
the estate to seek the return of property or to seek payment from him by 
contribution or otherwise to satisfy claims against the estate or 
expenses of administration. When pursuant to the preceding sentence, a 
person ceases to be a beneficiary, stock owned by the estate shall not 
thereafter be considered owned by him.
    (iii) Stock owned, directly or indirectly, by or for any portion of 
a trust of which a person is considered the owner under Subpart E, Part 
I, Subchapter J of the Code (relating to grantors and others treated as 
substantial owners) is considered as owned by such person.
    (iv) This subparagraph does not apply to stock owned by any 
employees' trust described in section 401(a) which is exempt from tax 
under section 501(a).
    (4) Attribution from corporations. (i) Stock owned, directly or 
indirectly, by or for a corporation shall be considered as owned by any 
person who owns (within the meaning of section 1563(d)) 5 percent or 
more in value or its stock in that proportion which the value of the 
stock which such person so owns bears to the value of all the stock in 
such corporation.
    (ii) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. Brown, an individual, owns 60 shares of the 100 shares of 
the only class of outstanding stock of corporation P. Smith, an 
individual, owns 4 shares of the P stock, and corporation X owns 36 
shares of the P stock. Corporation P owns, directly and indirectly, 50 
shares of the stock of corporation S. Under this subparagraph, Brown is 
considered to own 30 shares of the S stock (\60/100\  x  50), and X is 
considered to own 18 shares of the S stock (\36/100\  x  50). Since 
Smith does not own 5 percent or more in value of the P stock, he is not 
considered as owning any of the S stock owned by P. If, in this example, 
Smith's wife had owned directly 1 share of the P stock, Smith (and his 
wife) would each own 5 shares of the P stock, and therefore Smith (and 
his wife) would be considered as owning 2.5 shares of the S stock (\5/
100\  x  50).

    (5) Spouse. (i) Except as provided in subdivision (ii) of this 
subparagraph, an individual shall be considered to own the stock owned, 
directly or indirectly, by or for his spouse, other than a spouse who is 
legally separated from the individual under a decree of divorce, whether 
interlocutory or final, or a decree of separate maintenance.
    (ii) An individual shall not be considered to own stock in a 
corporation owned, directly or indirectly, by or for his spouse on any 
day of a taxable year of such corporation, provided that each of the 
following conditions are satisfied with respect to such taxable year:
    (a) Such individual does not, at any time during such taxable year, 
own directly any stock in such corporation.
    (b) Such individual is not a member of the board of directors or an 
employee of such corporation and does not participate in the management 
of such corporation at any time during such taxable year.

[[Page 43]]

    (c) Not more than 50 percent of such corporation's gross income for 
such taxable year was derived from royalties, rents, dividends, 
interest, and annuities.
    (d) Such stock in such corporation is not, at any time during such 
taxable year, subject to conditions which substantially restrict or 
limit the spouse's right to dispose of such stock and which run in favor 
of the individual or his children who have not attained the age of 21 
years. The principles of paragraph (b)(2)(iii) of Sec. 1.1563-2 shall 
apply in determining whether a condition is a condition described in the 
preceding sentence.
    (iii) For purposes of subdivision (ii)(c) of this subparagraph, the 
gross income of a corporation for a taxable year shall be determined 
under section 61 and the regulations thereunder. The terms 
``royalties'', ``rents'', ``dividends'', ``interest'', and ``annuities'' 
shall have the same meanings such terms are given for purposes of 
section 1244(c). See paragraph (e)(1)(ii), (iii), (iv), (v), and (vi) of 
Sec. 1.1244(c)-1.
    (6) Children, grandchildren, parents, and grandparents. (i) An 
individual shall be considered to own the stock owned, directly or 
indirectly, by or for his children who have not attained the age of 21 
years, and, if the individual has not attained the age of 21 years, the 
stock owned, directly or indirectly, by or for his parents.
    (ii) If an individual owns (directly, and with the application of 
the rules of this paragraph but without regard to this subdivision) 
stock possessing more than 50 percent of the total combined voting power 
of all classes of stock entitled to vote or more than 50 percent of the 
total value of shares of all classes of stock in a corporation, then 
such individual shall be considered to own the stock in such corporation 
owned, directly or indirectly, by or for his parents, grandparents, 
grandchildren, and children who have attained the age of 21 years. In 
determining whether the stock owned by an individual possesses the 
requisite percentage of the total combined voting power of all classes 
of stock entitled to vote of a corporation, see paragraph (a)(6) of 
Sec. 1.1563-1.
    (iii) For purposes of section 1563, and Secs. 1.1563-1 through 
1.1563-4, a legally adopted child of an individual shall be treated as a 
child of such individual by blood.
    (iv) The provisions of this subparagraph may be illustrated by the 
following example:

    Example. (a) Facts. Individual F owns directly 40 shares of the 100 
shares of the only class of stock of Z Corporation. His son, M (20 years 
of age), owns directly 30 shares of such stock, and his son, A (30 years 
of age), owns directly 20 shares of such stock. The remaining 10 shares 
of the Z stock are owned by an unrelated person.
    (b) F's ownership. Individual F owns 40 shares of the Z stock 
directly and is considered to own the 30 shares of Z stock owned 
directly by M. Since, for purposes of the more-than-50-percent stock 
ownership test contained in subdivision (ii) of this subparagraph, F is 
treated as owning 70 shares or 70 percent of the total voting power and 
value of the Z stock, he is also considered as owning the 20 shares 
owned by his adult son, A. Accordingly, F is considered as owning a 
total of 90 shares of the Z stock.
    (c) M's ownership. Minor son, M, owns 30 shares of the Z stock 
directly, and is considered to own the 40 shares of Z stock owned 
directly by his father, F. However, M is not considered to own the 20 
shares of Z stock owned directly by his brother, A, and constructively 
by F, because stock constructively owned by F by reason of family 
attribution is not considered as owned by him for purposes of making 
another member of his family the constructive owner of such stock. See 
paragraph (c)(2) of this section. Accordingly, M owns and is considered 
as owning a total of 70 shares of the Z stock.
    (d) A's ownership. Adult son, A, owns 20 shares of the Z stock 
directly. Since, for purposes of the more-than-50-percent stock 
ownership test contained in subdivision (ii) of this subparagraph, A is 
treated as owning only the Z stock which he owns directly, he does not 
satisfy the condition precedent for the attribution of Z stock from his 
father. Accordingly, A is treated as owning only the 20 shares of Z 
stock which he owns directly.

    (c) Operating rules and special rules--(1) In general. Except as 
provided in subparagraph (2) of this paragraph, stock constructively 
owned by a person by reason of the application of subparagraph (1), (2), 
(3), (4), (5), or (6) of paragraph (b) of this section shall, for 
purposes of applying such subparagraphs, be treated as actually owned by 
such person.
    (2) Members of family. Stock constructively owned by an individual 
by reason of the application of subparagraph

[[Page 44]]

(5) or (6) of paragraph (b) of this section shall not be treated as 
owned by him for purposes of again applying such subparagraphs in order 
to make another the constructive owner of such stock.
    (3) Precedence of option attribution. For purposes of this section, 
if stock may be considered as owned by a person under subparagraph (1) 
of paragraph (b) of this section (relating to option attribution) and 
under any other subparagraph of such paragraph, such stock shall be 
considered as owned by such person under subparagraph (1) of such 
paragraph.
    (4) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. A, 30 years of age, has a 90 percent interest in the 
capital and profits of a partnership. The partnership owns all the 
outstanding stock of corporation X and X owns 60 shares of the 100 
outstanding shares of corporation Y. Under subparagraph (1) of this 
paragraph, the 60 shares of Y constructively owned by the partnership by 
reason of subparagraph (4) of paragraph (b) of this section is treated 
as actually owned by the partnership for purposes of applying 
subparagraph (2) of paragraph (b) of this section. Therefore, A is 
considered as owning 54 shares of the Y stock (90 percent of 60 shares).
    Example 2. Assume the same facts as in example (1). Assume further 
that B, who is 20 years of age and the brother of A, directly owns 40 
shares of Y stock. Although the stock of Y owned by B is considered as 
owned by C (the father of A and B) under paragraph (b)(6)(i) of this 
section, under subparagraph (2) of this paragraph such stock may not be 
treated as owned by C for purposes of applying paragraph (b)(6)(ii) of 
this section in order to make A the constructive owner of such stock.
    Example 3. Assume the same facts assumed for purposes of example 
(2), and further assume that C has an option to acquire the 40 shares of 
Y stock owned by his son, B. The rule contained in subparagraph (2) of 
this paragraph does not prevent the reattribution of such 40 shares to A 
because, under subparagraph (3) of this paragraph, C is considered as 
owning the 40 shares by reason of option attribution and not by reason 
of family attribution. Therefore, since A satisfies the more-than-50-
percent stock ownership test contained in paragraph (b)(6)(ii) of this 
section with respect to Y, the 40 shares of Y stock constructively owned 
by C are reattributed to A, and A is considered as owning a total of 94 
shares of Y stock.

    (d) Special rule of section 1563 (f)(3)(B)--(1) In general. If the 
same stock of a corporation is owned (within the meaning of section 
1563(d)) by two or more persons, then such stock shall be treated as 
owned by the person whose ownership of such stock results in the 
corporation being a component member of a controlled group on a December 
31 which has at least one other component member on such date.
    (2) Component member of more than one group. (i) If, by reason of 
subparagraph (1) of this paragraph, a corporation would (but for this 
subparagraph) become a component member of more than one controlled 
group on a December 31, such corporation shall be treated as a component 
member of only one such controlled group on such date. The determination 
as to which group such corporation is treated as a component member of 
shall be made in accordance with the rules contained in paragraphs 
(d)(2)(ii), (iii) and (iv) of this section.
    (ii) In any case in which a corporation is a component member of a 
controlled group of corporations on a December 31 as a result of 
treating each share of its stock as owned only by the person who owns 
such share directly, then each such share shall be treated as owned by 
the person who owns such share directly.
    (iii) If the application of subdivision (ii) of this subparagraph 
does not result in a corporation being treated as a component member of 
only one controlled group on a December 31, then the stock of such 
corporation described in subparagraph (1) of this paragraph shall be 
treated as owned by the one person described in such subparagraph who 
owns, directly and with the application of the rules contained in 
paragraph (b) (1), (2), (3), and (4) of this section, the stock 
possessing the greatest percentage of the total value of shares of all 
classes of stock of the corporation.
    (iv) Statement. If the application of paragraph (d)(2)(ii) or (iii) 
of this section does not result in a corporation being treated as a 
component member of only one controlled group of corporations on a 
December 31, then such corporation will be treated as a component member 
of only one such group on

[[Page 45]]

such date. Such corporation may elect the group in which it is to be 
included by including on or with its income tax return a statement 
entitled, ``STATEMENT TO ELECT CONTROLLED GROUP PURSUANT TO Sec. 1.1563-
3(d)(2)(iv).'' The statement must include--
    (A) A description of each of the controlled groups in which the 
corporation could be included. The description must include the name and 
employer identification number of each component member of each such 
group and the stock ownership of the component members of each such 
group; and
    (B) The following representation: [INSERT NAME AND EMPLOYER 
IDENTIFICATION NUMBER OF CORPORATION] ELECTS TO BE TREATED AS A 
COMPONENT MEMBER OF THE [INSERT DESIGNATION OF GROUP].
    (v) Election--(A) Election filed. An election filed under paragraph 
(d)(2)(iv) of this section is irrevocable and effective until paragraph 
(d)(2)(ii) or (iii) of this section applies or until a change in the 
stock ownership of the corporation results in termination of membership 
in the controlled group in which such corporation has been included.
    (B) Election not filed. In the event no election is filed in 
accordance with the provisions of paragraph (d)(2)(iv) of this section, 
then the Internal Revenue Service will determine the group in which such 
corporation is to be included. Such determination will be binding for 
all subsequent years unless the corporation files a valid election with 
respect to any such subsequent year or until a change in the stock 
ownership of the corporation results in termination of membership in the 
controlled group in which such corporation has been included.
    (3) Examples. The provisions of this paragraph may be illustrated by 
the following examples, in which each corporation referred to uses the 
calendar year as its taxable year and the stated facts are assumed to 
exist on each day of 1970 (unless otherwise provided in the example):

    Example 1. Jones owns all the stock of corporation X and has an 
option to purchase from Smith all the outstanding stock of corporation 
Y. Smith owns all the outstanding stock of corporation Z. Since the Y 
stock is considered as owned by two or more persons, under subparagraph 
(2)(ii) of this paragraph the Y stock is treated as owned only by Smith 
since he has direct ownership of such stock. Therefore, on December 31, 
1970, Y and Z are component members of the same brother-sister 
controlled group. If, however, Smith had owned his stock in corporation 
Z for less than one-half of the number of days of Z's 1970 taxable year, 
then under subparagraph (1) of this paragraph the Y stock would be 
treated as owned only by Jones since his ownership results in Y being a 
component member of a controlled group on December 31, 1970.
    Example 2. Individual H owns directly all the outstanding stock of 
corporation M. W (the wife of H) owns directly all the outstanding stock 
of corporation N. Neither spouse is considered as owning the stock 
directly owned by the other because each of the conditions prescribed in 
paragraph (b)(5)(ii) of this section is satisfied with respect to each 
corporation's 1970 taxable year. H owns directly 60 percent of the only 
class of stock of corporation P and W owns the remaining 40 percent of 
the P stock. Under subparagraph (2)(iii) of this paragraph, the stock of 
P is treated as owned only by H since H owns (directly and with the 
application of the rules contained in paragraph (b) (1), (2), (3), and 
(4) of this section) the stock possessing the greatest percentage of the 
total value of shares of all classes of stock of P. Accordingly, on 
December 31, 1970, P is treated as a component member of a brother-
sister group consisting of M and P.
    Example 3. Unrelated individuals A and B each own 49 percent of all 
the outstanding stock of corporation R, which in turn owns 70 percent of 
the only class of outstanding stock of corporation S. The remaining 30 
percent of the stock of corporation S is owned by unrelated individual 
C. C also owns the remaining 2 percent of the stock of corporation R. 
Under the attribution rule of paragraph (b)(4) of this section A and B 
are each considered to own 34.3 percent of the stock of corporation S. 
Accordingly, since five or fewer persons own at least 80 percent of the 
stock of corporations R and S and also own more than 50 percent 
identically (A's and B's identical ownership each is 34.3 percent, C's 
identical ownership is 2 percent), on December 31, 1970, corporations R 
and S are treated as component members of the same brother-sister 
controlled group for purposes of paragraph (a)(3)(ii) of Sec. 1.1563-1.

    (e) Effective/applicability date. Paragraph (d)(2)(iv) and (v) of 
this section apply to any taxable year beginning on or after May 30, 
2006. However, taxpayers may apply paragraph (d)(2)(iv) and (v) of this 
section to any original Federal income tax return (including

[[Page 46]]

any amended return filed on or before the due date (including 
extensions) of such original return) timely filed on or after May 30, 
2006. For taxable years beginning before May 30, 2006, see Sec. 1.1563-3 
as contained in 26 CFR part 1 in effect on April 1, 2006.

[T.D. 6845, 30 FR 9755, Aug. 5, 1965, as amended by T.D. 7181, 37 FR 
8070, Apr. 25, 1972; T.D. 7779, 46 FR 29474, June 2, 1981; T.D. 8179, 53 
FR 6613, Mar. 2, 1988; T.D. 9264, 71 FR 30606, 30608, May 30, 2006; T.D. 
9304, 71 FR 76913, Dec. 22, 2006; T.D. 9329, 72 FR 32806, 32807, June 
14, 2007; T.D. 9451, 74 FR 25148, May 27, 2009]



Sec. 1.1563-4  Franchised corporations.

    (a) In general. For purposes of paragraph (b)(2)(ii)(d) of 
Sec. 1.1563-1, a member of a controlled group of corporations shall be 
considered to be a franchised corporation for a taxable year if each of 
the following conditions is satisfied for one-half (or more) of the 
number of days preceding the December 31 included within such taxable 
year (or, if such taxable year does not include a December 31, for one-
half or more of the number of days in such taxable year preceding the 
last day of such year):
    (1) Such member is franchised to sell the products of another 
member, or the common owner, of such controlled group.
    (2) More than 50 percent (determined on the basis of cost) of all 
the goods held by such member primarily for sale to its customers are 
acquired from members or the common owner of the controlled group, or 
both.
    (3) The stock of such member is to be sold to an employee (or 
employees) of such member pursuant to a bona fide plan designed to 
eliminate the stock ownership of the parent corporation (as defined in 
paragraph (b)(1) of Sec. 1.1563-2) or of the common owner (as defined in 
paragraph (b)(3) of Sec. 1.1563-2) in such member.
    (4) Such employee owns (or such employees in the aggregate own) 
directly more than 20 percent of the total value of shares of all 
classes of stock of such member. For purposes of this subparagraph, the 
determination of whether an employee (or employees) owns the requisite 
percentage of the total value of the stock of the member shall be made 
without regard to paragraph (b) of Sec. 1.1563-2, relating to certain 
stock treated as excluded stock. Furthermore, if the corporation has 
more than one class of stock outstanding, the relative voting rights as 
between each such class of stock shall be disregarded in making such 
determination.
    (b) Plan for elimination of stock ownership. (1) A plan referred to 
in paragraph (a)(3) of this section must:
    (i) Provide a reasonable selling price for the stock of the member, 
and
    (ii) Require that a portion of the employee's compensation or 
dividends, or both, from such member be applied to the purchase of such 
stock (or to the purchase of notes, bonds, debentures, or similar 
evidences of indebtedness of such member held by the parent corporation 
or the common owner).


It is not necessary, in order to satisfy the requirements of subdivision 
(ii) of this subparagraph, that the plan require that a percentage of 
every dollar of the compensation and dividends be applied to the 
purchase of the stock (or the indebtedness). The requirements of such 
subdivision are satisfied if an otherwise qualified plan provides that 
under certain specified conditions (such as a requirement that the 
member earn a specified profit) no portion of the compensation and/or 
dividends need be applied to the purchase of the stock (or 
indebtedness), provided such conditions are reasonable.
    (2) A plan for the elimination of the stock ownership of the parent 
corporation or of the common owner will satisfy the requirements of 
paragraph (a)(3) of this section and subparagraph (1) of this paragraph 
even though it does not require that the stock of the member be sold to 
an employee (or employees) if it provides for the redemption of the 
stock of the member held by the parent or common owner and under the 
plan the amount of such stock to be redeemed during any period is 
calculated by reference to the profits of such member during such 
period.

[T.D. 6845, 30 FR 9757, Aug. 5, 1965]

[[Page 47]]

  Individual Shared Responsibility Payment for Not Maintaining Minimum 
                           Essential Coverage



PROCEDURE AND ADMINISTRATION--Table of Contents



                         Information and Returns



Sec. 1.5000A-0  Table of contents.

    This section lists the captions contained in Secs. 1.5000A-1 through 
1.5000A-5.

Sec. 1.5000A-1  Maintenance of minimum essential coverage and liability 
                 for the shared responsibility payment.

    (a) In general.
    (b) Coverage under minimum essential coverage.
    (1) In general.
    (2) Special rule for United States citizens or residents residing 
outside the United States or residents of territories.
    (c) Liability for shared responsibility payment.
    (1) In general.
    (2) Liability for dependents.
    (i) In general.
    (ii) Special rules for dependents adopted or placed in foster care 
during the taxable year.
    (A) Taxpayers adopting an individual.
    (B) Taxpayers placing an individual for adoption.
    (C) Examples.
    (3) Liability of individuals filing a joint return.
    (d) Definitions.
    (1) Affordable Care Act.
    (2) Employee.
    (3) Exchange.
    (4) Family.
    (5) Family coverage.
    (6) Group health insurance coverage.
    (7) Group health plan.
    (8) Health insurance coverage.
    (9) Health insurance issuer.
    (10) Household income.
    (i) In general.
    (ii) Modified adjusted gross income.
    (11) Individual market.
    (12) Large and small group market.
    (13) Month.
    (14) Qualified health plan.
    (15) Rating area.
    (16) Self-only coverage.
    (17) Shared responsibility family.
    (18) State.

               Sec. 1.5000A-2  Minimum essential coverage.

    (a) In general.
    (b) Government-sponsored program.
    (1) In general.
    (i) Medicare.
    (ii) Medicaid.
    (iii) Children's Health Insurance Program.
    (iv) TRICARE.
    (v) Veterans programs.
    (vi) Peace Corp program.
    (vii) Nonappropriated Fund Health Benefits Program.
    (2) Certain health care coverage not minimum essential coverage 
under a government-sponsored program.
    (c) Eligible employer-sponsored plan.
    (1) In general.
    (2) Government-sponsored program generally not an eligible employer-
sponsored plan.
    (d) Plan in the individual market.
    (1) In general.
    (2) Qualified health plan offered by an Exchange.
    (e) Grandfathered health plan.
    (f) Other coverage that qualifies as minimum essential coverage.
    (g) Excepted benefits not minimum essential coverage.

                   Sec. 1.5000A-3  Exempt individuals.

    (a) Members of recognized religious sects.
    (1) In general.
    (2) Exemption certification.
    (b) Member of health care sharing ministries.
    (1) In general.
    (2) Health care sharing ministry.
    (c) Exempt noncitizens.
    (1) In general.
    (2) Exempt noncitizens.
    (d) Incarcerated individuals.
    (1) In general.
    (2) Incarcerated.
    (e) Individuals with no affordable coverage.
    (1) In general.
    (2) Required contribution percentage.
    (i) In general.
    (ii) Indexing.
    (iii) Plan year.
    (3) Individuals eligible for coverage under eligible employer-
sponsored plans.
    (i) Eligibility.
    (A) In general.
    (B) Multiple eligibility.
    (C) Special rule for post-employment coverage.
    (ii) Required contribution for individuals eligible for coverage 
under an eligible employer-sponsored plan.
    (A) Employees.
    (B) Individuals related to employees.
    (C) Required contribution for part-year period.
    (D) Employer contributions to health reimbursement arrangements.
    (E) Wellness program incentives.
    (iii) Examples.
    (4) Individuals ineligible for coverage under eligible employer-
sponsored plans.
    (i) Eligibility for coverage other than an eligible employer-
sponsored plan.
    (ii) Required contribution for individuals ineligible for coverage 
under eligible employer-sponsored plans.

[[Page 48]]

    (A) In general.
    (B) Applicable plan.
    (1) In general.
    (2) Lowest cost bronze plan does not cover all individuals included 
in the taxpayer's nonexempt family.
    (i) In general.
    (ii) Optional simplified method for applicable plan identification.
    (C) Wellness program incentives.
    (D) Credit allowable under section 36B.
    (E) Required contribution for part-year period.
    (iii) Examples.
    (f) Household income below filing threshold.
    (1) In general.
    (2) Applicable filing threshold.
    (i) In general.
    (ii) Certain dependents.
    (3) Manner of claiming the exemption.
    (g) Members of Indian tribes.
    (h) Individuals with hardship exemption certification.
    (1) In general.
    (2) Hardship exemption certification.
    (3) Hardship exemption without hardship exemption certification.
    (i) [Reserved]
    (j) Individuals with certain short coverage gaps.
    (1) In general.
    (2) Short coverage gap.
    (i) In general.
    (ii) Coordination with other exemptions.
    (iii) More than one short coverage gap during calendar year.
    (3) Continuous period.
    (i) In general.
    (ii) Continuous period straddling more than one taxable year.
    (4) Examples.

      Sec. 1.5000A-4  Computation of shared responsibility payment.

    (a) In general.
    (b) Monthly penalty amount.
    (1) In general.
    (2) Flat dollar amount.
    (i) In general.
    (ii) Applicable dollar amount.
    (iii) Special applicable dollar amount for individuals under age 18.
    (iv) Indexing of applicable dollar amount.
    (3) Excess income amount.
    (i) In general.
    (ii) Income percentage.
    (c) Monthly national average bronze plan premium.
    (d) Examples.

              Sec. 1.5000A-5  Administration and procedure.

    (a) In general.
    (b) Special rules.
    (1) Waiver of criminal penalties.
    (2) Limitations on liens and levies.
    (3) Authority to offset against overpayment.
    (c) Effective/applicability date.

[T.D. 9632, 78 FR 53655, Aug. 30, 2013, as amended at 78 FR 78255, Dec. 
26, 2013; T.D. 9705, 79 FR 70468, Nov. 26, 2014]



Sec. 1.5000A-1  Maintenance of minimum essential coverage and 
liability for the shared responsibility payment.

    (a) In general. For each month during the taxable year, a nonexempt 
individual must have minimum essential coverage or pay the shared 
responsibility payment. For a month, a nonexempt individual is an 
individual in existence for the entire month who is not an exempt 
individual described in Sec. 1.5000A-3.
    (b) Coverage under minimum essential coverage--(1) In general. An 
individual has minimum essential coverage for a month in which the 
individual is enrolled in and entitled to receive benefits under a 
program or plan identified as minimum essential coverage in 
Sec. 1.5000A-2 for at least one day in the month.
    (2) Special rule for United States citizens or residents residing 
outside the United States or residents of territories. An individual is 
treated as having minimum essential coverage for a month--
    (i) If the month occurs during any period described in section 
911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the 
individual; or
    (ii) If, for the month, the individual is a bona fide resident of a 
possession of the United States (as determined under section 937(a)).
    (c) Liability for shared responsibility payment--(1) In general. A 
taxpayer is liable for the shared responsibility payment for a month for 
which--
    (i) The taxpayer is a nonexempt individual without minimum essential 
coverage; or
    (ii) A nonexempt individual for whom the taxpayer is liable under 
paragraph (c)(2) or (c)(3) of this section does not have minimum 
essential coverage.
    (2) Liability for dependents--(i) In general. For a month when a 
nonexempt individual does not have minimum essential coverage, if the 
nonexempt individual is a dependent (as defined in section 152) of 
another individual for

[[Page 49]]

the other individual's taxable year including that month, the other 
individual is liable for the shared responsibility payment attributable 
to the dependent's lack of coverage. An individual is a dependent of a 
taxpayer for a taxable year if the individual satisfies the definition 
of dependent under section 152, regardless of whether the taxpayer 
claims the individual as a dependent on a Federal income tax return for 
the taxable year. If an individual may be claimed as a dependent by more 
than one taxpayer in the same calendar year, the taxpayer who properly 
claims the individual as a dependent for the taxable year is liable for 
the shared responsibility payment attributable to the individual. If 
more than one taxpayer may claim an individual as a dependent in the 
same calendar year but no one claims the individual as a dependent, the 
taxpayer with priority under the rules of section 152 to claim the 
individual as a dependent is liable for the shared responsibility 
payment for the individual.
    (ii) Special rules for dependents adopted or placed in foster care 
during the taxable year--(A) Taxpayers adopting an individual. If a 
taxpayer adopts a nonexempt dependent (or accepts a nonexempt dependent 
who is an eligible foster child as defined in section 152(f)(1)(C)) 
during the taxable year and is otherwise liable for the nonexempt 
dependent under paragraph (c)(2)(i) of this section, the taxpayer is 
liable under paragraph (c)(2)(i) of this section for the nonexempt 
dependent only for the full months in the taxable year that follow the 
month in which the adoption or acceptance occurs.
    (B) Taxpayers placing an individual for adoption. If a taxpayer who 
is otherwise liable for a nonexempt dependent under paragraph (c)(2)(i) 
of this section places (or, by operation of law, must place) the 
nonexempt dependent for adoption or foster care during the taxable year, 
the taxpayer is liable under paragraph (c)(2)(i) of this section for the 
nonexempt dependent only for the full months in the taxable year that 
precede the month in which the adoption or foster care placement occurs.
    (C) Examples. The following examples illustrate the provisions of 
this paragraph (c)(2)(ii). In each example the taxpayer's taxable year 
is a calendar year.

    Example 1. Taxpayers adopting a child. (i) E and F, married 
individuals filing a joint return, initiate proceedings for the legal 
adoption of a 2-year old child, G, in January 2016. On May 15, 2016, G 
becomes the adopted child (within the meaning of section 152(f)(1)(B)) 
of E and F, and resides with them for the remainder of 2016. Prior to 
the adoption, G resides with H, an unmarried individual, with H 
providing all of G's support. For 2016 G meets all requirements under 
section 152 to be E and F's dependent, and not H's dependent.
    (ii) Under paragraph (c)(2) of this section, E and F are not liable 
for a shared responsibility payment attributable to G for January 
through May of 2016, but are liable for a shared responsibility payment 
attributable to G, if any, for June through December of 2016. H is not 
liable for a shared responsibility payment attributable to G for any 
month in 2016, because G is not H's dependent for 2016 under section 
152.
    Example 2. Taxpayers placing a child for adoption. (i) The facts are 
the same as Example 1, except the legal adoption occurs on August 15, 
2016, and, for 2016, G meets all requirements under section 152 to be 
H's dependent, and not E and F's dependent.
    (ii) Under paragraph (c)(2) of this section, H is liable for a 
shared responsibility payment attributable to G, if any, for January 
through July of 2016, but is not liable for a shared responsibility 
payment attributable to G for August through December of 2016. E and F 
are not liable for a shared responsibility payment attributable to G for 
any month in 2016, because G is not E and F's dependent for 2016 under 
section 152.

    (3) Liability of individuals filing a joint return. Married 
individuals (within the meaning of section 7703) who file a joint return 
for a taxable year are jointly liable for any shared responsibility 
payment for a month included in the taxable year.
    (d) Definitions. The definitions in this paragraph (d) apply to this 
section and Secs. 1.5000A-2 through 1.5000A-5.
    (1) Affordable Care Act. Affordable Care Act refers to the Patient 
Protection and Affordable Care Act, Public Law 111-148 (124 Stat. 119 
(2010)), and the Health Care and Education Reconciliation Act of 2010, 
Public Law 111-152 (124 Stat. 1029 (2010)), as amended.
    (2) Employee. Employee includes former employees.
    (3) Exchange. Exchange has the same meaning as in 45 CFR 155.20.

[[Page 50]]

    (4) Family. A taxpayer's family means the individuals for whom the 
taxpayer properly claims a deduction for a personal exemption under 
section 151 for the taxable year.
    (5) Family coverage. Family coverage means health insurance that 
covers more than one individual.
    (6) Group health insurance coverage. Group health insurance coverage 
has the same meaning as in section 2791(b)(4) of the Public Health 
Service Act (42 U.S.C. 300gg-91(b)(4)).
    (7) Group health plan. Group health plan has the same meaning as in 
section 2791(a)(1) of the Public Health Service Act (42 U.S.C. 300gg-
91(a)(1)).
    (8) Health insurance coverage. Health insurance coverage has the 
same meaning as in section 2791(b)(1) of the Public Health Service Act 
(42 U.S.C. 300gg-91(b)(1)).
    (9) Health insurance issuer. Health insurance issuer has the same 
meaning as in section 2791(b)(2) of the Public Health Service Act (42 
U.S.C. 300gg-91(b)(2)).
    (10) Household income--(i) In general. Household income means the 
sum of--
    (A) A taxpayer's modified adjusted gross income; and
    (B) The aggregate modified adjusted gross income of all other 
individuals who--
    (1) Are included in the taxpayer's family under paragraph (d)(4) of 
this section; and
    (2) Are required to file a Federal income tax return for the taxable 
year.
    (ii) Modified adjusted gross income. Modified adjusted gross income 
means adjusted gross income (within the meaning of section 62) increased 
by--
    (A) Amounts excluded from gross income under section 911; and
    (B) Tax-exempt interest the taxpayer receives or accrues during the 
taxable year.
    (11) Individual market. Individual market has the same meaning as in 
section 1304(a)(2) of the Affordable Care Act (42 U.S.C. 18024(a)(2)).
    (12) Large and small group market. Large group market and small 
group market have the same meanings as in section 1304(a)(3) of the 
Affordable Care Act (42 U.S.C. 18024(a)(3)).
    (13) Month. Month means calendar month.
    (14) Qualified health plan. Qualified health plan has the same 
meaning as in section 1301(a) of the Affordable Care Act (42 U.S.C. 
18021(a)).
    (15) Rating area. Rating area has the same meaning as in Sec. 1.36B-
1(n).
    (16) Self-only coverage. Self-only coverage means health insurance 
that covers one individual.
    (17) Shared responsibility family. Shared responsibility family 
means, for a month, all nonexempt individuals for whom the taxpayer (and 
the taxpayer's spouse, if the taxpayer is married and files a joint 
return with the spouse) is liable for the shared responsibility payment 
under paragraph (c) of this section.
    (18) State. State means each of the 50 states and the District of 
Columbia.

[T.D. 9632, 78 FR 53655, Aug. 30, 2013, as amended at 78 FR 78255, Dec. 
26, 2013]



Sec. 1.5000A-2  Minimum essential coverage.

    (a) In general. Minimum essential coverage means coverage under a 
government-sponsored program (described in paragraph (b) of this 
section), an eligible employer-sponsored plan (described in paragraph 
(c) of this section), a plan in the individual market (described in 
paragraph (d) of this section), a grandfathered health plan (described 
in paragraph (e) of this section), or other health benefits coverage 
(described in paragraph (f) of this section). Minimum essential coverage 
does not include coverage described in paragraph (g) of this section. 
All terms defined in this section apply for purposes of this section and 
Sec. 1.5000A-1 and Secs. 1.5000A-3 through 1.5000A-5.
    (b) Government-sponsored program--(1) In general. Except as provided 
in paragraph (2), government-sponsored program means any of the 
following:
    (i) Medicare. The Medicare program under part A of Title XVIII of 
the Social Security Act (42 U.S.C. 1395c and following sections);
    (ii) Medicaid. The Medicaid program under Title XIX of the Social 
Security Act (42 U.S.C. 1396 and following sections);
    (iii) Children's Health Insurance Program. The Children's Health 
Insurance Program (CHIP) under Title XXI of the

[[Page 51]]

Social Security Act (42 U.S.C. 1397aa and following sections);
    (iv) TRICARE. Medical coverage under chapter 55 of Title 10, U.S.C., 
including coverage under the TRICARE program;
    (v) Veterans programs. The following health care programs under 
chapter 17 or 18 of Title 38, U.S.C.:
    (A) The medical benefits package authorized for eligible veterans 
under 38 U.S.C. 1710 and 38 U.S.C. 1705;
    (B) The Civilian Health and Medical Program of the Department of 
Veterans Affairs (CHAMPVA) authorized under 38 U.S.C. 1781; and
    (C) The comprehensive health care program authorized under 38 U.S.C. 
1803 and 38 U.S.C. 1821 for certain children of Vietnam Veterans and 
Veterans of covered service in Korea who are suffering from spina 
bifida.
    (vi) Peace Corp program. A health plan under section 2504(e) of 
Title 22, U.S.C. (relating to Peace Corps volunteers); and
    (vii) Nonappropriated Fund Health Benefits Program. The 
Nonappropriated Fund Health Benefits Program of the Department of 
Defense, established under section 349 of the National Defense 
Authorization Act for Fiscal Year 1995 (Pub. L. 103-337; 10 U.S.C. 1587 
note).
    (2) Certain health care coverage not minimum essential coverage 
under a government-sponsored program. Government-sponsored program does 
not mean any of the following:
    (i) Optional coverage of family planning services under section 
1902(a)(10)(A)(ii)(XXI) of the Social Security Act (42 U.S.C. 
1396a(a)(10)(A)(ii)(XXI));
    (ii) Optional coverage of tuberculosis-related services under 
section 1902(a)(10)(A)(ii)(XII) of the Social Security Act (42 U.S.C. 
1396a(a)(10)(A)(ii)(XII));
    (iii) Coverage of pregnancy-related services under section 
1902(a)(10)(A)(i)(IV) and (a)(10)(A)(ii)(IX) of the Social Security Act 
(42 U.S.C. 1396a(a)(10)(A)(i)(IV), (a)(10)(A)(ii)(IX));
    (iv) Coverage limited to treatment of emergency medical conditions 
in accordance with 8 U.S.C. 1611(b)(1)(A), as authorized by section 
1903(v) of the Social Security Act (42 U.S.C. 1396b(v));
    (v) Coverage for medically needy individuals under section 
1902(a)(10)(C) of the Social Security Act (42 U.S.C. 1396a(a)(10)(C)) 
and 42 CFR 435.300 and following sections;
    (vi) Coverage authorized under section 1115(a) of the Social 
Security Act (42 U.S.C. 1315(a));
    (vii) Coverage under section 1079(a), 1086(c)(1), or 1086(d)(1) of 
title 10, U.S.C., that is solely limited to space available care in a 
facility of the uniformed services for individuals excluded from TRICARE 
coverage for care from private sector providers; and
    (viii) Coverage under sections 1074a and 1074b of title 10, U.S.C., 
for an injury, illness, or disease incurred or aggravated in the line of 
duty for individuals who are not on active duty.
    (c) Eligible employer-sponsored plan--(1) In general. Eligible 
employer-sponsored plan means, with respect to any employee:
    (i) Group health insurance coverage offered by, or on behalf of, an 
employer to the employee that is--
    (A) A governmental plan (within the meaning of section 2791(d)(8) of 
the Public Health Service Act (42 U.S.C. 300gg-91(d)(8)));
    (B) Any other plan or coverage offered in the small or large group 
market within a State; or
    (C) A grandfathered health plan (within the meaning of paragraph (e) 
of this section) offered in a group market; or
    (ii) A self-insured group health plan under which coverage is 
offered by, or on behalf of, an employer to the employee.
    (2) Government-sponsored program generally not an eligible employer-
sponsored plan. Except for the program identified in paragraph 
(b)(1)(vii) of this section, a government-sponsored program described in 
paragraph (b) of this section is not an eligible employer-sponsored 
plan.
    (d) Plan in the individual market--(1) In general. Plan in the 
individual market means health insurance coverage offered to individuals 
in the individual market within a state, other than short-term limited 
duration insurance within the meaning of section 2791(b)(5)

[[Page 52]]

of the Public Health Service Act (42 U.S.C. 300gg-91(b)(5)).
    (2) Qualified health plan offered by an Exchange. A qualified health 
plan offered by an Exchange is a plan in the individual market. If a 
territory of the United States elects to establish an Exchange under 
section 1323(a)(1) and (b) of the Affordable Care Act (42 U.S.C. 
18043(a)(1), (b)), a qualified health plan offered by that Exchange is a 
plan in the individual market.
    (e) Grandfathered health plan. Grandfathered health plan means any 
group health plan or group health insurance coverage to which section 
1251 of the Affordable Care Act (42 U.S.C. 18011) applies.
    (f) Other coverage that qualifies as minimum essential coverage. 
Minimum essential coverage includes any plan or arrangement recognized 
by the Secretary of Health and Human Services, in coordination with the 
Secretary of the Treasury, as minimum essential coverage.
    (g) Excepted benefits not minimum essential coverage. Minimum 
essential coverage does not include any coverage that consists solely of 
excepted benefits described in section 2791(c)(1), (c)(2), (c)(3), or 
(c)(4) of the Public Health Service Act (42 U.S.C. 300gg-91(c)).

[T.D. 9632, 78 FR 53655, Aug. 30, 2013, as amended at 78 FR 78255, Dec. 
26, 2013; T.D. 9705, 79 FR 70469, Nov. 26, 2014]



Sec. 1.5000A-3  Exempt individuals.

    (a) Members of recognized religious sects--(1) In general. An 
individual is an exempt individual for a month that includes a day on 
which the individual has in effect a religious conscience exemption 
certification described in paragraph (a)(2) of this section.
    (2) Exemption certification. A religious conscience exemption 
certification is issued by an Exchange in accordance with the 
requirements of section 1311(d)(4)(H) of the Affordable Care Act (42 
U.S.C. 18031(d)(4)(H)), 45 CFR 155.605(c), and 45 CFR 155.615(b) and 
certifies that an individual is--
    (i) A member of a recognized religious sect or division of the sect 
that is described in section 1402(g)(1); and
    (ii) An adherent of established tenets or teachings of the sect or 
division as described in that section.
    (b) Member of health care sharing ministries--(1) In general. An 
individual is an exempt individual for a month that includes a day on 
which the individual is a member of a health care sharing ministry.
    (2) Health care sharing ministry. For purposes of this section, 
health care sharing ministry means an organization--
    (i) That is described in section 501(c)(3) and is exempt from tax 
under section 501(a);
    (ii) Members of which share a common set of ethical or religious 
beliefs and share medical expenses among themselves in accordance with 
those beliefs and without regard to the state in which a member resides 
or is employed;
    (iii) Members of which retain membership even after they develop a 
medical condition;
    (iv) That (or a predecessor of which) has been in existence at all 
times since December 31, 1999;
    (v) Members of which have shared medical expenses continuously and 
without interruption since at least December 31, 1999; and
    (vi) That conducts an annual audit performed by an independent 
certified public accounting firm in accordance with generally accepted 
accounting principles and makes the annual audit report available to the 
public upon request.
    (c) Exempt noncitizens--(1) In general. An individual is an exempt 
individual for a month that the individual is an exempt noncitizen.
    (2) Exempt noncitizens. For purposes of this section, an individual 
is an exempt noncitizen for a month if the individual--
    (i) Is not a U.S. citizen or U.S. national for any day during the 
month; and
    (ii) Is either--
    (A) A nonresident alien (within the meaning of section 
7701(b)(1)(B)) for the taxable year that includes the month; or
    (B) An individual who is not lawfully present (within the meaning of 
45 CFR 155.20) on any day in the month.

[[Page 53]]

    (d) Incarcerated individuals--(1) In general. An individual is an 
exempt individual for a month that includes a day on which the 
individual is incarcerated.
    (2) Incarcerated. For purposes of this section, the term 
incarcerated means confined, after the disposition of charges, in a 
jail, prison, or similar penal institution or correctional facility.
    (e) Individuals with no affordable coverage--(1) In general. An 
individual is an exempt individual for a month in which the individual 
lacks affordable coverage. For purposes of this paragraph (e), an 
individual lacks affordable coverage in a month if the individual's 
required contribution (determined on an annual basis) for minimum 
essential coverage for the month exceeds the required contribution 
percentage (as defined in paragraph (e)(2) of this section) of the 
individual's household income. For purposes of this paragraph (e), an 
individual's household income is increased by any amount of the required 
contribution made through a salary reduction arrangement that is 
excluded from gross income.
    (2) Required contribution percentage--(i) In general. Except as 
provided in paragraph (e)(2)(ii) of this section, the required 
contribution percentage is 8 percent.
    (ii) Indexing. For plan years beginning in any calendar year after 
2014, the required contribution percentage is the percentage determined 
by the Department of Health and Human Services that reflects the excess 
of the rate of premium growth between the preceding calendar year and 
2013 over the rate of income growth for the period.
    (iii) Plan year. For purposes of this paragraph (e), plan year means 
the eligible employer-sponsored plan's regular 12-month coverage period, 
or for a new employee or an individual who enrolls during a special 
enrollment period, the remainder of a 12-month coverage period.
    (3) Individuals eligible for coverage under eligible employer-
sponsored plans--(i) Eligibility--(A) In general. Except as provided in 
paragraph (e)(3)(i)(B) of this section, an employee or related 
individual (as defined in paragraph (e)(3)(ii)(B) of this section) is 
treated as eligible for coverage under an eligible employer-sponsored 
plan for a month during a plan year if the employee or related 
individual could have enrolled in the plan for any day in that month 
during an open or special enrollment period, regardless of whether the 
employee or related individual is eligible for any other type of minimum 
essential coverage.
    (B) Multiple eligibility. For purposes of this paragraph (e)(3), an 
employee eligible for coverage under an eligible employer-sponsored plan 
offered by the employee's employer is not treated as eligible as a 
related individual for coverage under an eligible employer-sponsored 
plan (for example, an eligible employer-sponsored plan offered by the 
employer of the employee's spouse) for any month included in the plan 
year of the eligible employer-sponsored plan offered by the employee's 
employer.
    (C) Special rule for post-employment coverage. A former employee or 
an individual related to a former employee, who may enroll in 
continuation coverage required under Federal law or a state law that 
provides comparable continuation coverage, or in retiree coverage under 
an eligible employer-sponsored plan, is eligible for coverage under an 
eligible employer-sponsored plan only if the individual enrolls in the 
coverage.
    (ii) Required contribution for individuals eligible for coverage 
under an eligible employer-sponsored plan--(A) Employees. In the case of 
an employee who is eligible to purchase coverage under an eligible 
employer-sponsored plan sponsored by the employee's employer, the 
required contribution is the portion of the annual premium that the 
employee would pay (whether through salary reduction or otherwise) for 
the lowest cost self-only coverage.
    (B) Individuals related to employees. In the case of an individual 
who is eligible for coverage under an eligible employer-sponsored plan 
because of a relationship to an employee and for whom a personal 
exemption deduction under section 151 is claimed on the employee's 
Federal income tax return (related individual), the required 
contribution is the portion of the annual premium that the employee 
would pay

[[Page 54]]

(whether through salary reduction or otherwise) for the lowest cost 
family coverage that would cover the employee and all related 
individuals who are included in the employee's family and are not 
otherwise exempt under Sec. 1.5000A-3.
    (C) Required contribution for part-year period. For each individual 
described in paragraph (e)(3)(ii)(A) or (e)(3)(ii)(B) of this section, 
affordability under this paragraph (e)(3) is determined separately for 
each employment period that is less than a full calendar year or for the 
portions of an employer's plan year that fall in different taxable years 
of the individual. Coverage under an eligible employer-sponsored plan is 
affordable for a part-year period if the annualized required 
contribution for self-only coverage (in the case of the employee) or 
family coverage (in the case of a related individual) under the plan for 
the part-year period does not exceed the required contribution 
percentage of the individual's household income for the taxable year. 
The annualized required contribution is the required contribution 
determined under paragraph (e)(3)(ii)(A) or (e)(3)(ii)(B) of this 
section for the part-year period times a fraction, the numerator of 
which is 12 and the denominator of which is the number of months in the 
part-year period during the individual's taxable year. Only full 
calendar months are included in the computation under this paragraph 
(e)(3)(ii)(C).
    (D) Employer contributions to health reimbursement arrangements. 
Amounts newly made available for the current plan year under a health 
reimbursement arrangement that an employee may use to pay premiums, or 
may use to pay cost-sharing or benefits not covered by the primary plan 
in addition to premiums, are counted toward the employee's required 
contribution if the health reimbursement arrangement would be 
integrated, as that term is used in Notice 2013-54 (2013-40 IRB 287) or 
in any successor published guidance (see Sec. 601.601(d) of this 
chapter), with an eligible employer-sponsored plan for an employee 
enrolled in the plan. The eligible employer-sponsored plan and the 
health reimbursement arrangement must be offered by the same employer. 
Employer contributions to a health reimbursement arrangement count 
toward an employee's required contribution only to the extent the amount 
of the annual contribution is required under the terms of the plan or 
otherwise determinable within a reasonable time before the employee must 
decide whether to enroll in the eligible employer-sponsored plan.
    (E) Employer contributions to cafeteria plans. Amounts made 
available for the current plan year under a cafeteria plan, within the 
meaning of section 125, are taken into account in determining an 
employee's or a related individual's required contribution if:
    (1) The employee may not opt to receive the amount as a taxable 
benefit;
    (2) The employee may use the amount to pay for minimum essential 
coverage; and
    (3) The employee may use the amount exclusively to pay for medical 
care, within the meaning of section 213.
    (F) Wellness program incentives. Nondiscriminatory wellness program 
incentives, within the meaning of Sec. 54.9802-1(f) of this chapter, 
offered by an eligible employer-sponsored plan that affect premiums are 
treated as earned in determining an employee's required contribution for 
purposes of affordability of an eligible employer-sponsored plan to the 
extent the incentives relate exclusively to tobacco use. Wellness 
program incentives that do not relate to tobacco use or that include a 
component unrelated to tobacco use are treated as not earned for this 
purpose. For purposes of this section, the term wellness program 
incentive has the same meaning as the term reward in Sec. 54.9802-
1(f)(1)(i) of this chapter.
    (G) Opt-out arrangements. [Reserved]
    (iii) Examples. The following examples illustrate the application of 
this paragraph (e)(3). Unless stated otherwise, in each example, each 
individual's taxable year is a calendar year, the individual is 
ineligible for any other exemptions described in this section for a 
month, the rate of premium growth has not exceeded the rate of income 
growth since 2013, and the individual's employer offers a single plan 
that uses a calendar plan year and is

[[Page 55]]

an eligible employer-sponsored plan as described in Sec. 1.5000A-2(c).

    Example 1. Unmarried employee with no dependents. Taxpayer A is an 
unmarried individual with no dependents. In November 2015, A is eligible 
to enroll in self-only coverage under a plan offered by A's employer for 
calendar year 2016. If A enrolls in the coverage, A is required to pay 
$5,000 of the total annual premium. In 2016, A's household income is 
$60,000. Under paragraph (e)(3)(ii)(A) of this section, A's required 
contribution is $5,000, the portion of the annual premium A pays for 
self-only coverage. Under paragraph (e)(1) of this section, A lacks 
affordable coverage for 2016 because A's required contribution ($5,000) 
is greater than 8% of A's household income ($4,800).
    Example 2. Married employee with dependents. Taxpayers B and C are 
married and file a joint return for 2016. B and C have two children, D 
and E. In November 2015, B is eligible to enroll in self-only coverage 
under a plan offered by B's employer for calendar year 2016 at a cost of 
$5,000 to B. C, D, and E are eligible to enroll in family coverage under 
the same plan for 2016 at a cost of $20,000 to B. B, C, D, and E's 
household income for 2016 is $90,000. Under paragraph (e)(3)(ii)(A) of 
this section, B's required contribution is B's share of the cost for 
self-only coverage, $5,000. Under paragraph (e)(1) of this section, B 
has affordable coverage for 2016 because B's required contribution 
($5,000) does not exceed 8% of B's household income ($7,200). Under 
paragraph (e)(3)(ii)(B) of this section, the required contribution for 
C, D, and E is B's share of the cost for family coverage, $20,000. Under 
paragraph (e)(1) of this section, C, D, and E lack affordable coverage 
for 2016 because their required contribution ($20,000) exceeds 8% of 
their household income ($7,200).
    Example 3. Plan year is a fiscal year. (i) Taxpayer F is an 
unmarried individual with no dependents. In June 2015, F is eligible to 
enroll in self-only coverage under a plan offered by F's employer for 
the period July 2015 through June 2016 at a cost to F of $4,750. In June 
2016, F is eligible to enroll in self-only coverage under a plan offered 
by F's employer for the period July 2016 through June 2017 at a cost to 
F of $5,000. In 2016, F's household income is $60,000.
    (ii) Under paragraph (e)(3)(ii)(C) of this section, F's annualized 
required contribution for the period January 2016 through June 2016 is 
$4,750 ($2,375 paid for premiums in 2016  x  12/6). Under paragraph 
(e)(1) of this section, F has affordable coverage for January 2016 
through June 2016 because F's annualized required contribution ($4,750) 
does not exceed 8% of F's household income ($4,800).
    (iii) Under paragraph (e)(3)(ii)(C) of this section, F's annualized 
required contribution for the period July 2016 to December 2016 is 
$5,000 ($2,500 paid for premiums in 2016  x  12/6). Under paragraph 
(e)(1) of this section, F lacks affordable coverage for July 2016 
through December 2016 because F's annualized required contribution 
($5,000) exceeds 8% of F's household income ($4,800).
    Example 4. Eligibility for coverage under an eligible employer-
sponsored plan and under government sponsored coverage. Taxpayer G is 
unmarried and has one child, H. In November 2015, H is eligible to 
enroll in family coverage under a plan offered by G's employer for 2016. 
H is also eligible to enroll in the CHIP program for 2016. Under 
paragraph (e)(3)(i) of this section, H is treated as eligible for 
coverage under an eligible employer-sponsored plan for each month in 
2016, notwithstanding that H is eligible to enroll in government 
sponsored coverage for the same period.

    (4) Individuals ineligible for coverage under eligible employer-
sponsored plans--(i) Eligibility for coverage other than an eligible 
employer-sponsored plan. An individual is treated as ineligible for 
coverage under an eligible employer-sponsored plan for a month that is 
not described in paragraph (e)(3)(i) of this section.
    (ii) Required contribution for individuals ineligible for coverage 
under eligible employer-sponsored plans--(A) In general. In the case of 
an individual who is ineligible for coverage under an eligible employer-
sponsored plan, the required contribution is the premium for the 
applicable plan, reduced by the maximum amount of any credit allowable 
under section 36B for the taxable year, determined as if the individual 
was covered for the entire taxable year by a qualified health plan 
offered through the Exchange serving the rating area where the 
individual resides.
    (B) Applicable plan--(1) In general. Except as provided in paragraph 
(e)(4)(ii)(B)(2) of this section, applicable plan means the single 
lowest cost bronze plan available in the individual market through the 
Exchange serving the rating area in which the individual resides 
(without regard to whether the individual purchased a qualified health 
plan through the Exchange) that would cover all individuals in the 
individual's nonexempt family. For purposes of this paragraph (e)(4), an 
individual's nonexempt family means the family (as defined in 
Sec. 1.5000A-1(d)(4)) that includes the individual, excluding any family 
members who are otherwise exempt

[[Page 56]]

under section 1.5000A-3 or are treated as eligible for coverage under an 
eligible employer-sponsored plan under paragraph (e)(3)(i) of this 
section. The premium for the applicable plan takes into account rating 
factors (for example, an individual's age or tobacco use) that an 
Exchange would use to determine the cost of coverage.
    (2) Lowest cost bronze plan does not cover all individuals included 
in the taxpayer's nonexempt family--(i) In general. If the Exchange 
serving the rating area where the individual resides does not offer a 
single bronze plan covering all individuals included in the individual's 
nonexempt family, the premium for the applicable plan is the sum of the 
premiums for the lowest cost bronze plans that are offered through the 
Exchanges serving the rating areas where one or more of the individuals 
reside that would cover in the aggregate all the individuals in the 
individual's nonexempt family. For instance, coverage offered through 
the Exchange in a rating area might not cover a family member living in 
different rating area or a single policy might not cover all the members 
in a taxpayer's household.
    (ii) Optional simplified method for applicable plan identification. 
[Reserved]
    (C) Wellness programs incentives. [Reserved]
    (D) Credit allowable under section 36B. For purposes of paragraph 
(e)(4)(ii)(A) of this section, maximum amount of any credit allowable 
under section 36B means the maximum amount of the credit that would be 
allowable to the individual, or to the taxpayer who can properly claim 
the individual as a dependent, under section 36B if all members of the 
individual's nonexempt family enrolled in a qualified health plan 
through the Exchange serving the rating area where the individual 
resides.
    (E) Required contribution for part-year period. For each individual, 
affordability under paragraph (e)(4) of this section is determined 
separately for each period described in paragraph (e)(4)(ii)(E) of this 
section that is less than a 12-month period. Coverage under a plan is 
affordable for a part-year period if the annualized required 
contribution for coverage under the plan for the part-year period does 
not exceed the required contribution percentage of the individual's 
household income for the taxable year. The annualized required 
contribution is the required contribution determined under paragraph 
(e)(4)(ii)(A) of this section for the part-year period times a fraction, 
the numerator of which is 12 and the denominator of which is the number 
of months in the part-year period during the individual's taxable year. 
Only full calendar months are included in the computation under this 
paragraph (e)(4)(ii)(D).
    (iii) Examples. The following examples illustrate the provisions of 
this paragraph (e)(4). Unless stated otherwise, in each example the 
taxpayer's taxable year is a calendar year, the rate of premium growth 
has not exceeded the rate of income growth since 2013, and the taxpayer 
is ineligible for any of the exemptions described in paragraphs (a) 
through (d) and (f) through (j) of this section for a month.

    Example 1. Unmarried individual with no dependents. (i) Taxpayer G 
is an unmarried individual with no dependents. G is ineligible to enroll 
in any minimum essential coverage other than coverage in the individual 
market for all months in 2016. The annual premium for the lowest cost 
bronze self-only plan in G's rating area (G's applicable plan) is 
$5,000. The adjusted annual premium for the second lowest cost silver 
self-only plan in G's rating area (G's applicable benchmark plan within 
the meaning of Sec. 1.36B-3(f)) is $5,500. In 2016 G's household income 
is $40,000, which is 358% of the Federal poverty line for G's family 
size for the taxable year.
    (ii) Under paragraph (e)(4)(ii)(C) of this section, the credit 
allowable under section 36B is determined pursuant to section 36B. With 
household income at 358% of the Federal poverty line, G's applicable 
percentage is 9.5. Because each month in 2016 is a coverage month 
(within the meaning of Sec. 1.36B-3(c)), G's maximum credit allowable 
under section 36B is the excess of G's premium for the applicable 
benchmark plan over the product of G's household income and G's 
applicable percentage ($1,700). Therefore, under paragraph (e)(4)(ii)(A) 
of this section, G's required contribution is $3,300. Under paragraph 
(e)(1) of this section, G lacks affordable coverage for 2016 because G's 
required contribution ($3,300) exceeds 8% of G's household income 
($3,200).
    Example 2. Family. (i) In 2016 Taxpayers M and N are married and 
file a joint return. M and N have two children, P and Q. M, N, P, and Q 
are ineligible to enroll in minimum essential coverage other than 
coverage in the

[[Page 57]]

individual market for a month in 2016. The annual premium for M, N, P, 
and Q's applicable plan is $20,000. The adjusted annual premium for M, 
N, P, and Q's applicable benchmark plan (within the meaning of 
Sec. 1.36B-3(f)) is $25,000. M and N's household income is $80,000, 
which is 347% of the Federal poverty line for a family size of 4 for the 
taxable year.
    (ii) Under paragraph (e)(4)(ii)(C) of this section, the credit 
allowable under section 36B is determined pursuant to section 36B. With 
household income at 347% of the Federal poverty line, the applicable 
percentage is 9.5. Because each month in 2016 is a coverage month 
(within the meaning of Sec. 1.36B-3(c)), the maximum credit allowable 
under section 36B is the excess of the premium for the applicable 
benchmark plan over the product of the household income and the 
applicable percentage ($17,400). Therefore, under paragraph 
(e)(4)(ii)(A) of this section, the required contribution for M, N, P, 
and Q is $2,600. Under paragraph (e)(1) of this section, M, N, P, and Q 
have affordable coverage for 2016 because their required contribution 
($2,600) does not exceed 8% of their household income ($6,400).
    Example 3. Family with some members eligible for government-
sponsored coverage. (i) In 2016 Taxpayers U and V are married and file a 
joint return. U and V have two children, W and X. U and V are ineligible 
to enroll in minimum essential coverage other than coverage in the 
individual market for all months in 2016; however, W and X are eligible 
for coverage under CHIP for 2016. The annual premium for U, V, W, and 
X's applicable plan is $20,000. The adjusted annual premium for the 
second lowest cost silver plan that would cover U and V (the applicable 
benchmark plan within the meaning of Sec. 1.36B-3(f)) is $12,500. U and 
V's household income is $50,000, which is 217% of the Federal poverty 
line for a family size of 4 for the taxable year. W and X do not enroll 
in CHIP coverage.
    (ii) Under paragraph (e)(4)(ii)(C) of this section, the credit 
allowable under section 36B is determined pursuant to section 36B. With 
household income at 217% of the Federal poverty line, the applicable 
percentage is 6.89. Each month in 2016 is a coverage month (within the 
meaning of Sec. 1.36B-3(c)) for U and V, but no months in 2016 are 
coverage months for W and X because they are eligible for CHIP coverage. 
The maximum credit allowable under section 36B is the excess of the 
premium for the applicable benchmark plan over the product of the 
household income and the applicable percentage ($9,055). Therefore, 
under paragraph (e)(4)(ii)(A) of this section, the required contribution 
is $10,945. Under paragraph (e)(1) of this section, U, V, W, and X lack 
affordable coverage for 2016 because their required contribution 
($10,945) exceeds 8% of their household income ($4,000).
    Example 4. Family with some members enrolled in government-sponsored 
minimum essential coverage. The facts are the same as Example 3, except 
W and X enroll in CHIP coverage on January 1, 2016. Under paragraph 
(e)(4)(ii)(B), U, V, W, and X are members of U and V's nonexempt family 
for 2016. Therefore, the annual premium for the applicable plan is the 
same as in Example 3 ($20,000). The maximum credit allowable under 
section 36B is also the same as in Example 3 ($9,055). Under paragraph 
(e)(4)(ii)(A) of this section, the required contribution is $10,945. 
Under paragraph (e)(1) of this section, U and V lack affordable coverage 
for 2016 because their required contribution ($10,945) exceeds 8% of 
their household income ($4,000).
    (f) Household income below filing threshold--(1) In general. An 
individual is an exempt individual for any taxable year for which the 
individual's household income is less than the applicable filing 
threshold.
    (2) Applicable filing threshold--(i) In general. For purposes of 
this section, applicable filing threshold means the amount of gross 
income that would trigger an individual's requirement to file a Federal 
income tax return under section 6012(a)(1).
    (ii) Certain dependents. The applicable filing threshold for an 
individual who is properly claimed as a dependent by another taxpayer is 
equal to the other taxpayer's applicable filing threshold.
    (3) Manner of claiming the exemption. A taxpayer is not required to 
file a Federal income tax return solely to claim the exemption described 
in this paragraph (f). If a taxpayer has a household income below the 
applicable filing threshold and nevertheless files a Federal income tax 
return, the taxpayer may claim the exemption described in this paragraph 
(f) on the return.
    (g) Members of Indian tribes. An individual is an exempt individual 
for a month that includes a day on which the individual is a member of 
an Indian tribe. For purposes of this section, Indian tribe means a 
group or community described in section 45A(c)(6).
    (h) Individuals with hardship exemption certification--(1) In 
general. Except as provided in paragraph (h)(3) of this section, an 
individual is an exempt individual for a month that includes a day on 
which the individual has in effect a hardship exemption certification

[[Page 58]]

described in paragraph (h)(2) of this section.
    (2) Hardship exemption certification. A hardship exemption 
certification is issued by an Exchange under section 1311(d)(4)(H) of 
the Affordable Care Act (42 U.S.C. 18031(d)(4)(H)), 45 CFR 
155.605(g)(1), (g)(2), (g)(4) and (g)(6), 45 CFR 155.610(i), and 45 CFR 
155.615(f), and certifies that an individual has suffered a hardship (as 
that term is defined in 45 CFR 155.605(g)) affecting the capability to 
obtain minimum essential coverage.
    (3) Hardship exemption without hardship exemption certification. An 
individual may claim an exemption without obtaining a hardship exemption 
certification described in paragraph (h)(2) of this section for any 
month that includes a day on which the individual meets the requirements 
of any hardship for which:
    (i) The Secretary of HHS issues guidance of general applicability 
describing the hardship and indicating that an exemption for such 
hardship can be claimed on a Federal income tax return pursuant to 
guidance published by the Secretary; and
    (ii) The Secretary issues published guidance of general 
applicability, see Sec. 601.601(d)(2) of this chapter, allowing an 
individual to claim the hardship exemption on a return without obtaining 
a hardship exemption from an Exchange.
    (i) [Reserved]
    (j) Individuals with certain short coverage gaps--(1) In general. An 
individual is an exempt individual for a month the last day of which is 
included in a short coverage gap.
    (2) Short coverage gap--(i) In general. Short coverage gap means a 
continuous period of less than three months in which the individual is 
not covered under minimum essential coverage. If the individual does not 
have minimum essential coverage for a continuous period of three or more 
months, none of the months included in the continuous period are treated 
as included in a short coverage gap.
    (ii) Coordination with other exemptions. For purposes of this 
paragraph (j), an individual is treated as having minimum essential 
coverage for a month in which an individual is exempt under any of 
paragraphs (a) through (h) of this section.
    (iii) More than one short coverage gap during calendar year. If a 
calendar year includes more than one short coverage gap, the exemption 
provided by this paragraph (j) only applies to the earliest short 
coverage gap.
    (3) Continuous period--(i) In general. Except as provided in 
paragraph (j)(3)(ii) of this section, the number of months included in a 
continuous period is determined without regard to the calendar years in 
which months included in that period occur. For purposes of paragraph 
(j) of this section, a continuous period begins no earlier than January 
1, 2014.
    (ii) Continuous period straddling more than one taxable year. If an 
individual does not have minimum essential coverage for a continuous 
period that begins in one taxable year and ends in the next, for 
purposes of applying this paragraph (j) to the first taxable year, the 
months in the second taxable year included in the continuous period are 
disregarded. For purposes of applying this paragraph (j) to the second 
taxable year, the months in the first taxable year included in the 
continuous period are taken into account.
    (4) Examples. The following examples illustrate the provisions of 
this paragraph (j). Unless stated otherwise, in each example the 
taxpayer's taxable year is a calendar year and the taxpayer is 
ineligible for any of the exemptions described in paragraphs (a) through 
(h) of this section for a month.

    Example 1. Short coverage gap. Taxpayer D has minimum essential 
coverage in 2016 from January 1 through March 2. After March 2, D does 
not have minimum essential coverage until D enrolls in an eligible 
employer-sponsored plan effective June 15. Under Sec. 1.5000A-1(b), for 
purposes of section 5000A, D has minimum essential coverage for January, 
February, March, and June through December. D's continuous period 
without coverage is 2 months, April and May. April and May constitute a 
short coverage gap under paragraph (j)(2)(i) of this section.
    Example 2. Continuous period of 3 months or more. The facts are the 
same as in Example 1, except D's coverage is not effective until July 1. 
D's continuous period without coverage is 3 months, April, May, and 
June. Under paragraph (j)(2)(i) of this section, April, May, and June 
are not included in a short coverage gap.

[[Page 59]]

    Example 3. Short coverage gap following exempt period. Taxpayer E is 
incarcerated from January 1 through June 2. E enrolls in an eligible 
employer-sponsored plan effective September 15. Under paragraph (d) of 
this section, E is exempt for the period January through June. Under 
paragraph (j)(2)(ii) of this section, E is treated as having minimum 
essential coverage for this period, and E's continuous period without 
minimum essential coverage is 2 months, July and August. July and August 
constitute a short coverage gap under paragraph (j)(2)(i) of this 
section.
    Example 4. Continuous period covering more than one taxable year. 
Taxpayer F, an unmarried individual with no dependents, has minimum 
essential coverage for the period January 1 through October 15, 2016. F 
is without coverage until February 15, 2017. F files his Federal income 
tax return for 2016 on March 10, 2017. Under paragraph (j)(3)(ii) of 
this section, November and December of 2016 are treated as a short 
coverage gap. However, November and December of 2016 are included in the 
continuous period that includes January 2017. The continuous period for 
2017 is not less than 3 months and, therefore, January is not a part of 
a short coverage gap.
    Example 5. Enrollment following loss of coverage. The facts are the 
same as in Example 4 except F loses coverage on June 15, 2017. F enrolls 
in minimum essential coverage effective September 15, 2017. The 
continuous period without minimum essential coverage in July and August 
of 2017 is two months and, therefore, is a short coverage gap. Because 
January 2017 was not part of a short coverage gap, the earliest short 
coverage gap occurring in 2017 is the gap that includes July and August.
    Example 6. Multiple coverage gaps. (i) The facts are the same as in 
Example 5 except F has minimum essential coverage for November 2016. 
Under paragraph (j)(3)(ii) of this section, December 2016 is treated as 
a short coverage gap.
    (ii) December 2016 is included in the continuous period that 
includes January 2017. This continuous period is two months and, 
therefore, January 2017 is the earliest month in 2017 that is included 
in a short coverage gap. Under paragraph (j)(2)(iii) of this section, 
the exemption under this paragraph (j) applies only to January 2017. 
Thus, the continuous period without minimum essential coverage in July 
and August of 2017 is not a short coverage gap.

[T.D. 9632, 78 FR 53655, Aug. 30, 2013, as amended at 78 FR 78255, Dec. 
26, 2013; T.D. 9705, 79 FR 70469, Nov. 26, 2014; T.D. 9804, 81 FR 91768, 
Dec. 19, 2016]



Sec. 1.5000A-4  Computation of shared responsibility payment.

    (a) In general. For each taxable year, the shared responsibility 
payment imposed on a taxpayer in accordance with Sec. 1.5000A-1(c) is 
the lesser of--
    (1) The sum of the monthly penalty amounts; or
    (2) The sum of the monthly national average bronze plan premiums for 
the shared responsibility family.
    (b) Monthly penalty amount--(1) In general. Monthly penalty amount 
means, for a month that a nonexempt individual is not covered under 
minimum essential coverage, 1/12 multiplied by the greater of--
    (i) The flat dollar amount; or
    (ii) The excess income amount.
    (2) Flat dollar amount--(i) In general. Flat dollar amount means the 
lesser of--
    (A) The sum of the applicable dollar amounts for all individuals 
included in the taxpayer's shared responsibility family; or
    (B) 300 percent of the applicable dollar amount (determined without 
regard to paragraph (b)(2)(iii) of this section) for the calendar year 
with or within which the taxable year ends.
    (ii) Applicable dollar amount. Except as provided in paragraphs 
(b)(2)(iii) and (b)(2)(iv) of this section, the applicable dollar amount 
is--
    (A) $95 in 2014;
    (B) $325 in 2015; or
    (C) $695 in 2016.
    (iii) Special applicable dollar amount for individuals under age 18. 
If an individual has not attained the age of 18 before the first day of 
a month, the applicable dollar amount for the individual is equal to 
one-half of the applicable dollar amount (as expressed in paragraph 
(b)(2)(ii) of this section) for the calendar year in which the month 
occurs. For purposes of this paragraph (b)(2)(iii), an individual 
attains the age of 18 on the anniversary of the date when the individual 
was born. For example, an individual born on March 1, 1999, attains the 
age of 18 on March 1, 2017.
    (iv) Indexing of applicable dollar amount. In any calendar year 
after 2016, the applicable dollar amount is $695 as increased by the 
product of $695 and the cost-of-living adjustment determined under 
section 1(f)(3) for the calendar year. For purposes of this paragraph 
(b)(2)(iv), the cost-of-living adjustment is determined by substituting 
``calendar year 2015'' for ``calendar year

[[Page 60]]

1992'' in section 1(f)(3)(B). If any increase under this paragraph 
(b)(2)(iv) is not a multiple of $50, the increase is rounded down to the 
next lowest multiple of $50.
    (3) Excess income amount--(i) In general. Excess income amount means 
the product of--
    (A) The excess of the taxpayer's household income over the 
taxpayer's applicable filing threshold (as defined in Sec. 1.5000A-
3(f)(2)); and
    (B) The income percentage.
    (ii) Income percentage. For purposes of this section, income 
percentage means--
    (A) 1.0 percent for taxable years beginning in 2013;
    (B) 1.0 percent for taxable years beginning in 2014;
    (C) 2.0 percent for taxable years beginning in 2015; or
    (D) 2.5 percent for taxable years beginning after 2015.
    (c) Monthly national average bronze plan premium. Monthly national 
average bronze plan premium means, for a month for which a shared 
responsibility payment is imposed, \1/12\ of the annual national average 
premium for qualified health plans that have a bronze level of coverage, 
would provide coverage for the taxpayer's shared responsibility family 
members who do not have minimum essential coverage for the month, and 
are offered through Exchanges for plan years beginning in the calendar 
year with or within which the taxable year ends.
    (d) Examples. The following examples illustrate the provisions of 
this section. In each example the taxpayer's taxable year is a calendar 
year and all members of the taxpayer's shared responsibility family are 
ineligible for any of the exemptions described in Sec. 1.5000A-3 for a 
month.

    Example 1. Unmarried taxpayer without minimum essential coverage. 
(i) In 2016, Taxpayer G is an unmarried individual with no dependents. G 
does not have minimum essential coverage for any month in 2016. G's 
household income is $120,000. G's applicable filing threshold is 
$12,000. The annual national average bronze plan premium for G is 
$5,000.
    (ii) For each month in 2016, under paragraph (b)(2)(ii) of this 
section, G's applicable dollar amount is $695. Under paragraph (b)(2)(i) 
of this section, G's flat dollar amount is $695 (the lesser of $695 and 
$2,085 ($695  x  3)). Under paragraph (b)(3) of this section, G's excess 
income amount is $2,700 (($120,000 - $12,000)  x  0.025). Therefore, 
under paragraph (b)(1) of this section, the monthly penalty amount is 
$225 (the greater of $58 ($695/12) or $225 ($2,700/12)).
    (iii) The sum of the monthly penalty amounts is $2,700 ($225  x  
12). The sum of the monthly national average bronze plan premiums is 
$5,000 ($5,000/12  x  12). Therefore, under paragraph (a) of this 
section, the shared responsibility payment imposed on G for 2016 is 
$2,700 (the lesser of $2,700 or $5,000).
    Example 2. Part-year coverage. The facts are the same as in Example 
1, except G has minimum essential coverage for January through June. The 
sum of the monthly penalty amounts is $1,350 ($225  x  6). The sum of 
the monthly national average bronze plan premiums is $2,500 ($5,000/12 
x  6). Therefore, under paragraph (a) of this section, the shared 
responsibility payment imposed on G for 2016 is $1,350 (the lesser of 
$1,350 or $2,500).
    Example 3. Family without minimum essential coverage. (i) In 2016, 
Taxpayers H and J are married and file a joint return. H and J have 
three children: K, age 21, L, age 15, and M, age 10. No member of the 
family has minimum essential coverage for any month in 2016. H and J's 
household income is $250,000. H and J's applicable filing threshold is 
$24,000. The annual national average bronze plan premium for a family of 
5 (3 adults, 2 children) is $15,000.
    (ii) For each month in 2016, under paragraphs (b)(2)(ii) and 
(b)(2)(iii) of this section, the applicable dollar amount is $2,780 
(($695  x  3 adults) + (($695/2)  x  2 children)). Under paragraph 
(b)(2)(i) of this section, the flat dollar amount is $2,085 (the lesser 
of $2,780 and $2,085 ($695  x  3)). Under paragraph (b)(3) of this 
section, the excess income amount is $5,650 (($250,000-$24,000)  x  
0.025). Therefore, under paragraph (b)(1) of this section, the monthly 
penalty amount is $470.83 (the greater of $173.75 ($2,085/12) or $470.83 
($5,650/12)).
    (iii) The sum of the monthly penalty amounts is $5,650 ($470.83  x  
12). The sum of the monthly national average bronze plan premiums is 
$15,000 ($15,000/12  x  12). Therefore, under paragraph (a) of this 
section, the shared responsibility payment imposed on H and J for 2016 
is $5,650 (the lesser of $5,650 or $15,000).
    Example 4. Change in shared responsibility family during the year. 
(i) The facts are the same as in Example 3, except J has minimum 
essential coverage for January through June. The annual national average 
bronze plan premium for a family of 4 (2 adults, 2 children) is $10,000.
    (ii) For the period January through June 2016, under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section the applicable dollar amount

[[Page 61]]

is $2,085 (($695  x  2 adults) + (($695/2)  x  2 children)). Under 
paragraph (b)(2)(i) of this section, the flat dollar amount is $2,085 
(the lesser of $2,085 or $2,085 ($695  x  3)).
    (iii) For the period July through December 2016, the applicable 
dollar amount is $2,780 (($695  x  3 adults) + (($695/2)  x  2 
children)). Under paragraph (b)(2) of this section, the flat dollar 
amount is $2,085 (the lesser of $2,780 or $2,085 ($695  x  3)). Under 
paragraph (b)(3) of this section, the excess income amount is $5,650 
(($250,000-$24,000)  x  0.025). Therefore, under paragraph (b)(1) of 
this section, for January through June the monthly penalty amount is 
$470.83 (the greater of $173.75 ($2,085/12) or $470.83 ($5,650/12)). The 
monthly penalty amount for July through December is $470.83 (the greater 
of $173.75 ($2,085/12) or $470.83 ($5,650/12)).
    (iv) The sum of the monthly penalty amounts is $5,650 ($470.83  x  
12). The sum of the monthly national average bronze plan premiums is 
$12,500 ((($10,000/12)  x  6) + (($15,000/12)  x  6))). Therefore, under 
paragraph (a) of this section, the shared responsibility payment imposed 
on H and J for 2016 is $5,650 (the lesser of $5,650 or $12,500).
    Example 5. Eighteenth birthday during the year. (i) In 2016 
Taxpayers S and T are married and file a joint return. S and T have one 
child, U, who turns 18 years old on June 28. S, T, and U do not enroll 
in, and as a result are not eligible to receive benefits under, 
affordable employer-sponsored coverage offered by T's employer for 2016. 
S and T's household income is $60,000. S and T's applicable filing 
threshold is $24,000. The annual national average bronze plan premium 
for a family of 3 (2 adults, 1 child) is $11,000.
    (ii) For the period January through June 2016, under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section, the applicable dollar amount 
is $1,737.50 (($695  x  2 adults) + ($695/2)  x  1 child)). Under 
paragraph (b)(2) of this section, the flat dollar amount is $1,737.50 
(the lesser of $1,737.50 or $2,085 ($695  x  3)).
    (iii) For the period July through December 2016, the applicable 
dollar amount is $2,085 ($695  x  3). Under paragraph (b)(2)(i) of this 
section, the flat dollar amount is $2,085 (the lesser of $2,085 or 
$2,085 ($695  x  3)).. Under paragraph (b)(3) of this section, the 
excess income amount is $900 (($60,000-$24,000)  x  0.025). Therefore, 
under paragraph (b)(1) of this section, for January through June the 
monthly penalty amount is $144.79 (the greater of $144.79 ($1,737.50/12) 
or $75 ($900/12)). The monthly penalty amount for July through December 
is $173.75 (the greater of $173.75 ($2,085/12) or $75 ($900/12)).
    (iv) The sum of the monthly penalty amounts is $1,911.24 (($144.79 
x  6) + ($173.75  x  6)). The sum of the monthly national average bronze 
plan premiums is $11,000 ($11,000/12  x  12). Therefore, under paragraph 
(a) of this section, the shared responsibility payment imposed on S and 
T for 2016 is $1,911.24 (the lesser of $1,911.24 or $11,000).

[T.D. 9632, 78 FR 53655, Aug. 30, 2013, as amended at 78 FR 78255, Dec. 
26, 2013; T.D. 9705, 79 FR 70469, Nov. 26, 2014]



Sec. 1.5000A-5  Administration and procedure.

    (a) In general. A taxpayer's liability for the shared responsibility 
payment for a month must be reported on the taxpayer's Federal income 
tax return for the taxable year that includes the month. The period of 
limitations for assessing the shared responsibility payment is the same 
as that prescribed by section 6501 for the taxable year to which the 
Federal income tax return on which the shared responsibility payment is 
to be reported relates. The shared responsibility payment is payable 
upon notice and demand by the Secretary, and except as provided in 
paragraph (b) of this section, is assessed and collected in the same 
manner as an assessable penalty under subchapter B of chapter 68 of the 
Internal Revenue Code. The shared responsibility payment is not subject 
to deficiency procedures of subchapter B of chapter 63 of the Internal 
Revenue Code. Interest on this payment accrues in accordance with the 
rules in section 6601.
    (b) Special rules. Notwithstanding any other provision of law--
    (1) Waiver of criminal penalties. In the case of a failure by a 
taxpayer to timely pay the shared responsibility payment, the taxpayer 
is not subject to criminal prosecution or penalty for the failure.
    (2) Limitations on liens and levies. If a taxpayer fails to pay the 
shared responsibility payment imposed by this section and Secs. 1.5000A-
1 through 1.5000A-4, the Secretary will not file notice of lien on any 
property of the taxpayer, or levy on any property of the taxpayer for 
the failure.
    (3) Authority to offset against overpayment. Nothing in this section 
prohibits the Secretary from offsetting any liability for the shared 
responsibility payment against any overpayment due the taxpayer, in 
accordance with section 6402(a) and its corresponding regulations.

[[Page 62]]

    (c) Effective/applicability date. This section and Secs. 1.5000A-1 
through 1.5000A-4 apply for months beginning after December 31, 2013.

[T.D. 9632, 78 FR 53655, Aug. 30, 2013]

                   Tax on Certain Foreign Procurement



Sec. 1.5000C-0  Outline of regulation provisions for section 5000C.

    This section lists the captions contained in Secs. 1.5000C-1 through 
1.5000C-7.

     Sec. 1.5000C-1  Tax on specified Federal procurement payments.

    (a) Overview.
    (b) Imposition of tax.
    (c) Definitions.
    (d) Exemptions.
    (1) Simplified acquisitions.
    (2) Emergency acquisitions.
    (3) Certain personal service contracts.
    (4) Certain foreign humanitarian assistance contracts.
    (5) Certain international agreements.
    (6) Goods manufactured or produced or services provided in the 
United States.
    (7) Goods manufactured or produced or services provided in a country 
that is a party to an international procurement agreement.
    (e) Country in which goods are manufactured or produced or services 
provided.
    (1) Goods manufactured or produced.
    (2) Provision of services.
    (3) Allocation of total contract price to determine the nonexempt 
amount.
    (4) Reduction or elimination of withholding by an acquiring agency.

 Sec. 1.5000C-2  Withholding on specified Federal procurement payments.

    (a) In general.
    (b) Steps in determining the obligation to withhold under section 
5000C.
    (1) Determine whether the payment is pursuant to a contract for 
goods or services.
    (2) Determine whether the payment is made pursuant to a contract 
with a U.S. person.
    (3) Determine whether the payment is for purchases under the 
simplified acquisition procedures.
    (4) Determine whether the payment is for emergency acquisitions.
    (5) Determine whether the payment is for personal services under the 
simplified acquisition threshold.
    (6) Determine whether the payment is pursuant to a foreign 
humanitarian assistance contract.
    (7) Determine whether the foreign contracting party is entitled to 
relief pursuant to an international agreement.
    (8) Determine whether the contract is for goods manufactured or 
produced or services provided in the United States or in a foreign 
country that is a party to an international procurement agreement.
    (9) Compute amounts to withhold.
    (10) Deposit and report amounts withheld.
    (c) Determining whether the contracting party is a U.S. person.
    (1) In general.
    (2) Determination based on Taxpayer Identification Number (TIN).
    (3) Determination based on the Form W-9.
    (4) Contracting party treated as a foreign contracting party.
    (d) Withholding when a foreign contracting party submits a Section 
5000C Certificate.
    (1) In general.
    (2) Exemption for a foreign contracting party entitled to the 
benefit of relief pursuant to certain international agreements.
    (3) Exemption when goods are manufactured or produced or services 
provided in the United States, or in a foreign country that is a party 
to an international procurement agreement.
    (4) Information required for Section 5000C Certificate.
    (5) Validity period of Section 5000C Certificate.
    (6) Change in circumstances.
    (7) Form W-14.
    (8) Time for submitting Section 5000C Certificate.
    (e) Offset for underwithholding or overwithholding.
    (1) In general.
    (2) Underwithholding.
    (3) Overwithholding.

  Sec. 1.5000C-3  Payment and returns of tax withheld by the acquiring 
                                 agency.

    (a) In general.
    (b) Deposit rules.
    (1) Acquiring agency with a chapter 3 deposit requirement treats 
amounts withheld as under chapter 3.
    (2) Acquiring agency with no chapter 3 filing obligation deposits 
withheld amounts monthly.
    (c) Return requirements.
    (1) In general.
    (2) Classified or confidential contracts.
    (d) Special arrangement for certain contracts.

Sec. 1.5000C-4  Requirement for the foreign contracting party to file a 
 return and pay tax, and procedures for the contracting party to seek a 
                                 refund.

    (a) In general.
    (b) Tax obligation of foreign contracting party independent of 
withholding.
    (c) Return of tax by the foreign contracting party.
    (d) Time and manner of paying tax.
    (e) Refund requests when amount withheld exceeds tax liability.

[[Page 63]]

                    Sec. 1.5000C-5  Anti-abuse rule.

                        Sec. 1.5000C-6  Examples.

              Sec. 1.5000C-7  Effective/applicability date.

[T.D. 9782, 81 FR 55137, Aug. 18, 2016]



Sec. 1.5000C-1  Tax on specified Federal procurement payments.

    (a) Overview. This section provides definitions and general rules 
relating to the imposition of, and exemption from, the tax on specified 
Federal procurement payments under section 5000C. Section 1.5000C-2 
provides rules concerning withholding under section 5000C(d)(1), 
including the steps that must be taken to determine the obligation to 
withhold and whether an exemption from withholding applies. Section 
1.5000C-3 provides the time and manner for depositing the amounts 
withheld under section 5000C and the related reporting requirements. 
Section 1.5000C-4 contains the rules that apply to a foreign contracting 
party that must pay and report the tax under section 5000C when the tax 
obligation under section 5000C is not fully satisfied by withholding, as 
well as procedures by which a contracting party may seek a refund when 
the amount withheld exceeds its tax liability under section 5000C. 
Section 1.5000C-5 contains an anti-abuse rule. Section 1.5000C-6 
contains examples illustrating the principles of Secs. 1.5000C-1 through 
1.5000C-4. Finally, Sec. 1.5000C-7 contains the effective/applicability 
date for Secs. 1.5000C-1 through 1.5000C-7.
    (b) Imposition of tax. Except as otherwise provided, section 5000C 
imposes on any foreign contracting party a tax equal to 2 percent of the 
amount of a specified Federal procurement payment. In general, the tax 
imposed under section 5000C applies to specified Federal procurement 
payments received pursuant to contracts entered into on and after 
January 2, 2011. Specified Federal procurement payments received by a 
nominee or agent on behalf of a contracting party are considered to be 
received by that contracting party. The tax imposed under section 5000C 
is to be applied in a manner consistent with U.S. obligations under 
international agreements. Payments for the purchase or lease of land or 
an interest in land are not subject to the tax imposed under section 
5000C.
    (c) Definitions. Solely for purposes of section 5000C and 
Secs. 1.5000C-1 through 1.5000C-7, the following definitions apply:
    (1) The term acquiring agency means the U.S. government department, 
agency, independent establishment, or corporation described in paragraph 
(c)(7) of this section that is a party to the contract. To the extent 
that a U.S. government department or agency, other than the acquiring 
agency, is making the payments pursuant to the contract, that department 
or agency is also considered to be the acquiring agency.
    (2) The term contract has the same meaning as provided in 48 CFR 
2.101, and thus does not include a grant agreement or a cooperative 
agreement within the meaning of 31 U.S.C. 6304 and 6305, respectively. A 
contract may include an agreement that is not executed under the Federal 
Acquisition Regulations (FAR), 48 CFR Chapter 1.
    (3) The term contract ratio refers to the nonexempt amount over the 
total contract price.
    (4) The term contracting party means any person that is a party to a 
contract with the U.S. government that is entered into on or after 
January 2, 2011. See Sec. 1.5000C-1(b) for situations involving a 
nominee or agent.
    (5) The term foreign contracting party means a contracting party 
that is a foreign person.
    (6) The term foreign person means any person other than a United 
States person (as defined in section 7701(a)(30)).
    (7) The term Government of the United States or U.S. government 
means the executive departments specified in 5 U.S.C. 101, the military 
departments specified in 5 U.S.C. 102, the independent establishments 
specified in 5 U.S.C. 104(1), and wholly owned government corporations 
specified in 31 U.S.C. 9101(3). Unless otherwise specified in 5 U.S.C. 
101, 102, or 104(1), or 31 U.S.C. 9101(3), the term Government of the 
United States or U.S. government does not include any quasi-governmental 
entities or instrumentalities of the U.S. government.

[[Page 64]]

    (8) The term international procurement agreement means the World 
Trade Organization Government Procurement Agreement within the meaning 
of 48 CFR 25.400(a)(1) and any free trade agreement to which the United 
States is a party that includes government procurement obligations that 
provide appropriate competitive government procurement opportunities to 
U.S. goods, services, and suppliers. A party to an international 
procurement agreement is a signatory to the agreement and does not 
include a country that is merely an observer with respect to the 
agreement.
    (9) The term nonexempt amount means the portion of the contract 
price allocated to nonexempt goods and nonexempt services.
    (10) The term nonexempt goods means goods manufactured or produced 
in a foreign country that is not a party to an international procurement 
agreement with the United States.
    (11) The term nonexempt services means services provided in a 
foreign country that is not a party to an international procurement 
agreement with the United States.
    (12) The term outlying areas has the same meaning as set forth in 48 
CFR 2.101(b), which includes Puerto Rico, the Northern Mariana Islands, 
American Samoa, Guam, the Virgin Islands, Baker Island, Howland Island, 
Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa 
Island, Palmyra Atoll, and Wake Atoll.
    (13) The term qualified income tax treaty means a U.S. income tax 
treaty in force that contains a nondiscrimination provision that applies 
to the tax imposed under section 5000C and prohibits taxation that is 
more burdensome on a foreign national than a U.S. national (or in the 
case of certain income tax treaties, taxation that is more burdensome on 
a foreign citizen than a U.S. citizen), regardless of its residence.
    (14) The term Section 5000C Certificate means a written statement 
that includes the information described in Sec. 1.5000C-2(d) that the 
foreign contracting party submits to an acquiring agency for the 
purposes of demonstrating that the foreign contracting party is eligible 
for certain exemptions from withholding (in whole or in part) under 
section 5000C with respect to a contract. The term may also include any 
form that the Internal Revenue Service may prescribe as a substitute for 
the Section 5000C Certificate, such as Form W-14, ``Certificate of 
Foreign Contracting Party Receiving Federal Procurement Payments.''
    (15) The term specified Federal procurement payment means any 
payment made pursuant to a contract with a foreign contracting party 
that is for goods manufactured or produced or services provided in a 
foreign country that is not a party to an international procurement 
agreement with the United States. For purposes of the prior sentence, a 
foreign country does not include an outlying area.
    (16) The term Taxpayer Identification Number or TIN means the 
identifying number assigned to a person under section 6109, as defined 
in section 7701(a)(41).
    (17) The term total contract price means the total cost to the U.S. 
Government of the goods and services procured under a contract and paid 
to the contracting party.
    (d) Exemptions. The tax imposed under paragraph (b) of this section 
does not apply to the payments made in the following situations. For the 
exemptions in paragraphs (d)(5), (6) and (7) of this section, see 
Sec. 1.5000C-2(d) for the procedures to eliminate withholding by an 
acquiring agency.
    (1) Simplified acquisitions. Payments for purchases under the 
simplified acquisition procedures that do not exceed the simplified 
acquisition threshold as described in 48 CFR 2.101.
    (2) Emergency acquisitions. Payments made pursuant to a contract if 
the contract is--
    (i) Awarded under the ``unusual and compelling urgency'' authority 
of 48 CFR 6.302-2, or
    (ii) Entered into under the emergency acquisition flexibilities as 
defined in 48 CFR part 18.
    (3) Certain personal service contracts. Payments for services 
provided by, and under contracts with, a single individual in which the 
payments do not (and will not) exceed on an annual calendar year basis 
the simplified acquisition threshold as described in 48 CFR

[[Page 65]]

2.101 for all years of the contract. Payments that satisfy this 
exemption remain exempt if the contract is later renegotiated so that 
future payments under the contract do not meet this exemption.
    (4) Certain foreign humanitarian assistance contracts. Payments made 
by the U.S. government pursuant to a contract with a foreign contracting 
party to obtain goods or services described in or authorized under 7 
U.S.C. 1691, et seq., 22 U.S.C. 2151, et seq., 22 U.S.C. 2601 et seq., 
22 U.S.C. 5801 et seq., 22 U.S.C. 5401 et seq., 10 U.S.C. 402, 10 U.S.C. 
404, 10 U.S.C. 407, 10 U.S.C. 2557, and 10 U.S.C. 2561, if the acquiring 
agency determines that the payment is for the purpose of providing 
foreign humanitarian assistance.
    (5) Certain international agreements. Payments made by the U.S. 
government pursuant to a contract with a foreign contracting party when 
the payments are entitled to relief from the tax imposed under section 
5000C pursuant to an international agreement with the United States, 
including relief pursuant to a nondiscrimination provision of a 
qualified income tax treaty, because the foreign contracting party is 
entitled to the benefit of that provision.
    (6) Goods manufactured or produced or services provided in the 
United States. A payment made pursuant to a contract to the extent that 
the payment is for goods manufactured or produced or services provided 
in the United States.
    (7) Goods manufactured or produced or services provided in a country 
that is a party to an international procurement agreement. A payment 
made pursuant to a contract to the extent the payment is for goods 
manufactured or produced or services provided in a country that is a 
party to an international procurement agreement, as defined in paragraph 
(c)(8) of this section.
    (e) Country in which goods are manufactured or produced or services 
provided--
    (1) Goods manufactured or produced. Solely for purposes of section 
5000C, goods are manufactured or produced in the country (or 
countries)--
    (i) Where property has been substantially transformed into the goods 
that are procured pursuant to a contract; or
    (ii) Where there has been assembly or conversion of component parts 
(involving activities that are substantial in nature and generally 
considered to constitute the manufacture or production of property) into 
the final product that constitutes the goods procured pursuant to a 
contract.
    (2) Provision of services. Solely for purposes of section 5000C, 
services are considered to be provided in the country where the 
individuals performing the services are physically located when they 
perform their duties pursuant to the contract.
    (3) Allocation of total contract price to determine the nonexempt 
amount. If, pursuant to a contract, goods are manufactured or produced, 
or services are provided, in multiple countries and only a portion of 
the goods manufactured or produced, or the services provided, pursuant 
to the contract are nonexempt goods or nonexempt services, a foreign 
contracting party may use a reasonable allocation method to determine 
the nonexempt amount. A reasonable allocation method would include 
taking into account the proportionate costs (including the cost of labor 
and raw materials) incurred to manufacture or produce the goods in each 
country, or taking into account the proportionate costs incurred to 
provide the services in each country.
    (4) Reduction or elimination of withholding by an acquiring agency. 
For procedures to reduce or eliminate withholding by an acquiring agency 
based on where goods are manufactured or produced or where services are 
provided, including as a result of an allocation under this paragraph 
(e), see Sec. 1.5000C-2(d).

[T.D. 9782, 81 FR 55138, Aug. 18, 2016]



Sec. 1.5000C-2  Withholding on specified Federal procurement payments.

    (a) In general. Except as otherwise provided in this section, every 
acquiring agency making a specified Federal procurement payment on which 
tax is imposed under section 5000C and Secs. 1.5000C-1 through 1.5000C-7 
must deduct and withhold an amount equal to 2 percent of the payment. 
For rules relating to the liability of a foreign contracting party with 
respect to specified Federal procurement payments not

[[Page 66]]

fully withheld upon at source, see Sec. 1.5000C-4. An acquiring agency 
may rely upon any information furnished by a contracting party under 
this section unless the acquiring agency has reason to know that the 
information is incorrect or unreliable. An acquiring agency has reason 
to know that the information is incorrect or unreliable if it has 
knowledge of relevant facts or statements contained in the submitted 
information such that a reasonably prudent person in the position of the 
acquiring agency would know that the information provided is incorrect 
or unreliable.
    (b) Steps in determining the obligation to withhold under section 
5000C. An acquiring agency generally determines its obligation to 
withhold under section 5000C according to the steps described in this 
paragraph (b). See, however, paragraph (e) of this section for 
situations in which withholding may be increased in the case of 
underwithholding, or may be decreased in the case of overwithholding.
    (1) Determine whether the payment is pursuant to a contract for 
goods or services. The acquiring agency determines whether it is making 
a payment pursuant to a contract for goods or services. To the extent 
that the acquiring agency is making a payment for any other purpose, it 
does not have an obligation to withhold under section 5000C on the 
payment.
    (2) Determine whether the payment is made pursuant to a contract 
with a U.S. person. The acquiring agency determines whether the payment 
is made pursuant to a contract with a person considered to be a United 
States person (U.S. person) in accordance with paragraph (c) of this 
section. If the other contracting party is a U.S. person, the acquiring 
agency does not have an obligation to withhold under section 5000C on 
the payment.
    (3) Determine whether the payment is for purchases under the 
simplified acquisition procedures. The acquiring agency determines 
whether the payment is for purchases under the simplified acquisitions 
procedures that do not exceed the simplified acquisition threshold as 
described in 48 CFR 2.101. If it is, the acquiring agency does not have 
an obligation to withhold under section 5000C on the payment.
    (4) Determine whether the payment is for emergency acquisitions. The 
acquiring agency determines whether the payment is made for certain 
emergency acquisitions within the meaning of Sec. 1.5000C-1(d)(2). If it 
is, the acquiring agency does not have an obligation to withhold under 
section 5000C on the payment.
    (5) Determine whether the payment is for personal services under the 
simplified acquisition threshold. The acquiring agency determines 
whether payments for services under contracts with a single individual 
do not exceed the simplified acquisition threshold as described in 48 
CFR 2.101 on an annual basis for all years of the contract. If that is 
the case, the acquiring agency does not have an obligation to withhold 
under section 5000C on the payment.
    (6) Determine whether the payment is pursuant to a foreign 
humanitarian assistance contract. The acquiring agency determines 
whether the payment is made pursuant to a foreign humanitarian 
assistance contract described in Sec. 1.5000C-1(d)(4). If it is, the 
acquiring agency does not have an obligation to withhold under section 
5000C on the payment.
    (7) Determine whether the foreign contracting party is entitled to 
relief pursuant to an international agreement. If the foreign 
contracting party submits a Section 5000C Certificate in accordance with 
paragraph (d) of this section representing that the foreign contracting 
party is entitled to relief from the tax imposed under section 5000C 
pursuant to an international agreement with the United States (such as 
relief pursuant to the nondiscrimination provision of a qualified income 
tax treaty), the acquiring agency does not have an obligation to 
withhold under section 5000C on the payment.
    (8) Determine whether the contract is for goods manufactured or 
produced or services provided in the United States or in a foreign 
country that is a party to an international procurement agreement. If 
the foreign contracting party submits a Section 5000C Certificate in 
accordance with paragraph (d) of this section that represents that the 
contract is for

[[Page 67]]

goods manufactured or produced or services provided in the United 
States, or in a foreign country that is a party to an international 
procurement agreement, the acquiring agency does not have an obligation 
to withhold. If the Section 5000C Certificate provides that payments 
under the contract are only partially exempt from withholding under 
section 5000C, the acquiring agency must withhold to the extent 
described in paragraph (b)(8) of this section.
    (9) Compute amounts to withhold. If, after evaluating each step 
described in this paragraph (b), the acquiring agency determines that it 
has an obligation to withhold, the acquiring agency computes the amount 
of withholding by multiplying the amount of the payment by 2 percent, 
unless the foreign contracting party has provided a Section 5000C 
Certificate or the payment is only in part for goods or services. In 
cases in which the Section 5000C Certificate demonstrates that the 
exemption in Step 8 applies, the acquiring agency generally computes the 
amount of withholding by multiplying the amount of the payment by the 
contract ratio provided on the most recent Section 5000C Certificate, 
the product of which is multiplied by 2 percent. However, in cases in 
which the exemption in Step 8 applies and the requirements of paragraph 
(d)(4)(iii)(B)(2) of this section are met, the acquiring agency computes 
the amount of withholding based on the payment for the specifically 
identified items, which may be identified by the contract line item 
number, or CLIN. In the case in which the payment is only in part for 
goods or services, the acquiring agency reduces the amount of the 
payment subject to the tax to the extent it is for something other than 
goods or services. The acquiring agency withholds the computed amount 
from the payment.
    (10) Deposit and report amounts withheld. The acquiring agency 
deposits and reports the amounts determined in the prior step in 
accordance with Sec. 1.5000C-3.
    (c) Determining whether the contracting party is a U.S. person--(1) 
In general. An acquiring agency must rely on the provisions of this 
paragraph (c) to determine the status of the contracting party as a U.S. 
person for purposes of withholding under section 5000C.
    (2) Determination based on Taxpayer Identification Number (TIN). An 
acquiring agency must treat a contracting party as a U.S. person if the 
U.S. government information system (such as the System for Award 
Management (SAM)) indicates that the contracting party is a corporation 
(for example, because the name listed in SAM contains the term 
``Corporation,'' ``Inc.,'' or ``Corp.'') and that it has a TIN that 
begins with two digits other than ``98'' (a limited liability company or 
LLC is not treated as a corporation for purposes of this paragraph 
(c)(2)). Further, an acquiring agency must treat a contracting party as 
a U.S. person if the acquiring agency has access to a U.S. government 
information system that indicates that the contracting party is an 
individual with a TIN that begins with a digit other than ``9''.
    (3) Determination based on the Form W-9. An acquiring agency must 
treat a contracting party as a U.S. person if the person has submitted 
to it a valid Form W-9, ``Request for Taxpayer Identification Number 
(TIN) and Certificate'' (or valid substitute form described in 
Sec. 31.3406(h)-3(c)(2) of this chapter), signed under penalties of 
perjury.
    (4) Contracting party treated as a foreign contracting party. If an 
acquiring agency cannot determine that a contracting party is a U.S. 
person based on application of paragraph (c)(2) or (3) of this section, 
then the contracting party is treated as a foreign contracting party for 
purposes of this section.
    (d) Withholding when a foreign contracting party submits a Section 
5000C Certificate--(1) In general. Unless the acquiring agency has 
reason to know that the information is incorrect or unreliable, the 
acquiring agency may rely on a claim that a foreign contracting party is 
entitled to an exemption (in whole or in part) from withholding on 
payments pursuant to a contract if the foreign contracting party 
provides a Section 5000C Certificate to the acquiring agency as 
prescribed in this paragraph (d). When a Section 5000C Certificate is 
furnished, the acquiring agency

[[Page 68]]

does not withhold, or must reduce the amount of withholding, on payments 
made to a foreign person if the certificate establishes that the foreign 
person is wholly or partially exempt from withholding. An acquiring 
agency may establish a system for a foreign contracting party to 
electronically furnish a Section 5000C Certificate.
    (2) Exemption for a foreign contracting party entitled to the 
benefit of relief pursuant to certain international agreements. An 
acquiring agency does not withhold on payments pursuant to a contract 
with a foreign contracting party when the payment is entitled to relief 
from the tax imposed under section 5000C pursuant to an international 
agreement, including relief pursuant to a nondiscrimination provision of 
a qualified income tax treaty, because the foreign contracting party is 
entitled to the benefit of that agreement and the foreign contracting 
party has submitted a Section 5000C Certificate that includes all of the 
information described in paragraphs (d)(4)(i) and (ii) of this section.
    (3) Exemption when goods are manufactured or produced or services 
provided in the United States, or in a foreign country that is a party 
to an international procurement agreement. An acquiring agency does not 
withhold on payments pursuant to a contract with a foreign contracting 
party to the extent that the payments are for goods manufactured or 
produced or services provided in the United States or in a foreign 
country that is a party to an international procurement agreement with 
the United States, provided that the foreign contracting party has 
submitted a Section 5000C Certificate that includes all of the 
information described in paragraphs (d)(4)(i) and (iii) of this section. 
If the Section 5000C Certificate provides that the payment is only 
partially exempt from withholding under section 5000C, the acquiring 
agency must withhold to the extent that the payment is not exempt.
    (4) Information required for Section 5000C Certificate--(i) In 
general. The Section 5000C Certificate must be signed under penalties of 
perjury by the foreign contracting party and contain--
    (A) The name of the foreign contracting party, country of 
organization (if applicable), and permanent residence address of the 
foreign contracting party;
    (B) The mailing address of the foreign contracting party (if 
different than the permanent residence address);
    (C) The TIN assigned to the foreign contracting party (if any);
    (D) The identifying or reference number on the contract (if known);
    (E) The name and address of the acquiring agency;
    (F) A statement that the person signing the Section 5000C 
Certificate is the foreign contracting party listed in paragraph 
(d)(4)(i)(A) of this section (or is authorized to sign on behalf of the 
foreign contracting party);
    (G) A statement that the foreign contracting party is not acting as 
an agent or nominee for another foreign person with respect to the goods 
manufactured or produced or services provided under the contract;
    (H) A statement that the foreign contracting party agrees to pay an 
amount equal to any tax (including any applicable penalties and 
interest) due under section 5000C that the acquiring agency does not 
withhold under section 5000C;
    (I) A statement that the foreign contracting party acknowledges and 
understands the rules in Sec. 1.5000C-4 relating to procedural 
obligations related to section 5000C; and
    (J) A statement that the foreign contracting party has not engaged 
in a transaction (or series of transactions) with a principal purpose of 
avoiding the tax imposed under section 5000C as defined in Sec. 1.5000C-
5.
    (ii) Additional information required for claiming an exemption based 
on certain international agreements with the United States. In addition 
to the information required by paragraph (d)(4)(i) of this section, a 
foreign contracting party claiming an exemption from withholding in 
reliance on a provision of an international agreement with the United 
States, including a qualified income tax treaty, must provide--
    (A) The name of the international agreement under which the foreign 
contracting party is claiming benefits;
    (B) The specific provision of the international agreement relied 
upon

[[Page 69]]

(for example, the nondiscrimination article of a qualified income tax 
treaty); and
    (C) The basis on which it is entitled to the benefits of that 
provision (for example, because the foreign contracting party is a 
corporation organized in a foreign country that has in force a qualified 
income tax treaty with the United States that covers all nationals, 
regardless of their residence).
    (iii) Additional required information for claiming exemption based 
on country where goods are manufactured or services provided. (A) In 
general. In addition to the information required by paragraph (d)(4)(i) 
of this section, a foreign contracting party claiming an exemption from 
withholding (in whole or in part) because payments will be pursuant to a 
contract for goods manufactured or produced or services provided in the 
United States, or a foreign country that is party to an international 
procurement agreement, must describe on the Section 5000C Certificate 
the relevant goods or services and the country (or countries) in which 
they are manufactured or produced, or are provided, and must include the 
name of the international procurement agreement or agreements (if 
relevant).
    (B) Information on allocation to exempt and nonexempt amounts. (1) 
In general. In situations in which a foreign contracting party claims 
the exemption in paragraph (d)(3) of this section with respect to only a 
portion of the payments received under the contract, the Section 5000C 
Certificate must include an explanation of the method used by the 
foreign contracting party to allocate the total contract price among the 
countries, as described in Sec. 1.5000C-1(e)(3), if applicable. In 
general, the Section 5000C Certificate also must include the total 
contract price and the nonexempt amount; however, when necessary, an 
estimate of the total contract price or the nonexempt amount may be 
used. For example, total contract price may be estimated when a Section 
5000C Certificate is being completed with respect to payments to be made 
pursuant to a cost-reimbursement contract that is paid on the basis of 
actual incurred costs and the total amount of such costs is not known at 
the time the certificate is provided.
    (2) Specific identification of exempt items. If agreed to by the 
acquiring agency, the Section 5000C Certificate may identify specific 
exempt and nonexempt amounts. For example, specific contract line items 
(such as a contract line item number or CLIN) identified in the contract 
may be listed on the Section 5000C Certificate as exempt and nonexempt 
amounts (in whole or in part), as applicable. When this paragraph 
applies, and whether or not the contract identifies exempt and nonexempt 
amounts, a foreign contracting party must provide the information 
required by paragraphs (d)(4)(iii)(A) and (d)(4)(iii)(B)(1) of this 
section, on the Section 5000C Certificate to explain why the contract 
line items are eligible for an exemption; however, the foreign 
contracting party is not required to include information about the total 
contract price under this paragraph. In these circumstances, only one 
Section 5000C Certificate is required to be provided identifying the 
exempt and nonexempt contract line items that relate to the contract 
(for example, a spreadsheet may be attached to the Section 5000C 
Certificate that identifies the contract line items with an explanation 
for the treatment as exempt or nonexempt).
    (5) Validity period of Section 5000C Certificate. Except as 
otherwise provided in paragraph (d)(6) of this section, the Section 
5000C Certificate is valid for the term of the contract.
    (6) Change in circumstances. A foreign contracting party must submit 
a revised Section 5000C Certificate within 30 days of a change in 
circumstances that causes the information in a Section 5000C Certificate 
held by the acquiring agency to be incorrect with respect to the 
acquiring agency's determination of whether to withhold or the amount of 
withholding under Section 5000C. An acquiring agency must request a new 
Section 5000C Certificate from a contracting party in circumstances in 
which it knows (or has reason to know) that a previously submitted 
Section 5000C Certificate becomes incorrect or unreliable. An acquiring 
agency may request an updated Section 5000C Certificate at any time,

[[Page 70]]

including when other documentation is required under the contract, such 
as the annual representations and certifications required in 48 CFR 
4.1201. See Sec. 1.5000C-6, Example 6, for an illustration of this 
paragraph (6).
    (7) Form W-14. A foreign contracting party may choose to use Form W-
14, ``Certificate of Foreign Contracting Party Receiving Federal 
Procurement Payments'' (or other form that the IRS may prescribe), as 
its Section 5000C Certificate, provided that it includes all the 
necessary information required by this paragraph (d).
    (8) Time for submitting Section 5000C Certificate. A contracting 
party must submit the Section 5000C Certificate (such as Form W-14 or 
Form W-9) as early as practicable (for example, when the offer for the 
contract is submitted to the U.S. government). In all cases, however, 
the Section 5000C Certificate must be submitted to the acquiring agency 
no later than the date of execution of the contract.
    (e) Offset for underwithholding or overwithholding--(1) In general. 
If the foreign contracting party discovers that amounts withheld on 
prior payments either were insufficient or in excess of the amount 
required to satisfy its tax liability under section 5000C, the foreign 
contracting party may request the acquiring agency to increase or 
decrease the amount of withholding on future payments for which 
withholding is required under section 5000C. The request must be in 
writing, signed under penalties of perjury, contain the amount by which 
the foreign contracting party requests to increase or decrease future 
amounts withheld under section 5000C, and explain the reason for the 
request. The request may be submitted in conjunction with an original or 
updated Section 5000C Certificate.
    (2) Underwithholding. Upon receipt of a request described in 
paragraph (e)(1) of this section, acquiring agencies may increase the 
amount of withholding under this paragraph to correct underwithholding 
only if the payment for which the increase is applied is otherwise 
subject to withholding under section 5000C and made before the date that 
Form 1042, ``Annual Withholding Tax Return for U.S. Source Income of 
Foreign Persons,'' is required to be filed (not including extensions) 
with respect to the payment for which the underwithholding occurred. 
Amounts withheld under this paragraph must be deposited and reported in 
the time and manner as prescribed by Sec. 1.5000C-3. See Sec. 1.5000C-4 
for procedures for a foreign contracting party that must pay tax due 
when its tax liability under section 5000C was not fully satisfied by 
withholding by an acquiring agency.
    (3) Overwithholding. Upon receipt of a request described in 
paragraph (e)(1) of this section, acquiring agencies may decrease the 
amount of withholding on subsequent payments made to the foreign 
contracting party that are otherwise subject to withholding under 
section 5000C provided that the payment for which the decrease is 
applied is made on or before the date on which Form 1042, ``Annual 
Withholding Tax Return for U.S. Source Income of Foreign Persons,'' is 
required to be filed (not including extensions) with respect to the 
payment for which the overwithholding occurred. See Sec. 1.5000C-4(e) 
for procedures for foreign contracting parties to file a claim for 
refund for the overwithheld amount under section 5000C.

[T.D. 9782, 81 FR 55138, Aug. 18, 2016]



Sec. 1.5000C-3  Payment and returns of tax withheld by the acquiring
agency.

    (a) In general. This section provides administrative procedures that 
acquiring agencies must follow to satisfy their obligations to deposit 
and report amounts withheld under Sec. 1.5000C-2. An acquiring agency 
with a section 5000C withholding obligation must increase the amount it 
deducts and withholds under chapter 3 for fixed or determinable annual 
or periodical income (FDAP income) by the amount it must withhold under 
Sec. 1.5000C-2. Accordingly, this section generally applies the 
administrative provisions of chapter 3 for FDAP income relating to the 
deposit, payment, and reporting for amounts withheld under Sec. 1.5000C-
2, and contains some variation from those provisions to take into 
account the nature of the tax imposed under section 5000C.
    (b) Deposit rules--(1) Acquiring agency with a chapter 3 deposit 
requirement

[[Page 71]]

treats amounts withheld as under chapter 3. If an acquiring agency has a 
chapter 3 deposit obligation for a period, it must treat any amount 
withheld under Sec. 1.5000C-2 as an additional amount of tax withheld 
under chapter 3 for purposes of the deposit rules of Sec. 1.6302-2. 
Thus, depending on the combined amount withheld under chapter 3 and 
Sec. 1.5000C-2, an acquiring agency subject to this paragraph (b)(1) 
must make monthly deposits, quarter-monthly deposits, or annual deposits 
under the rules in Sec. 1.6302-2. To the extent provided in forms, 
instructions, or publications prescribed by the Internal Revenue Service 
(IRS), acquiring agencies must deposit all withheld amounts by 
electronic funds transfer, as that term is defined in Sec. 31.6302-
1(h)(4)(i) of this chapter.
    (2) Acquiring agency with no chapter 3 filing obligation deposits 
withheld amounts monthly. If an acquiring agency has no chapter 3 
deposit obligation to which the deposit rules of Sec. 1.6302-2 apply for 
a calendar month, it must make monthly deposits of the amounts withheld 
under the rules in this paragraph (b)(2). Thus, an acquiring agency with 
no chapter 3 deposit obligations and that has withheld any amount under 
Sec. 1.5000C-2 during any calendar month must deposit that amount by the 
15th day of the month following the payment. To the extent provided in 
forms, instructions, or publications prescribed by the Internal Revenue 
Service (IRS), acquiring agencies must deposit all withheld amounts by 
electronic funds transfer, as that term is defined in Sec. 31.6302-
1(h)(4)(i) of this chapter.
    (c) Return requirements--(1) In general. Except as provided in 
paragraph (c)(2) of this section, an acquiring agency that withholds an 
amount pursuant to section 5000C generally must file Form 1042-S, 
``Foreign Person's U.S. Source Income Subject to Withholding,'' and Form 
1042, ``Annual Withholding Tax Return for U.S. Source Income of Foreign 
Persons,'' each year, or other such forms as the IRS may prescribe, to 
report information related to amounts withheld under section 5000C. The 
acquiring agency must prepare a Form 1042-S for each contracting party 
reporting the amount withheld under section 5000C for the preceding 
calendar year. The Form 1042 must show the aggregate amounts withheld 
under section 5000C that were required to be reported on Forms 1042-S 
(including those amounts withheld under section 5000C for which a Form 
1042-S is not required to be filed pursuant to paragraph (c)(2) of this 
section). The Form 1042 must also include the information required by 
the form and accompanying instructions. Further, any forms required 
under this paragraph (c) are due at the same time, at the same place, 
and eligible for the same extended due dates and may be amended in the 
same manner as Form 1042 and Form 1042-S (or such other forms as the IRS 
may prescribe related to chapter 3). The acquiring agency must furnish a 
copy of the Form 1042-S (or such other form as the IRS may prescribe for 
the same purpose) to the contracting party for whom the form is prepared 
on or before March 15 of the calendar year following the year in which 
the amount subject to reporting under section 5000C was paid. It must be 
filed with a transmittal form as provided in the instructions for Form 
1042-S and to the transmittal form. Section 5000C Certificates or other 
statements or information as prescribed by Sec. 1.5000C-2 that are 
provided to the acquiring agency are not required to be attached to the 
Form 1042 filed with the IRS. However, an acquiring agency that is 
required to file Form 1042 must retain a copy of Form 1042, Form 1042-S, 
the Section 5000C Certificates, or other statements or information 
prescribed by Sec. 1.5000C-2 for at least three years from the original 
due date of Form 1042 or the date it was filed, whichever is later. An 
acquiring agency that is not required to file Form 1042 must retain any 
Section 5000C Certificates or other statements or information as 
prescribed by Sec. 1.5000C-2 for at least three years from the date the 
Form 1042 would have been due had the acquiring agency had an obligation 
to file.
    (2) Classified or confidential contracts. An acquiring agency is not 
required to report information otherwise required by this section on 
Form 1042-S for payments made pursuant to classified or confidential 
contracts (as described in

[[Page 72]]

section 6050M(e)(3)), unless the acquiring agency determines that the 
information reported on the Form 1042-S does not compromise the 
safeguarding of classified information or national security.
    (d) Special arrangement for certain contracts. In limited 
circumstances, the IRS may authorize the amount otherwise required to be 
withheld under section 5000C to be deposited in the time and manner 
mutually agreed upon by the acquiring agency and the foreign contracting 
party. In these circumstances, the IRS may in its sole discretion also 
modify any reporting or return requirements of the acquiring agency or 
the foreign contracting party.

[T.D. 9782, 81 FR 55138, Aug. 18, 2016]



Sec. 1.5000C-4  Requirement for the foreign contracting party to file
a return and pay tax, and procedures for the contracting party to seek
a refund.

    (a) In general. For purposes of subtitle F of the Internal Revenue 
Code (``Procedure and Administration''), the tax imposed under section 
5000C on foreign persons is treated as a tax imposed under subtitle A. 
Except as provided elsewhere in the regulations under section 5000C, 
forms, or accompanying instructions, the tax imposed on foreign 
contracting parties under section 5000C is administered in a manner 
similar to gross basis income taxes. This section provides procedures 
that a foreign contracting party must follow to satisfy its obligations 
to report and deposit tax due under Sec. 1.5000C-1 as well as procedures 
for contracting parties to seek a refund of amounts overwithheld.
    (b) Tax obligation of foreign contracting party independent of 
withholding. A foreign contracting party subject to tax under section 
5000C and Secs. 1.5000C-1 through 1.5000C-7 remains liable for the tax 
unless its tax obligation was fully satisfied by withholding by an 
acquiring agency in accordance with Secs. 1.5000C-2 and 1.5000C-3.
    (c) Return of tax by the foreign contracting party. If the tax 
liability under Sec. 1.5000C-1 relating to a payment is not fully 
satisfied by withholding in accordance with Secs. 1.5000C-2 and 1.5000C-
3 (including as a result of the use of an estimated nonexempt amount or 
estimated total contract price in computing the contract ratio), a 
foreign contracting party subject to tax under Sec. 1.5000C-1 during a 
calendar year must make a return of tax on, for example, Form 1120-F, 
``U.S. Income Tax Return of a Foreign Corporation,'' or such other form 
as the Internal Revenue Service (IRS) may prescribe to report the amount 
of tax due under section 5000C (required return). A foreign contracting 
party with no other U.S. tax filing obligation other than with respect 
to its liability for the tax imposed under section 5000C must file its 
required return on or before the fifteenth day of the sixth month 
following the close of its taxable year. The required return must 
include the information required by the form and accompanying 
instructions. The required return must be filed at the place and time 
(including any extension of time to file) provided by the form and 
accompanying instructions. Penalties for failure to file contained in 
Subtitle F can apply to foreign contracting parties who fail to file the 
required return. A foreign contracting party must attach copies of all 
Forms 1042-S, ``Foreign Person's U.S. Source Income Subject to 
Withholding,'' received from acquiring agencies (if any) to the required 
return.
    (d) Time and manner of paying tax. A foreign contracting party must 
pay the tax imposed under section 5000C in the manner provided and in 
the time prescribed in the required return and accompanying 
instructions. In general, the foreign contracting party must pay the tax 
at the time that the required return is due, excluding extensions. To 
the extent provided in forms, instructions, or publications prescribed 
by the IRS, each foreign contracting party must deposit tax due under 
section 5000C by electronic funds transfer, as that term is defined in 
Sec. 31.6302-1(h)(4)(i) of this chapter. A foreign contracting party 
that fails to pay tax in the time and manner prescribed in this section 
(or under forms, instructions, or publications prescribed by the IRS 
under this section) may be subject to penalties and interest under 
Subtitle F.

[[Page 73]]

    (e) Refund requests when amount withheld exceeds tax liability. 
After taking into account any offsets pursuant to Sec. 1.5000C-2(e)(3), 
if the acquiring agency has overwithheld amounts under section 5000C and 
has made a deposit of the amounts under Sec. 1.5000C-3(b), the 
contracting party may claim a refund of the amount overwithheld pursuant 
to the procedures described in chapter 65. The contracting party's claim 
for refund must meet the requirements of section 6402 and the 
regulations thereunder, as applicable, and must be filed before the 
expiration of the period of limitations on refund in section 6511 and 
the regulations thereunder. In general, the contracting party making a 
refund claim must file the required return to claim a refund, stating 
the grounds upon which the claim is based. A Section 5000C Certificate 
and a copy of the Form 1042-S received from the acquiring agency must be 
attached to the required return. For purposes of this section, an amount 
is overwithheld if the amount withheld from the payment pursuant to 
section 5000C and Secs. 1.5000C-1 through 1.5000C-7 exceeds the 
contracting party's tax liability under Sec. 1.5000C-1, regardless of 
whether the overwithholding was in error or appeared correct when it 
occurred. A U.S. person may seek a refund under this paragraph (e) even 
if it was treated as a foreign person under the rules in Sec. 1.5000C-2 
(for example, because it neither had a taxpayer identification number on 
file in the System for Award Management nor submitted Form W-9, 
``Request for Taxpayer Identification Number (TIN) and Certification,'' 
to the acquiring agency).

[T.D. 9782, 81 FR 55138, Aug. 18, 2016]



Sec. 1.5000C-5  Anti-abuse rule.

    If a foreign person engages in a transaction (or series of 
transactions) with a principal purpose of avoiding the tax imposed under 
section 5000C, the transaction (or series of transactions) may be 
disregarded or the arrangement may be recharacterized (including 
disregarding an intermediate entity), in accordance with its substance. 
If this section applies, the foreign person remains liable for any tax 
(including any tax obligation unsatisfied as a result of 
underwithholding) and the Internal Revenue Service retains all other 
rights and remedies under any applicable law available to collect any 
tax imposed on the foreign contracting party by section 5000C.

[T.D. 9782, 81 FR 55138, Aug. 18, 2016]



Sec. 1.5000C-6  Examples.

    The rules of Secs. 1.5000C-1 through 1.5000C-4 are illustrated by 
the following examples. For purposes of the examples: All contracts are 
executed with acquiring agencies on or after January 2, 2011, and are 
for the provision of either goods or services; none of the exemptions 
described in Sec. 1.5000C-1(d) apply, unless otherwise explicitly 
stated; the acquiring agencies have no other withholding obligations 
under chapter 3 of the Code and have no other contracts subject to 
section 5000C; the foreign contracting parties do not have any U.S. 
source income or a U.S. tax return filing obligation other than a tax 
return filing obligation that arises based on the facts described in the 
particular example; and none of the contracts are classified or 
confidential contracts as described in section 6050M(e)(3).

    Example 1. U.S. person not subject to tax; no withholding. (i) 
Facts. Company A Inc., a domestic corporation and the contracting party, 
enters into a contract with Agency L, the acquiring agency. Before 
making its first payment under the contract (for example, on the date of 
execution of the contract), pursuant to the first step in Sec. 1.5000C-
2(b), Agency L determines that the contract will be for services. Under 
the second step, Agency L reviews Company A Inc.'s record in the System 
for Award Management (SAM) and determines that Company A is a 
corporation and is considered to be a U.S. person because Agency L's 
records demonstrate that Company A Inc. is a business entity treated as 
a corporation for tax purposes that has a TIN that does not begin with 
``98.''
    (ii) Analysis. Company A Inc. is a U.S. person and thus is not 
subject to the tax under section 5000C. Moreover, because Company A Inc. 
is a corporation for tax purposes that has a TIN that does not begin 
with ``98,'' Agency L is able to determine that it has no obligation to 
withhold any amounts under section 5000C on the payment made to Company 
A Inc. For purposes of section 5000C, Company A Inc. could also 
establish that it is a U.S. person by providing a Form W-9, ``Request 
for Taxpayer Identification Number (TIN) and Certification,'' to Agency 
L.

[[Page 74]]

Company A Inc. does not need to file a Section 5000C Certificate to 
demonstrate its eligibility for an exemption from withholding.
    Example 2. Foreign national entitled to the benefit of a 
nondiscrimination provision of a treaty; no withholding. (i) Facts. 
Company B, a foreign contracting party and a national of Country T, 
provides goods to Agency M, the acquiring agency. Company B determines 
that it is exempt from tax under section 5000C because it is entitled to 
the benefit of the nondiscrimination article of a qualified income tax 
treaty between the United States and Country T. Company B submits a 
Section 5000C Certificate to Agency M when the contract is executed. 
Company B uses Form W-14, ``Certificate of Foreign Contracting Party 
Receiving Federal Procurement Payments,'' and properly fills the 
relevant sections stating the name of the treaty, the specific article 
relied upon, and the basis on which it is entitled to the benefits of 
that article. Following the steps in Sec. 1.5000C-2, Agency M determines 
that the nondiscrimination provision of the Country T-United States 
income tax treaty applies to exempt Company B from the tax imposed under 
section 5000C. Agency M makes one lump sum payment of $50 million to 
Company B pursuant to the contract.
    (ii) Analysis. Company B has no liability for tax under section 
5000C because it is entitled to the benefit of a nondiscrimination 
article of a qualified income tax treaty. Because Company B submitted a 
Section 5000C Certificate meeting the requirements in Sec. 1.5000C-2 and 
Agency M does not have reason to know that the submitted information is 
incorrect or unreliable, Agency M is not required to withhold under 
section 5000C. Agency M must retain the Section 5000C Certificate for at 
least three years pursuant to Sec. 1.5000C-3(c)(1) from the due date for 
the Form 1042 (if it were required).
    Example 3. Foreign treaty beneficiary does not submit Section 5000C 
Certificate; withholding required. (i) Facts. The facts are the same as 
in Example 2, except that Company B does not submit a Section 5000C 
Certificate to Agency M before Agency M makes the $50 million payment.
    (ii) Analysis. Company B is not subject to tax under section 5000C, 
but Agency M must nevertheless withhold on the payment made to Company B 
because Agency M did not receive a Section 5000C Certificate from 
Company B in the time and manner required pursuant to Sec. 1.5000C-2(d). 
Agency M must withhold $1 million (2 percent of $50 million) on the 
payment, and deposit that amount under the rules in Sec. 1.5000C-3 no 
later than the 15th day of the month following the month in which the 
payment was made. Agency M must also complete Forms 1042, ``Annual 
Withholding Tax Return for U.S. Source Income of Foreign Persons,'' and 
1042-S, ``Foreign Person's U.S. Source Income Subject to Withholding,'' 
on or before the date specified on those forms and the accompanying 
instructions. Agency M must furnish copies of Form 1042-S to Company B. 
Agency M must retain a copy of the Form 1042 and the Form 1042-S for 3 
years from the due date for the Form 1042 pursuant to Sec. 1.5000C-
3(c)(1). As Company B is not liable for the tax, it may later file a 
claim for refund pursuant to the procedures described in chapter 65.
    Example 4. Foreign contracting party partially exempt from tax under 
section 5000C when goods are manufactured in different countries. (i) 
Facts. Company C, a foreign contracting party, provides goods to Agency 
N in 2015. The terms of the contract require that payment be made to 
Company C by Agency N in two $5 million installments in 2015. Company C 
has a TIN that begins with ``98'' and is not entitled to relief pursuant 
to an international agreement with the United States, such as relief 
pursuant to a nondiscrimination provision of a qualified income tax 
treaty. Some of the goods are manufactured in Country R, which is a 
party to an international procurement agreement with the United States, 
with the remainder being manufactured in Country S, a country that is 
not a party to an international procurement agreement with the United 
States. Company C uses a reasonable allocation method based on the 
information available to it at the time in accordance with Sec. 1.5000C-
1(e)(3) to estimate that $3 million is the nonexempt amount that is 
allocated to the goods produced in Country S. Company C submits a valid 
and complete Section 5000C Certificate to Agency N in the time and 
manner required by Secs. 1.5000C-1 through 1.5000C-7 that provides that 
the nonexempt amount is $3 million. In 2015, Agency N pays Company C in 
two installments pursuant to the terms of the contract.
    (ii) Analysis. Using a reasonable allocation method to determine the 
estimated nonexempt amount, Company C determines that pursuant to 
section 5000C and Secs. 1.5000C-1 through 1.5000C-7, tax of $30,000 (2 
percent of the $5 million payment, or $100,000 multiplied by a fraction, 
the numerator of which is the estimated nonexempt amount, $3 million, 
and the denominator of which is the estimated total contract price, or 
$10 million) is imposed on each payment made to Company C. Because 
Company C has timely submitted a Section 5000C Certificate explaining 
the basis for this allocation, Agency N withholds $30,000 on each 
payment made to Company C. Agency N must deposit each $30,000 
withholding tax under the rules in Sec. 1.5000C-3 no later than the 15th 
day of the month following the month in which each payment is made. 
Agency N must also complete Forms 1042 and 1042-S and furnish copies of 
Form 1042-S to Company C. Agency N must retain a copy of the Form 1042 
and the Form 1042-S for at least three years from the due date

[[Page 75]]

for the Form 1042 pursuant to Sec. 1.5000C-3(c)(1). Provided that Agency 
N properly withholds on the nonexempt portion as required under section 
5000C and Secs. 1.5000C-1 through 1.5000C-7 and that Company C's 
estimate of the nonexempt amount is the actual nonexempt amount, Company 
C does not have an additional tax liability or a U.S. tax return filing 
obligation as a result of receiving the payments.
    Example 5. Foreign contracting party liable for additional tax under 
Section 5000C not fully withheld upon due to errors on the Section 5000C 
Certificate. (i) Facts. The facts are the same as in Example 4, except 
that the Section 5000C Certificate submitted to Agency N by Company C 
erroneously provides that the estimated nonexempt amount is $1.5 million 
instead of $3 million. As a result, Agency N only withholds $15,000 (2 
percent of the $5 million payment multiplied by a fraction (the 
numerator of which is the estimated nonexempt amount stated on the 
Section 5000C Certificate, $1.5 million, and the denominator of which is 
the estimated total contract price, or $10 million)) on each payment 
made to Company C. Agency N neither discovered nor had reason to know 
that the information on the Section 5000C Certificate was incorrect or 
unreliable. After both payments have been made and after the filing due 
date for Form 1042 for 2015, Company C determines that the estimated 
nonexempt amount should have been stated as $3 million on the Section 
5000C Certificate.
    (ii) Analysis. The tax imposed under section 5000C on Company C as a 
result of the receipt of specified Federal procurement payments is 
$60,000 and this amount has not been fully satisfied by withholding by 
Agency N. Accordingly, Company C must remit additional tax of $30,000 
($60,000 tax liability less $30,000 amounts already withheld by Agency 
N) and file its required return, a Form 1120-F, ``U.S. Income Tax Return 
of a Foreign Corporation,'' for 2015 to report this tax liability, as 
required by Sec. 1.5000C-4. Company C must explain its corrected 
allocation method in its Form 1120-F. Company C must also attach a copy 
of the Form 1042-S it received from Agency N to Form 1120-F.
    Example 6. Foreign contracting party submits revised Section 5000C 
Certificate due to change in circumstances. (i) Facts. The facts are the 
same as in Example 4, except that, after the first payment, Company C 
changes its business so that all of the goods manufactured with respect 
to the second payment are manufactured in Country R. Prior to the second 
payment, Company C submits a revised Section 5000C Certificate 
indicating this change in circumstance pursuant to Sec. 1.5000C-2(d)(6).
    (ii) Analysis. Agency N withholds $30,000 on the first payment made 
to Company C and does not withhold on the second payment. Company C does 
not have an additional tax liability or a U.S. tax return filing 
obligation as a result of receiving the payments.

[T.D. 9782, 81 FR 55138, Aug. 18, 2016]



Sec. 1.5000C-7  Effective/applicability date.

    Section 5000C applies to specified Federal procurement payments 
received pursuant to contracts entered into on and after January 2, 
2011. Sections 1.5000C-1 through 1.5000C-7 apply on and after November 
16, 2016. Contracting parties and acquiring agencies may rely upon the 
rules in the regulations before such date. If a foreign contracting 
party fully satisfies its tax and filing obligations under section 5000C 
with respect to any payments received in tax years ending before 
November 16, 2016 on or before the later of November 16, 2016 or the due 
date for the foreign person's income tax return for the year in which 
the payment was received in a manner consistent with the final 
regulations, penalties will not be asserted on the foreign contracting 
parties with respect to those payments or returns.

[T.D. 9782, 81 FR 55138, Aug. 18, 2016]

                           Returns and Records

    Source: Sections 1.6001-1 through 1.6091-4 contained in T.D. 6500, 
25 FR 12108, Nov. 26, 1960, unless otherwise noted.

                Records, Statements, and Special Returns



Sec. 1.6001-1  Records.

    (a) In general. Except as provided in paragraph (b) of this section, 
any person subject to tax under subtitle A of the Code (including a 
qualified State individual income tax which is treated pursuant to 
section 6361(a) as if it were imposed by chapter 1 of subtitle A), or 
any person required to file a return of information with respect to 
income, shall keep such permanent books of account or records, including 
inventories, as are sufficient to establish the amount of gross income, 
deductions, credits, or other matters required to be shown by such 
person in any return of such tax or information.
    (b) Farmers and wage-earners. Individuals deriving gross income from 
the business of farming, and individuals

[[Page 76]]

whose gross income includes salaries, wages, or similar compensation for 
personal services rendered, are required with respect to such income to 
keep such records as will enable the district director to determine the 
correct amount of income subject to the tax. It is not necessary, 
however, that with respect to such income individuals keep the books of 
account or records required by paragraph (a) of this section. For rules 
with respect to the records to be kept in substantiation of traveling 
and other business expenses of employees, see Sec. 1.162-17.
    (c) Exempt organizations. In addition to such permanent books and 
records as are required by paragraph (a) of this section with respect to 
the tax imposed by section 511 on unrelated business income of certain 
exempt organizations, every organization exempt from tax under section 
501(a) shall keep such permanent books of account or records, including 
inventories, as are sufficient to show specifically the items of gross 
income, receipts and disbursements. Such organizations shall also keep 
such books and records as are required to substantiate the information 
required by section 6033. See section 6033 and Secs. 1.6033-1 through 
1.6033-3.
    (d) Notice by district director requiring returns statements, or the 
keeping of records. The district director may require any person, by 
notice served upon him, to make such returns, render such statements, or 
keep such specific records as will enable the district director to 
determine whether or not such person is liable for tax under subtitle A 
of the Code, including qualified State individual income taxes, which 
are treated pursuant to section 6361(a) as if they were imposed by 
chapter 1 of subtitle A.
    (e) Retention of records. The books or records required by this 
section shall be kept at all times available for inspection by 
authorized internal revenue officers or employees, and shall be retained 
so long as the contents thereof may become material in the 
administration of any internal revenue law.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 7122, 36 FR 
11025, June 8, 1971; T.D. 7577, 43 FR 59357, Dec. 20, 1978; T.D. 8308, 
55 FR 35593, Aug. 31, 1990]



Sec. 1.6001-2  Returns.

    For rules relating to returns required to be made by every 
individual, estate, or trust which is liable for one or more qualified 
State individual income taxes, as defined in section 6362, for a taxable 
year, see paragraph (b) of Sec. 301.6361-1 of this chapter (Regulations 
on procedure and Administration).

[T.D. 7577, 43 FR 59357, Dec. 20, 1978]

                        tax returns or statements



Sec. 1.6011-1  General requirement of return, statement, or list.

    (a) General rule. Every person subject to any tax, or required to 
collect any tax, under Subtitle A of the Code, shall make such returns 
or statements as are required by the regulations in this chapter. The 
return or statement shall include therein the information required by 
the applicable regulations or forms.
    (b) Use of prescribed forms. Copies of the prescribed return forms 
will so far as possible be furnished taxpayers by district directors. A 
taxpayer will not be excused from making a return, however, by the fact 
that no return form has been furnished to him. Taxpayers not supplied 
with the proper forms should make application therefor to the district 
director in ample time to have their returns prepared, verified, and 
filed on or before the due date with the internal revenue office where 
such returns are required to be filed. Each taxpayer should carefully 
prepare his return and set forth fully and clearly the information 
required to be included therein. Returns which have not been so prepared 
will not be accepted as meeting the requirements of the Code. In the 
absence of a prescribed form, a statement made by a taxpayer disclosing 
his gross income and the deductions therefrom may be accepted as a 
tentative return, and, if filed within the prescribed time, the 
statement so made will relieve the taxpayer from liability for the 
addition to tax imposed for the delinquent filing of the return, 
provided that without unnecessary delay such a tentative return is 
supplemented by a return made on the proper form.

[[Page 77]]

    (c) Tax withheld on nonresident aliens and foreign corporations. For 
requirements respecting the return of the tax required to be withheld 
under chapter 3 of the Code on nonresident aliens and foreign 
corporations and tax-free covenant bonds, see Sec. 1.1461-2.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 6922, 32 FR 
8713, June 17, 1967]



Sec. 1.6011-2  Returns, etc., of DISC's and former DISC's.

    (a) Records and information. Every DISC and former DISC (as defined 
in section 992(a)) must comply with section 6001 and the regulations 
thereunder, relating to required records, statements, and special 
returns. Thus, for example, a DISC is required to maintain the books of 
account or records described in Sec. 1.6001-1(a). In addition, every 
DISC must furnish to each of its shareholders on or before the last day 
of the second month following the close of the taxable year of the DISC 
a copy of Schedule K (Form 1120-DISC) disclosing the amounts of actual 
distributions and deemed distributions from the DISC to such shareholder 
for the taxable year of the DISC. In the case of a deficiency 
distribution to meet qualification requirements, see Sec. 1.992-3(a)(4) 
for requirements that distribution be designated in the form of a 
communication sent to a shareholder and service center at the time of 
distribution.
    (b) Returns--(1) Requirement of return. Every DISC (as defined in 
section 992(a)(1)) shall make a return of income. A former DISC (as 
defined in section 992(a)(3)) shall also make a return of income in 
addition to any other return required. The return required of a DISC or 
former DISC under this section shall be made on Form 1120-DISC. The 
provisions of Sec. 1.6011-1 shall apply with respect to a DISC and 
former DISC. A former DISC should indicate clearly on Form 1120-DISC 
that it is making a return of income as a former DISC (for example, by 
labeling at the top of the Form 1120-DISC ``Former DISC''). In the case 
of a former DISC, those items on the form which pertain to the 
computation of taxable income shall not be completed, but Schedules J, 
K, L, and M must be completed. Except as otherwise specifically provided 
in the Code or regulations, the return of a DISC or former DISC is 
considered to be an income tax return.
    (2) Existence of DISC. A corporation which is a DISC and which is in 
existence during any portion of a taxable year is required to make a 
return for that fractional part of its taxable year during which it was 
in existence.

[T.D. 7533, 43 FR 6603, Feb. 15, 1978]



Sec. 1.6011-3  Requirement of statement from payees of certain
gambling winnings.

    (a) General rule. Except as provided in paragraph (c) of this 
section, any person receiving a payment with respect to a wager in a 
sweepstakes, wagering pool, lottery, or other wagering transaction 
(including a parimutuel pool with respect to horse races, dog races, or 
jai alai) shall make a statement to the payer of such winnings upon the 
payer's demand. Such statements shall accompany the payer's return made 
with respect to the payment as required pursuant to section 3402(q) or 
6041, as the case may be.
    (b) Contents of statement. The statement referred to in paragraph 
(a) shall contain information (in addition to that required under 
section 6041(c)) as to the amount, if any, of winnings from identical 
wagers to which the recipient is entitled. If any person other than the 
recipient is entitled to all or a portion of the payment, the statement 
shall also include information as to the amount, if any, of winnings 
from identical wagers to which each such person is entitled. The 
statement shall be provided on Form W-2G or, if persons other than the 
recipient are entitled to all or a portion of such payment, on Form 
5754.
    (c) Exception. The requirement of paragraph (a) of this section does 
not apply with respect to any payment of winnings--
    (1) From a slot machine play, or a bingo or keno game,
    (2) Which is subject to withholding under section 3402(q) without 
regard to the existence of winnings from identical wagers, or
    (3) For which no return of information under section 6041 is 
required of the payer.

[[Page 78]]

    (d) Meaning of terms, For purposes of this section, the terms 
``sweepstakes'', ``wagering pool'', ``lottery'', ``other wagering 
transaction'' and ``identical wagers'' shall have the same meanings as 
ascribed to them under Sec. 31.3402(q)-1.

[T.D. 7919, 48 FR 46297, Oct. 12, 1983]



Sec. 1.6011-4  Requirement of statement disclosing participation 
in certain transactions by taxpayers.

    (a) In general. Every taxpayer that has participated, as described 
in paragraph (c)(3) of this section, in a reportable transaction within 
the meaning of paragraph (b) of this section and who is required to file 
a tax return must file within the time prescribed in paragraph (e) of 
this section a disclosure statement in the form prescribed by paragraph 
(d) of this section. The fact that a transaction is a reportable 
transaction shall not affect the legal determination of whether the 
taxpayer's treatment of the transaction is proper.
    (b) Reportable transactions--(1) In general. A reportable 
transaction is a transaction described in any of the paragraphs (b)(2) 
through (7) of this section. The term transaction includes all of the 
factual elements relevant to the expected tax treatment of any 
investment, entity, plan, or arrangement, and includes any series of 
steps carried out as part of a plan.
    (2) Listed transactions. A listed transaction is a transaction that 
is the same as or substantially similar to one of the types of 
transactions that the Internal Revenue Service (IRS) has determined to 
be a tax avoidance transaction and identified by notice, regulation, or 
other form of published guidance as a listed transaction.
    (3) Confidential transactions--(i) In general. A confidential 
transaction is a transaction that is offered to a taxpayer under 
conditions of confidentiality and for which the taxpayer has paid an 
advisor a minimum fee.
    (ii) Conditions of confidentiality. A transaction is considered to 
be offered to a taxpayer under conditions of confidentiality if the 
advisor who is paid the minimum fee places a limitation on disclosure by 
the taxpayer of the tax treatment or tax structure of the transaction 
and the limitation on disclosure protects the confidentiality of that 
advisor's tax strategies. A transaction is treated as confidential even 
if the conditions of confidentiality are not legally binding on the 
taxpayer. A claim that a transaction is proprietary or exclusive is not 
treated as a limitation on disclosure if the advisor confirms to the 
taxpayer that there is no limitation on disclosure of the tax treatment 
or tax structure of the transaction.
    (iii) Minimum fee. For purposes of this paragraph (b)(3), the 
minimum fee is--
    (A) $250,000 for a transaction if the taxpayer is a corporation;
    (B) $50,000 for all other transactions unless the taxpayer is a 
partnership or trust, all of the owners or beneficiaries of which are 
corporations (looking through any partners or beneficiaries that are 
themselves partnerships or trusts), in which case the minimum fee is 
$250,000.
    (iv) Determination of minimum fee. For purposes of this paragraph 
(b)(3), in determining the minimum fee, all fees for a tax strategy or 
for services for advice (whether or not tax advice) or for the 
implementation of a transaction are taken into account. Fees include 
consideration in whatever form paid, whether in cash or in kind, for 
services to analyze the transaction (whether or not related to the tax 
consequences of the transaction), for services to implement the 
transaction, for services to document the transaction, and for services 
to prepare tax returns to the extent return preparation fees are 
unreasonable in light of the facts and circumstances. For purposes of 
this paragraph (b)(3), a taxpayer also is treated as paying fees to an 
advisor if the taxpayer knows or should know that the amount it pays 
will be paid indirectly to the advisor, such as through a referral fee 
or fee-sharing arrangement. A fee does not include amounts paid to a 
person, including an advisor, in that person's capacity as a party to 
the transaction. For example, a fee does not include reasonable charges 
for the use of capital or the sale or use of property. The IRS will 
scrutinize carefully all of the facts and circumstances in determining 
whether consideration received in connection with a confidential 
transaction constitutes fees.

[[Page 79]]

    (v) Related parties. For purposes of this paragraph (b)(3), persons 
who bear a relationship to each other as described in section 267(b) or 
707(b) will be treated as the same person.
    (4) Transactions with contractual protection--(i) In general. A 
transaction with contractual protection is a transaction for which the 
taxpayer or a related party (as described in section 267(b) or 707(b)) 
has the right to a full or partial refund of fees (as described in 
paragraph (b)(4)(ii) of this section) if all or part of the intended tax 
consequences from the transaction are not sustained. A transaction with 
contractual protection also is a transaction for which fees (as 
described in paragraph (b)(4)(ii) of this section) are contingent on the 
taxpayer's realization of tax benefits from the transaction. All the 
facts and circumstances relating to the transaction will be considered 
when determining whether a fee is refundable or contingent, including 
the right to reimbursements of amounts that the parties to the 
transaction have not designated as fees or any agreement to provide 
services without reasonable compensation.
    (ii) Fees. Paragraph (b)(4)(i) of this section only applies with 
respect to fees paid by or on behalf of the taxpayer or a related party 
to any person who makes or provides a statement, oral or written, to the 
taxpayer or related party (or for whose benefit a statement is made or 
provided to the taxpayer or related party) as to the potential tax 
consequences that may result from the transaction.
    (iii) Exceptions--(A) Termination of transaction. A transaction is 
not considered to have contractual protection solely because a party to 
the transaction has the right to terminate the transaction upon the 
happening of an event affecting the taxation of one or more parties to 
the transaction.
    (B) Previously reported transaction. If a person makes or provides a 
statement to a taxpayer as to the potential tax consequences that may 
result from a transaction only after the taxpayer has entered into the 
transaction and reported the consequences of the transaction on a filed 
tax return, and the person has not previously received fees from the 
taxpayer relating to the transaction, then any refundable or contingent 
fees are not taken into account in determining whether the transaction 
has contractual protection. This paragraph (b)(4) does not provide any 
substantive rules regarding when a person may charge refundable or 
contingent fees with respect to a transaction. See Circular 230, 31 CFR 
part 10, for the regulations governing practice before the IRS.
    (5) Loss transactions--(i) In general. A loss transaction is any 
transaction resulting in the taxpayer claiming a loss under section 165 
of at least--
    (A) $10 million in any single taxable year or $20 million in any 
combination of taxable years for corporations;
    (B) $10 million in any single taxable year or $20 million in any 
combination of taxable years for partnerships that have only 
corporations as partners (looking through any partners that are 
themselves partnerships), whether or not any losses flow through to one 
or more partners; or
    (C) $2 million in any single taxable year or $4 million in any 
combination of taxable years for all other partnerships, whether or not 
any losses flow through to one or more partners;
    (D) $2 million in any single taxable year or $4 million in any 
combination of taxable years for individuals, S corporations, or trusts, 
whether or not any losses flow through to one or more shareholders or 
beneficiaries; or
    (E) $50,000 in any single taxable year for individuals or trusts, 
whether or not the loss flows through from an S corporation or 
partnership, if the loss arises with respect to a section 988 
transaction (as defined in section 988(c)(1) relating to foreign 
currency transactions).
    (ii) Cumulative losses. In determining whether a transaction results 
in a taxpayer claiming a loss that meets the threshold amounts over a 
combination of taxable years as described in paragraph (b)(5)(i) of this 
section, only losses claimed in the taxable year that the transaction is 
entered into and the five succeeding taxable years are combined.
    (iii) Section 165 loss--(A) For purposes of this section, in 
determining the thresholds in paragraph (b)(5)(i) of this section, the 
amount of a section 165

[[Page 80]]

loss is adjusted for any salvage value and for any insurance or other 
compensation received. See Sec. 1.165-1(c)(4). However, a section 165 
loss does not take into account offsetting gains, or other income or 
limitations. For example, a section 165 loss does not take into account 
the limitation in section 165(d) (relating to wagering losses) or the 
limitations in sections 165(f), 1211, and 1212 (relating to capital 
losses). The full amount of a section 165 loss is taken into account for 
the year in which the loss is sustained, regardless of whether all or 
part of the loss enters into the computation of a net operating loss 
under section 172 or a net capital loss under section 1212 that is a 
carryback or carryover to another year. A section 165 loss does not 
include any portion of a loss, attributable to a capital loss carryback 
or carryover from another year, that is treated as a deemed capital loss 
under section 1212.
    (B) For purposes of this section, a section 165 loss includes an 
amount deductible pursuant to a provision that treats a transaction as a 
sale or other disposition, or otherwise results in a deduction under 
section 165. A section 165 loss includes, for example, a loss resulting 
from a sale or exchange of a partnership interest under section 741 and 
a loss resulting from a section 988 transaction.
    (6) Transactions of interest. A transaction of interest is a 
transaction that is the same as or substantially similar to one of the 
types of transactions that the IRS has identified by notice, regulation, 
or other form of published guidance as a transaction of interest.
    (7) [Reserved]
    (8) Exceptions--(i) In general. A transaction will not be considered 
a reportable transaction, or will be excluded from any individual 
category of reportable transaction under paragraphs (b)(3) through (7) 
of this section, if the Commissioner makes a determination by published 
guidance that the transaction is not subject to the reporting 
requirements of this section. The Commissioner may make a determination 
by individual letter ruling under paragraph (f) of this section that an 
individual letter ruling request on a specific transaction satisfies the 
reporting requirements of this section with regard to that transaction 
for the taxpayer who requests the individual letter ruling.
    (ii) Special rule for RICs. For purposes of this section, a 
regulated investment company (RIC) as defined in section 851 or an 
investment vehicle that is owned 95 percent or more by one or more RICs 
at all times during the course of the transaction is not required to 
disclose a transaction that is described in any of paragraphs (b)(3) 
through (5) and (b)(7) of this section unless the transaction is also a 
listed transaction or a transaction of interest.
    (c) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Taxpayer. The term taxpayer means any person described in 
section 7701(a)(1), including S corporations. Except as otherwise 
specifically provided in this section, the term taxpayer also includes 
an affiliated group of corporations that joins in the filing of a 
consolidated return under section 1501.
    (2) Corporation. When used specifically in this section, the term 
corporation means an entity that is required to file a return for a 
taxable year on any 1120 series form, or successor form, excluding S 
corporations.
    (3) Participation--(i) In general--(A) Listed transactions. A 
taxpayer has participated in a listed transaction if the taxpayer's tax 
return reflects tax consequences or a tax strategy described in the 
published guidance that lists the transaction under paragraph (b)(2) of 
this section. A taxpayer also has participated in a listed transaction 
if the taxpayer knows or has reason to know that the taxpayer's tax 
benefits are derived directly or indirectly from tax consequences or a 
tax strategy described in published guidance that lists a transaction 
under paragraph (b)(2) of this section. Published guidance may identify 
other types or classes of persons that will be treated as participants 
in a listed transaction. Published guidance also may identify types or 
classes of persons that will not be treated as participants in a listed 
transaction.
    (B) Confidential transactions. A taxpayer has participated in a 
confidential transaction if the taxpayer's tax return

[[Page 81]]

reflects a tax benefit from the transaction and the taxpayer's 
disclosure of the tax treatment or tax structure of the transaction is 
limited in the manner described in paragraph (b)(3) of this section. If 
a partnership's, S corporation's or trust's disclosure is limited, and 
the partner's, shareholder's, or beneficiary's disclosure is not 
limited, then the partnership, S corporation, or trust, and not the 
partner, shareholder, or beneficiary, has participated in the 
confidential transaction.
    (C) Transactions with contractual protection. A taxpayer has 
participated in a transaction with contractual protection if the 
taxpayer's tax return reflects a tax benefit from the transaction and, 
as described in paragraph (b)(4) of this section, the taxpayer has the 
right to the full or partial refund of fees or the fees are contingent. 
If a partnership, S corporation, or trust has the right to a full or 
partial refund of fees or has a contingent fee arrangement, and the 
partner, shareholder, or beneficiary does not individually have the 
right to the refund of fees or a contingent fee arrangement, then the 
partnership, S corporation, or trust, and not the partner, shareholder, 
or beneficiary, has participated in the transaction with contractual 
protection.
    (D) Loss transactions. A taxpayer has participated in a loss 
transaction if the taxpayer's tax return reflects a section 165 loss and 
the amount of the section 165 loss equals or exceeds the threshold 
amount applicable to the taxpayer as described in paragraph (b)(5)(i) of 
this section. If a taxpayer is a partner in a partnership, shareholder 
in an S corporation, or beneficiary of a trust and a section 165 loss as 
described in paragraph (b)(5) of this section flows through the entity 
to the taxpayer (disregarding netting at the entity level), the taxpayer 
has participated in a loss transaction if the taxpayer's tax return 
reflects a section 165 loss and the amount of the section 165 loss that 
flows through to the taxpayer equals or exceeds the threshold amounts 
applicable to the taxpayer as described in paragraph (b)(5)(i) of this 
section. For this purpose, a tax return is deemed to reflect the full 
amount of a section 165 loss described in paragraph (b)(5) of this 
section allocable to the taxpayer under this paragraph (c)(3)(i)(D), 
regardless of whether all or part of the loss enters into the 
computation of a net operating loss under section 172 or net capital 
loss under section 1212 that the taxpayer may carry back or carry over 
to another year.
    (E) Transactions of interest. A taxpayer has participated in a 
transaction of interest if the taxpayer is one of the types or classes 
of persons identified as participants in the transaction in the 
published guidance describing the transaction of interest.
    (F) [Reserved]
    (G) Shareholders of foreign corporations--(1) In general. A 
reporting shareholder of a foreign corporation participates in a 
transaction described in paragraphs (b)(2) through (5) and (b)(7) of 
this section if the foreign corporation would be considered to 
participate in the transaction under the rules of this paragraph (c)(3) 
if it were a domestic corporation filing a tax return that reflects the 
items from the transaction. A reporting shareholder of a foreign 
corporation participates in a transaction described in paragraph (b)(6) 
of this section only if the published guidance identifying the 
transaction includes the reporting shareholder among the types or 
classes of persons identified as participants. A reporting shareholder 
(and any successor in interest) is considered to participate in a 
transaction under this paragraph (c)(3)(i)(G) only for its first taxable 
year with or within which ends the first taxable year of the foreign 
corporation in which the foreign corporation participates in the 
transaction, and for the reporting shareholder's five succeeding taxable 
years.
    (2) Reporting shareholder. The term reporting shareholder means a 
United States shareholder (as defined in section 951(b)) in a controlled 
foreign corporation (as defined in section 957) or a 10 percent 
shareholder (by vote or value) of a qualified electing fund (as defined 
in section 1295).
    (ii) Examples. The following examples illustrate the provisions of 
paragraph (c)(3)(i) of this section:

    Example 1. Notice 2003-55 (2003-2 CB 395), which modified and 
superseded Notice 95-53 (1995-2 CB 334) (see Sec. 601.601(d)(2) of this 
chapter), describes a lease stripping transaction

[[Page 82]]

in which one party (the transferor) assigns the right to receive future 
payments under a lease of tangible property and treats the amount 
realized from the assignment as its current income. The transferor later 
transfers the property subject to the lease in a transaction intended to 
qualify as a transferred basis transaction, for example, a transaction 
described in section 351. The transferee corporation claims the 
deductions associated with the high basis property subject to the lease. 
The transferor's and transferee corporation's tax returns reflect tax 
positions described in Notice 2003-55. Therefore, the transferor and 
transferee corporation have participated in the listed transaction. In 
the section 351 transaction, the transferor will have received stock 
with low value and high basis from the transferee corporation. If the 
transferor subsequently transfers the high basis/low value stock to a 
taxpayer in another transaction intended to qualify as a transferred 
basis transaction and the taxpayer uses the stock to generate a loss, 
and if the taxpayer knows or has reason to know that the tax loss 
claimed was derived indirectly from the lease stripping transaction, 
then the taxpayer has participated in the listed transaction. 
Accordingly, the taxpayer must disclose the transaction and the manner 
of the taxpayer's participation in the transaction under the rules of 
this section. For purposes of this example, if a bank lends money to the 
transferor, transferee corporation, or taxpayer for use in their 
transactions, the bank has not participated in the listed transaction 
because the bank's tax return does not reflect tax consequences or a tax 
strategy described in the listing notice (nor does the bank's tax return 
reflect a tax benefit derived from tax consequences or a tax strategy 
described in the listing notice) nor is the bank described as a 
participant in the listing notice.
    Example 2. XYZ is a limited liability company treated as a 
partnership for tax purposes. X, Y, and Z are members of XYZ. X is an 
individual, Y is an S corporation, and Z is a partnership. XYZ enters 
into a confidential transaction under paragraph (b)(3) of this section. 
XYZ and X are bound by the confidentiality agreement, but Y and Z are 
not bound by the agreement. As a result of the transaction, XYZ, X, Y, 
and Z all reflect a tax benefit on their tax returns. Because XYZ's and 
X's disclosure of the tax treatment and tax structure are limited in the 
manner described in paragraph (b)(3) of this section and their tax 
returns reflect a tax benefit from the transaction, both XYZ and X have 
participated in the confidential transaction. Neither Y nor Z has 
participated in the confidential transaction because they are not 
subject to the confidentiality agreement.
    Example 3. P, a corporation, has an 80% partnership interest in PS, 
and S, an individual, has a 20% partnership interest in PS. P, S, and PS 
are calendar year taxpayers. In 2006, PS enters into a transaction and 
incurs a section 165 loss (that does not meet any of the exceptions to a 
section 165 loss identified in published guidance) of $12 million and 
offsetting gain of $3 million. On PS' 2006 tax return, PS includes the 
section 165 loss and the corresponding gain. PS must disclose the 
transaction under this section because PS' section 165 loss of $12 
million is equal to or greater than $2 million. P is allocated $9.6 
million of the section 165 loss and $2.4 million of the offsetting gain. 
P does not have to disclose the transaction under this section because 
P's section 165 loss of $9.6 million is not equal to or greater than $10 
million. S is allocated $2.4 million of the section 165 loss and 
$600,000 of the offsetting gain. S must disclose the transaction under 
this section because S's section 165 loss of $2.4 million is equal to or 
greater than $2 million.

    (4) Substantially similar. The term substantially similar includes 
any transaction that is expected to obtain the same or similar types of 
tax consequences and that is either factually similar or based on the 
same or similar tax strategy. Receipt of an opinion regarding the tax 
consequences of the transaction is not relevant to the determination of 
whether the transaction is the same as or substantially similar to 
another transaction. Further, the term substantially similar must be 
broadly construed in favor of disclosure. For example, a transaction may 
be substantially similar to a listed transaction even though it involves 
different entities or uses different Internal Revenue Code provisions. 
(See for example, Notice 2003-54 (2003-2 CB 363), describing a 
transaction substantially similar to the transactions in Notice 2002-50 
(2002-2 CB 98), and Notice 2002-65 (2002-2 CB 690).) The following 
examples illustrate situations where a transaction is the same as or 
substantially similar to a listed transaction under paragraph (b)(2) of 
this section. (Such transactions may also be reportable transactions 
under paragraphs (b)(3) through (7) of this section.) See 
Sec. 601.601(d)(2)(ii)(b) of this chapter. The following examples 
illustrate the provisions of this paragraph (c)(4):

    Example 1. Notice 2000-44 (2000-2 CB 255) (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter), sets forth a listed 
transaction involving offsetting options transferred to a partnership

[[Page 83]]

where the taxpayer claims basis in the partnership for the cost of the 
purchased options but does not adjust basis under section 752 as a 
result of the partnership's assumption of the taxpayer's obligation with 
respect to the options. Transactions using short sales, futures, 
derivatives or any other type of offsetting obligations to inflate basis 
in a partnership interest would be the same as or substantially similar 
to the transaction described in Notice 2000-44. Moreover, use of the 
inflated basis in the partnership interest to diminish gain that would 
otherwise be recognized on the transfer of a partnership asset would 
also be the same as or substantially similar to the transaction 
described in Notice 2000-44. See Sec. 601.601(d)(2)(ii)(b).
    Example 2. Notice 2001-16 (2001-1 CB 730) (see 
Sec. 601.601(d)(2)(ii)(b) of this chapter), sets forth a listed 
transaction involving a seller (X) who desires to sell stock of a 
corporation (T), an intermediary corporation (M), and a buyer (Y) who 
desires to purchase the assets (and not the stock) of T. M agrees to 
facilitate the sale to prevent the recognition of the gain that T would 
otherwise report. Notice 2001-16 describes M as a member of a 
consolidated group that has a loss within the group or as a party not 
subject to tax. Transactions utilizing different intermediaries to 
prevent the recognition of gain would be the same as or substantially 
similar to the transaction described in Notice 2001-16. An example is a 
transaction in which M is a corporation that does not file a 
consolidated return but which buys T stock, liquidates T, sells assets 
of T to Y, and offsets the gain on the sale of those assets with 
currently generated losses. See Sec. 601.601(d)(2)(ii)(b).

    (5) Tax. The term tax means Federal income tax.
    (6) Tax benefit. A tax benefit includes deductions, exclusions from 
gross income, nonrecognition of gain, tax credits, adjustments (or the 
absence of adjustments) to the basis of property, status as an entity 
exempt from Federal income taxation, and any other tax consequences that 
may reduce a taxpayer's Federal income tax liability by affecting the 
amount, timing, character, or source of any item of income, gain, 
expense, loss, or credit.
    (7) Tax return. The term tax return means a Federal income tax 
return and a Federal information return.
    (8) Tax treatment. The tax treatment of a transaction is the 
purported or claimed Federal income tax treatment of the transaction.
    (9) Tax structure. The tax structure of a transaction is any fact 
that may be relevant to understanding the purported or claimed Federal 
income tax treatment of the transaction.
    (d) Form and content of disclosure statement. A taxpayer required to 
file a disclosure statement under this section must file a completed 
Form 8886, ``Reportable Transaction Disclosure Statement'' (or a 
successor form), in accordance with this paragraph (d) and the 
instructions to the form. The Form 8886 (or a successor form) is the 
disclosure statement required under this section. The form must be 
attached to the appropriate tax return(s) as provided in paragraph (e) 
of this section. If a copy of a disclosure statement is required to be 
sent to the Office of Tax Shelter Analysis (OTSA) under paragraph (e) of 
this section, it must be sent in accordance with the instructions to the 
form. To be considered complete, the information provided on the form 
must describe the expected tax treatment and all potential tax benefits 
expected to result from the transaction, describe any tax result 
protection (as defined in Sec. 301.6111-3(c)(12) of this chapter) with 
respect to the transaction, and identify and describe the transaction in 
sufficient detail for the IRS to be able to understand the tax structure 
of the reportable transaction and the identity of all parties involved 
in the transaction. An incomplete Form 8886 (or a successor form) 
containing a statement that information will be provided upon request is 
not considered a complete disclosure statement. If the form is not 
completed in accordance with the provisions in this paragraph (d) and 
the instructions to the form, the taxpayer will not be considered to 
have complied with the disclosure requirements of this section. If a 
taxpayer receives one or more reportable transaction numbers for a 
reportable transaction, the taxpayer must include the reportable 
transaction number(s) on the Form 8886 (or a successor form). See 
Sec. 301.6111-3(d)(2) of this chapter.
    (e) Time of providing disclosure--(1) In general. The disclosure 
statement for a reportable transaction must be attached to the 
taxpayer's tax return for each taxable year for which a taxpayer 
participates in a reportable transaction. In addition, a disclosure 
statement for a reportable transaction must be attached to each amended 
return

[[Page 84]]

that reflects a taxpayer's participation in a reportable transaction. A 
copy of the disclosure statement must be sent to OTSA at the same time 
that any disclosure statement is first filed by the taxpayer pertaining 
to a particular reportable transaction. If a reportable transaction 
results in a loss which is carried back to a prior year, the disclosure 
statement for the reportable transaction must be attached to the 
taxpayer's application for tentative refund or amended tax return for 
that prior year. In the case of a taxpayer that is a partnership, an S 
corporation, or a trust, the disclosure statement for a reportable 
transaction must be attached to the partnership, S corporation, or 
trust's tax return for each taxable year in which the partnership, S 
corporation, or trust participates in the transaction under the rules of 
paragraph (c)(3)(i) of this section. If a taxpayer who is a partner in a 
partnership, a shareholder in an S corporation, or a beneficiary of a 
trust receives a timely Schedule K-1 less than 10 calendar days before 
the due date of the taxpayer's return (including extensions) and, based 
on receipt of the timely Schedule K-1, the taxpayer determines that the 
taxpayer participated in a reportable transaction within the meaning of 
paragraph (c)(3) of this section, the disclosure statement will not be 
considered late if the taxpayer discloses the reportable transaction by 
filing a disclosure statement with OTSA within 60 calendar days after 
the due date of the taxpayer's return (including extensions). The 
Commissioner in his discretion may issue in published guidance other 
provisions for disclosure under Sec. 1.6011-4.
    (2) Special rules--(i) Listed transactions and transactions of 
interest. In general, if a transaction becomes a listed transaction or a 
transaction of interest after the filing of a taxpayer's tax return 
(including an amended return) reflecting the taxpayer's participation in 
the listed transaction or transaction of interest and before the end of 
the period of limitations for assessment of tax for any taxable year in 
which the taxpayer participated in the listed transaction or transaction 
of interest, then a disclosure statement must be filed, regardless of 
whether the taxpayer participated in the transaction in the year the 
transaction became a listed transaction or a transaction of interest, 
with OTSA within 90 calendar days after the date on which the 
transaction became a listed transaction or a transaction of interest. 
The Commissioner also may determine the time for disclosure of listed 
transactions and transactions of interest in the published guidance 
identifying the transaction.
    (ii) Loss transactions. If a transaction becomes a loss transaction 
because the losses equal or exceed the threshold amounts as described in 
paragraph (b)(5)(i) of this section, a disclosure statement must be 
filed as an attachment to the taxpayer's tax return for the first 
taxable year in which the threshold amount is reached and to any 
subsequent tax return that reflects any amount of section 165 loss from 
the transaction.
    (3) Multiple disclosures. The taxpayer must disclose the transaction 
in the time and manner provided for under the provisions of this section 
regardless of whether the taxpayer also plans to disclose the 
transaction under other published guidance, for example, Sec. 1.6662-
3(c)(2).
    (4) Example. The following example illustrates the application of 
this paragraph (e):

    Example. In January of 2008, F, a calendar year taxpayer, enters 
into a transaction that at the time is not a listed transaction and is 
not a transaction described in any of the paragraphs (b)(3) through (7) 
of this section. All the tax benefits from the transaction are reported 
on F's 2008 tax return filed timely in April 2009. On May 2, 2011, the 
IRS publishes a notice identifying the transaction as a listed 
transaction described in paragraph (b)(2) of this section. Upon issuance 
of the May 2, 2011 notice, the transaction becomes a reportable 
transaction described in paragraph (b) of this section. The period of 
limitations on assessment for F's 2008 taxable year is still open. F is 
required to file Form 8886 for the transaction with OTSA within 90 
calendar days after May 2, 2011.

    (f) Rulings and protective disclosures--(1) Rulings. If a taxpayer 
requests a ruling on the merits of a specific transaction on or before 
the date that disclosure would otherwise be required under this section, 
and receives a favorable ruling as to the transaction, the disclosure 
rules under this section

[[Page 85]]

will be deemed to have been satisfied by that taxpayer with regard to 
that transaction, so long as the request fully discloses all relevant 
facts relating to the transaction which would otherwise be required to 
be disclosed under this section. If a taxpayer requests a ruling as to 
whether a specific transaction is a reportable transaction on or before 
the date that disclosure would otherwise be required under this section, 
the Commissioner in his discretion may determine that the submission 
satisfies the disclosure rules under this section for the taxpayer 
requesting the ruling for that transaction if the request fully 
discloses all relevant facts relating to the transaction which would 
otherwise be required to be disclosed under this section. The potential 
obligation of the taxpayer to disclose the transaction under this 
section will not be suspended during the period that the ruling request 
is pending.
    (2) Protective disclosures. If a taxpayer is uncertain whether a 
transaction must be disclosed under this section, the taxpayer may 
disclose the transaction in accordance with the requirements of this 
section and comply with all the provisions of this section, and indicate 
on the disclosure statement that the disclosure statement is being filed 
on a protective basis. The IRS will not treat disclosure statements 
filed on a protective basis any differently than other disclosure 
statements filed under this section. For a protective disclosure to be 
effective, the taxpayer must comply with these disclosure regulations by 
providing to the IRS all information requested by the IRS under this 
section.
    (g) Retention of documents. (1) In accordance with the instructions 
to Form 8886 (or a successor form), the taxpayer must retain a copy of 
all documents and other records related to a transaction subject to 
disclosure under this section that are material to an understanding of 
the tax treatment or tax structure of the transaction. The documents 
must be retained until the expiration of the statute of limitations 
applicable to the final taxable year for which disclosure of the 
transaction was required under this section. (This document retention 
requirement is in addition to any document retention requirements that 
section 6001 generally imposes on the taxpayer.) The documents may 
include the following:
    (i) Marketing materials related to the transaction;
    (ii) Written analyses used in decision-making related to the 
transaction;
    (iii) Correspondence and agreements between the taxpayer and any 
advisor, lender, or other party to the reportable transaction that 
relate to the transaction;
    (iv) Documents discussing, referring to, or demonstrating the 
purported or claimed tax benefits arising from the reportable 
transaction; and documents, if any, referring to the business purposes 
for the reportable transaction.
    (2) A taxpayer is not required to retain earlier drafts of a 
document if the taxpayer retains a copy of the final document (or, if 
there is no final document, the most recent draft of the document) and 
the final document (or most recent draft) contains all the information 
in the earlier drafts of the document that is material to an 
understanding of the purported tax treatment or tax structure of the 
transaction.
    (h) Effective/applicability date--(1) In general. This section 
applies to transactions entered into on or after August 3, 2007. 
However, this section applies to transactions of interest entered into 
on or after November 2, 2006. Paragraph (f)(1) of this section applies 
to ruling requests received on or after November 1, 2006. Otherwise, the 
rules that apply with respect to transactions entered into before August 
3, 2007, are contained in Sec. 1.6011-4 in effect prior to August 3, 
2007 (see 26 CFR part 1 revised as of April 1, 2007).
    (2) [Reserved]

[T.D. 9350, 72 FR 43149, Aug. 3, 2007, as amended at 75 FR 26061, May 
11, 2010]



Sec. 1.6011-5  Required use of magnetic media for corporate income
tax returns.

    The return of a corporation that is required to be filed on magnetic 
media under Sec. 301.6011-5 of this chapter must be filed in accordance 
with Internal Revenue Service revenue procedures,

[[Page 86]]

publications, forms, or instructions, including those posted 
electronically. (See Sec. 601.601(d)(2) of this chapter).

[T.D. 9364, 72 FR 63810, Nov. 13, 2007]



Sec. 1.6011-6  [Reserved]



Sec. 1.6011-7  Specified tax return preparers required to file 
individual income tax returns using magnetic media.

    Individual income tax returns that are required to be filed on 
magnetic media by tax return preparers under section 6011(e)(3) and 
Sec. 301.6011-7 of this chapter must be filed in accordance with 
Internal Revenue Service regulations, revenue procedures, revenue 
rulings, publications, forms or instructions, including those posted 
electronically.

[T.D. 9518, 76 FR 17528, Mar. 30, 2011]



Sec. 1.6011-8  Requirement of income tax return for taxpayers who 
claim the premium tax credit under section 36B.

    (a) Requirement of return. Except as otherwise provided in this 
paragraph (a), a taxpayer who receives the benefit of advance payments 
of the premium tax credit under section 36B must file an income tax 
return for that taxable year on or before the due date for the return 
(including extensions of time for filing) and reconcile the advance 
credit payments. However, if advance credit payments are made for 
coverage of an individual for whom no taxpayer claims a personal 
exemption deduction, the taxpayer who attests to the Exchange to the 
intention to claim a personal exemption deduction for the individual as 
part of the determination that the taxpayer is eligible for advance 
credit payments must file a tax return and reconcile the advance credit 
payments.
    (b) Effective/applicability date. Except as otherwise provided, this 
section applies for taxable years beginning after December 31, 2016. 
Paragraph (a) of Sec. 1.6011-8 as contained in 26 CFR part I edition 
revised as of April 1, 2016, applies to taxable years ending after 
December 31, 2013, and beginning before January 1, 2017.

[T.D. 9804, 81 FR 91768, Dec. 19, 2016]



Sec. 1.6012-1  Individuals required to make returns of income.

    (a) Individual citizen or resident--(1) In general. Except as 
provided in subparagraph (2) of this paragraph, an income tax return 
must be filed by every individual for each taxable year beginning before 
January 1, 1973, during which he receives $600 or more of gross income, 
and for each taxable year beginning after December 31, 1972, during 
which he receives $750 or more of gross income, if such individual is:
    (i) A citizen of the United States, whether residing at home or 
abroad,
    (ii) A resident of the United States even though not a citizen 
thereof, or
    (iii) An alien bona fide resident of Puerto Rico or any section 931 
possession, as defined in Sec. 1.931-1(c)(1), during the entire taxable 
year
    (2) Special rules. (i) For taxable years beginning before January 1, 
1970, an individual who is described in subparagraph (1) of this 
paragraph and who has attained the age of 65 before the close of his 
taxable year must file an income tax return only if he receives $1,200 
or more of gross income during his taxable year.
    (ii) For taxable years beginning after December 31, 1969, and before 
January 1, 1973, an individual described in subparagraph (1) of this 
paragraph (other than an individual referred to in section 142(b)):
    (a) Who is not married (as determined by applying section 143(a) and 
the regulations thereunder) must file an income tax return only if he 
receives $1,700 or more of gross income during his taxable year, except 
that if such an individual has attained the age of 65 before the close 
of his taxable year an income tax return must be filed by such 
individual only if he receives $2,300 or more of gross income during his 
taxable year.
    (b) Who is entitled to make a joint return under section 6013 and 
the regulations thereunder must file an income tax return only if his 
gross income received during his taxable year, when combined with the 
gross income of his spouse received during his taxable year, is $2,300 
or more. However, if such individual or his spouse has attained the age 
of 65 before the close of the taxable year an income tax return must be

[[Page 87]]

filed by such individual only if their combined gross income is $2,900 
or more. If both the individual and his spouse have attained the age of 
65 before the close of the taxable year such return must be filed only 
if their combined gross income is $3,500 or more. However, this 
subdivision (ii)(b) shall not apply if the individual and his spouse did 
not have the same household as their home at the close of their taxable 
year, if such spouse files a separate return for a taxable year which 
includes any part of such individual's taxable year, or if any other 
taxpayer is entitled to an exemption for such individual or his spouse 
under section 151(e) for such other taxpayer's taxable year beginning in 
the calendar year in which such individual's taxable year begins. For 
example, a married student more than half of whose support is furnished 
by his father must file an income tax return if he receives $600 or more 
of gross income during his taxable year.
    (iii) For taxable years beginning after December 31, 1972, an 
individual described in subparagraph (1) of this paragraph (other than 
an individual referred to in section 142(b)):
    (a) Who is not married (as determined by applying section 143(a) and 
the regulations thereunder) must file an income tax return only if he 
receives $1,750 or more of gross income during his taxable year, except 
that if such an individual has attained the age of 65 before the close 
of his taxable year an income tax return must be filed by such 
individual only if he receives $2,500 or more of gross income during his 
taxable year.
    (b) Who is entitled to make a joint return under section 6013 and 
the regulations thereunder must file an income tax return only if his 
gross income received during his taxable year, when combined with the 
gross income of his spouse received during his taxable year, is $2,500 
or more. However, if such individual or his spouse has attained the age 
of 65 before the close of the taxable year an income tax return must be 
filed by such individual only if their combined gross income is $3,250 
or more. If both the individual and his spouse attain the age of 65 
before the close of the taxable year such return must be filed only if 
their combined gross income is $4,000 or more. However, this subdivision 
(iii)(b) shall not apply if the individual and his spouse did not have 
the same household as their home at the close of their taxable year, if 
such spouse files a separate return for a taxable year which includes 
any part of such individual's taxable year, or if any other taxpayer is 
entitled to an exemption for the taxpayer or his spouse under section 
151(e) for such other taxpayer's taxable year beginning in the calendar 
year in which such individual's taxable year begins. For example, a 
married student more than half of whose support is furnished by his 
father must file an income tax return if he receives $750 or more of 
gross income during the taxable year.
    (iv) For purposes of section 6012(a)(1)(A)(ii) and subdivisions 
(ii)(b) and (iii)(b) of this subparagraph, an individual and his spouse 
are considered to have the same household as their home at the close of 
a taxable year if the same household constituted the principal place of 
abode of both the individual and his spouse at the close of such taxable 
year (or on the date of death, if the individual or his spouse died 
within the taxable year). The individual and his spouse will be 
considered to have the same household as their home at the close of the 
taxable year notwithstanding a temporary absence from the household due 
to special circumstances, as, for example, in the case of a nonpermanent 
failure on the part of the individual and his spouse to have a common 
abode by reason of illness, education, business, vacation, or military 
service. For example, A, a calendar-year individual under 65 years of 
age, is married to B, also under 65 years of age, and is a member of the 
Armed Forces of the United States. During 1970 A is transferred to an 
overseas base. A and B give up their home, which they had jointly 
occupied until that time; B moves to the home of her parents for the 
duration of A's absence. They fully intend to set up a new joint 
household upon A's return. Neither A nor B must file a return for 1970 
if their combined gross income for the year is less than $2,300 and if 
no other taxpayer is entitled to a dependency exemption for A or B under 
section 151(e).

[[Page 88]]

    (v) In the case of a short taxable year referred to in section 
443(a)(1), an individual described in subparagraph (1) of this paragraph 
shall file an income tax return if his gross income received during such 
short taxable year equals or exceeds his own personal exemption allowed 
by section 151(b) (prorated as provided in section 443(c)) and, when 
applicable, his additional exemption for age 65 or more allowed by 
section 151(c)(1) (prorated as provided in section 443(c)).
    (vi) For rules relating to returns required to be made by every 
individual who is liable for one or more qualified State individual 
income taxes, as defined in section 6362, for a taxable year, see 
paragraph (b) of Sec. 301.6361-1 of this chapter (Regulations on 
Procedure and Administration).
    (vii) For taxable years beginning after December 31, 1978, an 
individual who receives payments during the calendar year in which the 
taxable year begins under section 3507 (relating to advance payment of 
earned income credit) must file an income tax return.
    (viii) For rules relating to returns required of taxpayers who 
receive advance payments of the premium tax credit under section 36B, 
see Sec. 1.6011-8(a).
    (3) Earned income from without the United States and gain from sale 
of residence. For the purpose of determining whether an income tax 
return must be filed for any taxable year beginning after December 31, 
1957, gross income shall be computed without regard to the exclusion 
provided for in section 911 (relating to earned income from sources 
without the United States). For the purpose of determining whether an 
income tax return must be filed for any taxable year ending after 
December 31, 1963, gross income shall be computed without regard to the 
exclusion provided for in section 121 (relating to sale of residence by 
individual who has attained age 65). In the case of an individual 
claiming an exclusion under section 121, he shall attach Form 2119 to 
the return required under this paragraph and in the case of an 
individual claiming an exclusion under section 911, he shall attach Form 
2555 to the return required under this paragraph.
    (4) Return of income of minor. A minor is subject to the same 
requirements and elections for making returns of income as are other 
individuals. Thus, for example, for a taxable year beginning after 
December 31, 1972, a return must be made by or for a minor who has an 
aggregate of $1,750 of gross income from funds held in trust for him and 
from his personal services, regardless of the amount of his taxable 
income. The return of a minor must be made by the minor himself or must 
be made for him by his guardian or other person charged with the care of 
the minor's person or property. See paragraph (b)(3) of Sec. 1.6012-3. 
See Sec. 1.73-1 for inclusion in the minor's gross income of amounts 
received for his personal services. For the amount of tax which is 
considered to have been properly assessed against the parent, if not 
paid by the child, see section 6201(c) and paragraph (c) of 
Sec. 301.6201-1 of this chapter (Regulations on Procedure and 
Administration).
    (5) Returns made by agents. The return of income may be made by an 
agent if, by reason of disease or injury, the person liable for the 
making of the return is unable to make it. The return may also be made 
by an agent if the taxpayer is unable to make the return by reason of 
continuous absence from the United States (including Puerto Rico as if a 
part of the United States) for a period of at least 60 days prior to the 
date prescribed by law for making the return. In addition, a return may 
be made by an agent if the taxpayer requests permission, in writing, of 
the district director for the internal revenue district in which is 
located the legal residence or principal place of business of the person 
liable for the making of the return, and such district director 
determines that good cause exists for permitting the return to be so 
made. However, assistance in the preparation of the return may be 
rendered under any circumstances. Whenever a return is made by an agent 
it must be accompanied by a power of attorney (or copy thereof) 
authorizing him to represent his principal in making, executing, or 
filing the return. A form 2848, when properly completed, is sufficient. 
In addition, where one spouse is physically unable by reason of disease

[[Page 89]]

or injury to sign a joint return, the other spouse may, with the oral 
consent of the one who is incapacitated, sign the incapacitated spouse's 
name in the proper place on the return followed by the words ``By 
__________ Husband (or Wife),'' and by the signature of the signing 
spouse in his own right, provided that a dated statement signed by the 
spouse who is signing the return is attached to and made a part of the 
return stating:
    (i) The name of the return being filed,
    (ii) The taxable year,
    (iii) The reason for the inability of the spouse who is 
incapacitated to sign the return, and
    (iv) That the spouse who is incapacitated consented to the signing 
of the return.


The taxpayer and his agent, if any, are responsible for the return as 
made and incur liability for the penalties provided for erroneous, 
false, or fraudulent returns.
    (6) Form of return. Form 1040 is prescribed for general use in 
making the return required under this paragraph. Form 1040A is an 
optional short form which, in accordance with paragraph (a)(7) of this 
section, may be used by certain taxpayers. A taxpayer otherwise entitled 
to use Form 1040A as his return for any taxable year may not make his 
return on such form if he elects not to take the standard deduction 
provided in section 141, and in such case he must make his return on 
Form 1040. For taxable years beginning before January 1, 1970, a 
taxpayer entitled under section 6014 and Sec. 1.6014-1 to elect not to 
show his tax on his return must, if he desires to exercise such 
election, make his return on Form 1040A. Form 1040W is an optional short 
form which, in accordance with paragraph (a)(8) of this section, may be 
used only with respect to taxable years beginning after December 31, 
1958, and ending before December 31, 1961.
    (7)(i) Use of Form 1040A. Form 1040A may be filed only by those 
individuals entitled to use such form as provided by and in accordance 
with the instructions for such form.
    (ii) Computation and payment of tax. Unless a taxpayer is entitled 
to elect under section 6014 and Sec. 1.6014-1 not to show the tax on 
Form 1040A and does so elect, he shall compute and show on his return on 
Form 1040A the amount of the tax imposed by subtitle A of the Code and 
shall, without notice and demand therefor, pay any unpaid balance of 
such tax not later than the date fixed for filing the return.
    (iii) Change of election to use Form 1040A. A taxpayer who has 
elected to make his return on Form 1040A may change such election. Such 
change of election shall be within the time and subject to the 
conditions prescribed in section 144(b) and Sec. 1.144-2 relating to 
change of election to take, or not to take the standard deduction.
    (8) Use of Form 1040W for certain taxable years--(i) In general. An 
individual may use Form 1040W as his return for any taxable year 
beginning after December 31, 1958, and ending before December 31, 1961, 
in which the gross income of the individual, regardless of the amount 
thereof:
    (a) Consists entirely of remuneration for personal services 
performed as an employee (whether or not such remuneration constitutes 
wages as defined in section 3401(a)), dividends, or interest, and
    (b) Does not include more than $200 from dividends and interest.


For purposes of determining whether gross income from dividends and 
interest exceeds $200, dividends from domestic corporations are taken 
into account to the extent that they are includible in gross income. For 
purposes of this subparagraph, any reference to Form 1040 in Secs. 1.4-
2, 1.142-1, and 1.144-1 and this section shall also be deemed a 
reference to Form 1040W.
    (ii) Change of election to use Form 1040W. A taxpayer who has 
elected to make his return on Form 1040W may change such election. Such 
change of election shall be within the time and subject to the 
conditions prescribed in section 144(b) and Sec. 1.144-2, relating to 
change of election to take, or not to take, the standard deduction.
    (iii) Joint return of husband and wife on Form 1040W. A husband and 
wife, eligible under section 6013 and the regulations thereunder to file 
a joint return for the taxable year, may, subject to the provisions of 
this subparagraph, make a joint return on Form 1040W for

[[Page 90]]

any taxable year beginning after December 31, 1958, and ending before 
December 31, 1961, in which the aggregate gross income of the spouses 
(regardless of amount) consists entirely of remuneration for personal 
services performed as an employee (whether or not such remuneration 
constitutes wages as defined in section 3401(a)), dividends, or 
interest, and does not include more than $200 from dividends and 
interest. For purposes of determining whether gross income from sources 
to which the $200 limitation applies exceeds such amount in cases where 
both spouses receive dividends from domestic corporations, the amount of 
such dividends received by each spouse is taken into account to the 
extent that such dividends are includible in gross income. See section 
116 and Secs. 1.116-1 and 1.116-2. If a joint return is made by husband 
and wife on Form 1040W, the liability for the tax shall be joint and 
several.
    (9) Items of tax preference. For a taxable year ending after 
December 31, 1969, an individual shall attach Form 4625 to the return 
required by this paragraph if during the year the individual:
    (i) Has items of tax preference (described in section 57) in excess 
of its minimum tax exemption (determined under Sec. 1.58-1) or
    (ii) Uses a net operating loss carryover from a prior taxable year 
in which it deferred minimum tax under section 56(b).
    (b) Return of nonresident alien individual--(1) Requirement of 
return--(i) In general. Except as otherwise provided in subparagraph (2) 
of this paragraph, every nonresident alien individual (other than one 
treated as a resident under section 6013 (g) or (h)) who is engaged in 
trade or business in the United States at any time during the taxable 
year or who has income which is subject to taxation under subtitle A of 
the Code shall make a return on Form 1040NR. For this purpose it is 
immaterial that the gross income for the taxable year is less than the 
minimum amount specified in section 6012(a) for making a return. Thus, a 
nonresident alien individual who is engaged in a trade or business in 
the United States at any time during the taxable year is required to 
file a return on Form 1040 NR even though (a) he has no income which is 
effectively connected with the conduct of a trade or business in the 
United States, (b) he has no income from sources within the United 
States, or (c) his income is exempt from income tax by reason of an 
income tax convention or any section of the Code. However, if the 
nonresident alien individual has no gross income for the taxable year, 
he is not required to complete the return schedules but must attach a 
statement to the return indicating the nature of any exclusions claimed 
and the amount of such exclusions to the extent such amounts are readily 
determinable.
    (ii) Treaty income. If the gross income of a nonresident alien 
individual includes treaty income, as defined in paragraph (b)(1) of 
Sec. 1.871-12, a statement shall be attached to the return on Form 
1040NR showing with respect to that income:
    (a) The amounts of tax withheld,
    (b) The names and post office addresses of withholding agents, and
    (c) Such other information as may be required by the return form, or 
by the instructions issued with respect to the form, to show the 
taxpayer's entitlement to the reduced rate of tax under the tax 
convention.
    (2) Exceptions--(i) Return not required when tax is fully paid at 
source. A nonresident alien individual (other than one treated as a 
resident under section 6013 (g) or (h)) who at no time during the 
taxable year is engaged in a trade or business in the United States is 
not required to make a return for the taxable year if his tax liability 
for the taxable year is fully satisfied by the withholding of tax at 
source under chapter 3 of the Code. This subdivision does not apply to a 
nonresident alien individual who has income for the taxable year which 
is treated under section 871 (c) or (d) and Sec. 1.871-9 (relating to 
students or trainees) or Sec. 1.871-10 (relating to real property 
income) as income which is effectively connected for the taxable year 
with the conduct of a trade or business in the United States by that 
individual, or to a nonresident alien individual making a claim under 
Sec. 301.6402-3 of this chapter (Procedure and Administration 
Regulations) for the refund of an overpayment of tax for

[[Page 91]]

the taxable year. In addition, this subdivision does not apply to a 
nonresident alien individual who has income for the taxable year that is 
treated under section 871(b)(1) as effectively connected with the 
conduct of a trade or business within the United States by reason of the 
operation of section 897. For purposes of this subdivision, some of the 
items of income from sources within the United States upon which the tax 
liability will not have been fully satisfied by the withholding of tax 
at source under chapter 3 of the Code are:
    (a) Interest upon so-called tax-free covenant bonds upon which, in 
accordance with section 1451 and Sec. 1.1451-1, a tax of only 2 percent 
is required to be withheld at the source,
    (b) In the case of bonds or other evidences of indebtedness issued 
after September 28, 1965, amounts described in section 871(a)(1)(C),
    (c) Capital gains described in section 871(a)(2) and paragraph (d) 
of Sec. 1.871-7, and
    (d) Accrued interest received in connection with the sale of bonds 
between interest dates, which, in accordance with paragraph (h) of 
Sec. 1.1441-4, is not subject to withholding of tax at the source.
    (ii) Return of individual for taxable year of change of U.S. 
citizenship or residence--(a) If an alien individual becomes a citizen 
or resident of the United States during the taxable year and is a 
citizen or resident of the United States on the last day of such year, 
he must make a return on Form 1040 for the taxable year. However, a 
separate schedule is required to be attached to this return to show the 
income tax computation for the part of the taxable year during which the 
alien was neither a citizen nor resident of the United States, unless an 
election under section 6013 (g) or (h) is in effect for the alien. A 
Form 1040NR, clearly marked ``Statement'' across the top, may be used as 
such a separate schedule.
    (b) If an individual abandons his U.S. citizenship or residence 
during the taxable year and is not a citizen or resident of the United 
States on the last day of such year, he must make a return on Form 
1040NR for the taxable year, even if an election under section 6013(g) 
was in effect for the taxable year preceding the year of abandonment. 
However, a separate schedule is required to be attached to this return 
to show the income tax computation for the part of the taxable year 
during which the individual was a citizen or resident of the United 
States. A Form 1040, clearly marked ``Statement'' across the top, may be 
used as such a separate schedule.
    (c) A return is required under this subdivision (ii) only if the 
individual is otherwise required to make a return for the taxable year.
    (iii) Beneficiaries of estates or trusts. A nonresident alien 
individual who is a beneficiary of an estate or trust which is engaged 
in trade or business in the United States is not required to make a 
return for the taxable year merely because he is deemed to be engaged in 
trade or business within the United States under section 875(2). 
However, such nonresident alien beneficiary will be required to make a 
return if he otherwise satisfies the conditions of subparagraph (1)(i) 
of this paragraph for making a return.
    (iv) Certain alien residents of Puerto Rico. This paragraph does not 
apply to a nonresident alien individual who is a bona fide resident of 
Puerto Rico during the taxable year. See section 876 and paragraph 
(a)(1)(iii) of this section.
    (3) Representative or agent for nonresident alien individual--(i) 
Cases where power of attorney is not required. The responsible 
representative or agent within the United States of a nonresident alien 
individual shall make on behalf of his nonresident alien principal a 
return of, and shall pay the tax on, all income coming within his 
control as representative or agent which is subject to the income tax 
under subtitle A of the Code. The agency appointment will determine how 
completely the agent is substituted for the principal for tax purposes. 
Any person who collects interest or dividends on deposited securities of 
a nonresident alien individual, executes ownership certificates in 
connection therewith, or sells such securities under special 
instructions shall not be deemed merely by reason of such acts to be the 
responsible representative or agent of the nonresident

[[Page 92]]

alien individual. If the responsible representative or agent does not 
have a specific power of attorney from the nonresident alien individual 
to file a return in his behalf, the return shall be accompanied by a 
statement to the effect that the representative or agent does not 
possess specific power of attorney to file a return for such individual 
but that the return is being filed in accordance with the provisions of 
this subdivision.
    (ii) Cases where power of attorney is required. Whenever a return of 
income of a nonresident alien individual is made by an agent acting 
under a duly authorized power of attorney for that purpose, the return 
shall be accompanied by the power of attorney in proper form, or a copy 
thereof, specifically authorizing him to represent his principal in 
making, executing, and filing the income tax return. Form 2848 may be 
used for this purpose. The agent, as well as the taxpayer, may incur 
liability for the penalties provided for erroneous, false, or fraudulent 
returns. For the requirements regarding signing of returns, see 
Sec. 1.6061-1. The rules of paragraph (e) of Sec. 601.504 of this 
chapter (Statement of Procedural Rules) shall apply under this 
subparagraph in determining whether a copy of a power of attorney must 
be certified.
    (iii) Limitation. A return of income shall be required under this 
subparagraph only if the nonresident alien individual is otherwise 
required to make a return in accordance with this paragraph.
    (4) Disallowance of deductions and credits. For provisions 
disallowing deductions and credits when a return of income has not been 
filed by or on behalf of a nonresident alien individual, see section 
874(a) and the regulations thereunder.
    (5) Effective date. This paragraph shall apply for taxable years 
beginning after December 31, 1966, except that it shall not be applied 
to require (i) the filing of a return for any taxable year ending before 
January 1, 1974, which, pursuant to instructions applicable to the 
return, is not required to be filed or (ii) the amendment of a return 
for such a taxable year which, pursuant to such instructions, is 
required to be filed. For corresponding rules applicable to taxable 
years beginning before January 1, 1967, see 26 CFR 1.6012-1(b) (Revised 
as of January 1, 1967).
    (c) Cross reference. For returns by fiduciaries for individuals, 
estates, and trusts, see Sec. 1.6012-3.

(Sec. 1445 (98 Stat. 655; 26 U.S.C. 1445), sec. 6012 (68A Stat. 732; 26 
U.S.C. 6012), and 7805 (68A Stat. 917; 26 U.S.C. 7805) of the Internal 
Revenue Code of 1954)

[T.D. 6500, 25 FR 12108, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting 
Sec. 1.6012-1, see the List of CFR Sections Affected, which appears in 
the Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 1.6012-2  Corporations required to make returns of income.

    (a) In general--(1) Requirement of return. Except as provided in 
paragraphs (e) and (g)(1) of this section with respect to charitable and 
other organizations having unrelated business income and to certain 
foreign corporations, respectively, every corporation, as defined in 
section 7701(a)(3), subject to taxation under subtitle A of the Code 
shall make a return of income regardless of whether it has taxable 
income or regardless of the amount of its gross income.
    (2) Existence of corporation. A corporation in existence during any 
portion of a taxable year is required to make a return. If a corporation 
was not in existence throughout an annual accounting period (either 
calendar year or fiscal year), the corporation is required to make a 
return for that fractional part of a year during which it was in 
existence. A corporation is not in existence after it ceases business 
and dissolves, retaining no assets, whether or not under State law it 
may thereafter be treated as continuing as a corporation for certain 
limited purposes connected with winding up its affairs, such as for the 
purpose of suing and being sued. If the corporation has valuable claims 
for which it will bring suit during this period, it has retained assets 
and therefore continues in existence. A corporation does not go out of 
existence if it is turned over to receivers or trustees who continue to 
operate it. If a corporation has received a charter but has never 
perfected its organization and has transacted no business and has no

[[Page 93]]

income from any source, it may upon presentation of the facts to the 
district director be relieved from the necessity of making a return. In 
the absence of a proper showing of such facts to the district director, 
a corporation will be required to make a return.
    (3) Form of return. The return required of a corporation under this 
section shall be made on Form 1120 unless the corporation is a type for 
which a special form is prescribed. The special forms of returns and 
schedules required of particular types of corporations are set forth in 
paragraphs (b) to (g), inclusive, of this section.
    (4) Disclosure of uncertain tax positions. A corporation required to 
make a return under this section shall attach Schedule UTP, Uncertain 
Tax Position Statement, or any successor form, to such return, in 
accordance with forms, instructions, or other appropriate guidance 
provided by the IRS.
    (5) Effective/applicability date. Paragraph (a)(4) of this section 
applies to returns filed for tax years beginning on or after January 1, 
2010.
    (b) Personal holding companies. A personal holding company, as 
defined in section 542, including a foreign corporation within the 
definition of such section, shall attach Schedule PH, Computation of 
U.S. Personal Holding Company Tax, to the return required by paragraph 
(a) or (g), as the case may be, of this section.
    (c) Insurance companies--(1) Domestic life insurance companies--(i) 
In general. A life insurance company subject to tax under section 801 
shall make a return on Form 1120-L, ``U.S. Life Insurance Company Income 
Tax Return.'' Except as provided in paragraph (c)(4) of this section, 
such company shall file with its return--
    (A) A copy of its annual statement which shows the reserves used by 
the company in computing the taxable income reported on its return; and
    (B) A copy of Schedule A (real estate) and of Schedule D (bonds and 
stocks), or any successor thereto, of such annual statement.
    (ii) Mutual savings banks. Mutual savings banks conducting life 
insurance business and meeting the requirements of section 594 are 
subject to partial tax computed on Form 1120, ``U.S. Corporation Income 
Tax Return,'' and partial tax computed on Form 1120-L. The Form 1120-L 
is attached as a schedule to Form 1120, together with the annual 
statement and schedules required to be filed with Form 1120-L.
    (2) Domestic nonlife insurance companies. Every domestic insurance 
company other than a life insurance company shall make a return on Form 
1120-PC, ``U.S. Property and Casualty Insurance Company Income Tax 
Return.'' This includes organizations described in section 501(m)(1) 
that provide commercial-type insurance and organizations described in 
section 833. Except as provided in paragraph (c)(4) of this section, 
such company shall file with its return a copy of its annual statement 
(or a pro forma annual statement), including the underwriting and 
investment exhibit (or any successor thereto) for the year covered by 
such return.
    (3) Foreign insurance companies. The provisions of paragraphs (c)(1) 
and (c)(2) of this section concerning the returns and statements of 
insurance companies subject to tax under section 801 or section 831 also 
apply to foreign insurance companies subject to tax under those 
sections, except that the copy of the annual statement required to be 
submitted with the return shall, in the case of a foreign insurance 
company that is not required to file an annual statement, be a copy of 
the pro forma annual statement relating to the United States business of 
such company.
    (4) Exception for insurance companies filing their Federal income 
tax returns electronically. If an insurance company described in 
paragraph (c)(1), (c)(2), or (c)(3) of this section files its Federal 
income tax return electronically, it should not include on or with such 
return its annual statement (or pro forma annual statement), or any 
portion thereof. Such statement must be available at all times for 
inspection by authorized Internal Revenue Service officers or employees 
and retained for so long as such statements may be material in the 
administration of any internal revenue law. See Sec. 1.6001-1(e).
    (5) Definition. For purposes of this section, the term annual 
statement means the annual statement, the form

[[Page 94]]

of which is approved by the National Association of Insurance 
Commissioners (NAIC), which is filed by an insurance company for the 
year with the insurance departments of States, Territories, and the 
District of Columbia. The term annual statement also includes a pro 
forma annual statement if the insurance company is not required to file 
the NAIC annual statement.
    (d) Affiliated groups. For the forms to be used by affiliated 
corporations filing a consolidated return, see Sec. 1.1502-75.
    (e) Charitable and other organizations with unrelated business 
income. Every organization described in section 511(a)(2) which is 
subject to the tax imposed by section 511(a)(1) on its unrelated 
business taxable income shall make a return on Form 990-T for each 
taxable year if it has gross income, included in computing unrelated 
business taxable income for such taxable year, of $1,000 or more. The 
filing of a return of unrelated business income does not relieve the 
organization of the duty of filing other required returns.
    (f) Subchapter T cooperatives--(1) In general. For taxable years 
ending on or after December 31, 2007, a cooperative organization 
described in section 1381 (including a farmers' cooperative exempt from 
tax under section 521) is required to make a return, whether or not it 
has taxable income and regardless of the amount of its gross income, on 
Form 1120-C, ``U.S. Income Tax Return for Cooperative Associations,'' or 
such other form as may be designated by the Commissioner.
    (2) Farmers' cooperatives. For taxable years ending before December 
31, 2007, a farmers' cooperative organization described in section 
521(b)(1) (including a farmers' cooperative that is not exempt from tax 
under section 521) is required to make a return on Form 990-C, 
``Farmers' Cooperative Association Income Tax Return.''
    (3) Effective/applicability date. This paragraph (f) is applicable 
on or after July 30, 2007.
    (g) Returns by foreign corporations--(1) Requirement of return--(i) 
In general. Except as otherwise provided in subparagraph (2) of this 
paragraph, every foreign corporation which is engaged in trade or 
business in the United States at any time during the taxable year or 
which has income which is subject to taxation under subtitle A of the 
Code (relating to income taxes) shall make a return on Form 1120-F. 
Thus, for example, a foreign corporation which is engaged in trade or 
business in the United States at any time during the taxable year is 
required to file a return on Form 1120-F even though (a) it has no 
income which is effectively connected with the conduct of a trade or 
business in the United States, (b) it has no income from sources within 
the United States, or (c) its income is exempt from income tax by reason 
of an income tax convention or any section of the Code. However, if the 
foreign corporation has no gross income for the taxable year, it is not 
required to complete the return schedules but must attach a statement to 
the return indicating the nature of any exclusions claimed and the 
amount of such exclusions to the extent such amounts are readily 
determinable.
    (ii) Treaty income. If the gross income of a foreign corporation 
includes treaty income, as defined in paragraph (b)(1) of Sec. 1.871-12, 
a statement shall be attached to the return on Form 1120-F showing with 
respect to that income:
    (a) The amounts of tax withheld,
    (b) The names and post office addresses of withholding agents, and
    (c) Such other information as may be required by the return form or 
by the instructions issued with respect to the form, to show the 
taxpayer's entitlement to the reduced rate of tax under the tax 
convention.
    (iii) Balance sheet and reconciliation of income. At the election of 
the taxpayer, the balance sheets and reconciliation of income, as shown 
on Form 1120-F, may be limited to:
    (a) The assets of the corporation located in the United States and 
to its other assets used in the trade or business conducted in the 
United States, and
    (b) Its income effectively connected with the conduct of a trade or 
business in the United States and its other income from sources within 
the United States.
    (2) Exceptions--(i) Return not required when tax is fully paid at 
source--(a) In general. A foreign corporation which at

[[Page 95]]

no time during the taxable year is engaged in a trade or business in the 
United States is not required to make a return for the taxable year if 
its tax liability for the taxable year is fully satisfied by the 
withholding of tax at source under chapter 3 of the Code. For purposes 
of this subdivision, some of the items of income from sources within the 
United States upon which the tax liability will not have been fully 
satisfied by the withholding of tax at source under chapter 3 of the 
Code are:
    (1) Interest upon so-called tax-free covenant bonds upon which, in 
accordance with section 1451 and Sec. 1.1451-1, a tax of only 2 percent 
is required to be withheld at source,
    (2) In the case of bonds or other evidence of indebtedness issued 
after September 25, 1965, amounts described in section 881(a)(3),
    (3) Accrued interest received in connection with the sale of bonds 
between interest dates, which, in accordance with paragraph (h) of 
Sec. 1.1441-4, is not subject to withholding of tax at source.
    (b) Corporations not included. This subdivision (i) shall not apply:
    (1) To a foreign corporation which has income for the taxable year 
which is treated under section 882(d) or (e) and Sec. 1.882-2 as income 
which is effectively connected for the taxable year with the conduct of 
a trade or business in the United States by that corporation,
    (2) To a foreign corporation making a claim under Sec. 301.6402-3 of 
this chapter (Procedure and Administration Regulations) for the refund 
of an overpayment of tax for the taxable year, or
    (3) To a foreign corporation described in paragraph (c)(2)(i) of 
Sec. 1.532-1 whose accumulated taxable income for the taxable year is 
determined under paragraph (b)(2) of Sec. 1.535-1.
    (ii) Beneficiaries of estates or trusts. A foreign corporation which 
is a beneficiary of an estate or trust which is engaged in trade or 
business in the United States is not required to make a return for the 
taxable year merely because it is deemed to be engaged in trade or 
business within the United States under section 875(2). However, such 
foreign corporation will be required to make a return if it otherwise 
satisfies the conditions of subparagraph (1)(i) of this paragraph for 
making a return.
    (iii) Special returns and schedules. The provisions of paragraphs 
(b) through (f) of this section shall apply to a foreign corporation 
except that a foreign corporation which is an insurance company to which 
paragraph (c)(3) of this section applies shall make a return on Form 
1120-F and not on Form 1120. If a foreign corporation which is an 
insurance company to which paragraph (c) (1) or (2) of this section 
applies has income for the taxable year from sources within the United 
States which is not effectively connected for that year with the conduct 
of a trade or business in the United States by that corporation, the 
corporation shall attach to its return on Form 1120L or 1120M, as the 
case may be, a separate schedule showing the nature and amount of the 
items of such income, the rate of tax applicable thereto, and the amount 
of tax withheld therefrom under chapter 3 of the Code.
    (3) Representative or agent for foreign corporation--(i) Cases where 
power of attorney is not required. The responsible representative or 
agent within the United States of a foreign corporation shall make on 
behalf of his principal a return of, and shall pay the tax on, all 
income coming within his control as representative or agent which is 
subject to the income tax under subtitle A of the Code. The agency 
appointment will determine how completely the agent is substituted for 
the principal for tax purposes. Any person who collects interest or 
dividends on deposited securities of a foreign corporation, executes 
ownership certificates in connection therewith, or sells such securities 
under special instructions shall not be deemed merely by reason of such 
acts to be the responsible representative or agent of the foreign 
corporation. If the responsible representative or agent does not have a 
specific power of attorney from the foreign corporation to file a return 
in its behalf, the return shall be accompanied by a statement to the 
effect that the representative or agent does not possess specific power 
of attorney to file a return for such corporation but that the return is 
being filed in accordance with the provisions of this subdivision.

[[Page 96]]

    (ii) Cases where power of attorney is required. Whenever a return of 
income of a foreign corporation is made by an agent acting under a duly 
authorized power of attorney for that purpose, the return shall be 
accompanied by the power of attorney in proper form, or a copy thereof 
specifically authorizing him to represent his principal in making, 
executing, and filing the income tax return. Form 2848 may be used for 
this purpose. The agent, as well as the taxpayer, may incur liability 
for the penalties provided for erroneous, false, or fraudulent returns. 
For the requirements regarding signing of returns, see Sec. 1.6062-1. 
The rules of paragraph (e) of Sec. 601.504 of this chapter (Statement of 
Procedural Rules) shall apply under this subparagraph in determining 
whether a copy of a power of attorney must be certified.
    (iii) Limitation. A return of income shall be required under this 
subparagraph only if the foreign corporation is otherwise required to 
make a return in accordance with this paragraph.
    (4) Disallowance of deductions and credits. For provisions 
disallowing deductions and credits when a return of income has not been 
filed by or on behalf of a foreign corporation, see section 882(c)(2) 
and the regulations thereunder, and paragraph (b) (2) and (3) of 
Sec. 1.535-1.
    (5) Effective date. This paragraph shall apply for taxable years 
beginning after December 31, 1966, except that it shall not be applied 
to require (i) the filing of a return for any taxable year ending before 
January 1, 1974, which, pursuant to instructions applicable to the 
return, is not required to be filed or (ii) the amendment of a return 
for such a taxable year which, pursuant to such instructions, is 
required to be filed. For corresponding rules applicable to taxable 
years beginning before January 1, 1967, see 26 CFR 1.6012-2(g) (Revised 
as of January 1, 1967).
    (h) Electing small business corporations. An electing small business 
corporation, whether or not subject to the tax imposed by section 1378, 
shall make a return on Form 1120-S. See also section 6037 and the 
regulations thereunder.
    (i) Hospital organizations with noncompliant hospital facilities. 
Every hospital organization (as defined in Sec. 1.501(r)-1(b)(18)) that 
is subject to the tax imposed by Sec. 1.501(r)-2(d) shall make a return 
on Form 990-T. The filing of a return to pay the tax described in 
Sec. 1.501(r)-2(d) does not relieve the organization of the duty of 
filing other required returns.
    (j) Items of tax preference--(1) In general. Every corporation 
required to make a return under this section, and having items of tax 
preference (described in section 57 and the regulation thereunder) in an 
amount specified by Form 4626, shall file such form as part of its 
return.
    (2) Organizations with unrelated business income and foreign 
corporations. Regardless of the provisions of paragraphs (e) and (g) of 
this section, any organization described in either such paragraph having 
items of tax preference (described in section 57 and the regulations 
thereunder) in any amount entering into the computation or unrelated 
business income is required to make a return on form 990-T or form 120F, 
respectively, and to attach the required form as part of such return.
    (k) Other provisions. For returns by fiduciaries for corporations, 
see Sec. 1.6012-3. For information returns by corporations regarding 
payments of dividends, see Secs. 1.6042-1 to 1.6042-3, inclusive; 
regarding corporate dissolutions or liquidations, see Sec. 1.6043-1; 
regarding distributions in liquidation, see Sec. 1.6043-2; regarding 
payments of patronage dividends, see Secs. 1.6044-1 to 1.6044-4, 
inclusive; and regarding certain payments of interest, see Secs. 1.6049-
1 and 1.6049-2. For information returns of officers, directors, and 
shareholders of foreign personal holding companies, as defined in 
section 552, see Secs. 1.6035-1 and 1.6035-2. For returns as to 
formation or reorganization of foreign corporations, see Secs. 1.6046-1 
to 1.6046-3, inclusive.
    (l) Effective/applicability date. Paragraph (c) of this section 
applies to any taxable year beginning on or after May 30, 2006. However, 
taxpayers may apply paragraph (c) of this section to any original 
Federal income tax return (including any amended return filed on or 
before the due date (including extensions) of such original return) 
timely filed on or after May 30, 2006. For taxable years beginning 
before May 30,

[[Page 97]]

2006, see Sec. 1.6012-2 as contained in 26 CFR part 1 in effect on April 
1, 2006.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting 
Sec. 1.6012-2, see the List of CFR Sections Affected, which appears in 
the Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 1.6012-3  Returns by fiduciaries.

    (a) For estates and trusts--(1) In general. Every fiduciary, or at 
least one of joint fiduciaries, must make a return of income on form 
1041 (or by use of a composite return pursuant to Sec. 1.6012-5) and 
attach the required form if the estate or trust has items of tax 
preference (as defined in section 57 and the regulations thereunder) in 
any amount:
    (i) For each estate for which he acts if the gross income of such 
estate for the taxable year is $600 or more;
    (ii) For each trust for which he acts, except a trust exempt under 
section 501(a), if such trust has for the taxable year any taxable 
income, or has for the taxable year gross income of $600 or more 
regardless of the amount of taxable income; and
    (iii) For each estate and each trust for which he acts, except a 
trust exempt under section 501(a), regardless of the amount of income 
for the taxable year, if any beneficiary of such estate or trust is a 
nonresident alien.
    (iv) For each trust electing to be taxed as, or as part of, an 
estate under section 645 for which a trustee acts, and for each related 
estate joining in a section 645 election for which an executor acts, if 
the aggregate gross income of the electing trust(s) and related estate, 
if any, joining in the election for the taxable year is $600 or more. 
(For the respective filing requirements of the trustee of each electing 
trust and executor of any related estate, see Sec. 1.645-1).
    (2) Wills and trust instruments. At the request of the Internal 
Revenue Service, a copy of the will or trust instrument (including any 
amendments), accompanied by a written declaration of the fiduciary under 
the penalties of perjury that it is a true and complete copy, shall be 
filed together with a statement by the fiduciary indicating the 
provisions of the will or trust instrument (including any amendments) 
which, in the fiduciary's opinion, determine the extent to which the 
income of the estate or trust is taxable to the estate or trust, the 
beneficiaries, or the grantor, respectively.
    (3) Domiciliary and ancillary representatives. In the case of an 
estate required to file a return under subparagraph (1) of this 
paragraph, having both domiciliary and ancillary representatives, the 
domiciliary and ancillary representatives must each file a return on 
Form 1041. The domiciliary representative is required to include in the 
return rendered by him as such domiciliary representative the entire 
income of the estate. The return of the ancillary representative shall 
be filed with the district director for his internal revenue district 
and shall show the name and address of the domiciliary representative, 
the amount of gross income received by the ancillary representative, and 
the deductions to be claimed against such income, including any amount 
of income properly paid or credited by the ancillary representative to 
any legatee, heir, or other beneficiary. If the ancillary representative 
for the estate of a nonresident alien is a citizen or resident of the 
United States, and the domiciliary representative is a nonresident 
alien, such ancillary representative is required to render the return 
otherwise required of the domiciliary representative.
    (4) Two or more trusts. A trustee of two or more trusts must make a 
separate return for each trust, even though such trusts were created by 
the same grantor for the same beneficiary or beneficiaries.
    (5) Trusts with unrelated business income. Every fiduciary for a 
trust described in section 511(b)(2) which is subject to the tax imposed 
on its unrelated business taxable income by section 511(b)(1) shall make 
a return on Form 990-T for each taxable year if the trust has gross 
income, included in computing unrelated business taxable income for such 
taxable year, of $1,000 or more. The filing of a return of unrelated 
business income does not relieve the fiduciary of such trust from the 
duty of filing other required returns.
    (6) Charitable remainder trusts. Every fiduciary for a charitable 
remainder annuity trust (as defined in Sec. 1.664-2) or

[[Page 98]]

a charitable remainder unitrust (as defined in Sec. 1.664-3) shall make 
a return on Form 1041-B for each taxable year of the trust even though 
it is nonexempt because it has unrelated business taxable income. The 
return on Form 1041-B shall be made in accordance with the instructions 
for the form and shall be filed with the designated Internal Revenue 
office on or before the 15th day of the fourth month following the close 
of the taxable year of the trust. A copy of the instrument governing the 
trust, accompanied by a written declaration of the fiduciary under the 
penalties of perjury that it is a true and complete copy, shall be 
attached to the return for the first taxable year of the trust.
    (7) Certain trusts described in section 4947(a)(1). For taxable 
years beginning after December 31, 1980, in the case of a trust 
described in section 4947(a)(1) which has no taxable income for a 
taxable year, the filing requirements of section 6012 and this section 
shall be satisfied by the filing, pursuant to Sec. 53.6011-1 of this 
chapter (Foundation Excise Tax Regulations) and Sec. 1.6033-2(a), by the 
fiduciary of such trust of--
    (i) Form 990-PF if such trust is treated as a private foundation, or
    (ii) Form 990 if such trust is not treated as a private foundation.


When the provisions of this paragraph (a)(7) are met, the fiduciary 
shall not be required to file Form 1041.
    (8) Estate and trusts liable for qualified tax. In the case of an 
estate or trust which is liable for one or more qualified State 
individual income taxes, as defined in section 6362, for a taxable year, 
see paragraph (b) of Sec. 301.6361-1 of this chapter (Regulations on 
Procedure and Administration) for rules relating to returns required to 
be made.
    (9) A trust any portion of which is treated as owned by the grantor 
or another person pursuant to sections 671 through 678. In the case of a 
trust any portion of which is treated as owned by the grantor or another 
person under the provisions of subpart E (section 671 and following) 
part I, subchapter J, chapter 1 of the Internal Revenue Code see 
Sec. 1.671-4.
    (10) Hospital organizations organized as trusts with noncompliant 
hospital facilities. Every fiduciary for a hospital organization (as 
defined in Sec. 1.501(r)-1(b)(18)) organized as a trust described in 
section 511(b)(2) that is subject to the tax imposed by Sec. 1.501(r)-
2(d) shall make a return on Form 990-T. The filing of a return to pay 
the tax described in Sec. 1.501(r)-2(d) does not relieve the 
organization of the duty of filing other required returns.
    (b) For other persons--(1) Decedents. The executor or administrator 
of the estate of a decedent, or other person charged with the property 
of a decedent, shall make the return of income required in respect of 
such decedent. For the decedent's taxable year which ends with the date 
of his death, the return shall cover the period during which he was 
alive. For the filing of returns of income for citizens and alien 
residents of the United States, and alien residents of Puerto Rico, see 
paragraph (a) of Sec. 1.6012-1. For the filing of a joint return after 
death of spouse, see paragraph (d) of Sec. 1.6013-1.
    (2) Nonresident alien individuals--(i) In general. A resident or 
domestic fiduciary or other person charged with the care of the person 
or property of a nonresident alien individual shall make a return for 
that individual and pay the tax unless:
    (a) The nonresident alien individual makes a return of, and pays the 
tax on, his income for the taxable year,
    (b) A responsible representative or agent in the United States of 
the nonresident alien individual makes a return of, and pays the tax on, 
the income of such alien individual for the taxable year, or
    (c) The nonresident alien individual has appointed a person in the 
United States to act as his agent for the purpose of making a return of 
income and, if such fiduciary is required to file a Form 1041 for an 
estate or trust of which such alien individual is a beneficiary, such 
fiduciary attaches a copy of the agency appointment to his return on 
Form 1041.
    (ii) Income to be returned. A return of income shall be required 
under this subparagraph only if the nonresident alien individual is 
otherwise required to make a return in accordance with paragraph (b) of 
Sec. 1.6012-1. The provisions of that paragraph shall apply in 
determining the form of return to be used and the income to be returned.

[[Page 99]]

    (iii) Disallowance of deductions and credits. For provisions 
disallowing deductions and credits when a return of income has not been 
filed by or on behalf of a nonresident alien individual, see section 874 
and the regulations thereunder.
    (iv) Alien resident of Puerto Rico. This subparagraph shall not 
apply to the return of a nonresident alien individual who is a bona fide 
resident of Puerto Rico during the entire taxable year. See Sec. 1.876-
1.
    (v) Cross reference. For requirements of withholding tax at source 
on nonresident alien individuals and of returns with respect to such 
withheld taxes, see Secs. 1.1441-1 to 1.1465-1, inclusive.
    (3) Persons under a disability. A fiduciary acting as the guardian 
of a minor, or as the guardian or committee of an insane person, must 
make the return of income required in respect of such person unless, in 
the case of a minor, the minor himself makes the return or causes it to 
be made.
    (4) Corporations. A receiver, trustee in dissolution, trustee in 
bankruptcy, or assignee, who, by order of a court of competent 
jurisdiction, by operation of law or otherwise, has possession of or 
holds title to all or substantially all the property or business of a 
corporation, shall make the return of income for such corporation in the 
same manner and form as corporations are required to make such returns. 
Such return shall be filed whether or not the receiver, trustee, or 
assignee is operating the property or business of the corporation. A 
receiver in charge of only a small part of the property of a 
corporation, such as a receiver in mortgage foreclosure proceedings 
involving merely a small portion of its property, need not make the 
return of income. See also Sec. 1.6041-1, relating to returns regarding 
information at source; Secs. 1.6042-1 to 1.6042-3, inclusive, relating 
to returns regarding payments of dividends; Secs. 1.6044-1 to 1.6044-4, 
inclusive, relating to returns regarding payments of patronage 
dividends; and Secs. 1.6049-1 and 1.6049-2, relating to returns 
regarding certain payments of interest.
    (5) Individuals in receivership. A receiver who stands in the place 
of an individual must make the return of income required in respect of 
such individual. A receiver of only part of the property of an 
individual need not file a return, and the individual must make his own 
return.
    (c) Joint fiduciaries. In the case of joint fiduciaries, a return is 
required to be made by only one of such fiduciaries. A return made by 
one of joint fiduciaries shall contain a statement that the fiduciary 
has sufficient knowledge of the affairs of the person for whom the 
return is made to enable him to make the return, and that the return is, 
to the best of his knowledge and belief, true and correct.
    (d) Other provisions. For the definition of the term ``fiduciary'', 
see section 7701(a)(6) and the regulations thereunder. For information 
returns required to be made by fiduciaries under section 6041, see 
Sec. 1.6041-1. As to further duties and liabilities of fiduciaries, see 
section 6903 and Sec. 301.6903-1 of this chapter (Regulations on 
Procedure and Administration).

[T.D. 6500, 25 FR 12108, Nov. 26, 1960]

    Editorial Note: For Federal Register citations affecting 
Sec. 1.6012-3, see the List of CFR Sections Affected, which appears in 
the Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 1.6012-4  Miscellaneous returns.

    For returns by regulated investment companies of tax on 
undistributed capital gain designated for special treatment under 
section 852(b)(3)(D), see Sec. 1.852-9. For returns with respect to tax 
withheld on nonresident aliens and foreign corporations and on tax-free 
covenant bonds, see Secs. 1.1461-1 to 1.1465-1, inclusive. For returns 
of tax on transfers to avoid income tax, see Sec. 1.1494-1. For the 
requirement of an annual report by persons completing a Government 
contract, see 26 CFR (1939) 17.16 (Treasury Decision 4906, approved June 
23, 1939), and 26 CFR (1939) 16.15 (Treasury Decision 4909, approved 
June 28, 1939) , as made applicable to section 1471 of the 1954 Code by 
Treasury Decision 6091, approved August 16, 1954 (19 FR 5167, C.B. 1954-
2, 47). See also Sec. 1.1471-1.

[T.D. 7332, 39 FR 44231, Dec. 23, 1974]

[[Page 100]]


    Editorial Note: For the convenience of the user Secs. 16.15 and 
17.16 of 26 CFR (1939) are set forth below:

Sec. 16.15 Annual reports for income taxable years.
    (a) General requirements. Every contracting party completing a 
contract or subcontract within the contracting party's income-taxable 
year ending after April 3, 1939 shall file with the district director of 
internal revenue for the internal revenue district in which the 
contracting party's Federal income tax returns are required to be filed 
an annual report on the prescribed form of the profit and excess profit 
on all contracts and subcontracts coming within the scope of the act and 
the regulations in this part and completed within the particular income-
taxable year. There shall be included as a part of such a report a 
statement, preferably in columnar form, showing separately for each such 
contract or subcontract completed by the contracting party within the 
income-taxable year the total contract price, the cost of performing the 
contract or subcontract and the resulting profit or loss on each 
contract or subcontract together with a summary statement showing in 
detail the computation of the net profit or net loss upon all contracts 
and subcontracts completed within the income-taxable year and the amount 
of the excess profit, if any, for the income-taxable year covered by the 
report. A copy of the report made to the Secretary of the Army (see 
Sec. 16.14) with respect to each contract or subcontract covered in the 
annual report, shall be filed as a part of such annual report. In case 
the income-taxable year of the contracting party is a period of less 
than twelve months (see Sec. 16.1), the report required by this section 
shall be made for such period and not for a full year.
    (b) Time for filing annual reports. Annual reports of contracts and 
subcontracts coming within the scope of the act and the regulations in 
this part completed by a contracting party within an income-taxable year 
must be filed on or before the 15th day of the ninth month following the 
close of the contracting party's income-taxable year. It is important 
that the contracting party render on or before the due date an annual 
report as nearly complete and final as it is possible for the 
contracting party to prepare. An extension of time granted the 
contracting party for filing its Federal income tax return does not 
serve to extend the time for filing the annual report required by this 
section. Authority consistent with authorizations for granting 
extensions of time for filing Federal income tax returns is hereby 
delegated to the various collectors of internal revenue for granting 
extensions of time for filing the reports required by this section. 
Application for extensions of time for filing such reports should be 
addressed to the district director of internal revenue for the district 
in which the contracting party files its Federal income tax returns and 
must contain a full recital of the causes for the delay.

Sec. 17.16 Annual reports for income-taxable years.
    (a) General requirements. Every contracting party completing a 
contract or subcontract within the contracting party's income-taxable 
year ending after April 3, 1939 shall file, with the district director 
of internal revenue for the internal revenue district in which the 
contracting party's Federal income tax return is required to be filed, 
annual reports on the prescribed forms of the profit and excess profit 
on all contracts and subcontracts coming within the scope of the act. If 
any contracts or subcontracts so completed by the contracting party were 
entered into for the construction or manufacture of any complete naval 
vessel or any portion thereof, the profit and excess profit on all such 
contracts and subcontracts completed within the income-taxable year 
ending after April 3, 1939 shall be computed in accordance with the 
provisions of Sec. 17.6. If any contracts or subcontracts so completed 
by the contracting party were entered into for the construction or 
manufacture of any complete naval aircraft or any portion thereof, the 
profit and excess profit on all such contracts and subcontracts 
completed within the income-taxable year ending after April 3, 1939 
shall be computed in accordance with the provisions of Sec. 17.7. There 
shall be included as a part of the annual report a statement, preferably 
in columnar form, showing separately for each contract or subcontract 
completed by the contracting party within the income-taxable year and 
covered by the report, the total contract price, the cost of performing 
the contract or subcontract and resulting profit or loss on each 
contract or subcontract together with a summary statement showing in 
detail the computation of the net profit or net loss upon each group of 
contracts and subcontracts covered by the report and the amount of the 
excess profit, if any, with respect to each group of contracts and 
subcontracts covered by the report. A copy of the report made to the 
Secretary of the Navy (see Sec. 17.15) with respect to each contract or 
subcontract covered in the annual report, shall be filed as a part of 
such annual report. In case the income-taxable year of the contracting 
party is a period of less than twelve months (see Sec. 17.1), the 
reports required by this section shall be made for such period and not 
for a full year.
    (b) Time for filing annual reports. Annual reports of contracts and 
subcontracts completed by a contracting party within an income-taxable 
year ending after April 3, 1939 shall be filed on or before the 15th day 
of the ninth month following the close of the contracting party's 
income-taxable year. It is

[[Page 101]]

important that the contracting party render on or before the due date 
annual reports as nearly complete and final as it is possible for the 
contracting party to prepare. An extension of time granted the 
contracting party for filing its Federal income tax return does not 
serve to extend the time for filing the annual reports required by this 
section. Authority consistent with authorizations for granting 
extensions of time for filing Federal income tax returns is hereby 
delegated to the various district directors of internal revenue for 
granting extensions of time for filing the reports required by this 
section. Application for extension of time for filing such reports 
should be addressed to the district director of internal revenue for the 
district in which the contracting party files its Federal income tax 
returns and must contain a full recital of the causes for the delay.



Sec. 1.6012-5  Composite return in lieu of specified form.

    The Commissioner may authorize the use, at the option of a person 
required to make a return, of a composite return in lieu of any form 
specified in this part for use by such a person, subject to such 
conditions, limitations, and special rules governing the preparation, 
execution, filing, and correction thereof as the Commissioner may deem 
appropriate. Such composite return shall consist of a form prescribed by 
the Commissioner and an attachment or attachments of magnetic tape or 
other approved media. Notwithstanding any provisions in this part to the 
contrary, a single form and attachment may comprise the returns of more 
than one such person. To the extent that the use of a composite return 
has been authorized by the Commissioner, references in this part to a 
specific form for use by such a person shall be deemed to refer also to 
a composite return under this section.

[T.D. 7200, 37 FR 16544, Aug. 16, 1972]



Sec. 1.6012-6  Returns by political organizations.

    (a) Requirement of return--(1) In general. For taxable years 
beginning after December 31, 1974, every political organization 
described in section 527(e)(1), and every fund described in section 
527(f)(3) or section 527(g), and every organization described in section 
501(c) and exempt from taxation under section 501(a) shall make a return 
of income within the time provided in section 6072(b), if a tax is 
imposed on such an organization or fund by section 527(b).
    (2) Taxable years beginning after December 31, 1971, and before 
January 1, 1975. For taxable years beginning after December 31, 1971, 
and before January 1, 1975, any political organization which would be 
described in section 527(e)(1) if such section applied to such years 
shall not be required to make a return if such organization would not be 
required to make a return under paragraph (a)(1) of this section.
    (b) Form of return. The return required by an organization or fund 
upon which a tax is imposed by section 527(b) shall be made on Form 
1120-POL.

[T.D. 7516, 42 FR 57312, Nov. 2, 1977; 43 FR 2721, Jan. 19, 1978]



Sec. 1.6013-1  Joint returns.

    (a) In general. (1) A husband and wife may elect to make a joint 
return under section 6013(a) even though one of the spouses has no gross 
income or deductions. For rules for determining whether individuals 
occupy the status of husband and wife for purposes of filing a joint 
return, see paragraph (a) of Sec. 1.6013-4. For any taxable year with 
respect to which a joint return has been filed, separate returns shall 
not be made by the spouses after the time for filing the return of 
either has expired. See, however, paragraph (d)(5) of this section for 
the right of an executor to file a late separate return for a deceased 
spouse and thereby disaffirm a timely joint return made by the surviving 
spouse.
    (2) A joint return of a husband and wife (if not made by an agent of 
one or both spouses) shall be signed by both spouses. The provisions of 
paragraph (a)(5) of Sec. 1.6012-1, relating to returns made by agents, 
shall apply where one spouse signs a return as agent for the other, or 
where a third party signs a return as agent for one or both spouses.
    (b) Nonresident alien. A joint return shall not be made if either 
the husband or wife at any time during the taxable year is a nonresident 
alien, unless an election is in effect for the taxable year under 
section 6013 (g) or (h) and the regulations thereunder.
    (c) Different taxable years. Except as otherwise provided in this 
section, a

[[Page 102]]

husband and wife shall not file a joint return if they have different 
taxable years.
    (d) Joint return after death. (1) Section 6013(a)(2) provides that a 
joint return may be made for the survivor and the deceased spouse or for 
both deceased spouses if the taxable years of such spouses begin on the 
same day and end on different days only because of the death of either 
or both. Thus, if a husband and wife make this return on a calendar year 
basis, and the wife dies on August 1, 1956, a joint return may be made 
with respect to the calendar year 1956 of the husband and the taxable 
year of the wife beginning on January 1, 1956, and ending with her death 
on August 1, 1956. Similarly, if husband and wife both make their 
returns on the basis of a fiscal year beginning on July 1 and the wife 
dies on October 1, 1956, a joint return may be made with respect to the 
fiscal year of the husband beginning on July 1, 1956, and ending on June 
30, 1957, and with respect to the taxable year of the wife beginning on 
July 1, 1956, and ending with her death on October 1, 1956.
    (2) The provision allowing a joint return to be made for the taxable 
year in which the death of either or both spouses occurs is subject to 
two limitations. The first limitation is that if the surviving spouse 
remarries before the close of his taxable year, he shall not make a 
joint return with the first spouse who died during the taxable year. In 
such a case, however, the surviving spouse may make a joint return with 
his new spouse provided the other requirements with respect to the 
filing of a joint return are met. The second limitation is that the 
surviving spouse shall not make a joint return with the deceased spouse 
if the taxable year of either spouse is a fractional part of a year 
under section 443(a)(1) resulting from a change of accounting period. 
For example, if a husband and wife make their returns on the calendar 
year basis and the wife dies on March 1, 1956, and thereafter the 
husband receives permission to change his annual accounting period to a 
fiscal year beginning July 1, 1956, no joint return shall be made for 
the short taxable year ending June 30, 1956. Similarly, if a husband and 
wife who make their returns on a calendar year basis receive permission 
to change to a fiscal year beginning July 1, 1956, and the wife dies on 
June 1, 1956, no joint return shall be made for the short taxable year 
ending June 30, 1956.
    (3) Section 6013(a)(3) provides for the method of making a joint 
return in the case of the death of one spouse or both spouses. The 
general rule is that, in the case of the death of one spouse, or of both 
spouses, the joint return with respect to the decedent may be made only 
by his executor or administrator, as defined in paragraph (c) of 
Sec. 1.6013-4. An exception is made to this general rule whereby, in the 
case of the death of one spouse, the joint return may be made by the 
surviving spouse with respect to both him and the decedent if all the 
following conditions exist:
    (i) No return has been made by the decedent for the taxable year in 
respect of which the joint return is made;
    (ii) No executor or administrator has been appointed at or before 
the time of making such joint return; and
    (iii) No executor or administrator is appointed before the last day 
prescribed by law for filing the return of the surviving spouse.


These conditions are to be applied with respect to the return for each 
of the taxable years of the decedent for which a joint return may be 
made if more than one such taxable year is involved. Thus, in the case 
of husband and wife on the calendar year basis, if the wife dies in 
February 1957, a joint return for the husband and wife for 1956 may be 
made if the conditions set forth in this subparagraph are satisfied with 
respect to such return. A joint return also may be made by the survivor 
for both himself and the deceased spouse for the calendar year 1957 if 
it is separately determined that the conditions set forth in this 
subparagraph are satisfied with respect to the return for such year. If, 
however, the deceased spouse should, prior to her death, make a return 
for 1956, the surviving spouse may not thereafter make a joint return 
for himself and the deceased spouse for 1956.
    (4) If an executor or administrator is appointed at or before the 
time of making the joint return or before the last

[[Page 103]]

day prescribed by law for filing the return of the surviving spouse, the 
surviving spouse cannot make a joint return for himself and the deceased 
spouse whether or not a separate return for the deceased spouse is made 
by such executor or administrator. In such a case, any return made 
solely by the surviving spouse shall be treated as his separate return. 
The joint return, if one is to be made, must be made by both the 
surviving spouse and the executor or administrator. In determining 
whether an executor or administrator is appointed before the last day 
prescribed by law for filing the return of the surviving spouse, an 
extension of time for making the return is included.
    (5) If the surviving spouse makes the joint return provided for in 
subparagraph (3) of this paragraph and thereafter an executor or 
administrator of the decedent is appointed, the executor or 
administrator may disaffirm such joint return. This disaffirmance, in 
order to be effective, must be made within one year after the last day 
prescribed by law for filing the return of the surviving spouse 
(including any extension of time for filing such return) and must be 
made in the form of a separate return for the taxable year of the 
decedent with respect to which the joint return was made. In the event 
of such proper disaffirmance the return made by the survivor shall 
constitute his separate return, that is, the joint return made by him 
shall be treated as his return and the tax thereon shall be computed by 
excluding all items properly includible in the return of the deceased 
spouse. The separate return made by the executor or administrator shall 
constitute the return of the deceased spouse for the taxable year.
    (6) The time allowed the executor or administrator to disaffirm the 
joint return by the making of a separate return does not establish a new 
due date for the return of the deceased spouse. Accordingly, the 
provisions of sections 6651 and 6601, relating to delinquent returns and 
delinquency in payment of tax, are applicable to such return made by the 
executor in disaffirmance of the joint return.
    (e) Return of surviving spouse treated as joint return. For 
provisions relating to the treatment of the return of a surviving spouse 
as a joint return for each of the next two taxable years following the 
year of the death of the spouse, see section 2 and Sec. 1.2-2.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 7274, 38 FR 
11345, May 7, 1973; T.D. 7670, 45 FR 6929, Jan. 31, 1980]



Sec. 1.6013-2  Joint return after filing separate return.

    (a) In general. (1) Where an individual has filed a separate return 
for a taxable year for which a joint return could have been made by him 
and his spouse under section 6013(a), and the time prescribed by law for 
filing the return for such taxable year has expired, such individual and 
his spouse may, under conditions hereinafter set forth, make a joint 
return for such taxable year. The joint return filed pursuant to section 
6013(b) shall constitute the return of the husband and wife for such 
year, and all payments, credits, refunds, or other repayments, made or 
allowed with respect to the separate return of either spouse are to be 
taken into account in determining the extent to which the tax based on 
the joint return has been paid.
    (2) If a joint return is made under section 6013(b), any election, 
other than the election to file a separate return, made by either spouse 
in his separate return for the taxable year with respect to the 
treatment of any income, deduction, or credit of such spouse shall not 
be changed in the making of the joint return where such election would 
have been irrevocable if the joint return had not been made. Thus, if 
one spouse has made an irrevocable election to adopt and use the last-
in, first-out inventory method under section 472, this election may not 
be changed upon making the joint return under section 6013(b).
    (3) A joint return made under section 6013(b) after the death of 
either spouse shall, with respect to the decedent, be made only by his 
executor or administrator. Thus, where no executor or administrator has 
been appointed, a joint return cannot be made under section 6013(b).
    (4) A nonresidential alien treated as a resident under section 6013 
(g) or (h) for

[[Page 104]]

any taxable year ending on or after December 31, 1975, and the alien's 
U.S. citizen or resident spouse may file a joint return for that taxable 
year, even though one or both of the spouses have previously filed 
separate returns for that taxable year. In this case, the rule in 
paragraph (a)(3) of this section does not apply.
    (b) Limitations with respect to making of election. A joint return 
shall not be made under section 6013(b)(1) with respect to a taxable 
year:
    (1) Beginning on or before July 30, 1996, unless there is paid in 
full at or before the time of the filing of the joint return the amount 
shown as tax upon such joint return; or
    (2) After the expiration of three years from the last day prescribed 
by law for filing the return for such taxable year determined without 
regard to any extension of time granted to either spouse; or
    (3) After there has been mailed to either spouse, with respect to 
such taxable year, a notice of deficiency under section 6212, if the 
spouse, as to such notice, files a petition with the Tax Court of the 
United States within the time prescribed in section 6213; or
    (4) After either spouse has commenced a suit in any court for the 
recovery of any part of the tax for such taxable year; or
    (5) After either spouse has entered into a closing agreement under 
section 7121 with respect to such taxable year, or after any civil or 
criminal case arising against either spouse with respect to such taxable 
year has been compromised under section 7122.
    (c) When return deemed filed; assessment and collection; credit or 
refund. (1) For the purpose of section 6501, relating to the period of 
limitations upon assessment and collection, and section 6651, relating 
to delinquent returns, a joint return made under section 6013(b) shall 
be deemed to have been filed, giving due regard to any extension of time 
granted to either spouse, on the following date:
    (i) Where both spouses filed separate returns, prior to making the 
joint return under section 6013(b), on the date the last separate return 
of either spouse was filed for the taxable year, but not earlier than 
the last date prescribed by law for the filing of the return of either 
spouse;
    (ii) Where only one spouse was required and did file a return prior 
to the making of the joint return under section 6013(b), on the date of 
the filing of the separate return, but not earlier than the last day 
prescribed by law for the filing of such return; or
    (iii) Where both spouses were required to file a return, but only 
one spouse did so file, on the date of the filing of the joint return 
under section 6013(b).
    (2) For the purpose of section 6511, relating to refunds and 
credits, a joint return made under section 6013(b) shall be deemed to 
have been filed on the last date prescribed by law for filing the return 
for such taxable year, determined without regard to any extension of 
time granted to either spouse for filing the return or paying the tax.
    (d) Additional time for assessment. In the case of a joint return 
made under section 6013(b), the period of limitations provided in 
sections 6501 and 6502 shall not be less than one year after the date of 
the actual filing of such joint return. The expiration of the one year 
is to be determined without regard to the rules provided in paragraph 
(c)(1) of this section, relating to the application of sections 6501 and 
6651 with respect to a joint return made under section 6013(b).
    (e) Additions to the tax and penalties. (1) Where the amount shown 
as the tax by the husband and wife on a joint return made under section 
6013(b) exceeds the aggregate of the amounts shown as tax on the 
separate return of each spouse, and such excess is attributable to 
negligence, intentional disregard of rules and regulations, or fraud at 
the time of the making of such separate return, there shall be assessed, 
collected, and paid in the same manner as if it were a deficiency an 
additional amount as provided by the following:
    (i) If any part of such excess is attributable to negligence, or 
intentional disregard of rules and regulations, at the time of the 
making of such separate return, but without any intent to defraud, this 
additional amount shall be 5 percent of the total amount of the excess.

[[Page 105]]

    (ii) If any part of such excess is attributable to fraud with intent 
to evade tax at the time of the making of such separate return, this 
additional amount shall be 50 percent of the total amount of the excess. 
The latter addition is in lieu of the 50 percent addition to the tax 
provided in section 6653(b).
    (2) For purposes of section 7206 (1) and (2) and section 7207 
(relating to criminal penalties in the case of fraudulent returns), the 
term ``return'' includes a separate return filed by a spouse with 
respect to a taxable year for which a joint return is made under section 
6013(b) after the filing of a separate return.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 7670, 45 FR 
6929, Jan. 31, 1980; T.D. 8725, 62 FR 39117, July 22, 1997]



Sec. 1.6013-3  Treatment of joint return after death of either spouse.

    For purposes of section 21 (relating to change in rates during a 
taxable year), section 443 (relating to returns for a period of less 
than 12 months), and section 7851(a)(1)(A) (relating to the 
applicability of certain provisions of the Internal Revenue Code of 1954 
and the Internal Revenue Code of 1939), where the husband and wife have 
different taxable years because of death of either spouse, the joint 
return shall be treated as if the taxable years of both ended on the 
date of the closing of the surviving spouse's taxable year. Thus, in 
cases where the Internal Revenue Code of 1939 otherwise would apply to 
the taxable year of the decedent spouse and the Internal Revenue Code of 
1954 would apply to the taxable year of the surviving spouse, this 
provision makes the Internal Revenue Code of 1954 applicable to the 
taxable years of both spouses if a joint return is filed.



Sec. 1.6013-4  Applicable rules.

    (a) Status as husband and wife. For the purpose of filing a joint 
return under section 6013, the status as husband and wife of two 
individuals having taxable years beginning on the same day shall be 
determined:
    (1) If the taxable year of each individual is the same, as of the 
close of such year; and
    (2) If the close of the taxable year is different by reason of the 
death of one spouse, as of the time of such death.


An individual legally separated from his spouse under a decree of 
divorce or of separate maintenance shall not be considered as married. 
However, the mere fact that spouses have not lived together during the 
course of the taxable year shall not prohibit them from making a joint 
return. A husband and wife who are separated under an interlocutory 
decree of divorce retain the relationship of husband and wife until the 
decree becomes final. The fact that the taxpayer and his spouse are 
divorced or legally separated at any time after the close of the taxable 
year shall not deprive them of their right to file a joint return for 
such taxable year under section 6013.
    (b) Computation of income, deductions, and tax. If a joint return is 
made, the gross income and adjusted gross income of husband and wife on 
the joint return are computed in an aggregate amount and the deductions 
allowed and the taxable income are likewise computed on an aggregate 
basis. Deductions limited to a percentage of the adjusted gross income, 
such as the deduction for charitable, etc., contributions and gifts, 
under section 170, will be allowed with reference to such aggregate 
adjusted gross income. A similar rule is applied in the case of the 
limitation of section 1211(b) on the allowance of losses resulting from 
the sale or exchange of capital assets (see Sec. 1.1211-1). Although 
there are two taxpayers on a joint return, there is only one taxable 
income. The tax on the joint return shall be computed on the aggregate 
income and the liability with respect to the tax shall be joint and 
several. For computation of tax in the case of a joint return, see 
Sec. 1.2-1. For tax in the case of a joint return of husband and wife 
electing to pay the optional tax under section 3, see Sec. 1.3-1. For 
the election not to show on a joint return the amount of tax due in 
connection therewith, see paragraph (c) of Sec. 1.6014-1 and paragraph 
(d) of Sec. 1.6014-2. For separate computations of the self-employment 
tax of each spouse on a joint return, see paragraph (b) of Sec. 1.6017-
1.
    (c) Definition of executor or administrator. For purposes of section 
6013 the

[[Page 106]]

term ``executor or administrator'' means the person who is actually 
appointed to such office and not a person who is merely in charge of the 
property of the decedent.
    (d) Return signed under duress. If an individual asserts and 
establishes that he or she signed a return under duress, the return is 
not a joint return. The individual who signed such return under duress 
is not jointly and severally liable for the tax shown on the return or 
any deficiency in tax with respect to the return. The return is adjusted 
to reflect only the tax liability of the individual who voluntarily 
signed the return, and the liability is determined at the applicable 
rates in section 1(d) for married individuals filing separate returns. 
Section 6212 applies to the assessment of any deficiency in tax on such 
return.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 7102, 36 FR 
5497, Mar. 24, 1971; T.D. 9003, 67 FR 47285, July 18, 2002]



Sec. 1.6013-6  Election to treat nonresident alien individual as
resident of the United States.

    (a) Election for special treatment--(1) In general. Two individuals 
who are husband and wife at the close of a taxable year ending on or 
after December 31, 1975, may make an election under this section for 
that taxable year if, at the close of that year, one spouse is a citizen 
or resident of the United States and the other spouse is a nonresident 
alien. The effect of the election is that each spouse is treated as a 
resident of the United States for purposes of chapters 1, 5, and 24 and 
sections 6012, 6013, 6072, and 6091 of the Code for the entire taxable 
year. An election made under this section is in effect for the taxable 
year for which made and for all subsequent years of the husband and 
wife, except:
    (i) Any taxable year for which the election is suspended, as 
described in paragraph (a)(3) of this section, and
    (ii) Any taxable year for which the election is terminated in 
accordance with paragraph (b) of this section and all subsequent taxable 
years.


A husband and wife may not make an election if an election previously 
made under this section by either spouse has been terminated under 
paragraph (b) of this section.
    (2) Particular rules. (i) As used in paragraph (a)(3) of this 
section, the term ``U.S. spouse'' means any married individual who is a 
citizen or resident of the United States at any time during a taxable 
year.
    (ii) An individual's residence is determined by application of the 
principles of Secs. 301.7701(b)-1 through 301.7701(b)-9 of this chapter 
relating to what constitutes residence in the United States by an alien 
individual.
    (iii) Whether two individuals are married at the close of a taxable 
year is determined by application of the rules in Sec. 1.6013-4(a).
    (iv) The provisions of section 879 and the regulations thereunder 
shall not apply for any taxable year for which an election under this 
section is in effect.
    (v) An individual who makes an election under this section may not, 
for United States income tax purposes, claim under any United States 
income tax treaty not to be a U.S. resident. The relationship of U.S. 
income tax treaties and the election under this section is illustrated 
by the following example.

    Example. H, a U.S. citizen, is married to W, a nonresident alien of 
the United States and a domiciliary of country X. H and W maintain their 
only permanent home in country X. W receives both U.S. source and 
country X source interest during the taxable year. The interest is not 
effectively connected with a permanent establishment or a fixed base in 
any country. H and W make the section 6013 (g) election. Under article 
ii (1) of the United States--country X Income Tax Convention interest 
derived and beneficially owned by a resident of one contracting state is 
exempt from tax in the other contracting state. Article 4 (1) of the 
treaty provides that an individual is a resident of a contracting state 
if subject to tax in that country by reason of the individual's 
domicile, residence, or citizenship. Under article 4 (1) of the treaty, 
W is a resident of country X by virtue of her domicile in country X and 
also of the United States by virtue of the section 6013 (g) election. 
Article 4 (2) of the treaty provides that if an individual is a resident 
of both the United States and country X by reason of article 4 (1), the 
individual shall be deemed to be a resident of the contracting state in 
which he or she has a permanent home available. Because W's sole 
permanent home is in country X, under article 4 (2) of the treaty W

[[Page 107]]

is treated as a resident of country X for purposes of the treaty. 
Because W has elected under section 6013(g) to be treated as a U.S. 
resident (and thus to be taxed on worldwide income), W may not, for U.S. 
income tax purposes, claim under the treaty not to be a U.S. resident. 
W, therefore, is subject to U.S. income tax on the interest. For 
purposes of country X income tax, W is considered a resident of country 
X under the treaty.

    (3) Suspension of election. (i) An election made under this section 
is suspended and is not in effect for a taxable year subsequent to the 
first taxable year for which made if neither spouse is a U.S. spouse 
during that subsequent taxable year. Thus, for example, the election is 
in suspense if both spouses are nonresident aliens for the entire 
taxable year.
    (ii) If either spouse dies during any taxable year for which the 
election under this section is in effect, other than the first taxable 
year for which the election is to be in effect, the taxable year shall 
include, solely for purposes of this paragraph (a)(3), only those days 
during the taxable year on which both spouses are alive. Thus, for 
example, if the U.S. spouse dies during the taxable year, the election 
is not suspended for that year even if the surviving nonresident alien 
spouse never acquires U.S. citizenship or residency. Similarly, if the 
nonresident alien spouse dies during the taxable year, the election is 
not suspended for that year even if the surviving U.S. spouse 
subsequently abandons U.S. citizenship or residency. However, if neither 
spouse was a U.S. spouse at any time during the period of the taxable 
year when both spouses were alive, the election is suspended for that 
year even if the surviving spouse subsequently acquires U.S. citizenship 
or residency.


For the effect of the death of either spouse on the status of the 
election in subsequent taxable years, see paragraph (b)(2) of this 
section.
    (4) Time and manner of making an election. (i) A husband and wife 
shall make the election under this section by attaching a statement to a 
joint return for the first taxable year for which the election is to be 
in effect. The election must be made before the expiration of the period 
prescribed by section 6511(a) (or section 6511(c) if the period is 
extended by agreement) for making a claim for credit or refund. If 
either or both spouses die after the close of the taxable year but 
before the joint return is filed, the election may be made by the 
executor, administrator, or other person charged with the property of 
the deceased spouse. If the election is made with a joint amended 
return, the amended return should be made on Form 1040 or 1040A, the 
word ``Amended'' should be written clearly on the front of the return, 
and an amended return also must be filed for each subsequent taxable 
year as to which a return previously has been filed by either spouse.
    (ii) The statement must contain a declaration that the election is 
being made and that the requirements of paragraph (a)(1) of this section 
are met for the taxable year. The statement must also contain the name, 
address, and taxpayer identifying number of each spouse. If the election 
is being made on behalf of a deceased spouse, the statement must contain 
the name and address of the executor, administrator, or other person 
making the election on behalf of the decreased spouse. The statement 
must be signed by both persons making the election.
    (b) Termination of election--(1) Revocation. (i) An election under 
this section shall terminate if either spouse revokes the election. An 
election that is revoked terminates as of the first taxable year for 
which the last day prescribed by section 6072(a) and 6081(a) for filing 
the return of tax has not yet occurred.
    (ii) Revocation of the election is made by filing a statement of 
revocation in the following manner. If the spouse revoking the election 
is required to file a return under section 6012, the statement is filed 
by attaching it to the return for the first taxable year to which the 
revocation applies. If the spouse revoking the election is not required 
to file a return under section 6012, but files a claim for refund under 
section 6511, the statement is filed by attaching it to the claim for 
refund. If the spouse revoking the election is not required to file a 
return and does not file a claim for refund, the statement is filed by 
submitting it to the service center director with whom was filed

[[Page 108]]

the most recent joint return of the spouses. The revocation may, if the 
revoking spouse dies after the close of the first taxable year to which 
the revocation applies but before the return, claim for refund, or 
statement of revocation is filed, be made by the executor, administrator 
or other person charged with the property of the deceased spouse.
    (iii) A revocation of the election is effective as of a particular 
taxable year if it is filed on or before the last day prescribed by 
section 6072(a) and 6081(a) for filing the return of tax for that 
taxable year. However, the revocation is not final until that last day.
    (iv) The statement of revocation must contain a declaration that the 
election under this section is being revoked. The statement must also 
contain the name, address, and taxpayer identifying number of each 
spouse. If the revocation is being made on behalf of a deceased spouse, 
the statement must contain the name and address of the executor, 
administrator, or other person revoking the election on behalf of the 
deceased spouse. The statement must also include a list of the States, 
foreign countries, and possessions of the United States which have 
community property laws and in which:
    (A) Each spouse is domiciled, or
    (B) real property is located from which either of the spouses 
receives income.


The statement must be signed by the person revoking the election.
    (2) Death. An election under this section shall terminate if either 
spouse dies. An election that terminates on account of death terminates 
as of the first taxable year of the surviving spouse following the 
taxable year in which the death occurred. However, if the surviving 
spouse is a citizen or resident of the United States who is entitled to 
the benefits of section 2, the election terminates as of the first 
taxable year following the last taxable year for which the surviving 
spouse is entitled to the benefits of section 2. If both spouses die 
within the same taxable year, the election terminates as of the first 
day after the close of the taxable year in which the deaths occurred.
    (3) Legal separation. An election under this section terminates if 
the spouses legally separate under a degree of divorce or of separate 
maintenance. An election that terminates on account of legal separation 
terminates as of the close of the taxable year preceding the taxable 
year in which the separation occurs. The rules in Sec. 1.6013-4(a) are 
relevant in determining whether two spouses are legally separated.
    (4) Inadequate records. An election under this section may be 
terminated by the Commissioner if it is determined that either spouse 
has failed to keep adequate records. An election that is terminated on 
account of inadequate records terminates as of the close of the taxable 
year preceding the taxable year for which the Commissioner determines 
that the election should be terminated. Adequate records are the books, 
records, and other information reasonably necessary to ascertain the 
amount of liability for taxes under chapters 1, 5, and 24 of the code of 
either spouse for the taxable year. Adequate records also includes the 
granting of access to the books and records.
    (c) Illustrations. The application of this section is illustrated by 
the following examples. In each case the individual's taxable year is 
the calendar year and the spouses are not legally separated.

    Example 1. W, a U.S. citizen for the entire taxable year 1979, is 
married to H, a nonresident alien individual. W and H may make the 
section 6013(g) election for 1979 by filing the statement of election 
with a joint return. If W and H make the election, income from sources 
within and without the United States received by W and H in 1979 and 
subsequent years must be included in gross income for each taxable year 
unless the election later is terminated or suspended. While W and H must 
file a joint return for 1979, joint or separate returns may be filed for 
subsequent years.
    Example 2. H and W are husband and wife and are both nonresident 
alien individuals. In June 1980 H becomes a U.S. resident and remains a 
resident for the balance of the year. H and W may make the section 
6013(g) election for 1980. If H and W make the election, income from 
sources within and without the United States received by H and W for the 
entire taxable year 1980 and subsequent years must be included in gross 
income for each taxable year, unless the election later is terminated or 
suspended.
    Example 3. W, a U.S. resident on December 31, 1981, is married to H, 
a nonresident alien.

[[Page 109]]

W and H make the section 6013(g) election and file joint returns for 
1981 and succeeding years. On January 10, 1987, W becomes a nonresident 
alien. H has remained a nonresident alien. W and H may file a joint 
return or separate returns for 1987. As neither W or H is a U.S. 
resident at any time during 1988, their election is suspended for 1988. 
If W and H have U.S. source or foreign source income effectively 
connected with the conduct of a U.S. trade or business in 1988, they 
must file separate returns as nonresident aliens. W becomes a U.S. 
resident again on January 5, 1990. Their election no longer is in 
suspense. Income from sources within and without the United States 
received by W or H in the years their election is not suspended must be 
included in gross income for each taxable year.
    Example 4. H, a U.S. citizen for the entire taxable year 1979, is 
married to W, who is not a U.S. citizen. While W believes that she is a 
U.S. resident, H and W make the section 6013(g) election for 1979 to 
cover the possibility that later it would be determined that she is a 
nonresident alien during 1979. The election for 1979 will not be 
considered evidence that W was a nonresident alien in prior years. 
Income from sources within and without the United States received by H 
and W in 1979 and subsequent years must be included in gross income for 
each taxable year, unless the election later is terminated or suspended.

[T.D. 7670, 45 FR 6929, Jan. 31, 1980, as amended by T.D. 7842, 47 FR 
49842, Nov. 3, 1982; T.D. 8411, 57 FR 15241, Apr. 27, 1992]



Sec. 1.6013-7  Joint return for year in which nonresident alien
becomes resident of the United States.

    (a) Election for special treatment--(1) In general. Two individuals 
who are husband and wife at the close of a taxable year ending on or 
after December 31, 1975, may make an election under this section for 
that taxable year if one spouse is a citizen or resident of the United 
States on the last day of that taxable year and the other spouse is a 
nonresident alien at the beginning of that taxable year and a citizen or 
resident of the United States at the close of that taxable year. Two 
married individuals who are nonresident aliens at the beginning of a 
taxable year and who are U.S. citizens or residents on the last day of 
that taxable year qualify for the election. The effect of the election 
is that each spouse is treated as a resident of the United States for 
purposes of chapters 1, 5, and 24 and sections 6012, 6013, 6072, and 
6091 of the code for all of that taxable year. A husband and wife may 
not make an election if an election has previously been made under this 
section by either spouse.
    (2) Particular rules. The rules in subdivisions (ii) through (v) of 
Sec. 1.6013-6(a)(2) are applicable to this section.
    (3) Time and manner of making an election. A husband and wife shall 
make the election under this section in accordance with the rules in 
Sec. 1.6013-6(a)(4).
    (b) Section 6013(g) election in effect. If an election under section 
6013(g) is in effect for a year subsequent to the first taxable year for 
which made and during that subsequent year the husband and wife meet the 
requirements of section 6013(h) and paragraph (a)(1) of this section, 
then the election under section 6013(g) shall apply to that subsequent 
taxable year. A separate election under section 6013(h) is not required 
for that subsequent taxable year.

[T.D. 7670, 45 FR 6931, Jan. 31, 1980]



Sec. 1.6014-1  Tax not computed by taxpayer for taxable years 
beginning before January 1, 1970.

    (a) In general. If an individual is entitled under paragraph (a)(7) 
of Sec. 1.6012-1 to use as his return Form 1040A, he may elect not to 
show thereon the amount of the tax due in connection with such return if 
his gross income is less than $5,000.
    (b) Computation and payment of tax. A taxpayer who, in accordance 
with paragraph (a) of this section, elects not to show the tax on Form 
1040A is not required to pay the unpaid balance of such tax at the time 
he files the return. In such case, the tax will be computed for the 
taxpayer by the Internal Revenue Service, and a notice will be mailed to 
the taxpayer stating the amount of tax due. Where it is determined that 
a refund of tax is due, the Internal Revenue Service will send such 
refund to the taxpayer. See paragraph (c) of Sec. 301.6402-3 of this 
chapter (Regulations on Procedure and Administration).
    (c) Joint return. (1) A husband and wife who, pursuant to paragraph 
(a)(7) of Sec. 1.6012-1, file a joint return on Form 1040A may elect not 
to show the tax on

[[Page 110]]

such return if their aggregate gross income for the taxable year is less 
than $5,000.
    (2) The tax computed for the taxpayer who files Form 1040A and 
elects not to show thereon the tax due shall be the lesser of the 
following amounts:
    (i) A tax computed as though the return on Form 1040A constituted 
the separate returns of the spouses, or
    (ii) A tax computed as though the return on Form 1040A constituted a 
joint return.
    (d) Married individuals filing separate returns. In the case of a 
married individual who files a separate return and who elects under this 
section not to show his tax on Form 1040A his tax shall be computed with 
reference to the 10-percent standard deduction rather than the minimum 
standard deduction.
    (e) This section shall apply to taxable years beginning before 
January 1, 1970.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 6581, 26 FR 
11678, Dec. 6, 1961; T.D. 6792, 30 FR 531, Jan. 15, 1965; T.D. 7102, 36 
FR 5497, Mar. 24, 1971]



Sec. 1.6014-2  Tax not computed by taxpayer for taxable years 
beginning after December 31, 1969.

    (a) In general. An individual subject to the tax imposed by section 
1 of the Code may, in accordance with the instructions applicable to the 
income tax return to be filed, elect, for any taxable year beginning 
after December 31, 1969, not to show on his income tax return for such 
year the amount of tax due in connection with such return.
    (b) Restriction on making an election. The election pursuant to this 
section shall not be made by an individual who does not file his return 
(or amended return) making such election on or before the date 
prescribed in section 6072(a) for the filing of the original return 
(determined without regard to any extension of time).
    (c) Effects of election. (1) A taxpayer who, in accordance with the 
provisions of this section, elects not to show the tax on his income tax 
return is not required to pay the unpaid balance of such tax at the time 
he files the return. In such case, the tax will be computed for the 
taxpayer by the Internal Revenue Service, and a notice will be mailed to 
the taxpayer stating the amount of tax due. Where it is determined that 
a refund of tax is due, the Internal Revenue Service will send such 
refund to the taxpayer. See paragraph (c) of Sec. 301.6402-3 of this 
chapter (Regulations on Procedure and Administration). The computation 
of tax by the Internal Revenue Service shall be treated for purposes of 
this chapter as if made by the taxpayer, and such computation or the 
issuance of a notice or refund pursuant thereto shall not relieve the 
taxpayer of liability for any deficiency (although the deficiency is 
based upon an amount of tax different from that computed for the 
taxpayer by the Internal Revenue Service) or affect the rights of the 
Internal Revenue Service with respect to any subsequent audit or other 
review of the taxpayer's return.
    (2) Where the election provided for in this section is made by a 
taxpayer who takes the standard deduction and who has adjusted gross 
income of less than $10,000, such election constitutes an election to 
pay the tax imposed by section 3.
    (3) A taxpayer who makes an election under section 6014 shall not be 
precluded from claiming:
    (i) Status as a head of household or a surviving spouse;
    (ii) The credit under section 31 (relating to tax withheld on 
wages);
    (iii) The credit under section 37 (relating to retirement income);
    (iv) The credit under section 38 (relating to investment in certain 
depreciable property);
    (v) The credit under section 39 (relating to certain uses of 
gasoline and lubricating oil);
    (vi) The credit under section 41 (relating to contributions to 
candidates for public office);
    (vii) The credit under section 42 (relating to personal exemptions);
    (viii) The credit under section 43 (relating to earned income);
    (ix) The credit under section 44 (relating to purchase of new 
principal residence); or
    (x) The credit under section 45 (relating to overpayments of tax).
    (d) Joint returns. (1) A husband and wife who file a joint return 
may elect not to show the tax on such return in

[[Page 111]]

accordance with the rules prescribed in paragraphs (a) and (b) of this 
section.
    (2) The tax computed for a husband and wife who elect pursuant to 
this section not to show their tax on their joint income tax return 
shall be the lesser of the following amounts:
    (i) A tax computed as though the return of income constituted a 
joint return, or
    (ii) If sufficient information is provided for the taxable income of 
each spouse to be determined, a tax computed as though the return of 
income constituted the separate returns of the spouses.
    (e) Married individuals filing separate returns. This section shall 
apply to married individuals filing separate returns unless otherwise 
provided in the instructions accompanying a return. The instructions may 
require the taxpayer to attach to his return a statement to the effect 
that his tax and the tax of his spouse were determined in accordance 
with the rules of sections 141(d) and 142(a).
    (f) Revocation of election. An election pursuant to this section may 
be revoked on an amended return (whether such return is filed before or 
after the date prescribed in section 6072(a) for filing the original 
return).

[T.D. 7102, 36 FR 5497, Mar. 24, 1971, as amended by T.D. 7298, 38 FR 
35234, Dec. 26, 1973; T.D. 7391, 40 FR 55856, Dec. 2, 1975]



Sec. 1.6015-0  Table of contents.

    This section lists captions contained in Secs. 1.6015-1 through 
1.6015-9.

   Sec. 1.6015-1  Relief from joint and several liability on a joint 
                                 return.

    (a) In general.
    (b) Duress.
    (c) Prior closing agreement or offer in compromise.
    (1) In general.
    (2) Exception for agreements relating to TEFRA partnership 
proceedings.
    (3) Examples.
    (d) Fraudulent scheme.
    (e) Res judicata and collateral estoppel.
    (f) Community property laws.
    (1) In general.
    (2) Example.
    (g) Scope of this section and Secs. 1.6015-2 through 1.6015-9.
    (h) Definitions.
    (1) Requesting spouse.
    (2) Nonrequesting spouse.
    (3) Item.
    (4) Erroneous item.
    (5) Election or request.
    (i) [Reserved]
    (j) Transferee liability.
    (1) In general.
    (2) Example.

Sec. 1.6015-2  Relief from liability applicable to all qualifying joint 
                                 filers.

    (a) In general.
    (b) Understatement.
    (c) Knowledge or reason to know.
    (d) Inequity.
    (e) Partial relief.
    (1) In general.
    (2) Example.

Sec. 1.6015-3  Allocation of liability for individuals who are no longer 
     married, are legally separated, or are not members of the same 
                               household.

    (a) Election to allocate liability.
    (b) Definitions.
    (1) Divorced.
    (2) Legally separated.
    (3) Members of the same household.
    (i) Temporary absences.
    (ii) Separate dwellings.
    (c) Limitations.
    (1) No refunds.
    (2) Actual knowledge.
    (i) In general.
    (A) Omitted income.
    (B) Deduction or credit.
    (1) Erroneous deductions in general.
    (2) Fictitious or inflated deduction.
    (ii) Partial knowledge.
    (iii) Knowledge of the source not sufficient.
    (iv) Factors supporting actual knowledge.
    (v) Abuse exception.
    (3) Disqualified asset transfers.
    (i) In general.
    (ii) Disqualified asset defined.
    (iii) Presumption.
    (4) Examples.
    (d) Allocation.
    (1) In general.
    (2) Allocation of erroneous items.
    (i) Benefit on the return.
    (ii) Fraud.
    (iii) Erroneous items of income.
    (iv) Erroneous deduction items.
    (3) Burden of proof.
    (4) General allocation method.
    (i) Proportionate allocation.
    (ii) Separate treatment items.
    (iii) Child's liability.
    (iv) Allocation of certain items.
    (A) Alternative minimum tax.
    (B) Accuracy-related and fraud penalties.
    (5) Examples.
    (6) Alternative allocation methods.
    (i) Allocation based on applicable tax rates.
    (ii) Allocation methods provided in subsequent published guidance.

[[Page 112]]

    (iii) Example.

                    Sec. 1.6015-4  Equitable relief.

          Sec. 1.6015-5  Time and manner for requesting relief.

    (a) Requesting relief.
    (b) Time period for filing a request for relief.
    (1) In general.
    (2) Definitions.
    (i) Collection activity.
    (ii) Section 6330 notice.
    (3) Requests for relief made before commencement of collection 
activity.
    (4) Examples.
    (5) Premature requests for relief.
    (c) Effect of a final administrative determination.

    Sec. 1.6015-6  Nonrequesting spouse's notice and opportunity to 
               participate in administrative proceedings.

    (a) In general.
    (b) Information submitted.
    (c) Effect of opportunity to participate.
    (2) Waiver of the restrictions on collection.

                    Sec. 1.6015-7  Tax Court review.

    (a) In general.
    (b) Time period for petitioning the Tax Court.
    (c) Restrictions on collection and suspension of the running of the 
period of limitations.
    (1) Restrictions on collection under Sec. 1.6015-2 or 1.6015-3.
    (2) Waiver of the restrictions on collection.
    (3) Suspension of the running of the period of limitations.
    (i) Relief under Sec. 1.6015-2 or 1.6015-3.
    (ii) Relief under Sec. 1.6015-4.
    (4) Definitions.
    (i) Levy.
    (ii) Proceedings in court.
    (iii) Assessment to which the election relates.

                 Sec. 1.6015-8  Applicable liabilities.

    (a) In general.
    (b) Liabilities paid on or before July 22, 1998.
    (c) Examples.

                     Sec. 1.6015-9  Effective date.

[T.D. 9003, 67 FR 47285, July 18, 2002]



Sec. 1.6015-1  Relief from joint and several liability on a joint
return.

    (a) In general. (1) An individual who qualifies and elects under 
section 6013 to file a joint Federal income tax return with another 
individual is jointly and severally liable for the joint Federal income 
tax liabilities for that year. A spouse or former spouse may be relieved 
of joint and several liability for Federal income tax for that year 
under the following three relief provisions:
    (i) Innocent spouse relief under Sec. 1.6015-2.
    (ii) Allocation of deficiency under Sec. 1.6015-3.
    (iii) Equitable relief under Sec. 1.6015-4.
    (2) A requesting spouse may submit a single claim electing relief 
under both or either Secs. 1.6015-2 and 1.6015-3, and requesting relief 
under Sec. 1.6015-4. However, equitable relief under Sec. 1.6015-4 is 
available only to a requesting spouse who fails to qualify for relief 
under Secs. 1.6015-2 and 1.6015-3. If a requesting spouse elects the 
application of either Sec. 1.6015-2 or 1.6015-3, the Internal Revenue 
Service will consider whether relief is appropriate under the other 
elective provision and, to the extent relief is unavailable under 
either, under Sec. 1.6015-4. If a requesting spouse seeks relief only 
under Sec. 1.6015-4, the Secretary may not grant relief under 
Sec. 1.6015-2 or 1.6015-3 in the absence of an affirmative election made 
by the requesting spouse under either of those sections. If in the 
course of reviewing a request for relief only under Sec. 1.6015-4, the 
IRS determines that the requesting spouse may qualify for relief under 
Sec. 1.6015-2 or 1.6015-3 instead of Sec. 1.6015-4, the Internal Revenue 
Service will correspond with the requesting spouse to see if the 
requesting spouse would like to amend his or her request to elect the 
application of Sec. 1.6015-2 or 1.6015-3. If the requesting spouse 
chooses to amend the claim for relief, the requesting spouse must submit 
an affirmative election under Sec. 1.6015-2 or 1.6015-3. The amended 
claim for relief will relate back to the original claim for purposes of 
determining the timeliness of the claim.
    (3) Relief is not available for liabilities that are required to be 
reported on a joint Federal income tax return but are not income taxes 
imposed under Subtitle A of the Internal Revenue Code (e.g., domestic 
service employment taxes under section 3510).
    (b) Duress. For rules relating to the treatment of returns signed 
under duress, see Sec. 1.6013-4(d).

[[Page 113]]

    (c) Prior closing agreement or offer in compromise--(1) In general. 
A requesting spouse is not entitled to relief from joint and several 
liability under Sec. 1.6015-2, 1.6015-3, or 1.6015-4 for any tax year 
for which the requesting spouse has entered into a closing agreement 
with the Commissioner that disposes of the same liability that is the 
subject of the claim for relief. In addition, a requesting spouse is not 
entitled to relief from joint and several liability under Sec. 1.6015-2, 
1.6015-3, or 1.6015-4 for any tax year for which the requesting spouse 
has entered into an offer in compromise with the Commissioner. For rules 
relating to the effect of closing agreements and offers in compromise, 
see sections 7121 and 7122, and the regulations thereunder.
    (2) Exception for agreements relating to TEFRA partnership 
proceedings. The rule in paragraph (c)(1) of this section regarding the 
unavailability of relief from joint and several liability when the 
liability to which the claim for relief relates was the subject of a 
prior closing agreement entered into by the requesting spouse, shall not 
apply to an agreement described in section 6224(c) with respect to 
partnership items (or any penalty, addition to tax, or additional amount 
that relates to adjustments to partnership items) that is entered into 
while the requesting spouse is a party to a pending partnership-level 
proceeding conducted under the provisions of subchapter C of chapter 63 
of subtitle F of the Internal Revenue Code (TEFRA partnership 
proceeding). If, however, a requesting spouse enters into a closing 
agreement pertaining to any penalty, addition to tax, or additional 
amount that relates to adjustments to partnership items, at a time when 
the requesting spouse is not a party to a pending TEFRA partnership 
proceeding (e.g., in connection with an affected items proceeding), then 
the provisions of paragraph (c)(1) shall apply. Similarly, if a 
requesting spouse enters into a closing agreement with respect to both 
partnership items (including affected items) and nonpartnership items, 
while the requesting spouse is a party to a pending TEFRA partnership 
proceeding, the provisions of paragraph (c)(1) shall apply to the 
portion of the closing agreement that relates to nonpartnership items 
and the provisions of this paragraph (c)(2) shall apply to the remainder 
of the closing agreement.
    (3) Examples. The following examples illustrate the rules of this 
paragraph (c):

    Example 1. H and W file joint returns for taxable years 2002-2004, 
on which they claim losses attributable to H's limited partnership 
interest in Partnership A. In January 2006, the Internal Revenue Service 
commences an audit under the provisions of subchapter C of chapter 63 of 
subtitle F of the Internal Revenue Code (TEFRA partnership proceeding) 
regarding Partnership A's 2002-2004 taxable years, and sends H and W a 
notice under section 6223(a)(1). In September 2007, H files a bankruptcy 
petition under chapter 7 of the Bankruptcy Code and receives a discharge 
in April 2008. In August 2008, H and W enter into a closing agreement 
with the Internal Revenue Service, in which H and W agree to the 
disallowance of some of the claimed losses from Partnership A for 
taxable years 2002 through 2007. W may not later claim relief from joint 
and several liability under section 6015 as to the disallowed losses 
attributable to Partnership A for taxable years 2002 to 2007. This is 
because at the time W entered into the closing agreement, H's 
partnership items attributable to Partnership A had converted to 
nonpartnership items as a result of H's filing of the bankruptcy 
petition. The conversion of H's items also terminated W's status as a 
partner in the TEFRA partnership proceeding regarding Partnership A. 
Consequently, the closing agreement did not pertain to partnership items 
and W was not a party to a pending partnership-level proceeding 
regarding Partnership A when she entered into the closing agreement. 
Accordingly, the exception in paragraph (c)(2) of this section for 
agreements relating to TEFRA partnership proceedings does not apply.
    Example 2. H and W file a joint return for taxable year 2002, on 
which they claim $25,000 in losses attributable to H's general 
partnership interest in Partnership B. In November 2003, the Service 
proposes a deficiency in tax relating to H's and W's 2002 joint return 
arising from omitted taxable interest income in the amount of $2,000 
that is attributable to H. In July 2005, the Internal Revenue Service 
commences a TEFRA partnership proceeding regarding Partnership B's 2002 
and 2003 taxable years, and sends H and W a notice under section 
6223(a)(1). In March 2006, H and W enter into a closing agreement with 
the Service. The closing agreement provides for the disallowance of the 
claimed losses from Partnership B in excess of H's and W's out-of-pocket 
expenditures relating to Partnership B for taxable year 2002 and

[[Page 114]]

any subsequent year(s) in which H and W claimed losses from Partnership 
B. In addition, H and W agree to the imposition of the accuracy-related 
penalty under section 6662 with respect to the disallowed losses 
attributable to partnership B. In the closing agreement, H and W also 
agree to the deficiency resulting from the omitted interest income for 
taxable year 2002. W may not later claim relief from joint and several 
liability under section 6015 as to the deficiency in tax attributable to 
the omitted income of $2,000 for taxable year 2002, because this portion 
of the closing agreement pertains to nonpartnership items. In contrast, 
W may claim relief from joint and several liability as to the disallowed 
losses and accuracy-related penalty attributable to Partnership B for 
taxable year 2002 or any subsequent year(s). This is because this 
portion of the closing agreement pertains to partnership and affected 
items and was entered into at a time when W was a party to the pending 
partnership-level proceeding regarding Partnership B. Consequently, W 
never had the opportunity to raise the innocent spouse defense in the 
course of that TEFRA partnership proceeding. (See Sec. 1.6015-5(b)(5) 
relating to premature claims).

    (d) Fraudulent scheme. If the Secretary establishes that a spouse 
transferred assets to the other spouse as part of a fraudulent scheme, 
relief is not available under section 6015, and section 6013(d)(3) 
applies to the return. For purposes of this section, a fraudulent scheme 
includes a scheme to defraud the Service or another third party, 
including, but not limited to, creditors, ex-spouses, and business 
partners.
    (e) Res judicata and collateral estoppel. A requesting spouse is 
barred from relief from joint and several liability under section 6015 
by res judicata for any tax year for which a court of competent 
jurisdiction has rendered a final decision on the requesting spouse's 
tax liability if relief under section 6015 was at issue in the prior 
proceeding, or if the requesting spouse meaningfully participated in 
that proceeding and could have raised relief under section 6015. A 
requesting spouse has not meaningfully participated in a prior 
proceeding if, due to the effective date of section 6015, relief under 
section 6015 was not available in that proceeding. Also, any final 
decisions rendered by a court of competent jurisdiction regarding issues 
relevant to section 6015 are conclusive and the requesting spouse may be 
collaterally estopped from relitigating those issues.
    (f) Community property laws--(1) In general. In determining whether 
relief is available under Sec. 1.6015-2, 1.6015-3, or 1.6015-4, items of 
income, credits, and deductions are generally allocated to the spouses 
without regard to the operation of community property laws. An erroneous 
item is attributed to the individual whose activities gave rise to such 
item. See Sec. 1.6015-3(d)(2).
    (2) Example. The following example illustrates the rule of this 
paragraph (f):

    Example. (i) H and W are married and have lived in State A (a 
community property state) since 1987. On April 15, 2003, H and W file a 
joint Federal income tax return for the 2002 taxable year. In August 
2005, the Internal Revenue Service proposes a $17,000 deficiency with 
respect to the 2002 joint return. A portion of the deficiency is 
attributable to $20,000 of H's unreported interest income from his 
individual bank account. The remainder of the deficiency is attributable 
to $30,000 of W's disallowed business expense deductions. Under the laws 
of State A, H and W each own \1/2\ of all income earned and property 
acquired during the marriage.
    (ii) In November 2005, H and W divorce and W timely elects to 
allocate the deficiency. Even though the laws of State A provide that 
\1/2\ of the interest income is W's, for purposes of relief under this 
section, the $20,000 unreported interest income is allocable to H, and 
the $30,000 disallowed deduction is allocable to W. The community 
property laws of State A are not considered in allocating items for this 
purpose.

    (g) Scope of this section and Secs. 1.6015-2 through 1.6015-9. This 
section and Secs. 1.6015-2 through 1.6015-9 do not apply to any portion 
of a liability for any taxable year for which a claim for credit or 
refund is barred by operation of law or rule of law.
    (h) Definitions--(1) Requesting spouse. A requesting spouse is an 
individual who filed a joint return and elects relief from Federal 
income tax liability arising from that return under Sec. 1.6015-2 or 
1.6015-3, or requests relief from Federal income tax liability arising 
from that return under Sec. 1.6015-4.
    (2) Nonrequesting spouse. A nonrequesting spouse is the individual 
with whom the requesting spouse filed the joint return for the year for 
which relief from liability is sought.

[[Page 115]]

    (3) Item. An item is that which is required to be separately listed 
on an individual income tax return or any required attachments. Items 
include, but are not limited to, gross income, deductions, credits, and 
basis.
    (4) Erroneous item. An erroneous item is any item resulting in an 
understatement or deficiency in tax to the extent that such item is 
omitted from, or improperly reported (including improperly 
characterized) on an individual income tax return. For example, 
unreported income from an investment asset resulting in an 
understatement or deficiency in tax is an erroneous item. Similarly, 
ordinary income that is improperly reported as capital gain resulting in 
an understatement or deficiency in tax is also an erroneous item. In 
addition, a deduction for an expense that is personal in nature that 
results in an understatement or deficiency in tax is an erroneous item 
of deduction. An erroneous item is also an improperly reported item that 
affects the liability on other returns (e.g., an improper net operating 
loss that is carried back to a prior year's return). Penalties and 
interest are not erroneous items. Rather, relief from penalties and 
interest will generally be determined based on the proportion of the 
total erroneous items from which the requesting spouse is relieved. If a 
penalty relates to a particular erroneous item, see Sec. 1.6015-
3(d)(4)(iv)(B).
    (5) Election or request. A qualifying election under Sec. 1.6015-2 
or 1.6015-3, or request under Sec. 1.6015-4, is the first timely claim 
for relief from joint and several liability for the tax year for which 
relief is sought. A qualifying election also includes a requesting 
spouse's second election to seek relief from joint and several liability 
for the same tax year under Sec. 1.6015-3 when the additional 
qualifications of paragraphs (h)(5)(i) and (ii) of this section are 
met--
    (i) The requesting spouse did not qualify for relief under 
Sec. 1.6015-3 when the Internal Revenue Service considered the first 
election solely because the qualifications of Sec. 1.6015-3(a) were not 
satisfied; and
    (ii) At the time of the second election, the qualifications for 
relief under Sec. 1.6015-3(a) are satisfied.
    (i) [Reserved]
    (j) Transferee liability--(1) In general. The relief provisions of 
section 6015 do not negate liability that arises under the operation of 
other laws. Therefore, a requesting spouse who is relieved of joint and 
several liability under Sec. 1.6015-2, 1.6015-3, or 1.6015-4 may 
nevertheless remain liable for the unpaid tax (including additions to 
tax, penalties, and interest) to the extent provided by Federal or state 
transferee liability or property laws. For the rules regarding the 
liability of transferees, see sections 6901 through 6904 and the 
regulations thereunder. In addition, the requesting spouse's property 
may be subject to collection under Federal or state property laws.
    (2) Example. The following example illustrates the rule of this 
paragraph (j):

    Example. H and W timely file their 1998 joint income tax return on 
April 15, 1999. H dies in March 2000, and the executor of H's will 
transfers all of the estate's assets to W. In July 2001, the Internal 
Revenue Service assesses a deficiency for the 1998 return. The items 
giving rise to the deficiency are attributable to H. W is relieved of 
the liability under section 6015, and H's estate remains solely liable. 
The Internal Revenue Service may seek to collect the deficiency from W 
to the extent permitted under Federal or state transferee liability or 
property laws.

[T.D. 9003, 67 FR 47285, July 18, 2002]



Sec. 1.6015-2  Relief from liability applicable to all qualifying 
joint filers.

    (a) In general. A requesting spouse may be relieved of joint and 
several liability for tax (including additions to tax, penalties, and 
interest) from an understatement for a taxable year under this section 
if the requesting spouse elects the application of this section in 
accordance with Secs. 1.6015-1(h)(5) and 1.6015-5, and--
    (1) A joint return was filed for the taxable year;
    (2) On the return there is an understatement attributable to 
erroneous items of the nonrequesting spouse;
    (3) The requesting spouse establishes that in signing the return he 
or she did not know and had no reason to know of the understatement; and
    (4) It is inequitable to hold the requesting spouse liable for the 
deficiency attributable to the understatement.

[[Page 116]]

    (b) Understatement. The term understatement has the meaning given to 
such term by section 6662(d)(2)(A) and the regulations thereunder.
    (c) Knowledge or reason to know. A requesting spouse has knowledge 
or reason to know of an understatement if he or she actually knew of the 
understatement, or if a reasonable person in similar circumstances would 
have known of the understatement. For rules relating to a requesting 
spouse's actual knowledge, see Sec. 1.6015-3(c)(2). All of the facts and 
circumstances are considered in determining whether a requesting spouse 
had reason to know of an understatement. The facts and circumstances 
that are considered include, but are not limited to, the nature of the 
erroneous item and the amount of the erroneous item relative to other 
items; the couple's financial situation; the requesting spouse's 
educational background and business experience; the extent of the 
requesting spouse's participation in the activity that resulted in the 
erroneous item; whether the requesting spouse failed to inquire, at or 
before the time the return was signed, about items on the return or 
omitted from the return that a reasonable person would question; and 
whether the erroneous item represented a departure from a recurring 
pattern reflected in prior years' returns (e.g., omitted income from an 
investment regularly reported on prior years' returns).
    (d) Inequity. All of the facts and circumstances are considered in 
determining whether it is inequitable to hold a requesting spouse 
jointly and severally liable for an understatement. One relevant factor 
for this purpose is whether the requesting spouse significantly 
benefitted, directly or indirectly, from the understatement. A 
significant benefit is any benefit in excess of normal support. Evidence 
of direct or indirect benefit may consist of transfers of property or 
rights to property, including transfers that may be received several 
years after the year of the understatement. Thus, for example, if a 
requesting spouse receives property (including life insurance proceeds) 
from the nonrequesting spouse that is beyond normal support and 
traceable to items omitted from gross income that are attributable to 
the nonrequesting spouse, the requesting spouse will be considered to 
have received significant benefit from those items. Other factors that 
may also be taken into account, if the situation warrants, include the 
fact that the requesting spouse has been deserted by the nonrequesting 
spouse, the fact that the spouses have been divorced or separated, or 
that the requesting spouse received benefit on the return from the 
understatement. For guidance concerning the criteria to be used in 
determining whether it is inequitable to hold a requesting spouse 
jointly and severally liable under this section, see Rev. Proc. 2000-15 
(2000-1 C.B. 447), or other guidance published by the Treasury and IRS 
(see Sec. 601.601(d)(2) of this chapter).
    (e) Partial relief--(1) In general. If a requesting spouse had no 
knowledge or reason to know of only a portion of an erroneous item, the 
requesting spouse may be relieved of the liability attributable to that 
portion of that item, if all other requirements are met with respect to 
that portion.
    (2) Example. The following example illustrates the rules of this 
paragraph (e):

    Example. H and W are married and file their 2004 joint income tax 
return in March 2005. In April 2006, H is convicted of embezzling $2 
million from his employer during 2004. H kept all of his embezzlement 
income in an individual bank account, and he used most of the funds to 
support his gambling habit. H and W had a joint bank account into which 
H and W deposited all of their reported income. Each month during 2004, 
H transferred an additional $10,000 from the individual account to H and 
W's joint bank account. W paid the household expenses using this joint 
account, and regularly received the bank statements relating to the 
account. W had no knowledge or reason to know of H's embezzling 
activities. However, W did have knowledge and reason to know of $120,000 
of the $2 million of H's embezzlement income at the time she signed the 
joint return because that amount passed through the couple's joint bank 
account. Therefore, W may be relieved of the liability arising from 
$1,880,000 of the unreported embezzlement income, but she may not be 
relieved of the liability for the deficiency arising from $120,000 of 
the unreported embezzlement income of which she knew and had reason to 
know.

[T.D. 9003, 67 FR 47285, July 18, 2002]

[[Page 117]]



Sec. 1.6015-3  Allocation of deficiency for individuals who are no
longer married, are legally separated, or are not members of the
same household.

    (a) Election to allocate deficiency. A requesting spouse may elect 
to allocate a deficiency if, as defined in paragraph (b) of this 
section, the requesting spouse is divorced, widowed, or legally 
separated, or has not been a member of the same household as the 
nonrequesting spouse at any time during the 12-month period ending on 
the date an election for relief is filed. For purposes of this section, 
the marital status of a deceased requesting spouse will be determined on 
the earlier of the date of the election or the date of death in 
accordance with section 7703(a)(1). Subject to the restrictions of 
paragraph (c) of this section, an eligible requesting spouse who elects 
the application of this section in accordance with Secs. 1.6015-1(h)(5) 
and 1.6015-5 generally may be relieved of joint and several liability 
for the portion of any deficiency that is allocated to the nonrequesting 
spouse pursuant to the allocation methods set forth in paragraph (d) of 
this section. Relief may be available to both spouses filing the joint 
return if each spouse is eligible for and elects the application of this 
section.
    (b) Definitions--(1) Divorced. A determination of whether a 
requesting spouse is divorced for purposes of this section will be made 
in accordance with section 7703 and the regulations thereunder. Such 
determination will be made as of the date the election is filed.
    (2) Legally separated. A determination of whether a requesting 
spouse is legally separated for purposes of this section will be made in 
accordance with section 7703 and the regulations thereunder. Such 
determination will be made as of the date the election is filed.
    (3) Members of the same household--(i) Temporary absences. A 
requesting spouse and a nonrequesting spouse are considered members of 
the same household during either spouse's temporary absences from the 
household if it is reasonable to assume that the absent spouse will 
return to the household, and the household or a substantially equivalent 
household is maintained in anticipation of such return. Examples of 
temporary absences may include, but are not limited to, absence due to 
incarceration, illness, business, vacation, military service, or 
education.
    (ii) Separate dwellings. A husband and wife who reside in the same 
dwelling are considered members of the same household. In addition, a 
husband and wife who reside in two separate dwellings are considered 
members of the same household if the spouses are not estranged or one 
spouse is temporarily absent from the other's household within the 
meaning of paragraph (b)(3)(i) of this section.
    (c) Limitations--(1) No refunds. Relief under this section is only 
available for unpaid liabilities resulting from understatements of 
liability. Refunds are not authorized under this section.
    (2) Actual knowledge--(i) In general. If, under section 
6015(c)(3)(C), the Secretary demonstrates that, at the time the return 
was signed, the requesting spouse had actual knowledge of an erroneous 
item that is allocable to the nonrequesting spouse, the election to 
allocate the deficiency attributable to that item is invalid, and the 
requesting spouse remains liable for the portion of the deficiency 
attributable to that item. The Service, having both the burden of 
production and the burden of persuasion, must establish, by a 
preponderance of the evidence, that the requesting spouse had actual 
knowledge of the erroneous item in order to invalidate the election.
    (A) Omitted income. In the case of omitted income, knowledge of the 
item includes knowledge of the receipt of the income. For example, 
assume W received $5,000 of dividend income from her investment in X Co. 
but did not report it on the joint return. H knew that W received $5,000 
of dividend income from X Co. that year. H had actual knowledge of the 
erroneous item (i.e., $5,000 of unreported dividend income from X Co.), 
and no relief is available under this section for the deficiency 
attributable to the dividend income from X Co. This rule applies equally 
in situations where the other spouse has unreported income although the 
spouse does not have an actual receipt of cash

[[Page 118]]

(e.g., dividend reinvestment or a distributive share from a flow-through 
entity shown on Schedule K-1, ``Partner's Share of Income, Credits, 
Deductions, etc.'').
    (B) Deduction or credit--(1) Erroneous deductions in general. In the 
case of an erroneous deduction or credit, knowledge of the item means 
knowledge of the facts that made the item not allowable as a deduction 
or credit.
    (2) Fictitious or inflated deduction. If a deduction is fictitious 
or inflated, the IRS must establish that the requesting spouse actually 
knew that the expenditure was not incurred, or not incurred to that 
extent.
    (ii) Partial knowledge. If a requesting spouse had actual knowledge 
of only a portion of an erroneous item, then relief is not available for 
that portion of the erroneous item. For example, if H knew that W 
received $1,000 of dividend income and did not know that W received an 
additional $4,000 of dividend income, relief would not be available for 
the portion of the deficiency attributable to the $1,000 of dividend 
income of which H had actual knowledge. A requesting spouse's actual 
knowledge of the proper tax treatment of an item is not relevant for 
purposes of demonstrating that the requesting spouse had actual 
knowledge of an erroneous item. For example, assume H did not know W's 
dividend income from X Co. was taxable, but knew that W received the 
dividend income. Relief is not available under this section. In 
addition, a requesting spouse's knowledge of how an erroneous item was 
treated on the tax return is not relevant to a determination of whether 
the requesting spouse had actual knowledge of the item. For example, 
assume that H knew of W's dividend income, but H failed to review the 
completed return and did not know that W omitted the dividend income 
from the return. Relief is not available under this section.
    (iii) Knowledge of the source not sufficient. Knowledge of the 
source of an erroneous item is not sufficient to establish actual 
knowledge. For example, assume H knew that W owned X Co. stock, but H 
did not know that X Co. paid dividends to W that year. H's knowledge of 
W's ownership in X Co. is not sufficient to establish that H had actual 
knowledge of the dividend income from X Co. In addition, a requesting 
spouse's actual knowledge may not be inferred when the requesting spouse 
merely had reason to know of the erroneous item. Even if H's knowledge 
of W's ownership interest in X Co. indicates a reason to know of the 
dividend income, actual knowledge of such dividend income cannot be 
inferred from H's reason to know. Similarly, the IRS need not establish 
that a requesting spouse knew of the source of an erroneous item in 
order to establish that the requesting spouse had actual knowledge of 
the item itself. For example, assume H knew that W received $1,000, but 
he did not know the source of the $1,000. W and H omit the $1,000 from 
their joint return. H has actual knowledge of the item giving rise to 
the deficiency ($1,000), and relief is not available under this section.
    (iv) Factors supporting actual knowledge. To demonstrate that a 
requesting spouse had actual knowledge of an erroneous item at the time 
the return was signed, the IRS may rely upon all of the facts and 
circumstances. One factor that may be relied upon in demonstrating that 
a requesting spouse had actual knowledge of an erroneous item is whether 
the requesting spouse made a deliberate effort to avoid learning about 
the item in order to be shielded from liability. This factor, together 
with all other facts and circumstances, may demonstrate that the 
requesting spouse had actual knowledge of the item, and the requesting 
spouse's election would be invalid with respect to that entire item. 
Another factor that may be relied upon in demonstrating that a 
requesting spouse had actual knowledge of an erroneous item is whether 
the requesting spouse and the nonrequesting spouse jointly owned the 
property that resulted in the erroneous item. Joint ownership is a 
factor supporting a finding that the requesting spouse had actual 
knowledge of an erroneous item. For purposes of this paragraph, a 
requesting spouse will not be considered to have had an ownership 
interest in an item based solely on the operation of community property 
law. Rather, a requesting spouse who resided in a community property 
state at the time the return

[[Page 119]]

was signed will be considered to have had an ownership interest in an 
item only if the requesting spouse's name appeared on the ownership 
documents, or there otherwise is an indication that the requesting 
spouse asserted dominion and control over the item. For example, assume 
H and W live in State A, a community property state. After their 
marriage, H opens a bank account in his name. Under the operation of the 
community property laws of State A, W owns \1/2\ of the bank account. 
However, W does not have an ownership interest in the account for 
purposes of this paragraph (c)(2)(iv) because the account is not held in 
her name and there is no other indication that she asserted dominion and 
control over the item.
    (v) Abuse exception. If the requesting spouse establishes that he or 
she was the victim of domestic abuse prior to the time the return was 
signed, and that, as a result of the prior abuse, the requesting spouse 
did not challenge the treatment of any items on the return for fear of 
the nonrequesting spouse's retaliation, the limitation on actual 
knowledge in this paragraph (c) will not apply. However, if the 
requesting spouse involuntarily executed the return, the requesting 
spouse may choose to establish that the return was signed under duress. 
In such a case, Sec. 1.6013-4(d) applies.
    (3) Disqualified asset transfers--(i) In general. The portion of the 
deficiency for which a requesting spouse is liable is increased (up to 
the entire amount of the deficiency) by the value of any disqualified 
asset that was transferred to the requesting spouse. For purposes of 
this paragraph (c)(3), the value of a disqualified asset is the fair 
market value of the asset on the date of the transfer.
    (ii) Disqualified asset defined. A disqualified asset is any 
property or right to property that was transferred from the 
nonrequesting spouse to the requesting spouse if the principal purpose 
of the transfer was the avoidance of tax or payment of tax (including 
additions to tax, penalties, and interest).
    (iii) Presumption. Any asset transferred from the nonrequesting 
spouse to the requesting spouse during the 12-month period before the 
mailing date of the first letter of proposed deficiency (e.g., a 30-day 
letter or, if no 30-day letter is mailed, a notice of deficiency) is 
presumed to be a disqualified asset. The presumption also applies to any 
asset that is transferred from the nonrequesting spouse to the 
requesting spouse after the mailing date of the first letter of proposed 
deficiency. The presumption does not apply, however, if the requesting 
spouse establishes that the asset was transferred pursuant to a decree 
of divorce or separate maintenance or a written instrument incident to 
such a decree. If the presumption does not apply, but the Internal 
Revenue Service can establish that the purpose of the transfer was the 
avoidance of tax or payment of tax, the asset will be disqualified, and 
its value will be added to the amount of the deficiency for which the 
requesting spouse remains liable. If the presumption applies, a 
requesting spouse may still rebut the presumption by establishing that 
the principal purpose of the transfer was not the avoidance of tax or 
payment of tax.
    (4) Examples. The following examples illustrate the rules in this 
paragraph (c):

    Example 1. Actual knowledge of an erroneous item. (i) H and W file 
their 2001 joint Federal income tax return on April 15, 2002. On the 
return, H and W report W's self-employment income, but they do not 
report W's self-employment tax on that income. H and W divorce in July 
2003. In August 2003, H and W receive a 30-day letter from the Internal 
Revenue Service proposing a deficiency with respect to W's unreported 
self-employment tax on the 2001 return. On November 4, 2003, H files an 
election to allocate the deficiency to W. The erroneous item is the 
self-employment income, and it is allocable to W. H knows that W earned 
income in 2001 as a self-employed musician, but he does not know that 
self-employment tax must be reported on and paid with a joint return.
    (ii) H's election to allocate the deficiency to W is invalid 
because, at the time H signed the joint return, H had actual knowledge 
of W's self-employment income. The fact that H was unaware of the tax 
consequences of that income (i.e., that an individual is required to pay 
self-employment tax on that income) is not relevant.
    Example 2. Actual knowledge not inferred from a requesting spouse's 
reason to know. (i) H has long been an avid gambler. H supports his 
gambling habit and keeps all of his gambling winnings in an individual 
bank account, held solely in his name. W knows about H's gambling habit 
and that he keeps

[[Page 120]]

a separate bank account, but she does not know whether he has any 
winnings because H does not tell her, and she does not otherwise know of 
H's bank account transactions. H and W file their 2001 joint Federal 
income tax return on April 15, 2002. On October 31, 2003, H and W 
receive a 30-day letter proposing a $100,000 deficiency relating to H's 
unreported gambling income. In February 2003, H and W divorce, and in 
March 2004, W files an election under section 6015(c) to allocate the 
$100,000 deficiency to H.
    (ii) While W may have had reason to know of the gambling income 
because she knew of H's gambling habit and separate account, W did not 
have actual knowledge of the erroneous item (i.e., the gambling 
winnings). The Internal Revenue Service may not infer actual knowledge 
from W's reason to know of the income. Therefore, W's election to 
allocate the $100,000 deficiency to H is valid.
    Example 3. Actual knowledge and failure to review return. (i) H and 
W are legally separated. In February 1999, W signs a blank joint Federal 
income tax return for 1998 and gives it to H to fill out. The return was 
timely filed on April 15, 1999. In September 2001, H and W receive a 30-
day letter proposing a deficiency relating to $100,000 of unreported 
dividend income received by H with respect to stock of ABC Co. owned by 
H. W knew that H received the $100,000 dividend payment in August 1998, 
but she did not know whether H reported that payment on the joint 
return.
    (ii) On January 30, 2002, W files an election to allocate the 
deficiency from the 1998 return to H. W claims she did not review the 
completed joint return, and therefore, she had no actual knowledge that 
there was an understatement of the dividend income. W's election to 
allocate the deficiency to H is invalid because she had actual knowledge 
of the erroneous item (dividend income from ABC Co.) at the time she 
signed the return. The fact that W signed a blank return is irrelevant. 
The result would be the same if W had not reviewed the completed return 
or if W had reviewed the completed return and had not noticed that the 
item was omitted.
    Example 4. Actual knowledge of an erroneous item of income. (i) H 
and W are legally separated. In June 2004, a deficiency is proposed with 
respect to H's and W's 2002 joint Federal income tax return that is 
attributable to $30,000 of unreported income from H's plumbing business 
that should have been reported on a Schedule C. No Schedule C was 
attached to the return. At the time W signed the return, W knew that H 
had a plumbing business but did not know whether H received any income 
from the business. W's election to allocate to H the deficiency 
attributable to the $30,000 of unreported plumbing income is valid.
    (ii) Assume the same facts as in paragraph (i) of this Example 5 
except that, at the time W signed the return, W knew that H received 
$20,000 of plumbing income. W's election to allocate to H the deficiency 
attributable to the $20,000 of unreported plumbing income (of which W 
had actual knowledge) is invalid. W's election to allocate to H the 
deficiency attributable to the $10,000 of unreported plumbing income (of 
which W did not have actual knowledge) is valid.
    (iii) Assume the same facts as in paragraph (i) of this Example 5 
except that, at the time W signed the return, W did not know the exact 
amount of H's plumbing income. W did know, however, that H received at 
least $8,000 of plumbing income. W's election to allocate to H the 
deficiency attributable to $8,000 of unreported plumbing income (of 
which W had actual knowledge) is invalid. W's election to allocate to H 
the deficiency attributable to the remaining $22,000 of unreported 
plumbing income (of which W did not have actual knowledge) is valid.
    (iv) Assume the same facts as in paragraph (i) of this Example 5 
except that H reported $26,000 of plumbing income on the return and 
omitted $4,000 of plumbing income from the return. At the time W signed 
the return, W knew that H was a plumber, but she did not know that H 
earned more than $26,000 that year. W's election to allocate to H the 
deficiency attributable to the $4,000 of unreported plumbing income is 
valid because she did not have actual knowledge that H received plumbing 
income in excess of $26,000.
    (v) Assume the same facts as in paragraph (i) of this Example 5 
except that H reported only $20,000 of plumbing income on the return and 
omitted $10,000 of plumbing income from the return. At the time W signed 
the return, W knew that H earned at least $26,000 that year as a 
plumber. However, W did not know that, in reality, H earned $30,000 that 
year as a plumber. W's election to allocate to H the deficiency 
attributable to the $6,000 of unreported plumbing income (of which W had 
actual knowledge) is invalid. W's election to allocate to H the 
deficiency attributable to the $4,000 of unreported plumbing income (of 
which W did not have actual knowledge) is valid.
    Example 5. Actual knowledge of a deduction that is an erroneous 
item. (i) H and W are legally separated. In February 2005, a deficiency 
is asserted with respect to their 2002 joint Federal income tax return. 
The deficiency is attributable to a disallowed $1,000 deduction for 
medical expenses H claimed he incurred. At the time W signed the return, 
W knew that H had not incurred any medical expenses. W's election to 
allocate to H the deficiency attributable to the disallowed medical 
expense deduction is invalid because W had actual knowledge that H had 
not incurred any medical expenses.
    (ii) Assume the same facts as in paragraph (i) of this Example 6 
except that, at the time W signed the return, W did not know whether

[[Page 121]]

H had incurred any medical expenses. W's election to allocate to H the 
deficiency attributable to the disallowed medical expense deduction is 
valid because she did not have actual knowledge that H had not incurred 
any medical expenses.
    (iii) Assume the same facts as in paragraph (i) of this Example 6 
except that the Internal Revenue Service disallowed $400 of the $1,000 
medical expense deduction. At the time W signed the return, W knew that 
H had incurred some medical expenses but did not know the exact amount. 
W's election to allocate to H the deficiency attributable to the 
disallowed medical expense deduction is valid because she did not have 
actual knowledge that H had not incurred medical expenses (in excess of 
the floor amount under section 213(a)) of more than $600.
    (iv) Assume the same facts as in paragraph (i) of this Example 6 
except that H claims a medical expense deduction of $10,000 and the 
Internal Revenue Service disallows $9,600. At the time W signed the 
return, W knew H had incurred some medical expenses but did not know the 
exact amount. W also knew that H incurred medical expenses (in excess of 
the floor amount under section 213(a)) of no more than $1,000. W's 
election to allocate to H the deficiency attributable to the portion of 
the overstated deduction of which she had actual knowledge ($9,000) is 
invalid. W's election to allocate the deficiency attributable to the 
portion of the overstated deduction of which she had no knowledge ($600) 
is valid.
    Example 6. Disqualified asset presumption. (i) H and W are divorced. 
In May 1999, W transfers $20,000 to H, and in April 2000, H and W 
receive a 30-day letter proposing a $40,000 deficiency on their 1998 
joint Federal income tax return. The liability remains unpaid, and in 
October 2000, H elects to allocate the deficiency under this section. 
Seventy-five percent of the net amount of erroneous items are allocable 
to W, and 25% of the net amount of erroneous items are allocable to H.
    (ii) In accordance with the proportionate allocation method (see 
paragraph (d)(4) of this section), H proposes that $30,000 of the 
deficiency be allocated to W and $10,000 be allocated to himself. H 
submits a signed statement providing that the principal purpose of the 
$20,000 transfer was not the avoidance of tax or payment of tax, but he 
does not submit any documentation indicating the reason for the 
transfer. H has not overcome the presumption that the $20,000 was a 
disqualified asset. Therefore, the portion of the deficiency for which H 
is liable ($10,000) is increased by the value of the disqualified asset 
($20,000). H is relieved of liability for $10,000 of the $30,000 
deficiency allocated to W, and remains jointly and severally liable for 
the remaining $30,000 of the deficiency (assuming that H does not 
qualify for relief under any other provision).
    Example 7. Disqualified asset presumption inapplicable. On May 1, 
2001, H and W receive a 30-day letter regarding a proposed deficiency on 
their 1999 joint Federal income tax return relating to unreported 
capital gain from H's sale of his investment in Z stock. W had no actual 
knowledge of the stock sale. The deficiency is assessed in November 
2001, and in December 2001, H and W divorce. According to a decree of 
divorce, H must transfer \1/2\ of his interest in mutual fund A to W. 
The transfer takes place in February 2002. In August 2002, W elects to 
allocate the deficiency to H. Although the transfer of \1/2\ of H's 
interest in mutual fund A took place after the 30-day letter was mailed, 
the mutual fund interest is not presumed to be a disqualified asset 
because the transfer of H's interest in the fund was made pursuant to a 
decree of divorce.
    Example 8. Overcoming the disqualified asset presumption. (i) H and 
W are married for 25 years. Every September, on W's birthday, H gives W 
a gift of $500. On February 28, 2002, H and W receive a 30-day letter 
from the Internal Revenue Service relating to their 1998 joint 
individual Federal income tax return. The deficiency relates to H's 
Schedule C business, and W had no knowledge of the items giving rise to 
the deficiency. H and W are legally separated in June 2003, and, despite 
the separation, H continues to give W $500 each year for her birthday. H 
is not required to give such amounts pursuant to a decree of divorce or 
separate maintenance.
    (ii) On January 27, 2004, W files an election to allocate the 
deficiency to H. The $1,500 transferred from H to W from February 28, 
2001 (a year before the 30-day letter was mailed) to the present is 
presumed disqualified. However, W may overcome the presumption that such 
amounts were disqualified by establishing that such amounts were 
birthday gifts from H and that she has received such gifts during their 
entire marriage. Such facts would show that the amounts were not 
transferred for the purpose of avoidance of tax or payment of tax.

    (d) Allocation--(1) In general. (i) An election to allocate a 
deficiency limits the requesting spouse's liability to that portion of 
the deficiency allocated to the requesting spouse pursuant to this 
section.
    (ii) Only a requesting spouse may receive relief. A nonrequesting 
spouse who does not also elect relief under this section remains liable 
for the entire amount of the deficiency. Even if both spouses elect to 
allocate a deficiency under this section, there may be a portion of the 
deficiency that is not allocable, for which both spouses remain jointly 
and severally liable.

[[Page 122]]

    (2) Allocation of erroneous items. For purposes of allocating a 
deficiency under this section, erroneous items are generally allocated 
to the spouses as if separate returns were filed, subject to the 
following four exceptions:
    (i) Benefit on the return. An erroneous item that would otherwise be 
allocated to the nonrequesting spouse is allocated to the requesting 
spouse to the extent that the requesting spouse received a tax benefit 
on the joint return.
    (ii) Fraud. The Internal Revenue Service may allocate any item 
between the spouses if the Internal Revenue Service establishes that the 
allocation is appropriate due to fraud by one or both spouses.
    (iii) Erroneous items of income. Erroneous items of income are 
allocated to the spouse who was the source of the income. Wage income is 
allocated to the spouse who performed the services producing such wages. 
Items of business or investment income are allocated to the spouse who 
owned the business or investment. If both spouses owned an interest in 
the business or investment, the erroneous item of income is generally 
allocated between the spouses in proportion to each spouse's ownership 
interest in the business or investment, subject to the limitations of 
paragraph (c) of this section. In the absence of clear and convincing 
evidence supporting a different allocation, an erroneous income item 
relating to an asset that the spouses owned jointly is generally 
allocated 50% to each spouse, subject to the limitations in paragraph 
(c) of this section and the exceptions in paragraph (c)(2)(iv) of this 
section. For rules regarding the effect of community property laws, see 
Sec. 1.6015-1(f) and paragraph (c)(2)(iv) of this section.
    (iv) Erroneous deduction items. Erroneous deductions related to a 
business or investment are allocated to the spouse who owned the 
business or investment. If both spouses owned an interest in the 
business or investment, an erroneous deduction item is generally 
allocated between the spouses in proportion to each spouse's ownership 
interest in the business or investment. In the absence of clear and 
convincing evidence supporting a different allocation, an erroneous 
deduction item relating to an asset that the spouses owned jointly is 
generally allocated 50% to each spouse, subject to the limitations in 
paragraph (c) of this section and the exceptions in paragraph (d)(4) of 
this section. Deduction items unrelated to a business or investment are 
also generally allocated 50% to each spouse, unless the evidence shows 
that a different allocation is appropriate.
    (3) Burden of proof. Except for establishing actual knowledge under 
paragraph (c)(2) of this section, the requesting spouse must prove that 
all of the qualifications for making an election under this section are 
satisfied and that none of the limitations (including the limitation 
relating to transfers of disqualified assets) apply. The requesting 
spouse must also establish the proper allocation of the erroneous items.
    (4) General allocation method--(i) Proportionate allocation. (A) The 
portion of a deficiency allocable to a spouse is the amount that bears 
the same ratio to the deficiency as the net amount of erroneous items 
allocable to the spouse bears to the net amount of all erroneous items. 
This calculation may be expressed as follows:
[GRAPHIC] [TIFF OMITTED] TR18JY02.004

where X = the portion of the deficiency allocable to the spouse.

    (B) The proportionate allocation applies to any portion of the 
deficiency other than--
    (1) Any portion of the deficiency attributable to erroneous items 
allocable to the nonrequesting spouse of which the requesting spouse had 
actual knowledge;

[[Page 123]]

    (2) Any portion of the deficiency attributable to separate treatment 
items (as defined in paragraph (d)(4)(ii) of this section);
    (3) Any portion of the deficiency relating to the liability of a 
child (as defined in paragraph (d)(4)(iii) of this section) of the 
requesting spouse or nonrequesting spouse;
    (4) Any portion of the deficiency attributable to alternative 
minimum tax under section 55;
    (5) Any portion of the deficiency attributable to accuracy-related 
or fraud penalties;
    (6) Any portion of the deficiency allocated pursuant to alternative 
allocation methods authorized under paragraph (d)(6) of this section.
    (ii) Separate treatment items. Any portion of a deficiency that is 
attributable to an item allocable solely to one spouse and that results 
from the disallowance of a credit, or a tax or an addition to tax (other 
than tax imposed by section 1 or section 55) that is required to be 
included with a joint return (a separate treatment item) is allocated 
separately to that spouse. If such credit or tax is attributable in 
whole or in part to both spouses, then the IRS will determine on a case 
by case basis how such item will be allocated. Once the proportionate 
allocation is made, the liability for the requesting spouse's separate 
treatment items is added to the requesting spouse's share of the 
liability.
    (iii) Child's liability. Any portion of a deficiency relating to the 
liability of a child of the requesting and nonrequesting spouse is 
allocated jointly to both spouses. For purposes of this paragraph, a 
child does not include the taxpayer's stepson or stepdaughter, unless 
such child was legally adopted by the taxpayer. If the child is the 
child of only one of the spouses, and the other spouse had not legally 
adopted such child, any portion of a deficiency relating to the 
liability of such child is allocated solely to the parent spouse.
    (iv) Allocation of certain items--(A) Alternative minimum tax. Any 
portion of a deficiency relating to the alternative minimum tax under 
section 55 will be allocated appropriately.
    (B) Accuracy-related and fraud penalties. Any accuracy-related or 
fraud penalties under section 6662 or 6663 are allocated to the spouse 
whose item generated the penalty.
    (5) Examples. The following examples illustrate the rules of this 
paragraph (d). In each example, assume that the requesting spouse or 
spouses qualify to elect to allocate the deficiency, that any election 
is timely made, and that the deficiency remains unpaid. In addition, 
unless otherwise stated, assume that neither spouse has actual knowledge 
of the erroneous items allocable to the other spouse. The examples are 
as follows:

    Example 1. Allocation of erroneous items. (i) H and W file a 2003 
joint Federal income tax return on April 15, 2004. On April 28, 2006, a 
deficiency is assessed with respect to their 2003 return. Three 
erroneous items give rise to the deficiency--
    (A) Unreported interest income, of which W had actual knowledge, 
from H's and W's joint bank account;
    (B) A disallowed business expense deduction on H's Schedule C; and
    (C) A disallowed Lifetime Learning Credit for W's post-secondary 
education, paid for by W.
    (ii) H and W divorce in May 2006, and in September 2006, W timely 
elects to allocate the deficiency. The erroneous items are allocable as 
follows:
    (A) The interest income would be allocated \1/2\ to H and \1/2\ to 
W, except that W has actual knowledge of it. Therefore, W's election to 
allocate the portion of the deficiency attributable to this item is 
invalid, and W remains jointly and severally liable for it.
    (B) The business expense deduction is allocable to H.
    (C) The Lifetime Learning Credit is allocable to W.
    Example 2. Proportionate allocation. (i) W and H timely file their 
2001 joint Federal income tax return on April 15, 2002. On August 16, 
2004, a $54,000 deficiency is assessed with respect to their 2001 joint 
return. H and W divorce on October 14, 2004, and W timely elects to 
allocate the deficiency. Five erroneous items give rise to the 
deficiency--
    (A) A disallowed $15,000 business deduction allocable to H;
    (B) $20,000 of unreported income allocable to H;
    (C) A disallowed $5,000 deduction for educational expense allocable 
to H;
    (D) A disallowed $40,000 charitable contribution deduction allocable 
to W; and
    (E) A disallowed $40,000 interest deduction allocable to W.
    (ii) In total, there are $120,000 worth of erroneous items, of which 
$80,000 are attributable to W and $40,000 are attributable to H.

[[Page 124]]



           W's items                                                         H's items
-------------------------------------------------------------    -----------------------------------------------
  $40,000  charitable deduction                                     $15,000  business deduction
   40,000  interest deduction                                        20,000  unreported income
                                                                      5,000  education deduction
----------                                                       -----------
  $80,000                                                           $40,000
 

    (iii) The ratio of erroneous items allocable to W to the total 
erroneous items is \2/3\ ($80,000/$120,000). W's liability is limited to 
$36,000 of the deficiency (\2/3\ of $54,000). The Internal Revenue 
Service may collect up to $36,000 from W and up to $54,000 from H (the 
total amount collected, however, may not exceed $54,000). If H also made 
an election, there would be no remaining joint and several liability, 
and the Internal Revenue Service would be permitted to collect $36,000 
from W and $18,000 from H.
    Example 3. Proportionate allocation with joint erroneous item. (i) 
On September 4, 2001, W elects to allocate a $3,000 deficiency for the 
1998 tax year to H. Three erroneous items give rise to the deficiency--
    (A) Unreported interest in the amount of $4,000 from a joint bank 
account;
    (B) A disallowed deduction for business expenses in the amount of 
$2,000 attributable to H's business; and
    (C) Unreported wage income in the amount of $6,000 attributable to 
W's second job.
    (ii) The erroneous items total $12,000. Generally, income, 
deductions, or credits from jointly held property that are erroneous 
items are allocable 50% to each spouse. However, in this case, both 
spouses had actual knowledge of the unreported interest income. 
Therefore, W's election to allocate the portion of the deficiency 
attributable to this item is invalid, and W and H remain jointly and 
severally liable for this portion. Assume that this portion is $1,000. W 
may allocate the remaining $2,000 of the deficiency.

           H's items                                                         W's items
-------------------------------------------------------------    -----------------------------------------------
   $2,000  business deduction                                        $6,000  wage income
 

    Total allocable items: $8,000
    (iii) The ratio of erroneous items allocable to W to the total 
erroneous items is \3/4\ ($6,000/$8,000). W's liability is limited to 
$1,500 of the deficiency (\3/4\ of $2,000) allocated to her. The 
Internal Revenue Service may collect up to $2,500 from W (\3/4\ of the 
total allocated deficiency plus $1,000 of the deficiency attributable to 
the joint bank account interest) and up to $3,000 from H (the total 
amount collected, however, cannot exceed $3,000).
    (iv) Assume H also elects to allocate the 1998 deficiency. H is 
relieved of liability for \3/4\ of the deficiency, which is allocated to 
W. H's relief totals $1,500 (\3/4\ of $2,000). H remains liable for 
$1,500 of the deficiency (\1/4\ of the allocated deficiency plus $1,000 
of the deficiency attributable to the joint bank account interest).
    Example 4. Separate treatment items (STIs). (i) On September 1, 
2006, a $28,000 deficiency is assessed with respect to H's and W's 2003 
joint return. The deficiency is the result of 4 erroneous items--
    (A) A disallowed Lifetime Learning Credit of $2,000 attributable to 
H;
    (B) A disallowed business expense deduction of $8,000 attributable 
to H;
    (C) Unreported income of $24,000 attributable to W; and
    (D) Unreported self-employment tax of $14,000 attributable to W.
    (ii) H and W both elect to allocate the deficiency.
    (iii) The $2,000 Lifetime Learning Credit and the $14,000 self-
employment tax are STIs totaling $16,000. The amount of erroneous items 
included in computing the proportionate allocation ratio is $32,000 
($24,000 unreported income and $8,000 disallowed business expense 
deduction). The amount of the deficiency subject to proportionate 
allocation is reduced by the amount of STIs ($28,000-$16,000 = $12,000).
    (iv) Of the $32,000 of proportionate allocation items, $24,000 is 
allocable to W, and $8,000 is allocable to H.

W's share of allocable items           H's share of allocable items
\3/4\ ($24,000/$32,000)                \1/4\ ($8,000/$32,000)
 

    (v) W's liability for the portion of the deficiency subject to 
proportionate allocation is limited to $9,000 (\3/4\ of $12,000) and H's 
liability for such portion is limited to $3,000 (\1/4\ of $12,000).

[[Page 125]]

    (vi) After the proportionate allocation is completed, the amount of 
the STIs is added to each spouse's allocated share of the deficiency.

           W's share of total deficiency                                     H's share of total deficiency
-------------------------------------------------------------    -----------------------------------------------
  $ 9,000  allocated deficiency                                      $3,000  allocated deficiency
   14,000  self-employment tax                                        2,000  Lifetime Learning Credit
----------                                                       -----------
  $23,000                                                            $5,000
 

    (vii) Therefore, W's liability is limited to $23,000 and H's 
liability is limited to $5,000.
    Example 5. Requesting spouse receives a benefit on the joint return 
from the nonrequesting spouse's erroneous item. (i) In 2001, H reports 
gross income of $4,000 from his business on Schedule C, and W reports 
$50,000 of wage income. On their 2001 joint Federal income tax return, H 
deducts $20,000 of business expenses resulting in a net loss from his 
business of $16,000. H and W divorce in September 2002, and on May 22, 
2003, a $5,200 deficiency is assessed with respect to their 2001 joint 
return. W elects to allocate the deficiency. The deficiency on the joint 
return results from a disallowance of all of H's $20,000 of deductions.
    (ii) Since H used only $4,000 of the disallowed deductions to offset 
gross income from his business, W benefitted from the other $16,000 of 
the disallowed deductions used to offset her wage income. Therefore, 
$4,000 of the disallowed deductions are allocable to H and $16,000 of 
the disallowed deductions are allocable to W. W's liability is limited 
to $4,160 (\4/5\ of $5,200). If H also elected to allocate the 
deficiency, H's election to allocate the $4,160 of the deficiency to W 
would be invalid because H had actual knowledge of the erroneous items.
    Example 6. Calculation of requesting spouse's benefit on the joint 
return when the nonrequesting spouse's erroneous item is partially 
disallowed. Assume the same facts as in Example 5, except that H deducts 
$18,000 for business expenses on the joint return, of which $16,000 are 
disallowed. Since H used only $2,000 of the $16,000 disallowed 
deductions to offset gross income from his business, W received benefit 
on the return from the other $14,000 of the disallowed deductions used 
to offset her wage income. Therefore, $2,000 of the disallowed 
deductions are allocable to H and $14,000 of the disallowed deductions 
are allocable to W. W's liability is limited to $4,550 (\7/8\ of 
$5,200).

    (6) Alternative allocation methods--(i) Allocation based on 
applicable tax rates. If a deficiency arises from two or more erroneous 
items that are subject to tax at different rates (e.g., ordinary income 
and capital gain items), the deficiency will be allocated after first 
separating the erroneous items into categories according to their 
applicable tax rate. After all erroneous items are categorized, a 
separate allocation is made with respect to each tax rate category using 
the proportionate allocation method of paragraph (d)(4) of this section.
    (ii) Allocation methods provided in subsequent published guidance. 
Additional alternative methods for allocating erroneous items under 
section 6015(c) may be prescribed by the Treasury and IRS in subsequent 
revenue rulings, revenue procedures, or other appropriate guidance.
    (iii) Example. The following example illustrates the rules of this 
paragraph (d)(6):

    Example. Allocation based on applicable tax rates. H and W timely 
file their 1998 joint Federal income tax return. H and W divorce in 
1999. On July 13, 2001, a $5,100 deficiency is assessed with respect to 
H's and W's 1998 return. Of this deficiency, $2,000 results from 
unreported capital gain of $6,000 that is attributable to W and $4,000 
of capital gain that is attributable to H (both gains being subject to 
tax at the 20% marginal rate). The remaining $3,100 of the deficiency is 
attributable to $10,000 of unreported dividend income of H that is 
subject to tax at a marginal rate of 31%. H and W both timely elect to 
allocate the deficiency, and qualify under this section to do so. There 
are erroneous items subject to different tax rates; thus, the 
alternative allocation method of this paragraph (d)(6) applies. The 
three erroneous items are first categorized according to their 
applicable tax rates, then allocated. Of the total amount of 20% tax 
rate items ($10,000), 60% is allocable to W and 40% is allocable to H. 
Therefore, 60% of the $2,000 deficiency attributable to these items (or 
$1,200) is allocated to W. The remaining 40% of this portion of the 
deficiency ($800) is allocated to H. The only 31% tax rate item is 
allocable to H. Accordingly, H is liable for $3,900 of the deficiency 
($800 + $3,100), and W is liable for the remaining $1,200.

[T.D. 9003, 67 FR 47285, July 18, 2002]

[[Page 126]]



Sec. 1.6015-4  Equitable relief.

    (a) A requesting spouse who files a joint return for which a 
liability remains unpaid and who does not qualify for full relief under 
Sec. 1.6015-2 or 1.6015-3 may request equitable relief under this 
section. The Internal Revenue Service has the discretion to grant 
equitable relief from joint and several liability to a requesting spouse 
when, considering all of the facts and circumstances, it would be 
inequitable to hold the requesting spouse jointly and severally liable.
    (b) This section may not be used to circumvent the limitation of 
Sec. 1.6015-3(c)(1) (i.e., no refunds under Sec. 1.6015-3). Therefore, 
relief is not available under this section to obtain a refund of 
liabilities already paid, for which the requesting spouse would 
otherwise qualify for relief under Sec. 1.6015-3.
    (c) For guidance concerning the criteria to be used in determining 
whether it is inequitable to hold a requesting spouse jointly and 
severally liable under this section, see Rev. Proc. 2000-15 (2000-1 C.B. 
447), or other guidance published by the Treasury and IRS (see 
Sec. 601.601(d)(2) of this chapter).

[T.D. 9003, 67 FR 47285, July 18, 2002]



Sec. 1.6015-5  Time and manner for requesting relief.

    (a) Requesting relief. To elect the application of Sec. 1.6015-2 or 
1.6015-3, or to request equitable relief under Sec. 1.6015-4, a 
requesting spouse must file Form 8857, ``Request for Innocent Spouse 
Relief'' (or other specified form); submit a written statement 
containing the same information required on Form 8857, which is signed 
under penalties of perjury; or submit information in the manner 
prescribed by the Treasury and IRS in forms, relevant revenue rulings, 
revenue procedures, or other published guidance (see Sec. 601.601(d)(2) 
of this chapter).
    (b) Time period for filing a request for relief--(1) In general. To 
elect the application of Sec. 1.6015-2 or 1.6015-3, or to request 
equitable relief under Sec. 1.6015-4, a requesting spouse must file Form 
8857 or other similar statement with the Internal Revenue Service no 
later than two years from the date of the first collection activity 
against the requesting spouse after July 22, 1998, with respect to the 
joint tax liability.
    (2) Definitions--(i) Collection activity. For purposes of this 
paragraph (b), collection activity means a section 6330 notice; an 
offset of an overpayment of the requesting spouse against a liability 
under section 6402; the filing of a suit by the United States against 
the requesting spouse for the collection of the joint tax liability; or 
the filing of a claim by the United States in a court proceeding in 
which the requesting spouse is a party or which involves property of the 
requesting spouse. Collection activity does not include a notice of 
deficiency; the filing of a Notice of Federal Tax Lien; or a demand for 
payment of tax. The term property of the requesting spouse, for purposes 
of this paragraph (b), means property in which the requesting spouse has 
an ownership interest (other than solely through the operation of 
community property laws), including property owned jointly with the 
nonrequesting spouse.
    (ii) Section 6330 notice. A section 6330 notice refers to the notice 
sent, pursuant to section 6330, providing taxpayers notice of the 
Service's intent to levy and of their right to a collection due process 
(CDP) hearing.
    (3) Requests for relief made before commencement of collection 
activity. An election or request for relief may be made before 
collection activity has commenced. For example, an election or request 
for relief may be made in connection with an audit or examination of the 
joint return or a demand for payment, or pursuant to the CDP hearing 
procedures under section 6320 in connection with the filing of a Notice 
of Federal Tax Lien. For more information on the rules regarding 
collection due process for liens, see the Treasury regulations under 
section 6320. However, no request for relief may be made before the date 
specified in paragraph (b)(5) of this section.
    (4) Examples. The following examples illustrate the rules of this 
paragraph (b):

    Example 1. On January 11, 2000, a section 6330 notice is mailed to H 
and W regarding their 1997 joint Federal income tax liability. The 
Internal Revenue Service levies on W's

[[Page 127]]

employer on June 5, 2000. The Internal Revenue Service levies on H's 
employer on July 10, 2000. An election or request for relief must be 
made by January 11, 2002, which is two years after the Internal Revenue 
Service sent the section 6330 notice.
    Example 2. The Internal Revenue Service offsets an overpayment 
against a joint liability for 1995 on January 12, 1998. The offset only 
partially satisfies the liability. The Internal Revenue Service takes no 
other collection actions. On July 24, 2001, W elects relief with respect 
to the unpaid portion of the 1995 liability. W's election is timely 
because the Internal Revenue Service has not taken any collection 
activity after July 22, 1998; therefore, the two-year period has not 
commenced.
    Example 3. Assume the same facts as in Example 2, except that the 
Internal Revenue Service sends a section 6330 notice on January 22, 
1999. W's election is untimely because it is filed more than two years 
after the first collection activity after July 22, 1998.
    Example 4. H and W do not remit full payment with their timely filed 
joint Federal income tax return for the 1989 tax year. No collection 
activity is taken after July 22, 1998, until the United States files a 
suit against both H and W to reduce the tax assessment to judgment and 
to foreclose the tax lien on their jointly-held business property on 
July 1, 1999. H elects relief on October 2, 2000. The election is timely 
because it is made within two years of the filing of a collection suit 
by the United States against H.
    Example 5. W files a Chapter 7 bankruptcy petition on July 10, 2000. 
On September 5, 2000, the United States files a proof of claim for her 
joint 1998 income tax liability. W elects relief with respect to the 
1998 liability on August 20, 2002. The election is timely because it is 
made within two years of the date the United States filed the proof of 
claim in W's bankruptcy case.

    (5) Premature requests for relief. The Internal Revenue Service will 
not consider premature claims for relief under Sec. 1.6015-2, 1.6015-3, 
or 1.6015-4. A premature claim is a claim for relief that is filed for a 
tax year prior to the receipt of a notification of an audit or a letter 
or notice from the IRS indicating that there may be an outstanding 
liability with regard to that year. Such notices or letters do not 
include notices issued pursuant to section 6223 relating to TEFRA 
partnership proceedings. A premature claim is not considered an election 
or request under Sec. 1.6015-1(h)(5).
    (c) Effect of a final administrative determination--(1) In general. 
A requesting spouse is entitled to only one final administrative 
determination of relief under Sec. 1.6015-1 for a given assessment, 
unless the requesting spouse properly submits a second request for 
relief that is described in Sec. 1.6015-1(h)(5).
    (2) Example. The following example illustrates the rule of this 
paragraph (c):

    Example: In January 2001, W becomes a limited partner in partnership 
P, and in February 2001, she starts her own business from which she 
earns $100,000 of net income for the year. H and W file a joint return 
for tax year 2001, on which they claim $20,000 in losses from their 
investment in P, and they omit W's self-employment tax. In March 2003, 
the Internal Revenue Service commences an audit under the provisions of 
subchapter C of chapter 63 of subtitle F of the Internal Revenue Code 
(TEFRA partnership proceeding) and sends H and W a notice under section 
6223(a)(1). In September 2003, the Internal Revenue Service audits H's 
and W's 2001 joint return regarding the omitted self-employment tax. H 
may file a claim for relief from joint and several liability for the 
self-employment tax liability because he has received a notification of 
an audit indicating that there may be an outstanding liability on the 
joint return. However, his claim for relief regarding the TEFRA 
partnership proceeding is premature under paragraph (b)(5) of this 
section. H will have to wait until the Internal Revenue Service sends 
him a notice of computational adjustment or assesses the liability 
resulting from the TEFRA partnership proceeding before he files a claim 
for relief with respect to any such liability. The assessment relating 
to the TEFRA partnership proceeding is separate from the assessment for 
the self-employment tax; therefore, H's subsequent claim for relief for 
the liability from the TEFRA partnership proceeding is not precluded by 
his previous claim for relief from the self-employment tax liability 
under this paragraph (c).

[T.D. 9003, 67 FR 47285, July 18, 2002, as amended at 67 FR 54735, Aug. 
26, 2002]



Sec. 1.6015-6  Nonrequesting spouse's notice and opportunity to 
participate in administrative proceedings.

    (a) In general. (1) When the Internal Revenue Service receives an 
election under Sec. 1.6015-2 or 1.6015-3, or a request for relief under 
Sec. 1.6015-4, the Internal Revenue Service must send a notice to the 
nonrequesting spouse's last known address that informs the nonrequesting 
spouse of the requesting spouse's claim for relief. For further guidance 
regarding the definition of last known address, see Sec. 301.6212-2 of 
this chapter.

[[Page 128]]

The notice must provide the nonrequesting spouse with an opportunity to 
submit any information that should be considered in determining whether 
the requesting spouse should be granted relief from joint and several 
liability. A nonrequesting spouse is not required to submit information 
under this section. Upon the request of either spouse, the Internal 
Revenue Service will share with one spouse the information submitted by 
the other spouse, unless such information would impair tax 
administration.
    (2) The Internal Revenue Service must notify the nonrequesting 
spouse of the Service's preliminary and final determinations with 
respect to the requesting spouse's claim for relief under section 6015.
    (b) Information submitted. The Internal Revenue Service will 
consider all of the information (as relevant to each particular relief 
provision) that the nonrequesting spouse submits in determining whether 
relief from joint and several liability is appropriate, including 
information relating to the following--
    (1) The legal status of the requesting and nonrequesting spouses' 
marriage;
    (2) The extent of the requesting spouse's knowledge of the erroneous 
items or underpayment;
    (3) The extent of the requesting spouse's knowledge or participation 
in the family business or financial affairs;
    (4) The requesting spouse's education level;
    (5) The extent to which the requesting spouse benefitted from the 
erroneous items;
    (6) Any asset transfers between the spouses;
    (7) Any indication of fraud on the part of either spouse;
    (8) Whether it would be inequitable, within the meaning of 
Secs. 1.6015-2(d) and 1.6015-4, to hold the requesting spouse jointly 
and severally liable for the outstanding liability;
    (9) The allocation or ownership of items giving rise to the 
deficiency; and
    (10) Anything else that may be relevant to the determination of 
whether relief from joint and several liability should be granted.
    (c) Effect of opportunity to participate. The failure to submit 
information pursuant to paragraph (b) of this section does not affect 
the nonrequesting spouse's ability to seek relief from joint and several 
liability for the same tax year. However, information that the 
nonrequesting spouse submits pursuant to paragraph (b) of this section 
is relevant in determining whether relief from joint and several 
liability is appropriate for the nonrequesting spouse should the 
nonrequesting spouse also submit an application for relief.

[T.D. 9003, 67 FR 47285, July 18, 2002]



Sec. 1.6015-7  Tax Court review.

    (a) In general. Requesting spouses may petition the Tax Court to 
review the denial of relief under Sec. 1.6015-1.
    (b) Time period for petitioning the Tax Court. Pursuant to section 
6015(e), the requesting spouse may petition the Tax Court to review a 
denial of relief under Sec. 1.6015-1 within 90 days after the date 
notice of the Service's final determination is mailed by certified or 
registered mail (90-day period). If the IRS does not mail the requesting 
spouse a final determination letter within 6 months of the date the 
requesting spouse files an election under Sec. 1.6015-2 or 1.6015-3, the 
requesting spouse may petition the Tax Court to review the election at 
any time after the expiration of the 6-month period, and before the 
expiration of the 90-day period. The Tax Court also may review a claim 
for relief if Tax Court jurisdiction has been acquired under another 
section of the Internal Revenue Code such as section 6213(a) or 6330(d).
    (c) Restrictions on collection and suspension of the running of the 
period of limitations--(1) Restrictions on collection under Sec. 1.6015-
2 or 1.6015-3. Unless the Internal Revenue Service determines that 
collection will be jeopardized by delay, no levy or proceeding in court 
shall be made, begun, or prosecuted against a requesting spouse electing 
the application of Sec. 1.6015-2 or 1.6015-3 for the collection of any 
assessment to which the election relates until the expiration of the 90-
day period described in paragraph (b) of this section, or if a petition 
is filed with the Tax Court, until the decision of the Tax Court becomes 
final under section 7481. For more information regarding the date on 
which a decision of the Tax Court

[[Page 129]]

becomes final, see section 7481 and the regulations thereunder. 
Notwithstanding the above, if the requesting spouse appeals the Tax 
Court's decision, the Internal Revenue Service may resume collection of 
the liability from the requesting spouse on the date the requesting 
spouse files the notice of appeal, unless the requesting spouse files an 
appeal bond pursuant to the rules of section 7485. Jeopardy under this 
paragraph (c)(1) means conditions exist that would require an assessment 
under section 6851 or 6861 and the regulations thereunder.
    (2) Waiver of the restrictions on collection. A requesting spouse 
may, at any time (regardless of whether a notice of the Service's final 
determination of relief is mailed), waive the restrictions on collection 
in paragraph (c)(1) of this section.
    (3) Suspension of the running of the period of limitations--(i) 
Relief under Sec. 1.6015-2 or 1.6015-3. The running of the period of 
limitations in section 6502 on collection against the requesting spouse 
of the assessment to which an election under Sec. 1.6015-2 or 1.6015-3 
relates is suspended for the period during which the Internal Revenue 
Service is prohibited by paragraph (c)(1) of this section from 
collecting by levy or a proceeding in court and for 60 days thereafter. 
However, if the requesting spouse signs a waiver of the restrictions on 
collection in accordance with paragraph (c)(2) of this section, the 
suspension of the period of limitations in section 6502 on collection 
against the requesting spouse will terminate on the date that is 60 days 
after the date the waiver is filed with the Internal Revenue Service.
    (ii) Relief under Sec. 1.6015-4. If a requesting spouse seeks only 
equitable relief under Sec. 1.6015-4, the restrictions on collection of 
paragraph (c)(1) of this section do not apply. Accordingly, the request 
for relief does not suspend the running of the period of limitations on 
collection.
    (4) Definitions--(i) Levy. For purposes of this paragraph (c), levy 
means an administrative levy or seizure described by section 6331.
    (ii) Proceedings in court. For purposes of this paragraph (c), 
proceedings in court means suits filed by the United States for the 
collection of Federal tax. Proceedings in court does not refer to the 
filing of pleadings and claims and other participation by the Internal 
Revenue Service or the United States in suits not filed by the United 
States, including Tax Court cases, refund suits, and bankruptcy cases.
    (iii) Assessment to which the election relates. For purposes of this 
paragraph (c), the assessment to which the election relates is the 
entire assessment of the deficiency to which the election relates, even 
if the election is made with respect to only part of that deficiency.

[T.D. 9003, 67 FR 47285, July 18, 2002]



Sec. 1.6015-8  Applicable liabilities.

    (a) In general. Section 6015 applies to liabilities that arise after 
July 22, 1998, and to liabilities that arose prior to July 22, 1998, 
that were not paid on or before July 22, 1998.
    (b) Liabilities paid on or before July 22, 1998. A requesting spouse 
seeking relief from joint and several liability for amounts paid on or 
before July 22, 1998, must request relief under section 6013(e) and the 
regulations thereunder.
    (c) Examples. The following examples illustrate the rules of this 
section:

    Example 1. H and W file a joint Federal income tax return for 1995 
on April 15, 1996. There is an understatement on the return attributable 
to an omission of H's wage income. On October 15, 1998, H and W receive 
a 30-day letter proposing a deficiency on the 1995 joint return. W pays 
the outstanding liability in full on November 30, 1998. In March 1999, W 
files Form 8857, requesting relief from joint and several liability 
under section 6015(b). Although W's liability arose prior to July 22, 
1998, it was unpaid as of that date. Therefore, section 6015 is 
applicable.
    Example 2. H and W file their 1995 joint Federal income tax return 
on April 15, 1996. On October 14, 1997, a deficiency of $5,000 is 
assessed regarding a disallowed business expense deduction attributable 
to H. On June 30, 1998, the Internal Revenue Service levies on the 
$3,000 in W's bank account in partial satisfaction of the outstanding 
liability. On August 31, 1998, W files a request for relief from joint 
and several liability. The liability arose prior to July 22, 1998. 
Section 6015 is applicable to the $2,000 that remained unpaid as of July 
22, 1998, and section 6013(e) is applicable to the $3,000 that was paid 
prior to July 22, 1998.

[T.D. 9003, 67 FR 47285, July 18, 2002]

[[Page 130]]



Sec. 1.6015-9  Effective date.

    Sections 1.6015-0 through 1.6015-9 are applicable for all elections 
under Sec. 1.6015-2 or 1.6015-3 or any requests for relief under 
Sec. 1.6015-4 filed on or after July 18, 2002.

[T.D. 9003, 67 FR 47285, July 18, 2002]



Sec. 1.6016-1  Declarations of estimated income tax by corporations.

    (a) Requirement. For taxable years ending on or after December 31, 
1955, a declaration of estimated tax shall be made by every corporation 
(including unincorporated business enterprises electing to be taxed as 
domestic corporations under section 1361), which is subject to taxation 
under section 11 or 1201(a), or subchapter L, chapter 1 of the Code 
(relating to insurance companies), if its income tax under such sections 
or such subchapter L for the taxable year can reasonably be expected to 
exceed the sum of $100,000 plus the amount of any estimated credits 
allowable under section 32 (relating to tax withheld at source on 
nonresident aliens and foreign corporations and on tax-free covenant 
bonds), section 33 (relating to taxes of foreign countries and 
possessions of the United States), and section 38 (relating to 
investment in certain depreciable property).
    (b) Definition of estimated tax. The term ``estimated tax'', in the 
case of a corporation, means the excess of the amount which such 
corporation estimates as its income tax liability for the taxable year 
under section 11 or 1201(a), or subchapter L, chapter 1 of the Code, 
over the sum of $100,000 and any estimated credits under sections 32, 
33, and 38. However, for the rule with respect to the limitation upon 
the $100,000 exemption for members of certain electing affiliated 
groups, see section 243(b)(3)(C)(v) and the regulations thereunder.
    (c) Examples. The application of this section may be illustrated by 
the following examples:

    Example 1. M, a corporation subject to tax under section 11, 
reasonably anticipates that it will have taxable income of $224,000 for 
the calendar year 1964. The normal tax and surtax result in an expected 
liability of $105,000. M determines that it will not have any allowable 
credits under sections 32, 33, and 38 for 1964. Since M's expected tax 
($105,000) exceeds the exemption ($100,000), a declaration of estimated 
tax is required to be filed, reporting an estimated tax of $5,000 
($105,000-$100,000) for the calendar year 1964.
    Example 2. Under the facts stated in example (1), except that M 
estimates it will have an allowable foreign tax credit under section 33 
in the amount of $4,000 and an allowable investment credit under section 
38 in the amount of $3,000, no declaration is required, since M's 
expected tax ($105,000) does not exceed the $100,000 plus the allowable 
credits totaling $7,000.

[T.D. 6768, 29 FR 14921, Nov. 4, 1964]



Sec. 1.6016-2  Contents of declaration of estimated tax.

    (a) In general. The declaration of estimated tax by a corporation 
shall be made on Form 1120-ES. For the purpose of making the 
declaration, the estimated tax should be based upon the amount of gross 
income which the taxpayer can reasonably be expected to receive or 
accrue as the case may be, depending upon the method of accounting upon 
the basis of which the taxable income is computed, and the amount of the 
estimated allowable deductions and credits to be taken into account. 
Such amounts of gross income, deductions, and credits should be 
determined upon the basis of facts and circumstances existing as at the 
time prescribed for the filing of the declaration as well as those 
reasonably to be anticipated for the taxable year.
    (b) Use of prescribed form. Copies of Form 1120-ES will so far as 
possible be furnished taxpayers by district directors. A taxpayer will 
not be excused from making a declaration, however, by the fact that no 
form has been furnished. Taxpayers not supplied with the proper form 
should make application therefor to the district director in ample time 
to have their declarations prepared, verified, and filed with the 
district director on or before the date prescribed for filing the 
declaration. If the prescribed form is not available a statement 
disclosing the estimated income tax after the exemption and the credits, 
if any, should be filed as a tentative declaration within the prescribed 
time, accompanied by the payment of the required installment. Such 
tentative declaration should be supplemented, without unnecessary delay, 
by a declaration made on the proper form.

[[Page 131]]



Sec. 1.6016-3  Amendment of declaration.

    In the making of a declaration of estimated tax the corporation is 
required to take into account the then existing facts and circumstances 
as well as those reasonably to be anticipated relating to prospective 
gross income, allowable deductions, and estimated credits for the 
taxable year. Amended or revised declarations may be made in any case in 
which the corporation estimates that its gross income, deductions, or 
credits will materially change the estimated tax reported in the 
previous declaration. However, for the rule with respect to the number 
of amended declarations which may be filed for taxable years beginning 
after December 31, 1963, see paragraph (d)(2) of Sec. 1.6074-1. Such 
amended declaration may be made on either Form 1120-ES (marked 
``Amended'') or on the reverse side of the installment notice furnished 
the corporation by the district director. See, however, paragraph (b) of 
Sec. 1.6016-2 for procedure to be followed if the prescribed form is not 
available.

[T.D. 6768, 29 FR 14922, Nov. 4, 1964]



Sec. 1.6016-4  Short taxable year.

    (a) Requirement of declaration. No declaration may be made for a 
period of more than 12 months. For purposes of this section a taxable 
year of 52 or 53 weeks, in the case of a corporation which computes its 
taxable income in accordance with the election permitted by section 
441(f), shall be deemed a period of 12 months. For special rules 
affecting the time for filing declarations and paying estimated tax by 
such corporation, see paragraph (b) of Sec. 1.441-2. A separate 
declaration is required where a corporation is required to submit an 
income tax return for a period of less than 12 months, but only if such 
short period ends on or after December 31, 1955. However, no declaration 
is required if the short taxable year:
    (1) Begins on or before December 31, 1963, and is:
    (i) A period of less than 9 months, or
    (ii) A period of 9 or more months but less than 12 months and the 
requirements of section 6016(a) are not met before the 1st day of the 
last month in the short taxable year, or
    (2) Begins after December 31, 1963, and is:
    (i) A period of less than 4 months, or
    (ii) A period of 4 or more months but less than 12 months and the 
requirements of section 6016(a) are not met before the 1st day of the 
last month in the short taxable year.
    (b) Income placed on an annual basis. In cases where the short 
taxable year results from a change of annual accounting period, for the 
purpose of determining whether the anticipated income for a short 
taxable year will result in an estimated tax liability requiring the 
filing of a declaration, such income shall be placed on an annual basis 
in the manner prescribed in section 443(b)(1). If a tax computed on such 
annualized income exceeds the sum of $100,000 and any credits under part 
IV, of subchapter A, chapter 1 of the Code, the estimated tax shall be 
the same part of the excess so computed as the number of months in the 
short period is of 12 months. Thus, for example, a corporation which 
changes from a calendar year basis to a fiscal year basis beginning 
October 1, 1956, will have a short taxable year beginning January 1, 
1956, and ending September 30, 1956. If on or before August 31, 1956, 
the taxpayer anticipates that it will have income of $264,000 for the 9-
month taxable year the estimated tax is computed as follows:

(1) Anticipated taxable income for 9 months.................    $264,000
(2) Annualized income ($264,000  x  12  9).................     352,000
(3) Tax liability on item (2)...............................     177,540
(4) Item (3) reduced by $100,000 (there are no credits under      77,540
 part IV, subchapter A, chapter 1 of the Code)..............
(5) Estimated tax for 9-month period ($77,540  x  9  12)...      58,155
 


Since the tax liability on the annualized income is in excess of 
$100,000, a declaration is required to be filed, reporting an estimated 
tax of $58,155 for the 9-month taxable period. This paragraph has no 
application where the short taxable year does not result from a change 
in the taxpayer's annual accounting period.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 6768, 29 FR 
14922, Nov. 4, 1964]

[[Page 132]]



Sec. 1.6017-1  Self-employment tax returns.

    (a) In general. (1) Every individual, other than a nonresident 
alien, having net earnings from self-employment, as defined in section 
1402, of $400 or more for the taxable year shall make a return of such 
earnings. For purposes of this section, an individual who is a resident 
of the Virgin Islands, Puerto Rico, or (for any taxable year beginning 
after 1960) Guam or American Samoa is not to be considered a nonresident 
alien individual. See paragraph (d) of Sec. 1.1402(b)-1. A return is 
required under this section if an individual has self-employment income, 
as defined in section 1402(b), even though he may not be required to 
make a return under section 6012 for purposes of the tax imposed by 
section 1 or 3. Provisions applicable to returns under section 6012(a) 
shall be applicable to returns under this section.
    (2) Except as otherwise provided in this subparagraph, the return 
required by this section shall be made on Form 1040. The form to be used 
by residents of the Virgin Islands, Guam, or American Samoa is From 
1040SS. In the case of a resident of Puerto Rico who is not required to 
make a return of income under section 6012(a), the form to be used is 
Form 1040SS, except that Form 1040PR shall be used if it is furnished by 
the Internal Revenue Service to such resident for use in lieu of Form 
1040SS.
    (b) Joint returns. (1) In the case of a husband and wife filing a 
joint return under section 6013, the tax on self-employment income is 
computed on the separate self-employment income of each spouse, and not 
on the aggregate of the two amounts. The requirement of section 
6013(d)(3) that in the case of a joint return the tax is computed on the 
aggregate income of the spouses is not applicable with respect to the 
tax on self-employment income. Where the husband and wife each has net 
earnings from self-employment of $400 or more, it will be necessary for 
each to complete separate schedules of the computation of self-
employment tax with respect to the net earnings of each spouse, despite 
the fact that a joint return is filed. If the net earnings from self-
employment of either the husband or the wife are less than $400, such 
net earnings are not subject to the tax on self-employment income, even 
though they must be shown on the joint return for purposes of the tax 
imposed by section 1 or 3.
    (2) Except as otherwise expressly provided, section 6013 is 
applicable to the return of the tax on self-employment income; 
therefore, the liability with respect to such tax in the case of a joint 
return is joint and several.
    (c) Social security account numbers. (1) Every individual making a 
return of net earnings from self-employment for any period commencing 
before January 1, 1962, is required to show thereon his social security 
account number, or, if he has no such account number, to make 
application therefor on Form SS-5 before filing such return. However, 
the failure to apply for or receive a social security account number 
will not excuse the individual from the requirement that he file such 
return on or before the due date thereof. Form SS-5 may be obtained from 
any district office of the Social Security Administration or from any 
district director. The application shall be filed with a district office 
of the Social Security Administration or, in the case of an individual 
not in the United States, with the district office of the Social 
Security Administration at Baltimore, Md. An individual who has 
previously secured a social security account number as an employee shall 
use that account number on his return of net earnings from self-
employment.
    (2) For provisions applicable to the securing of identifying numbers 
and the reporting thereof on returns and schedules for periods 
commencing after December 31, 1961, see Sec. 1.6109-1.
    (d) Declaration of estimated tax with respect to taxable years 
beginning after December 31, 1966. For taxable years beginning after 
December 31, 1966, section 6015 provides that the term ``estimated tax'' 
includes the amount which an individual estimates as the amount of self-
employment tax imposed by chapter 2 for the taxable year. Thus, 
individuals upon whom self-employment tax is imposed by section 1401 
must make a declaration of estimated tax if they meet the requirements 
of section

[[Page 133]]

6015(a); except as otherwise provided under section 6015(i).

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 6691, 28 FR 
12816, Dec. 3, 1963; T.D. 7427, 41 FR 34028, Aug. 12, 1976]

                           information returns



Sec. 1.6031(a)-1  Return of partnership income.

    (a) Domestic partnerships--(1) Return required. Except as provided 
in paragraphs (a)(3) and (c) of this section, every domestic partnership 
must file a return of partnership income under section 6031 (partnership 
return) for each taxable year on the form prescribed for the partnership 
return. The partnership return must be filed for the taxable year of the 
partnership regardless of the taxable years of the partners. For taxable 
years of a partnership and of a partner, see section 706 and Sec. 1.706-
1. For the rules governing partnership statements to partners and 
nominees, see Sec. 1.6031(b)-1T. For the rules requiring the disclosure 
of certain transactions, see Sec. 1.6011-4T.
    (2) Content of return. The partnership return must contain the 
information required by the prescribed form and the accompanying 
instructions.
    (3) Special rule. (i) A partnership that has no income, deductions, 
or credits for federal income tax purposes for a taxable year is not 
required to file a partnership return for that year.
    (ii) The Commissioner may, in guidance published in the Internal 
Revenue Bulletin (see Sec. 601.601(d)(2)(ii)(b) of this chapter), 
provide for an exception to partnership reporting under section 6031 and 
for conditions for the exception, if all or substantially all of a 
partnership's income is derived from the holding or disposition of tax-
exempt obligations (as defined in section 1275(a)(3) and Sec. 1.1275-
1(e)) or shares in a regulated investment company (as defined in section 
851(a)) that pays exempt-interest dividends (as defined in section 
852(b)(5)).
    (4) Failure to file. For the consequences of a failure to comply 
with the requirements of section 6031(a) and this paragraph (a), see 
sections 6229(a), 6231(f), 6698, and 7203.
    (b) Foreign partnerships--(1) General rule. (i) Filing requirement. 
A foreign partnership is not required to file a partnership return, if 
the foreign partnership does not have gross income that is (or is 
treated as) effectively connected with the conduct of a trade or 
business within the United States (ECI) and does not have gross income 
(including gains) derived from sources within the United States (U.S.-
source income). Except as provided in paragraphs (b)(2) and (3) of this 
section, a foreign partnership that has ECI or has U.S.-source income 
that is not ECI must file a partnership return for its taxable year in 
accordance with the rules for domestic partnerships in paragraph (a) of 
this section.
    (ii) Special rule. For purposes of this paragraph (b)(1) and 
paragraph (b)(3)(iii) of this section, a foreign partnership will not be 
considered to have derived income from sources within the United States 
solely because a U.S. partner marks to market his pro rata share of PFIC 
stock held by the foreign partnership pursuant to an election under 
section 1296.
    (2) Foreign partnerships with de minimis U.S.-source income and de 
minimis U.S. partners. A foreign partnership (other than a withholding 
foreign partnership, as defined in Sec. 1.1441-5(c)(2)(i)) that has 
$20,000 or less of U.S.-source income and has no ECI during its taxable 
year is not required to file a partnership return if, at no time during 
the partnership taxable year, one percent or more of any item of 
partnership income, gain, loss, deduction, or credit is allocable in the 
aggregate to direct United States partners. The United States partners 
must directly report their shares of the allocable items of partnership 
income, gain, loss, deduction, and credit.
    (3) Filing obligations for certain other foreign partnerships with 
no ECI--(i) General requirements for modified filing obligations. A 
foreign partnership will be subject to the modified filing obligations 
in paragraphs (b)(3)(ii) and (iii) of this section if, in addition to 
satisfying the requirements contained in paragraphs (b)(3)(ii) and (iii) 
of this section--
    (A) The partnership is not a withholding foreign partnership as 
defined in Sec. 1.1441-5(c)(2)(i);

[[Page 134]]

    (B) Forms 1042 and 1042-S are filed by the partnership with respect 
to the amounts subject to reporting under Sec. 1.1461-1(b) and (c), 
unless the partnership is not required to file such returns under 
Sec. 1.1461-1(b)(2) and (c)(4), in which case Forms 1042 and 1042-S must 
be filed by another withholding agent or agents; and
    (C) The tax liability of the partners with respect to such amounts 
has been fully satisfied by the withholding of tax at the source, if 
applicable, under chapter 3 of the Internal Revenue Code.
    (ii) Foreign partnerships with U.S.-source income but no U.S. 
partners. A foreign partnership that has U.S.-source income is not 
required to file a partnership return if the partnership has no ECI and 
no United States partners at any time during the partnership's taxable 
year.
    (iii) Foreign partnerships with U.S.-source income and U.S. 
partners. Except as provided in paragraph (b)(2) of this section, a 
foreign partnership with one or more United States partners that has 
U.S.-source income but no ECI must file a partnership return. However, 
such a foreign partnership need not file Statements of Partner's Share 
of Income, Credit, Deduction, etc. (Schedules K-1) for any partners 
other than its direct United States partners and its passthrough 
partners (whether U.S. or foreign) through which United States partners 
hold an interest in the foreign partnership. Schedules K-1 that are not 
excepted from filing under this paragraph (b)(3)(iii) must contain the 
same information required of a domestic partnership filing under 
paragraph (a) of this section.
    (4) Information or returns required of partners who are United 
States persons--(i) In general. If a United States person is a partner 
in a partnership that is not required to file a partnership return, the 
district director or director of the relevant service center may require 
that person to render the statements or provide the information 
necessary to verify the accuracy of the reporting by that person of any 
items of partnership income, gain, loss, deduction, or credit.
    (ii) Controlled foreign partnerships. Certain United States persons 
who are partners in a foreign partnership controlled (within the meaning 
of section 6038(e)(1)) by United States persons may be required to 
provide information with respect to the partnership under section 6038.
    (5) Certain partnership elections. For a partnership that is not 
otherwise required to file a partnership return, if an election that can 
only be made by the partnership under section 703 (affecting the 
computation of taxable income derived from a partnership) is to be made 
by or for the partnership, a return on the form prescribed for the 
partnership return must be filed for the partnership. Unless otherwise 
provided in the form or the accompanying instructions, a return filed 
solely to make an election need only contain a written statement citing 
paragraph (b)(5)(ii) of this section, listing the name and address of 
the partnership making the election, and clearly identifying the 
specific election being made. A return filed under paragraph (b)(5)(ii) 
of this section solely to make an election is not a partnership return. 
Thus, such a return is not a return filed under section 6031(a) for 
purposes of sections 6501 (except regarding the specific election 
issue), 6231(a)(1)(A), and 6233. The return must be signed by--
    (i) Each partner that is a partner in the partnership at the time 
the election is made; or
    (ii) Any partner of the partnership who is authorized (under local 
law or the partnership's organizational documents) to make the election 
and who represents to having such authorization under penalties of 
perjury.
    (6) Exclusion for certain organizations. The return requirement of 
section 6031 and this section does not apply to the International 
Telecommunications Satellite Organization, the International Maritime 
Satellite Organization, or any organization that is a successor of 
either.
    (c) Partnerships excluded from the application of subchapter K of 
the Internal Revenue Code--(1) Wholly excluded--(i) Year of election. An 
eligible partnership as described in Sec. 1.761-2(a) that elects to be 
excluded from all the provisions of subchapter K of chapter 1 of the 
Internal Revenue Code in the manner specified by Sec. 1.761-2(b)(2)(i) 
must timely file

[[Page 135]]

the form prescribed for the partnership return for the taxable year for 
which the election is made. In lieu of the information otherwise 
required, the return must contain or be accompanied by the information 
required by Sec. 1.761-2(b)(2)(i).
    (ii) Subsequent years. Except as otherwise provided in paragraph 
(c)(1)(i) of this section, an eligible partnership that elects to be 
wholly excluded from the application of subchapter K is not required to 
file a partnership return.
    (2) Deemed excluded. An eligible partnership that is deemed to have 
elected exclusion from the application of subchapter K beginning with 
its first taxable year, as specified in Sec. 1.761-2(b)(2)(ii), is not 
required to file a partnership return.
    (d) Definitions--(1) Partnership. For the meaning of the term 
partnership, see Sec. 1.761-1(a).
    (2) United States person. In applying this section, a United States 
person is a person described in section 7701(a)(30); the government of 
the United States, a State, or the District of Columbia (including an 
agency or instrumentality thereof); or a corporation created or 
organized in Guam, the Commonwealth of Northern Mariana Islands, the 
U.S. Virgin Islands, and American Samoa, if the requirements of section 
881(b)(1)(A), (B), and (C) are met for such corporation. The term does 
not include an alien individual who is a resident of Puerto Rico, Guam, 
the Commonwealth of Northern Mariana Islands, the U.S. Virgin Islands, 
or American Samoa, as determined under Sec. 301.7701(b)-1(d) of this 
chapter.
    (3) United States partner. In applying this section, a United States 
partner is any United States person who holds a direct or indirect 
interest in the partnership.
    (4) Indirect interest. An indirect interest is any interest held 
through one or more passthrough partners, as defined in section 
6231(a)(9).
    (e) Procedural requirements--(1) Place for filing. The return of a 
partnership must be filed with the service center prescribed in the 
relevant IRS revenue procedure, publication, form, or instructions to 
the form (see Sec. 601.601(d)(2)).
    (2) Time for filing. The return of a partnership must be filed on or 
before the fifteenth day of the fourth month following the close of the 
taxable year of the partnership.
    (3) Magnetic media filing. For magnetic media filing requirements 
with respect to partnerships, see section 6011(e)(2) and the regulations 
thereunder.
    (f) Effective dates. This section applies to taxable years of a 
partnership beginning after December 31, 1999, except that--
    (1) Paragraph (b)(3) of this section applies to taxable years of a 
foreign partnership beginning after December 31, 2000; and
    (2) Paragraph (a)(3)(ii) of this section applies to taxable years of 
a partnership beginning on or after November 5, 2003.

[T.D. 8841, 64 FR 61500, Nov. 12, 1999, as amended by T.D. 9000, 67 FR 
41328, June 18, 2002; T.D. 9094, 68 FR 63734, Nov. 10, 2003; 68 FR 
70584, Dec. 18, 2003; T.D. 9123, 69 FR 24078, May 3, 2004; T.D. 9177, 70 
FR 7176, Feb. 11, 2005]



Sec. 1.6031(b)-1T  Statements to partners (temporary).

    (a) Statement required to be furnished to partners--(1) In general. 
Except as provided in this paragraph (a)(1) and paragraph (a)(2)(ii) of 
this section, any partnership required under section 6031(a) and the 
regulations thereunder to file a partnership return for a taxable year 
shall furnish to every person who was a partner (within the meaning of 
section 7701(a)(2)) at any time during the taxable year a written 
statement containing the information described in paragraph (a)(3) of 
this section. This section shall not apply to a real estate mortgage 
investment conduit (REMIC) treated as a partnership under subtitle F of 
the Code by reason of section 860F(e). For the reporting requirements 
applicable to REMICs see Sec. 1.6031(b)-2T.
    (2) Special rules applicable to partnership interests held by 
nominees--(i) Statements furnished to nominees. For any partnership 
taxable year beginning after October 22, 1986, a partnership shall 
provide a person that holds (directly or indirectly) an interest in such 
partnership as a nominee on behalf of another person at any time during 
such

[[Page 136]]

year with a statement under paragraph (a)(1) of this section with 
respect to such interest if--
    (A) Such nominee has not furnished the statement required under 
Sec. 1.6031(c)-1T(a)(1)(i) to the partnership with respect to such other 
person;
    (B) Such nominee either holds legal title to such partnership 
interest in its own name or is identified in a statement provided to the 
partnership pursuant to Sec. 1.6031(c)-1T(a)(1)(i) by another nominee as 
the person on whose behalf such other nominee holds such interest; and
    (C) Such nominee is not a person described in Sec. 1.6031(c)-
1T(a)(2) (relating to the special rule for clearing agencies).


In such case, the partnership shall assume, for purposes of this 
section, that the nominee is the beneficial owner of the partnership 
interest.
    (ii) Statements not required to be furnished to partners holding 
partnership interests through nominees. A partnership shall not be 
required to furnish a statement under paragraph (a)(1) of this section 
to a partner with respect to any portion of such partner's interest in 
the partnership that is owned through a nominee if--
    (A) Such nominee has not furnished (or is not required to furnish 
under Sec. 1.6031(c)-1T(a)(2)), a statement to the partnership under 
Sec. 1.6031(c)-1T(a)(1)(i) with respect to such partner; and
    (B) Such partner has not furnished (or is not required to furnish) a 
statement to the partnership under Sec. 1.6031(c)-1T(a)(3), with respect 
to such interest in the partnership.
    (3) Contents of statement. The statement required under paragraph 
(a)(1) of this section shall include the following information:
    (i) The partner's distributive share of partnership income, gain, 
loss, deduction, or credit required to be shown on the partnership 
return (or, for taxable years beginning before January 1, 1987, the 
partner's distributive share of partnership income, gain, loss, 
deduction, or credit shown on the partnership return); and
    (ii) To the extent provided by form or the accompanying 
instructions, any additional information that may be required to apply 
particular provisions of subtitle A of the Code to the partner with 
respect to items related to the partnership.
    (b) Time for furnishing statement. The statement required to be 
furnished by the partnership under paragraph (a)(1) of this section 
shall be furnished on or before the day on which the partnership return 
for that taxable year is required to be filed (determined with regard to 
extensions). For partnership returns the due date for which (determined 
without regard to extensions) is before January 1, 1987, the statement 
required to be furnished by the partnership under paragraph (a)(1) of 
this section shall be furnished on or before the day on which the 
partnership return is filed.
    (c) Statement may be provided to agent. If a partner designates 
another person, such as an attorney or an investment advisor, as the 
partner's (or nominee's) agent in dealing with the partnership, the 
partnership may provide the statement required under paragraph (a)(1) of 
this section with respect to such partner to such other person instead 
of the partner.
    (d) Penalties. For penalties for failure to comply with the 
requirements of section 6031(b) and paragraph (a) of this section, see 
section 6722(a).
    (e) Effective date. Except as otherwise provided in this section, 
the provisions of this section apply to partnership taxable years 
beginning after September 3, 1982.

[T.D. 8225, 53 FR 34490, Sept. 7, 1988]



Sec. 1.6031(b)-2T  REMIC reporting requirements (temporary). 

                  [Reserved]



Sec. 1.6031(c)-1T  Nominee reporting of partnership information 

                     (temporary).

    (a) Statements required to be furnished to partnership--(1) 
Statement from nominee--(i) In general. Except as otherwise provided in 
this section, any person who holds, directly or indirectly, an interest 
in a partnership (required under section 6031(a) and the regulations 
thereunder to file a partnership return for a taxable year) as a nominee 
on behalf of another person at any time during the partnership taxable 
year shall furnish to the partnership a written

[[Page 137]]

statement (or statements) for that taxable year with respect to such 
other person containing the information described in paragraph 
(a)(1)(ii) of this section.
    (ii) Contents of statement. The statement required under paragraph 
(a)(1)(i) of this section shall, except as otherwise provided in 
paragraph (a)(4) of this section, include the following information:
    (A) The name, address, and taxpayer identification number of the 
nominee;
    (B) The name, address, and taxpayer identification number of such 
other person;
    (C) Whether such other person is--
    (1) A person that is not a United States person;
    (2) A foreign government, an international organization, or any 
wholly-owned agency or instrumentality of either of the foregoing; or
    (3) A tax-exempt entity (within the meaning of section 168(h)(2));
    (D) A description of any interest in the partnership held by the 
nominee on behalf of such other person at the beginning of the 
partnership taxable year;
    (E) A description of any interest in the partnership that the 
nominee acquires (within the meaning of paragraph (g)(1) of this 
section) on behalf of such other person during the partnership taxable 
year, the method of acquisition (e.g., purchase, exchange, acquisition 
at death, gift, or commencement of nominee relationship) and acquisition 
cost (within the meaning of paragraph (g)(2) of this section) of such 
interest, and the date of the acquisition of such interest; and
    (F) A description of any interest in the partnership that the 
nominee transfers (within the meaning of paragraph (g)(5) of this 
section) on behalf of such other person during the partnership taxable 
year, the net proceeds from the transfer (within the meaning of 
paragraph (g)(6) of this section) of such interest, and the date of the 
transfer of such interest.


A description of a partnership interest must include sufficient detail 
to enable the partnership to furnish to such other person the statement 
required under Sec. 1.6031(b)-1T (a).
    (2) Special rule for clearing agencies. A clearing agency registered 
pursuant to the provisions of section 17A of the Securities Exchange Act 
of 1934 (or its nominee) that holds an interest in a partnership as a 
nominee on behalf of another person shall not be required to furnish any 
statement described in paragraph (a)(1)(i) of this section with respect 
to such interest.
    (3) Special rule for brokers and financial institutions--(i) 
Additional statement required. Any broker (within the meaning of 
paragraph (g)(3) of this section) or financial institution (within the 
meaning of paragraph (g)(4) of this section) that holds an interest in a 
partnership indirectly through a nominee described in paragraph (a)(2) 
of this section at any time during a partnership taxable year shall 
furnish (in addition to any statement (or statements) required under 
paragraph (a)(1)(i) of this section) to the partnership a written 
statement (or statements) containing the information described in 
paragraph (a)(3)(ii) of this section with respect to any interest in 
such partnership that it holds (directly or indirectly) for its own 
account at any time during such partnership taxable year.
    (ii) Contents of statement. The statement required under paragraph 
(a)(3)(i) of this section shall, except as otherwise provided in 
paragraph (a)(4) of this section, include the following information:
    (A) The name, address, and taxpayer identification number of the 
broker or financial institution;
    (B) Whether such broker of financial institution is a person that is 
not a United States person;
    (C) A description of any interest in the partnership held by the 
broker or financial institution for its own account at the beginning of 
the partnership taxable year;
    (D) A description of any interest in the partnership that the broker 
or financial institution acquires for its own account during the 
partnership taxable year, the method of acquisition and acquisition cost 
of such interest, and the date of the acquisition of such interest; and
    (E) A description of any interest in the partnership that the broker 
or financial institution transfers for its

[[Page 138]]

own account during the partnership taxable year, the net proceeds from 
the transfer of such interest, and the date of the transfer of such 
interest.


A description of a partnership interest held by a broker or financial 
institution for its own account must include sufficient detail to enable 
the partnership to furnish to the broker or financial institution the 
statement required under Sec. 1.6031(b)-1T (a).
    (4) Exception--(i) In general. Except as otherwise provided in this 
paragraph (a)(4), any statement required under paragraph (a) (1)(i) or 
(3)(i) of this section for a taxable year is not required to include--
    (A) That part of the information described in paragraph (a) 
(1)(ii)(E) and (3)(ii)(D) of this section regarding the method of 
acquisition and acquisition cost; or
    (B) That part of the information described in paragraph 
(a)(1)(ii)(F) and (3)(ii)(E) of this section regarding the net proceeds 
from the transfer;


to the extent that, prior to the beginning of the partnership taxable 
year, the partnership has provided the nominee with a written statement 
that the nominee need not provide such information to the partnership, 
and the partnership has not modified or revoked such statement. For 
purposes of the preceding sentence, the modification or revocation of a 
statement furnished to a nominee is effective for a partnership taxable 
year if and only if the partnership notifies the nominee of such 
modification or revocation by a written statement more than 60 days 
before the beginning of the partnership taxable year. The nominee shall 
retain a copy of any statement that is furnished to it by the 
partnership under this paragraph (a)(4) in the nominee's records so long 
as the contents thereof may become material in the administration of any 
internal revenue law.
    (ii) Effect of election under section 754. Paragraph (a)(4)(i)(A) of 
this section shall not apply to a partnership taxable year if--
    (A) The partnership has an election in effect under section 754 
(relating to optional adjustment to basis of partnership property) for 
such taxable year; and
    (B) The nominee knows or has reason to know of such election more 
than 60 days before the beginning of such taxable year.
    (5) Examples. The following examples illustrate the application of 
this paragraph (a):

    Example 1. B, a broker, holds 50 units of interest in Partnership P, 
a calendar year partnership, in street name for customer A, the 
beneficial owner. B holds the units on behalf of A at all times during 
1989. B must furnish a statement to P for calendar year 1989 under 
paragraph (a)(1)(i) of this section that includes the information 
required under paragraph (a)(1)(ii) (A) through (D) of this section. The 
description of the partnership interest held by B on A's behalf on 
January 1, 1989, must identify the number of units of P held by B on A's 
behalf at that time (50), and the class of the partnership interest 
(including the Committee on Uniform Security Identification Procedures 
(CUSIP) number of the partnership interest, if known).
    Example 2. The facts are the same as in example (1), except that 
pursuant to A's instructions, B sells 25 of A's units of interest in P 
on August 1, 1989, receiving net proceeds from the transfer of $500. In 
addition to the information described in example (1), the statement that 
B must furnish to P must include the class of the partnership interest 
transferred (including the CUSIP number of the partnership interest, if 
known), the number of units transferred (25), the net proceeds from the 
transfer ($500), and the date of the transfer (August 1, 1989.)
    Example 3. The facts are the same as in example (1), except that A 
is not the beneficial owner, but rather holds the units as a nominee on 
behalf of C, the beneficial owner, at all times during 1989. In addition 
to the statement that B must furnish to P (as described in Example (1) 
of this paragraph (a)(5)), A must furnish a statement to P for calendar 
year 1989 under paragraph (a)(1)(i) of this section that includes the 
information required under paragraph (a)(1)(ii) (A) through (D) of this 
section. If both A and B provide P with the statement required under 
paragraph (a)(1)(i) of this section, P must provide C with the statement 
required under Sec. 1.6031(b)-1T (a)(1).

    (b) Time for furnishing statements. A nominee may furnish to the 
partnership any statement required under paragraph (a) of this section 
annually, quarterly, monthly, or on any other basis, provided that all 
statements required to be furnished under paragraph

[[Page 139]]

(a) of this section for a partnership taxable year shall be furnished on 
or before the last day of the first month following the close of such 
partnership taxable year.
    (c) Use of magnetic media. A nominee required to furnish a written 
statement under paragraph (a) of this section, may, in lieu of 
furnishing such written statement, furnish the required information on 
magnetic tape or by other media if the partnership and the nominee so 
agree.
    (d) Use of single document. Any person who holds interests in a 
partnership as a nominee on behalf of more than one other person during 
the partnership taxable year, may, in lieu of furnishing to the 
partnership a separate statement for each such other person, furnish to 
the partnership a single document which includes, for each such other 
person, the information described in paragraph (a)(1)(ii) of this 
section. To the extent that a single document is used, references in 
this section to the statement required under paragraph (a)(1)(i) of this 
section shall be deemed to refer also to the information included in a 
single document under this paragraph (d).
    (e) Retention of information. The nominee shall retain a copy of any 
statement that is furnished to the partnership under this section in the 
nominee's records so long as the contents thereof may become material in 
the administration of any internal revenue law.
    (f) Use of agent. If a partnership has designated another person, 
such as a clearing organization, as the partnership's agent for purposes 
of receiving the statements required under paragraph (a) of this 
section, such statements may be furnished to that other person instead 
of the partnership. If a nominee has designated another person as its 
agent for purposes of furnishing to the partnership (or its agent) the 
statements required under paragraph (a) of this section, that other 
person may furnish such statements to the partnership (or its agent) on 
behalf of the nominee.
    (g) Meaning of terms. For purposes of this section, the following 
terms have the meanings set forth below:
    (1) The term acquires means--
    (i) A purchase or other acquisition of a partnership interest; or
    (ii) The commencement of a nominee relationship, including the 
substitution of one nominee for another.
    (2) The term acquisition cost means the sum of any money paid and 
the fair market value of any property (other than money) transferred to 
acquire a partnership interest increased by any expenses paid or 
incurred with respect to the acquisition (such as broker's fees or 
commissions).
    (3) The term broker shall have the meaning set forth in paragraph 
(a)(1) of Sec. 1.6045ca-1.
    (4) The term financial institution means a financial institution 
such as a bank, mutual savings bank, savings and loan association, 
building and loan association, cooperative bank, homestead association, 
credit union, industrial loan association or bank or other similar 
organization.
    (5) The term transfer means--
    (i) A sale, exchange, or other disposition of a partnership 
interest; or
    (ii) The termination of a nominee relationship, including the 
substitution of one nominee for another.
    (6) The term net proceeds from the transfer means the sum of any 
money and the fair market value of any property (other than money) 
received in connection with a transfer of a partnership interest reduced 
by any expenses paid or incurred with respect to the transfer (such as 
broker's fees or commissions).
    (7) The term person includes the United States, a State, the 
District of Columbia, a foreign government, a political subdivision of a 
State or foreign government, or an international organization.
    (h) Statement required by nominees that do not comply with 
Sec. 1.6031(c)-1T (a)--(1) In general. Any person that--
    (i) Holds an interest in a partnership as a nominee (other than a 
nominee described in paragraph (a)(3) of this section) on behalf of 
another person at any time during the partnership taxable year;
    (ii) Does not furnish to such partnership the statement required 
under paragraph (a)(1)(i) of this section for such other person with 
respect to such interest in the partnership; and

[[Page 140]]

    (iii) Receives from such partnership the statement described in 
paragraph (a)(1) of Sec. 1.6031(b)-1T with respect to such interest in 
the partnership;


shall furnish to such other person a written statement containing the 
information described in paragraph (h)(2) of this section with respect 
to such interest in the partnership.
    (2) Contents of statement. The statement required under paragraph 
(h)(1) of this section shall contain the following information:
    (i) The distributive share of partnership income, gain, loss, 
deduction or credit required to be shown on the partnership return that 
is allocable to such interest in the partnership; and
    (ii) Any additional information that may be required to apply 
particular provisions of subtitle A of the Code to the beneficial owner 
of such interest in the partnership in connection with items related to 
the partnership.
    (3) Time for furnishing statements. A nominee shall furnish the 
statement required under paragraph (h)(1) of this section within 30 days 
after receiving the statement described in paragraph (a) of 
Sec. 1.6031(b)-1T.
    (i) REMICs. This section shall not apply with respect to any 
interest in a real estate mortgage investment conduit (REMIC) treated as 
a partnership under subtitle F of the Code by reason of section 860F(e). 
For the nominee reporting requirements with respect to REMICs see 
Sec. 1.6031(c)-2T.
    (j) Penalties. [Reserved]
    (k) Effective date--(1) In general. Except as otherwise provided in 
paragraph (k)(2) of this section, the provisions of this section shall 
apply to partnership taxable years beginning after October 22, 1986.
    (2) Transitional rule for taxable years beginning before January 1, 
1989. For partnership taxable years beginning before January 1, 1989,--
    (i) Any statement that a nominee is required to furnish to a 
partnership under paragraph (a)(1) of this section shall not be required 
to include the following information:
    (A) The information described in paragraph (a)(1)(ii)(C) of this 
section;
    (B) That part of the information described in paragraph 
(a)(1)(ii)(E) of this section regarding the method of acquisition and 
acquisition cost of a partnership interest; or
    (C) That part of the information described in paragraph 
(a)(1)(ii)(F) of this section regarding the net proceeds from the 
transfer of a partnership interest.
    (ii) A broker or financial institution shall not be required to 
furnish the additional statement described in paragraph (a)(3)(i) of 
this section.

[T.D. 8225, 53 FR 34491, Sept. 7, 1988]



Sec. 1.6031(c)-2T  Nominee reporting of REMIC information 
(temporary). [Reserved]



Sec. 1.6032-1  Returns of banks with respect to common trust funds.

    Every bank (as defined in section 581) maintaining a common trust 
fund shall make a return of income of the common trust fund, regardless 
of the amount of its taxable income. Member banks of an affiliated group 
that serve as co-trustees with respect to a common trust fund must act 
jointly in making a return for the fund. If a bank maintains more than 
one common trust fund, a separate return shall be made for each. No 
particular fund is prescribed for making the return under this section, 
but form 1065 may be used if it is designated by the bank as the return 
of a common trust fund. The return shall be made for the taxable year of 
the common trust fund and shall be filed on or before the 15th day of 
the fourth month following the close of such taxable year with the 
district director for the district in which the income tax return of the 
bank is filed. Such return shall state specifically with respect to the 
fund the items of gross income and the deductions allowed by subtitle A 
of the Code, shall include each participant's name and address, the 
participant's proportionate share of taxable income or net loss 
(exclusive of gains and losses from sales or exchanges of capital 
assets), the participant's proportionate share of gains and losses from 
sales or exchanges of capital assets, and the participant's share of 
items which enter into the determination of the tax imposed by section 
56. See Sec. 1.584-2 and Sec. 1.58-5. If the common trust fund is 
maintained by two or more banks that

[[Page 141]]

are members of the same affiliated group, the return must also identify 
the member bank in the group that has contributed each participant's 
property or money to the fund. A copy of the plan of the common trust 
fund must be filed with the return. If, however, a copy of such plan has 
once been filed with a return, it need not again be filed if the return 
contains a statement showing when and where it was filed. If the plan is 
amended in any way after such copy has been filed, a copy of the 
amendment must be filed with the return for the taxable year in which 
the amendment was made. For the signing of a return of a bank with 
respect to common trust funds, see Sec. 1.6062-1, relating to the manner 
prescribed for the signing of a return of a corporation.

[T.D. 7564, 43 FR 40497, Sept. 12, 1978, as amended by T.D. 7935, 49 FR 
1695, Jan. 13, 1984]



Sec. 1.6033-1  Returns by exempt organizations; taxable years
beginning before January 1, 1970.

    (a) In general. (1) Except as provided in section 6033(a) and 
paragraph (g) of this section, every organization exempt from taxation 
under section 501(a) shall file an annual return of information 
specifically stating its items of gross income, receipts and 
disbursements, and such other information as may be prescribed in the 
instructions issued with respect to the return. Such information return 
shall be filed annually regardless of the amount or source of the income 
or receipts of the organization. Except as provided in paragraph (d) of 
this section, such return shall be filed annually regardless of whether 
such organization is chartered by, or affiliated or associated with, any 
central, parent, or other organization.
    (2)(i) Except as otherwise provided in this subparagraph, every 
organization exempt from taxation under section 501 (a), and required to 
file a return under section 6033 and this section, other than an 
organization described in section 401 (a), 501(c)(3), or 501(d), shall 
file its annual return on Form 990. However, such an exempt 
organization, instead of filing Form 990, may file its annual return on 
Form 990 (SF), a short form, if its gross receipts for the taxable year 
do not exceed $10,000 and its total assets on the last day of its 
taxable year do not exceed $10,000.
    (ii) For purposes of this subparagraph and subparagraph (4) of this 
paragraph, ``gross receipts'' means the gross amount received by the 
organization during its annual accounting period from all sources 
without reduction for any costs or expenses including, for example, cost 
of goods or assets sold, cost of operations, or expenses of earning, 
raising, or collecting such amounts. Thus, ``gross receipts'' includes, 
but is not limited to, (a) the gross amount received as contributions, 
gifts, grants, and similar amounts without reduction for the expenses of 
raising and collecting such amounts, (b) the gross amount received as 
dues or assessments from members or affiliated organizations without 
reduction for expenses attributable to the receipt of such amounts, (c) 
gross sales or receipts from business activities (including business 
activities unrelated to the purpose for which the organization received 
an exemption, the net income or loss from which may be required to be 
reported on Form 990-T), (d) the gross amount received from the sale of 
assets without reduction for cost or other basis and expenses of sale, 
and (e) the gross amount received as investment income such as interest, 
dividends, rents, and royalties.
    (3) Every employees' trust described in section 401 (a) which is 
exempt from taxation under section 501 (a) shall file an annual return 
on Form 990-P. The return shall include the information required by 
paragraph (b)(5)(ii) of Sec. 1.401-1. In addition, the trust must file 
the information required to be filed by the employer pursuant to the 
provisions of Sec. 1.404(a)-2, unless the employer has notified the 
trustee in writing that he has or will timely file such information. If 
the trustee has received such notification from the employer, then such 
notification, or a copy thereof, shall be retained by the trust as a 
part of its records.
    (4) Except as otherwise provided in this subparagraph, every 
organization described in section 501(c)(3), which is required to file a 
return under section 6033 and this section, shall file its annual return 
on Form 990-A. However, such an exempt organization, instead

[[Page 142]]

of filing Form 990-A, may file its annual return on Form 990-A (SF), a 
short form, if its gross receipts for the taxable year do not exceed 
$10,000 and its total assets on the last day of its taxable year do not 
exceed $10,000. For purposes of this subparagraph, ``gross receipts'' 
shall be defined in the manner prescribed in subparagraph (2)(ii) of 
this paragraph. The forms prescribed by this subparagraph shall be as 
follows:
    (i) Form 990-A shall consist of parts I and II. Part I shall 
contain, in addition to information required in part II, such 
information as may be prescribed in the return and instructions which is 
required to be furnished by section 6033(a) or which is necessary to 
show whether or not such organization is exempt from tax under section 
501(a). Part II, which shall be open to public inspection pursuant to 
section 6104 and other applicable sections and the regulations 
thereunder, shall contain principally the information required by 
section 6033(b) and the regulations thereunder. The information 
contained in part II, to be furnished by the organization in duplicate 
in the manner prescribed by the instructions issued with respect to the 
return, is as follows:
    (a) Its gross income for the year. For this purpose, gross income 
includes tax-exempt income, but does not include contributions, gifts, 
grants, and similar amounts received. Whether or not an item constitutes 
a contribution, gift, grant, or similar amount, depends upon all the 
surrounding facts and circumstances.
    (b) Its expenses attributable to such income and incurred within the 
year.
    (c) Its disbursements out of income (including prior years' 
accumulations) made within the year for the purposes for which it is 
exempt. Information shall be included as to the class of activity with a 
separate total for each activity as well as the name, address, and 
amount received by each individual or organization receiving cash, other 
property, or services within the taxable year. If the donee is related 
by blood, marriage, adoption, or employment (including children of 
employees) to any person or corporation having an interest in the exempt 
organization, such as a creator, donor, director, trustee, or officer, 
the relationship of the donee shall be stated. Activities shall be 
classified according to purpose in greater detail than merely 
charitable, educational, religious, or scientific. For example, payments 
for nursing service, for laboratory construction, for fellowships, or 
for assistance to indigent families shall be so identified. Where the 
fair market value of the property at the time of disbursement is used as 
the measure of the disbursement, the book value of such property (and a 
statement of how book value was determined) shall also be furnished, and 
any difference between the fair market value at the time of disbursement 
and the book value should be reflected in the books of account. The 
expenses allocable to making the disbursements shall be set forth in 
such detail as is prescribed by the form or instructions.
    (d) Its accumulation of income within the year. The amount of such 
accumulation is obtained by subtracting from the amount in (a) of this 
subdivision the sum of the amounts determined in (b) and (c) of this 
subdivision and the expenses allocable to carrying out the purposes for 
which it is exempt.
    (e) Its aggregate accumulation of income at the beginning and end of 
the year. The aggregate accumulation of income shall be divided between 
that which is attributable to the gain or loss on the sale of assets 
(excluding inventory items) and that which is attributable to all other 
income. For this purpose expenses and disbursements shall be allocated 
on the basis of accounting records, the governing instrument, or 
applicable local law.
    (f) Its disbursements out of principal in the current and prior 
years for the purposes for which it is exempt. In addition, the same 
type of information shall be required with respect to disbursements out 
of principal made in the current year as is prescribed by (c) of this 
subdivision with respect to disbursements out of income.
    (g) A balance sheet showing its assets, liabilities, and net worth 
as of the beginning and end of such year. Detailed information on the 
assets, liabilities, and net worth shall be furnished

[[Page 143]]

on the schedule provided for this purpose on the Form 990-A. Such 
schedule shall be supplemented by attachments where appropriate.
    (h) The total of the contributions and gifts received by it during 
the year. A statement shall be included showing the gross amount of 
contributions and gifts collected by the organization, the expenses 
incurred by the organization in collecting such amount, and the net 
proceeds.
    (i) In addition to the information required in (a) through (h) of 
this subdivision, the organization shall furnish such specific 
information and answer such specific questions as are required by the 
form or instructions.
    (ii) Form 990-A (SF) is a short form consisting of a single part 
which contains such information as may be prescribed in the return and 
instructions which is required to be furnished by section 6033(a) or 
which is necessary to show whether or not such organization is exempt 
from tax under section 501(a). In addition, Form 990-A (SF) shall 
contain the information required by section 6033(b) which must be 
furnished in the manner prescribed in the instructions issued with 
respect to the return. Form 990-A (SF) shall be open to public 
inspection pursuant to section 6104 and other applicable sections and 
the regulations thereunder.
    (5)(i) Every religious or apostolic association or corporation 
described in section 501 (d) which is exempt from taxation under section 
501(a) shall file a return on Form 1065 for each taxable year, stating 
specifically the items of gross income and deductions, and its taxable 
income. There shall be attached to the return as a part thereof a 
statement showing the name and address of each member of the association 
or corporation and the amount of his distributive share of the taxable 
income of the association or corporation for such year.
    (ii) If the taxable year of any member is different from the taxable 
year of the association or corporation, the distributive share of the 
taxable income of the association or corporation to be included in the 
gross income of the member for his taxable year shall be based upon the 
taxable income of the association or corporation for its taxable year 
ending with or within the taxable year of the member.
    (b) Accounting period for filing return. A return on Form 990, 990-
A, 990 (SF), 990-A (SF), or 990-P shall be on the basis of the 
established annual accounting period of the organization. If the 
organization has no such established accounting period, such return 
shall be on the basis of the calendar year.
    (c) Returns when exempt status not established. An information 
return on Form 990, 990-A, 990 (SF), or 990-A (SF) is not required to be 
filed by an organization claiming an exempt status under section 501(a) 
prior to the establishment by the organization of such exempt status 
under section 501 and Sec. 1.501(a)-1. If the date for filing an income 
tax return and paying the tax occurs before the tax-exempt status of the 
organization has been established, the organization is required to file 
the income tax return and pay the tax. However, see sections 6081 and 
6161 and the regulations thereunder for extensions of time for filing 
the return and paying the tax. Upon establishment of its exempt status, 
the organization may file a claim for a refund of income taxes paid for 
the period for which its exempt status is established.
    (d) Group returns. (1) A central, parent, or like organization 
(referred to in this paragraph as ``central organization''), exempt 
under section 501(a) and described in section 501(c), although required 
to file a separate annual return for itself under section 6033 and 
paragraph (a) of this section, may file annually, in addition to such 
separate annual return, a group return on Form 990 or 990-A, 990 (SF), 
or 990-A (SF), as may be appropriate. Form 990 (SF) or 990-A (SF) may be 
used where each local organization qualifies under paragraph (a) of this 
section. Such group return may be filed for two or more of the local 
organizations, chapters, or the like (referred to in this paragraph as 
``local organizations'') which are (i) affiliated with such central 
organization at the close of its annual accounting period, (ii) subject 
to the general supervision or control of the central organization, and 
(iii) exempt from taxation under the same paragraph of section 501(c) of 
the Code, although the

[[Page 144]]

local organizations are not necessarily exempt under the paragraph under 
which the central organization is exempt.
    (2)(i) The filing of the group return shall be in lieu of the filing 
of a separate return by each of the local organizations included in the 
group return. The group return shall include only those local 
organizations which in writing have authorized the central organization 
to include them in the group return, and which have made and filed, with 
the central organization, their statements, specifically stating their 
items of gross income, receipts, and disbursements, and such other 
information relating to them as is required to be stated in the group 
return. Such an authorization by a local organization shall be made 
annually, under the penalties of perjury, and shall be signed by a duly 
authorized officer of the local organization in his official capacity 
and shall contain the following statement, or a statement of like 
import: ``I hereby declare under the penalties of perjury that this 
authorization (including any accompanying schedules and statements) has 
been examined by me and to the best of my knowledge and belief is true, 
correct and complete and made in good faith for the taxable year 
stated.'' Such authorizations and statements shall be permanently 
retained by the central organization.
    (ii) There shall be attached to the group return and made a part 
thereof a schedule showing the name and address of each of the local 
organizations and the total number thereof included in such return, and 
a schedule showing the name and address of each of the local 
organizations and the total number thereof not included in the group 
return.
    (3) The group return shall be on the basis of the established annual 
accounting period of the central organization. Where such central 
organization has no established annual accounting period, such return 
shall be on the basis of the calendar year. The same income, receipts, 
and disbursements of a local organization shall not be included in more 
than one group return.
    (4) The group return shall be filed in accordance with these 
regulations and the instructions issued with respect to Form 990, 990-A, 
990 (SF), or 990-A (SF), whichever is appropriate, and shall be 
considered the return of each local organization included therein. The 
tax-exempt status of a local organization must be established under a 
group exemption letter issued to the central organization before a group 
return including the local organization will be considered as the return 
of the local organization. See Sec. 1.501(a)-1 for requirements for 
establishing a tax-exempt status.
    (e) Time and place for filing. The annual return of information on 
Form 990, 990-A, 990 (SF), 990-A (SF), or 990-P shall be filed on or 
before the 15th day of the fifth calendar month following the close of 
the period for which the return is required to be filed. The annual 
return on Form 1065 required to be filed by a religious or apostolic 
association or corporation shall be filed on or before the 15th day of 
the fourth month following the close of the taxable year for which the 
return is required to be filed. Each such return shall be filed in 
accordance with the instructions applicable thereto.
    (f) Penalties. For criminal penalties for failure to file a return 
and filing a false or fraudulent return, see sections 7203, 7206, and 
7207.
    (g) Organizations not required to file annual returns. (1)(i) Annual 
returns on Form 990-A or Form 990-A (SF) are not required to be filed by 
an organization described in section 501(c)(3) which has established its 
right to exemption from taxation under section 501 (a) and which is:
    (a) Organized and operated exclusively for religious purposes;
    (b) Operated, supervised, or controlled by or in connection with an 
organization which is organized and operated exclusively for religious 
purposes;
    (c) An educational organization which normally maintains a regular 
faculty and curriculum and normally has a regularly organized body of 
pupils or students in attendance at the place where its educational 
activities are regularly carried on; or

[[Page 145]]

    (d) A charitable organization, or an organization for the prevention 
of cruelty to children or animals, which is supported, in whole or in 
part, by funds contributed by the United States or any State or 
political subdivision thereof, or which is primarily supported by 
contributions of the general public.
    (ii) An educational organization which normally maintains and has a 
regular faculty, curriculum, and student body and meets the conditions 
of subdivision (i)(c) of this subparagraph, which relieves it from the 
requirement of filing annual returns, shall not be considered as having 
thereafter failed to continue meeting such conditions if it is 
temporarily compelled to curtail or discontinue its normal and regular 
activities during the existence of abnormal circumstances and 
conditions.
    (iii) An organization organized and operated exclusively for 
charitable purposes or for the prevention of cruelty to children or 
animals is ``primarily supported by contributions of the general 
public'' for any accounting period if more than 50 percent of its income 
and receipts for such period is actually derived from voluntary 
contributions and gifts made by the general public, as distinguished 
from a few contributors or donors or from related or associated persons. 
For purposes of this subdivision, the words ``related or associated 
persons'' refer to persons of a particular group who are connected with 
or are interested in the activities of the organization, such as 
founders, incorporators, shareholders, members, fiduciaries, officers, 
employees, or the like, or who are connected with such persons by family 
or business relationships. An organization claiming an exception from 
the filing of an information return under this subdivision must maintain 
adequate records in order to substantiate such claim. Furthermore, if it 
is doubtful to an organization that it falls within this exception for 
filing annual information returns, it must file the return on Form 990-A 
or Form 990-A (SF).
    (2) The annual return on Form 990 or Form 990 (SF) need not be filed 
by:
    (i) A fraternal beneficiary society, order, or association, 
described in section 501(c)(8), or
    (ii) An organization described in section 501(c)(1) if it is a 
corporation wholly owned by the United States or any agency or 
instrumentality thereof, or is a wholly owned subsidiary of such a 
corporation,


which has established its exemption from tax under section 501(a).
    (3) The provisions of section 6033(a) relieving certain specified 
types of organizations exempt from tax under section 501(a) from filing 
annual returns do not abridge or impair in any way the powers and 
authority of district directors or directors of service centers provided 
for in other provisions of the Code and in the regulations thereunder to 
require the filing of such returns by such organizations. See section 
6001 and Sec. 1.6001-1.
    (h) Records, statements, and other returns of tax-exempt 
organizations. (1) An organization which has established its right to 
exemption from tax under section 501(a) and has also established that it 
is not required to file annually the return of information on Form 990, 
990-A, 990 (SF), or 990-A (SF) shall immediately notify in writing the 
district director for the internal revenue district in which its 
principal office is located of any changes in its character, operations, 
or purpose for which it was originally created.
    (2) Every organization which has established its right to exemption 
from tax, whether or not it is required to file an annual return of 
information, shall submit such additional information as may be required 
by the district director for the purpose of enabling him to inquire 
further into its exempt status and to administer the provisions of 
subchapter F (section 501 and following), chapter 1 of the Code, and of 
section 6033. See section 6001 and Sec. 1.6001-1 with respect to the 
authority of the district director or directors of service centers to 
require such additional information and with respect to the permanent 
books of account or records to be kept by such organizations.
    (3) An organization which has established its right to exemption 
from tax under section 501(a), including an organization which is 
relieved under section 6033 and this section from filing annual returns 
of information, is not,

[[Page 146]]

however, relieved from the duty of filing other returns of information. 
See, for example, sections 6041 and 6051 and the regulations thereunder.
    (i) Unrelated business tax returns. In addition to the foregoing 
requirements of this section, certain organizations otherwise exempt 
from tax under section 501(a) and described in section 501(c) (2), (3), 
(5), (6), or (17) or section 401(a) which are subject to tax on 
unrelated business taxable income are also required to file returns on 
Form 990-T. See paragraph (e) of Sec. 1.6012-2 and paragraph (a)(5) of 
Sec. 1.6012-3 for requirements with respect to such returns.
    (j) Effective date. The provisions of this section shall apply with 
respect to returns filed for taxable years beginning before January 1, 
1970.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 6722, 29 FR 
5075, Apr. 14, 1964; T.D. 6972, 33 FR 12907, Sept. 12, 1968; T.D. 6980, 
33 FR 16446, Nov. 9, 1968; T.D. 7122, 36 FR 11026, June 8, 1971]



Sec. 1.6033-2  Returns by exempt organizations (taxable years
beginning after December 31, 1969) and returns by certain nonexempt
organizations (taxable years beginning after December 31, 1980).

    (a) In general. (1) Except as provided in section 6033(a)(3) and 
paragraph (g) of this section, every organization exempt from taxation 
under section 501(a) shall file an annual information return 
specifically setting forth its items of gross income, gross receipts and 
disbursements, and such other information as may be prescribed in the 
instructions, issued with respect to the return. Except as provided in 
paragraph (d) of this section, such return shall be filed annually 
regardless of whether such organization is chartered by, or affiliated 
or associated with, any central, parent, or other organization.
    (2)(i) Except as otherwise provided in this paragraph and paragraph 
(g) of this section, every organization exempt from taxation under 
section 501(a), and required to file a return under section 6033 and 
this section (including, for taxable years ending before December 31, 
1972, private foundations, as defined in section 509(a)), other than an 
organization described in section 401(a) or 501(d), shall file its 
annual return on Form 990. For taxable years ending on or after December 
31, 1972, every private foundation shall file Form 990-PF as its annual 
information return. For taxable years beginning after December 31, 1977, 
every section 501(c)(21) black lung trust shall file an annual 
information return on Form 990-BL or any other form prescribed by the 
Internal Revenue Service for that purpose.
    (ii) The information generally required to be furnished by an 
organization exempt under section 501(a) is:
    (a) Its gross income for the year. For this purpose, gross income 
includes tax-exempt income, but does not include contributions, gifts, 
grants, and similar amounts received. Whether an item constitutes a 
contribution, gift, grant, or similar amount depends upon all the 
surrounding facts and circumstances. The computation of gross income 
shall be made by subtracting the cost of goods sold from all receipts 
other than gross contributions, gifts, grants, and similar amounts 
received and nonincludible dues and assessments from members and 
affiliates.
    (b) To the extent not included in gross income, its dues and 
assessments from members and affiliates for the year.
    (c) Its expenses incurred within the year attributable to gross 
income.
    (d) Its disbursements (including prior years' accumulations) made 
within the year for the purposes for which it is exempt.
    (e) A balance sheet showing its assets, liabilities, and net worth 
as of the beginning and end of such year. Detailed information relating 
to the assets, liabilities, and net worth shall be furnished on the 
schedule provided for this purpose on the return required by this 
section. Such schedule shall be supplemented by attachments where 
appropriate.
    (f) The total of the contributions, gifts, grants and similar 
amounts received by it during the taxable year, and the names and 
addresses of all persons who contributed, bequeathed, or devised $5,000 
or more (in money or other property) during the taxable year. In the 
case of a private foundation (as defined in section 509(a)), the names 
and addresses of all persons who became substantial contributors (as 
defined in section 507(d)(2)) during the

[[Page 147]]

taxable year shall be furnished. In addition, for its first taxable year 
beginning after December 31, 1969, each private foundation shall furnish 
the names and addresses of all persons who became substantial 
contributors before such taxable year. For special rules with respect to 
contributors and donors, see subdivision (iii) of this subparagraph.
    (g) The names and addresses of all officers, directors, or trustees 
(or any person having responsibilities or powers similar to those of 
officers, directors or trustees) of the organization, and, in the case 
of a private foundation, all persons who are foundation managers, within 
the meaning of section 4946(b)(1). Organizations must also attach a 
schedule showing the names and addresses and/or total numbers of key 
employees, highly compensated employees, and independent contractors as 
prescribed by publication, form, or instructions.
    (h) A schedule showing the compensation and other payments made to 
each person whose name is required to be listed pursuant to paragraph 
(a)(2)(ii)(g) of this section during the calendar year ending within the 
organization's annual accounting period, or during such other period as 
prescribed by publication, form, or instructions.
    (i) For any taxable year ending on or after December 31, 1971, such 
information as is required by Forms 4848 and 4849 and, only with respect 
to any such taxable year ending before December 31, 1972, such 
information as is required by Form 2950. Such forms are required by this 
section to be filed by an organization exempt from tax under section 
501(a) which is an employer who maintains a funded pension or annuity 
plan for its employees. See paragraph (g) of this section for exceptions 
from filing. Form 4849 need not be filed by the organization if the 
fiduciary for the plan has given written notification to the 
organization that such form will be filed as an attachment to Form 990-P 
filed by the fiduciary. Form 4848 (and Form 4849 if required to be filed 
by the organization) shall be filed as a separate return on or before 
the due date for Form 990. For rules relating to the extension of time 
for filing, see section 6081 and the regulations thereunder and the 
instructions for Form 4848. A central organization which files Form 990 
as a group return under paragraph (d) of this section may also file Form 
4848 as a group return. The rules provided by paragraph (d) of this 
section with respect to a group return filed on Form 990 shall apply to 
a group return filed on Form 4848. Unless otherwise expressly provided 
therein, an authorization to include a local organization in a group for 
purposes of filing Form 990 as a group return shall be treated as an 
authorization to include such local organization in a group for purposes 
of filing Form 4848 as a group return. A group return on Form 4848 shall 
be filed in accordance with this section and the instructions to Form 
4848 and shall be considered the return of each local organization 
included therein. In addition to the information required to be 
furnished by Forms 4848 and 4849, the district director may require any 
further information that he considers necessary to determine 
qualification of the plan under section 401 or the taxability under 
section 403(b) of a beneficiary under an annuity purchased by a section 
501(c)(3) organization.
    (j) In the case of a private foundation liable for tax imposed under 
chapter 42, such information as is required by Form 4720.
    (k) Its lobbying expenditures, grass roots expenditures, exempt 
purpose expenditures, lobbying nontaxable amount, and grass roots 
nontaxable amount for the taxable year and for prior taxable years that 
are base years (within the meaning of Sec. 1.501(h)-3(c)(7)), if the 
organization has an election under section 501(h) in effect for the 
taxable year. An organization that is a member of an affiliated group of 
organizations (as defined in Sec. 56.4911-7(e)) but that is not a member 
of a limited affiliated group (as defined in Sec. 56.4911-10(b)) shall 
report this information based on the expenditures of all members of the 
group during the taxable year of the group that ends with or within the 
member's taxable year and for prior taxable years of the group that are 
base years (within the meaning of Sec. 56.4911-9(b)). For additional 
information required to be furnished by members of an affiliated group 
of organizations, and by controlling members

[[Page 148]]

in a limited affiliated group, see Secs. 56.4911-9(d) and 56.4911-
10(f)(1), respectively.
    (l) In the case of a hospital organization (as defined in 
Sec. 1.501(r)-1(b)(18)) described in section 501(c)(3) during the 
taxable year--
    (1) A copy of its audited financial statements for the taxable year 
(or, in the case of an organization the financial statements of which 
are included in consolidated financial statements with other 
organizations, such consolidated financial statements);
    (2) Either a copy of the most recently adopted implementation 
strategy, within the meaning of Sec. 1.501(r)-3(c), for each hospital 
facility it operates or the URL of each Web page where it has made each 
such implementation strategy widely available on a Web site within the 
meaning of Sec. 1.501(r)-1(b)(29) along with or as part of the report 
documenting the community health needs assessment (CHNA) to which the 
implementation strategy relates;
    (3) For each hospital facility it operates, a description of the 
actions taken during the taxable year to address the significant health 
needs identified through its most recently conducted CHNA, within the 
meaning of Sec. 1.501(r)-3(b), or, if no actions were taken with respect 
to one or more of these health needs, the reason(s) why no actions were 
taken; and
    (4) The amount of the excise tax imposed on the organization under 
section 4959 during the taxable year.
    (iii) Special rules. In providing the names and addresses of 
contributors and donors under subdivision (ii)(f) of this subparagraph:
    (a) An organization described in section 501(c)(3) which meets the 
33\1/3\ percent-of-support test of the regulations under section 
170(b)(1)(A)(vi) (without regard to whether such organization otherwise 
qualifies as an organization described in section 170(b)(1)(A)) is 
required to provide the name and address of a person who contributed, 
bequeathed, or devised $5,000 or more during the year only if his amount 
is in excess of 2 percent of the total contributions, bequests and 
devises received by the organization during the year.
    (b) An organization other than a private foundation is required to 
report only the names and addresses of contributors of whom it has 
actual knowledge. For instance, an organization need not require an 
employer who withholds contributions from the compensation of employees 
and pays over to the organization periodically the total amounts 
withheld, to specify the amounts paid over with respect to a particular 
employee. In such case, unless the organization has actual knowledge 
that a particular employee gave more than $5,000 (and in excess of 2 
percent if (a) of this subdivision is applicable), the organization need 
report only the name and address of the employer, and the total amount 
paid over by him.
    (c) Separate and independent gifts made by one person in a 
particular year need be aggregated to determine if his contributions and 
bequests exceed $5,000 (and in excess of 2 percent if (a) of this 
subdivision is applicable), only if such gifts are of $1,000 or more.
    (d)(1) Organizations described in section 501(c) (8) or (10) (and, 
for taxable years beginning after December 31, 1970, organizations 
described in section 501(c)(7)) that receive contributions or bequests 
to be used exclusively for purposes described in section 170(c)(4), 
2055(a)(3), or 2522(a)(3), must attach a schedule with respect to all 
gifts which aggregate more than $1,000 from any one person showing the 
name of the donor, the amount of the contribution or bequest, the 
specific purpose for which such amount was received, and the specific 
use to which such amount was put. In the case of an amount set aside for 
such purposes, the organization shall indicate the manner in which such 
amount is held (for instance, whether such amount is commingled with 
amounts held for other purposes). If the contribution or bequest was 
transferred to another organization, the schedule must include the name 
of the transferee organization, a description of the nature of such 
organization, and a description of the relationship between the 
transferee and transferor organizations.
    (2) For taxable years beginning after December 31, 1970, such 
organizations must also attach a statement showing

[[Page 149]]

the total dollar amount of contributions and bequests received for such 
purposes which are $1,000 or less.
    (iv) Listing of States. A private foundation is required to attach 
to its return required by this section a list of all States:
    (a) To which the organization reports in any fashion concerning its 
organization, assets, or activities, or
    (b) With which the organization has registered (or which it has 
otherwise notified in any manner) that it intends to be, or is, a 
charitable organization or a holder of property devoted to a charitable 
purpose.
    (3)(i) For taxable years beginning after December 31, 1969, and 
ending before December 31, 1971, every employee's trust described in 
section 401(a) which is exempt from taxation under section 501(a) shall 
file an annual return on Form 990-P. The return shall include the 
information required by paragraph (b)(5)(ii) of Sec. 1.401-1. For such 
years, in addition, the trust must file the information required to be 
filed by the employer pursuant to the provisions of Sec. 1.404(a)-2, 
unless the employer has notified the trustee in writing that he has 
filed or will timely file such information. If the trustee has received 
such notification from the employer, then such notification, or a copy 
thereof, shall be retained by the trust as a part of its records.
    (ii) For taxable years ending on or after December 31, 1971, and 
before December 31, 1975, every employee's trust described in section 
401(a) which is exempt from taxation under section 501(a) shall file an 
annual return on Form 990-P. The trust shall furnish such information as 
is required by such form and the instructions issued with respect 
thereto.
    (4) For taxable years beginning after December 31, 1980, trusts 
described in section 4947(a)(1) and nonexempt private foundations shall 
comply with the requirements of section 6033 and this section in the 
same manner as organizations described in section 501(c)(3) which are 
exempt from tax under section 501(a). This section shall be applied for 
taxable years beginning after December 31, 1980 as if trusts described 
in section 4947(a)(1) and nonexempt private foundations were described 
in section 501(c)(3). Therefore, for purposes of this section, all 
references to exempt organizations shall include section 4947(a)(1) 
trusts and nonexempt private foundations and all references to private 
foundations shall include section 4947(a)(1) trusts that would be 
private foundations if they were described in section 501(c)(3) and all 
nonexempt private foundations. Similarly, for purposes of paragraph 
(a)(2)(ii)(d), the purposes for which a section 4947(a)(1) trust or a 
nonexempt private foundation is organized shall be treated as the 
purposes for which it is exempt. For purposes of this section, the term 
``nonexempt private foundation'' means a taxable organization (other 
than a section 4947(a)(1) trust) that is a private foundation. See 
section 509(b) and Sec. 1.509(b)-1. See also section 642(c)(6) and 
Sec. 1.642(c)-4.
    (b) Accounting period for filing return. A return required by this 
section shall be on the basis of the established annual accounting 
period of the organization. If the organization has no such established 
accounting period, such return shall be on the basis of the calendar 
year.
    (c) Returns when exempt status not established. An organization 
claiming an exempt status under section 501(a) prior to the 
establishment of such exempt status under section 501 and Sec. 1.501(a)-
1, shall file a return required by this section in accordance with the 
instructions applicable thereto. In such case the organization must 
indicate on such return that it is being filed in the belief that the 
organization is exempt under section 501(a), but that the Internal 
Revenue Service has not yet recognized such exemption.
    (d) Group returns. (1) A central, parent, or like organization 
(referred to in this paragraph as ``central organization''), exempt 
under section 501(a) and described in section 501(c) (other than a 
private foundation), although required to file a separate annual return 
for itself under section 6033 and paragraph (a) of this section, may 
file annually, in addition to such separate annual return, a group 
return on Form 990. Such group return may be filed for two or more of 
the local organizations, chapters, or the like (referred to in this 
paragraph as ``local organizations'')

[[Page 150]]

which are (i) affiliated with such central organization at the close of 
its annual accounting period, (ii) subject to the general supervision or 
control of the central organization, and (iii) exempt from taxation 
under the same paragraph of section 501(c) of the Code, although the 
local organizations are not necessarily exempt under the paragraph under 
which the central organization is exempt. Such group return may not be 
filed for a local organization which is a private foundation.
    (2)(i) The filing of the group return shall be in lieu of the filing 
of a separate return by each of the local organizations included in the 
group return. The group return shall include only those local 
organizations which in writing have authorized the central organization 
to include them in the group return, and which have made and filed, with 
the central organization, their statements, specifically stating their 
items of gross income, receipts, and disbursements, and such other 
information relating to them as is required to be stated in the group 
return. Such an authorization and statement by a local organization 
shall be made under the penalties of perjury, shall be signed by a duly 
authorized officer of the local organization in his official capacity, 
and shall contain the following statement, or a statement of like 
import: ``I hereby declare under the penalties of perjury that this 
authorization (including any accompanying schedules and statements) has 
been examined by me and to the best of my knowledge and belief is true, 
correct and complete and made in good faith.'' Such authorization and 
statement with respect to a local organization shall be retained by the 
central organization until the expiration of 6 years after the last 
taxable year for which a group return filed by such central organization 
includes such local organization.
    (ii) There shall be attached to the group return and made a part 
thereof a schedule showing the name, address, and employer 
identification number of each of the local organizations and the total 
number thereof included in such return, and a schedule showing the name, 
address, and employer identification number of each of the local 
organizations and the total number thereof not included in the group 
return.
    (3) The group return shall be on the basis of the established annual 
accounting period of the central organization. Where such central 
organization has no established annual accounting period, such return 
shall be on the basis of the calendar year. The same income, receipts, 
and disbursements of a local organization shall not be included in more 
than one group return.
    (4) The group return shall be filed in accordance with these 
regulations and the instructions issued with respect to Form 990, and 
shall be considered the return of each local organization included 
therein. The tax exempt status of a local organization must be 
established under a group exemption letter issued to the central 
organization before a group return including the local organization will 
be considered as the return of the local organization. See 
Sec. 1.501(a)-1 for requirements for establishing a tax-exempt status.
    (5) In providing the information required by paragraph (a)(2)(ii) 
(f), (g), and (h) of this section, such information may be provided:
    (i) With respect to the central or parent organization on its Form 
990, and with respect to the local organizations on separate schedules 
attached to the group return for the year, or
    (ii) On a consolidated basis for all the local organizations and the 
central or parent organization on the group return.


Such information need be provided only with respect to those local 
organizations which are not excepted from filing under the provisions of 
paragraph (g) of this section. A central or parent organization shall 
indicate whether it has provided such information in the manner 
described in subdivision (i) or in subdivision (ii) of this 
subparagraph, and may not change the manner in which it provides such 
information without the consent of the Commissioner.
    (e) Time and place for filing. The annual return required by this 
section shall be filed on or before the 15th day of the fifth calendar 
month following the close of the period for which the return is required 
to be filed. The annual

[[Page 151]]

return on Form 1065 required to be filed by a religious or apostolic 
association or corporation shall be filed on or before the 15th day of 
the fourth month following the close of the taxable year for which the 
return is required to be filed. Each such return shall be filed in 
accordance with the instructions applicable thereto.
    (f) Penalties and additions to tax. For penalties and additions to 
tax for failure to file a return and filing a false or fraudulent 
return, see sections 6652, 7203, 7206, and 7207.
    (g) Organizations not required to file annual returns. (1) Annual 
returns required by this section are not required to be filed by an 
organization exempt from taxation under section 501(a) which is:
    (i) A church, an interchurch organization of local units of a 
church, a convention or association of churches, or an integrated 
auxiliary of a church (as defined in paragraph (h) of this section);
    (ii) An exclusively religious activity of any religious order;
    (iii) An organization (other than a private foundation) described in 
section 6033(a)(3)(C), the gross receipts of which in each taxable year 
are normally not more than $5,000 (as described in paragraph (g)(3) of 
this section);
    (iv) A mission society (other than an organization described in 
section 509(a)(3)) sponsored by or affiliated with one or more churches 
or church denominations, more than one-half of the activities of which 
society are conducted in, or directed at persons in foreign countries;
    (v) A State institution, the income of which is excluded from gross 
income under section 115(a);
    (vi) An organization described in section 501(c)(1); or
    (vii) An educational organization (below college level) that is 
described in section 170(b)(1)(A)(ii), that has a program of a general 
academic nature, and that is affiliated (within the meaning of paragraph 
(h)(2) of this section) with a church or operated by a religious order.
    (2) The provisions of section 6033(a) relieving certain specified 
types of organizations exempt from taxation under section 501(a) from 
filing annual returns do not abridge or impair in any way the powers and 
authority of district directors or directors of service centers provided 
for in other provisions of the Code and in regulations thereunder to 
require the filing of returns or notices by such organizations. See 
section 6001 and Sec. 1.6001-1.
    (3) For purposes of subparagraph (1)(iii) of this paragraph, the 
gross receipts (as defined in subparagraph (4) of this paragraph) of an 
organization are normally not more than $5,000 if:
    (i) In the case of an organization which has been in existence for 1 
year or less, the organization has received, or donors have pledged to 
give, gross receipts of $7,500 or less during the first taxable year of 
the organization,
    (ii) In the case of an organization which has been in existence for 
more than one but less than 3 years, the average of the gross receipts 
received by the organization in its first 2 taxable years is $6,000 or 
less, and
    (iii) In the case of an organization which has been in existence for 
3 years or more, the average of the gross receipts received by the 
organization in the immediately preceding 3 taxable years, including the 
year for which the return would be required to be filed, is $5,000 or 
less.
    (4) For purposes of this paragraph and paragraph (a)(2) of this 
section, ``gross receipts'' means the gross amount received by the 
organization during its annual accounting period from all sources 
without reduction for any costs or expenses including, for example, cost 
of goods or assets sold, cost of operations, or expenses of earning, 
raising, or collecting such amounts. Thus ``gross receipts'' includes, 
but is not limited to (i) the gross amount received as contributions, 
gifts, grants, and similar amounts without reduction for the expenses of 
raising and collecting such amounts, (ii) the gross amount received as 
dues or assessments from members or affiliated organizations without 
reduction for expenses attributable to the receipt of such amounts, 
(iii) gross sales or receipts from business activities (including 
business activities unrelated to the purpose for which the organization 
qualifies for exemption, the net income

[[Page 152]]

or loss from which may be required to be reported on Form 990-T), (iv) 
the gross amount received from the sale of assets without reduction for 
cost or other basis and expenses of sale, and (v) the gross amount 
received as investment income, such as interest, dividends, rents, and 
royalties.
    (5) [Reserved]
    (6) The Commissioner may relieve any organization or class of 
organizations (other than an organization described in section 
509(a)(3)) from filing, in whole or in part the annual return required 
by this section where he determines that such returns are not necessary 
for the efficient administration of the internal revenue laws.
    (h) Integrated auxiliary--(1) In general. For purposes of this 
title, the term integrated auxiliary of a church means an organization 
that is--
    (i) Described both in sections 501(c)(3) and 509(a) (1), (2), or 
(3);
    (ii) Affiliated with a church or a convention or association of 
churches; and
    (iii) Internally supported.
    (2) Affiliation. An organization is affiliated with a church or a 
convention or association of churches, for purposes of paragraph 
(h)(1)(ii) of this section, if--
    (i) The organization is covered by a group exemption letter issued 
under applicable administrative procedures, (such as Rev. Proc. 80-27 
(1980-1 C.B. 677); See Sec. 601.601(a)(2)(ii)(b)), to a church or a 
convention or association of churches;
    (ii) The organization is operated, supervised, or controlled by or 
in connection with (as defined in Sec. 1.509(a)-4) a church or a 
convention or association of churches; or
    (iii) Relevant facts and circumstances show that it is so 
affiliated.
    (3) Facts and circumstances. For purposes of paragraph (h)(2)(iii) 
of this section, relevant facts and circumstances that indicate an 
organization is affiliated with a church or a convention or association 
of churches include the following factors. However, the absence of one 
or more of the following factors does not necessarily preclude 
classification of an organization as being affiliated with a church or a 
convention or association of churches--
    (i) The organization's enabling instrument (corporate charter, trust 
instrument, articles of association, constitution or similar document) 
or by-laws affirm that the organization shares common religious 
doctrines, principles, disciplines, or practices with a church or a 
convention or association of churches;
    (ii) A church or a convention or association of churches has the 
authority to appoint or remove, or to control the appointment or removal 
of, at least one of the organization's officers or directors;
    (iii) The corporate name of the organization indicates an 
institutional relationship with a church or a convention or association 
of churches;
    (iv) The organization reports at least annually on its financial and 
general operations to a church or a convention or association of 
churches;
    (v) An institutional relationship between the organization and a 
church or a convention or association of churches is affirmed by the 
church, or convention or association of churches, or a designee thereof; 
and
    (vi) In the event of dissolution, the organization's assets are 
required to be distributed to a church or a convention or association of 
churches, or to an affiliate thereof within the meaning of this 
paragraph (h).
    (4) Internal support. An organization is internally supported, for 
purposes of paragraph (h)(1)(iii) of this section, unless it both--
    (i) Offers admissions, goods, services or facilities for sale, other 
than on an incidental basis, to the general public (except goods, 
services, or facilities sold at a nominal charge or for an insubstantial 
portion of the cost); and
    (ii) Normally receives more than 50 percent of its support from a 
combination of governmental sources, public solicitation of 
contributions, and receipts from the sale of admissions, goods, 
performance of services, or furnishing of facilities in activities that 
are not unrelated trades or businesses.
    (5) Special rule. Men's and women's organizations, seminaries, 
mission societies, and youth groups that satisfy paragraphs (h)(1) (i) 
and (ii) of this section are integrated auxiliaries of a church 
regardless of whether such an

[[Page 153]]

organization meets the internal support requirement under paragraph 
(h)(1)(iii) of this section.
    (6) Effective date. This paragraph (h) applies for returns filed for 
taxable years beginning after December 31, 1969. For returns filed for 
taxable years beginning after December 31, 1969 but beginning before 
December 20, 1995, the definition for the term integrated auxiliary of a 
church set forth in Sec. 1.6033-2(g)(5) (as contained in the 26 CFR 
edition revised as of April 1, 1995) may be used as an alternative 
definition to such term set forth in this paragraph (h).
    (7) Examples of internal support. The internal support test of this 
paragraph (h) is illustrated by the following examples, in each of which 
it is assumed that the organization's provision of goods and services 
does not constitute an unrelated trade or business:

    Example 1. Organization A is described in sections 501(c)(3) and 
509(a)(2) and is affiliated (within the meaning of this paragraph (h)) 
with a church. Organization A publishes a weekly newspaper as its only 
activity. On an incidental basis, some copies of Organization A's 
publication are sold to nonmembers of the church with which it is 
affiliated. Organization A advertises for subscriptions at places of 
worship of the church. Organization A is internally supported, 
regardless of its sources of financial support, because it does not 
offer admissions, goods, services, or facilities for sale, other than on 
an incidental basis, to the general public. Organization A is an 
integrated auxiliary.
    Example 2. Organization B is a retirement home described in sections 
501(c)(3) and 509(a)(2). Organization B is affiliated (within the 
meaning of this paragraph (h)) with a church. Admission to Organization 
B is open to all members of the community for a fee. Organization B 
advertises in publications of general distribution appealing to the 
elderly and maintains its name on non-denominational listings of 
available retirement homes. Therefore, Organization B offers its 
services for sale to the general public on more than an incidental 
basis. Organization B receives a cash contribution of $50,000 annually 
from the church. Fees received by Organization B from its residents 
total $100,000 annually. Organization B does not receive any government 
support or contributions from the general public. Total support is 
$150,000 ($100,000 + $50,000), and $100,000 of that total is from 
receipts from the performance of services (66\2/3\% of total support). 
Therefore, Organization B receives more than 50 percent of its support 
from receipts from the performance of services. Organization B is not 
internally supported and is not an integrated auxiliary.
    Example 3. Organization C is a hospital that is described in 
sections 501(c)(3) and 509(a)(1). Organization C is affiliated (within 
the meaning of this paragraph (h)) with a church. Organization C is open 
to all persons in need of hospital care in the community, although most 
of Organization C's patients are members of the same denomination as the 
church with which Organization C is affiliated. Organization C maintains 
its name on hospital listings used by the general public, and 
participating doctors are allowed to admit all patients. Therefore, 
Organization C offers its services for sale to the general public on 
more than an incidental basis. Organization C annually receives $250,000 
in support from the church, $1,000,000 in payments from patients and 
third party payors (including Medicare, Medicaid and other insurers) for 
patient care, $100,000 in contributions from the public, $100,000 in 
grants from the federal government (other than Medicare and Medicaid 
payments) and $50,000 in investment income. Total support is $1,500,000 
($250,000 + $1,000,000 + $100,000 + $100,000 + $50,000), and $1,200,000 
($1,000,000 + $100,000 + $100,000) of that total is support from 
receipts from the performance of services, government sources, and 
public contributions (80% of total support). Therefore, Organization C 
receives more than 50 percent of its support from receipts from the 
performance of services, government sources, and public contributions. 
Organization C is not internally supported and is not an integrated 
auxiliary.

    (i) Records, statements, and other returns of tax-exempt 
organizations. (1) An organization that is exempt from taxation under 
section 501(a) and is not required to file annually an information 
return required by this section shall immediately notify in writing 
Exempt Organizations Determinations, at an address prescribed by 
publication (including publication on the Internal Revenue Service Web 
site), of any changes in its character, operations, or purpose for which 
it was originally created.
    (2) Every organization which is exempt from tax, whether or not it 
is required to file an annual information return, shall submit such 
additional information as may be required by the Internal Revenue 
Service for the purpose of inquiring into its exempt status and 
administering the provisions of subchapter F (section 501 and 
following), chapter 1 of subtitle A of the Code, section 6033, and 
chapter 42 of

[[Page 154]]

subtitle D of the Code. See section 6001 and Sec. 1.6001-1 with respect 
to the authority of the district directors or directors of service 
centers to require such additional information and with respect to the 
books of account or records to be kept by such organizations.
    (3) An organization which has established its exemption from 
taxation under section 501(a), including an organization which is 
relieved under section 6033 and this section from filing annual returns 
of information, is not relieved of the duty of filing other returns of 
information. See, for example, sections 6041, 6043, 6051, 6057, and 6058 
and the regulations thereunder.
    (j) Unrelated business tax returns. In addition to the foregoing 
requirements of this section, certain organizations otherwise exempt 
from tax under section 501(a) which are subject to tax on unrelated 
business taxable income are also required to file returns on Form 990-T. 
See paragraph (e) of Sec. 1.6012-2 and paragraph (a)(5) of Sec. 1.6012-3 
for requirements with respect to such returns.
    (k) Effective/applicability date--(1) Generally. The provisions of 
this section shall apply with respect to returns filed for taxable years 
beginning after December 31, 1969.
    (2) The applicability of paragraphs (g)(1)(iii), (g)(1)(iv), and 
(g)(6) of this section shall be limited to returns filed for taxable 
years ending after August 17, 2006. For returns filed for taxable years 
ending on or before August 17, 2006, Secs. 1.6033-(2)(g)(1)(iii), 
1.6033-(2)(g)(1)(iv), and 1.6033-(2)(g)(6) (as contained in 26 CFR part 
1 revised April 1, 2006) shall apply.
    (3) The applicability of paragraphs (a)(2)(ii)(g) and (a)(2)(ii)(h) 
of this section shall be limited to returns filed on or after January 1, 
2008. For returns filed before January 1, 2008, Secs. 1.6033-
(a)(2)(ii)(g) and 1.6033-(2)(a)(2)(ii)(h) (as contained in 26 CFR part 1 
revised April 1, 2008) shall apply.
    (4) The applicability of paragraph (a)(2)(ii)(l) of this section 
shall be limited to returns filed for taxable years ending after 
December 29, 2014.

[T.D. 7122, 36 FR 11026, June 8, 1971]

    Editorial Note: For Federal Register citations affecting 
Sec. 1.6033-2, see the List of CFR Sections Affected, which appears in 
the Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 1.6033-3  Additional provisions relating to private foundations.

    (a) In general. The foundation managers (as defined in section 
4946(b)) of every organization (including a trust described in section 
4947(a)(1)) which is (or is treated as) a private foundation (as defined 
in section 509) the assets of which are at least $5,000 at any time 
during a taxable year shall include the following information on its 
annual return in addition to that information required under 
Sec. 1.6033-2(a):
    (1) An itemized statement of its securities and all other assets at 
the close of the year, showing both book and market value,
    (2) An itemized list of all grants and contributions made or 
approved for future payment during the year, showing the amount of each 
such grant or contribution, the name and address of the recipient (other 
than a recipient who is not a disqualified person and who receives, from 
the foundation, grants to indigent or needy persons that, in the 
aggregate, do not exceed $1,000 during the year), any relationship 
between any individual recipient and the foundation's managers or 
substantial contributors, and a concise statement of the purpose of each 
such grant or contribution,
    (3) The address of the principal office of the foundation and (if 
different) of the place where its books and records are maintained,
    (4) The names and addresses of its foundation managers (within the 
meaning of section 4946(b)), that are substantial contributors (within 
the meaning of section 507(d)(2)) or that own 10 percent or more of the 
stock of any corporation of which the foundation owns 10 percent or more 
of the stock, or corresponding interests in partnerships or other 
entities, in which the foundation has a 10 percent or greater interest.


For purposes of subparagraph (2) of this paragraph, the business address 
of an individual grant recipient or foundation manager may be used by 
the foundation in its annual return in lieu of the home address of such 
recipient or

[[Page 155]]

manager, and the term ``relationship'' shall include, but is not limited 
to, any case in which an individual recipient of a grant or contribution 
by a private foundation is (i) a member of the family (as defined in 
section 4946(d)) of a substantial contributor or foundation manager of 
such foundation, (ii) a partner of such substantial contributor or 
foundation manager, or (iii) an employee of such substantial contributor 
or foundation manager or of an organization which is effectively 
controlled (within the meaning of section 4946(a)(1)(H)(i) and the 
regulations thereunder), directly or indirectly, by one or more such 
substantial contributors or foundation managers.
    (b) Notice to public of availability of annual return. A copy of the 
notice required by section 6104(d) (relating to public inspection of 
private foundations' annual returns), and proof of publication thereof, 
shall be filed with the annual return required by Sec. 1.6033-2(a). A 
copy of such notice as published, and a statement signed by a foundation 
manager stating that such notice was published, setting forth the date 
of publication and the publication in which it appeared, shall be 
sufficient proof of publication for purposes of this paragraph.
    (c) Special rules--(1) Furnishing of copies to State officers. The 
foundation managers of a private foundation shall furnish a copy of the 
annual return required by section 6033 and Sec. 1.6033-2 to the Attorney 
General of:
    (i) Each State which the foundation is required to list on its 
return pursuant to Sec. 1.6033-2(a)(2)(iv),
    (ii) The State in which is located the principal office of the 
foundation, and
    (iii) The State in which the foundation was incorporated or created.


The annual return shall be sent to each Attorney General described in 
paragraphs (c)(1) (i), (ii), or (iii) of this section at the same time 
as it is sent to the Internal Revenue Service. Upon request the 
foundation managers shall also furnish a copy of the annual return to 
the Attorney General or other appropriate State officer (within the 
meaning of section 6104 (c)(2)) of any State. The foundation managers 
shall attach to each copy of the annual return sent to State officers 
under this subparagraph a copy of the Form 4720, if any, filed by the 
foundation for the year.
    (2) Cross-reference. For additional rules with respect to private 
foundations' returns and the public inspection of such returns, see 
section 6104(d) and the regulations thereunder.
    (d) Special rules for certain foreign organizations. The provisions 
of paragraphs (b) and (c) of this section shall not apply with respect 
to an organization described in section 4948(b). The foundation managers 
of such organizations are not required to publish notice of availability 
of the annual return for inspection, to make the annual return available 
at the principal office of the foundation for public inspection under 
section 6104(d), or to send copies of the annual return to State 
officers.
    (e) Effective date. The provisions of this section shall apply with 
respect to returns filed for taxable years beginning after December 31, 
1980.

[T.D. 8026, 50 FR 20756, May 20, 1985]



Sec. 1.6033-4  Required use of magnetic media for returns by
organizations required to file returns under section 6033.

    The return of an organization that is required to be filed on 
magnetic media under Sec. 301.6033-4 of this chapter must be filed in 
accordance with Internal Revenue Service revenue procedures, 
publications, forms, or instructions, including those posted 
electronically. (See Sec. 601.601(d)(2) of this chapter).

[T.D. 9364, 72 FR 63810, Nov. 13, 2007]



Sec. 1.6033-5  Disclosure by tax-exempt entities that are parties
to certain reportable transactions.

    (a) In general. Every tax-exempt entity (as defined in section 
4965(c)) shall file with the IRS on Form 8886-T, ``Disclosure by Tax-
Exempt Entity Regarding Prohibited Tax Shelter Transaction'' (or a 
successor form), in accordance with this section and the instructions to 
the form, a disclosure of--
    (1) Such entity's being a party (as defined in Sec. 53.4965-4 of 
this chapter) to a prohibited tax shelter transaction (as defined in 
section 4965(e)); and
    (2) The identity of any other party (whether taxable or tax-exempt) 
to

[[Page 156]]

such transaction that is known to the tax-exempt entity.
    (b) Frequency of disclosure. A single disclosure is required for 
each prohibited tax shelter transaction.
    (c) By whom disclosure is made--(1) Tax-exempt entities referred to 
in section 4965(c)(1), (2) or (3). In the case of tax-exempt entities 
referred to in section 4965(c)(1), (2) or (3), the disclosure required 
by this section must be made by the entity.
    (2) Tax-exempt entities referred to in section 4965(c)(4), (5), (6) 
or (7). In the case of tax-exempt entities referred to in section 
4965(c)(4), (5), (6) or (7), including a fully self-directed qualified 
plan, IRA, or other savings arrangement, the disclosure required by this 
section must be made by the entity manager (as defined in section 
4965(d)(2)) of the entity.
    (d) Time and place for filing--(1) In general. The disclosure 
required by this section shall be filed on or before May 15 of the 
calendar year following the close of the calendar year during which the 
tax-exempt entity entered into the prohibited tax shelter transaction.
    (2) Subsequently listed transactions. In the case of subsequently 
listed transactions (as defined in section 4965(e)(2)), the disclosure 
required by this section shall be filed on or before May 15 of the 
calendar year following the close of the calendar year during which the 
transaction was identified by the Secretary as a listed transaction.
    (3) Transition rule. If a tax-exempt entity entered into a 
prohibited tax shelter transaction after May 17, 2006, and before 
January 1, 2007, the disclosure required by this section shall be filed 
on or before November 2, 2007.
    (4) No disclosure. Disclosure is not required with respect to any 
prohibited tax shelter transaction entered into by a tax-exempt entity 
on or before May 17, 2006.
    (e) Penalty for failure to provide disclosure statement. See section 
6652(c)(3) for the penalty applicable to the failure to disclose a 
prohibited tax shelter transaction in accordance with this section.
    (f) Effective date/applicability date. This section applies with 
respect to transactions entered into by a tax-exempt entity after May 
17, 2006.

[T.D. 9492, 75 FR 38702, July 6, 2010]



Sec. 1.6033-6  Notification requirement for entities not required to 
file an annual information return under section 6033(a)(1) (taxable
years beginning after December 31, 2006).

    (a) In general. Except as otherwise provided in this paragraph, 
every organization exempt from taxation under section 501(a) that is not 
required to file a return described in Sec. 1.6033-2(a)(2), other than 
an organization described in section 401(a) or 501(d), shall submit 
annually, in electronic form, a notification setting forth the items 
described in paragraph (c) of this section and such other information as 
may be prescribed in the instructions and publications issued with 
respect to the notification.
    (b) Organizations not required to submit annual electronic 
notification. (1) An organization exempt from taxation under section 
501(a) that is required to file or files an annual information return 
under section 6033(a)(1) shall not submit an annual electronic 
notification under section 6033(i). This includes the following types of 
organizations:
    (i) Any organization included in a group return for that year under 
Sec. 1.6033-2(d).
    (ii) All private foundations required to file under Sec. 1.6033-
2(a)(2)(i) Form 990-PF, ``Return of Private Foundation or Section 
4947(a)(1) Nonexempt Charitable Trust Treated as a Private Foundation.''
    (iii) Section 509(a)(3) supporting organizations required to file 
under Sec. 1.6033-2(a)(2)(i) Form 990, ``Return of Organization Exempt 
From Income Tax,'' or Form 990-EZ, ``Short Form Return of Organization 
Exempt From Income Tax.''
    (iv) A section 501(c)(21) black lung trust required to file under 
Sec. 1.6033-2(a)(2)(i) Form 990-BL, ``Information and Initial Excise Tax 
Return for Black Lung Benefit Trusts and Certain Related Persons.''
    (v) Any organization that is required to file or files an annual 
information return under section 6033(a)(1) on any other form prescribed 
by the Internal Revenue Service for that purpose.
    (2) An organization exempt from taxation under section 501(a) that 
is not required to file a return under section 6033(a)(1) is also not 
required to submit

[[Page 157]]

an annual electronic notification under section 6033(i). This includes 
the following types of organizations:
    (i) A church, an interchurch organization of local units of a 
church, a convention or association of churches, or an integrated 
auxiliary of a church (as defined in Sec. 1.6033-2(h)).
    (ii) An exclusively religious activity of any religious order.
    (iii) A mission society sponsored by or affiliated with one or more 
churches or church denominations, more than one-half of the activities 
of which society are conducted in, or directed at persons in, foreign 
countries.
    (iv) An educational organization (below college level) described in 
section 170(b)(1)(A)(ii), that has a program of a general academic 
nature, and that is affiliated (within the meaning of Sec. 1.6033-
2(h)(2)) with a church or operated by a religious order.
    (v) A State institution, the income of which is excluded from gross 
income under section 115(a).
    (vi) An organization described in section 501(c)(1).
    (vii) An organization that is a governmental unit or an affiliate of 
a governmental unit exempt from Federal income tax under section 501(a).
    (3) If an organization exempt from taxation under section 501(a) is 
not described in paragraph (b)(1) or (2) of this section, the 
organization must submit an annual electronic notification. Thus, a 
black lung trust that normally has gross receipts of $25,000 or less is 
not required to file Form 990-BL but is required to submit an annual 
electronic notification. A section 509(a)(3) supporting organization of 
a religious organization that normally has gross receipts of $5,000 or 
less is not required to file Form 990 or Form 990-EZ but is required to 
submit an annual electronic notification.
    (c) Additional notification requirements--(1) In general. Any 
organization described in paragraph (a) of this section shall submit an 
annual electronic notification described in section 6033(i)(1). The 
annual electronic notification shall--
    (i) Be in electronic form; and
    (ii) Set forth--
    (A) The legal name of the organization;
    (B) Any name under which the organization operates or does business;
    (C) The organization's mailing address and Internet Web site address 
(if any);
    (D) The organization's taxpayer identification number;
    (E) The name and address of a principal officer;
    (F) Evidence of the continuing basis for the organization's 
exemption from the filing requirements under section 6033(a)(1); and
    (G) Additional information necessary to process the notification.
    (2) The mailing address required by section 6033(i)(1)(C) and 
submitted in the annual electronic notification shall be the 
organization's last known address as provided by Sec. 301.6212-2(a) of 
this chapter. This last known address may be updated as provided under 
Sec. 301.6212-2 of this chapter, or by clear and concise notification. 
The Internal Revenue Service will use this last known address as the 
organization's address of record and will direct all mailings to this 
address.
    (3) By submitting the annual electronic notification described in 
paragraph (c)(1) of this section, an organization acknowledges that it 
is not required to file a return under section 6033(a) because its 
annual gross receipts are not normally in excess of $25,000. In order to 
make this determination, the organization must keep records that enable 
it to calculate its gross receipts. All organizations are required to 
maintain records under section 6001. These records will provide evidence 
of the continuing basis for the organization's exemption from the filing 
requirements under section 6033(a)(1).
    (4) If an organization that is required to submit an annual 
electronic notification files a complete Form 990 or Form 990-EZ, the 
annual electronic notification requirement shall be deemed satisfied. 
The annual electronic notification requirement is not satisfied if the 
Form 990 or Form 990-EZ contains only those items of information that 
would have been required by submitting the notification in electronic 
form. Also, the filing of a complete Form 990 or Form 990-EZ, rather 
than the submission of an annual electronic

[[Page 158]]

notification, is the filing of a return that starts the period of 
limitations for assessment under section 6501(g)(2).
    (d) No effect on other filing requirements. An organization that is 
relieved from filing an information return under section 6033(a) is 
still subject to the requirements of Secs. 1.6033-2(i) and (j), 
concerning: notice regarding changes in character, operations, or 
purpose; provision of additional information; duty to file other returns 
of information; and duty to file unrelated business tax returns. If an 
organization is required to file an unrelated business tax return, Form 
990-T, ``Exempt Organization Business Income Tax Return,'' the filing of 
that return does not relieve the organization from the requirement of 
submitting an annual electronic notification under section 6033(i).
    (e) Accounting period for submitting annual electronic notification. 
An annual electronic notification required by this section shall be on 
the basis of the established annual accounting period of the 
organization. If the organization has no established accounting period, 
the annual electronic notification shall be on the basis of the calendar 
year.
    (f) Time and place for submitting annual electronic notification. 
The annual electronic notification required by this section shall be 
submitted on or before the 15th day of the fifth calendar month 
following the close of the period for which the notification is required 
to be submitted. Thus, an organization with an accounting period ending 
December 31, 2007, is required to submit an annual electronic 
notification by May 15, 2008. The notification shall be submitted in 
accordance with instructions and publications, including those provided 
at the Internal Revenue Service Web site for exempt organizations.
    (g) Effective/applicability date. These regulations are applicable 
to annual periods beginning after 2006.

[T.D. 9454, 74 FR 36396, July 23, 2009]



Sec. 1.6034-1  Information returns required of trusts described in 
section 4947(a)(2) or claiming charitable or other deductions under
section 642(c).

    (a) In general. Every trust (other than a trust described in 
paragraph (b) of this section) claiming a charitable or other deduction 
under section 642(c) for the taxable year shall file, with respect to 
such taxable year, a return of information on form 1041-A. In addition, 
for taxable years beginning after December 31, 1969, every trust (other 
than a trust described in paragraph (b) of this section) described in 
section 4947(a)(2) (including trusts described in section 664) shall 
file such return for each taxable year, unless all transfers in trust 
occurred before May 27, 1969. The return shall set forth the name and 
address of the trust and the following information concerning the trust 
in such detail as is prescribed by the form or in the instructions 
issued with respect to such form:
    (1) The amount of the charitable or other deduction taken under 
section 642(c) for the taxable year (and, for taxable years beginning 
prior to January 1, 1970, showing separately for each class of activity 
for which disbursements were made (or amounts were permanently set 
aside) the amounts which, during such year, were paid out (or which were 
permanently set aside) for charitable or other purposes under section 
642(c));
    (2) The amount paid out during the taxable year which represents 
amounts permanently set aside in prior years for which charitable or 
other deductions have been taken under section 642(c), and separately 
listing for each class of activity, for which disbursements were made, 
the total amount paid out;
    (3) The amount for which charitable or other deductions have been 
taken in prior years under section 642(c) and which had not been paid 
out at the beginning of the taxable year;
    (4)(i) The amount paid out of principal in the taxable year for 
charitable, etc., purposes, and separately listing for each such class 
of activity, for which disbursements were made, the total amount paid 
out;
    (ii) The total amount paid out of principal in prior years for 
charitable, etc., purposes;
    (5) The gross income of the trust for the taxable year and the 
expenses attributable thereto, in sufficient detail to show the 
different categories of income and of expense; and

[[Page 159]]

    (6) A balance sheet showing the assets, liabilities, and net worth 
of the trust as of the beginning of the taxable year.
    (b) Exceptions--(1) In general. A trust is not required to file a 
Form 1041-A for any taxable year with respect to which the trustee is 
required by the terms of the governing instrument and applicable local 
law to distribute currently all of the income of the trust. For this 
purpose, the income of the trust shall be determined in accordance with 
section 643(b) and Secs. 1.643(b)-1 and 1.643(b)-2.
    (2) Trusts described in section 4947(a)(1). For taxable years 
beginning after December 31, 1980, a trust described in section 
4947(a)(1) is not required to file a Form 1041-A.
    (c) Time and place for filing return. The return on form 1041-A 
shall be filed on or before the 15th day of the 4th month following the 
close of the taxable year of the trust, with the internal revenue 
officer designated by the instructions applicable to such form. For 
extensions of time for filing returns under this section, see 
Sec. 1.6081-1.
    (d) Other provisions. For publicity of information on Form 1041-A, 
see section 6104 and the regulations thereunder in part 301 of this 
chapter. For provisions relating to penalties for failure to file a 
return required by this section, see section 6652(d). For the criminal 
penalties for a willful failure to file a return and filing a false or 
fraudulent return, see sections 7203, 7206, and 7207.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 7563, 43 FR 
40221, Sept. 11, 1978; T.D. 8026, 50 FR 20757, May 20, 1985]



Sec. 1.6035-1  Returns of U.S. officers, directors and 10-percent
shareholders of foreign personal holding companies for taxable years
beginning after September 3, 1982.

    (a) Requirement of returns--(1) In general. For taxable years of a 
foreign personal holding company beginning after September 3, 1982, each 
United States citizen or resident who is an officer, director, or 10-
percent shareholder of the foreign personal holding company (as defined 
in section 552) shall file with his income tax return, on or before the 
date that return is due, Form 5471 and the applicable schedules to be 
completed in accordance with the instructions setting forth corporate, 
shareholder, and income information for the foreign personal holding 
company's annual accounting period that ends with or within the 
officer's, director's, or shareholder's taxable year. In the case of a 
foreign personal holding company which is a specified foreign 
corporation (as defined in section 898), the taxable year of such 
corporation shall be treated as its annual accounting period.
    (2) General corporate information. The general foreign personal 
holding company information required by this section with respect to 
each taxable year is as follows:
    (i) The name and address and employer identification number (if any) 
of the corporation;
    (ii) The kind of business in which the corporation is engaged;
    (iii) The date of its incorporation;
    (iv) The country under the laws of which the corporation is 
incorporated;
    (v) A description of each class of stock issued and outstanding by 
the corporation for the beginning and end of the annual accounting 
period;
    (vi) The number of shares and par value of common stock of the 
corporation issued and outstanding as of the beginning and end of the 
taxable year;
    (vii) The number of shares and par value of preferred stock of the 
corporation issued and outstanding as of the beginning and end of the 
taxable year, the rate of dividend on such stock and whether such 
dividend is cumulative or noncumulative; and
    (viii) Any other information required by the appropriate form and 
its instructions.


For purposes of this paragraph, the term ``share'' includes any security 
convertible into a share in the corporation and any option granted by 
the corporation with respect to any share in the corporation.
    (3) Shareholder information. The shareholder information required by 
this section is as follows:
    (i) The name, address and taxpayer identification number (if any) of 
each person, whether foreign or U.S., who was a shareholder during the 
taxable year and the class and number of shares held by each, together 
with an

[[Page 160]]

explanation of any changes in stock holdings during the taxable year,
    (ii) The name and address of each holder during the taxable year of 
securities convertible into stock of the corporation and the class, 
number, and face value of the securities held by each, together with and 
explanation of any changes in the holdings of such securities during the 
taxable year,
    (iii) The name and address of each holder during the taxable year of 
any option granted by the corporation with respect to any share in the 
corporation, and a full description of the options held by each, 
together with an explanation of any changes in the holdings of such 
options during the taxable year, and
    (iv) Any other information required by the appropriate form and its 
instructions.
    (4) Income information. The income information required by this 
section is the gross income, deductions and credits, taxable income, 
foreign personal holding company income, and undistributed foreign 
personal holding company income for the taxable year and other 
information required by the appropriate form and its instructions.
    (b) Persons required to file return--(1) In general. The 
determination of whether a United States citizen or resident is person 
who is an officer, director, or 10-percent shareholder required to file 
a return with respect to any foreign corporation is made as of the date 
that Form 5471 is required to be filed. If there is no such person 
required to file on that date (because, for example, the corporation has 
been dissolved), then filing is required of the persons who were 
officers, directors or 10-percent shareholders on the last day of the 
most recent taxable year of the corporation for which there was such a 
person who was a United States citizen or resident.
    (2) 10-percent shareholder. (i) The term ``10-percent shareholder'' 
means any individual who owns directly or indirectly (within the meaning 
of section 544) 10 percent or more in value of the outstanding stock of 
a foreign corporation.
    (ii) An individual who does not own 10 percent or more in value of 
the outstanding stock directly but is required to file solely by 
attribution of another United States person's stock ownership is excused 
from filing if the direct owner that is an individual furnishes all the 
information required.
    (3) Two or more persons required to submit the same information. If 
two or more persons are required to furnish the information for the same 
foreign personal holding company for the same period, one person may 
make one return on Form 5471. The single Form 5471 may be filed with the 
income tax return of any one of the persons and shall disclose the name, 
address, and identifying number of each other person or persons on whose 
behalf the return is filed. Each person on whose behalf the return is 
filed remains liable for any penalties imposed under sections 6679, 
7203, 7206, and 7207.
    (4) Statement required. Any United States citizen or resident 
required to furnish information under this section with his return who 
does not do so by reason of the provisions of subparagraph (2)(ii) or 
(3) of this paragraph shall file a statement with his income tax return 
indicating that such requirement has been or will be satisfied and 
identifying the return with which the information was or will be filed 
and the place of filing.
    (c) Separate returns for each corporation. If a person is required 
to file returns under section 6035 and this section with respect to more 
than one foreign personal holding company, separate returns must be 
filed with respect to each company.
    (d) Corrective filing. If an information return with respect to a 
taxable year of a foreign personal holding company beginning after 
September 3, 1982, is filed before [date which is 30 days after the date 
of publication of a Treasury decision in the Federal Register] and that 
return does not contain all of the information required by this section, 
then the filer of the return shall file an amended information return 
containing all of such information within 90 days after June 4, 1985.
    (e) Penalties--(1) Criminal penalties. For criminal penalties for 
failure to file a return and filing a false or fraudulent return, see 
sections 7203, 7206, and 7207.

[[Page 161]]

    (2) Civil penalties. For civil penalties for failure to file a 
proper foreign personal holding company information return, see section 
6679 and the regulations thereunder.

[T.D. 8028, 50 FR 23408, June 4, 1985; 50 FR 26359, June 26, 1985, as 
amended by T.D. 8573, 59 FR 64301, Dec. 14, 1994]



Sec. 1.6035-2  Transitional relief.

    (a) Statements due before June 30, 2016. Executors and other persons 
required to file or furnish a statement under section 6035(a)(1) or (2) 
after July 31, 2015 and before June 30, 2016, need not have done so 
until June 30, 2016.
    (b) Applicability Date. This section is applicable to executors and 
other persons who file a return required by section 6018(a) or (b) after 
July 31, 2015.

[T.D. 9797, 81 FR 86955, Dec. 2, 2016]



Sec. 1.6035-3  Returns of 50-percent U.S. shareholders of foreign 
personal holding companies for taxable years beginning before 
September 4, 1982.

    For rules relating to information returns required to be filed by 
shareholders of foreign personal holding companies for taxable years 
beginning before September 4, 1982, see section 6035(b) (as in effect 
before the enactment of the Tax Equity and Fiscal Responsibility Act of 
1982) and 26 CFR 1.6035-2 (Revised as of April 1, 1961).

[T.D. 8028, 50 FR 23409, June 4, 1985]



Sec. 1.6036-1  Notice of qualification as executor or receiver.

    For provisions relating to the notice required of fiduciaries, see 
the regulations under section 6036 contained in part 301 of this chapter 
(Regulations on Procedure and Administration).



Sec. 1.6037-1  Return of electing small business corporation.

    (a) In general. Every small business corporation (as defined in 
section 1371(a)) which has made an election under section 1372(a) not to 
be subject to the tax imposed by chapter 1 of the Code shall file, with 
respect to each taxable year for which the election is in effect, a 
return of income on Form 1120-S. The return shall set forth the items of 
gross income and the deductions allowable in computing taxable income as 
required by the return form or in the instructions issued with respect 
thereto and shall be signed in accordance with section 6062 by the 
person authorized to sign a return. The return shall also set forth the 
following information concerning the electing small business 
corporation:
    (1) The names and addresses of all persons owning stock in the 
corporation at any time during the taxable year;
    (2) The number of shares of stock owned by each shareholder at all 
times during the taxable year;
    (3) The amount of money and other property distributed by the 
corporation during the taxable year to each shareholder;
    (4) The date of each distribution of money and other property; and
    (5) Such other information as is required by the form or by the 
instructions issued with respect to such form.
    (b) Time and place for filing return. The return shall be filed on 
or before the 15th day of the third month following the close of the 
taxable year with the internal revenue officer designated in the 
instructions applicable to Form 1120-S. (See section 6072.)
    (c) Other provisions. The return on Form 1120-S will be treated as a 
return filed by the corporation under section 6012, relating to persons 
required to make returns of income, for purposes of the provisions of 
chapter 66 of the Code, relating to limitations. Thus, for example, the 
period of limitation on assessment and collection of any corporate tax 
found to be due upon a subsequent determination that the corporation was 
not entitled to the benefits of subchapter S, chapter 1 of the Code, 
will run from the date of filing the return under section 6037, or from 
the date prescribed for filing such return, whichever is the later. For 
the rules requiring the disclosure of certain transactions, see 
Sec. 1.6011-4T.
    (d) Penalties. For criminal penalties for failure to file a return, 
supply information, or pay tax, and for filing a false or fraudulent 
return, statement, or other document, see sections 7203, 7206, and 7207.

[T.D. 6500, 25 FR 12108, Nov. 26, 1960, as amended by T.D. 7012, 34 FR 
7690, May 15, 1969; T.D. 9000, 67 FR 41328, June 18, 2002]

[[Page 162]]



Sec. 1.6037-2  Required use of magnetic media for income tax returns
of electing small business corporations.

    The return of an electing small business corporation that is 
required to be filed on magnetic media under Sec. 301.6037-2 of this 
chapter must be filed in accordance with Internal Revenue Service 
revenue procedures, publications, forms, or instructions, including 
those posted electronically. (See Sec. 601.601(d)(2) of this chapter).

[T.D. 9363, 72 FR 63810, Nov. 13, 2007]



Sec. 1.6038-1  Information returns required of domestic corporations 
with respect to annual accounting periods of certain foreign 
corporations beginning before  January 1, 1963.

    (a) Requirement of return. For taxable years beginning after 
December 31, 1960, every domestic corporation shall make a separate 
annual information return on Form 2952, in duplicate, with respect to 
each foreign corporation which it controls, as defined in paragraph (b) 
of this section, and with respect to each foreign subsidiary, as defined 
in paragraph (c) of this section, for each annual accounting period 
(described in paragraph (d) of this section) of each such controlled 
foreign corporation or foreign subsidiary beginning after December 31, 
1960, and before January 1, 1963. Such information shall not be required 
to be furnished, however, with respect to a corporation defined in 
section 1504(d) of the Code which makes a consolidated return for the 
taxable year. For annual accounting periods beginning after December 31, 
1962, see Sec. 1.6038-2.
    (b) Control. A domestic corporation shall be deemed to be in control 
of a foreign corporation if at any time during its taxable year it owns 
more than 50 percent of the voting stock of such foreign corporation.
    (c) Foreign subsidiary. A foreign corporation more than 50 percent 
of the voting stock of which is owned by a controlled foreign 
corporation at any time during the annual accounting period of such 
controlled foreign corporation shall be considered a foreign subsidiary.
    (d) Period covered by return--(1) Controlled foreign corporation. 
The information with respect to a controlled foreign corporation shall 
be furnished for its annual accounting period ending with or within the 
domestic corporation's taxable year.
    (2) Foreign subsidiary. The information with respect to a foreign 
subsidiary shall be furnished for such subsidiary's annual accounting 
period ending with or within the controlled foreign corporation's annual 
accounting period.
    (3) Annual accounting period defined. For purposes of this section, 
the annual accounting period of a controlled foreign corporation or of a 
foreign subsidiary is the annual period on the basis of which the 
controlled foreign corporation or foreign subsidiary regularly computes 
its income in keeping its books. The term ``annual accounting period'' 
may refer to a period of less than 1 year, where for example the foreign 
income, war profits, and excess profits taxes are determined on the 
basis of an accounting period of less than 1 year as described in 
section 902(c)(2).
    (e) Contents of return. The return on Form 2952 shall contain the 
following information with respect to each controlled corporation and 
each foreign subsidiary:
    (1) The name and address of the corporation;
    (2) The principal place of business of the corporation;
    (3) The date of incorporation and the country under whose laws 
incorporated;
    (4) The nature of the corporation's business;
    (5) As regards the outstanding stock of the corporation:
    (i) A description of each class of the corporation's stock, and
    (ii) The number of shares of each class outstanding at the beginning 
and the end of the annual accounting period;
    (6) A list showing the name and address of, and the number of shares 
of each class of the corporation's stock held by, each citizen or 
resident of the United States, and each domestic corporation, who is a 
shareholder of record owning at any time during the

[[Page 163]]

annual accounting period 5 percent or more in value of any class of the 
corporation's outstanding stock;
    (7) The amount of the corporation's gross receipts, net profits 
before taxes and provision for foreign income taxes, for the annual 
accounting period, as reflected on the financial statements required 
under paragraph (f) of this section to be filed with the return; and
    (8) A summary showing the total amount of each of the following 
types of transactions of the corporation, which took place during the 
annual accounting period, with the domestic corporation or any 
shareholder of the domestic corporation owning at the time of the 
transaction 10 percent or more of the value of any class of stock 
outstanding of the domestic corporation:
    (i) Sales and purchases of stock in trade;
    (ii) Purchases of property of a character which is subject to the 
allowance for depreciation;
    (iii) Compensation paid and compensation received for the rendition 
of technical, managerial, engineering, construction, scientific, or like 
services;
    (iv) Commissions paid and commissions received;
    (v) Rents and royalties paid and rents and royalties received;
    (vi) Amounts loaned and amounts borrowed (other than open accounts 
which arise and are collected in the ordinary course of business);
    (vii) Dividends paid and dividends received;
    (viii) Interest paid and interest received; and
    (ix) Premiums received for insurance or reinsurance.


If the domestic corporation is a bank, as defined in section 581, or is 
controlled within the meaning of section 368(c) by a bank, the term 
``transactions'' shall not, as to a corporation with respect to which a 
return is filed, include banking transactions entered into on behalf of 
customers; in any event, however, deposits in accounts between a 
controlled foreign corporation or a foreign subsidiary and the domestic 
corporation or a 10-percent shareholder described in this subparagraph 
and withdrawals from such accounts shall be summarized by reporting end-
of-month balances.
    (f) Financial statements. The following information with respect to 
each controlled foreign corporation and each foreign subsidiary shall be 
attached to and filed as part of the return required by this section:
    (1) A statement of the corporation's profit and loss for the annual 
accounting period;
    (2) A balance sheet as of the end of the annual accounting period of 
the corporation showing:
    (i) The corporation's assets,
    (ii) The corporation's liabilities, and
    (iii) The corporation's net worth; and
    (3) An analysis of changes in the corporation's surplus accounts 
during the annual accounting period including both opening and closing 
balances.


The statements listed in subparagraphs (1), (2), and (3) of this 
paragraph shall be prepared in conformity with generally accepted 
accounting principles, and in such form and detail as is customary for 
the corporation's accounting records.
    (g) Method of reporting. All amounts furnished under paragraphs (e) 
and (f) of this section shall be expressed in United States currency 
with a statement of the exchange rates used.
    (h) Time and place for filing return. Returns on Form 2952 required 
under paragraph (a) of this section shall be filed with the domestic 
corporation's income tax return on or before the fifteenth day of the 
third month following the close of such corporation's taxable year.
    (i) Extensions of time for filing. District directors are authorized 
to grant reasonable extensions of time for filing returns on Form 2952 
in accordance with the applicable provisions of Sec. 1.6081-1. An 
application by a domestic corporation for an extension of time for 
filing a return of income shall also be considered as an application for 
an extension of time for filing returns on Form 2952.
    (j) Failure to furnish information--(1) Effect on foreign tax 
credit. (i) Failure by a domestic corporation to furnish, in accordance 
with the provisions of this section, any return or any information in 
any return, required to be filed for a taxable year under authority

[[Page 164]]

of section 6038 on or before the date prescribed in paragraph (h) of 
this section (determined with regard to any extension of time for such 
filing) shall affect the application of section 902 as provided in 
subparagraph (2) of this paragraph. Such failure shall affect the 
application of section 902 to such domestic corporation or to any person 
who acquires from any person any portion (but only to the extent of such 
portion) of the interest of such domestic corporation in any controlled 
foreign corporation or foreign subsidiary.
    (ii) Where the domestic corporation, having filed the return 
required by this section except for an omission of, or error with 
respect to, some of the information referred to in paragraphs (e) and 
(f) of this section, establishes to the satisfaction of the Commissioner 
that such omission or error was inadvertent or for reasonable cause and 
that such domestic corporation has substantially complied with this 
section, such omission or error shall not constitute a failure under 
this section.
    (2) Reduction of foreign taxes. In the application of section 902 to 
the domestic corporation or person referred to in subparagraph (1)(i) of 
this paragraph for any taxable year, the amount of taxes paid or deemed 
paid by each controlled foreign corporation and each foreign subsidiary 
for the accounting period or periods for which the domestic corporation 
was required for the taxable year of the failure to furnish information 
under this section shall be reduced by 10 percent. The 10 percent 
reduction is not limited to the taxes paid or deemed paid by the 
controlled foreign corporation or foreign subsidiary with respect to 
which there is a failure to file information but shall apply to the 
taxes paid or deemed paid by all controlled foreign corporations and 
foreign subsidiaries.
    (3) Reduction for continued failure. (i) If the failure, referred to 
in subparagraph (1)(i) of this paragraph, continues for 90 days or more 
after date of written notice by the district director to the domestic 
corporation, then the amount of the reduction referred to in 
subparagraph (2) of this paragraph shall be 10 percent plus an 
additional 5 percent for each 3-month period, or fraction thereof, 
during which such failure continues after the expiration of such 90-day 
period.
    (ii) Taxes paid by a foreign subsidiary when once reduced for a 
failure shall not be reduced again for the same failure in their status 
as taxes deemed paid by a controlled foreign corporation. Where a 
failure continues, each additional periodic 5 percent reduction, 
referred to in subdivision (i) of this subparagraph, shall be considered 
as part of the one reduction.
    (4) Reasonable cause. (i) For purposes of subsection (b) of section 
6038 and this section the time prescribed for furnishing information 
under this paragraph, and the beginning of the 90-day period after 
notice by the district director, shall be treated as being not earlier 
than the last day on which (as shown to the satisfaction of the district 
director) reasonable cause existed for failure to furnish such 
information.
    (ii) A domestic corporation, which wishes to avoid a reduction in 
foreign tax credit as provided in subparagraphs (2) and (3) of this 
paragraph for failure to furnish information in accordance with this 
section, must make an affirmative showing of all facts alleged as a 
reasonable cause for such failure in the form of a written statement 
containing a declaration that it is made under the penalties of perjury.
    (5) Penalties. The information required by section 6038 of the Code 
must be furnished even though there are no foreign taxes which would be 
reduced under the provisions of subparagraph (2) of this paragraph. For 
criminal penalties for failure to file a return and filing a false or 
fraudulent return, see sections 7203, 7206, and 7207 of the Code.

[T.D. 6506, 25 FR 12241, Nov. 30, 1960, as amended by T.D. 6621, 27 FR 
11878, Dec. 1, 1962]



Sec. 1.6038-2  Information returns required of United States persons
with respect to annual accounting periods of certain foreign 
corporations beginning after  December 31, 1962.

    (a) Requirement of return. Every U.S. person shall make a separate 
annual information return with respect to each annual accounting period 
(described in paragraph (e) of this section) beginning after December 
31, 1962, of

[[Page 165]]

each foreign corporation which that person controls (as defined in 
paragraph (b) of this section) for an uninterrupted period of 30 days or 
more during such annual accounting period. Such information shall not be 
required to be furnished, however, with respect to a corporation defined 
in section 1504(d) of the Code which makes a consolidated return for the 
taxable year. The return shall be made, with respect to annual 
accounting periods ending with or within the United States person's 
taxable year, on--
    (1) Form 2952, ``Information Return with Respect to Controlled 
Foreign Corporations,'' if such taxable year ends before December 31, 
1982;
    (2) Form 5471, ``Information Return of U.S. Persons with Respect to 
Certain Foreign Corporations,'' if such taxable year ends on or after 
December 31, 1983; or
    (3) Either Form 5471 or Form 2952 if such taxable year ends on or 
after December 31, 1982 and before December 31, 1963.
    (b) Control. A person shall be deemed to be in control of a foreign 
corporation if at any time during that person's taxable year it owns 
stock possessing more than 50 percent of the total combined voting power 
of all classes of stock entitled to vote, or more than 50 percent of the 
total value of shares of all classes of stock of the foreign 
corporation. A person in control of a corporation which, in turn, owns 
more than 50 percent of the combined voting power, or of the value, of 
all classes of stock of another corporation is also treated as being in 
control of such other corporation. The provisions of this paragraph may 
be illustrated by the following example:

    Example. Corporation A owns 51 percent of the voting stock in 
Corporation B. Corporation B owns 51 percent of the voting stock in 
Corporation C. Corporation C in turn owns 51 percent of the voting stock 
in Corporation D. Corporation D is controlled by Corporation A.

    (c) Attribution rules. For the purpose of determining control of 
domestic or foreign corporations the constructive ownership rules of 
section 318(a) shall apply except that:
    (1) Stock owned by or for a partner or a beneficiary of an estate or 
trust shall not be considered owned by the partnership, estate, or trust 
when the effect is to consider a United States person as owning stock 
owned by a person who is not a United States person;
    (2) A corporation will not be considered as owning stock owned by or 
for a 50 percent or more shareholder when the effect is to consider a 
United States person as owning stock owned by a person who is not a 
United States person; and
    (3) If 10 percent or more in value of the stock in a corporation is 
owned, directly or indirectly, by or for any person, section 
318(a)(2)(C) shall apply.


The constructive ownership rules of section 318(a) apply only for 
purposes of determining control as defined in paragraph (b) of this 
section.
    (d) U.S. person--(1) In general. For purposes of section 6038 and 
this section, the term United States person has the meaning assigned to 
it by section 7701(a)(30), except as provided in paragraphs (d)(2) and 
(3) of this section.
    (2) Special rule for individuals residing in certain possessions. 
(i) With respect to an individual who is a bona fide resident of Puerto 
Rico, the term United States person has the meaning assigned to it by 
Sec. 1.957-3 except that the rules of Sec. 1.937-2(g)(1) will apply.
    (ii) With respect to an individual who is a bona fide resident of 
any section 931 possession, as defined in Sec. 1.931-1(c)(1), the term 
United States person has the meaning assigned to it by Sec. 1.957-3.
    (3) Special rule for certain nonresident aliens. An individual for 
whom an election under section 6013(g) or (h) is in effect will, subject 
to the exceptions contained in paragraph (d)(2) of this section, be 
considered a United States person for purposes of section 6038 and this 
section.
    (e) Period covered by return. The information required under 
paragraphs (f) and (g) of this section with respect to a foreign 
corporation shall be furnished for the annual accounting period of the 
foreign corporation ending with or within the United States person's 
taxable year. For purposes of this section, the annual accounting period 
of a foreign corporation is the annual period on the basis of which that 
corporation

[[Page 166]]

regularly computes its income in keeping its books. In the case of a 
specified foreign corporation (as defined in section 898), the taxable 
year of such corporation shall be treated as its annual accounting 
period. The term annual accounting period may refer to a period of less 
than one year, where, for example, the foreign income, war profits, and 
excess profits taxes are determined on the basis of an accounting period 
of less than one year as described in section 902(c)(5). If more than 
one annual accounting period ends with or within the United States 
person's taxable year, separate annual information returns shall be 
submitted for each annual accounting period.
    (f) Contents of return. The return on Form 5471 shall contain so 
much of the following information, and in such form or manner, as the 
form shall prescribe with respect to each foreign corporation:
    (1) The name, address, and employer identification number, if any, 
of the corporation;
    (2) The principal place of business of the corporation;
    (3) The date of incorporation and the country under whose laws 
incorporated;
    (4) The name and address of the foreign corporation's statutory or 
resident agent in the country of incorporation;
    (5) The name, address, and identifying number of any branch office 
or agent of the foreign corporation located in the United States;
    (6) The name and address of the person (or persons) having custody 
of the books of account and records of the foreign corporation, and the 
location of such books and records if different from such address;
    (7) The nature of the corporation's business and the principal 
places where conducted;
    (8) As regards the outstanding stock of the corporation--
    (i) A description of each class of the corporation's stock, and
    (ii) The number of shares of each class outstanding at the beginning 
and end of the annual accounting period;
    (9) A list showing the name, address, and identifying number of, and 
the number of shares of each class of the corporation's stock held by, 
each United States person who is a shareholder owning at any time during 
the annual accounting period 5 percent or more in value of any class of 
the corporation's outstanding stock;
    (10) For the annual accounting period, the amount of the 
corporation's:
    (i) Current earnings and profits;
    (ii) Foreign income, war profits, and excess profits taxes paid or 
accrued;
    (iii) Distributions out of current earnings and profits for the 
period;
    (iv) Distributions other than those described in paragraph 
(f)(10)(iii) of this section and the source thereof; and
    (v) For Forms 5471 filed for taxable years ending after December 15, 
1990, such earnings and profits information as the form shall prescribe, 
including post-1986 undistributed earnings described in section 
902(c)(1), pre-1987 amounts, total earnings and profits, and previously 
taxed earnings and profits described in section 959(c); and
    (11) Transactions with certain related parties. (i) A summary 
showing the total amount of each of the following types of transactions 
of the corporation, which took place during the annual accounting 
period, with the person required to file this return, any other 
corporation or partnership controlled by that person, or any United 
States person owning at the time of the transaction 10 percent or more 
in value of any class of stock outstanding of the foreign corporation, 
or of any corporation controlling that foreign corporation--
    (A) Sales and purchases of stock in trade;
    (B) Sales and purchases of tangible property other than stock in 
trade;
    (C) Sales and purchases of patents, inventions, models, or designs 
(whether or not patented), copyrights, trademarks, secret formulas or 
processes, or any other similar property rights;
    (D) Compensation paid and compensation received for the rendition of 
technical, managerial, engineering, construction, scientific, or like 
services;
    (E) Commissions paid and commissions received;
    (F) Rents and royalties paid and rents and royalties received;

[[Page 167]]

    (G) Amounts loaned and amounts borrowed (except open accounts 
resulting from sales and purchases reported under other items listed in 
this paragraph (f)(11) that arise and are collected in full in the 
ordinary course of business);
    (H) Dividends paid and dividends received;
    (I) Interest paid and interest received; and
    (J) Premiums paid and premiums received for insurance or 
reinsurance.
    (ii) Special rule for banks. For purposes of this paragraph (f)(11), 
if the United States person is a bank, as defined in section 581, or is 
controlled within the meaning of section 368(c) by a bank, the term 
transactions shall not, as to a corporation with respect to which a 
return is filed, include banking transactions entered into on behalf of 
customers; in any event, however, deposits in accounts between a foreign 
corporation, controlled (within the meaning of paragraph (b) of this 
section) by a United States person, and a person described in this 
paragraph (f)(11) and withdrawals from such accounts shall be summarized 
by reporting end-of-month balances.
    (12) Accrued payments and receipts. For purposes of the required 
summary under paragraph (f)(11) of this section, a corporation that uses 
an accrual method of accounting shall use accrued payments and accrued 
receipts for purposes of computing the total amount of each of the types 
of transactions listed.
    (g) Financial statements. The following information with respect to 
the foreign corporation shall be attached to and filed as part of the 
return required by this section. Forms 5471 filed after September 30, 
1991, shall contain this information in such form or manner as the form 
shall prescribe with respect to each foreign corporation:
    (1) A statement of the corporation's profit and loss for the annual 
accounting period;
    (2) A balance sheet as of the end of the annual accounting period of 
the corporation showing--
    (i) The corporation's asset;
    (ii) The corporation's liabilities; and
    (iii) The corporation's net worth; and
    (3) An analysis of changes in the corporation's surplus accounts 
during the annual accounting period including both opening and closing 
balances.


The information listed in this paragraph (g) shall be prepared in 
conformity with generally accepted accounting principles, and in such 
detail as is customary for the corporation's accounting records.
    (h) Method of reporting. Except as provided in this paragraph (h), 
all amounts furnished under paragraphs (f) and (g) of this section shall 
be expressed in United States dollars with a statement of the exchange 
rates used. The following rules shall apply for taxable years ending 
after December 31, 1994, with respect to returns filed after December 
31, 1995. All amounts furnished under paragraph (g) of this section 
shall be expressed in United States dollars computed and translated in 
conformity with United States generally accepted accounting principles. 
Amounts furnished under paragraph (g)(1) of this section shall also be 
furnished in the foreign corporation's functional currency as required 
on the form. Earnings and profits amounts furnished under paragraphs 
(f)(10) (i), (iii), (iv), and (v) of this section shall be expressed in 
the foreign corporation's functional currency except to the extent the 
form requires specific items to be translated into United States 
dollars. Tax amounts furnished under paragraph (f)(10)(ii) of this 
section shall be furnished in the foreign currency in which the taxes 
are payable and in United States dollars translated in accordance with 
section 986(a). All amounts furnished under paragraph (f)(11) of this 
section shall be expressed in U.S. dollars translated from functional 
currency at the weighted average exchange rate for the year as defined 
in Sec. 1.989(b)-1. The foreign corporation's functional currency is 
determined under section 985. All statements submitted on or with the 
return required under this section shall be rendered in the English 
language.
    (i) Time and place for filing return. Returns on Form 5471 required 
under paragraph (a) of this section shall be filed with the United 
States person's income tax return on or before the date required by law 
for the filing of that person's income tax return. Directors of Field 
Operations and Field Directors

[[Page 168]]

are authorized to grant reasonable extensions of time for filing returns 
on Form 5471 in accordance with the applicable provisions of 
Sec. 1.6081-1 of this chapter. An application for an extension of time 
for filing a return of income shall also be considered as an application 
for an extension of time for filing returns on Form 5471.
    (j) Two or more persons required to submit the same information--(1) 
Return jointly made. If two or more persons are required to furnish 
information with respect to the same foreign corporation for the same 
period, such persons may, in lieu of making separate returns, jointly 
make one return. Such joint return shall be filed with the income tax 
return of any one of the persons making such joint return.
    (2) Persons excepted from furnishing information--(i) Conditions. 
Any person required to furnish information under this section with 
respect to a foreign corporation need not furnish that information 
provided all of the following conditions are met:
    (A) Such person does not directly own an interest in the foreign 
corporation;
    (B) Such person is required to furnish the information solely by 
reason of attribution of stock ownership from a United States person 
under paragraph (c) of this section; and
    (C) The person from whom the stock ownership is attributed furnishes 
all of the information required under this section of the person to whom 
the stock ownership is attributed. (For a rule regarding attribution 
from a nonresident alien, see paragraph (l) of this section).
    (ii) If an individual who is a United States person required to 
furnish information with respect to a foreign corporation under section 
6038 is entitled under a treaty to be treated as a nonresident of the 
United States, and if the individual claims this treaty benefit, and if 
there are no other United States persons that are required to furnish 
information under section 6038 with respect to the foreign corporation, 
then the individual may satisfy the requirements of paragraphs (f)(10), 
(f)(11), (g), and (h) of this section by filing the audited foreign 
financial statements of the foreign corporation with the individual's 
return required under section 6038.
    (iii) Illustrations. The rule of this paragraph (j)(2) is 
illustrated by the following examples:

    Example 1. A, a U.S. person owns 100 percent of the stock of M, a 
domestic corporation. A also owns 100 percent of the stock of N, a 
foreign corporation organized under the laws of foreign country Y. A, in 
filing the information return required by this section with respect to N 
Corporation, in fact furnishes all of the information required of M 
Corporation with respect to N Corporation. M Corporation need not file 
the information.
    Example 2. X, a domestic corporation owns 100 percent of the stock 
of Y, a domestic corporation, Y Corporation owns 100 percent of the 
stock of Z, a foreign corporation. X Corporation is not excused by this 
paragraph (j)(2) from filing information with respect to Z Corporation 
because X Corporation is deemed to control Z Corporation under the 
provisions of paragraph (b) of this section without recourse to the 
attribution rules in paragraph (c) of this section.

    (3) Statement required. Any United States person required to furnish 
information under this section with his return who does not do so by 
reason of the provisions of paragraph (j)(1) of this section shall file 
a statement with his income tax return indicating that such requirement 
has been (or will be) satisfied and identifying the return with which 
the information was or will be filed and the place of filing.
    (k) Failure to furnish information--(1) Dollar amount penalty--(i) 
In general. If any person required to file Form 5471 under section 6038 
and this section fails to furnish any information described in 
paragraphs (f) and (g) of this section within the time prescribed by 
paragraph (i) of this section, such person shall pay a penalty of 
$10,000 for each annual accounting period of each foreign corporation 
with respect to which such failure occurs.
    (ii) Increase in penalty for continued failure after notification. 
If a failure described in paragraph (k)(1)(i) of this section continues 
for more than 90 days after the date on which the Director of Field 
Operations, Area Director, or Director of Compliance Campus Operations 
mails notice of such failure to the person required to file Form 5471, 
such person shall pay a penalty of

[[Page 169]]

$10,000, in addition to the penalty imposed by section 6038(b)(1) and 
paragraph (k)(1)(i) of this section, for each 30-day period (or a 
fraction of) during which such failure continues after such 90-day 
period has expired. The additional penalty imposed by section 6038(b)(2) 
and this paragraph (k)(1)(ii) shall be limited to a maximum of $50,000 
for each failure.
    (2) Penalty of reducing foreign tax credit--(i) Effect on foreign 
tax credit. Failure of a United States person to furnish, in accordance 
with the provisions of this section, any return or any information in 
any return, required to be filed for a taxable year under authority of 
section 6038 on or before the date prescribed in paragraph (i) of this 
section may affect the application of section 901 as provided in 
paragraph (k)(2)(ii) of this section and may affect the application of 
sections 902 and 960 as provided in paragraph (k)(2)(iii) of this 
section. Such failure may affect the application of sections 902 and 960 
to any such United States person which is a corporation or to any person 
who acquires from any other person any portion (but only to the extent 
of such portion) of the interest of such other person in any such 
foreign corporation.
    (ii) Application of section 901. In the application of section 901 
to a United States person referred to in paragraph (k)(2)(i) of this 
section, the amount of taxes paid or deemed paid by such person for any 
taxable year, with or within which the annual accounting period of a 
foreign corporation for which such person failed to furnish information 
required under this section ended, may be reduced by 10 percent. 
However, no tax reduced under paragraph (k)(2)(iii) of this section or 
deemed paid under section 904(c) shall be reduced under the provisions 
of this paragraph (k)(2)(ii).
    (iii) Application of sections 902 and 960. In the application of 
sections 902 and 960 to a United States person referred to in paragraph 
(k)(2)(i) of this section for any taxable year, the amount of taxes paid 
or deemed paid by each foreign corporation for the accounting period or 
periods for which such person was required for the taxable year of the 
failure to furnish information under this section may be reduced by 10 
percent. The 10-percent reduction is not limited to the taxes paid or 
deemed paid by the foreign corporation with respect to which there is a 
failure to file information but may apply to the taxes paid or deemed 
paid by all foreign corporations controlled by that person. In applying 
subsections (a) and (b) of section 902, and in applying subsection (a) 
of section 960, the reduction provided by this paragraph (k)(2) shall 
not apply for purposes of determining the amount of accumulated profits 
in excess of income, war profits, and excess profits taxes.
    (iv) Reduction for continued failure after notice. (A) If the 
failure referred to in paragraph (k)(2)(i) of this section continues for 
more than 90 days after the date on which the Director of Field 
Operations mails notice of such failure to such United States person, 
then the amount of the reduction referred to in paragraphs (k)(2) (ii) 
and (iii) of this section may be 10 percent plus an additional 5 percent 
for each 3-month period, or fraction thereof, during which such failure 
continues after the expiration of such 90-day period.
    (B) No taxes shall be reduced under this paragraph (k)(2) more than 
once for the same failure. Taxes paid by a foreign corporation when once 
reduced for a failure shall not be reduced again for the same failure in 
their status as taxes deemed paid by a corporate shareholder. Where a 
failure continues, each additional periodic 5-percent reduction, 
referred to in paragraph (k)(2)(iv)(A) of this section, shall be 
considered as part of the one reduction.
    (v) Limitation on reduction of foreign tax credit. The amount of the 
reduction under this paragraph (k)(2) for each failure to furnish 
information with respect to a foreign corporation as required under this 
section shall not exceed the greater of:
    (A) $10,000, or
    (B) The income of the foreign corporation for its annual accounting 
period with respect to which the failure occurs. For purposes of this 
section if a person is required to furnish information with respect to 
more than one foreign corporation, controlled (within the meaning of 
paragraph (b) of this section) by that person, each failure to

[[Page 170]]

submit information for each such corporation constitutes a separate 
failure.
    (vi) Offset for dollar amount penalty imposed. The total amount of 
the reduction or reductions which, but for this paragraph (k)(2)(vi), 
may be made under this paragraph (k)(2) with respect to any separate 
failure, shall not exceed the maximum amount of such reductions which 
may be imposed, reduced (but not below zero) by the amount of the dollar 
amount penalty imposed by paragraph (k)(1) of this section with respect 
to such separate failure.
    (3) Reasonable cause. (i) For purposes of section 6038 (b) and (c) 
and this section, the time prescribed for furnishing information under 
paragraph (i) of this section, and the beginning of the 90-day period 
after mailing of notice by the Director of Field Operations under 
paragraphs (k)(1)(ii) and (2)(iv)(A) of this section, shall be treated 
as being not earlier than the last day on which reasonable cause existed 
for failure to furnish the information.
    (ii) To show that reasonable cause existed for failure to furnish 
information as required by section 6038 and this section, the person 
required to report such information must make an affirmative showing of 
all facts alleged as reasonable cause for such failure in a written 
statement containing a declaration that it is made under the penalties 
of prejury. The statement must be filed with the district director for 
the district or the director of the service center where the return is 
required to be filed. The district director or the director of the 
service center shall determine whether the failure to furnish 
information was due to reasonable cause, and if so, the period of time 
for which such reasonable cause existed. In the case of a return that 
has been filed as required by this section except for an omission of, or 
error with respect to, some of the information required, if the person 
who filed the return establishes to the satisfaction of the district 
director or the director of the service center that the person has 
substantially complied with this section, then the omission or error 
shall not constitute a failure under this section.
    (4) Other penalties. The information required by section 6038 and 
this section must be furnished even though there are no foreign taxes 
which would be reduced under the provisions of this section, and even 
though the information required may not affect the amount of any tax due 
under the Internal Revenue Code. For criminal penalties for failure to 
file a return and filing a false or fraudulent return, see sections 
7203, 7206, and 7207 of the Code.
    (5) Illustrations. The provisions of this paragraph may be 
illustrated by the following examples.

    Example 1. M, a domestic corporation owns 100 percent of the stock 
of N, a foreign corporation. Both M and N use the calendar year as a 
taxable year and annual accounting period, and all of the following 
events occur in or with respect to the 1980 taxable year. The dividend 
from N is the only dividend from a foreign corporation received by M 
during the taxable year, and the foreign taxes listed are the only 
foreign taxes paid or deemed paid by M and N for the taxable year. On 
March 15, 1981, M filed its income tax return and paid its income tax, 
but M did not file Form 2952 with respect to N's 1980 annual accounting 
period. On June 1, 1961, the district director mailed notice to M of M's 
failure to file Form 2952 with respect to N. On November 30, 1981, M 
filed a complete Form 2952 with respect to N's 1980 annual accounting 
period.

(a) Gains, profits, and income of N........................     $100,000
(b) Foreign tax paid by N with respect to such gains,             40,000
 profits, and income.......................................
(c) Reduction of foreign tax paid by N (for purposes of M's        6,000
 section 902 deemed paid credit) resulting from M's failure
 to file information with respect to N as required under
 section 6038(a) and this section: failure to file within
 the time prescribed in paragraph (i) of this section, 10-
 percent reduction; continued failure for one additional 3-
 month period after 90-day period after notice mailed, 5-
 percent reduction; total reduction, 15 percent ($40,000
 times 15 percent).........................................
(d) Foreign tax paid by N after section 6038(c)(1)(B)             34,000
 reduction.................................................
(e) Dividend paid by N to M................................       45,000
(f) Accumulated profits of N as defined in section               100,000
 902(c)(1) (determined without regard to the section
 6038(c)(1)(B) reduction)..................................
(g) Accumulated profits of N as described in section 902(a)       60,000
 (determined without regard to the section 6038(c)(1)(B)
 reduction)................................................

[[Page 171]]

 
(h) For purposes of the section 902 credit, M is deemed to        25,500
 have paid the same proportion of foreign taxes paid
 (reduced as provided under section 6038(c)) with respect
 to the accumulated profits described in section 902(a)
 (determined without regard to the reduction provided under
 section 6038(c)) as the amount of the dividend (determined
 without regard to section 78) bears to such amount of
 accumulated profits.......................................
 
            (45,000  60,000)  x  34,000 = 25,500..........
 


M must include $25,500 in gross income as a dividend under the 
provisions of section 78 of the Code. This example illustrates that the 
reductions in foreign taxes paid by the foreign corporation provided 
under section 8038(c) are taken into account in determining the amount 
included in gross income of the domestic corporation under section 78 of 
the Code as foreign taxes deemed paid, but such reductions are not taken 
into account in computing accumulated profits for purposes of 
determining the portion of foreign taxes deemed paid with respect to a 
particular dividend. The dollar amount penalty imposed by section 8038 
(b) and paragraph (k)(1) of this section does not apply with respect to 
information for annual accounting periods ending before September 4, 
1982, and therefore does not apply to M with respect to M's failure to 
file Form 2952 in this example.
    Example 2. The facts are the same as in example (1) except that all 
of the events occur in or with respect to the 1982 taxable year. On 
March 15, 1983. M filed its income tax return and paid its income tax, 
but M did not file Form 2952 or Form 5471 with respect to N's 1982 
annual accounting period. On June 1, 1983, the district director mailed 
notice to M of M's failure to file Form 2952 or Form 5471 with respect 
to N. On November 30, 1983, M filed a complete Form 5471 with respect to 
N's 1982 annual accounting period. Under paragraph (k)(1)(i) of this 
section, M is subject to a penalty of $1,000. Under paragraph (k)(1)(ii) 
of this section, that penalty is increased by $4,000 because the failure 
continued for 92 days (three full 30-day periods and a fraction of a 
fourth 30-day period) after the end of the 90-day period following 
mailing of the notice by the district director, bringing M's dollar 
amount penalty under paragraph (k)(1) of this section to $5,000. For 
purpose of determining the foreign tax credit available to M, there may 
be imposed a reduction of foreign tax paid by N of $6,000, which would 
be the total of reductions under paragraph (k)(2) of this section with 
respect to M's failure to file under section 6038 for N's 1982 annual 
accounting period, before application of paragraph (k)(2)(vi) of this 
section. Under said paragraph (k)(2)(vi), the amount of the foreign tax 
reduction imposed is reduced by the amount of the dollar amount penalty, 
leaving a foreign tax reduction penalty of $1,000 which may be imposed 
in addition to the $5,000 dollar amount penalty. If imposed, the $1,000 
tax reduction would then be applied in the calculation of taxes deemed 
paid by M under section 902 as in example (1), items (c), (d), and (h).
    Example 3. A, a U.S. person, owns 100 percent of the stock of FC. On 
April 15, 2008, A timely filed its 2007 income tax return but did not 
file Form 5471 with respect to FC's 2007 annual accounting period. On 
June 1, 2008, the Director of Field Operations mailed a notice to A of 
A's failure to file Form 5471 for 2007 with respect to FC. On August 1, 
2008, A submits a written statement asserting facts for reasonable cause 
for failure to file the 2007 Form 5471 for FC. Based on A's statement 
and discussions with A, the Director of Field Operations agrees that A 
had reasonable cause for failure to file FC's 2007 Form 5471 and 
determined that it is reasonable for A to file FC's 2007 Form 5471 by 
September 15, 2008. The time prescribed for furnishing information under 
paragraph (i) of this section is September 15, 2008, and the 90-day 
period described under paragraphs (k)(1)(ii) and (k)(2)(iv)(A) of this 
section begins on that same date. Thus, if A files a completed Form 5471 
by September 15, 2008, A is not subject to the penalties under 
paragraphs (k)(1) and (k)(2) of this section. If A does not file a 
completed Form 5471 by December 14, 2008, in addition to the penalties 
under paragraphs (k)(1) and (k)(2) of this section, A will also be 
subject to the penalties for continued failure under paragraphs 
(k)(1)(ii) and (k)(2)(iv)(A) of this section.
    Example 4. The facts are the same as in Example 3 except A submits 
the written statement to the Director before a notice of failure to 
furnish information is mailed to A. The notice is mailed to A on 
September 7, 2008. Under these facts, the time prescribed for furnishing 
information under paragraph (i) of this section is September 15, 2008, 
and the 90-day period after mailing of notice of failure under 
paragraphs (k)(1)(ii) and (k)(2)(iv)(A) of this section begins on that 
same date.

    (l) Other persons excepted from filing. For tax years of foreign 
corporations ending on or after December 29, 1999, any person required 
to furnish information under this section with respect to a foreign 
corporation does not have to furnish that information if the following 
conditions are met--
    (1) Such person does not own a direct or indirect interest in the 
foreign corporation; and

[[Page 172]]

    (2) Such person is required to furnish information solely by reason 
of attribution of stock ownership from a nonresident alien(s) under 
paragraph (c) of this section.
    (m) Applicability dates. Except as otherwise provided, this section 
applies with respect to information for annual accounting periods 
beginning on or after June 21, 2006. Paragraphs (k)(1) and (5) Examples 
3 and 4 of this section apply June 21, 2006. Paragraph (d) of this 
section applies to taxable years ending after April 9, 2008. Paragraph 
(j)(3) of this section applies to returns filed on or after December 31, 
2013.

[T.D. 8040, 50 FR 30163, July 24, 1985, as amended by T.D. 8573, 59 FR 
64302, Dec. 14, 1994; T.D. 8733, 62 FR 53385, Oct. 14, 1997; T.D. 8850, 
64 FR 72550, Dec. 28, 1999; T.D. 9194, 70 FR 18946, Apr. 11, 2005; T.D. 
9268, 71 FR 35525, June 21, 2006; T.D. 9338, 72 FR 38475, July 13, 2007; 
T.D. 9391, 73 FR 19376, Apr. 9, 2008; T.D. 9650, 78 FR 79611, Dec. 31, 
2013; T.D. 9806, 81 FR 95470, Dec. 28, 2016]



Sec. 1.6038-3  Information returns required of certain United States
persons with respect to controlled foreign partnerships (CFPs).

    (a) Persons required to make return--(1) Controlling fifty-percent 
partners. The term controlling fifty-percent partner means a United 
States person that controlled (as defined in paragraph (b)(1) of this 
section) the foreign partnership at any time during the partnership's 
tax year (as defined in paragraph (b)(8) of this section). Except as 
provided in paragraph (c), (d), or (e) of this section, for each tax 
year of a foreign partnership during which the partnership has one or 
more controlling fifty-percent partners, each controlling fifty-percent 
partner must complete and file Form 8865, ``Return of U.S. Persons With 
Respect to Certain Foreign Partnerships,'' containing the information 
described in paragraph (g) of this section.
    (2) Controlling ten-percent partners. If at any point during a 
foreign partnership's tax year (as defined in paragraph (b)(8) of this 
section) a United States person owned a ten-percent or greater interest 
in the partnership while the partnership was controlled by United States 
persons owning ten-percent or greater interests, such United States 
person is a controlling ten-percent partner. See paragraph (b)(1) of 
this section for the definition of control. However, a United States 
person is not a controlling ten-percent partner with respect to a 
particular foreign partnership for a particular tax year of the foreign 
partnership if at any point during that year the partnership had a 
controlling fifty-percent partner, as defined in paragraph (a)(1) of 
this section. Except as provided in paragraph (c), (d), or (e) of this 
section, for each tax year of a partnership during which the partnership 
has controlling ten-percent partners, each controlling ten-percent 
partner must complete and file Form 8865 containing the information 
described in paragraph (g)(1) of this section.
    (3) Separate returns for each partnership. A United States person 
required to report under this paragraph (a) must file a separate Form 
8865 for each foreign partnership with respect to which the person is a 
controlling fifty-percent partner or a controlling ten-percent partner.
    (b) Ownership determinations and definitions--(1) Control. Control 
of a foreign partnership is ownership of more than a fifty-percent 
interest in the partnership.
    (2) Fifty-percent interest. A fifty-percent interest in a 
partnership is an interest equal to fifty percent of the capital 
interest in such partnership, an interest equal to fifty percent of the 
profits interest in such partnership, or an interest to which fifty 
percent of the deductions or losses of such partnership are allocated.
    (3) Ten-percent interest. A ten-percent interest in a partnership is 
an interest equal to ten percent of the capital interest in such 
partnership, an interest equal to ten percent of the profits interest in 
such partnership, or an interest to which ten percent of the deductions 
or losses of such partnership are allocated.
    (4) Constructive ownership rules. For purposes of determining an 
interest in a partnership, the constructive ownership rules of section 
267(c) (other than section 267(c)(3)) apply, taking into account that 
such rules refer to corporations and not to partnerships. However, an 
interest will be attributed from a nonresident alien under the family 
attribution rules of section 267(c)(2) and

[[Page 173]]

(4) only if the person to whom the interest is attributed owns a direct 
or indirect (under the rules of 267(c)(1) or (5)) interest in the 
foreign partnership.
    (5) Determination of amount of interest. Whether a person owns a 
fifty-percent interest, or a ten-percent interest, as described in 
paragraphs (b)(2) and (3) of this section, is determined for each tax 
year of the foreign partnership by reference to the agreement of the 
partners relating to such interests during that tax year.
    (6) Definition of United States person. The term United States 
person is defined in section 7701(a)(30).
    (7) Definition of a foreign partnership. A foreign partnership is a 
partnership described in section 7701(a)(5).
    (8) Tax year of a foreign partnership. The tax year of a foreign 
partnership is determined under section 706.
    (9) Examples. The rules of paragraph (a) of this section and this 
paragraph (b) are illustrated by the following examples:

    Example 1. Sole U.S. partner does not own more than a fifty-percent 
interest. No United States person owns any interest (directly or 
constructively) in FPS, a foreign partnership whose tax year under 
section 706 is the calendar year. On January 1, 2001, US, a United 
States person with the calendar year as its tax year, contributes 
property to FPS in exchange for a 40% interest in a section 721 
transaction. No United States persons acquire directly or constructively 
any other interests in FPS during FPS's 2001 tax year. US is not a 
controlling fifty-percent partner during FPS's 2001 tax year. US did not 
own during that tax year, either directly or constructively, more than a 
50% interest in the partnership under paragraphs (b)(2) and (4) of this 
section. Also, US is not a controlling ten-percent partner; although US 
owned a 10% or greater interest, US persons owning at least 10% 
interests did not control FPS. Therefore, US does not have to file with 
its 2001 income tax return a Form 8865 with respect to FPS under section 
6038. (But see section 6038B for the reporting obligations of US with 
respect to its transfer of property to FPS and section 6046A for the 
reporting obligation of US with respect to its acquisition of an 
interest in FPS. See also Sec. 1.6046A-1(f)(1) regarding the overlap 
between sections 6038B and 6046A.
    Example 2. Controlling ten-percent partners. Assume the same facts 
as in Example 1. In addition, on January 1, 2002, US1, a United States 
person unrelated to US and a calendar year taxpayer, purchases a 15% 
interest in FPS from a foreign partner of FPS. Neither US nor US1 is a 
controlling fifty-percent partner during FPS's 2002 tax year because 
neither one owns more than a 50% percent interest in FPS during that 
year. However, US and US1 are controlling ten-percent partners for that 
year because each owns at least a 10% interest (US owns a 40% interest 
and US1 owns a 15% interest) and together they control FPS because 
collectively they own more than a 50% interest in FPS. As controlling 
ten-percent partners, under section 6038, each is required to file a 
Form 8865 with its 2002 income tax return. (US1 must also report its 
acquisition of the 15% interest in FPS under section 6046A on its Form 
8865 filed with its 2002 income tax return.)
    Example 3. Constructive ownership rules. Assume the same facts as in 
Example 2. In addition, on January 1, 2003, US2, a United States person 
and the brother of US, purchases 50% of the stock of FC, a foreign 
corporation. FC owns a 20% interest in FPS. Thus, under sections 
6038(e)(3) and 267(c)(1), US2 indirectly owns a 10% interest in FPS (10% 
is US2's proportionate share of FC's 20% interest in FPS), and under 
sections 6038(e)(3) and 267(c)(2), US2 is attributed US's 40% interest. 
Additionally, US directly owns a 40% interest in FPS and is attributed 
US2's 10% interest pursuant to section 6038(e)(3) and section 267(c)(2). 
Therefore, US2 is considered to own a 50% interest (10% indirectly and 
40% from US) in FPS, and US is considered to own a 50% interest in FPS 
(40% directly and 10% from US2). FPS has no controlling fifty-percent 
partners, because neither US, US1, nor US2, owns a greater than 50% 
interest. However, US, US1, and US2 are each controlling ten-percent 
partners and each must file Form 8865 pursuant to section 6038 for FPS's 
2003 tax year ending December 31, 2003. Each must attach Form 8865 to 
its tax return for its 2003 tax year.
    Example 4. Controlling fifty-percent partners. Assume the same facts 
as in Example 3. In addition, on June 1, 2004, US acquires an additional 
1% direct interest in FPS. US is now a controlling fifty-percent partner 
of FPS, because US owns a 41% interest directly and a 10% interest 
constructively from US2. US2 is also a controlling fifty-percent 
partner, because US2 owns 10% indirectly and 41% constructively from US. 
Both US and US2 are required to file Form 8865 containing all the 
information required to be submitted by controlling fifty-percent 
partners. (But see paragraph (c)(1) of this section, which contains 
filing exceptions when there are multiple controlling fifty-percent 
partners). US1 is no longer a controlling ten-percent partner because 
FPS now has at least one controlling fifty-percent partner, and US1 does 
not qualify as a controlling fifty-percent partner. Therefore, US1 is 
not required to file Form 8865 under section 6038.

[[Page 174]]

    Example 5. Constructive ownership from a nonresident alien. US, a 
United States person, does not own directly or constructively an 
interest in FPS, a foreign partnership. The tax year of FPS is the 
calendar year. NRA, a nonresident alien, is the mother of US. In 2002, 
NRA acquires a 55% interest in FPS. Because US owns neither a direct nor 
a constructive interest in FPS under sections 6038(e)(3) and 267(c)(1) 
or (5), NRA's interest is not attributed to US under sections 6038(e)(3) 
and 267(c)(2). If in 2003 NRA becomes a United States person, NRA's 
interest will be attributed to US. However, US is excused from filing 
Form 8865 if US satisfies the requirements of the constructive owners 
exception in paragraph (c)(2) of this section. In 2003, NRA is a 
controlling fifty-percent partner and must file a Form 8865 under 
section 6038 for FPS's 2003 tax year.

    (c) Exceptions when more than one United States person is required 
to file Form 8865 pursuant to section 6038--(1) Multiple controlling 
fifty-percent partners--(i) In general. If, with respect to the same 
foreign partnership for the same tax year, more than one United States 
person is a controlling fifty-percent partner, then in lieu of each 
controlling fifty-percent partner filing a separate Form 8865, only one 
Form 8865 from one of the controlling fifty-percent partners is 
required, provided all of the requirements of paragraph (c)(1)(ii) of 
this section are satisfied. A person that is a controlling fifty-percent 
partner solely because of an interest to which deductions or losses are 
allocated may file the single return only if there is no United States 
person that is a controlling fifty-percent partner by reason of an 
interest in capital or profits.
    (ii) Requirements--(A) The person undertaking the filing obligation 
must file Form 8865 with that person's income tax return in the manner 
provided by Form 8865 and the accompanying instructions. The return must 
contain all of the information that would have been required to be 
reported by this section if each controlling fifty-percent partner had 
filed its own Form 8865.
    (B) Any controlling fifty-percent partner not filing Form 8865 must 
file with its income tax return a statement titled ``Controlled Foreign 
Partnership Reporting'' containing the following information--
    (1) A statement that the person qualified as a controlling fifty-
percent partner, but is not submitting Form 8865 pursuant to the 
multiple controlling fifty-percent partners exception;
    (2) The name, address, and taxpayer identification number (if any) 
of the foreign partnership of which the person qualified as a 
controlling fifty-percent partner;
    (3) A representation that the filing requirement has been or will be 
satisfied;
    (4) The name and address of the person filing the single return;
    (5) The Internal Revenue Service Center where the single return is 
required to be filed; and
    (6) Any additional information that Form 8865 and the accompanying 
instructions require.
    (iii) Penalties. If the requirements listed in paragraph (c)(1)(ii) 
of this section are not satisfied, a United States person that did not 
file a Form 8865 pursuant to this paragraph will be subject to the 
penalties in paragraph (k) of this section, unless the reasonable cause 
provision in paragraph (k)(4) of this section is satisfied.
    (2) Certain constructive owners excepted from furnishing 
information--(i) In general. A United States person that does not own a 
direct interest in the foreign partnership and that is required to file 
Form 8865 under this section solely by reason of constructive ownership 
from a United States person(s) pursuant to paragraph (b)(4) of this 
section (an indirect partner) is not required to file Form 8865 if all 
of the requirements listed in paragraph (c)(2)(ii) of this section are 
met.
    (ii) Requirements--(A) The United States person(s) whose interest 
the indirect partner constructively owns reports all the information 
such person(s) is required to submit under this section, unless such 
person also is required to file solely by reason of constructive 
ownership from a United States person(s) pursuant to paragraph (b)(4) of 
this section, or another person reports the information pursuant to 
paragraph (c)(1) of this section.
    (B) The indirect partner files with its income tax return a 
statement titled

[[Page 175]]

``Controlled Foreign Partnership Reporting'' containing the following 
information--
    (1) A representation that the indirect partner was required to file 
Form 8865, but is not doing so pursuant to the constructive owners 
exception;
    (2) The names and addresses of the United States persons whose 
interests the indirect partner constructively owns;
    (3) The name and address of the foreign partnership with respect to 
which the indirect partner would have had to have filed Form 8865 but 
for this exception; and
    (4) Any additional information that Form 8865 and the accompanying 
instructions require.
    (iii) Penalties. A United States person that pursuant to this 
paragraph (c)(2) does not file a return will be subject to the penalties 
in paragraph (k) of this section if the requirements listed in paragraph 
(c)(2)(ii) of this section are not satisfied, unless such failure is due 
to reasonable cause, as defined in paragraph (k)(4) of this section.
    (iv) Overlap with multiple controlling fifty-percent partners 
exception--(A) If a United States person qualifies for both the 
exception in paragraph (c)(1) of this section and the exception in this 
paragraph (c)(2), such person may only utilize the multiple controlling 
fifty-percent partners exception in paragraph (c)(1) of this section to 
avoid filing Form 8865.
    (B) Example. The following example illustrates the operation of this 
paragraph (c)(2)(iv):

    Example. US is a U.S. citizen. US owns 100% of the stock of DC, a 
domestic corporation. DC owns a 60% direct interest in FPS, a foreign 
partnership. DC and US are the only U.S. persons that own interests 
directly or constructively in FPS. DC owns directly a greater than 50% 
interest in FPS. US constructively owns DC's interest pursuant to 
sections 6038(e)(3) and 267(c)(1). Therefore, both DC and US are 
controlling fifty-percent partners. US qualifies for both the exception 
in paragraph (c)(1) of this section (multiple controlling fifty-percent 
partners) and the exception in paragraph (c)(2) of this section 
(constructive owner exception). US may only utilize the paragraph (c)(1) 
exception to avoid its filing obligation. Accordingly, DC may file a 
single Form 8865 on behalf of US and itself. However, that form must 
contain all the information that would have been submitted had DC and US 
each submitted a separate Form 8865.

    (3) Members of an affiliated group of corporations filing a 
consolidated return. If one or more members of an affiliated group of 
corporations filing a consolidated return are required under section 
6038 to file a Form 8865 for a particular foreign partnership, the 
common parent corporation may file one Form 8865 on behalf of all of the 
members of the group required to report under section 6038. Except with 
respect to group members who also qualify under the exception in 
paragraph (c)(2) of this section, the Form 8865 must contain all the 
information that would have been required to be submitted if each group 
member were required to file its own Form 8865.
    (d) Exception for certain trusts. Trusts relating to state and local 
government employee retirement plans are not required to report under 
this section, unless the instructions to Form 8865 provide otherwise.
    (e) Reporting under this section not required with respect to 
partnerships excluded from the application of subchapter K. The 
reporting requirements of this section will not apply to any United 
States person in respect of an eligible partnership as described in 
Sec. 1.761-2(a) if such partnership has validly elected to be excluded 
from all of the provisions of subchapter K of chapter 1 of the Internal 
Revenue Code in the manner specified in Sec. 1.761-2(b)(2)(i), or such 
partnership is deemed to have elected to be excluded from all of the 
provisions of subchapter K of chapter 1 of the Internal Revenue Code in 
accordance with the provisions of Sec. 1.761-2(b)(2)(ii).
    (f) Period covered by return. The information required under this 
section must be furnished for the tax year of the foreign partnership 
ending with or within the United States person's tax year. See section 
706 for rules regarding tax years of partnerships.
    (g) Contents of return--(1) Information required to be submitted by 
controlling fifty-percent partners and controlling ten-percent partners. 
All controlling fifty-percent partners and all controlling ten-percent 
partners must submit the following information on Form 8865 in the form 
and manner and to the extent

[[Page 176]]

prescribed by Form 8865 and its instructions--
    (i) The name, address, and taxpayer identification number (if any) 
of the foreign partnership of which the person qualified as a 
controlling fifty-percent partner or a controlling ten-percent partner;
    (ii) A statement of the income, gain, losses, deductions and credits 
allocated to the direct interest in the partnership of the person 
reporting under section 6038;
    (iii) A list of all partnerships (foreign or domestic) in which the 
foreign partnership owned a direct interest, or owned a constructive 
interest of ten percent of more under the rules of section 267(c)(1) or 
(5), during the partnership's tax year for which the Form 8865 is being 
filed;
    (iv) Information about all foreign entities that were disregarded as 
entities separate from their owner under Secs. 301.7701-2 and 301.7701-3 
that were owned by the foreign partnership during the partnership's tax 
year for which the Form 8865 is being filed;
    (v) A summary of the transactions that took place during the 
partnership's tax year between the partnership and the person filing the 
return, between the partnership and any other partnership of which the 
person filing the return is a controlling fifty-percent partner, and 
between the partnership and any corporation controlled (under section 
6038(e)(2) and the regulations thereunder) by the person filing the 
return; and
    (vi) Any other information that Form 8865 or its accompanying 
instructions require to be submitted.
    (2) Additional information required to be submitted by controlling 
fifty-percent partners. In addition to the information required pursuant 
to paragraph (g)(1) of this section, controlling fifty-percent partners 
must also submit the following information in the form and manner and to 
the extent required by Form 8865 and its instructions--
    (i) A list of the names, addresses and tax identification numbers 
(if any) of each United States person that owned a direct interest of 
ten percent or more in the partnership during the partnership's tax 
year, and of each United States and foreign person whose interests in 
the partnership the controlling fifty-percent partner constructively 
owned under paragraph (b)(4) of this section during the partnership's 
tax year;
    (ii) A list of transactions between the partnership and any United 
States person owning at the time of the transaction at least a 10-
percent direct interest (as defined in paragraph (b)(3) of this section) 
in the foreign partnership;
    (iii) A statement of the aggregate of the partners' distributive 
shares of items of income, gain, losses, deductions and credits;
    (iv) A statement of income, gain, losses, deductions and credits 
allocated to each United States person holding a direct interest in the 
foreign partnership of ten percent or more; and
    (v) Any other information Form 8865 or its accompanying instructions 
require controlling fifty-percent partners to submit.
    (h) Method of reporting. Except as otherwise provided on Form 8865 
or the accompanying instructions, all amounts required to be furnished 
on Form 8865 must be expressed in United States dollars. All statements 
required on or with Form 8865 pursuant to this section must be in 
English.
    (i) Time and place for filing return--(1) In general. Form 8865 must 
be filed with the United States person's income tax return on or before 
the due date (including extensions) of that return. If the United States 
person is not required to file an income tax return for its tax year 
with which or within which the foreign partnership's tax year ends, but 
is required to file an information return for that year (for example, 
Form 1065, ``U.S. Partnership Return of Income,'' or Form 990, ``Return 
of Organization Exempt from Income Tax''), the Form 8865 must be filed 
with the United States person's information return filed on or before 
the due date (including extensions) of that return.
    (2) Duplicate return. If required by the instructions to Form 8865, 
a duplicate Form 8865 (including attachments and schedules) must also be 
filed.
    (j) Overlap with section 6031. A partner may be required to file 
Form 8865 under this section and the foreign partnership in which it is 
a partner may also be required to file a Form 1065 or Form

[[Page 177]]

1065-B under section 6031(e) for the same partnership tax year. For 
cases where a United States person is a controlling fifty-percent 
partner or a controlling ten-percent partner with respect to a foreign 
partnership, and that foreign partnership completes and files Form 1065 
or Form 1065-B, the instructions for Form 8865 will specify the filing 
requirements that address this overlap in reporting obligations.
    (k) Failure to comply with reporting requirement--(1) In general. 
Any United States person required to file Form 8865 under Section 6038 
and this section that fails to comply (as defined in paragraph (k)(2) of 
this section) with the reporting requirements of this section, will be 
subject to the penalties described in paragraph (k)(3) of this section.
    (2) Failure to comply. A failure to comply is separately determined 
for each foreign partnership for which a United States person has a 
section 6038 reporting obligation. A failure to comply with the 
requirements of section 6038 includes the following--
    (i) The failure to report at the proper time and in the proper 
manner any information required to be reported under the rules of this 
section; or
    (ii) The provision of false or inaccurate information in purported 
compliance with the requirements of this section.
    (3) Penalties. A United States person that fails to comply (as 
defined in paragraph (k)(2) of this section) with the reporting 
requirements of this section must pay the following penalties, subject 
to the reasonable cause exception in paragraph (k)(4) of this section:
    (i) Dollar amount penalty--(A) $10,000 penalty. A penalty of $10,000 
shall be imposed for each tax year of each foreign partnership with 
respect to which a failure to comply occurs.
    (B) Increase in penalty. If a failure to comply with the applicable 
reporting requirements of section 6038 and this section continues for 
more than 90 days after the date on which the Commissioner or the 
Commissioner's delegate mails notice of the failure to the United States 
person required to file Form 8865, the person must pay an additional 
penalty of $10,000 for each 30-day period (or fraction thereof) during 
which the failure continues after the 90-day period has expired.
    (C) Limitation. The additional penalty imposed on any United States 
person by section 6038(b)(2) and paragraph (k)(3)(i)(B) of this section 
is limited to a maximum of $50,000 for each partnership for each tax 
year with respect to which the failure occurs.
    (ii) Penalty of reducing foreign tax credit--(A) Effect on foreign 
tax credit. Failure to comply with the reporting requirements of section 
6038 and this section may cause a reduction of foreign tax credits under 
section 901 (taxes of foreign countries and of possessions of the United 
States). In applying section 901 to a United States person for any tax 
year with or within which its foreign partnership's tax year ended, the 
amount of taxes paid (and deemed paid under sections 902 and 960) by the 
United States person will be reduced by 10 percent if the person fails 
to comply. However, no tax deemed paid under section 904(c) will be 
reduced under the provisions of this paragraph (k)(3)(ii).
    (B) Reduction for continued failure. If a failure to comply with the 
reporting requirements of section 6038 and this section continues for 
more than 90 days after the date on which the Commissioner or the 
Commissioner's delegate mails notice of the failure to the person 
required to file Form 8865, then the amount of the reduction in 
paragraph (k)(3)(ii)(A) of this section will be 10 percent, plus an 
additional 5 percent for each 3-month period (or fraction thereof) 
during which the failure continues after the 90-day period has expired.
    (C) Limitation on reduction. The amount of the reduction under 
paragraphs (k)(3)(ii)(A) and (B) of this section for each failure to 
furnish information required under this section will not exceed the 
greater of $10,000, or the gross income of the foreign partnership for 
its tax year with respect to which the failure occurred.
    (D) Offset for dollar amount penalty imposed. The total amount of 
the reduction which, but for this paragraph (k)(3)(ii)(D), may be made 
under this paragraph (k)(3)(ii) with respect to any separate failure, 
may not exceed the maximum amount of the reductions

[[Page 178]]

that may be imposed, reduced (but not below zero) by the dollar amount 
penalty imposed by paragraph (k)(3)(i) of this section with respect to 
the failure.
    (4) Reasonable cause limitation. The time prescribed for filing a 
complete Form 8865, and the beginning of the 90-day period after the 
Commissioner or the Commissioner's delegate mails notice under 
paragraphs (k)(3)(i)(B) and (ii)(B) of this section, will be treated as 
being not earlier than the last day on which reasonable cause existed 
for failure to furnish the information. The United States person may 
show reasonable cause by providing a written statement to the 
Commissioner's delegate having jurisdiction over the person's return to 
which the Form 8865 should have been attached, setting forth the reasons 
for the failure to comply. Whether a failure to comply was due to 
reasonable cause will be determined by the Commissioner, or the 
Commissioner's delegate, under all the facts and circumstances.
    (5) Statute of limitations. For exceptions to the limitations on 
assessment in the event of a failure to provide information under 
section 6038, see section 6501(c)(8).
    (1) Effective date. Except as otherwise provided, this section shall 
apply for tax years of a foreign partnership ending on or after December 
31, 2000. For tax years of a foreign partnership ending before December 
23, 2002, see Sec. 1.6038-3(j) in effect prior to the amendments made by 
T.D. 9033 (see 26 CFR part 1 revised April 1, 2002).

[T.D. 8850, 64 FR 72550, Dec. 28, 1999, as amended by T.D. 9033, 67 FR 
78175, Dec. 23, 2002; T.D. 9065, 68 FR 39012, July 1, 2003]



Sec. 1.6038-4  Information returns required of certain United States
persons with respect to such person's U.S. multinational enterprise
group.

    (a) Requirement of return. Except as provided in paragraph (h) of 
this section, every ultimate parent entity of a U.S. multinational 
enterprise (MNE) group must make an annual return on Form 8975, Country-
by-Country Report, setting forth the information described in paragraph 
(d) of this section, and any other information required by Form 8975, 
with respect to the reporting period described in paragraph (c) of this 
section.
    (b) Definitions--(1) Ultimate parent entity of a U.S. MNE group. An 
ultimate parent entity of a U.S. MNE group is a U.S. business entity 
that:
    (i) Owns directly or indirectly a sufficient interest in one or more 
other business entities, at least one of which is organized or tax 
resident in a tax jurisdiction other than the United States, such that 
the U.S. business entity is required to consolidate the accounts of the 
other business entities with its own accounts under U.S. generally 
accepted accounting principles, or would be so required if equity 
interests in the U.S. business entity were publicly traded on a U.S. 
securities exchange; and
    (ii) Is not owned directly or indirectly by another business entity 
that consolidates the accounts of such U.S. business entity with its own 
accounts under generally accepted accounting principles in the other 
business entity's tax jurisdiction of residence, or would be so required 
if equity interests in the other business entity were traded on a public 
securities exchange in its tax jurisdiction of residence.
    (2) Business entity. For purposes of this section, a business entity 
generally is any entity recognized for federal tax purposes that is not 
properly classified as a trust under Sec. 301.7701-4 of this chapter. 
However, any grantor trust within the meaning of section 671, all or a 
portion of which is owned by a person other an individual, is a business 
entity for purposes of this section. Additionally, the term business 
entity includes any entity with a single owner that may be disregarded 
as an entity separate from its owner under Sec. 301.7701-3 of this 
chapter and a permanent establishment, as defined in paragraph (b)(3) of 
this section, that prepares financial statements separate from those of 
its owner for financial reporting, regulatory, tax reporting, or 
internal management control purposes. A business entity does not include 
a decedent's estate or a bankruptcy estate described in section 1398.
    (3) Permanent establishment. For purposes of this section, the term 
permanent establishment includes:

[[Page 179]]

    (i) A branch or business establishment of a constituent entity in a 
tax jurisdiction that is treated as a permanent establishment under an 
income tax convention to which that tax jurisdiction is a party;
    (ii) A branch or business establishment of a constituent entity that 
is liable to tax in the tax jurisdiction in which it is located pursuant 
to the domestic law of such tax jurisdiction; or
    (iii) A branch or business establishment of a constituent entity 
that is treated in the same manner for tax purposes as an entity 
separate from its owner by the owner's tax jurisdiction of residence.
    (4) U.S. business entity. A U.S. business entity is a business 
entity that is organized or has its tax jurisdiction of residence in the 
United States. For purposes of this section, foreign insurance companies 
that elect to be treated as domestic corporations under section 953(d) 
are U.S. business entities that have their tax jurisdiction of residence 
in the United States.
    (5) U.S. MNE group. A U.S. MNE group comprises the ultimate parent 
entity of a U.S. MNE group as defined in paragraph (b)(1) of this 
section and all of the business entities required to consolidate their 
accounts with the ultimate parent entity's accounts under U.S. generally 
accepted accounting principles, or that would be so required if equity 
interests in the ultimate parent entity were publicly traded on a U.S. 
securities exchange, regardless of whether any such business entities 
could be excluded from consolidation solely on size or materiality 
grounds.
    (6) Constituent entity. With respect to a U.S. MNE group, a 
constituent entity is any separate business entity of such U.S. MNE 
group, except that the term constituent entity does not include a 
foreign corporation or foreign partnership for which the ultimate parent 
entity is not required to furnish information under section 6038(a) 
(determined without regard to Secs. 1.6038-2(j) and 1.6038-3(c)) or any 
permanent establishment of such foreign corporation or foreign 
partnership.
    (7) Tax jurisdiction. For purposes of this section, a tax 
jurisdiction is a country or a jurisdiction that is not a country but 
that has fiscal autonomy. For purposes of this section, a U.S. territory 
or possession of the United States is considered to have fiscal 
autonomy.
    (8) Tax jurisdiction of residence. A business entity is considered a 
resident in a tax jurisdiction if, under the laws of that tax 
jurisdiction, the business entity is liable to tax therein based on 
place of management, place of organization, or another similar 
criterion. A business entity will not be considered a resident in a tax 
jurisdiction if the business entity is liable to tax in such tax 
jurisdiction only by reason of a tax imposed by reference to gross 
amounts of income without any reduction for expenses, provided such tax 
applies only with respect to income from sources in such tax 
jurisdiction or capital situated in such tax jurisdiction. If a business 
entity is resident in more than one tax jurisdiction, then the 
applicable income tax convention rules, if any, should be applied to 
determine the business entity's tax jurisdiction of residence. If a 
business entity is resident in more than one tax jurisdiction and no 
applicable income tax convention exists between those tax jurisdictions, 
or if the applicable income tax convention provides that the 
determination of residence is based on a determination by the competent 
authorities of the relevant tax jurisdictions and no such determination 
has been made, the business entity's tax jurisdiction of residence is 
the tax jurisdiction of the business entity's place of effective 
management determined in accordance with Article 4 of the Organisation 
for Economic Co-operation and Development Model Tax Convention on Income 
and on Capital 2014, or as provided by Form 8975. A corporation that is 
organized or managed in a tax jurisdiction that does not impose an 
income tax on corporations will be treated as resident in that tax 
jurisdiction, unless such corporation is treated as resident in another 
tax jurisdiction under another provision of this section. The tax 
jurisdiction of residence of a permanent establishment is the 
jurisdiction in which the permanent establishment is located. If a 
business entity

[[Page 180]]

does not have a tax jurisdiction of residence, then solely for purposes 
of paragraph (b)(1) of this section, the tax jurisdiction of residence 
is the business entity's country of organization.
    (9) Applicable financial statements. An applicable financial 
statement is a certified audited financial statement that is accompanied 
by a report of an independent certified public accountant or similarly 
qualified independent professional that is used for purposes of 
reporting to shareholders, partners, or similar persons; for purposes of 
reporting to creditors in connection with securing or maintaining 
financing; or for any other substantial non-tax purpose.
    (10) U.S. territory or possession of the United States. The term 
U.S. territory or possession of the United States means American Samoa, 
Guam, the Northern Mariana Islands, Puerto Rico, or the U.S. Virgin 
Islands.
    (11) U.S. territory ultimate parent entity. A U.S. territory 
ultimate parent entity is a business entity organized in a U.S. 
territory or possession of the United States that controls (as defined 
in section 6038(e)) a U.S. business entity and that is not owned 
directly or indirectly by another business entity that consolidates the 
accounts of the U.S. territory ultimate parent entity with its accounts 
under generally accepted accounting principles in the other business 
entity's tax jurisdiction of residence, or would be so required if 
equity interests in the other business entity were traded on a public 
securities exchange in its tax jurisdiction of residence.
    (c) Reporting period. The reporting period covered by Form 8975 is 
the period of the ultimate parent entity's applicable financial 
statement prepared for the 12-month period (or a 52-53 week period 
described in section 441(f)) that ends with or within the ultimate 
parent entity's taxable year. If the ultimate parent entity does not 
prepare an annual applicable financial statement, then the reporting 
period covered by Form 8975 is the 12-month period (or a 52-53 week 
period described in section 441(f)) that ends on the last day of the 
ultimate parent entity's taxable year.
    (d) Contents of return--(1) Constituent entity information. The 
return on Form 8975 must contain so much of the following information 
with respect to each constituent entity of the U.S. MNE group, and in 
such form or manner, as Form 8975 prescribes:
    (i) The complete legal name of the constituent entity;
    (ii) The tax jurisdiction, if any, in which the constituent entity 
is resident for tax purposes;
    (iii) The tax jurisdiction in which the constituent entity is 
organized or incorporated (if different from the tax jurisdiction of 
residence);
    (iv) The tax identification number, if any, used for the constituent 
entity by the tax administration of the constituent entity's tax 
jurisdiction of residence; and
    (v) The main business activity or activities of the constituent 
entity.
    (2) Tax jurisdiction of residence information. The return on Form 
8975 must contain so much of the following information with respect to 
each tax jurisdiction in which one or more constituent entities of a 
U.S. MNE group is resident, presented as an aggregate of the information 
for the constituent entities resident in each tax jurisdiction, and in 
such form or manner, as Form 8975 prescribes:
    (i) Revenues generated from transactions with other constituent 
entities;
    (ii) Revenues not generated from transactions with other constituent 
entities;
    (iii) Profit or loss before income tax;
    (iv) Total income tax paid on a cash basis to all tax jurisdictions, 
and any taxes withheld on payments received by the constituent entities;
    (v) Total accrued tax expense recorded on taxable profits or losses, 
reflecting only operations in the relevant annual period and excluding 
deferred taxes or provisions for uncertain tax liabilities;
    (vi) Stated capital, except that the stated capital of a permanent 
establishment must be reported in the tax jurisdiction of residence of 
the legal entity of which it is a permanent establishment unless there 
is a defined capital requirement in the permanent establishment tax 
jurisdiction for regulatory purposes;
    (vii) Total accumulated earnings, except that accumulated earnings 
of a

[[Page 181]]

permanent establishment must be reported by the legal entity of which it 
is a permanent establishment;
    (viii) Total number of employees on a full-time equivalent basis; 
and
    (ix) Net book value of tangible assets, which, for purposes of this 
section, does not include cash or cash equivalents, intangibles, or 
financial assets.
    (3) Special rules--(i) Constituent entity with no tax jurisdiction 
of residence. The information listed in paragraph (d)(2) of this section 
also must be provided, in the aggregate, for any constituent entity or 
entities that have no tax jurisdiction of residence. In addition, if a 
constituent entity is an owner of a constituent entity that does not 
have a jurisdiction of tax residence, then the owner's share of such 
entity's revenues and profits will be aggregated with the information 
for the owner's tax jurisdiction of residence.
    (ii) Definition of revenue. For purposes of this section, the term 
revenue includes all amounts of revenue, including revenue from sales of 
inventory and property, services, royalties, interest, and premiums. The 
term revenue does not include payments received from other constituent 
entities that are treated as dividends in the payor's tax jurisdiction 
of residence. Distributions and remittances from partnerships and other 
fiscally transparent entities and permanent establishments that are 
constituent entities are not considered revenue of the recipient-owner. 
The term revenue also does not include imputed earnings or deemed 
dividends received from other constituent entities that are taken into 
account solely for tax purposes and that otherwise would be included as 
revenue by a constituent entity. With respect to a constituent entity 
that is an organization exempt from taxation under section 501(a) 
because it is an organization described in section 501(c), 501(d), or 
401(a), a state college or university described in section 511(a)(2)(B), 
a plan described in section 403(b) or 457(b), an individual retirement 
plan or annuity as defined in section 7701(a)(37), a qualified tuition 
program described in section 529, a qualified ABLE program described in 
section 529A, or a Coverdell education savings account described in 
section 530, the term revenue includes only revenue that is reflected in 
unrelated business taxable income as defined in section 512.
    (iii) Number of employees. For purposes of this section, the number 
of employees on a full-time equivalent basis may be reported as of the 
end of the accounting period, on the basis of average employment levels 
for the annual accounting period, or on any other reasonable basis 
consistently applied across tax jurisdictions and from year to year. 
Independent contractors participating in the ordinary operating 
activities of a constituent entity may be reported as employees of such 
constituent entity. Reasonable rounding or approximation of the number 
of employees is permissible, provided that such rounding or 
approximation does not materially distort the relative distribution of 
employees across the various tax jurisdictions. Consistent approaches 
should be applied from year to year and across entities.
    (iv) Income tax paid and accrued tax expense of permanent 
establishment. In the case of a constituent entity that is a permanent 
establishment, the amount of income tax paid and the amount of accrued 
tax expense referred to in paragraphs (d)(2)(iv) and (v) of this section 
should not include the income tax paid or tax expense accrued by the 
business entity of which the permanent establishment would be a part, 
but for the third sentence of paragraph (b)(2) of this section, in that 
business entity's tax jurisdiction of residence on the income derived by 
the permanent establishment.
    (v) Certain transportation income. If a constituent entity of a U.S. 
MNE group derives income from international transportation or 
transportation in inland waterways that is covered by income tax 
convention provisions that are specific to such income and under which 
the taxing rights on such income are allocated exclusively to one tax 
jurisdiction, then the U.S. MNE group should report the information 
required under paragraph (d)(2) of this section with respect to such 
income for the tax jurisdiction to which the relevant income tax 
convention provisions allocate these taxing rights.
    (e) Reporting of financial amounts--(1) Reporting in U.S. dollars 
required. All

[[Page 182]]

amounts furnished under paragraph (d)(2) of this section, other than 
paragraph (d)(2)(viii) of this section, must be expressed in U.S. 
dollars. If an exchange rate is used other than in accordance with U.S. 
generally accepted accounting principles for conversion to U.S. dollars, 
the exchange rate must be indicated.
    (2) Sources of financial amounts. All amounts furnished under 
paragraph (d)(2) of this section, other than paragraph (d)(2)(viii) of 
this section, should be based on applicable financial statements, books 
and records maintained with respect to the constituent entity, 
regulatory financial statements, or records used for tax reporting or 
internal management control purposes for an annual period of each 
constituent entity ending with or within the period described in 
paragraph (c) of this section.
    (f) Time and manner for filing. Returns on Form 8975 required under 
paragraph (a) of this section for a reporting period must be filed with 
the ultimate parent entity's income tax return for the taxable year, in 
or with which the reporting period ends, on or before the due date 
(including extensions) for filing that person's income tax return or as 
otherwise prescribed by Form 8975.
    (g) Maintenance of records. The U.S. person filing Form 8975 as an 
ultimate parent entity of a U.S. MNE group must maintain records to 
support the information provided on Form 8975. However, the U.S. person 
is not required to create and maintain records that reconcile the 
amounts provided on Form 8975 with the tax returns of any tax 
jurisdiction or applicable financial statements.
    (h) Exceptions to furnishing information. An ultimate parent entity 
of a U.S. MNE group is not required to report information under this 
section for the reporting period described in paragraph (c) of this 
section if the annual revenue of the U.S. MNE group for the immediately 
preceding reporting period was less than $850,000,000.
    (i) [Reserved]
    (j) U.S. territories and possessions of the United States. A U.S. 
territory ultimate parent entity may designate a U.S. business entity 
that it controls (as defined in section 6038(e)) to file Form 8975 on 
the U.S. territory ultimate parent entity's behalf with respect to such 
U.S. territory ultimate parent entity and the business entities that 
would be required to consolidate their accounts with such U.S. territory 
ultimate parent entity under U.S. generally accepted accounting 
principles, or would be so required if equity interests in the U.S. 
territory ultimate parent entity were publicly traded on a U.S. 
securities exchange.
    (k) Applicability dates. The rules of this section apply to 
reporting periods of ultimate parent entities of U.S. MNE groups that 
begin on or after the first day of a taxable year of the ultimate parent 
entity that begins on or after June 30, 2016.

[T.D. 9773, 81 FR 42489, June 30, 2016; 81 FR 64061, Sept. 19, 2016]



Sec. 1.6038A-0  Table of contents.

    This section lists the captions that appear in the regulations under 
section 6038A.

          Sec. 1.6038A-1 General requirements and definitions.

    (a) Purpose and scope.
    (b) In general.
    (c) Reporting corporation.
    (1) In general.
    (2) 25-percent foreign-owned.
    (3) 25-percent foreign shareholder.
    (i) In general.
    (ii) Total voting power and value.
    (iii) Direct 25-percent foreign shareholder.
    (iv) Indirect 25-percent foreign shareholder.
    (4) Application to prior open years.
    (5) Exceptions.
    (i) Treaty country residents having no permanent establishment.
    (ii) Qualified exempt shipping income.
    (iii) Status as a foreign related party.
    (d) Related party.
    (e) Attribution rules.
    (1) Attribution under section 318.
    (2) Attribution of transactions with related parties engaged in by a 
partnership.
    (f) Foreign person.
    (g) Foreign related party.
    (h) Small corporation exception.
    (i) Safe harbor for reporting corporations with related party 
transactions of de minimis value.
    (1) In general.
    (2) Aggregate value of gross payments made or received.
    (j) Related reporting corporations.
    (k) Consolidated return groups.
    (1) Required information.

[[Page 183]]

    (2) Maintenance of records and authorization of agent.
    (3) Monetary penalties.
    (l) District Director.
    (m) Examples.
    (n) Effective dates.
    (1) Section 1.6038A-1.
    (2) Section 1.6038A-2.
    (3) Section 1.6038A-3.
    (4) Section 1.6038A-4.
    (5) Section 1.6038A-5.
    (6) Section 1.6038A-6.
    (7) Section 1.6038A-7.

                  Sec. 1.6038A-2 Requirement of return.

    (a) Form 5472 required.
    (1) In general.
    (2) Reportable transaction.
    (b) Contents of return.
    (1) Reporting corporation.
    (2) Related party.
    (3) Foreign related party transactions for which only monetary 
consideration is paid or received by the reporting corporation.
    (4) Foreign related party transactions involving nonmonetary 
consideration or less than full consideration.
    (5) Additional information.
    (6) Reasonable estimate.
    (i) Estimate within 25 percent of actual amount.
    (ii) Other estimates.
    (7) Small amounts.
    (8) Accrued payments and receipts.
    (9) Examples.
    (c) Method of reporting.
    (d) Time and place for filing returns.
    (e) Untimely filed return.
    (f) Exceptions.
    (1) No reportable transactions.
    (2) Transactions solely with a domestic reporting corporation.
    (3) Transactions with a corporation subject to reporting under 
section 6038.
    (4) Transactions with a foreign sales corporation.
    (g) Filing Form 5472 when transactions with related parties engaged 
in by a partnership are attributed to a reporting corporation.
    (h) Effective dates for certain reporting corporations.

                   Sec. 1.6038A-3 Record maintenance.

    (a) General maintenance requirements.
    (1) Section 6001 and section 6038A.
    (2) Safe harbor.
    (3) Examples.
    (b) Other maintenance requirements.
    (1) Indirectly related records.
    (2) Foreign related party or third-party maintenance.
    (3) Translation of records.
    (4) Exception for foreign governments.
    (c) Specific records to be maintained for safe harbor.
    (1) In general.
    (2) Descriptions of categories of documents to be maintained.
    (i) Original entry books and transaction records.
    (ii) Profit and loss statements.
    (iii) Pricing documents.
    (iv) Foreign country and third party filings.
    (v) Ownership and capital structure records.
    (vi) Records of loans, services, and other non-sales transactions.
    (3) Material profit and loss statements.
    (4) Existing records test.
    (5) Significant industry segment test.
    (i) In general.
    (ii) Form of the statements.
    (iii) Special rule for component sales.
    (iv) Level of specificity required.
    (v) Examples.
    (6) High profit test.
    (i) In general.
    (ii) Return on assets test.
    (iii) Additional rules.
    (7) Definitions.
    (i) U.S.-connected products or services.
    (ii) Industry segment.
    (iii) Gross revenue of an industry segment.
    (iv) Identifiable assets of an industry segment.
    (v) Operating profit of an industry segment.
    (vi) Product.
    (vii) Related products or services.
    (viii) Model.
    (ix) Product line.
    (8) Example.
    (i) Facts.
    (ii) Existing records test.
    (iii) Significant industry segments.
    (iv) High profit test.
    (v) Material profit and loss statements.
    (d) Liability for certain partnership record maintenance.
    (e) Agreements with the District Director or the Assistant 
Commissioner (International).
    (1) In general.
    (2) Content of agreement.
    (i) In general.
    (ii) Significant industry segment test.
    (iii) Example.
    (3) Circumstances of agreement.
    (4) Agreement as part of APA process.
    (f) U.S. maintenance.
    (1) General rule.
    (2) Non-U.S. maintenance requirements.
    (3) Prior taxable years.
    (4) Scheduled production for high volume or other reasons.
    (5) Required U.S. maintenance.
    (g) Period of retention.
    (h) Application of record maintenance rules to banks and other 
financial institutions. [Reserved]
    (i) Effective dates.

[[Page 184]]

                    Sec. 1.6038A-4 Monetary penalty.

    (a) Imposition of monetary penalty.
    (1) In general.
    (2) Liability for certain partnership transactions.
    (3) Calculation of monetary penalty.
    (b) Reasonable cause.
    (1) In general.
    (2) Affirmative showing required.
    (i) In general.
    (ii) Small corporations.
    (iii) Facts and circumstances taken into account.
    (c) Failure to maintain records or to cause another to maintain 
records.
    (d) Increase in penalty where failure continues after notification.
    (1) In general.
    (2) Additional penalty for another failure.
    (3) Cessation of accrual.
    (4) Continued failures.
    (e) Other penalties.
    (f) Examples.
    Example (1)--Failure to file Form 5472.
    Example (2)--Failure to maintain records.
    (g) Effective dates.

                 Sec. 1.6038A-5 Authorization of agent.

    (a) Failure to authorize.
    (b) Authorization by related party.
    (1) In general.
    (2) Authorization for prior years.
    (c) Foreign affiliated groups.
    (1) In general.
    (2) Application of noncompliance penalty adjustment.
    (d) Legal effect of authorization of agent.
    (1) Agent for purposes of commencing judicial proceedings.
    (2) Foreign related party found where reporting corporation found.
    (e) Successors in interest.
    (f) Deemed compliance.
    (1) In general.
    (2) Reason to know.
    (3) Effect of deemed compliance.
    (g) Effective dates.

             Sec. 1.6038A-6 Failure to furnish information.

    (a) In general.
    (b) Coordination with treaties.
    (c) Enforcement proceeding not required.
    (d) De minimis failure.
    (e) Suspension of statute of limitations.
    (f) Effective dates.

                      Sec. 1.6038A-7 Noncompliance.

    (a) In general.
    (b) Determination of the amount.
    (c) Separate application.
    (d) Effective dates.

[T.D. 8353, 56 FR 28060, June 19, 1991, as amended by T.D. 9796, 81 FR 
89850, Dec. 13, 2016]



Sec. 1.6038A-1  General requirements and definitions.

    (a) Purpose and scope. This section and Secs. 1.6038A-2 through 
1.6038A-7 provide rules for certain foreign-owned U.S. corporations and 
foreign corporations engaged in trade or business within the United 
States (reporting corporations) relating to information that must be 
furnished, records that must be maintained, and the authorization of the 
reporting corporation to act as agent for related foreign persons for 
purposes of sections 7602, 7603, and 7604 that must be executed. Section 
6038A(a) and this section require that a reporting corporation furnish 
certain information annually and maintain certain records relating to 
transactions between the reporting corporation and certain related 
parties. This section also provides definitions of terms used in section 
6038A. Section 1.6038A-2 provides guidance concerning the information to 
be submitted and the filing of the required return. Section 1.6038A-3 
provides guidance concerning the maintenance of records. Section 
1.6038A-4 provides guidance concerning the application of the monetary 
penalty for the failure either to furnish information or to maintain 
records. Section 1.6038A-5 provides guidance concerning the 
authorization of an agent for purposes of sections 7602, 7603, and 7604. 
Section 1.6038A-6 provides guidance concerning the failure to furnish 
information requested by a summons. Finally, Sec. 1.6038A-7 provides 
guidance concerning the application of the noncompliance penalty for 
failure by the related party to authorize an agent or by the reporting 
corporation to substantially comply with a summons.
    (b) In general. A reporting corporation must furnish the information 
described in Sec. 1.6038A-2 by filing an annual information return (Form 
5472 or any successor), and must maintain records as described in 
Sec. 1.6038A-3.
    (c) Reporting corporation--(1) In general. For purposes of section 
6038A, a reporting corporation is either a domestic corporation that is 
25-percent foreign-owned as defined in paragraph (c)(2) of this section, 
or a foreign corporation that is 25-percent foreign-owned and engaged in 
trade or business

[[Page 185]]

within the United States. After November 4, 1990, a foreign corporation 
engaged in a trade or business within the United States at any time 
during a taxable year is a reporting corporation. See section 6038C. A 
domestic business entity that is wholly owned by one foreign person and 
that is otherwise classified under Sec. 301.7701-3(b)(1)(ii) of this 
chapter as disregarded as an entity separate from its owner is treated 
as an entity separate from its owner and classified as a domestic 
corporation for purposes of section 6038A. See Sec. 301.7701-2(c)(2)(vi) 
of this chapter.
    (2) 25-percent foreign-owned. A corporation is 25-percent foreign-
owned if it has at least one direct or indirect 25-percent foreign 
shareholder at any time during the taxable year.
    (3) 25-percent foreign shareholder--(i) In general. A foreign person 
is a 25-percent foreign shareholder of a corporation if the person owns 
at least 25 percent of--
    (A) The total voting power of all classes of stock of the 
corporation entitled to vote, or
    (B) The total value of all classes of stock of the corporation.
    (ii) Total voting power and value. In determining whether one 
foreign person owns 25 percent of the total voting power of all classes 
of stock of a corporation entitled to vote or 25 percent of the total 
value of all classes of stock of a corporation, consideration will be 
given to all the facts and circumstances of each case, under principles 
similar to Sec. 1.957-1(b)(2) (consideration of arrangements to shift 
formal voting power away from a foreign person).
    (iii) Direct 25-percent foreign shareholder. A foreign person is a 
direct 25-percent foreign shareholder if it owns directly at least 25 
percent of the stock of the reporting corporation, either by vote or by 
value.
    (iv) Indirect 25-percent foreign shareholder. A foreign person is an 
indirect 25-percent foreign shareholder if it owns indirectly (or under 
the attribution rules of section 318 is considered to own indirectly) at 
least 25 percent of the stock of the reporting corporation, either by 
vote or by value.
    (4) Application to prior open years. For taxable years beginning 
before July 11, 1989, the definition of a reporting corporation under 
this paragraph applies in determining whether a foreign-owned 
corporation is a reporting corporation. An examination may be reopened 
if the statute of limitations period for that taxable year has not 
expired. A taxable year may not be reopened under section 6038A for 
examination purposes if the taxable year is open under section 6511 only 
for purposes of the carryback of net operating losses or net capital 
losses.
    (5) Exceptions--(i) Treaty country residents having no permanent 
establishment. A foreign corporation that has no permanent establishment 
in the United States under an applicable income tax convention is not a 
reporting corporation for purposes of section 6038A and this section. 
Accordingly, such a foreign corporation is not subject to Secs. 1.6038A-
2, 1.6038A-3, and 1.6038A-5. It must timely and fully provide the 
required notice to the Commissioner under section 6114. See section 6114 
and the regulations thereunder for the notice that such a corporation 
must file and the applicable penalties for failure to file such notice.
    (ii) Qualified exempt shipping income. A foreign corporation whose 
gross income is exempt from U.S. taxation under section 883 is not a 
reporting corporation provided that it timely and fully complies with 
the reporting requirements required to claim such exemption. In the 
event that such a corporation does not timely and fully comply with the 
reporting requirements under sections 887 and 883, it will be a 
reporting corporation subject to section 6038A, including the 
application of the monetary penalty for failure to file required 
information.
    (iii) Status as foreign related party. Nothing in this paragraph 
affects the determination of whether a person is a foreign related party 
as defined in paragraph (g) of this section.
    (d) Related party. The term ``related party'' means--
    (1) Any direct or indirect 25-percent foreign shareholder of the 
reporting corporation,
    (2) Any person who is related within the meaning of sections 267(b) 
or 707(b)(1) to the reporting corporation or

[[Page 186]]

to a 25-percent foreign shareholder of the reporting corporation, or
    (3) Any other person who is related to the reporting corporation 
within the meaning of section 482 and the regulations thereunder. 
However, the term ``related party'' does not include any corporation 
filing a consolidated federal income tax return with the reporting 
corporation.
    (e) Attribution rules--(1) Attribution under section 318. For 
purposes of determining whether a corporation is 25-percent foreign-
owned and whether a person is a related party under section 6038A, the 
constructive ownership rules of section 318 shall apply, and the 
attribution rules of section 267(c) also shall apply to the extent they 
attribute ownership to persons to whom section 318 does not attribute 
ownership. However, ``10 percent'' shall be substituted for ``50 
percent'' in section 318(a)(2)(C), and section 318(a)(3) (A), (B), and 
(C) shall not be applied so as to consider a U.S. person as owning stock 
that is owned by a person who is not a U.S. person. Additionally, 
section 318(a)(3)(C) and Sec. 1.318-1(b) shall not be applied so as to 
consider a U.S. corporation as being a reporting corporation if, but for 
the application of such sections, the U.S. corporation would not be 25-
percent foreign owned.
    (2) Attribution of transactions with related parties engaged in by a 
partnership. The transactions in which a domestic or foreign partnership 
engages shall be attributed to any reporting corporation whose interest 
in the capital or profits of the partnership, either directly or 
indirectly, combined with the interests of all related parties of the 
reporting corporation partner, equals 25 percent or more of the total 
partnership interests. Attribution of such transactions shall be made 
only to the extent of the partnership interest held by that reporting 
corporation partner. See sections 875 and 702(a) and the regulations 
thereunder. (Attribution shall not be made however, of transactions 
directly between the partnership and a reporting corporation.) 
Accordingly, a reporting corporation partner that is deemed to engage in 
transactions with related parties under this rule is subject to the 
information reporting requirements of Sec. 1.6038A-2, to the record 
maintenance requirements of Sec. 1.6038A-3, to the monetary penalty 
under Sec. 1.6038A-4, to the requirement of authorization of agent under 
Sec. 1.6038A-5, to the rules of Sec. 1.6038A-6 relating to the 
requirement to produce records, and to the noncompliance penalty 
adjustment under Sec. 1.6038A-7.
    (f) Foreign person. For purposes of section 6038A, a foreign person 
is--
    (1) Any individual who is not a citizen or resident of the United 
States, but not including any individual for whom an election under 
section 6013 (g) or (h) (relating to an election to file a joint return) 
is in effect;
    (2) Any individual who is a citizen of any possession of the United 
States and who is not otherwise a citizen or resident of the United 
States;
    (3) Any partnership, association, company, or corporation that is 
not created or organized in the United States or under the law of the 
United States or any State thereof;
    (4) Any foreign trust or foreign estate, as defined in section 
7701(a)(31); or
    (5) Any foreign government (or agency or instrumentality thereof). 
To the extent that a foreign government is engaged in the conduct of 
commercial activity as defined under section 892 and the regulations 
thereunder, it will be treated as a foreign person under section 6038A 
and this section only for purposes of the information reporting 
requirements of Sec. 1.6038A-2. A foreign government will not be treated 
as a foreign related party for purposes of Secs. 1.6038A-3 and 1.6038A-
5.


For purposes of section 6038A, a possession of the United States shall 
be considered to be a foreign country.
    (g) Foreign related party. A foreign related party is a foreign 
person as defined under paragraph (f) of this section that is also a 
related party as defined under paragraph (d) of this section.
    (h) Small corporation exception. A reporting corporation (other than 
an entity that is a reporting corporation as a result of being treated 
as a corporation under Sec. 301.7701-2(c)(2)(vi) of this chapter) that 
has less than $10,000,000 in U.S. gross receipts for a taxable year is 
not subject to Secs. 1.6038A-3 and 1.6038A-5 for that taxable year. Such 
a corporation, however, remains subject

[[Page 187]]

to the information reporting requirements of Sec. 1.6038A-2 and the 
general record maintenance requirements of section 6001. For purposes of 
this paragraph, U.S. gross receipts includes all amounts received or 
accrued to the extent that such amounts are taken into account for the 
determination and computation of the gross income of the corporation. 
For purposes of this test, the U.S. gross receipts of all related 
reporting corporations shall be aggregated.
    (i) Safe harbor for reporting corporations with related party 
transactions of de minimis value--(1) In general. A reporting 
corporation (other than an entity that is a reporting corporation as a 
result of being treated as a corporation under Sec. 301.7701-2(c)(2)(vi) 
of this chapter) is not subject to Secs. 1.6038A-3 and 1.6038A-5 for any 
taxable year in which the aggregate value of all gross payments it makes 
to and receives from foreign related parties with respect to related 
party transactions (including monetary consideration, nonmonetary 
consideration, and the value of transactions involving less than full 
consideration) is not more than $5,000,000 and is less than 10 percent 
of its U.S. gross income. Such a corporation, however, remains subject 
to the information reporting requirements of Sec. 1.6038A-2 and the 
general record maintenance requirements of section 6001. For purposes of 
this paragraph, U.S. gross income means the gross income reportable by 
the reporting corporation (or the aggregate gross income reportable by 
all related reporting corporations) for U.S. income tax purposes. Gross 
payments made to or received from foreign related parties cannot be 
netted; rather, the gross payments made to and received from foreign 
related parties are to be aggregated. Thus, for example, if a reporting 
corporation receives $4,700,000 of gross payments from a related party 
and makes $500,000 of gross payments to the same related party, it has 
aggregate gross payments of $5,200,000, and, therefore, does not qualify 
for the safe harbor under this paragraph.
    (2) Aggregate value of gross payments made or received. The 
aggregate value of gross payments made to (or received from) a foreign 
related party with respect to foreign related party transactions is 
determined by totaling the dollar amounts of foreign related party 
transactions as described in Sec. 1.6038A-2(b) (3) and (4) on all Forms 
5472 filed by the reporting corporation or related reporting 
corporations.
    (j) Related reporting corporations. A reporting corporation is 
related to another reporting corporation if it is related to that other 
reporting corporation under the principles described in paragraphs (d) 
and (e) of this section.
    (k) Consolidated return groups--(1) Required information. If a 
reporting corporation is a member of an affiliated group for which a 
U.S. consolidated income tax return is filed, the return requirement of 
Sec. 1.6038A-2 may be satisfied by filing a consolidated Form 5472. The 
common parent, as identified on Form 851, must attach a schedule to the 
consolidated Form 5472 stating which members of the U.S. affiliated 
group are reporting corporations under section 6038A, and which of those 
are joining in the consolidated Form 5472. The schedule must provide the 
name, address, and taxpayer identification number of each member whose 
transactions are included on the consolidated Form 5472. A member is not 
required to join in filing a consolidated Form 5472 merely because other 
members of the group choose to file one or more Forms 5472 on a 
consolidated basis.
    (2) Maintenance of records and authorization of agent. Either the 
common parent or the principal operating company of an affiliated group 
filing a consolidated income tax return may be authorized under 
Sec. 1.6038A-5 to act as the agent for foreign related persons engaged 
in transactions with members of the group solely for purposes of section 
7602, 7603, and 7604 under section 6038A(e)(1) and Sec. 1.6038A-5. Each 
member of the group, however, must maintain the records required under 
section 6038A (a) and Sec. 1.6038A-3 relating to its related party 
transactions.
    (3) Monetary penalties. The common parent (or principal operating 
company) and all reporting corporations that join in the filing of a 
consolidated Form 5472 are liable jointly and severally for penalties 
for failure to file Form 5472 and for failure to mantain

[[Page 188]]

records under section 6038A(d) and Sec. 1.6038A-4(e). See Sec. 1.1502-
77(a) regarding the scope of agency of the common parent corporation.
    (l) District Director. For purposes of the regulations under section 
6038A, the term ``District Director'' means any District Director, or 
the Assistant Commissioner (International) when performing duties 
similar to those of a District Director with respect to any person over 
which the Assistant Commissioner (International) has appropriate 
jurisdiction.
    (m) Examples. The following examples illustrate the rules of this 
section.

    Example 1. P, a U.S. partnership that is engaged in a U.S. trade or 
business, is 75 percent owned by FC1, a foreign corporation that, in 
turn, is wholly owned by another foreign corporation, FC2. The remaining 
25 percent of P is owned by Corp, a domestic corporation, that is wholly 
owned by FC3. P engages in transactions solely with FC2 and FC3. These 
transactions are attributed to FC1 and Corp. Under section 875, FC1 is 
considered as being engaged in a U.S. trade or business. For purposes of 
section 6038A and this section, FC1 and Corp are reporting corporations 
and must report their pro rata shares of the value of the transactions 
with FC2 and FC3. Thus, Corp must report 25 percent of P's transactions 
with FC3 and FC1 must report 75 percent of P's transactions with FC2.
    Example 2. FC2 and FC3 are both foreign corporations that are wholly 
owned by FC1, also a foreign corporation. FC2 engages in a trade or 
business in the United States through a branch. The branch engages in 
related party transactions with FC1. FC2 is a reporting corporation. FC3 
is a foreign related party. FC1 is a direct 25-percent foreign 
shareholder of both FC2 and FC3. Neither FC1 nor FC3 is a reporting 
corporation.
    Example 3. FC1 owns 25 percent of total voting power in each of FC2 
and FC3. FC2 and FC3 each own 20 percent of the total voting power of 
Corp, a domestic corporation. The remaining stock of Corp is owned by an 
unrelated domestic corporation. Neither FC2 nor FC3 is engaged in a U.S. 
trade or business. Under section 318(a)(2)(C) and paragraph (e) of this 
section, FC1 constructively owns its proportionate share of the stock of 
Corp owned directly by FC2 and FC3. Thus, FCl is treated as 
constructively owning five percent of Corp through each of FC2 and FC3 
or a total of 10 percent of the Corp stock. Consequently, Corp is not a 
reporting corporation because no 25 percent shareholder exists.
    Example 4. FP owns 100 percent of FCl which, in turn, owns 100 
percent of FC2. FC2 owns 100 percent of FC3 which owns 100 percent of 
RC. FP, FC1, and FC2 are indirect 25-percent foreign shareholders of RC, 
and FC3 is a direct 25-percent foreign shareholder.
    Example 5. FP owns 100 percent of USS, a U.S. corporation, and 25 
percent of FS, a foreign corporation. The remaining 75 percent of FS is 
publicly owned by numerous small shareholders. Sales transactions occur 
between USS and FS. Applying the rules of this section, USS is a 
reporting corporation. It is determined that USS and FS are each 
controlled by FP under section 482 and the regulations thereunder. 
Therefore, FS is related to USS within the meaning of section 482 and is 
a related party to USS. Accordingly, the sales transactions between USS 
and FS are subject to section 6038A.
    Example 6. The facts are the same as in Example 5, except that the 
remaining 75 percent of FS is owned by one shareholder that is unrelated 
to the FP group and it is determined that FS is not controlled by FP for 
purposes of section 482. Under these facts, FS is not a related party of 
either FP or USS. Accordingly, section 6038A does not apply to the sales 
transactions between FS and USS.
    Example 7. P, a U.S. multinational, is a holding company that wholly 
owns X, a U.S. operating company, which in turn wholly owns FS, a 
controlled foreign corporation. Applying the rule of section 
318(a)(3)(C), FS is deemed to own the stock of X that is actually held 
by P. However, under the rules of paragraph (e) of this section, X will 
not be a reporting corporation by reason of section 318.

    (n) Effective dates--(1) Section 1.6038A-1. Paragraphs (c) (relating 
to the definition of a reporting corporation), (d) (relating to the 
definition of a related party), (e)(1) (relating to the application of 
section 318), and (f) (relating to the definition of a foreign person) 
of this section are effective for taxable Years beginning after July 10, 
1989. The remaining paragraphs of this section are effective December 
10, 1990, without regard to when the taxable year began. However, 
Sec. 1.6038A-1 as it applies to entities that are reporting corporations 
as a result of being treated as a corporation under Sec. 301.7701-
2(c)(2)(vi) of this chapter applies to taxable years of such reporting 
corporations beginning after December 31, 2016, and ending on or after 
December 13, 2017.
    (2) Section 1.6038A-2. Section 1.6038A-2 (relating to the 
requirement to file Form 5472) generally applies for taxable years 
beginning after July 10, 1989. However, Sec. 1.6038A-2 as it applies to 
reporting corporations whose sole trade

[[Page 189]]

or business in the United States is a banking, financing, or similar 
business as defined in Sec. 1.864-4(c)(5)(i) applies for taxable years 
beginning after December 10, 1990. Section 1.6038A-2(d) applies for 
taxable years ending on or after June 10, 2011. For taxable years ending 
on or after June 10, 2011, but before December 24, 2014, see 
Sec. 1.6038A-2(e) as contained in 26 CFR part 1 revised as of April 1, 
2014. For taxable years ending before June 10, 2011, see Sec. 1.6038A-
2(d) and (e) as contained in 26 CFR part 1 revised as of April 1, 2011. 
Section 1.6038A-2 as it applies to entities that are reporting 
corporations as a result of being treated as a corporation under 
Sec. 301.7701-2(c)(2)(vi) of this chapter applies to taxable years of 
such reporting corporations beginning after December 31, 2016, and 
ending on or after December 13, 2017.
    (3) Section 1.6038A-4. Section 1.6038A-4 (relating to the monetary 
penalty) is generally effective for taxable years beginning after July 
10, 1989, for the failure to file Form 5472. For the failure to maintain 
records or the failure to produce documents under Sec. 1.6038A-4(f)(2), 
the section is effective December 10, 1990, without regard to when the 
taxable year to which the records relate began. For taxable years ending 
before December 24, 2014, see Sec. 1.6038A-4(a)(1) as contained in 26 
CFR part 1 revised as of April 1, 2014.
    (4) Section 1.6038A-5. Section 1.6038A-5 (relating to the 
authorization of agent requirement) is effective December 10, 1990, 
without regard to when the taxable year to which the records relate 
began.
    (5) Section 1.6038A-6. Section 1.6038A-6 (relating to the failure to 
furnish information under a summons) is effective November 6, 1990, 
without regard to when the taxable year to which the summons relates 
began.
    (6) Section 1.6038A-7. Section 1.6038A-7 (relating to the 
noncompliance penalty adjustment) is effective December 10, 1990, 
without regard to when the taxable year began.

[T.D. 8353, 56 FR 28061, June 19, 1991; T.D. 8353, 56 FR 41792, Aug. 23, 
1991, as amended by T.D. 9161, 69 FR 55500, Sept. 15, 2004; T.D. 9456, 
74 FR 38875, Aug. 4, 2009; T.D. 9529, 76 FR 33999, June 10, 2011; T.D. 
9667, 78 FR 32644, June 6, 2014; T.D. 9707, 79 FR 77388, Dec. 24, 2014; 
T.D. 9796, 81 FR 89850, Dec. 13, 2016]



Sec. 1.6038A-2  Requirement of return.

    (a) Form 5472 required--(1) In general. Each reporting corporation 
as defined in Sec. 1.6038A-1(c) (or members of an affiliated group 
filing together as described in Sec. 1.6038A-1(k)) shall make a separate 
annual information return on Form 5472 with respect to each related 
party as defined in Sec. 1.6038A-1(d) with which the reporting 
corporation (or any group member joining in a consolidated Form 5472) 
has had any reportable transaction during the taxable year. The 
information required by section 6038A and this section must be furnished 
even though it may not affect the amount of any tax due under the Code.
    (2) Reportable transaction. A reportable transaction is any 
transaction of the types listed in paragraphs (b) (3) and (4) of this 
section. However, if neither party to the transaction is a United States 
person as defined in section 7701(a)(30) (which, for purposes of section 
6038A, includes an entity that is a reporting corporation as a result of 
being treated as a corporation under Sec. 301.7701-2(c)(2)(vi) of this 
chapter) and the transaction--
    (i) Will not generate in any taxable year gross income from sources 
within the United States or income effectively connected, or treated as 
effectively connected, with the conduct of a trade or business within 
the United States, and
    (ii) Will not generate in any taxable year any expense, loss, or 
other deduction that is allocable or apportionable to such income, the 
transaction is not a reportable transaction.
    (b) Contents of return--(1) Reporting corporation. Form 5472 must 
provide the following information in the manner the form prescribes with 
respect to each reporting corporation:

[[Page 190]]

    (i) Its name, address (including mailing code), and U.S. taxpayer 
identification number; each country in which the reporting corporation 
files an income tax return as a resident under the tax laws of that 
country; its country or countries of organization, and incorporation; 
its total assets for U.S. reporting corporation; the places where it 
conducts its business; and its principal business activity.
    (ii) The name, address, and U.S. taxpayer identification number, if 
applicable, of all its direct and indirect 25-percent foreign 
shareholders (for an indirect 25-percent foreign shareholder, explain 
the attribution of ownership); each country in which each 25-percent 
foreign shareholder files an income tax return as a resident under the 
tax laws of that country; the places where each 25-percent shareholder 
conducts its business; and the country or countries of organization, 
citizenship, and incorporation of each 25-percent foreign shareholder.
    (iii) The number of Forms 5472 filed for the taxable year and the 
aggregate value in U.S. dollars of gross payments as defined in 
Sec. 1.6038A-1(h)(2) made with respect to all foreign related party 
transactions reported on all Forms 5472.
    (2) Related party. The reporting corporation must provide 
information on Form 5472, set forth in the manner the form prescribes, 
about each related party, whether foreign or domestic, with which the 
reporting corporation had a transaction of the types described in 
paragraphs (b) (3) and (4) of this section during its taxable year, 
including the following information:
    (i) The name, U.S. taxpayer identification number, if applicable, 
and address of the related party.
    (ii) The nature of the reated party's business and the principal 
place or places where it conducts its business.
    (iii) Each country in which the related party files an income tax 
return as a resident under the tax laws of that country.
    (iv) The relationship of the reporting corporation to the related 
party.
    (3) Foreign related party transactions for which only monetary 
consideration is paid or received by the reporting corporation. If the 
related party is a foreign person, the reporting corporation must set 
forth on Form 5472 the dollar amounts of all reportable transactions for 
which monetary consideration (including U.S. and foreign currency) was 
the sole consideration paid or received during the taxable year of the 
reporting corporation. The total amount of such transactions, as well as 
the separate amounts for each type of transaction described below, must 
be reported on Form 5472, in the manner the form prescribes. Where 
actual amounts are not determinable, a reasonable estimate (as described 
in paragraph (b)(6) of this section) is permitted. The types of 
transactions described in this paragraph are:
    (i) Sales and purchases of stock in trade (inventory);
    (ii) Sales and purchases of tangible property other than stock in 
trade;
    (iii) Rents and royalties paid and received (other than amounts 
reported under paragraph (b)(3)(iv) of this section);
    (iv) Sales, purchases, and amounts paid and received as 
consideration for the use of all intangible property, including (but not 
limited to) copyrights, designs, formulas, inventions, models, patents, 
processes, trademarks, and other similar intangible property rights;
    (v) Consideration paid and received for technical, managerial, 
engineering, construction, scientific, or other services;
    (vi) Commissions paid and received;
    (vii) Amounts loaned and borrowed (except open accounts resulting 
from sales and purchases reported under other items listed in this 
paragraph (b)(3) that arise and are collected in full in the ordinary 
course of business), to be reported as monthly averages or outstanding 
balances at the beginning and end of the taxable year, as the form shall 
prescribe;
    (viii) Interest paid and received;
    (ix) Premiums paid and received for insurance and reinsurance;
    (x) Other amounts paid or received not specifically identified in 
this paragraph (b)(3) to the extent that such amounts are taken into 
account for the determination and computation of the taxable income of 
the reporting corporation; and

[[Page 191]]

    (xi) With respect to an entity that is a reporting corporation as a 
result of being treated as a corporation under Sec. 301.7701-2(c)(2)(vi) 
of this chapter, any other transaction as defined by Sec. 1.482-1(i)(7), 
such as amounts paid or received in connection with the formation, 
dissolution, acquisition and disposition of the entity, including 
contributions to and distributions from the entity.
    (4) Foreign related party transactions involving nonmonetary 
consideration or less than full consideration. If the related party is a 
foreign person, the reporting corporation must provide on Form 5472 a 
description of any reportable transaction, or group of reportable 
transactions, listed in paragraph (b)(3) of this section, for which any 
part of the consideration paid or received was not monetary 
consideration, or for which less than full consideration was paid or 
received. A description required under paragraph (b)(4) of this section 
shall include sufficient information from which to determine the nature 
and approximate monetary value of the transaction or group of 
transactions, and shall include:
    (i) A description of all property (including monetary 
consideration), rights, or obligations transferred from the reporting 
corporation to the foreign related party and from the foreign related 
party to the reporting corporation;
    (ii) A description of all services performed by the reporting 
corporation for the foreign related party and by the foreign related 
party for the reporting corporation; and
    (iii) A reasonable estimate of the fair market value of all 
properties and services exchanged, if possible, or some other reasonable 
indicator of value.


If, for any transaction, the entire consideration received includes both 
tangible and intangible property and the consideration paid is solely 
monetary consideration, the transaction should be reported under 
paragraph (b)(3) of this section if the intangible property was related 
and incidental to the transfer of the tangible property (for example, a 
right to warranty services.)
    (5) Additional information. In addition to the information required 
under paragraphs (b) (3) and (4) of this section, a reporting 
corporation must provide on Form 5472, in the manner the form 
prescribes, the following information:
    (i) If the reporting corporation imports goods from a foreign 
related party, whether the costs taken into account in computing the 
basis or inventory cost of such goods are greater than the costs taken 
into account in computing the valuation of the goods for customs 
purposes, adjusted pursuant to section 1059A and the regulations 
thereunder, and if so, the reasons for the difference.
    (ii) If the costs taken into account in computing the basis or 
inventory cost of such goods are greater than the costs taken into 
account in computing the valuation of the goods for customs purposes, 
whether the documents supporting the reporting corporation's treatment 
of the items set forth in paragraph (b)(5)(i) of this section are in 
existence and available in the United States at the time Form 5472 is 
filed.
    (6) Reasonable estimate--(i) Estimate within 25 percent of actual 
amount. Any amount reported under this section is considered to be a 
reasonable estimate if it is at least 75 percent and not more than 125 
percent of the actual amount.
    (ii) Other estimates. If any amount reported under this paragraph 
(b) of this section fails to meet the reasonable estimate test of 
paragraph (b)(6)(i) of this section, the reporting corporation 
nevertheless may show that such amount is a reasonable estimate by 
making an affirmative showing of relevant facts and circumstances in a 
written statement containing a declaration that it is made under the 
penalties of perjury. The District Director shall determine whether the 
amount reported was a reasonable estimate.
    (7) Small amounts. If any actual amount required under this section 
does not exceed $50,000, the amount may be reported as ``$50,000 or 
less.''
    (8) Accrued payments and receipts. For purposes of this section, a 
reporting corporation that uses an accrual method of accounting shall 
use accrued payments and accrued receipts for purposes of computing the 
total amount of each of the types of transactions listed in this 
section.

[[Page 192]]

    (9) Examples. The following examples illustrate the application of 
paragraph (b)(3) of this section:

    Example 1. (i) In year 1, W, a foreign corporation, forms and 
contributes assets to X, a domestic limited liability company that does 
not elect to be treated as a corporation under Sec. 301.7701-3(c) of 
this chapter. In year 2, W contributes funds to X. In year 3, X makes a 
payment to W. In year 4, X, in liquidation, distributes its assets to W.
    (ii) In accordance with Sec. 301.7701-3(b)(1)(ii) of this chapter, X 
is disregarded as an entity separate from W. In accordance with 
Sec. 301.7701-2(c)(2)(vi) of this chapter, X is treated as an entity 
separate from W and classified as a domestic corporation for purposes of 
section 6038A. In accordance with paragraphs (a)(2) and (b)(3) of this 
section, each of the transactions in years 1 through 4 is a reportable 
transaction with respect to X. Therefore, X has a section 6038A 
reporting and record maintenance requirement for each of those years.
    Example 2. (i) The facts are the same as in Example 1 of this 
paragraph (b)(9) except that, in year 1, W also forms and contributes 
assets to Y, another domestic limited liability company that does not 
elect to be treated as a corporation under Sec. 301.7701-3(c) of this 
chapter. In year 1, X and Y form and contribute assets to Z, another 
domestic limited liability company that does not elect to be treated as 
a corporation under Sec. 301.7701-3(c) of this chapter. In year 2, X 
transfers funds to Z. In year 3, Z makes a payment to Y. In year 4, Z 
distributes its assets to X and Y in liquidation.
    (ii) In accordance with Sec. 301.7701-3(b)(1)(ii) of this chapter, Y 
and Z are disregarded as entities separate from each other, W, and X. In 
accordance with Sec. 301.7701-2(c)(2)(vi) of this chapter, Y, Z and X 
are treated as entities separate from each other and W, and are 
classified as domestic corporations for purposes of section 6038A. In 
accordance with paragraph (b)(3) of this section, each of the 
transactions in years 1 through 4 involving Z is a reportable 
transaction with respect to Z. Similarly, W's contribution to Y and Y's 
contribution to Z in year 1, the payment to Y in year 3, and the 
distribution to Y in year 4 are reportable transactions with respect to 
Y. Moreover, X's contribution to Z in Year 1, X's funds transfer to Z in 
year 2, and the distribution to X in year 4 are reportable transactions 
with respect to X. Therefore, Z has a section 6038A reporting and record 
maintenance requirement for years 1 through 4; Y has a section 6038A 
reporting and record maintenance requirement for years 1, 3, and 4; and 
X has a section 6038A reporting and record maintenance requirement in 
years 1, 2, and 4 in addition to its section 6038A reporting and record 
maintenance described in Example 1 of this paragraph (b)(9).
    (c) Method of reporting. All statements required on or with the Form 
5472 under this section and Sec. 1.6038A-5 shall be in the English 
language. All amounts required to be reported under paragraph (b) of 
this section shall be expressed in United States currency, with a 
statement of the exchange rates used.
    (d) Time for filing returns. A Form 5472 required under this section 
must be filed with the reporting corporation's income tax return for the 
taxable year by the due date (including extensions) of that return. In 
the case of an entity that is a reporting corporation as a result of 
being treated as a corporation under Sec. 301.7701-2(c)(2)(vi) of this 
chapter, Form 5472 must be filed at such time and in such manner as the 
Commissioner may prescribe in forms or instructions.
    (e) Exceptions--(1) No reportable transactions. A reporting 
corporation is not required to file Form 5472 if it has no transactions 
of the types listed in paragraphs (b) (3) and (4) of this section during 
the taxable year with any related party.
    (2) Transactions solely with a domestic reporting corporation. If 
all of a foreign reporting corporation's reportable transactions are 
with one or more related domestic reporting corporations that are not 
members of the same affiliated group, the foreign reporting corporation 
shall furnish on Form 5472 only the information required under 
paragraphs (b) (1) and (2) of this section, if the domestic reporting 
corporations provide the information required under paragraphs (b) (3) 
through (5) of this section. Such a foreign reporting corporation 
nonetheless is subject to the record maintenance requirements of 
Sec. 1.6038A-3 and the requirements of Secs. 1.6038A-5 and 1.6038A-6. 
The name, address, and taxpayer identification number of each domestic 
reporting corporation that provided such information must be indicated 
on Form 5472 in the space provided for the information under paragraphs 
(b) (1) and (2) of this section.
    (3) Transactions with a corporation subject to reporting under 
section 6038. A reporting corporation (other than an entity that is a 
reporting corporation as

[[Page 193]]

a result of being treated as a corporation under Sec. 301.7701-
2(c)(2)(vi) of this chapter) is not required to make a return of 
information on Form 5472 with respect to a related foreign corporation 
for a taxable year for which a U.S. person that controls the foreign 
related corporation makes a return of information on Form 5471 that is 
required under section 6038 and this section, if that return contains 
information required under Sec. 1.6038-2(f)(11) with respect to the 
reportable transactions between the reporting corporation and the 
related corporation for that taxable year. Such a reporting corporation 
also is not subject to Secs. 1.6038A-3 and 1.6038A-5. It remains subject 
to the general record maintenance requirements of section 6001.
    (4) Transactions with a foreign sales corporation. A reporting 
corporation (other than an entity that is a reporting corporation as a 
result of being treated as a corporation under Sec. 301.7701-2(c)(2)(vi) 
of this chapter) is not required to make a return of information on Form 
5472 with respect to a related corporation that qualifies as a foreign 
sales corporation for a taxable year for which the foreign sales 
corporation files Form 1120-FSC.
    (f) Filing Form 5472 when transactions with related parties engaged 
in by a partnership are attributed to a reporting corporation. If 
transactions engaged in by a partnership are attributed under 
Sec. 1.6038A-1(e)(2) to a reporting corporation, the reporting 
corporation need report on Form 5472 only the percentage of the value of 
the transaction or transactions equal to the percentage of its 
partnership interest. Thus, for example, if a partnership buys $1000 of 
widgets from the foreign parent of a reporting corporation whose 
partnership interest in the partnership equals 50 percent of the 
partnership interests (and the remaining 50 percent is held by unrelated 
parties), the reporting corporation must report $500 of purchases from a 
foreign related party on Form 5472.
    (g) Effective/applicability date. Except as otherwise provided, for 
applicability dates for this section for certain reporting corporations, 
see Sec. 1.6038A-1(n). Paragraph (b)(8) of this section applies with 
respect to information for annual accounting periods beginning on or 
after June 21, 2006.

[T.D. 8353, 56 FR 28063, June 19, 1991, as amended by T.D. 9113, 69 FR 
5932, Feb. 9, 2004; T.D. 9161, 69 FR 55500, Sept. 15, 2004; T.D. 9268, 
71 FR 35526, June 21, 2006; T.D. 9338, 72 FR 38476, July 13, 2007; T.D. 
9529, 76 FR 33999, June 10, 2011; T.D. 9667, 78 FR 32645, June 6, 2014; 
T.D. 9707, 79 FR 77389, Dec. 24, 2014; T.D. 9796, 81 FR 89851, Dec. 13, 
2016]



Sec. 1.6038A-3  Record maintenance.

    (a) General maintenance requirements--(1) Section 6001 and section 
6038A. A reporting corporation must keep the permanent books of account 
or records as required by section 6001 that are sufficient to establish 
the correctness of the federal income tax return of the corporation, 
including information, documents, or records (``records'') to the extent 
they may be relevant to determine the correct U.S. tax treatment of 
transactions with related parties. Under section 6001, the District 
Director may require any person to make such returns, render such 
statements, or keep such specific records as will enable the District 
Director to determine whether or not that person is liable for any of 
the taxes to which the regulations under part I have application. See 
section 6001 and the regulations thereunder. Such records must be 
permanent, accurate, and complete, and must clearly establish income, 
deductions, and credits. Additionally, in appropriate cases, such 
records include sufficient relevant cost data from which a profit and 
loss statement may be prepared for products or services transferred 
between a reporting corporation and its foreign related parties. This 
requirement includes records of the reporting corporation itself, as 
well as to records of any foreign related party that may be relevant to 
determine the correct U.S. tax treatment of transactions between the 
reporting corporation and foreign related parties. The relevance of such 
records with respect to related party transactions shall be determined 
upon the basis of all the facts and circumstances. Section 6038A and 
this section provide detailed guidance regarding the required 
maintenance of records with respect to such transactions and specify 
penalties for

[[Page 194]]

noncompliance. Banks and other financial institutions shall follow the 
specific record maintenance rules described in paragraph (h) of this 
section.
    (2) Safe harbor. A safe harbor for record maintenance is provided 
under paragraph (c) of this section, which sets forth detailed guidance 
concerning the types of records to be maintained with respect to related 
party transactions. The safe harbor consists of an all-inclusive list of 
record types that could be relevant to different taxpayers under a 
variety of facts and circumstances. It does not constitute a checklist 
of records that every reporting corporation must maintain or that 
generally should be requested by the Service. A specific reporting 
corporation is required to maintain, and the Service will request, only 
those records enumerated in the safe harbor (including material profit 
and loss statements) that may be relevant to its business or industry 
and to the correct U.S. tax treatment of its transactions with its 
foreign related parties. Accordingly, not every item listed in the safe 
harbor must be maintained by every reporting corporation. A corporation 
that maintains or causes another person to maintain the records listed 
in paragraph (c)(2) of this section that may be relevant to its foreign 
related party transactions and to its business or industry will be 
deemed to have met the record maintenance requirements of section 6038A.
    (3) Examples. The following examples illustrate the rules of this 
paragraph.

    Example 1. RC, a U.S. reporting corporation, is owned by two 
shareholders, F and P. F is a foreign corporation that owns 30 percent 
of the stock of RC. P is a domestic corporation that owns the remaining 
70 percent. RC purchases tangible property from F; however, the only 
potential audit issue with respect to these transactions is their 
treatment under section 482. It is determined that F does not in fact 
control RC and the two corporations do not constitute a group of 
``controlled taxpayers'' for purposes of section 482 and the regulations 
thereunder. There are no other reportable transactions between RC and F. 
Under Sec. 1.6038A-1(g), F is a foreign related party with respect to 
RC. Accordingly, RC is required to report its purchases of property from 
F under the reporting requirements of Sec. 1.6038A-2. Nevertheless, 
because section 482 is not applicable to the transactions between RC and 
F, the records created by F with respect to its sales to RC are not 
relevant for purposes of determining the correct tax treatment of these 
transactions. RC is required to maintain its own records of these 
transactions under the requirements of section 6001, but the 
transactions are not subject to the record maintenance requirements of 
this section. If, however, on audit it is determined that F does control 
RC, all records relevant to determining the arm's length consideration 
for the tangible property under section 482 will be subject to these 
requirements.
    Example 2. FP, a foreign person, owns 30 percent of the stock of RC, 
a reporting corporation. The remaining 70 percent of RC stock is held by 
persons that are not 25-percent foreign shareholders. It is determined 
that FP is related to RC within the meaning of section 482 and the 
regulations thereunder. The only transactions between FP and RC are FP's 
capital contributions, dividends paid from RC to FP, and loans from FP 
to RC. Under section 6001, RC is required to maintain all documentation 
necessary to establish the U.S. tax treatment of the capital 
contributions, dividends, and loans. RC is not required to maintain 
records in other categories listed in paragraph (c)(3) of this section 
because they are not relevant to the transactions between FP and RC. 
Records of FP not related to these transactions are not subject to the 
record maintenance requirements under section 6038A(a) and this section.
    Example 3. G, a foreign multinational group, creates Sub, a wholly-
owned U.S. subsidiary, in order to purchase tangible property from 
unrelated parties in the United States and resell such property to G. 
The property purchased by Sub is either used in G's business or resold 
to other unrelated parties by G. Sub's sole function is to act as a 
buyer for G and these purchases are the only transactions that G has 
with any U.S. affiliates. Under all the facts and circumstances of this 
case, it is determined that an analysis of the group's worldwide profit 
attributable to the property it purchases from Sub is not relevant for 
purposes of determining the tax treatment of the sales from Sub to G. 
Therefore, the records with respect to the profitability of G are not 
subject to the record maintenance requirements of this section. However, 
all records related to the appropriate method under section 482 for 
determining an arm's-length consideration for the property sold by Sub 
to G are subject to the record maintenance requirements of this section.
    Example 4. S, a U.S. reporting corporation, provides computer 
consulting services for its foreign parent, X. Based on the application 
of section 482 and the regulations, it is determined that the cost of 
services plus method, as described in Sec. 1.482-9(e), will provide the

[[Page 195]]

most reliable measure of an arm's length result, based on the facts and 
circumstances of the controlled transaction between S and X. S is 
required to maintain records to permit verification upon audit of the 
comparable transactional costs (as described in Sec. 1.482-9(e)(2)(iii)) 
used to calculate the arm's length price. Based on the facts and 
circumstances, if it is determined that X's records are relevant to 
determine the correct U.S. tax treatment of the controlled transaction 
between S and X, the record maintenance requirements under section 
6038A(a) and this section will be applicable to the records of X.

    (b) Other maintenance requirements--(1) Indirectly related records. 
This section applies to records that are directly or indirectly related 
to transactions between the reporting corporation and any foreign 
related parties. An example of records that are indirectly related to 
such transactions is records possessed by a foreign subsidiary of a 
foreign related party that document the raw material or component costs 
of a product that is manufactured or assembled by the subsdiary and sold 
as a finished product by the foreign related party to the reporting 
corporation.
    (2) Foreign related party or third-party maintenance. If records 
that are required to be maintained under this section are in the control 
of a foreign related party, the records may be obtained or compiled (if 
not already in the possession of the foreign related party or already 
compiled) under the direction of the reporting corporation and then 
maintained by the reporting corporation, the foreign related party, or a 
third party. Thus, for example, a foreign related party may either 
itself maintain such records outside the United States or permit a third 
party to maintain such records outside the United States, provided that 
the conditions described in paragraph (f) of this section are met. Upon 
a request for such records by the Service, a foreign related party or 
third party may make arrangements with the District Director to furnish 
the records directly, rather than through the reporting corporation.
    (3) Translation of records. When records are provided to the Service 
under a request for production, any portion of such records must be 
translated into the English language within 30 days of a request for 
translation of that portion by the District Director. To the extent that 
any requested documents are identical to documents that have already 
been translated, an explanation of how such documents are identical 
instead may be provided. An extension of this time period may be 
requested under paragraph (f)(4) of this section. Appropriate extensions 
will be liberally granted for translation requests where circumstances 
warrant. If a good faith effort is made to translate accurately the 
requested documents within the specified time period, the reporting 
corporation will not be subject to the penalties in Secs. 1.6038A-4 and 
1.6038A-7.
    (4) Exception for foreign governments. A foreign government is not 
subject to the obligation to maintain records under this section.
    (5) Records relating to conduit financing arrangements. See 
Sec. 1.881-4 relating to conduit financing arrangements.
    (c) Specific records to be maintained for safe harbor--(1) In 
general. A reporting corporation that maintains or causes another person 
to maintain the records specified in this paragraph (c) that are 
relevant to its business or industry and to the correct U.S. tax 
treatment of its transactions with its foreign related parties will 
deemed to have met the record maintenance requirements of this section. 
This paragraph provides general descriptions of the categories of 
records to be maintained; the particular title or label applied by a 
reporting corporation or related party does not control. Functional 
equivalents of the specified documents are acceptable. Record 
maintenance in accordance with this safe harbor, however, requires only 
the maintenance of types of documents described in paragraph (c)(2) of 
this section that are directly or indirectly related to transactions 
between the reporting corporation and any foreign related party. 
Additionally, to the extent the reporting corporation establishes that 
records in a particular category are not applicable to the industry or 
business of the reporting corporation and any foreign related party, 
maintenance of such records is not required under this paragraph. Record 
maintenance in accordance with this paragraph (c) generally does not 
require the original creation

[[Page 196]]

of records that are ordinarily not created by the reporting corporation 
or its related parties. (If, however, a document that is actually 
created is described in this paragraph (c), it is to be maintained even 
if the document is not of the type ordinarily created by the reporting 
corporation or its related parties.) There are two exceptions to the 
rule. First, basic accounting records that are sufficient to document 
the U.S. tax effects of transactions between related parties must be 
created and retained, if they do not otherwise exist. Second, records 
sufficient to produce material profit and loss statements as described 
in paragraphs (c)(2)(ii) and (3) of this section that are relevant for 
determining the U.S. tax treatment of transactions between the reporting 
corporation and foreign related parties must be created if such records 
are not ordinarily maintained. All internal records storage and 
retrieval systems used for each taxable year must be retained.
    (2) Descriptions of categories of documents to be maintained. The 
following records must be maintained in order to satisfy this paragraph 
(c) to the extent they may be relevant to determine the correct U.S. tax 
treatment of transactions between the reporting corporation and any 
foreign related party.
    (i) Original entry books and transaction records. This category 
includes books and records of original entry or their functional 
equivalents, however designated or labelled, that are relevant to 
transactions between any foreign related party and the reporting 
corporation. Examples include, but are not limited to, general ledgers, 
sales journals, purchase order books, cash receipts books, cash 
disbursement books, canceled checks and bank statements, workpapers, 
sales contracts, and purchase invoices. Descriptive material to 
explicate entries in the foregoing types of records, such as a chart of 
accounts or an accounting policy manual, is included in this category.
    (ii) Profit and loss statements. This category includes records from 
which the reporting corporation can compile and supply, within a 
reasonable time, material profit and loss statements of the reporting 
corporation and all related parties as defined in Sec. 1.6038A-1 (d) 
(the ``related party group'') that reflect profit or loss of the related 
party group attributable to U.S.-connected products or services as 
defined in paragraph (c)(7)(i) of this section. The determination of 
whether a profit and loss statement is material is made under the rules 
provided in paragraph (c)(3) of this section. The material profit and 
loss statements described in this paragraph (c)(2)(ii) must reflect the 
consolidated revenue and expenses of all members of the related party 
group. Thus, records in this category include the documentation of the 
cost of raw materials used by a related party to manufacture finished 
goods that are then sold by another related party to the reporting 
corporation. The records should be kept under U.S. generally accepted 
accounting principles if they are ordinarily maintained in such manner; 
if not, an explanation of the material differences between the 
accounting principles used and U.S. generally accepted accounting 
principles must be made available. The statements need not reflect 
tracing of the actual costs borne by the group with respect to its U.S.-
connected products or services; rather, any reasonable method may be 
used to allocate the group's worldwide costs to the revenues generated 
by the sales of those products or services. An explanation of the 
methods used to allocate specific items to a particular profit and loss 
statement must be made available. The explanation of material 
differences between accounting principles and the explanation of 
allocation methods must be sufficient to permit a comparison of the 
profitability of the group to that of the reporting corporation 
attributable to the provision of U.S.-connected products or services.
    (iii) Pricing documents. This category includes all documents 
relevant to establishing the appropriate price or rate for transactions 
between the reporting corporation and any foreign related party. 
Examples include, but are not limited to, documents related to 
transactions involving the same or similar products or services entered 
into by the reporting corporation or a foreign

[[Page 197]]

related party with related and unrelated parties; shipping and export 
documents; commission agreements; documents relating to production or 
assembly facilities; third-party and intercompany purchase invoices; 
manuals, specifications, and similar documents relating to or describing 
the performance of functions conducted at particular locations; 
intercompany correspondence discussing any instructions or assistance 
relating to such transactions provided to the reporting corporations by 
the related foreign person (or vice versa); intercompany and 
intracompany correspondence concerning the price or the negotiation of 
the price used in such transactions; documents related to the value and 
ownership of intangibles used or developed by the reporting corporation 
or the foreign related party; documents related to cost of goods sold 
and other expenses; and documents related to direct and indirect 
selling, and general and administrative expenses (for example, relating 
to advertising, sales promotions, or warranties).
    (iv) Foreign country and third party filings. This category includes 
financial and other documents relevant to transactions between a 
reporting corporation and any foreign related party filed with or 
prepared for any foreign government entity, any independent commission, 
or any financial institution.
    (v) Ownership and capital structure records. This category includes 
records or charts showing the relationship between the reporting 
corporation and the foreign related party; the location, ownership, and 
status (for example, joint venture, partnership, branch, or division) of 
all entities and offices directly or indirectly involved in the 
transactions between the reporting corporation and any foreign related 
party; a worldwide organization chart; records showing the management 
structure of all foreign affiliates; and loan documents, agreements, and 
other documents relating to any transfer of the stock of the reporting 
corporation that results in the change of the status of a foreign person 
as a foreign related party.
    (vi) Records of loans, services, and other non-sales transactions. 
This category includes relevant documents relating to loans (including 
all deposits by one foreign related party or reporting corporation with 
an unrelated party and a subsequent loan by that unrelated party to a 
foreign related party or reporting corporation that is in substance a 
direct loan between a reporting corporation and a foreign related 
party); guarantees of a foreign related party of debts of the reporting 
corporation, and vice versa; hedging arrangements or other risk shifting 
or currency risk shifting arrangements involving the reporting 
corporation and any foreign related party; security agreements between 
the reporting corporation and any foreign related party; research and 
development expense allocations between any foreign related party and 
the reporting corporation; service transactions between any foreign 
related party and the reporting corporation, including, for example, a 
description of the allocation of charges for management services, time 
or travel records, or allocation studies; import and export transactions 
between a reporting corporation and any foreign related party; the 
registration of patents and copyrights with respect to transactions 
between the reporting corporation and any foreign related party: and 
documents regarding lawsuits in foreign countries that relate to such 
transactions between a reporting corporation and any foreign related 
party (for example, product liability suits for U.S. products).
    (vii) Records relating to conduit financing arrangements. See 
Sec. 1.881-4 relating to conduit financing arrangements.
    (3) Material profit and loss statements. For purposes of paragraph 
(c)(2)(ii) of this section, the determination of whether a profit and 
loss statement is material will be made according to the following 
rules. An agreement between the reporting corporation and the District 
Director as described in paragraph (e) of this section may identify 
material profit and loss statements of the related party group and 
describe the items to be included in any profit and loss statements for 
which records are to be maintained to satisfy the requirements of 
paragraph (c)(2)(ii) of this section. In the absence of such an 
agreement, a profit and loss statement will be material if it meets any 
of the

[[Page 198]]

following tests: the existing records test described in paragraph (c)(4) 
of this section, the significant industry segment test described in 
paragraph (c)(5) of this section, or the high profit test described in 
paragraph (c)(6) of this section.
    (4) Existing records test. A profit and loss statement is material 
under the existing records test described in this paragraph (c)(4) if 
any member of the related party group creates or compiles such statement 
in the course of its business operations and the statement reflects the 
profit or loss of the related party group attributable to the provision 
of U.S.-connected products or services (regardless of whether the profit 
and loss attributable to U.S.-connected products or services is shown 
separately or included within the calculation of aggregate figures on 
the statement). For example, a profit and loss statement is described in 
this paragraph if it was produced for internal accounting or management 
purposes, or for disclosure to shareholders, financial institutions, 
government agencies, or any other persons. Such existing statements and 
the records from which they were complied (to the extent such records 
relate to profit and loss attributable to U.S.-connected products or 
services) are subject to the record maintenance requirements described 
in paragraph (c)(2)(ii) of this section.
    (5) Significant industry segment test--(i) In general. A profit and 
loss statement is material under the significant industry segment test 
described in this paragraph (c)(5) if--
    (A) The statement reflects the profit or loss of the related party 
group attributable to the group's provision of U.S.-connected products 
or services within a single industry segment (as defined in paragraph 
(c)(7)(ii) of this section);
    (B) The worldwide gross revenue attributable to such industry 
segment is 10 percent or more of the worldwide gross revenue 
attributable to the group's combined industry segments; and
    (C) The amount of gross revenue earned by the group from the 
provision of U.S.-connected products or services within such industry 
segment is $25 million or more in the taxable year.
    (ii) Form of the statements. Profit and loss statements compiled for 
the group's provision of U.S.-connected products or services in each 
significant industry segment must reflect revenues and expenses 
attributable to the operations in such segment by all members of the 
related party group. Statements may show each related party's revenues 
and expenses separately, or may be prepared in a consolidated format. 
Any reasonable method may be used to allocate the group's worldwide 
costs within the industry segment to the U.S.-connected products or 
services within that segment. An explanation of the methods used to 
prepare consolidated statements and to allocate specific items to a 
particular profit and loss statement must be made available, and the 
records from which the consolidations and allocations were prepared must 
be maintained.
    (iii) Special rule for component sales. Where the U.S.-connected 
products or services consist of components that are incorporated into 
other products or services before sale to customers, the portion of the 
total gross revenue derived from sales of the finished products or 
services attributable to the components may be determined on the basis 
of relative costs of production. Thus, where relevant for determining 
whether the $25 million threshold in paragraph (c)(5)(i)(C) of this 
section has been met, the amount of gross revenue derived by the related 
party group from the provision of the finished products or services may 
be reduced by multiplying it by a fraction, the numerator of which is 
the costs of production of the related party group attributable to the 
component products or services that constitute U.S.-connected products 
or services and the denominator of which is the costs of production of 
the related party group attributable to the finished products in which 
such components are incorporated.
    (iv) Level of specificity required. In applying the significant 
industry segment test of this paragraph (c)(5), groups of related 
products and services must be chosen to provide a reasonable level of 
specificity that results in the

[[Page 199]]

greatest number of separate significant industry segments in comparison 
to other possible classifications. This determination must be made on 
the basis of the particular facts presented by the operations of the 
related party group. The following rules, however, provide general 
guidelines for making such classifications. First, the related party 
group's operations that involve the provision of U.S.-connected products 
should be grouped into product lines. The rules of this paragraph (c)(5) 
should then be applied to determine if any such product line would, 
standing alone, constitute a significant industry segment when compared 
to the related party group's operations as a whole. Any significant 
industry segments determined at the level of product lines should be 
further segregated, and tested for significant industry segments, at the 
level of separate products. Finally, any significant industry segments 
determined at the level of separate products should be segregated, and 
tested for significant industry segments, at the level of separate 
models. Similar principles should be applied in classifying and testing 
types of services. A profit and loss statement reflecting the related 
party group's provision of any product or service (or group of products 
or services as classified under these rules) that constitutes a 
significant industry segment will be considered material for purposes of 
this paragraph (c)(5). For definitions of the terms ``product'', 
``related products or services'', ``model'', and ''product line'', see 
paragraph (c)(7) of this section.
    (v) Examples. The rules for determining reasonable levels of 
specificity for significant industry segments may be illustrated by the 
following examples.

    Example 1. A related party group is engaged in the manufacture and 
worldwide sales of automobiles and aftermarket parts. The group's 
operations within the categories of ``automobiles'' and ``aftermarket 
parts''. are each sufficient to constitute significant industry segments 
for the group under the rules of this paragraph (c)(5). No narrower 
classification of aftermarket parts results in any significant industry 
segments. Automobiles produced by the group are generally classified for 
marketing purposes by trade names; aggregating groups of automobiles by 
these trade names results in three significant industry segments, those 
for trade names A, B, and C. Finally, two car models sold under the 
trade name A (``A1'' and ``A2'') and one car model sold under the trade 
name B (``B3''), produce sufficient revenue to constitute significant 
industry segments. Such classifications into trade names and car models 
are generally used in the related party group's industry; moreover, 
different types of classifications would produce fewer significant 
industry segments. Accordingly, a reasonable level of specificity for 
this related party group's industry segments would be eight categories 
of products consisting of ``automobiles'', ``aftermarket parts'', ``A'', 
``B'', ``C'', ``A1'', ``A2'', and ``B3''.
    Example 2. A related party group is engaged in manufacturing 
electronic goods that are distributed at retail in the United States by 
the reporting corporation. The group sells three types of products in 
the United States: televisions, radios, and video cassette recorders 
(VCRs). Each of these three broad product areas constitutes a 
significant industry segment for the group as a whole. VCRs can be 
further segregated by price into high-end and low-end models, and the 
provision of each constitutes a significant industry segment for the 
group. Revenues from only one VCR model, model number VCRX-10, are 
sufficiently large to make the provision of that model a significant 
industry segment. With respect to televisions, the group normally 
accounts for these products by size. Using this classification, portable 
televisions, medium-sized televisions, and consoles each constitute 
significant industry segments. Narrower classifications by television 
model numbers result in no additional significant industry segments. 
Finally, a single radio product line, those sold under the trade name R, 
produces sufficient revenue to constitute a significant industry 
segment, but no other radio models or product groups are large enough to 
constitute a significant industry segment. In each case, these 
classifications conform to normal business practices in the industry and 
result in the greatest possible number of significant industry segments 
for this related party group. Accordingly, a reasonable level of 
specificity for this related party group's industry segments would 
include the ten categories consisting of ``VCRs'', ``high-end VCRs'', 
``low-end VCRs'', ``model number VCRX-10'', ``televisions'', ``portable 
televisions'', ``medium-sized televisions'', ``console televisions'', 
``radios'', and ``radio trade name R''.

    (6) High profit test--(i) In general. A profit and loss statement is 
material under the high profit test described in this paragraph (c)(6) 
if--

[[Page 200]]

    (A) The statement reflects the profit or loss of the related party 
group attributable to the group's provision of U.S.-connected products 
or services within a single industry segment (as defined in paragraph 
(c)(7)(ii) of this section);
    (B) The amount of gross revenue earned by the group from the 
provision of U.S.-connected products or services within such industry 
segment is $100 million or more in the taxable year; and
    (C) The return on assets test described in paragraph (c)(6)(ii) of 
this section is satisfied with respect to the products and services 
attributable to such segment.


Accordingly, a significant industry segment (as determined under 
paragraph (c)(5) of this section) must be divided into any narrower 
industry segments that meet the high profit test of this paragraph 
(c)(6), even if such narrower segments would not, standing alone, meet 
the significant industry segment test of paragraph (c)(5) of this 
section.
    (ii) Return on assets test. An industry segment meets the return on 
assets test if the rate of return on assets earned by the related party 
group on its worldwide operations within this industry segment exceeds 
15 percent, and is at least 200 percent of the return on assets earned 
by the group in all industry segments combined. For purposes of this 
paragraph, the rate of return on assets earned by an industry segment is 
determined by dividing that segment's operating profit (as defined in 
paragraph (c)(7)(v) of this section) by its identifiable assets (as 
defined in paragraph (c)(7)(iv) of this section).
    (iii) Additional rules. The rules in paragraphs (c)(5)(ii) through 
(iv) of this section describing the application of the significant 
industry segment test shall apply in a similar manner for purposes of 
the high profit test.
    (7) Definitions. The following definitions apply for purposes of 
paragraphs (c)(2)(ii), (c)(5), and (c)(6) of this section.
    (i) U.S.-connected products or services. The term U.S.-connected 
products or services means products or services that are imported to or 
exported from the United States by transfers between the reporting 
corporation and any of its foreign related parties.
    (ii) Industry segment. An industry segment is a segment of the 
related party group's combined operations that is engaged in providing a 
product or service or a group of related products or services (as 
defined in paragraph (c)(7)(vii) of this section) primarily to customers 
that are not members of the related party group.
    (iii) Gross revenue of an industry segment. Gross revenue of an 
industry segment includes receipts (prior to reduction for cost of goods 
sold) both from sales to customers outside of the related party group 
and from sales or transfers to other industry segments within the 
related party group (but does not include sales or transfers between 
members of the related party group within the same industry segment). 
Interest from sources outside the related party group and interest 
earned on trade receivables between industry segments is included in 
gross revenue if the asset on which the interest is earned is included 
among the industry segment's identifiable assets, but interest earned on 
advances or loans to other industry segments is not included.
    (iv) Identifiable assets of an industry segment. The identifiable 
assets of an industry segment are those tangible and intangible assets 
of the related party group that are used by the industry segment, 
including assets that are used exclusively by that industry segment and 
an allocated portion of assets used jointly by two or more industry 
segments. The value of an identifiable asset may be determined using any 
reasonable method (such as book value or fair market value) applied 
consistently. Any allocation of assets among industry segments must be 
made on a reasonable basis, and a description of such basis must be 
provided. Assets of an industry segment that transfers products or 
services to another industry segment shall not be allocated to the 
receiving segment. Assets that represent part of the related party 
group's investment in an industry segment, such as goodwill, shall be 
included in the industry segment's identifiable assets. Assets 
maintained for general corporate purposes (that is, those not used

[[Page 201]]

in the operations of any industry segment) shall not be allocated to 
industry segments.
    (v) Operating profit of an industry segment. The operating profit of 
an industry segment is its gross revenue (as defined in paragraph 
(c)(7)(iii) of this section) minus all operating expenses. None of the 
following shall be added or deducted in computing the operating profit 
of an industry segment: revenue earned at the corporate level and not 
derived from the operations of any industry segment; general corporate 
expenses; interest expense; domestic and foreign income taxes; and other 
extraordinary items not reflecting the ongoing business operations of 
the industry segment.
    (vi) Product. The term product means an item of property (or 
combination of component parts) that is the result of a production 
process, is primarily sold to unrelated parties (or incorporated by the 
related party group into other products sold to unrelated parties), and 
performs a specific function.
    (vii) Related products or services. The term related products or 
services means groupings of products and types of services that reflect 
reasonable accounting, marketing, or other business practices within the 
industries in which the related party group operates.
    (viii) Model. The term model means a classification of products that 
incorporate particular components, options, styles, and any other unique 
features resulting in product differentiation. Examples of models are 
electronic products that are sold or accounted for under a single model 
number and automobiles sold under a single model name.
    (ix) Product line. The term product line means a group of products 
that are aggregated into a single classification for accounting, 
marketing, or other business purposes. Examples of product lines are 
groups of products that perform similar functions; products that are 
marketed under the same trade names, brand names, or trademarks; and 
products that are related economically (that is, having similar rates of 
profitability, similar degrees of risk, and similar opportunities for 
growth).
    (8) Example. The application of the rules for determining material 
profit and loss statements under paragraphs (c)(4) through (7) of this 
section is illustrated by the following example.

    Example. (i) Facts. A multinational enterprise manufactures 50 
different agricultural and chemical products that are sold through Subl, 
its wholly owned U.S. subsidiary, and other subsidiaries located in 
foreign countries. The parent company of the enterprise, P, is a foreign 
corporation. The corporations participating in the enterprise form a 
related party group, and Subl is a reporting corporation for purposes of 
section 6038A. Under the facts and circumstances of this case, an 
analysis of the group's worldwide profit attributable to its products 
sold in the U.S. is relevant for determining an arm's length 
consideration under section 482 for the transfers of goods between Subl 
and its foreign affiliates.
    (ii) Existing records test. For management purposes, the group 
prepares profit and loss statements that are segmented by sales in 
different geographic markets. One of these statements shows the combined 
worldwide profitability of the group. Another statement shows the 
profitability of the group attributable to its North American sales. 
Both of these profit and loss statements reflect aggregate figures that 
include sales to unrelated parties of products that have been 
transferred from P and other group members to Subl (that is, the group's 
``U.S.-connected products''). The two statements meet the existing 
records test described in paragraph (c)(4) of this section.
    (iii) Significant industry segments. The group's worldwide gross 
revenue in all industry segments is $2 billion. An analysis of the 
group's 50 products demonstrates that they are reasonably grouped into 
eight industry segments (each of which earns roughly $250 million in 
worldwide gross revenue). Segments 1 through 6 relate to agricultural 
products and Segments 7 and 8 relate to other chemical products. More 
specific categories would result in groupings that generate less than 10 
percent of the group's worldwide gross revenue (that is, less than $200 
million each); these narrower categories would thus fail the gross 
revenue percentage test of paragraph (c)(5)(i)(B) of this section. The 
gross revenue in each of the eight segments from the sale to unrelated 
parties of U.S.-connected products is as follows: $180 million for 
Segment 1; $30 million for Segment 2; and less than $25 million for each 
of Segments 3 through 8. Under the $25 million threshold test of 
paragraph (c)(5)(i)(C) of this section, the group's significant industry 
segments are thus limited to Segments 1 and 2. In addition, the combined 
operations of the group related to agricultural products (encompassing 
Segments 1 through 6 on an aggregated basis), constitute a single 
significant industry segment.

[[Page 202]]

    (iv) High profit test. One highly profitable product line within 
Segment 1, HPPL, accounts for $120 million gross revenue from Sub1's 
domestic sales of U.S.-connected products (and thus exceeds the $100 
million gross revenue threshold in paragraph (c)(6)(i)(B) of this 
section). The return on the identifiable assets attributable to the HPPL 
product line is 85 percent, which is more than 15 percent and more than 
twice the return on assets earned by the group from its worldwide 
operations in its combined industry segments. The group's industry 
segment for HPPL thus meets the high profit test described in paragraph 
(c)(6) of this section.
    (v) Material Profit and Loss Statements. The group's material profit 
and loss statements consist of statements for combined worldwide sales 
and North American sales (under the existing records test); Segment 1, 
Segment 2, and aggregated Segments 1-6 (under the significant industry 
segment test); and HPPL (under the high profit test). Under paragraph 
(c) of this section, Subl is required to retain the combined worldwide 
sales and North American sales profit and loss statements and to 
maintain sufficient records so that it can compile and supply upon 
request statements of the group's profitability from sales of its U.S.-
connected products within Segment l, Segment 2, aggregated Segments 1-6, 
and HPPL. These records need not be in the possession of Subl and may be 
kept under the control of and produced by P or any third party. The 
statements for Segment l, Segment 2, aggregated Segments 1-6, and HPPL 
do not require tracing of actual costs to the U.S.-connected products; 
rather, these statements may be prepared by using any reasonable method 
to allocate a portion of the industry segment's overall operating costs 
to the sales of U.S.-connected products within that segment.

    (d) Liability for certain partnership record maintenance. A 
reporting corporation to which transactions engaged in by a partnership 
are attributed under Sec. 1.6038A-1 (e)(2) is subject to the record 
maintenance requirements of this section to the extent of the 
transactions so attributed.
    (e) Agreements with the District Director--(1) In general. The 
District Director who has audit jurisdiction over the reporting 
corporation may negotiate and enter into an agreement with a reporting 
corporation that establishes the records the reporting corporation must 
maintain or cause another to maintain, how the records must be 
maintained, the period of retention for the records, and by whom the 
records must be maintained in order to satisfy the reporting 
corporation's obligations under this section.
    (2) Content of agreement--(i) In general. The agreement may include 
provisions relating to the authorization of agent requirement, the 
record maintenance requirement, and the production and translation time 
periods that vary the rules contained in these regulations under section 
6038A. The District Director will generally require a reporting 
corporation to maintain only those records specified under the safe 
harbor provisions of paragraph (c) of this section that permit an 
adequate audit of the income tax return of the reporting corporation and 
to provide such authorizations of agent that permit adequate access to 
such records. In most instances, required record maintenance for a 
particular reporting corporation under a negotiated agreement will be 
less than the broad range of records described under the safe harbor 
provisions. Additionally, a provision specifying the effective date and 
the expiration date of the agreement that may vary the effective date of 
the regulations may be included.
    (ii) Significant industry segment test. A District Director may 
determine which industry segment profit and loss statements are material 
for purposes of requiring the maintenance of records (under either 
paragraph (a)(1) of this section or the safe harbor described in 
paragraph (a)(2) of this section). The industry segments that the 
District Director determines are material need not be the industry 
segments that meet the significant industry segment test under paragraph 
(c)(5) of this section or the high profit test under paragraph (c)(6) of 
this section. For this purpose, a reporting corporation will be required 
to maintain only those records from which profit and loss statements for 
the related party group may be constructed with respect to industry 
segments identified by the District Director. To the extent that 
existing profit and loss statements are similar in scope and level of 
detail to statements for industry segments that would otherwise be 
described under the tests of paragraphs (c)(5) and (6) of this section, 
the District Director shall accept the existing statements instead of 
the statements that would otherwise

[[Page 203]]

be required under paragraphs (c)(5) and (6) of this section.
    (iii) Example. The following example illustrates the rules of 
paragraph (e)(2)(ii) of this section.

    Example. The District Director determines that RC, a reporting 
corporation that is a manufacturer of related chemical products, has two 
industry segments, Segment 1 and Segment 2. While both industry segments 
meet the significant industry segment test of paragraph (c)(5) of this 
section, Segment 1 has a relatively low volume of sales to foreign 
related parties. Additionally, Segment 1 consists of products that 
produce only a small profit margin because the product is generic and 
other companies also sell the product. The District Director enters into 
an agreement with RC that requires only records from which a profit and 
loss statement for the related party group can be constructed for 
Segment 2. Therefore, RC is not required to maintain records for Segment 
1 from which a profit and loss statement for the related party group can 
be constructed. The other record maintenance requirements under this 
section apply, however.

    (3) Circumstances of agreement. The District Director generally will 
enter into an agreement under this paragraph (e) upon request by the 
reporting corporation when the District Director believes that the 
District has or can obtain sufficient knowledge of the business or 
industry of the reporting corporation to limit the record maintenance 
requirement to particular documents.
    (4) Agreement as part of APA process. An agreement with a reporting 
corporation under this paragraph (e) may be entered into as a part of 
the Advance Pricing Agreement (APA) process at any time during the APA 
process, insofar as the agreement relates to the subject matter of the 
APA.
    (f) U.S. maintenance--(1) General rule. Records that must be 
maintained under this section must be maintained within the United 
States, unless the conditions described in paragraph (f)(2) of this 
section are met.
    (2) Non-U.S. maintenance requirements. A reporting corporation may 
maintain outside the United States records not ordinarily maintained in 
the United States but required to be maintained in the United States 
under this section. However, the reporting corporation must either:
    (i) Deliver to the Service the original documents (or duplicates) 
requested within 60 days of the request by the Service for such records 
and provide translations of such documents within 30 days of a request 
for translations of specific documents; or
    (ii) Move the original documents (or duplicates) requested to the 
United States within 60 days of the request of the Service for such 
records; provide the Service with an index to the requested records, the 
name and address of a custodian located within the United States having 
control over the records, and the address where the records are located 
within 60 days of the Service's request for the records; and continue to 
maintain the records within the United States throughout the period of 
retention described in paragraph (g) of this section. For summons 
procedures with respect to records that have been moved to the United 
States, see sections 6038A(e), 7602, 7603, and 7604.


With respect to any material profit and loss statements required to be 
created (either under paragraph (c) of this section or under an 
agreement with the District Director), unless otherwise specified, ``120 
days'' shall be substituted for ``60 days'' in this paragraph (f)(2), 
and labels and text with respect to such statements must be in the 
English language.
    (3) Prior taxable years. The non-U.S. maintenance requirements 
described in paragraph (f)(2) of this section apply to records located 
outside the United States that were in existence on or after March 20, 
1990, without regard to the taxable year to which such records relate.
    (4) Scheduled production for high volume or other reasons. Upon a 
written request, for good cause shown, the District Director may grant 
an extension of the time for the production or translation of the 
requested documents. Such requests should be made within 30 days of the 
request for records by the Service. If an extension is needed because of 
the volume of records requested or the amount of translation requested, 
the District Director may allow production or translation to be 
scheduled over a period of time so that

[[Page 204]]

not all records need be produced or translated at the same time.
    (5) Required U.S. maintenance. The District Director (with the 
concurrence of the Assistant Commissioner (International)), may require, 
for cause, the maintenance within the United States of any records 
specified in paragraph (f)(1) of this section. Such a requirement will 
be imposed only if there exists a clear pattern of failure to maintain 
or timely produce the required records. The assessment of a monetary 
penalty under section 6038A(d) and Sec. 1.6038A-4 for failure to 
maintain records is not necessarily sufficient to require the 
maintenance of records within the United States.
    (g) Period of retention. Records required to be maintained by 
section 6038A(a) and this section shall be kept as long as they may be 
relevant or material to determining the correct tax treatment of any 
transaction between the reporting corporation and a related party, but 
in no case less than the applicable statute of limitations on assessment 
and collection with respect to the taxable year in which the transaction 
or item to which the records relate affects the U.S. tax liability of 
the reporting corporation. See section 6001 and the regulations 
thereunder.
    (h) Application of record maintenance rules to banks and other 
financial institutions. [Reserved]
    (i) Effective/applicability date--(1) In general. This section is 
generally applicable on December 10, 1990. However, records described in 
this section in existence on or after March 20, 1990, must be 
maintained, without regard to when the taxable year to which the records 
relate began. Paragraph (a)(3) Example 4 of this section is generally 
applicable for taxable years beginning after July 31, 2009.
    (2) Election to apply regulation to earlier taxable years. A person 
may elect to apply the provisions of paragraph (a)(3) Example 4 of this 
section to earlier taxable years in accordance with the rules set forth 
in Sec. 1.482-9(n)(2).

[T.D. 8353, 56 FR 28065, June 19, 1991; T.D. 8353, 56 FR 41792, Aug. 23, 
1991, as amended by T.D. 8611, 60 FR 41015, Aug. 11, 1995; T.D. 9278, 71 
FR 44518, Aug. 4, 2006; T.D. 9456, 74 FR 38875, Aug. 4, 2009]



Sec. 1.6038A-4  Monetary penalty.

    (a) Imposition of monetary penalty--(1) In general. If a reporting 
corporation fails to furnish the information described in Sec. 1.6038A-2 
within the time and manner prescribed in Sec. 1.6038A-2(d), fails to 
maintain or cause another to maintain records as required by 
Sec. 1.6038A-3, or (in the case of records maintained outside the United 
States) fails to meet the non-U.S. record maintenance requirements 
within the applicable time prescribed in Sec. 1.6038A-3(f), a penalty of 
$10,000 shall be assessed for each taxable year with respect to which 
such failure occurs. The filing of a substantially incomplete Form 5472 
constitutes a failure to file Form 5472. Where, however, the information 
described in Sec. 1.6038A-2(b)(3) through (5) is not required to be 
reported, a Form 5472 filed without such information is not a 
substantially incomplete Form 5472.
    (2) Liability for certain partnership transactions. A reporting 
corporation to which transactions engaged in by a partnership are 
attributed under Sec. 1.6038A-1(e)(2) is subject to the rules of this 
section to the extent failures occur with respect to the partnership 
transactions so attributed.
    (3) Calculation of monetary penalty. If a reporting corporation 
fails to maintain records as required by Sec. 1.6038A-3 of transactions 
with multiple related parties, the monetary penalty may be assessed for 
each failure to maintain records with respect to each related party. The 
monetary penalty, however, shall be imposed on a reporting corporation 
only once for a taxable year with respect to each related party for a 
failure to furnish the information required on Form 5472, for a failure 
to maintain or cause another to maintain records, or for a failure to 
comply with the non-U.S. maintenance requirements described in 
Sec. 1.6038A-3(f). An additional penalty for another failure may be 
imposed, however, under the rules of paragraph (d)(2) of this section. 
Thus, unless such failures continue after notification as described in 
paragraph (d) of this section, the maximum penalty under this paragraph 
with respect to each related party for all such failures in a taxable 
year is $10,000. The

[[Page 205]]

members of a group of corporations filing a consolidated return are 
jointly and severally liable for any monetary penalty that may be 
imposed under this section.
    (b) Reasonable cause--(1) In general. Certain failures may be 
excused for reasonable cause, including not timely filing Form 5472, not 
maintaining or causing another to maintain records as required by 
Sec. 1.6038A-3, and not complying with the non-U.S. maintenance 
requirements described in Sec. 1.6038A-3(f). If an affirmative showing 
is made that the taxpayer acted in good faith and there is reasonable 
cause for a failure that results in the assessment of the monetary 
penalty, the period during which reasonable cause exists shall be 
treated as beginning on the day reasonable cause is established and 
ending not earlier than the last day on which reasonable cause existed 
for any such failure. Additionally, the beginning of the 90-day period 
after mailing of a notice by the District Director or the Director of an 
Internal Revenue Service Center of a failure described in paragraph (d) 
of this section shall be treated as not earlier than the last day on 
which reasonable cause existed.
    (2) Affirmative showing required--(i) In general. To show that 
reasonable cause exists for purposes of paragraph (b)(1) of this 
section, the reporting corporation must make an affirmative showing of 
all the facts alleged as reasonable cause for the failure in a written 
statement containing a declaration that it is made under penalties of 
perjury. The statement must be filed with the District Director (in the 
case of failure to maintain or furnish requested information permitted 
to be maintained outside the United States within the time required 
under Sec. 1.6038A-3(f) or a failure to file Form 5472) or the Director 
of the Internal Revenue Service Center where the Form 5472 is required 
to be filed (in the case of failure to file Form 5472). The District 
Director or the Director of the Internal Revenue Service Center where 
the Form 5472 is required to be filed, as appropriate, shall determine 
whether the failure was due to reasonable cause, and if so, the period 
of time for which reasonable cause existed. If a return has been filed 
as required by Sec. 1.6038A-2 or records have been maintained as 
required by Sec. 1.6038A-3, except for an omission of, or error with 
respect to, some of the information required or a record to be 
maintained, the omission or error shall not constitute a failure for 
purposes of section 6038A(d) if the reporting corporation that filed the 
return establishes to the satisfaction of the District Director or the 
Director of the Internal Revenue Service Center that it has 
substantially complied with the filing of Form 5472 or the requirement 
to maintain records.
    (ii) Small corporations. The District Director shall apply the 
reasonable cause exception liberally in the case of a small corporation 
that had no knowledge of the requirements imposed by section 6038A; has 
limited presence in and contact with the United States; and promptly and 
fully complies with all requests by the District Director to file Form 
5472, and to furnish books, records, or other materials relevant to the 
reportable transaction. A small corporation is a corporation whose gross 
receipts for a taxable year are $20,000,000 or less.
    (iii) Facts and circumstances taken into account. The determination 
of whether a taxpayer acted with reasonable cause and in good faith is 
made on a case-by-case basis, taking into account all pertinent facts 
and circumstances. Circumstances that may indicate reasonable cause and 
good faith include an honest misunderstanding of fact or law that is 
reasonable in light of the experience and knowledge of the taxpayer. 
Isolated computational or transcriptional errors generally are not 
inconsistent with reasonable cause and good faith. Reliance upon an 
information return or on the advice of a professional (such as an 
attorney or accountant) does not necessarily demonstrate reasonable 
cause and good faith. Similarly, reasonable cause and good faith is not 
necessarily indicated by reliance on facts that, unknown to the 
taxpayer, are incorrect. Reliance on an information return, professional 
advice or other facts, however, constitutes reasonable cause and good 
faith if, under all the circumstances, the reliance was reasonable. A 
taxpayer, for example, may have reasonable cause for not filing a Form 
5472 or for not

[[Page 206]]

maintaining records under section 6038A if the taxpayer has a reasonable 
belief that it is not owned by a 25-percent foreign shareholder. A 
reasonable belief means that the taxpayer does not know or has no reason 
to know that it is owned by a 25-percent foreign shareholder. For 
example, a reporting corporation would not know or have reason to know 
that it is owned by a 25-percent foreign shareholder if its belief that 
it is not so owned is consistent with other information reported or 
otherwise furnished to or known by the reporting corporation. A taxpayer 
may have reasonable cause for not treating a foreign corporation as a 
related party for purposes of section 6038A where the foreign 
corporation is a related party solely by reason of Sec. 1.6038A-1(d)(3) 
(under the principles of section 482), and the taxpayer had a reasonable 
belief that its relationship with the foreign corporation did not meet 
the standards for related parties under section 482.
    (c) Failure to maintain records or to cause another to maintain 
records. A failure to maintain records or to cause another to maintain 
records is determined by the District Director upon the basis of the 
reporting corporation's overall compliance (including compliance with 
the non-U.S. maintenance requirements under Sec. 1.6038A-3(f)(2)) with 
the record maintenance requirements. It is not an item-by-item 
determination. Thus, for example, a failure to maintain a single or 
small number of items may not constitute a failure for purposes of 
section 6038A(d), unless the item or items are essential to the correct 
determination of transactions between the reporting corporation and any 
foreign related parties. The District Director shall notify the 
reporting corporation in writing of any determination that it has failed 
to comply with the record maintenance requirement.
    (d) Increase in penalty where failure continues after notification--
(1) In general. If any failure described in this section continues for 
more than 90 days after the day on which the District Director or the 
Director of the Internal Revenue Service Center where the Form 5472 is 
required to be filed mails notice of the failure to the reporting 
corporation, the reporting corporation shall pay a penalty (in addition 
to the penalty described in paragraph (a) of this section) of $10,000 
with respect to each related party for which a failure occurs for each 
30-day period during which the failure continues after the expiration of 
the 90-day period. Any uncompleted fraction of a 30-day period shall 
count as a 30-day period for purposes of this paragraph (d).
    (2) Additional penalty for another failure. An additional penalty 
for a taxable year may be imposed, however, if at a time subsequent to 
the time of the imposition of the monetary penalty described in 
paragraph (a) of this section, a second failure is determined and the 
second failure continues after notification under paragraph (d)(1) of 
this section. Thus, if a taxpayer fails to file Form 5472 and is 
assessed a monetary penalty and later, upon audit, is determined to have 
failed to maintain records, an additional penalty for the failure to 
maintain records may be assessed under the rules of this paragraph if 
the failure to maintain records continues after notification under this 
paragraph.
    (3) Cessation of accrual. The monetary penalty will cease to accrue 
if the reporting corporation either files Form 5472 (in the case of a 
failure to file Form 5472), furnishes information to substantially 
complete Form 5472, or demonstrates compliance with respect to the 
maintenance of records (in the case of a failure to maintain records) 
for the taxable year in which the examination occurs and subsequent 
years to the satisfaction of the District Director. The monetary penalty 
also will cease to accrue if requested information, documents, or 
records, kept outside the United States under the requirements of 
Sec. 1.6038A-3(f) and not produced within the time specified are 
produced or moved to the United States under the rules of paragraph 
(f)(2)(ii) of this section.
    (4) Continued failures. If a failure under this section relating to 
a taxable year beginning before July 11, 1989 occurs, and if the failure 
continues following 90 days after the notice of failure under this 
paragraph is sent, the amount of the additional penalty to be assessed 
under this paragraph is $10,000

[[Page 207]]

for each 30-day period beginning after November 5, 1990, during which 
the failure continues. There is no limitation on the amount of the 
monetary penalty that may be assessed after November 5, 1990.
    (e) Other penalties. For criminal penalties for failure to file a 
return and filing a false or fraudulent return, see sections 7203 and 
7206 of the Code. For the penalty relating to an underpayment of tax, 
see section 6662.
    (f) Examples. The following examples illustrate the rules of this 
section.

    Example 1. Failure to file Form 5472. Corp X, a U.S. reporting 
corporation, engages in related party transactions with FC. Corp X does 
not timely file a Form 5472 or maintain records relating to the 
transactions with FC for Year 1 or subsequent years. The Service Center 
with which Corp X files its income tax return imposes a $10,000 penalty 
for each of Years 1, 2, and 3 under section 6038A (d) and this section 
for failure to provide information as required on Form 5472 and mails a 
notice of failure to provide inrormation. Corp X does not file Form 
5472. Ninety days following the mailing of the notice of failure to Corp 
X an additional penaly of $10,000 is imposed. On the 135th day following 
the mailing of the notice of failure, Corp X files Form 5472 for Years 
1, 2, and 3. The total penalty owed by Corp X for Year 1 is $30,000. 
($10,000 for not timely filing Form 5472, $10,000 for the first 30-day 
period following the expiration of the 90-day period, and $10,000 for 
the fraction of the second 30-day period). The penalty for Years 2 and 3 
for the failure to file Form 5472 is also $30,000 for each year, 
calculated in the same manner as for Year 1. The total penalty for 
failure to file Form 5472 for Years 1, 2, and 3 is $90,000.
    Example 2. Failure to maintain records. Assume the same facts as in 
Example 1. In Year 5, Corp X is audited for Years 1 through 3. Corp X 
has not been maintaining records relating to the transactions with FC. 
The District Director issues a notice of failure to maintain records. 
Corp X has already been subject to the monetary penalty of $10,000 for 
each of Years 1, 2, and 3 for failure to file Form 5472 and, therefore, 
a monetary penalty under paragraph (a) of this section for failure to 
maintain records is not assessed. However, an additional penalty is 
assessed after the 90th day following the mailing of the notice of 
failure to maintain records. Corp X develops a record maintenance system 
as required by section 6038A and Sec. 1.6038A-3. On the 180th day 
following the mailing of the notice of failure to maintain records, Corp 
X demonstrates to the satisfaction of the District Director that the 
newly developed record maintenance system will comply with the 
requirements of Sec. 1.6038A-3 and the increase in the monetary penalty 
after notification ceases to accrue. The additional penalty for failure 
to maintain records is $30,000. An additional penalty of $30,000 per 
year is assessed for each of years 2 and 3 for the failure to maintain 
records for a total of $90,000.

    (g) Effective dates. For effective dates for this section, see 
Sec. 1.6038A-1(n).

[T.D. 8353, 56 FR 28072, June 19, 1991, as amended by T.D. 9707, 79 FR 
77389, Dec. 24, 2014]



Sec. 1.6038A-5  Authorization of agent.

    (a) Failure to authorize. The rules of Sec. 1.6038A-7 shall apply to 
any transaction between a foreign related party and a reporting 
corporation (including any transaction engaged in by a partnership that 
is attributed to the reporting corporation under Sec. 1.6038A-1(e)(2)), 
unless the foreign related party authorizes (in the manner described in 
paragraph (b) of this section) the reporting corporation to act as its 
limited agent solely for purposes of sections 7602, 7603, and 7604 with 
respect to any request by the Service to examine records or produce 
testimony that may be relevant to the tax treatment of such a 
transaction or with respect to any summons by the Service for such 
records or testimony. The fact that a reporting corporation is 
authorized to act as an agent for a foreign related party is to be 
disregarded for purposes of determining whether the foreign related 
party either has a trade or business in the United States for purposes 
of the Code or a permanent establishment or fixed base in the United 
States for purposes of an income tax treaty.
    (b) Authorization by related party--(1) In general. Upon request by 
the Service, a foreign related party shall authorize as its agent 
(solely for purposes of sections 7602, 7603, and 7604) the reporting 
corporation with which it engages in transactions. The authorization 
must be signed by the foreign related party or an officer of the foreign 
related party possessing the authority to authorize an agent for 
purposes of Rule 4 of the Federal Rules of Civil Procedure. The 
reporting corporation will accept

[[Page 208]]

this appointment by providing a statement to that effect, signed by an 
officer of the reporting corporation possessing the authority to accept 
such an appointment. The agency shall be effective at all times. For 
taxable years beginning after July 10, 1989, the authorization and 
acceptance must be provided to the Service within 30 days of a request 
by the Service to the reporting corporation for such an authorization. 
The authorization must contain a heading and statement as set forth 
below. A foreign government is not subject to the authorization of agent 
requirement.

                         AUTHORIZATION OF AGENT

    ``[Name of foreign related party] hereby expressly authorizes [name 
of reporting corporation] to act as its agent solely for purposes of 
sections 7602, 7603, and 7604 of the Internal Revenue Code with respect 
to any request to examine records or produce testimony that may be 
relevant to the U.S. income tax treatment of any transaction between 
[name of the above-named foreign related party] and [name of reporting 
corporation] or with respect to any summons for such records or 
testimony.
________________________________________________________________________
Signature of or for [name of foreign related party]
________________________________________________________________________
(Title)
________________________________________________________________________
(Date)
    (If signed by a corporate officer, partner, or fiduciary on behalf 
of a foreign related party: I certify that I have the authority to 
execute this authorization of agent to act on behalf of [name of foreign 
related party]).
________________________________________________________________________
    Type or print your name below if signing for a foreign related party 
that is not an individual.
________________________________________________________________________
    [Name of reporting corporation] accepts this appointment to act as 
agent for [name of foreign related party] for the above purpose.
________________________________________________________________________
Signature for (Name of Reporting Corporation]
________________________________________________________________________
(Title)
________________________________________________________________________
(Date)
    I certify that I have the authority to accept this appointment to 
act as agent on behalf of (name of foreign related party] and agree to 
accept service of process for the above purposes.
    Type or print your name below.
________________________________________________________________________

    (2) Authorization for prior years. A foreign related party shall 
authorize a reporting corporation to act as its agent with respect to 
taxable years for which a Form 5472 is required to be filed prior to the 
date on which the final regulations under section 6038A are published by 
providing the above executed authorization of agent within 30 days of a 
request by the Service for such an authorization.
    (c) Foreign affiliated groups--(1) In general. A foreign corporation 
that has effective legal authority to make the authorization of agent 
under paragraph (b) of this section on behalf of any group of foreign 
related parties may execute such an authorization for any members of the 
group. A single authorization may be made on a consolidated basis. In 
such a case, the common parent must attach a schedule to the 
authorization of agent stating which members of the group would 
otherwise be required to separately authorize the reporting corporation 
as agent. The schedule must provide the name, address, relationship to 
the reporting corporation, and U.S. taxpayer identification number, if 
applicable, of each member.
    (2) Application of noncompliance penalty adjustment. In 
circumstances where a consolidated authorization of agent has been 
executed, if the agency authorization for any member of the group is not 
legally effective for purposes of sections 7602, 7603, and 7604, the 
noncompliance penalty adjustment under section 6038A(e) and 
Sec. 1.6038A-7 shall apply.
    (d) Legal effect of authorization of agent. The legal consequences 
of a foreign related party authorizing a reporting corporation to act as 
its agent for purposes of sections 7602, 7603, and 7604 of the Code are 
as follows.
    (1) Agent for purposes of commencing judicial proceedings. A 
reporting corporation that is authorized by a foreign related party to 
act as its agent for purposes of sections 7602, 7603, and 7604 
(including service of process) is also the agent of the foreign related 
party for purposes of--
    (i) The filing of a petition to quash under section 6038A(e)(4)(A) 
or a petition to review an Internal Revenue

[[Page 209]]

Service determination of noncompliance under section 6038A(e)(4)(B), and
    (ii) The commencement of a judicial proceeding to enforce a summons 
under section 7604, whether commenced in conjunction with a petition to 
quash under section 6038A(e)(4)(A) or commenced as a separate proceeding 
in the federal district court for the district in which the person to 
whom the summons is issued resides or is found.
    (2) Foreign related party found where reporting corporation found. 
For any purposes relating to sections 7602, 7603, or 7604 (including 
service of process), a foreign related party that authorizes a reporting 
corporation to act on its behalf under section 6038A(e)(1) and this 
section may be found anywhere where the reporting corporation has 
residence or is found.
    (e) Successors in interest. A successor in interest to a related 
party must execute the authorization of agent as described in paragraph 
(b) of this section.
    (f) Deemed compliance--(1) In general. In exceptional circumstances, 
the District Director may treat a reporting corporation as authorized to 
act as agent for a related party for purposes of sections 7602, 7603, 
and 7604 in the absence of an actual agency appointment by the foreign 
related party, in circumstances where the actual absence of an 
appointment is reasonable. Factors to be considered include--
    (i) If neither the reporting corporation nor the other party to the 
transaction knew or had reason to know that the two parties were related 
at the time of the transaction, and
    (ii) The extent to which the taxpayer establishes to the 
satisfaction of the District Director that all transactions between the 
reporting corporation and the related party were on arm's length terms 
and did not involve the participation of any known related party.
    (2) Reason to know. Whether the reporting corporation or other party 
had reason to know that the two parties were related at the time of the 
transaction will be determined by all the facts and circumstances.
    (3) Effect of deemed compliance. If a reporting corporation is 
deemed under this paragraph (f) to have been authorized to act as an 
agent for a foreign related party for purposes of sections 7602, 7603, 
and 7604, such deemed compliance is applicable only for that particular 
transaction and other reportable transactions entered into prior to the 
time when the reporting corporation knew or had reason to know that the 
related party, in fact, was related. The noncompliance rule of 
Sec. 1.6038A-7 shall apply to any transaction subsequent to that time 
with the same related party, unless the related party actually 
authorizes the reporting corporation to act as its agent under paragraph 
(a) of this section. In addition, the record maintenance requirements of 
Sec. 1.6038A-3 will apply to all subsequent transactions and, with 
respect to prior transactions, will apply to relevant records in 
existence at the time the relationship was discovered.
    (g) Effective dates. For effective dates for this section, see 
Sec. 1.6038A-1(n).

[T.D. 8353, 56 FR 28073, June 19, 1991; T.D. 8353, 56 FR 41792, Aug. 23, 
1991]



Sec. 1.6038A-6  Failure to furnish information.

    (a) In general. The rules of Sec. 1.6038A-7 may be applied with 
respect to a transaction between a foreign related party and the 
reporting corporation (including any transaction engaged in by a 
partnership that is attributed to the reporting corporation under 
Sec. 1.6038A-1(e)(2)) if a summons is issued to the reporting 
corporation to produce any records or testimony, either directly or as 
agent for such related party, to determine the correct treatment under 
title 1 of the Code of such a transaction between the reporting 
corporation and the related party; and if--
    (1)(i) The summons is not quashed in a proceeding, if any, begun 
under section 6038A(e)(4) and is not determined to be invalid in a 
proceeding, if any, begun under section 7604 to enforce such summons; 
and
    (ii) The reporting corporation does not substantially and timely 
comply with the summons, and the District Director has sent by certified 
or registered mail a notice under section 6038A(e)(2)(C) to the 
reporting corporation that it has not so complied; or
    (2) The reporting corporation fails to maintain or to cause another 
to maintain records as required by Sec. 1.6038A-3,

[[Page 210]]

and by reason of that failure, the summons is quashed in a proceeding 
under section 6038A(e)(4) or in a proceeding begun under section 7604 to 
enforce the summons, or the reporting corporation is not able to provide 
the records requested in the summons.
    (b) Coordination with treaties. Where records of a related party are 
obtainable on a timely and efficient basis under information exchange 
procedures provided under a tax treaty or tax information exchange 
agreement (TIEA), the Service generally will make use of such procedures 
before issuing a summons. The absence or pendency of a treaty or TIEA 
request may not be asserted as grounds for refusing to comply with a 
summons or as a defense against the assertion of the noncompliance 
penalty adjustment under Sec. 1.6038A-7. For purposes of this paragraph, 
information is available on a timely and efficient basis if it can be 
obtained within 180 days of the request.
    (c) Enforcement proceeding not required. The District Director is 
not required to begin an enforcement proceeding to enforce the summons 
in order to apply the rules of Sec. 1.6038A-7.
    (d) De minimis failure. Where a reporting corporation's failure to 
comply with the requirement to furnish information under this section is 
de minimis, the District Director, in the exercise of discretion, may 
choose not to apply the noncompliance penalty. Thus, for example, in 
cases where a particular document or group of documents is not furnished 
upon request or summons, the District Director (in the District 
Director's sole discretion), may choose not to apply the noncompliance 
penalty if the District Director deems the document or documents not to 
have significant or sufficient value in the determination of the 
correctness of the tax treatment of the related party transaction.
    (e) Suspension of statute of limitations. If the reporting 
corporation brings an action under section 6038A(e)(4)(A) (proceeding to 
quash) or (e)(4)(B) (review of secretarial determination of 
noncompliance), the running of any period of limitation under section 
6501 (relating to assessment and collection of tax) or under section 
6531 (relating to criminal prosecutions) for the taxable year or years 
to which the summons that is the subject of such proceeding relates 
shall be suspended for the period during which such proceeding, and 
appeals therein, are pending. In no event shall any such period expire 
before the 90th day after the day on which there is a final 
determination in such proceeding.
    (f) Effective dates. For effective dates for this section, see 
Sec. 1.6038A-1(n).

[T.D. 8353, 56 FR 28075, June 19, 1991]



Sec. 1.6038A-7  Noncompliance.

    (a) In general. In the case of any failure described in 
Sec. 1.6038A-5 or Sec. 1.6038A-6, the rules of this Sec. 1.6038A-7 apply 
to the reporting corporation. In such a case--
    (1) The amount of the deduction allowed under subtitle A for any 
amount paid or incurred by the reporting corporation to the related 
party in connection with such transaction, and
    (2) The cost to the reporting corporation of any property acquired 
in such transaction from the related party or transferred by such 
corporation in such transaction to the related party, may be determined 
by the District Director.
    (b) Determination of the amount. The amount of the deduction or the 
cost to the reporting corporation shall be the amount determined by the 
District Director (in the District Director's sole discretion) from the 
District Director's own knowledge or from such information as the 
District Director may choose to obtain through testimony or otherwise. 
The District Director shall consider any information or materials that 
have been submitted by the reporting corporation or a foreign related 
party. The District Director, however, may disregard any information, 
documents, or records submitted by the reporting corporation or the 
related party if (in the District Director's sole discretion) the 
District Director deems that they are insufficiently probative of the 
relevant facts.
    (c) Separate application. If the noncompliance penalty of this 
section applies with respect to transactions with a related party of the 
reporting corporation, it will not be applied with respect to any other 
related parties of the reporting corporation solely upon

[[Page 211]]

the basis of that failure. Thus, for example, if a reporting corporation 
engages in transactions with related party A and related party B, and 
the reporting corporation does not respond to a summons for records 
related to the transactions between the reporting corporation and 
related party A, the noncompliance penalty imposed as a result of such 
failure will not apply to the transactions between the reporting 
corporation and related party B. If a separate summons is issued for 
records relating to the transactions between the reporting corporation 
and related party B and the reporting corporation does not produce such 
records, the noncompliance penalty may be applied to those transactions.
    (d) Effective dates. For effective dates for this section, see 
Sec. 1.6038A-1(n).

[T.D. 8353, 56 FR 28075, June 19, 1991]



Sec. 1.6038B-1  Reporting of certain transfers to foreign corporations.

    (a) Purpose and scope. This section sets forth information reporting 
requirements under section 6038B concerning certain transfers of 
property to foreign corporations. Paragraph (b) of this section provides 
general rules explaining when and how to carry out the reporting 
required under section 6038B with respect to the transfers to foreign 
corporations. Paragraph (c) of this section and Sec. 1.6038B-1T(d) 
specify the information that is required to be reported with respect to 
certain transfers of property that are described in section 
6038B(a)(1)(A) and 367(d), respectively. Section 1.6038B-1(e) describes 
the filing requirements for property transfers described in section 
367(e). Paragraph (f) of this section sets forth the consequences of a 
failure to comply with the requirements of section 6038B and this 
section. For effective dates, see paragraph (g) of this section. For 
rules regarding transfers to foreign partnerships, see section 
6038B(a)(1)(B) and any regulations thereunder.
    (b) Time and manner of reporting--(1) In general--(i) Reporting 
procedure. Except for stock or securities qualifying under the special 
reporting rule of Sec. 1.6038B-1(b)(2), and certain exchanges described 
in section 354 or 356 (listed below), any U.S. person that makes a 
transfer described in section 6038B(a)(1)(A), 367(d) or (e), is required 
to report pursuant to section 6038B and the rules of Sec. 1.6038B-1 and 
must attach the required information to Form 926, ``Return by a U.S. 
Transferor of Property to a Foreign Corporation.'' In addition, if the 
U.S. person files a statement under Sec. 1.367(a)-3(d)(2)(vi)(C), a gain 
recognition agreement under Sec. 1.367(a)-8, or a liquidation document 
under Sec. 1.367(e)-2(b), such person must comply in all material 
respects with the requirements of such section pursuant to the terms of 
the statement, gain recognition agreement, or liquidation document, as 
applicable, in order to satisfy a reporting obligation under section 
6038B. For special rules regarding cash transfers made in tax years 
beginning after February 5, 1999, see paragraphs (b)(3) and (g) of this 
section. For purposes of determining a U.S. transferor that is subject 
to section 6038B, the rules of Secs. 1.367(a)-1(c) and 1.367(a)-3(d) 
shall apply with respect to a transfer described in section 367(a), and 
the rules of Sec. 1.367(a)-1(c) shall apply with respect to a transfer 
described in section 367(d). Additionally, if in an exchange described 
in section 354 or 356, a U.S. person exchanges stock or securities of a 
foreign corporation in a reorganization described in section 
368(a)(1)(E), or a U.S. person exchanges stock or securities of a 
domestic or foreign corporation pursuant to an asset reorganization 
described in section 368(a)(1) (involving a transfer of assets under 
section 361) that is not treated as an indirect stock transfer under 
Sec. 1.367(a)-3(d), then the U.S. person exchanging stock or securities 
is not required to report under section 6038B. Notwithstanding any 
statement to the contrary on Form 926, the form and attachments must be 
attached to, and filed by the due date (including extensions) of the 
transferor's income tax return for the taxable year that includes the 
date of the transfer (as defined in Sec. 1.6038B-1T(b)(4)). For taxable 
years beginning before January 1, 2003, any attachment to Form 926 
required under the rules of this section is filed subject to the 
transferor's declaration under penalties of perjury on Form 926 that the 
information submitted is true, correct and complete to the best of the 
transferor's knowledge and belief. For

[[Page 212]]

taxable years beginning after December 31, 2002, Form 926 and any 
attachments shall be verified by signing the income tax return with 
which the form and attachments are filed.
    (ii) Reporting by corporate transferor. For transfers by 
corporations in taxable years beginning before January 1, 2003, Form 926 
must be signed by an authorized officer of the corporation if the 
transferor is not a member of an affiliated group under section 
1504(a)(1) that files a consolidated Federal income tax return and by an 
authorized officer of the common parent corporation if the transferor is 
a member of such an affiliated group. For transfers by corporations in 
taxable years beginning after December 31, 2002, Form 926 shall be 
verified by signing the income tax return to which the form is attached.
    (iii) Transfers of jointly-owned property. If two or more persons 
transfer jointly-owned property to a foreign corporation in a transfer 
with respect to which a notice is required under this section, then each 
person must report with respect to the particular interest transferred, 
specifying the nature and extent of the interest. However, a husband and 
wife who jointly file a single Federal income tax return may file a 
single Form 926 with their tax return.
    (2) Exceptions and special rules for transfers of stock or 
securities under section 367(a)--(i) Transfers on or after July 20, 
1998. A U.S. person that transfers stock or securities on or after July 
20, 1998 in a transaction described in section 6038B(a)(1)(A) will be 
considered to have satisfied the reporting requirement under section 
6038B and paragraph (b)(1) of this section if either--
    (A) The U.S. transferor owned less than 5 percent of both the total 
voting power and the total value of the transferee foreign corporation 
immediately after the transfer (taking into account the attribution 
rules of section 318 as modified by section 958(b)), and either:
    (1) The U.S. transferor qualified for nonrecognition treatment with 
respect to the transfer (i.e., the transfer was not taxable under 
Secs. 1.367(a)-3(b) or (c)); or
    (2) The U.S. transferor is a tax-exempt entity and the income was 
not unrelated business income; or
    (3) The transfer was taxable to the U.S. transferor under 
Sec. 1.367(a)-3(c), and such person properly reported the income from 
the transfer on its timely-filed (including extensions) Federal income 
tax return for the taxable year that includes the date of the transfer; 
or
    (4) The transfer is considered to be to a foreign corporation solely 
by reason of Sec. 1.83-6(d)(1) and the fair market value of the property 
transferred did not exceed $100,000; or
    (B) The U.S. transferor owned 5 percent or more of the total voting 
power or the total value of the transferee foreign corporation 
immediately after the transfer (taking into account the attribution 
rules of section 318 as modified by section 958(b)) and either:
    (1) Except as provided in paragraph (b)(2)(iii) of this section, the 
U.S. transferor (or one or more successors) filed an initial gain 
recognition agreement under Sec. 1.367(a)-8, and filed Form 926 in 
accordance with paragraph (b)(2)(iv) of this section; or
    (2) The transferor is a tax-exempt entity and the income was not 
unrelated business income; or
    (3) The transferor properly reported the income from the transfer on 
its timely-filed (including extensions) Federal income tax return for 
the taxable year that includes the date of the transfer; or
    (4) The transfer is considered to be to a foreign corporation solely 
by reason of Sec. 1.83-6(d)(1) and the fair market value of the property 
transferred did not exceed $100,000.
    (ii) Transfers before July 20, 1998. With respect to transfers 
occurring after December 16, 1987, and prior to July 20, 1998, a U.S. 
transferor that transferred U.S. or foreign stock or securities in a 
transfer described in section 367(a) is not subject to section 6038B if 
such person is described in paragraph (b)(2)(i)(A) of this section.
    (iii) Timely filed initial gain recognition agreement. Paragraph 
(b)(2)(i)(B)(1) of this section will not apply unless the initial gain 
recognition agreement is timely filed as determined under Sec. 1.367(a)-
8(d)(1), but for purposes of this section, determined without regard to 
Sec. 1.367(a)-8(p). However, see paragraph

[[Page 213]]

(f)(3) of this section for certain relief that may be available.
    (iv) Satisfaction of section 6038B reporting if a gain recognition 
agreement is timely filed. If the U.S. transferor is described in 
paragraph (b)(2)(i)(B)(1) of this section and is not otherwise required 
to file a Form 926 with respect to a transfer of assets other than the 
stock or securities to the transferee foreign corporation, the 
requirements of this section are satisfied with respect to the transfer 
of the stock or securities by completing Part I and Part II of Form 926, 
noting on the Form 926 that a gain recognition agreement is being filed 
pursuant to Sec. 1.367(a)-8; reporting on the Form 926 the fair market 
value, adjusted tax basis, and gain recognized with respect to the 
transferred stock or securities; submitting on the Form 926 any other 
information that Form 926, its accompanying instructions, or other 
applicable guidance require to be submitted with respect to the transfer 
of the stock or securities; and attaching a signed copy of the Form 926 
to its timely filed U.S. income tax return (including extensions) for 
the year of the transfer. If the U.S. transferor is required to file 
Form 926 with respect to a transfer of assets in addition to the stock 
or securities, the requirements of this section are satisfied with 
respect to the transfer of the stock or securities by noting on the Form 
926 that a gain recognition agreement is being filed pursuant to 
Sec. 1.367(a)-8; reporting on the Form 926 the fair market value, 
adjusted tax basis, and gain recognized with respect to the transferred 
stock or securities; and submitting on the Form 926 any other 
information that Form 926, its accompanying instructions, or other 
applicable guidance require to be submitted with respect to the transfer 
of the stock or securities.
    (3) Special rule for transfers of cash. A U.S. person that transfers 
cash to a foreign corporation in a transfer described in section 
6038B(a)(1)(A) must report the transfer if--
    (i) Immediately after the transfer such person holds directly, 
indirectly, or by attribution (determined under the rules of section 
318(a), as modified by section 6038(e)(2)) at least 10 percent of the 
total voting power or the total value of the foreign corporation; or
    (ii) The amount of cash transferred by such person or any related 
person (determined under section 267(b)(1) through (3) and (10) through 
(12)) to such foreign corporation during the 12-month period ending on 
the date of the transfer exceeds $100,000.
    (4) [Reserved]. For further guidance, see Sec. 1.6038B-1T(b)(4).
    (c) Information required with respect to transfers described in 
section 6038B(a)(1)(A). A United States person that transfers property 
to a foreign corporation in an exchange described in section 
6038B(a)(1)(A) (including cash transferred in taxable years beginning 
after February 5, 1999, and other unappreciated property) must provide 
the following information, in paragraphs labeled to correspond with the 
number or letter set forth in this paragraph (c) and Sec. 1.6038B-
1T(c)(1) through (5). If a particular item is not applicable to the 
subject transfer, the taxpayer must list its heading and state that it 
is not applicable. For special rules applicable to transfers of stock or 
securities, see paragraph (b)(2)(ii) of this section.
    (1) through (4) introductory text [Reserved]. For further guidance, 
see Sec. 1.6038B-1T(c)(1) through (4) introductory text.
    (i) Active business property. Describe any transferred property that 
qualifies under Sec. 1.367(a)-2(a)(2). Provide here a general 
description of the business conducted (or to be conducted) by the 
transferee, including the location of the business, the number of its 
employees, the nature of the business, and copies of the most recently 
prepared balance sheet and profit and loss statement. Property listed 
within this category may be identified by general type. For example, 
upon the transfer of the assets of a manufacturing operation, a 
reasonable description of the property to be used in the business might 
include the categories of office equipment and supplies, computers and 
related equipment, motor vehicles, and several major categories of 
manufacturing equipment. However, any property that is includible in 
both paragraphs (c)(4)(i) and (iii) of this section

[[Page 214]]

(property subject to depreciation recapture under Sec. 1.367(a)-4(a)) 
must be identified in the manner required in paragraph (c)(4)(iii) of 
this section. If property is considered to be transferred for use in the 
active conduct of a trade or business under a special rule in paragraph 
(e), (f), or (g) of Sec. 1.367(a)-2, specify the applicable rule and 
provide information supporting the application of the rule.
    (ii) Stock or securities. Describe any transferred stock or 
securities, including the class or type, amount, and characteristics of 
the transferred stock or securities, as well as the name, address, place 
of incorporation, and general description of the corporation issuing the 
stock or securities.
    (iii) Depreciated property. Describe any property that is subject to 
depreciation recapture under Sec. 1.367(a)-4(a). Property within this 
category must be separately identified to the same extent as was 
required for purposes of the previously claimed depreciation deduction. 
Specify with respect to each such asset the relevant recapture 
provision, the number of months that such property was in use within the 
United States, the total number of months the property was in use, the 
fair market value of the property, a schedule of the depreciation 
deduction taken with respect to the property, and a calculation of the 
amount of depreciation required to be recaptured.
    (iv) Property not transferred for use in the active conduct of a 
trade or business. Describe any property that is eligible property, as 
defined in Sec. 1.367(a)-2(b) taking into account the application of 
Sec. 1.367(a)-2(c), that was transferred to the foreign corporation but 
not for use in the active conduct of a trade or business outside the 
United States (and was therefore not listed under paragraph (c)(4)(i) of 
this section).
    (v) Property transferred under compulsion. If property qualifies for 
the exception of Sec. 1.367(a)-2(a)(2) under the rules of paragraph (h) 
of that section, provide information supporting the claimed application 
of such exception.
    (vi) Certain ineligible property. Describe any property that is 
described in Sec. 1.367(a)-2(c) and that therefore cannot qualify under 
Sec. 1.367(a)-2(a)(2) regardless of its use in the active conduct of a 
trade or business outside of the United States. The description must be 
divided into the relevant categories, as follows:
    (A) Inventory, etc. Property described in Sec. 1.367(a)-2(c)(1);
    (B) Installment obligations, etc. Property described in 
Sec. 1.367(a)-2(c)(2);
    (C) Foreign currency, etc. Property described in Sec. 1.367(a)-
2(c)(3); and
    (D) Leased property. Property described in Sec. 1.367(a)-2(c)(4).
    (vii) Other property that is ineligible property. Describe any 
property, other than property described in Sec. 1.367(a)-2(c), that 
cannot qualify under Sec. 1.367(a)-2(a)(2) regardless of its use in the 
active conduct of a trade or business outside of the United States and 
that is not subject to the rules of section 367(d) under Sec. 1.367(a)-
1(b)(5) (treatment of certain property as subject to section 367(d)). 
Each item of property must be separately identified.
    (viii) [Reserved]. For further guidance, see Sec. 1.6038B-
1T(c)(4)(viii).
    (5) Transfer of foreign branch with previously deducted losses. If 
the property transferred is property of a foreign branch with previously 
deducted losses subject to Secs. 1.367(a)-6 and -6T, provide the 
following information:
    (i) through (iv) [Reserved]. For further information, see 
Sec. 1.6038B-1T(c)(5)(i) through (iv).
    (6) Transfers subject to section 367(a)(5)--(i) In general. This 
paragraph (c)(6) applies to a domestic corporation (U.S. transferor) 
that transfers section 367(a) property (as defined in Sec. 1.367(a)-
7(f)(10)) to a foreign corporation in a section 361 exchange (as defined 
in Sec. 1.367(a)-7(f)(8)) and to which the provisions of Sec. 1.367(a)-
7(c) apply. Paragraph (c)(6)(ii) of this section establishes the time 
and manner for the U.S. transferor to elect to apply the provisions of 
Sec. 1.367(a)-7(c). Paragraph (c)(6)(iii) of this section establishes 
the manner for the U.S. transferor to satisfy the requirement of 
Sec. 1.367(a)-7(c)(4).
    (ii) Election. The U.S. transferor elects to apply the provisions of 
Sec. 1.367(a)-7(c) by including a statement entitled, ``ELECTION TO 
APPLY EXCEPTION UNDER Sec. 1.367(a)-7(c),'' with its timely filed return 
(within the meaning of Sec. 1.367(a)-7(f)(12)) for the

[[Page 215]]

taxable year during which the reorganization occurs and that includes 
the information described in paragraphs (c)(6)(ii)(A), (c)(6)(ii)(B), 
(c)(6)(ii)(C), (c)(6)(ii)(D), (c)(6)(ii)(E), (c)(6)(ii)(F), 
(c)(6)(ii)(G), and (c)(6)(ii)(H) of this section. See Sec. 1.367(a)-
7(c)(5)(ii) for the statement required to be filed by a control group 
member (as defined in Sec. 1.367(a)-7(f)(1)) or final distributee (as 
defined in Sec. 1.367(a)-7(d)).
    (A) The name and taxpayer identification number (if any) of each 
control group member and final distributee (if any), the foreign 
acquiring corporation, and in the case of a triangular reorganization 
(within the meaning of Sec. 1.358-6(b)(2)) the corporation that controls 
the foreign acquiring corporation, and the ownership interest percentage 
(as defined in Sec. 1.367(a)-7(f)(7)) in the U.S. transferor of each 
control group member.
    (B) A calculation of the gain recognized (if any) by the U.S. 
transferor under Sec. 1.367(a)-7(c)(2)(i) and (c)(2)(ii), and the basis 
adjustments (if any) required to be made by each control group member 
under Sec. 1.367(a)-7(c)(3).
    (C) The date on which the U.S. transferor and each control group 
member or final distributee entered into the written agreement described 
in Sec. 1.367(a)-7(c)(5)(iv).
    (D) The amount of any deductible liability (as defined by 
Sec. 1.367(a)-7(f)(2)).
    (E) The fair market value (as defined by Sec. 1.367(a)-7(f)(3)) of 
property transferred to the foreign acquiring corporation in the section 
361 exchange.
    (F) The inside basis (as defined by Sec. 1.367(a)-7(f)(4)).
    (G) The inside gain (as defined by Sec. 1.367(a)-7(f)(5)).
    (H) The section 367(a) percentage (as defined by Sec. 1.367(a)-
7(f)(9)).
    (iii) Agreement to amend U.S. transferor's tax return. The U.S. 
transferor complies with the requirement of Sec. 1.367(a)-7(c)(4)(i) by 
attaching a statement to its timely filed return (within the meaning of 
Sec. 1.367(a)-7(f)(12)) for the taxable year in which the reorganization 
occurs, entitled ``STATEMENT UNDER Sec. 1.367(a)-7(c)(4) FOR TRANSFERS 
OF ASSETS TO A FOREIGN CORPORATION IN A SECTION 361 EXCHANGE.'' The 
statement must certify that if a significant amount of the section 
367(a) property received by the foreign acquiring corporation from the 
U.S. transferor in the section 361 exchange is disposed of, directly or 
indirectly, in one or more related transactions described in paragraph 
(c)(6)(iii)(B) of this section occurring within the sixty (60) month 
period that begins on the date of distribution or transfer (within the 
meaning of Sec. 1.381(b)-1(b)), then the exception provided in 
Sec. 1.367(a)-7(c) will not apply to the section 361 exchange. 
Accordingly, the U.S. transferor will recognize the gain realized but 
not recognized in the section 361 exchange, computed as if the exception 
provided in Sec. 1.367(a)-7(c) had never applied. A U.S. income tax 
return (or amended U.S. income tax return, as the case may be) for the 
year in which the reorganization occurred reporting the gain must be 
filed. If the section 361 exchange occurs in connection with a 
triangular reorganization (within the meaning of Sec. 1.358-6(b)(2)) and 
the corporation that controls the foreign acquiring corporation is 
foreign, an indirect disposition of the section 367(a) property includes 
the disposition by such controlling foreign corporation of the stock of 
the foreign acquiring corporation.
    (A) Disposition of a significant amount--(1) General rule. Except as 
provided in paragraphs (c)(6)(iii)(A)(2) and (c)(6)(iii)(A)(3) of this 
section, for purposes of this paragraph (c)(6)(iii), a disposition of a 
significant amount occurs if, in one or more related transactions, the 
foreign acquiring corporation disposes of an amount of the section 
367(a) property received from the U.S. transferor in the section 361 
exchange that is greater than 40 percent of the fair market value of all 
of the section 367(a) property transferred in the section 361 exchange.
    (2) Exception for certain nonrecognition exchanges. Section 367(a) 
property that is subsequently transferred (retransferred property) 
pursuant to a nonrecognition provision is not treated as disposed of for 
purposes of paragraph (c)(6)(iii)(A)(1) of this section, provided such 
transfer satisfies, and is treated in a manner consistent with the 
principles underlying Sec. 1.367(a)-8(k). Thus, for example, if section 
367(a) property is subsequently transferred to a foreign

[[Page 216]]

corporation in exchange solely for stock in a transaction described in 
section 351, such retransferred property is not treated as disposed of 
for purposes of paragraph (c)(6)(iii)(A)(1) of this section; in such a 
case, however, a subsequent disposition of either the retransferred 
property by the transferee foreign corporation, or of the stock of the 
transferee foreign corporation received in exchange for the 
retransferred property, is subject to the provisions of paragraph 
(c)(6)(iii)(A)(1) of this section.
    (3) Exception for dispositions occurring in the ordinary course of 
business. Dispositions of section 367(a) property described in section 
1221(a)(2) occurring in the ordinary course of business of the foreign 
acquiring corporation are not treated as disposed of for purposes of 
paragraph (c)(6)(iii)(A)(1) of this section.
    (B) Gain recognition transaction--(1) General rule. A transaction is 
described in this paragraph (c)(6)(iii)(B) if the transaction is entered 
into with a principal purpose of avoiding the U.S. tax that would have 
been imposed on the U.S. transferor on the disposition of the property 
transferred to the foreign acquiring corporation in the section 361 
exchange. A disposition may have a principal purpose of tax avoidance 
even if the tax avoidance purpose is outweighed by other purposes when 
taken together.
    (2) Presumptive tax avoidance. For purposes of this paragraph 
(c)(6)(iii)(B), the principal purpose of the foreign acquiring 
corporation's disposition of a significant amount of the section 367(a) 
property within the two-year period that begins on the date of 
distribution or transfer (within the meaning of Sec. 1.381(b)-1(b)) 
(whether in a recognition or nonrecognition transaction) will be 
presumed to be the avoidance of the U.S. tax that would have been 
imposed on the U.S. transferor on the disposition of the property 
transferred to the foreign acquiring corporation in the section 361 
exchange. However, this presumption will not apply if it is demonstrated 
to the satisfaction of the Director of Field Operations, Large Business 
& International (or any successor to the roles and responsibilities of 
such person (Director) that the avoidance of U.S. tax was not a 
principal purpose of the disposition.
    (3) Interest. If additional tax is required to be paid as a result 
of a transaction described in paragraph (c)(6)(iii)(B) of this section, 
then interest must be paid on that amount at rates determined under 
section 6621 with respect to the period between the date prescribed for 
filing the U.S. transferor's income tax return for the year in which the 
reorganization occurs and the date on which the additional tax for that 
year is paid.
    (d)(1) through (1)(iii) [Reserved]. For further guidance, see 
Sec. 1.6038B-1T(d)(1) through (1)(iii).
    (iv) Intangible property transferred. Provide a description of the 
intangible property transferred, including its adjusted basis. 
Generally, each item of intangible property must be separately 
identified, including intangible property described in Sec. 1.367(d)-
1(g)(2)(i). Identify all property that is subject to the rules of 
section 367(d) under Sec. 1.367(a)-1(b)(5) (treatment of certain 
property as subject to section 367(d)). Describe any property for which 
the income required to be taken into account under section 367(d) and 
the regulations thereunder will be recognized over a 20-year period 
pursuant to Sec. 1.367(d)-1(c)(3)(ii). Estimate the anticipated income 
or cost reductions attributable to the intangible property's use beyond 
the 20-year period.
    (v)-(vi) [Reserved]. For further guidance, see Sec. 1.6038B-
1T(d)(1)(v) through (1)(vi).
    (vii) Coordination with loss rules. List any intangible property 
subject to section 367(d) the transfer of which also gives rise to the 
recognition of gain under section 904(f)(3) or Secs. 1.367(a)-6 or -6T. 
Provide a calculation of the gain required to be recognized with respect 
to such property, in accordance with the provisions of Sec. 1.367(d)-
1(g)(3).
    (d)(1)(viii) through (d)(2) [Reserved]. For further guidance, see 
Sec. 1.6038B-1T(d)(1)(viii) through (d)(2).
    (e) Transfers subject to section 367(e)--(1) In general. If a 
domestic corporation (distributing corporation) makes a distribution 
described in section 367(e)(1) or section 367(e)(2), the distributing 
corporation must comply with the reporting requirements of this 
paragraph

[[Page 217]]

(e). Unless otherwise provided in this section, a distributing 
corporation making a distribution described in sections 367(e)(1) or 
367(e)(2) must file a Form 926, ``Return by a U.S. Transferor of 
Property to a Foreign Corporation (under section 367),'' as amended and 
modified by this section.
    (2) Reporting requirements for section 367(e)(1) distributions of 
domestic controlled corporations. A domestic distributing corporation 
making a distribution of the stock or securities of a domestic 
corporation under section 355 is not required to file a Form 926, as 
described in paragraph (e)(1) of this section, and shall have no other 
reporting requirements under section 6038B.
    (3) Reporting requirements for section 367(e)(1) distributions of 
foreign controlled corporations. If the distributing corporation makes a 
section 355 distribution of the stock or securities of a foreign 
controlled corporation to distributee shareholders who are not qualified 
U.S. persons, as defined in Sec. 1.367(e)-1(b)(1), then the distributing 
corporation shall complete Part 1 of the Form 926 and attach a signed 
copy of such form to its U.S. income tax return for the year of the 
distribution. The distributing corporation shall also attach to its U.S. 
income tax return for the year of distribution a statement signed under 
the penalties of perjury entitled, ``Addendum to Form 926.'' The 
addendum shall contain a brief description of the transaction, state the 
number of shares distributed to distributees who are not qualified U.S. 
persons (applying the rules contained in Sec. 1.367(e)-1(d)), and state 
the basis and fair market value of the distributed stock or securities 
(including a list stating the amounts that were distributed to 
distributees who were not qualified U.S. persons and distributees who 
were qualified U.S. persons).
    (4) Reporting rules for section 367(e)(2) distributions by domestic 
liquidating corporations--(i) General rule. Except as provided in 
paragraph (e)(4)(ii) of this section, if the distributing corporation 
makes a distribution of property in complete liquidation under section 
332 to a foreign distributee corporation that meets the stock ownership 
requirements of section 332(b) with respect to the stock of the 
distributing corporation, then the distributing corporation must 
complete a Form 926 and attach a signed copy of such form to its timely 
filed U.S. income tax return (including extensions) for the taxable 
years that include one or more liquidating distributions. The property 
description contained in Part III of the Form 926 must contain a 
description, including the adjusted tax basis and fair market value, of 
all property distributed by the distributing corporation (regardless of 
whether the distribution of the property qualifies for nonrecognition 
treatment). The description must also identify the items of property for 
which nonrecognition treatment is claimed under Sec. 1.367(e)-
2(b)(2)(ii) or (iii), as applicable.
    (ii) Special rule. Except as provided in paragraph (e)(4)(iii) of 
this section, if the distributing corporation distributes items of 
property that will be used by the foreign distributee corporation in the 
conduct of a trade or business in the United States and the distributing 
corporation does not recognize gain or loss on such distribution under 
Sec. 1.367(e)-2(b)(2)(i) with respect to such property, then the 
distributing corporation may satisfy the requirements of this section by 
completing Part I and Part II of Form 926, noting in Part III that the 
information required by Form 926 is contained in a statement required by 
Sec. 1.367(e)-2(b)(2)(i)(C)(2), and attaching a signed copy of Form 926 
to its timely filed U.S. income tax return (including extensions) for 
each taxable year that includes one or more distributions in 
liquidation. In addition, if the distributing corporation distributes 
stock of a domestic subsidiary corporation and does not recognize gain 
or loss on such distribution under Sec. 1.367(e)-2(b)(2)(iii) with 
respect to such stock, then the distributing corporation may satisfy the 
requirements of this section by completing Part I and Part II of Form 
926, noting in Part III that the information required by Form 926 is 
contained in a statement required by Sec. 1.367(e)-2(b)(2)(iii)(D), and 
attaching a signed copy of Form 926 to its timely filed U.S. income tax 
return (including extensions) for the taxable years that include one or 
more distributions of domestic subsidiary stock.

[[Page 218]]

    (iii) Properly filed statement. Paragraph (e)(4)(ii) will not apply 
if there is a failure to file an initial liquidation document as 
determined under Sec. 1.367(e)-2(e)(3)(i), but for purposes of this 
section, determined without regard to Sec. 1.367(e)-2(f). However, see 
paragraph (f)(3) of this section for certain relief that may be 
available.
    (f) Failure to comply with reporting requirements--(1) Consequences 
of failure. If a U.S. person is required to file a notice (or otherwise 
comply) under paragraph (b) of this section and fails to comply with the 
applicable requirements of section 6038B and this section, then with 
respect to the particular property as to which there was a failure to 
comply--
    (i) The U.S. person shall pay a penalty under section 6038B(b)(1) 
equal to 10 percent of the fair market value of the transferred property 
at the time of the exchange, but in no event shall the penalty exceed 
$100,000 unless the failure with respect to such exchange was due to 
intentional disregard (described under paragraph (g)(4) of this 
section); and
    (ii) The period of limitations on assessment of tax upon the 
transfer of that property does not expire before the date which is 3 
years after the date on which the Secretary is furnished the information 
required to be reported under this section. See section 6501(c)(8) and 
any regulations thereunder.
    (2) Failure to comply. A failure to comply with the requirements of 
section 6038B is--
    (i) The failure to report at the proper time and in the proper 
manner any material information required to be reported under the rules 
of this section; or
    (ii) The provision of false or inaccurate information in purported 
compliance with the requirements of this section. Thus, a transferor 
that timely files Form 926 with the attachments required under the rules 
of this section shall, nevertheless, have failed to comply if, for 
example, the transferor reports therein that property will be used in 
the active conduct of a trade or business outside of the United States, 
but in fact the property continues to be used in a trade or business 
within the United States.
    (iii) With respect to an initial gain recognition agreement filed 
under Sec. 1.367(a)-8, a failure to comply as determined under 
Sec. 1.367(a)-8(j)(8), but for purposes of this section, determined 
without regard to the application of Sec. 1.367(a)-8(p).
    (iv) With respect to an initial liquidation document filed under 
Sec. 1.367(e)-2(b)(2), a failure to comply as determined under 
Sec. 1.367(e)-2(e)(4)(i), but for purposes of this section, determined 
without regard to the application of Sec. 1.367(e)-2(f).
    (3) Reasonable cause for failure to comply--(i) Request for relief. 
If the U.S. transferor fails to comply with any requirement of section 
6038B and this section, the failure shall be deemed not to have occurred 
if the U.S. transferor is able to demonstrate that the failure was due 
to reasonable cause and not willful neglect using the procedure set 
forth in paragraph (f)(3)(ii) of this section. Whether the failure to 
timely comply was due to reasonable cause and not willful neglect will 
be determined by the Director of Field Operations, Cross Border 
Activities Practice Area of Large Business & International (Director) 
based on all the facts and circumstances.
    (ii) Procedures for establishing that a failure to timely comply was 
due to reasonable cause and not willful neglect--(A) Time of submission. 
A U.S. transferor's statement that the failure to timely comply was due 
to reasonable cause and not willful neglect will be considered only if, 
promptly after the U.S. transferor becomes aware of the failure, an 
amended return is filed for the taxable year to which the failure 
relates that includes the information that should have been included 
with the original return for such taxable year or that otherwise 
complies with the rules of this section, and that includes a written 
statement explaining the reasons for the failure to timely comply.
    (B) Notice requirement. In addition to the requirements of paragraph 
(f)(3)(ii)(A) of this section, the U.S. transferor must comply with the 
notice requirements of this paragraph (f)(3)(ii)(B). If any taxable year 
of the

[[Page 219]]

U.S. transferor is under examination when the amended return is filed, a 
copy of the amended return and any information required to be included 
with such return must be delivered to the Internal Revenue Service 
personnel conducting the examination. If no taxable year of the U.S. 
transferor is under examination when the amended return is filed, a copy 
of the amended return and any information required to be included with 
such return must be delivered to the Director.
    (4) Definition of intentional disregard. If the transferor fails to 
qualify for the exception under paragraph (f)(3) of this section and if 
the taxpayer knew of the rule or regulation that was disregarded, the 
failure will be considered an intentional disregard of section 6038B, 
and the monetary penalty under paragraph (f)(1)(ii) of this section will 
not be limited to $100,000. See Sec. 1.6662-3(b)(2).
    (g) Effective/applicability dates. (1) This section applies to 
transfers occurring on or after July 20, 1998, except as provided in 
paragraphs (g)(2) through (g)(7) of this section, and except for 
transfers of cash made in tax years beginning on or before February 5, 
1999 (which are not required to be reported under section 6038B), and 
transfers described in paragraph (e) of this section (which applies to 
transfers that are subject to Secs. 1.367(e)-1(f) and 1.367(e)-2(e)). 
See Sec. 1.6038B-1T for transfers occurring prior to July 20, 1998. See 
also Sec. 1.6038B-1T(e) in effect prior to August 9, 1999 (as contained 
in 26 CFR part 1 revised April 1, 1999), for transfers described in 
section 367(e) that are not subject to Secs. 1.367(e)-1(f) and 1.367(e)-
2(e).
    (2) The rules of paragraph (b)(1)(i) of this section as they apply 
to section 368(a)(1)(A) reorganizations (including reorganizations 
described in section 368(a)(2)(D) or (E)) apply to transfers occurring 
on or after January 23, 2006.
    (3) The rules of paragraph (b)(1)(i) of this section that provide an 
exception from reporting under section 6038B for transfers of stock or 
securities in a section 354 or 356 exchange, pursuant to a section 
368(a)(1)(G) reorganization that is not treated as an indirect stock 
transfer under Sec. 1.367(a)-3(d), apply to transfers occurring on or 
after January 23, 2006.
    (4) The rules of paragraph (b)(1)(i) of this section that provide an 
exception from reporting under section 6038B for transfers of stock in a 
section 354 or 356 exchange, pursuant to a section 368(a)(1)(E) 
reorganization or an asset reorganization under section 368(a)(1) that 
is not treated as an indirect stock transfer under Sec. 1.367(a)-3(d), 
apply to transfers occurring on or after January 23, 2006. The rules of 
paragraph (b)(1)(i) of this section that provide an exception from 
reporting under section 6038B for transfers of securities in a section 
354 or 356 exchange, pursuant to a section 368(a)(1)(E) reorganization 
or an asset reorganization under section 368(a)(1) that is not treated 
as an indirect stock transfer under Sec. 1.367(a)-3(d), apply only to 
transfers occurring after January 5, 2005 (although taxpayers may apply 
such provision to transfers of securities occurring on or after July 20, 
1998 and on or before January 5, 2005 if done consistently to all 
transactions). See Sec. 1.6038-1T(b)(i), as contained in 26 CFR part 1 
revised as of April 1, 2005, for transfers occurring prior to the 
effective dates described in paragraphs (g)(2) through (4) of this 
section.
    (5) Paragraphs (c)(6) and (f)(3) of this section apply to transfers 
occurring on or after April 18, 2013. For guidance with respect to 
paragraphs (c)(6) and (f)(3) of this section before April 18, 2013, see 
26 CFR part 1 revised as of April 1, 2012.
    (6) The second sentence of paragraph (b)(1)(i) and paragraphs 
(b)(2)(i)(B)(1), (b)(2)(iii), (b)(2)(iv), (c), (e)(4), (f)(2)(iii), and 
(f)(2)(iv) of this section will apply to transfers for which documents 
are required to be filed on or after November 19, 2014, as well as to 
transfers that are the subject of requests for relief submitted on or 
after November 19, 2014. The second sentence of paragraph (b)(1)(i) and 
paragraphs (b)(2)(i)(B)(1), (b)(2)(iii), (b)(2)(iv), (c), and 
(f)(2)(iii) of this section will also apply to any transfer that is the 
subject of a request for relief submitted pursuant to Sec. 1.367(a)-
8(r)(3).
    (7) Paragraphs (c)(4)(i) through (vii), (c)(5), and (d)(1)(iv) and 
(vii) of this section apply to transfers occurring on or

[[Page 220]]

after September 14, 2015, and to transfers occurring before September 
14, 2015, resulting from entity classification elections made under 
Sec. 301.7701-3 that are filed on or after September 14, 2015. For 
guidance with respect to paragraphs (c)(4), (c)(5), and (d)(1) of this 
section before this section is applicable, see Secs. 1.6038B-1 and 
1.6038B-1T as contained in 26 CFR part 1 revised as of April 1, 2016.

[T.D. 8770, 63 FR 33568, June 19, 1998]

    Editorial Note: For Federal Register citations affecting 
Sec. 1.6038B-1, see the List of CFR Sections Affected, which appears in 
the Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 1.6038B-1T  Reporting of certain transactions to foreign 
corporations (temporary).

    (a) through (b)(3) [Reserved]. For further guidance, see 
Sec. 1.6038B-1(a) through (b)(3).
    (4) Date of transfer--(i) In general. For purposes of this section, 
the date of a transfer described in section 367 is the first date on 
which title to, possession of, or rights to the use of stock, 
securities, or other property passes pursuant to the plan for purposes 
of subtitle A of the Internal Revenue Code. A transfer will not be 
considered to begin with a decision of a board of directors or similar 
action unless the transaction otherwise takes effect for purposes of 
subtitle A of the Internal Revenue Code on that date.
    (ii) Termination of section 1504(d) election. A transfer deemed to 
occur as a result of the termination of an election under section 
1504(d) will be considered to occur on the date the contiguous country 
corporation first fails to continue to qualify for the election under 
section 1504(d). The rule of this paragraph (b)(3)(ii) is illustrated by 
the following example.

    Example. Domestic corporation W previously made a valid election 
under section 1504(d) to have its Mexican subsidiary S treated as a 
domestic corporation. On August 1, 1986, W disposes of its right, title, 
and interest in 10 percent of the stock of S by selling such stock to an 
unrelated United States person who is not a director of S. S first fails 
to continue to qualify for the election under section 1504(d) on August 
1, 1986, since on such date it ceases to be directly or indirectly 
wholly owned or controlled by W. The constructive transfer of assets 
from ``domestic'' corporation S to Mexican corporation S is considered 
to occur on that date.

    (iii) Change in classification. A transfer deemed to occur as a 
result of a change in classification of an entity caused by a change in 
the governing documents, articles, or agreements of the entity (as 
described in Sec. 1.367(a)-1T(c)(6)) will be considered to occur on the 
date that such changes take effect for purposes of subtitle A of the 
Internal Revenue Code.
    (iv) U.S. resident under section 6013 (g) or (h). A transfer made by 
an alien individual who is considered to be a U.S. resident by reason of 
a timely election under section 6013 (g) or (h) will be considered to 
occur, for purposes of this section (but not for purposes of section 
367), on the later of--
    (A) The date on which the election under section 6013 (g) or (h) is 
made; or
    (B) The date on which the transfer would otherwise be considered to 
occur under the rules of this paragraph (b)(3).


The rule of this paragraph (b)(3)(iv) is illustrated by the following 
example.

    Example. D is a nonresident alien individual who is married to a 
United States citizen. On March 1, 1986, D transfers property to a 
foreign corporation in an exchange described in section 351. On April 
15, 1987, D and the spouse timely file with their tax return for the 
taxable year ended December 31, 1986, an election under section 6013(g) 
for D to be treated as a United States resident. The election is 
effective on January 1, 1986. For purposes of section 6038 B, the 
transfer described in section 367(a) made by D in connection with the 
section 351 exchange is considered to occur on April 15, 1987, the date 
on which the timely election was made under section 6013(g).

    (c) Introductory text [Reserved]. For further guidance, see 
Sec. 1.6038B-1(c).
    (1) Transferor. Provide the name, U.S. taxpayer identification 
number, and address of the U.S. person making the transfer.
    (2) Transfer. Provide the following information concerning the 
transfer:
    (i) Name, U.S. taxpayer identification number (if any), address, and 
country of incorporation of transferee foreign corporation;
    (ii) A general description of the transfer, and any wider 
transaction of

[[Page 221]]

which it forms a part, including a chronology of the transfers involved 
and an identification of the other parties to the transaction to the 
extent known.
    (3) Consideration received. Provide a description of the 
consideration received by the U.S. person making the transfer, including 
its estimated fair market value and, in the case of stock or securities, 
the class or type, amount, and characteristics of the interest received.
    (4) Property transferred. Provide a description of the property 
transferred. The description must be divided into the following 
categories, and must include the estimated fair market value and 
adjusted basis of the property, as well as any additional information 
specified below.
    (i) through (c)(5) introductory text [Reserved]
    (i) Branch operation. Describe the foreign branch the property of 
which is transferred, in accordance with the definition of 
Sec. 1.367(a)-6T(g).
    (ii) Branch property. Describe the property of the foreign branch, 
including its adjusted basis and fair market value. For this purpose 
property must be identified with reasonable particularity, but may be 
identified by category rather than listing every asset separately. 
Substantially similar property may be listed together for this purpose, 
and property of minor value may be grouped into functional categories. 
For example, a reasonable description of the property of a business 
office might include the following categories: Word processing or data 
processing equipment, other office equipment and furniture, and office 
supplies.
    (iii) Previously deducted losses. Set forth a detailed calculation 
of the sum of the losses incurred by the foreign branch before the 
transfer, and a detailed calculation of any reduction of such losses, in 
accordance with Sec. 1.367(a)-6T (d) and (e).
    (iv) Character of gain. Set forth a statement of the character of 
the gain required to be recognized, in accordance with Sec. 1.367(a)-
6T(c)(1).
    (6) [Reserved]. For further guidance, see Sec. 1.6038B-1(c)(6).
    (d) Transfers subject to section 367(d)--(1) Initial transfer. A 
U.S. person that transfers inntangible property to a foreign corporation 
in an exchange described in section 351 or 361 must provide the 
following information in paragraphs labelled to correspond with the 
number or letter set forth below. If a particular item is not applicable 
to the subject transfer, list its heading and state that it is not 
applicable. The information required by subdivisions (i) through (iii) 
need only be provided if such information was not otherwise provided 
under paragraph (c) of this section. (Note that the U.S. transferor may 
subsequently be required to file another return under paragraph (d)(2) 
of this section.)
    (i) Transferor. Provide the name, U.S. taxpayer identification 
number, and address of the U.S. person making the transfer.
    (ii) Transfer. Provide information concerning the transfer, 
including:
    (A) Name, U.S. taxpayer identification number (if any), address, and 
country of incorporation of the transferee foreign corporation;
    (B) A general description of the transfer, and any wider transaction 
of which it forms a part, including a chronology of the transfers 
involved and an identification of the other parties to the transaction 
to the extent known.
    (iii) Consideration received. Provide a description of the 
consideration received by the U.S. person making the transfer, including 
its estimated fair market value and, in the case of stock or securities, 
the class or type, amount, and characteristics of the interest received.
    (iv) [Reserved]
    (v) Annual payment. Provide and explain the calculation of the 
annual deemed payment for the use of the intangible property required to 
be recognized by the transferor under the rules of section 367(d).
    (vi) Election to treat as sale. List any intangible with respect to 
which an election is being made under Sec. 1.367(d)-1T(g)(2) to treat 
the transfer as a sale. Include the fair market value of the intangible 
on the date of the transfer and a calculation of the gain required to be 
recognized in the year of the transfer by reason of the election.
    (vii) [Reserved]
    (viii) Other intangibles. Describe any intangible property sold or 
licensed by

[[Page 222]]

the transferor to the transferee foreign corporation, and set forth the 
general terms of each sale or license.
    (2) Subsequent transfers. If a U.S. person transfers intangible 
property to a foreign corporation in an exchange described in section 
351 or 361, and at any time thereafter (within the useful life of the 
intangible property) either that U.S. person disposes of the stock of 
the transferee foreign corporation or the transferee foreign corporation 
disposes of the transferred intangible, then the U.S. person must 
provide the following information in paragraphs labelled to correspond 
with the number or letter set forth below. The information required by 
subdivisions (i) and (ii) need only be provided if such information was 
not otherwise provided in the same return, pursuant to paragraph (c) or 
(d)(1) of this section. For purposes of determining the date on which a 
return under this subparagraph (2) is required to be filed, the date of 
transfer is the date of the subsequent transfer of stock or intangible 
property.
    (i) Transferor. Provide the name, U.S. taxpayer identification 
number, and address of the U.S. person making the transfer.
    (ii) Initial transfer. Provide the following information concerning 
the initial transfer:
    (A) The date of the transfer;
    (B) The name, U.S. taxpayer identification number (if any), address, 
and country of incorporation of the transferee foreign corporation; and
    (C) A general description of the transfer and any wider transaction 
of which it formed a part.
    (iii) Subsequent transfer. Provide the following information 
concerning the subsequent transfer:
    (A) A general description of the subsequent transfer and any wider 
transaction of which it forms a part;
    (B) A calculation of any gain required to be recognized by the U.S. 
person under the rules of Sec. 1.367(d)-1T (d) through (f); and
    (C) The name, address, and identifying number of each person that 
under the rules of Sec. 1.367(d)-1T (e) or (f) will be considered to 
receive contingent annual payments for the use of the intangible 
property.
    (e) [Reserved]. For further guidance, see Sec. 1.6038B-1(e).
    (f)(1) through (f)(3) [Reserved] For further guidance, see 
Sec. 1.6038B-1(f)(1) through (f)(2).
    (f)(4) [Reserved] For further guidance, see Sec. 1.6038B-1T(f)(4).
    (g) Effective date. This section applies to transfers occurring 
after December 31, 1984. See Sec. 1.6038B-1T(a) through (b)(2), (c) 
introductory text, and (f) (26 CFR part 1, revised April 1, 1998) for 
transfers occurring prior to July 20, 1998. See Sec. 1.6038B-1 for 
transfers occurring on or after July 20, 1998.

[T.D. 8087, 51 FR 17957, May 16, 1986, as amended by T.D. 8682, 61 FR 
42177, Aug. 14, 1996; T.D. 8770, 63 FR 33570, June 19, 1998; T.D. 8834, 
64 FR 43083, Aug. 9, 1999; T.D. 9100, 68 FR 70708, Dec. 19, 2003; 69 FR 
5017, Feb. 3, 2004; T.D. 9243, 71 FR 4294, Jan. 26, 2006; T.D. 9300, 71 
FR 71045, Dec. 8, 2006; T.D. 9615, 78 FR 17064, Mar. 19, 2013; T.D. 
9760, 81 FR 15169, Mar. 22, 2016; T.D. 9803, 81 FR 91032, Dec. 16, 2016]



Sec. 1.6038B-2  Reporting of certain transfers to foreign partnerships.

    (a) Reporting requirements--(1) Requirement to report transfers. A 
United States person that transfers property to a foreign partnership in 
a contribution described in section 721 (including section 721(b)) must 
report that transfer on Form 8865 ``Information Return of U.S. Persons 
With Respect to Certain Foreign Partnerships'' pursuant to section 6038B 
and the rules of this section, if--
    (i) Immediately after the transfer, the United States person owns, 
directly, indirectly, or by attribution, at least a 10-percent interest 
in the partnership, as defined in section 6038(e)(3)(C) and the 
regulations thereunder;
    (ii) The value of the property transferred, when added to the value 
of any other property transferred in a section 721 contribution by such 
person (or any related person) to the partnership during the 12-month 
period ending on the date of the transfer, exceeds $100,000; or
    (iii) [Reserved]. For further guidance, see Sec. 1.6038B-
2T(a)(1)(iii).
    (2) Indirect transfer through a domestic partnership--For purposes 
of this section, if a domestic partnership transfers property to a 
foreign partnership

[[Page 223]]

in a section 721 transaction, the domestic partnership's partners shall 
be considered to have transferred a proportionate share of the property 
to the foreign partnership. However, if the domestic partnership 
properly reports all of the information required under this section with 
respect to the contribution, no partner of the transferor partnership, 
whether direct or indirect (through tiers of partnerships), is also 
required to report under this section. For illustrations of this rule, 
see Examples 4 and 5 of paragraph (a)(7) of this section.
    (3) [Reserved]. For further guidance see Sec. 1.6038B-2T(a)(3).
    (4) Requirement to report dispositions--(i) In general. If a United 
States person was required to report a transfer to a foreign partnership 
of appreciated property under paragraph (a)(1) or (2) of this section, 
and the foreign partnership disposes of the property while such United 
States person remains a direct or indirect partner, that United States 
person must report the disposition by filing Form 8865. The form must be 
attached to, and filed by the due date (including extensions) of, the 
United States person's income tax return for the year in which the 
disposition occurred.
    (ii) Disposition of contributed property in nonrecognition 
transaction. If a foreign partnership disposes of contributed 
appreciated property in a nonrecognition transaction and substituted 
basis property is received in exchange, and the substituted basis 
property has built-in gain under Sec. 1.704-3(a)(8), the original 
transferor is not required to report the disposition. However, the 
transferor must report the disposition of the substituted basis property 
in the same manner as provided for the contributed property.
    (5) Time for filing Form 8865. The Form 8865 on which a transfer is 
reported must be attached to the transferor's timely filed (including 
extensions) income tax return for the tax year that includes the date of 
the transfer. If the person required to report under this section is not 
required to file an income tax return for its tax year during which the 
transfer occurred, but is required to file an information return for 
that year (for example, Form 1065, ``U.S. Partnership Return of 
Income,'' or Form 990, ``Return of Organization Exempt from Income 
Tax''), the person should attach the Form 8865 to its information 
return.
    (6) Returns to be made--(i) Separate returns for each partnership. 
If a United States person transfers property reportable under this 
section to more than one foreign partnership in a taxable year, the 
United States person must submit a separate Form 8865 for each 
partnership.
    (ii) Duplicate form to be filed. If required by the instructions 
accompanying Form 8865, a duplicate Form 8865 (including attachments and 
schedules) must also be filed by the due date for submitting the 
original Form 8865 under paragraph (a)(5)(i) or (ii) of this section, as 
applicable.
    (7) Examples. The application of this paragraph (a) may be 
illustrated by the following examples:

    Example 1. On November 1, 2001, US, a United States person that uses 
the calendar year as its taxable year, contributes $200,000 to FP, a 
foreign partnership, in a transaction subject to section 721. After the 
contribution, US owns a 5% interest in FP. US must report the 
contribution by filing Form 8865 for its taxable year ending December 
31, 2001. On March 1, 2002, US makes a $40,000 section 721 contribution 
to FP, after which US owns a 6% interest in FP. US must report the 
$40,000 contribution by filing Form 8865 for its taxable year ending 
December 31, 2002, because the contribution, when added to the value of 
the other property contributed by US to FP during the 12-month period 
ending on the date of the transfer, exceeds $100,000.
    Example 2. F, a nonresident alien, is the brother of US, a United 
States person. F owns a 15% interest in FP, a foreign partnership. US 
contributes $99,000 to FP, in exchange for a 1-percent partnership 
interest. Under sections 6038(e)(3)(C) and 267(c)(2), US is considered 
to own at least a 10-percent interest in FP and, therefore, US must 
report the $99,000 contribution under this section.
    Example 3. US, a United States person, owns 40 percent of FC, a 
foreign corporation. FC owns a 20-percent interest in FP, a foreign 
partnership. Under section 267(c)(1), US is considered to own 8 percent 
of FP due to its ownership of FC. US contributes $50,000 to FP in 
exchange for a 5-percent partnership interest. Immediately after the 
contribution, US is considered to own at least a 10-percent interest in 
FP and, therefore, must report the $50,000 contribution under this 
section.

[[Page 224]]

    Example 4. US, a United States person, owns a 60-percent interest in 
USP, a domestic partnership. On March 1, 2001, USP contributes $200,000 
to FP, a foreign partnership, in exchange for a 5-percent partnership 
interest. Under paragraph (a)(2) of this section, US is considered as 
having contributed $120,000 to FP ($200,000  x  60%). However, under 
paragraph (a)(2), if USP properly reports the contribution to FP, US is 
not required to report its $120,000 contribution. If US directly 
contributes $5,000 to FP on June 10, 2001, US must report the $5,000 
contribution because US is considered to have contributed more than 
$100,000 to FP in the 12-month period ending on the date of the $5,000 
contribution.
    Example 5. US, a United States person, owns an 80-percent interest 
in USP, a domestic partnership. USP owns an 80-percent interest in USP1, 
a domestic partnership. On March 1, 2001, USP1 contributes $200,000 to 
FP, a foreign partnership, in exchange for a 3-percent partnership 
interest. Under paragraph (a)(2) of this section, USP is considered to 
have contributed $160,000 ($200,000  x  80%) to FP. US is considered to 
have contributed $128,000 to FP ($200,000  x  80%  x  80%). However, if 
USP1 reports the transfer of the $200,000 to FP, neither US nor USP are 
required to report under this section the amounts they are considered to 
have contributed. Additionally, regardless of whether USP1 reports the 
$200,000 contribution, if USP reports the $160,000 contribution it is 
considered to have made, US does not have to report under this section 
the $128,000 contribution US is considered to have made.

    (b) Transfers by trusts relating to state and local government 
employee retirement plans. Trusts relating to state and local government 
employee retirement plans are not required to report transfers under 
this section, unless otherwise specified in the instructions to Form 
8865.
    (c) Information required with respect to transfers of property. With 
respect to transfers required to be reported under paragraph (a)(1) or 
(2) of this section, the return must contain information in such form or 
manner as Form 8865 (and its accompanying instructions) prescribes with 
respect to reportable events, including--
    (1) The name, address, and U.S. taxpayer identification number of 
the United States person making the transfer;
    (2) The name, U.S. taxpayer identification number (if any), and 
address of the transferee foreign partnership, and the type of entity 
and country under whose laws the partnership was created or organized;
    (3) A general description of the transfer, and of any wider 
transaction of which it forms a part, including the date of transfer;
    (4) The names and addresses of the other partners in the foreign 
partnership, unless the transfer is solely of cash and the transferor 
holds less than a ten-percent interest in the transferee foreign 
partnership immediately after the transfer. However, for tax years of 
U.S. persons beginning on or after January 1, 2000, the person reporting 
pursuant to section 6038B (the transferor) must provide the names and 
addresses of each United States person that owned a ten-percent or 
greater direct interest in the foreign partnership during the 
transferor's tax year in which the transfer occurred, and the names and 
addresses of any other United States or foreign persons that were direct 
partners in the foreign partnership during that tax year and that were 
related to the transferor during that tax year. See paragraph (i)(4) of 
this section for the definition of a related person;
    (5) A description of the partnership interest received by the United 
States person, including a change in partnership interest;
    (6) A separate description of each item of contributed property that 
is appreciated property subject to the allocation rules of section 
704(c) (except to the extent that the property is permitted to be 
aggregated in making allocations under section 704(c)), or is intangible 
property, including its estimated fair market value and adjusted basis;
    (7) A description of other contributed property, not specified in 
paragraph (c)(6) of this section, aggregated by the following categories 
(with, in each case, a brief description of the property)--
    (i) Stock in trade of the transferor (inventory);
    (ii) Tangible property (other than stock in trade) used in a trade 
or business of the transferor;
    (iii) Cash;
    (iv) Stock, notes receivable and payable, and other securities; and
    (v) Other property;

[[Page 225]]

    (8) [Reserved]. For further guidance, see Sec. 1.6038B-2T(c)(8); and
    (9) [Reserved]. For further guidance, see Sec. 1.6038B-2T(c)(9).
    (d) Information required with respect to dispositions of property. 
In respect of dispositions required to be reported under paragraph 
(a)(4) of this section, the return must contain information in such form 
or manner as Form 8865 (and its accompanying instructions) prescribes 
with respect to reportable events, including--
    (1) The date and manner of disposition;
    (2) The gain and depreciation recapture amounts, if any, realized by 
the partnership; and
    (3) Any such amounts allocated to the United States person.
    (e) Method of reporting. Except as otherwise provided on Form 8865, 
or the accompanying instructions, all amounts reported as required under 
this section must be expressed in United States currency, with a 
statement of the exchange rates used. All statements required on or with 
Form 8865 pursuant to this section must be in the English language.
    (f) Reporting under this section not required of partnerships 
excluded from the application of subchapter K--(1) Election to be wholly 
excluded. The reporting requirements of this section will not apply to 
any United States person in respect of an eligible partnership as 
described in Sec. 1.761-2(a), if such partnership has validly elected to 
be excluded from all of the provisions of subchapter K of chapter 1 of 
the Internal Revenue Code in the manner specified in Sec. 1.761-
2(b)(2)(i).
    (2) Deemed excluded. The reporting requirements of this section will 
not apply to any United States person in respect of an eligible 
partnership as described in Sec. 1.761-2(a), if such partnership is 
validly deemed to have elected to be excluded from all of the provisions 
of subchapter K of chapter 1 of the Internal Revenue Code in accordance 
with the provisions of Sec. 1.761-2(b)(2)(ii).
    (g) Deemed contributions. Deemed contributions resulting from IRS-
initiated section 482 adjustments are not required to be reported under 
section 6038B. However, taxpayers must report deemed contributions 
resulting from taxpayer-initiated adjustments. Such information will be 
furnished timely if filed by the due date, including extensions, for 
filing the taxpayer's income tax return for the year in which the 
adjustment is made.
    (h) Failure to comply with reporting requirements--(1) Consequences 
of a failure. If a United States person is required to file a return 
under paragraph (a) of this section and fails to comply with the 
reporting requirements of section 6038B and this section, or 
Sec. 1.721(c)-6T, then that person is subject to the following 
penalties:
    (i) The United States person is subject to a penalty equal to 10 
percent of the fair market value of the property at the time of the 
contribution. Such penalty with respect to a particular transfer is 
limited to $100,000, unless the failure to comply with respect to such 
transfer was due to intentional disregard.
    (ii) The United States person must recognize gain (reduced by the 
amount of any gain recognized, with respect to that property, by the 
transferor after the transfer) as if the contributed property had been 
sold for fair market value at the time of the contribution. Adjustments 
to the basis of the partnership's assets and any relevant partner's 
interest as a result of gain being recognized under this provision will 
be made as though the gain was recognized in the year in which the 
failure to report was finally determined.
    (2) Failure to comply. A failure to comply with the requirements of 
section 6038B includes--
    (i) The failure to report at the proper time and in the proper 
manner any information required to be reported under the rules of this 
section; and
    (ii) The provision of false or inaccurate information in purported 
compliance with the requirements of this section.
    (3) [Reserved]. For further guidance see Sec. 1.6038B-2T(h)(3).
    (4) Statute of limitations. For exceptions to the limitations on 
assessment in the event of a failure to provide information under 
section 6038B, see section 6501(c)(8).
    (i) Definitions--(1) Appreciated property. Appreciated property is 
property

[[Page 226]]

that has a fair market value in excess of basis.
    (2) Domestic partnership. A domestic partnership is a partnership 
described in section 7701(a)(4).
    (3) Foreign partnership. A foreign partnership is a partnership 
described in section 7701(a)(5).
    (4) Related person. Persons are related persons if they bear a 
relationship described in section 267(b)(1) through (3) or (10) through 
(12), after application of section 267(c) (except for (c)(3)), or in 
section 707(b)(1)(B).
    (5) Substituted basis property. Substituted basis property is 
property described in section 7701(a)(42).
    (6) Taxpayer-initiated adjustment. A taxpayer-initiated adjustment 
is a section 482 adjustment that is made by the taxpayer pursuant to 
Sec. 1.482-1(a)(3).
    (7) United States person. A United States person is a person 
described in section 7701(a)(30).
    (j) Effective dates--(1) In general. Except as otherwise provided in 
this section, this section applies to transfers made on or after January 
1, 1998. However, for a transfer made on or after January 1, 1998, but 
before January 1, 1999, the filing requirements of this section may be 
satisfied by--
    (i) Filing a Form 8865 with the taxpayer's income tax return 
(including a partnership return of income) for the first taxable year 
beginning on or after January 1, 1999; or
    (ii) Filing a Form 926 (modified to reflect that the transferee is a 
partnership, not a corporation) with the taxpayer's income tax return 
(including a partnership return of income) for the taxable year in which 
the transfer occurred.
    (2) Transfers made between August 5, 1997 and January 1, 1998. A 
United States person that made a transfer of property between August 5, 
1997, and January 1, 1998, that is required to be reported under section 
6038B may satisfy its reporting requirement by reporting in accordance 
with the provisions of this section or in accordance with the provisions 
of Notice 98-17 (1998-11 IRB 6)(see Sec. 601.601(d)(2) of this chapter).
    (3) Special rule for transfers made before January 1, 2000. Even if 
not reported in accordance with the rules provided in paragraph (a)(5) 
of this section, or paragraph (j) (1) or (2) of this section, a transfer 
that occurred before January 1, 2000 will nevertheless be considered 
timely reported if the transferor reports it on a Form 8865 attached to 
an amended tax return for the transferor's tax year in which the 
transfer occurred, provided such amended return is filed no later than 
September 15, 2000.
    (4) through (5) [Reserved]. For further guidance, see Sec. 1.6038B-
2T(j)(4) through (5).

[T.D. 8817, 64 FR 5715, Feb. 5, 1999; 64 FR 15686, Apr. 1, 1999; T.D. 
8850, 64 FR 72554, Dec. 28, 1999, as amended by T.D. 9814, 82 FR 7610, 
Jan. 19, 2017]



Sec. 1.6038B-2T  Reporting of certain transfers to foreign 
partnerships (temporary).

    (a) introductory text through (a)(1)(ii) [Reserved]. For further 
guidance, see Sec. 1.6038B-2(a) introductory text through (a)(1)(ii).
    (iii) The United States person is a U.S. transferor (as defined in 
Sec. 1.721(c)-1T(b)(18)) that makes a gain deferral contribution and is 
required to report under Sec. 1.721(c)-6T(b)(2). The reporting required 
under this paragraph (a) includes the annual reporting required by 
Sec. 1.721(c)-6T(b)(3). For purposes of applying this paragraph 
(a)(1)(iii) to partnerships formed on or after January 18, 2017, a 
domestic partnership is treated as a foreign partnership pursuant to 
section 7701(a)(4).
    (a)(2) [Reserved]. For further guidance, see Sec. 1.6038B-2(a)(2).
    (3) Indirect transfer through a foreign partnership. Solely for 
purposes of this section, if a foreign partnership transfers section 
721(c) property (as defined in Sec. 1.721(c)-1T(b)(15)) to another 
foreign partnership in a transfer described in Sec. 1.721(c)-3T(d) 
(tiered-partnership rules), then the transferor foreign partnership's 
partners will be considered to have transferred a proportionate share of 
the property to the foreign partnership.
    (a)(4) through (c)(7) [Reserved]. For further guidance, see 
Sec. 1.6038B-2(a)(4) through (c)(7).
    (8) With respect to reporting required under Sec. 1.721(c)-6T(b)(2) 
and paragraph (a)(1)(iii) of this section with regard to

[[Page 227]]

a gain deferral contribution, the information required by Sec. 1.721(c)-
6T(b)(2); and
    (9) With respect to section 721(c) property for which a statement is 
required to be filed under Sec. 1.721(c)-6T(b)(3) and paragraph 
(a)(1)(iii) of this section, the information required by Sec. 1.721(c)-
6T(b)(3).
    (d) through (h)(2) [Reserved]. For further guidance, see 
Sec. 1.6038B-2(d) through (h)(2).
    (3) Reasonable cause exception. Under section 6038B(c)(2) and this 
section, the provisions of paragraph (h)(1) of this section will not 
apply if the United States person shows, in a timely manner, that a 
failure to comply was due to reasonable cause and not willful neglect. A 
United States person's statement that the failure to comply was due to 
reasonable cause and not willful neglect will be considered timely only 
if, promptly after the United States person becomes aware of the 
failure, an amended return is filed for the taxable year to which the 
failure relates that includes the information that should have been 
included with the original return for such taxable year or that 
otherwise complies with the rules of this section, and that includes a 
written statement explaining the reasons for the failure to comply. If 
any taxable year of the United States person is under examination when 
the amended return is filed, a copy of the amended return must be 
delivered to the Internal Revenue Service personnel conducting the 
examination when the amended return is filed. If no taxable year of the 
United States person is under examination when the amended return is 
filed, a copy of the amended return must be delivered to the Director of 
Field Operations, Cross Border Activities Practice Area of Large 
Business & International (or any successor to the roles and 
responsibilities of such position, as appropriate) (Director). Whether a 
failure to comply was due to reasonable cause and not willful neglect 
will be determined by the Director under all the facts and 
circumstances.
    (i) through (j)(3) [Reserved]. For further guidance, see 
Sec. 1.6038B-2(i) through (j)(3).
    (4) Transfers of section 721(c) property--(i) Applicability dates. 
Paragraph (c)(8) of this section applies to transfers occurring on or 
after August 6, 2015, and to transfers occurring before August 6, 2015, 
resulting from an entity classification election made under 
Sec. 301.7701-3 of this chapter that is filed on or after August 6, 
2015. Paragraphs (a)(1)(iii), (a)(3), and (c)(9) of this section apply 
to transfers occurring on or after January 18, 2017, and to transfers 
occurring before January 18, 2017, resulting from entity classification 
elections made under Sec. 301.7701-3 of this chapter that are filed on 
or after January 18, 2017.
    (ii) Expiration date. The applicability of paragraphs (a)(1)(iii), 
(a)(3), and (c)(8) and (9) of this section expires on January 17, 2020.
    (5) Reasonable cause exception--(i) Applicability date. Paragraph 
(h)(3) of this section applies to all requests for relief for transfers 
of property to partnerships filed on or after February 21, 2017.
    (ii) Expiration date. The applicability of paragraph (h)(3) of this 
section expires on January 17, 2020.

[T.D. 9814, 82 FR 7610, Jan. 19, 2017]



Sec. 1.6038D-0  Outline of regulation provisions.

    This section lists the table of contents for Secs. 1.6038D-1 through 
1.6038D-8.

 Sec. 1.6038D-1  Reporting with respect to specified foreign financial 
                      assets, definition of terms.

    (a) In general.
    (1) Specified person.
    (2) Specified individual.
    (3) Resident alien.
    (4) Bona fide resident of a U.S. possession.
    (5) U.S. possession.
    (6) Specified foreign financial asset.
    (7) Financial account.
    (8) Financial institution.
    (9) Foreign financial institution.
    (10) Foreign entity.
    (11) Annual return.
    (12) Specified domestic entity.
    (13) Model 1 IGA and Model 2 IGA.
    (b) Effective/applicability dates.
    (1) In general.
    (2) Financial accounts.

   Sec. 1.6038D-2  Requirement to report specified foreign financial 
                                 assets.

    (a) Reporting requirement.
    (1) In general.
    (2) Special rule for married specified individuals filing a joint 
annual return.

[[Page 228]]

    (3) Special rule for certain specified individuals living abroad.
    (4) Special rule for married specified individuals filing a joint 
annual return and living abroad.
    (5) Assets with no positive value.
    (6) Aggregate value calculation in case of specified foreign 
financial asset excluded from reporting.
    (i) Specified individual.
    (ii) Specified domestic entity.
    (7) Form 8938 filed with annual return.
    (i) General rule.
    (ii) Consolidated returns.
    (8) Reporting required regardless of tax result.
    (9) Reporting period.
    (10) Successor forms.
    (b) Interest in a specified foreign financial asset.
    (1) In general.
    (2) Property transferred in connection with the performance of 
services.
    (3) Special rule for parent making an election under section 
1(g)(7).
    (4) Entities.
    (i) In general.
    (ii) Specified foreign financial assets held by certain trusts.
    (iii) Specified foreign financial assets held by a disregarded 
entity.
    (iv) Interest in a foreign trust or foreign estate.
    (c) Special rules for joint interests.
    (1) In general.
    (i) Determining aggregate value of assets.
    (ii) Reporting maximum value.
    (2) Aggregate asset value for married specified individuals filing a 
joint annual return.
    (3) Aggregate asset value for married specified individuals filing a 
separate annual return.
    (i) Both spouses are specified individuals.
    (ii) One spouse is not a specified individual.
    (d) Annual return filed by a married specified individual.
    (1) Joint annual return.
    (2) Separate annual return.
    (e) Special rules for dual resident taxpayers.
    (1) In general.
    (2) Dual resident taxpayer filing as a nonresident alien at end of 
taxable year.
    (3) Dual resident taxpayer filing as a resident alien at end of 
taxable year.
    (f) Example.
    (1) Facts.
    (2) Filing requirement.
    (i) Married specified individuals filing separate annual returns.
    (ii) Married specified individuals filing a joint annual return.
    (g) Effective/applicability dates.

           Sec. 1.6038D-3  Specified foreign financial assets.

    (a) Financial accounts.
    (1) In general.
    (2) Financial account in a U.S. possession.
    (3) Excepted financial accounts.
    (i) Accounts maintained by U.S. payors.
    (ii) Mark-to-market election under section 475.
    (b) Other specified foreign financial assets.
    (1) In general.
    (2) Mark-to-market election under section 475.
    (3) Held for investment.
    (4) Trade-or-business test.
    (5) Direct relationship between holding an asset and a trade or 
business.
    (i) In general.
    (ii) Presumption of direct relationship.
    (c) Special rule for interests in foreign trusts and foreign 
estates.
    (d) Examples.
    (e) Effective/applicability dates.

          Sec. 1.6038D-4  Information required to be reported.

    (a) Required information.
    (b) Effective/applicability dates.

                  Sec. 1.6038D-5  Valuation guidelines.

    (a) Fair market value.
    (b) Valuation of assets.
    (1) Maximum value.
    (2) U.S. dollars.
    (3) Asset with no positive value.
    (c) Foreign currency conversion.
    (1) In general.
    (2) Other publicly available exchange rate.
    (3) Currency exchange rate.
    (4) Determination date.
    (d) Financial accounts.
    (e) Asset held in a financial account.
    (f) Other specified foreign financial assets.
    (1) General rule.
    (2) Interests in trusts that are specified foreign financial assets.
    (i) Maximum value.
    (ii) Reporting threshold.
    (3) Interests in estates, pension plans, and deferred compensation 
plans.
    (i) Maximum value.
    (ii) Reporting threshold.
    (g) Effective/applicability dates.

              Sec. 1.6038D-6  Specified domestic entities.

    (a) Specified domestic entity.
    (b) Corporations and partnerships.
    (1) Formed or availed of.
    (2) Closely held.
    (i) Domestic corporation.
    (ii) Domestic partnership.
    (iii) Constructive ownership.
    (3) Determination of passive income and assets.
    (i) Definition of passive income.
    (ii) Exception from passive income treatment for dealers.
    (iii) Related entities.
    (4) Examples.
    (c) Domestic trusts.

[[Page 229]]

    (d) Excepted domestic entities.
    (1) Certain persons described in section 1473(3).
    (2) Certain domestic trusts.
    (3) Domestic trusts owned by one or more specified persons.
    (e) Effective/applicability dates.

 Sec. 1.6038D-7  Exceptions from the reporting of certain assets under 
                             section 6038D.

    (a) Elimination of duplicative reporting of assets.
    (1) In general.
    (2) Foreign grantor trusts.
    (3) Joint Form 5471 or Form 8865 filing.
    (b) Owner of certain trusts.
    (c) Special rules for bona fide residents of a U.S. possession.
    (d) Effective/applicability dates.

           Sec. 1.6038D-8  Penalties for failure to disclose.

    (a) In general.
    (b) Married specified individuals filing a joint annual return.
    (c) Increase in penalty.
    (d) Presumption of aggregate value.
    (e) Reasonable cause exception.
    (1) In general.
    (2) Affirmative showing required.
    (3) Facts and circumstances taken into account.
    (f) Penalties for underpayments attributable to undisclosed foreign 
financial assets.
    (1) Accuracy related penalty.
    (2) Criminal penalties.
    (g) Effective/applicability dates.

[T.D. 9706, 79 FR 73824, Dec. 12, 2014, as amended by T.D. 9752, 81 FR 
8838, Feb. 23, 2016]



Sec. 1.6038D-1  Reporting with respect to specified foreign financial
assets, definition of terms.

    (a) In general. The following definitions apply for purposes of 
section 6038D and the regulations--
    (1) Specified person. The term specified person means a specified 
individual or a specified domestic entity.
    (2) Specified individual. The term specified individual means an 
individual who is a--
    (i) U.S. citizen;
    (ii) Resident alien of the United States for any portion of the 
taxable year;
    (iii) Nonresident alien for whom an election under section 6013(g) 
or (h) is in effect; or
    (iv) Nonresident alien who is a bona fide resident of Puerto Rico or 
a section 931 possession (as defined in Sec. 1.931-1(c)(1)).
    (3) Resident alien. The term resident alien has the meaning set 
forth in section 7701(b) and Secs. 301.7701(b)-1 through 301.7701(b)-9 
of this chapter.
    (4) Bona fide resident of a U.S. possession. The term bona fide 
resident of a U.S. possession means an individual who is a ``bona fide 
resident'' under section 937(a) and Sec. 1.937-1.
    (5) U.S. possession. The term U.S. possession means American Samoa, 
Guam, the Northern Mariana Islands, Puerto Rico, or the U.S. Virgin 
Islands.
    (6) Specified foreign financial asset. The term specified foreign 
financial asset has the meaning set forth in Sec. 1.6038D-3.
    (7) Financial account. The term financial account has the meaning 
set forth in Sec. 1.1471-5(b), provided, however, that the exclusions of 
retirement and pension accounts and non-retirement savings accounts 
under Sec. 1.1471-5(b)(2)(i) and retirement and pension accounts, non-
retirement savings accounts, and accounts satisfying similar conditions 
in an applicable Model 1 IGA or Model 2 IGA under Sec. 1.1471-
5(b)(2)(vi) shall not apply (see the section 6038D coordination rule in 
Sec. 1.1471-5(b)(2)(i)(D)). See Sec. 1.6038D-3(a)(2) relating to 
financial accounts maintained by a financial institution that is 
organized under the laws of a U.S. possession.
    (8) Financial institution. The term financial institution has the 
meaning set forth in section 1471(d)(5) and the regulations thereunder.
    (9) Foreign financial institution. The term foreign financial 
institution has the meaning set forth in Sec. 1.1471-5(d).
    (10) Foreign entity. The term foreign entity has the meaning set 
forth in Sec. 1.1473-1(e).
    (11) Annual return. The term annual return means an annual federal 
income tax return of a specified individual or an annual federal income 
tax return or information return of a specified domestic entity filed 
with the Internal Revenue Service under section 876, 6011, 6012, 6013, 
6031, or 6037, and the regulations.
    (12) Specified domestic entity. The term specified domestic entity 
has the meaning set forth in Sec. 1.6038D-6.

[[Page 230]]

    (13) Model 1 IGA and Model 2 IGA. The terms Model 1 IGA and Model 2 
IGA have the meanings set forth in Sec. 1.1471-1(b)(78) and (79), 
respectively.
    (b) Effective/applicability dates--(1) In general. Except as 
otherwise provided in this paragraph (b), this section applies to 
taxable years ending after December 19, 2011. Taxpayers may elect to 
apply the rules of this section to taxable years ending prior to 
December 19, 2011.
    (2) Financial accounts. For purposes of applying the financial 
account definition in Sec. 1.6038D-1(a)(7), the treatment under 
Sec. 1.1471-5(b)(2)(vi) of retirement and pension accounts, non-
retirement savings accounts, and accounts satisfying similar conditions 
in an applicable Model 1