[Federal Register Volume 59, Number 191 (Tuesday, October 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24392]
[[Page Unknown]]
[Federal Register: October 4, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 8565]
RIN 1545-AM88
Limitation on Passive Activity Losses and Credits--Definition of
Activity
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations defining the term
``activity'' for purposes of applying the limitations on passive
activity losses and passive activity credits. The final regulations
affect taxpayers subject to the limitations on passive activity losses
and passive activity credits and provide them with the guidance
necessary to comply with the law.
DATES: These regulations are effective May 11, 1992.
For dates of applicability of these regulations, see Sec. 1.469-11
of these regulations.
FOR FURTHER INFORMATION CONTACT: William M. Kostak at (202) 622-3080
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document amends 26 CFR part 1 to provide additional rules
under section 469. Section 469 limits the use of passive activity
losses and passive activity credits. Section 469(l)(1) provides that
the Treasury Department will prescribe regulations that may be
necessary or appropriate to carry out the provisions of section 469,
including regulations that specify what constitutes an activity for
purposes of that section.
On May 15, 1992, the IRS published in the Federal Register a notice
of proposed rulemaking (57 FR 20802) to replace certain temporary
regulations defining the term ``activity.'' A number of public comments
were received concerning the proposed regulations, and a public hearing
was held on September 3, 1992. After consideration of the comments
received, the proposed regulations are adopted as revised by this
Treasury decision.
Explanation of Provisions
I. General Background
Section 469 disallows losses from passive activities to the extent
they exceed income from passive activities and similarly disallows
credits from passive activities to the extent they exceed tax liability
allocable to passive activities. Passive activities are defined,
generally, as rental activities and activities in which the taxpayer
does not materially participate, but the statute does not define the
term ``activity.'' Except for modifications in response to comments
received on the proposed regulations, the final regulations generally
adopt the same definition of activity as contained in the proposed
regulations.
II. Public Comments
One comment suggested that the regulations make explicit that the
same facts and circumstances may result in more than one permissible
grouping of activities. In response to this comment, the final
regulations clarify that there may be more than one reasonable method
for grouping a taxpayer's activities after taking into account all the
relevant facts and circumstances.
Another comment concerned an example in the proposed regulations
that illustrates the grouping of two activities, both conducted through
partnerships, where one activity involves the sale of non-food items to
grocery stores and the other activity involves the warehousing of goods
predominantly for the first activity. The comment suggested clarifying
whether the warehousing activity is a rental activity or a trade or
business activity. To clarify this point, the final regulations use the
example of a trucking activity rather than a warehousing activity.
Several comments requested clarification of the rule that trade or
business activities may be grouped together with rental activities only
if one is insubstantial in relation to the other. Some comments
suggested specifying that the term ``insubstantial'' refers to factors
other than gross income. Other comments suggested adopting a bright-
line or safe-harbor gross revenue test. Because the regulations already
adopt a facts-and-circumstances test that looks at all of the pertinent
factors, it is not necessary to specify that the term insubstantial
refers to factors other than gross income. In addition, to avoid
complex and mechanical rules, the final regulations do not adopt a
bright-line or safe-harbor gross revenue test.
Another comment suggested that the insubstantial requirement should
not apply when a taxpayer is renting property to the taxpayer's trade
or business. In response to this comment, the final regulations provide
that the portion of a rental activity that involves the rental of items
of property to a trade or business activity may be grouped with the
trade or business activity, regardless of whether one activity is
insubstantial in relation to the other, provided each owner of the
trade or business activity has the same proportionate ownership
interest in the rental activity.
As under the proposed regulations, the Commissioner is authorized
to issue guidance identifying activities that may not be grouped with
other activities. The final regulations clarify that this authority is
not restricted to activities owned by limited partners or limited
entrepreneurs.
A commentator requested clarification on whether activities
conducted through a C corporation may be grouped with activities not
conducted through the C corporation. The final regulations clarify that
in determining whether a taxpayer materially or significantly
participates in an activity, a taxpayer may group that activity with
activities conducted through C corporations that are subject to section
469 (that is, personal service and closely held C corporations).
In response to a comment, the final regulations clarify that an
owner of an interest in an entity may not treat as separate activities
the activities grouped together by the entity. However, if the
activities are not grouped together by the entity, an owner of that
entity may group the activities together so long as the grouping is
appropriate under the general rules for grouping activities.
The final regulations also clarify the Commissioner's regrouping
authority. Under the final regulations, the Commissioner may regroup a
taxpayer's activities if any of the activities resulting from the
taxpayer's grouping is not an appropriate economic unit and a principal
purpose of the taxpayer's grouping is to circumvent the underlying
purposes of section 469. If the Commissioner can show that the effect
of a taxpayer's grouping is the circumvention of the underlying
purposes of section 469, this will be evidence, sufficient in certain
cases, of a principal purpose of the grouping. It is expected, however,
that the Commissioner's regrouping authority will be exercised
infrequently.
Tax practitioners have also inquired concerning the circumstances
in which suspended losses will be allowed on the disposition of part of
an activity. The final regulations modify the rule in the proposed
regulations to provide that the rule allowing suspended losses on
partial dispositions applies only to dispositions of substantially all
of an activity. However, the effective date of the final regulations
provides transitional rules that allow taxpayers to use the rules
provided in the proposed regulations for taxable years beginning before
October 4, 1994.
Several comments requested guidance on when activities grouped in
accordance with the rules in the temporary regulations must be
regrouped under the final regulations. In accordance with the effective
date provisions, taxpayers that grouped their activities under the
rules in the temporary regulations must regroup their activities if
their activities are not appropriate economic units under these
regulations. The effective date and transition rules reflect this
clarification.
These regulations do not address the grouping of rental real estate
activities by taxpayers subject to section 469(c)(7), as enacted by the
Revenue Reconciliation Act of 1993.
III. Effective Dates
In general, these regulations are effective for taxable years
ending after May 10, 1992. However, for taxable years in which these
regulations apply and that begin before October 4, 1994, a taxpayer may
determine its tax liability in accordance with proposed Sec. 1.469-4
published at 1992-1 C.B. 1219. For taxable years ending on or before
May 10, 1992, taxpayers must apply the rules of Sec. 1.469-4T. For the
taxable year that includes May 10, 1992, taxpayers may choose to apply
the rules in Sec. 1.469-4T, rather than the rules in these regulations.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866.
Therefore, a regulatory assessment is not required. It also has been
determined that section 553(b) of the Administrative Procedure Act (5
U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter
6) do not apply to these regulations, and, therefore, a Regulatory
Flexibility Analysis is not required. Pursuant to section 7805(f) of
the Internal Revenue Code, the notice of proposed rulemaking preceding
these regulations was submitted to the Small Business Administration
for comment on its impact on small business.
Drafting Information
The principal authors of these regulations are Ronald M. Gootzeit
and William M. Kostak, Office of the Assistant Chief Counsel
(Passthroughs and Special Industries), IRS. However, other personnel
from the IRS and Treasury Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR part 1 is amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 is amended by
removing the entry ``Secs. 1.469-1, 1.469-1T, 1.469-2, 1.469-2T, 1.469-
3, 1.469-3T, 1.469-5, 1.469-5T and 1.469-11'' and adding the following
entries in numerical order to read as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.469-1 also issued under 26 U.S.C. 469(l).
Section 1.469-1T also issued under 26 U.S.C. 469(l).
Section 1.469-2 also issued under 26 U.S.C. 469(l).
Section 1.469-2T also issued under 26 U.S.C. 469(l).
Section 1.469-3 also issued under 26 U.S.C. 469(l).
Section 1.469-3T also issued under 26 U.S.C. 469(l).
Section 1.469-4 also issued under 26 U.S.C. 469(l).
Section 1.469-5 also issued under 26 U.S.C. 469(l).
Section 1.469-5T also issued under 26 U.S.C. 469(l).
Section 1.469-11 also issued under 26 U.S.C. 469(l). * * *
Par. 2. Section 1.469-0 is amended by:
1. Revising the heading for Sec. 1.469-4 and adding entries for
Sec. 1.469-4 (a) through (h).
2. Revising the entry for Sec. 1.469-11(b)(1).
3. Revising the entry for Sec. 1.469-11(b)(2).
4. Adding entries for Sec. 1.469-11(b)(2)(i) and (ii).
5. Adding an entry for Sec. 1.469-11(b)(3).
6. The additions and revisions read as follows:
Sec. 1.469-0 Table of contents.
* * * * *
Sec. 1.469-4 Definition of Activity
(a) Scope and purpose.
(b) Definitions.
(1) Trade or business activities.
(2) Rental activities.
(c) General rules for grouping activities.
(1) Appropriate economic unit.
(2) Facts and circumstances test.
(3) Examples.
(d) Limitation on grouping certain activities.
(1) Grouping rental activities with other trade or business
activities.
(i) Rule.
(ii) Examples.
(2) Grouping real property rentals and personal property rentals
prohibited.
(3) Certain activities of limited partners and limited
entrepreneurs.
(i) In general.
(ii) Example.
(4) Other activities identified by the Commissioner.
(5) Activities conducted through section 469 entities.
(i) In general.
(ii) Cross reference.
(e) Disclosure and consistency requirements.
(1) Original groupings.
(2) Regroupings.
(f) Grouping by Commissioner to prevent tax avoidance.
(1) Rule.
(2) Example.
(g) Treatment of partial dispositions.
(h) Rules for grouping rental real estate activities for
taxpayers qualifying under section 469(c)(7) for taxable years
beginning after December 31, 1993 [Reserved].
* * * * *
Sec. 1.469-11 Effective Date and Transition Rules
* * * * *
(b) * * *
(1) Application of 1992 amendments for taxable years beginning
before October 4, 1994.
(2) Additional transition rules for 1992 amendments.
(i) In general.
(ii) Additional rule for activity regulations.
(3) Certain investment credit property.
* * * * *
Par. 3. Section 1.469-4 is added to read as follows:
Sec. 1.469-4 Definition of activity.
(a) Scope and purpose. This section sets forth the rules for
grouping a taxpayer's trade or business activities and rental
activities for purposes of applying the passive activity loss and
credit limitation rules of section 469. A taxpayer's activities include
those conducted through C corporations that are subject to section 469,
S corporations, and partnerships.
(b) Definitions. The following definitions apply for purposes of
this section--
(1) Trade or business activities. Trade or business activities are
activities, other than rental activities or activities that are treated
under Sec. 1.469-1T(e)(3)(vi)(B) as incidental to an activity of
holding property for investment, that--
(i) Involve the conduct of a trade or business (within the meaning
of section 162);
(ii) Are conducted in anticipation of the commencement of a trade
or business; or
(iii) Involve research or experimental expenditures that are
deductible under section 174 (or would be deductible if the taxpayer
adopted the method described in section 174(a)).
(2) Rental activities. Rental activities are activities that
constitute rental activities within the meaning of Sec. 1.469-1T(e)(3).
(c) General rules for grouping activities--(1) Appropriate economic
unit. One or more trade or business activities or rental activities may
be treated as a single activity if the activities constitute an
appropriate economic unit for the measurement of gain or loss for
purposes of section 469.
(2) Facts and circumstances test. Except as otherwise provided in
this section, whether activities constitute an appropriate economic
unit and, therefore, may be treated as a single activity depends upon
all the relevant facts and circumstances. A taxpayer may use any
reasonable method of applying the relevant facts and circumstances in
grouping activities. The factors listed below, not all of which are
necessary for a taxpayer to treat more than one activity as a single
activity, are given the greatest weight in determining whether
activities constitute an appropriate economic unit for the measurement
of gain or loss for purposes of section 469--
(i) Similarities and differences in types of trades or businesses;
(ii) The extent of common control;
(iii) The extent of common ownership;
(iv) Geographical location; and
(v) Interdependencies between or among the activities (for example,
the extent to which the activities purchase or sell goods between or
among themselves, involve products or services that are normally
provided together, have the same customers, have the same employees, or
are accounted for with a single set of books and records).
(3) Examples. The following examples illustrate the application of
this paragraph (c).
Example 1. Taxpayer C has a significant ownership interest in a
bakery and a movie theater at a shopping mall in Baltimore and in a
bakery and a movie theater in Philadelphia. In this case, after
taking into account all the relevant facts and circumstances, there
may be more than one reasonable method for grouping C's activities.
For instance, depending on the relevant facts and circumstances, the
following groupings may or may not be permissible: a single
activity; a movie theater activity and a bakery activity; a
Baltimore activity and a Philadelphia activity; or four separate
activities. Moreover, once C groups these activities into
appropriate economic units, paragraph (e) of this section requires C
to continue using that grouping in subsequent taxable years unless a
material change in the facts and circumstances makes it clearly
inappropriate.
Example 2. Taxpayer B, an individual, is a partner in a business
that sells non-food items to grocery stores (partnership L). B also
is a partner in a partnership that owns and operates a trucking
business (partnership Q). The two partnerships are under common
control. The predominant portion of Q's business is transporting
goods for L, and Q is the only trucking business in which B is
involved. Under this section, B appropriately treats L's wholesale
activity and Q's trucking activity as a single activity.
(d) Limitation on grouping certain activities. The grouping of
activities under this section is subject to the following limitations:
(1) Grouping rental activities with other trade or business
activities--(i) Rule. A rental activity may not be grouped with a trade
or business activity unless the activities being grouped together
constitute an appropriate economic unit under paragraph (c) of this
section and--
(A) The rental activity is insubstantial in relation to the trade
or business activity;
(B) The trade or business activity is insubstantial in relation to
the rental activity; or
(C) Each owner of the trade or business activity has the same
proportionate ownership interest in the rental activity, in which case
the portion of the rental activity that involves the rental of items of
property for use in the trade or business activity may be grouped with
the trade or business activity.
(ii) Examples. The following examples illustrate the application of
paragraph (d)(1)(i) of this section:
Example 1. (i) H and W are married and file a joint return. H is
the sole shareholder of an S corporation that conducts a grocery
store trade or business activity. W is the sole shareholder of an S
corporation that owns and rents out a building. Part of the building
is rented to H's grocery store trade or business activity (the
grocery store rental). The grocery store rental and the grocery
store trade or business are not insubstantial in relation to each
other.
(ii) Because they file a joint return, H and W are treated as
one taxpayer for purposes of section 469. See Sec. 1.469-1T(j).
Therefore, the sole owner of the trade or business activity
(taxpayer H-W) is also the sole owner of the rental activity.
Consequently, each owner of the trade or business activity has the
same proportionate ownership interest in the rental activity.
Accordingly, the grocery store rental and the grocery store trade or
business activity may be grouped together (under paragraph (d)(1)(i)
of this section) into a single trade or business activity, if the
grouping is appropriate under paragraph (c) of this section.
Example 2. Attorney D is a sole practitioner in town X. D also
wholly owns residential real estate in town X that D rents to third
parties. D's law practice is a trade or business activity within the
meaning of paragraph (b)(1) of this section. The residential real
estate is a rental activity within the meaning of Sec. 1.469-
1T(e)(3) and is insubstantial in relation to D's law practice. Under
the facts and circumstances, the law practice and the residential
real estate do not constitute an appropriate economic unit under
paragraph (c) of this section. Therefore, D may not treat the law
practice and the residential real estate as a single activity.
(2) Grouping real property rentals and personal property rentals
prohibited. An activity involving the rental of real property and an
activity involving the rental of personal property (other than personal
property provided in connection with the real property or real property
provided in connection with the personal property) may not be treated
as a single activity.
(3) Certain activities of limited partners and limited
entrepreneurs--(i) In general. Except as provided in this paragraph, a
taxpayer that owns an interest, as a limited partner or a limited
entrepreneur (as defined in section 464(e)(2)), in an activity
described in section 465(c)(1), may not group that activity with any
other activity. A taxpayer that owns an interest as a limited partner
or a limited entrepreneur in an activity described in the preceding
sentence may group that activity with another activity in the same type
of business if the grouping is appropriate under the provisions of
paragraph (c) of this section.
(ii) Example. The following example illustrates the application of
this paragraph (d)(3):
Example. (i) Taxpayer A, an individual, owns and operates a
farm. A is also a member of M, a limited liability company that
conducts a cattle-feeding business. A does not actively participate
in the management of M (within the meaning of section 464(e)(2)(B)).
In addition, A is a limited partner in N, a limited partnership
engaged in oil and gas production.
(ii) Because A does not actively participate in the management
of M, A is a limited entrepreneur in M's activity. M's cattle-
feeding business is described in section 465(c)(1)(B) (relating to
farming) and may not be grouped with any other activity that does
not involve farming. Moreover, A's farm may not be grouped with the
cattle-feeding activity unless the grouping constitutes an
appropriate economic unit for the measurement of gain or loss for
purposes of section 469.
(iii) Because A is a limited partner in N and N's activity is
described in section 465(c)(1)(D) (relating to exploring for, or
exploiting, oil and gas resources), A may not group N's oil and gas
activity with any other activity that does not involve exploring
for, or exploiting, oil and gas resources. Thus, N's activity may
not be grouped with A's farm or with M's cattle-feeding business.
(4) Other activities identified by the Commissioner. A taxpayer
that owns an interest in an activity identified in guidance issued by
the Commissioner as an activity covered by this paragraph (d)(4) may
not group that activity with any other activity, except as provided in
the guidance issued by the Commissioner.
(5) Activities conducted through section 469 entities--(i) In
general. A C corporation subject to section 469, an S corporation, or a
partnership (a section 469 entity) must group its activities under the
rules of this section. Once the section 469 entity groups its
activities, a shareholder or partner may group those activities with
each other, with activities conducted directly by the shareholder or
partner, and with activities conducted through other section 469
entities, in accordance with the rules of this section. A shareholder
or partner may not treat activities grouped together by a section 469
entity as separate activities.
(ii) Cross reference. An activity that a taxpayer conducts through
a C corporation subject to section 469 may be grouped with another
activity of the taxpayer, but only for purposes of determining whether
the taxpayer materially or significantly participates in the other
activity. See Sec. 1.469-2T(c)(3)(i)(A) and (c)(4)(i) for the rules
regarding dividends on C corporation stock and compensation paid for
personal services.
(e) Disclosure and consistency requirements--(1) Original
groupings. Except as provided in paragraph (e)(2) of this section, once
a taxpayer has grouped activities under this section, the taxpayer may
not regroup those activities in subsequent taxable years. Taxpayers
must comply with disclosure requirements that the Commissioner may
prescribe with respect to both their original groupings and the
addition and disposition of specific activities within those chosen
groupings in subsequent taxable years.
(2) Regroupings. If it is determined that a taxpayer's original
grouping was clearly inappropriate or a material change has occurred
that makes the original grouping clearly inappropriate, the taxpayer
must regroup the activities and must comply with disclosure
requirements that the Commissioner may prescribe.
(f) Grouping by Commissioner to prevent tax avoidance--(1) Rule.
The Commissioner may regroup a taxpayer's activities if any of the
activities resulting from the taxpayer's grouping is not an appropriate
economic unit and a principal purpose of the taxpayer's grouping (or
failure to regroup under paragraph (e) of this section) is to
circumvent the underlying purposes of section 469.
(2) Example. The following example illustrates the application of
this paragraph (f):
Example. (i) Taxpayers D, E, F, G, and H are doctors who operate
separate medical practices. D invested in a tax shelter several
years ago that generates passive losses and the other doctors intend
to invest in real estate that will generate passive losses. The
taxpayers form a partnership to engage in the trade or business of
acquiring and operating X-ray equipment. In exchange for equipment
contributed to the partnership, the taxpayers receive limited
partnership interests. The partnership is managed by a general
partner selected by the taxpayers; the taxpayers do not materially
participate in its operations. Substantially all of the
partnership's services are provided to the taxpayers or their
patients, roughly in proportion to the doctors' interests in the
partnership. Fees for the partnership's services are set at a level
equal to the amounts that would be charged if the partnership were
dealing with the taxpayers at arm's length and are expected to
assure the partnership a profit. The taxpayers treat the
partnership's services as a separate activity from their medical
practices and offset the income generated by the partnership against
their passive losses.
(ii) For each of the taxpayers, the taxpayer's own medical
practice and the services provided by the partnership constitute an
appropriate economic unit, but the services provided by the
partnership do not separately constitute an appropriate economic
unit. Moreover, a principal purpose of treating the medical
practices and the partnership's services as separate activities is
to circumvent the underlying purposes of section 469. Accordingly,
the Commissioner may require the taxpayers to treat their medical
practices and their interests in the partnership as a single
activity, regardless of whether the separate medical practices are
conducted through C corporations subject to section 469, S
corporations, partnerships, or sole proprietorships. The
Commissioner may assert penalties under section 6662 against the
taxpayers in appropriate circumstances.
(g) Treatment of partial dispositions. A taxpayer may, for the
taxable year in which there is a disposition of substantially all of an
activity, treat the part disposed of as a separate activity, but only
if the taxpayer can establish with reasonable certainty--
(1) The amount of deductions and credits allocable to that part of
the activity for the taxable year under Sec. 1.469-1(f)(4) (relating to
carryover of disallowed deductions and credits); and
(2) The amount of gross income and of any other deductions and
credits allocable to that part of the activity for the taxable year.
(h) Rules for grouping rental real estate activities for taxpayers
qualifying under section 469(c)(7) for taxable years beginning after
December 31, 1993. [Reserved]
Par. 4. Section 1.469-11 is amended as follows:
1. Paragraph (a)(1) is revised.
2. Paragraph (b)(1) is revised.
3. Paragraph (b)(2) is redesignated as paragraph (b)(3).
4. A new paragraph (b)(2) is added.
5. The added and revised provisions read as follows:
Sec. 1.469-11 Effective date and transition rules.
(a) * * *
(1) The rules contained in Secs. 1.469-1, 1.469-1T, 1.469-2, 1.469-
2T, 1.469-3, 1.469-3T, 1.469-4, 1.469-5, and 1.469-5T apply for taxable
years ending after May 10, 1992.
* * * * *
(b) * * * (1) Application of 1992 amendments for taxable years
beginning before October 4, 1994. Except as provided in paragraph
(b)(2)(i) of this section, for taxable years that end after May 10,
1992, and begin before October 4, 1994, a taxpayer may determine its
tax liability in accordance with Project PS-1-89 published at 1992-1
C.B. 1219 (see Sec. 601.601(d)(2)(ii)(b) of this chapter).
(2) Additional transition rules for 1992 amendments--(i) In
general. If a taxpayer's first taxable year ending after May 10, 1992,
begins on or before that date, the taxpayer may treat the taxable year,
for purposes of paragraph (a) of this section, as a taxable year ending
on or before May 10, 1992.
(ii) Additional rule for activity regulations. For the first
taxable year in which the rules in Sec. 1.469-4 apply, taxpayers that
are not in compliance with those rules must regroup their activities
under those rules, without regard to the manner in which the activities
were grouped in prior taxable years.
* * * * *
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Approved: August 1, 1994.
Leslie Samuels,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 94-24392 Filed 10-3-94; 8:45 am]
BILLING CODE 4830-01-U