Bulletin No. 2020–28

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Bulletin No. 2020–28

July 6, 2020

These synopses are intended only as aids to the reader in

identifying the subject matter covered. They may not be

relied upon as authoritative interpretations.

EMPLOYEE PLANS

INCOME TAX

Notice 2020-50, page 35.

REG-119307-19, page 44.

This notice provides guidance relating to the application of

section 2202 of the CARES Act for qualified individuals and

eligible retirement plans. Under section 2202 of the CARES

Act, qualified individuals receive favorable tax treatment

with respect to distributions from eligible retirement plans

that are coronavirus-related distributions. A coronavirus-related distribution is not subject to the 10% additional tax

under § 72(t) of the Code, generally is includible in income

over a 3-year period, and, to the extent the distribution is

eligible for tax-free rollover treatment and is contributed

to an eligible retirement plan within a 3-year period, will

not be includible in income. Section 2202 of the CARES

Act also increases the allowable plan loan amount under §

72(p) of the Code and permits a suspension of payments

for plan loans that are made to qualified individuals. The

guidance in this notice is intended to assist employers and

plan administrators, trustees and custodians, and qualified

individuals in applying section 2202 of the CARES Act, including by providing guidance on how plans may report

coronavirus-related distributions and how individuals may

report these distributions on their individual federal income

tax returns.

Finding Lists begin on page ii.

These proposed regulations provide guidance under section 274 of the Internal Revenue Code (Code) regarding

certain amendments made to section 274 by the Tax Cuts

and Jobs Act of 2017 (TCJA). These proposed regulations

address the elimination of the deduction under section 274

for expenses related to certain transportation and commuting benefits provided by employers to their employees in

taxable years beginning after December 31, 2017. The

proposed regulations provide guidance to determine the

amount of such expenses that is nondeductible and apply

certain exceptions under section 274(e) that may allow

such expenses to be deductible. These proposed regulations affect taxpayers who pay or incur expenses for transportation and commuting benefits in taxable years beginning after December 31, 2017.

Rev. Rul. 2020-14, page 33.

Federal rates; adjusted federal rates; adjusted federal longterm rate, the long-term exempt rate, and the blended annual

rate. For purposes of sections 382, 1274, 1288, 7872 and

other sections of the Code, tables set forth the rates for July

2020.

The IRS Mission

Provide America’s taxpayers top-quality service by helping

them understand and meet their tax responsibilities and enforce the law with integrity and fairness to all.

Introduction

The Internal Revenue Bulletin is the authoritative instrument

of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service

and for publishing Treasury Decisions, Executive Orders, Tax

Conventions, legislation, court decisions, and other items of

general interest. It is published weekly.

It is the policy of the Service to publish in the Bulletin all substantive rulings necessary to promote a uniform application

of the tax laws, including all rulings that supersede, revoke,

modify, or amend any of those previously published in the

Bulletin. All published rulings apply retroactively unless otherwise indicated. Procedures relating solely to matters of internal management are not published; however, statements of

internal practices and procedures that affect the rights and

duties of taxpayers are published.

Revenue rulings represent the conclusions of the Service

on the application of the law to the pivotal facts stated in

the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices,

identifying details and information of a confidential nature are

deleted to prevent unwarranted invasions of privacy and to

comply with statutory requirements.

Rulings and procedures reported in the Bulletin do not have the

force and effect of Treasury Department Regulations, but they

may be used as precedents. Unpublished rulings will not be

relied on, used, or cited as precedents by Service personnel in

the disposition of other cases. In applying published rulings and

procedures, the effect of subsequent legislation, regulations,

court decisions, rulings, and procedures must be considered,

and Service personnel and others concerned are cautioned

against reaching the same conclusions in other cases unless

the facts and circumstances are substantially the same.

The Bulletin is divided into four parts as follows:

Part I.—1986 Code.

This part includes rulings and decisions based on provisions

of the Internal Revenue Code of 1986.

Part II.—Treaties and Tax Legislation.

This part is divided into two subparts as follows: Subpart A,

Tax Conventions and Other Related Items, and Subpart B,

Legislation and Related Committee Reports.

Part III.—Administrative, Procedural, and Miscellaneous.

To the extent practicable, pertinent cross references to these

subjects are contained in the other Parts and Subparts. Also

included in this part are Bank Secrecy Act Administrative

Rulings. Bank Secrecy Act Administrative Rulings are issued

by the Department of the Treasury’s Office of the Assistant

Secretary (Enforcement).

Part IV.—Items of General Interest.

This part includes notices of proposed rulemakings, disbarment and suspension lists, and announcements.

The last Bulletin for each month includes a cumulative index

for the matters published during the preceding months. These

monthly indexes are cumulated on a semiannual basis, and are

published in the last Bulletin of each semiannual period.

The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate.

July 6, 2020 

Bulletin No. 2020–28

Part I

Section 1274.—

Determination of Issue

Price in the Case of Certain

Debt Instruments Issued for

Property

(Also Sections 42, 280G, 382, 467, 468, 482, 483,

1288, 7520, 7872.)

Rev. Rul. 2020-14

This revenue ruling provides various prescribed rates for federal income

Annual

AFR

110% AFR

120% AFR

130% AFR

0.18%

0.20%

0.22%

0.23%

AFR

110% AFR

120% AFR

130% AFR

150% AFR

175% AFR

0.45%

0.50%

0.54%

0.59%

0.68%

0.79%

AFR

110% AFR

120% AFR

130% AFR

1.17%

1.29%

1.40%

1.53%

Short-term adjusted AFR

Mid-term adjusted AFR

Long-term adjusted AFR

Bulletin No. 2020–28

tax purposes for July 2020 (the current

month). Table 1 contains the short-term,

mid-term, and long-term applicable federal rates (AFR) for the current month for

purposes of section 1274(d) of the Internal Revenue Code. Table 2 contains the

short-term, mid-term, and long-term adjusted applicable federal rates (adjusted

AFR) for the current month for purposes

of section 1288(b). Table 3 sets forth the

adjusted federal long-term rate and the

long-term tax-exempt rate described in

section 382(f). Table 4 contains the appropriate percentages for determining the

REV. RUL. 2020-14 TABLE 1

Applicable Federal Rates (AFR) for July 2020

Period for Compounding

Semiannual

Short-term

0.18%

0.20%

0.22%

0.23%

Mid-term

0.45%

0.50%

0.54%

0.59%

0.68%

0.79%

Long-term

1.17%

1.29%

1.40%

1.52%

Annual

0.14%

0.34%

0.89%

REV. RUL. 2020-14 TABLE 2

Adjusted AFR for July 2020

Period for Compounding

Semiannual

0.14%

0.34%

0.89%

33

low-income housing credit described in

section 42(b)(1) for buildings placed in

service during the current month. However, under section 42(b)(2), the applicable

percentage for non-federally subsidized

new buildings placed in service after July

30, 2008, shall not be less than 9%. Table

5 contains the federal rate for determining

the present value of an annuity, an interest

for life or for a term of years, or a remainder or a reversionary interest for purposes

of section 7520. Finally, Table 6 contains

the blended annual rate for 2020 for purposes of section 7872.

Quarterly

Monthly

0.18%

0.20%

0.22%

0.23%

0.18%

0.20%

0.22%

0.23%

0.45%

0.50%

0.54%

0.59%

0.68%

0.79%

0.45%

0.50%

0.54%

0.59%

0.68%

0.79%

1.17%

1.29%

1.40%

1.52%

1.17%

1.29%

1.40%

1.52%

Quarterly

0.14%

0.34%

0.89%

Monthly

0.14%

0.34%

0.89%

July 6, 2020

REV. RUL. 2020-14 TABLE 3

Rates Under Section 382 for July 2020

Adjusted federal long-term rate for the current month

Long-term tax-exempt rate for ownership changes during the current month (the highest of

the adjusted federal long-term rates for the current month and the prior two months.)

.89%

.89%

REV. RUL. 2020-14 TABLE 4

Appropriate Percentages Under Section 42(b)(1) for July 2020

Note: Under section 42(b)(2), the applicable percentage for non-federally subsidized new buildings placed in service after July

30, 2008, shall not be less than 9%.

Appropriate percentage for the 70% present value low-income housing credit

7.18%

Appropriate percentage for the 30% present value low-income housing credit

3.08%

REV. RUL. 2020-14 TABLE 5

Rate Under Section 7520 for July 2020

Applicable federal rate for determining the present value of an annuity, an interest for life or

a term of years, or a remainder or reversionary interest

.6%

REV. RUL. 2020-14 TABLE 6

Blended Annual Rate for 2020

Section 7872(e)(2) blended annual rate for 2020

Section 42.—Low-Income

Housing Credit

The applicable federal short-term, mid-term,

and long-term rates are set forth for the month of

July 2020. See Rev. Rul. 2020-14, page 33.

Section 280G.—Golden

Parachute Payments

The applicable federal short-term, mid-term,

and long-term rates are set forth for the month of

July 2020. See Rev. Rul. 2020-14, page 33.

Section 382.—Limitation

on Net Operating Loss

Carryforwards and

Certain Built-In Losses

Following Ownership

Change

The adjusted applicable federal long-term rate

is set forth for the month of July 2020. See Rev.

Rul. 2020-14, page 33.

July 6, 2020

.89%

Section 467.—Certain

Payments for the Use of

Property or Services

The applicable federal short-term, mid-term,

and long-term rates are set forth for the month of

July 2020. See Rev. Rul. 2020-14, page 33.

Section 468.—Special

Rules for Mining and Solid

Waste Reclamation and

Closing Costs

The applicable federal short-term rates are set

forth for the month of July 2020. See Rev. Rul.

2020-14, page 33.

Section 482.—Allocation

of Income and Deductions

Among Taxpayers

The applicable federal short-term, mid-term,

and long-term rates are set forth for the month of

July 2020. See Rev. Rul. 2020-14, page 33.

Section 483.—Interest on

Certain Deferred Payments

The applicable federal short-term, mid-term,

and long-term rates are set forth for the month of

July 2020. See Rev. Rul. 2020-14, page 33.

Section 1288.—Treatment

of Original Issue Discount

on Tax-Exempt Obligations

The adjusted applicable federal short-term, midterm, and long-term rates are set forth for the month of

July 2020. See Rev. Rul. 2020-14, page 33.

Section 7520.—Valuation

Tables

The applicable federal mid-term rates are set

forth for the month of July 2020. See Rev. Rul.

2020-14, page 33.

Section 7872.—Treatment

of Loans With BelowMarket Interest Rates

The applicable federal short-term, mid-term,

and long-term rates are set forth for the month of

July 2020. See Rev. Rul. 2020-14, page 33.

34

Bulletin No. 2020–28

Part III

Guidance for CoronavirusRelated Distributions and

Loans from Retirement

Plans Under the CARES Act

Notice 2020-50

PURPOSE

This notice provides guidance relating to

the application of section 2202 of the Coronavirus Aid, Relief, and Economic Security

Act, Pub. L. 116-136, 134 Stat. 281 (2020)

(CARES Act) for qualified individuals and

eligible retirement plans. The CARES Act

was enacted on March 27, 2020. Under

section 2202 of the CARES Act, qualified

individuals receive favorable tax treatment

with respect to distributions from eligible

retirement plans that are coronavirus-related

distributions. A coronavirus-related distribution is not subject to the 10% additional

tax under § 72(t) of the Internal Revenue

Code (Code) (including the 25% additional

tax under § 72(t)(6) for certain distributions

from SIMPLE IRAs), generally is includible

in income over a 3-year period, and, to the

extent the distribution is eligible for tax-free

rollover treatment and is contributed to an

eligible retirement plan within a 3-year period, will not be includible in income. Section

2202 of the CARES Act also increases the

allowable plan loan amount under § 72(p) of

the Code and permits a suspension of payments for plan loans outstanding on or after

March 27, 2020, that are made to qualified

individuals. The guidance in this notice is intended to assist employers and plan administrators, trustees and custodians, and qualified individuals in applying section 2202

of the CARES Act, including by providing

guidance on how plans may report coronavirus-related distributions and how individuals may report these distributions on their

individual federal income tax returns.

BACKGROUND

A. Distributions

Under § 402(c)(8), an eligible retirement plan includes an individual retire-

Bulletin No. 2020–28

ment arrangement (IRA) under § 408(a)

or (b), a qualified plan under § 401(a), an

annuity plan under § 403(a), a § 403(b)

plan, and a governmental deferred compensation plan under § 457(b). Distributions from these plans generally are includible in the distributee’s gross income in

the year of the distribution. For example,

for qualified plans, § 402(a) provides that

any amount actually distributed to a distributee is taxable to the distributee in the

taxable year of the distribution under §

72. Similar rules apply to § 403(b) plans

under § 403(b)(1), governmental § 457(b)

plans under § 457(a), and IRAs under

§ 408(d)(1).

Section 402(c)(4) provides that any

distribution of all or a portion of the balance to the credit of an employee under a

qualified plan is an eligible rollover distribution with certain exceptions. These

exceptions include substantially equal

periodic payments over a specified period of at least 10 years, or for the life

or the life expectancy of the employee

(or the employee and the employee’s

designated beneficiary); minimum distributions required under § 401(a)(9);

and any distribution that is made upon

the hardship of an employee. This same

definition of eligible rollover distribution

applies to distributions from § 403(b)

plans under § 403(b)(8) and governmental § 457(b) plans under § 457(e)(16).

Generally, any distribution from an IRA

is eligible for rollover except a required

minimum distribution or certain distributions from inherited IRAs. Section 2203

of the CARES Act provides that, for eligible retirement plans other than defined

benefit plans, no minimum distributions

under § 401(a)(9) are required for 2020.

Under § 401(a)(31)(A), if a distributee

elects to have an eligible rollover distribution paid directly to an eligible retirement

plan and specifies the eligible retirement

plan to receive the distribution, a qualified plan must pay the distribution to that

eligible retirement plan in a direct rollover. Similar rules apply to § 403(b) plans

under § 403(b)(10) and governmental §

457(b) plans under § 457(d)(1).

Q&A-14 of § 1.401(a)(31)-1 provides

that if a plan accepts an invalid rollover

contribution, for purposes of applying the

35

qualification requirements to the receiving plan, the contribution will be treated

as if it were a valid rollover contribution

if two conditions are satisfied. First, when

accepting the amount from the employee

as a rollover contribution, the plan administrator of the receiving plan reasonably concludes that the contribution is a

valid rollover contribution. Second, if the

plan administrator later determines that

the rollover contribution was an invalid

rollover contribution, any amount attributable to the invalid rollover contribution

(including earnings) must be distributed to

the employee within a reasonable amount

of time after the determination.

Under § 402(c), if an eligible rollover

distribution is contributed to an eligible

retirement plan in a direct rollover or within 60 days from the date of distribution as

a rollover contribution, the amount rolled

over is not includible in the distributee’s

gross income. In certain situations, the 60day rollover period is extended; for example, under § 402(c)(3), the rollover period

for qualified plan loan offsets is extended

to the federal income tax return deadline

for the year of the distribution.

Section 401(k)(2)(B)(i) generally provides that amounts attributable to elective contributions under a qualified cash

or deferred arrangement may not be distributable to participants or beneficiaries

earlier than severance from employment,

death or disability, plan termination, attainment of age 59½, hardship of the

employee, entitlement to a qualified reservist distribution, or, for amounts held

in lifetime income investments, 90 days

prior to the date that the lifetime income

investment is no longer held by the arrangement. Similar rules apply to custodial accounts under § 403(b)(7)(A)(i),

to annuity contracts under § 403(b)(11),

and to governmental § 457(b) plans under § 457(d)(1)(A).

Section 72(t)(1) imposes an additional tax on early distributions from eligible

retirement plans (other than governmental § 457(b) plans, unless a distribution is

attributable to an amount that was transferred to the § 457(b) plan from a plan

that was subject to § 72(t)). In general,

this additional tax is equal to 10% of the

portion of the distribution that is includi-

July 6, 2020

ble in income. For any amount distributed

from a SIMPLE IRA during the 2-year

period described in § 72(t)(6), the rate of

the additional tax is increased from 10%

to 25%. Section 72(t)(2) provides a number of exceptions to this additional tax,

including, for example, exceptions for

distributions made on or after the date on

which the employee attains age 59½, distributions made to a beneficiary on or after

the employee’s death, distributions made

because of the employee’s disability, and

distributions that are part of substantially

equal periodic payments made over the

employee’s life or life expectancy.

Section 402(f) provides that a plan is

required to provide a distributee, within a

reasonable period of time before an eligible rollover distribution is made, a written

explanation of the distributee’s rollover

rights and the tax and other potential consequences of the distribution or rollover.

B. Plan loans

Section 72(p) imposes certain requirements relating to plan loans. Unless these

requirements are satisfied, an amount received by a participant as a loan is treated as having been received as a distribution from the plan (deemed distribution).

Deemed distributions are includible in income and are subject to the 10% additional tax under § 72(t), unless an exception

applies.

Under § 72(p)(2)(A), a plan loan (when

added to the outstanding balance of all

other loans outstanding) must not exceed

the lesser of (1) $50,000, reduced by the

excess of the highest outstanding balance

of loans from the plan during the 1-year

period ending on the day before the date

on which the loan is made over the outstanding balance of loans from the plan

on the date that the loan is made, or (2)

the greater of $10,000 or one-half of the

present value of the participant’s nonforfeitable accrued benefit under the plan.

Section 72(p)(2)(B) provides that a loan

must be repaid within 5 years. However, an exception to the 5-year repayment

rule applies for loans used to acquire any

dwelling unit that will be used (determined at the time the loan is made) as the

participant’s principal residence. Section

72(p)(2)(C) requires substantially level

amortization of a plan loan (with pay-

July 6, 2020

ments not less frequently than quarterly)

over the term of the loan.

Q&A-10(a) of § 1.72(p)-1 provides

that the failure to make any installment

payment when due, in accordance with

the terms of a loan, violates § 72(p)

(2)(C) and, accordingly, results in a

deemed distribution at the time of the

failure. However, the plan administrator

may allow a cure period, and § 72(p)(2)

(C) will not be considered to have been

violated if the installment payment is

made not later than the end of the cure

period, which cannot continue beyond

the last day of the calendar quarter following the calendar quarter in which the

required installment payment was due.

If there is a failure to pay the installment

payments required under the terms of

the loan (taking into account any cure

period allowed under Q&A-10(a)), then

the amount of the deemed distribution

equals the entire outstanding balance

of the loan (including accrued interest)

at the time of the failure. Under Q&A13(b) of § 1.72(p)-1 and Q&A-9(b) of

§ 1.402(c)-2, a distribution of a plan

loan offset amount occurs when, under

the terms governing a plan loan, the accrued benefit of a participant or beneficiary is reduced (or offset) in order to

repay the loan (including the enforcement of the plan’s security interest in

the accrued benefit). In the event of a

plan loan offset, including a qualified

plan loan offset described in § 402(c)(3)

(C), the amount of the account balance

that is offset against the loan is an actual

distribution, not a deemed distribution.

SECTION 1. CORONAVIRUSRELATED DISTRIBUTIONS

A. Special tax treatment for coronavirusrelated distributions

Section 2202(a) of the CARES Act

provides for special tax treatment for a

coronavirus-related distribution. The

section provides an exception to the 10%

additional tax under § 72(t) of the Code

(including the 25% additional tax under

§ 72(t)(6) for certain distributions from

SIMPLE IRAs), allows the distribution

to be included in income ratably over 3

years, and provides that the distribution

will be treated as though it were paid in

36

a direct rollover to an eligible retirement

plan if the distribution is eligible for taxfree rollover treatment and is recontributed to an eligible retirement plan within

the 3-year period beginning on the day

after the date on which the distribution

was received. The section also permits

special treatment for coronavirus-related

distributions under employer retirement

plans (eligible retirement plans other

than IRAs), as described in section 2 of

this notice.

B. Definition of qualified individual

Pursuant to section 2202(a)(4)(A)(ii)

of the CARES Act, a qualified individual

for purposes of this notice is an individual:

• who is diagnosed with the virus

SARS-CoV-2 or with coronavirus

disease 2019 (referred to collectively

in this notice as COVID-19) by a test

approved by the Centers for Disease

Control and Prevention (including

a test authorized under the Federal

Food, Drug, and Cosmetic Act);

• whose spouse or dependent (as defined in section 152 of the Code) is

diagnosed with COVID-19 by a test

approved by the Centers for Disease

Control and Prevention (including

a test authorized under the Federal

Food, Drug, and Cosmetic Act); or

• who experiences adverse financial

consequences as a result of:

o the individual being quarantined,

being furloughed or laid off, or

having work hours reduced due

to COVID-19;

o the individual being unable to

work due to lack of childcare due

to COVID-19; or

o closing or reducing hours of a

business owned or operated by

the individual due to COVID-19.

In addition, pursuant to the authority of

the Secretary to issue guidance to provide

for other factors under section 2202(a)(4)

(A)(ii)(III) of the CARES Act, a qualified

individual for purposes of this notice is an

individual who experiences adverse financial consequences as a result of:

• the individual having a reduction in

pay (or self-employment income) due

to COVID-19 or having a job offer rescinded or start date for a job delayed

due to COVID-19;

Bulletin No. 2020–28

•

the individual’s spouse or a member

of the individual’s household (as defined below) being quarantined, being

furloughed or laid off, or having work

hours reduced due to COVID-19,

being unable to work due to lack of

childcare due to COVID-19, having a

reduction in pay (or self-employment

income) due to COVID-19, or having

a job offer rescinded or start date for

a job delayed due to COVID-19; or

• closing or reducing hours of a business owned or operated by the individual’s spouse or a member of

the individual’s household due to

COVID-19.

For purposes of applying these additional factors, a member of the individual’s household is someone who shares the

individual’s principal residence.

C. Definition of coronavirus-related

distribution

Section 2202(a)(4)(A) of the CARES

Act defines a coronavirus-related distribution as any distribution from an eligible

retirement plan made on or after January

1, 2020, and before December 31, 2020,

to a qualified individual. Section 2202(a)

(2) of the CARES Act limits the amount

of aggregate distributions from all eligible retirement plans that can be treated

as coronavirus-related distributions to no

more than $100,000.

In general, a qualified individual is

permitted to designate a distribution described in the preceding paragraph as a

coronavirus-related distribution. This

designation is permitted to be made with

respect to any distribution to a qualified

individual that would meet the requirements of a coronavirus-related distribution without regard to whether the plan

treated the distribution as a coronavirus-related distribution. Thus, periodic

payments and distributions that would

have been required minimum distributions but for section 2203 of the CARES

Act, received by a qualified individual

from an eligible retirement plan on or

after January 1, 2020, and before December 31, 2020, are permitted to be treated

as coronavirus-related distributions and,

therefore, permitted to be included in income ratably over 3 years. Similarly, any

distribution received by a qualified indi-

Bulletin No. 2020–28

vidual as a beneficiary can be treated as

a coronavirus-related distribution. In addition, a reduction or offset of a qualified

individual’s account balance in order to

repay a plan loan, as described in Q&A9(b) of § 1.402(c)-2, including a qualified

plan loan offset, is permitted to be treated

as a coronavirus-related distribution. See

section 1.D of this notice for rules relating to which coronavirus-related distributions are permitted to be recontributed

to an eligible retirement plan.

However, any amount described in

Q&A-4 of § 1.402(c)-2 is not permitted

to be treated as a coronavirus-related distribution. Thus, the following amounts

are not coronavirus-related distributions:

corrective distributions of elective deferrals and employee contributions that are

returned to the employee (together with

the income allocable thereto) in order to

comply with the § 415 limitations, excess

elective deferrals under § 402(g), excess

contributions under § 401(k), and excess

aggregate contributions under § 401(m);

loans that are treated as deemed distributions pursuant to § 72(p); dividends paid

on applicable employer securities under

§ 404(k); the costs of current life insurance protection; prohibited allocations

that are treated as deemed distributions

pursuant to § 409(p); distributions that are

permissible withdrawals from an eligible

automatic contribution arrangement within the meaning of § 414(w); and distributions of premiums for accident or health

insurance under § 1.402(a)-1(e)(1)(i).

The definition of a coronavirus-related

distribution under section 2202(a)(4) of

the CARES Act does not limit these distributions to amounts withdrawn solely

to meet a need arising from COVID-19.

Thus, for example, for an individual who

is a qualified individual as a result of experiencing adverse financial consequences as described above, coronavirus-related

distributions are permitted without regard to the qualified individual’s need for

funds, and the amount of the distribution

is not required to correspond to the extent

of the adverse financial consequences experienced by the qualified individual.

As explained in section 2.C of this

notice, an employer retirement plan also

is permitted, but not required, to treat a

plan distribution meeting the conditions

described in this section 1.C as a coro-

37

navirus-related distribution. It is possible

that a qualified individual’s designation

of a coronavirus-related distribution may

be different from the employer retirement

plan’s treatment of the distribution. This

different treatment could occur, for example, if a qualified individual has more

than one plan distribution that meets the

requirements of a coronavirus-related distribution, but one of those distributions

occurs before the effective date of the

plan amendment providing for coronavirus-related distributions. The different

treatment could also occur, for example,

if a qualified individual has distributions

from more than one eligible retirement

plan, and the aggregate amount of those

distributions exceeds $100,000.

D. Certain coronavirus-related

distributions are permitted to be

recontributed

Coronavirus-related distributions may

be included in income ratably over 3 years

and are not subject to the 10% additional

tax under § 72(t). However, only a coronavirus-related distribution that is eligible for tax-free rollover treatment under

§ 402(c), 403(a)(4), 403(b)(8), 408(d)(3),

or 457(e)(16) is permitted to be recontributed to an eligible retirement plan, and that

recontribution will be treated as having

been made in a trustee-to-trustee transfer

to that eligible retirement plan. Any coronavirus-related distribution (whether from

an employer retirement plan or an IRA)

paid to a qualified individual as a beneficiary of an employee or IRA owner (other

than the surviving spouse of the employee

or IRA owner) cannot be recontributed.

In general, a distribution from an employer retirement plan made on account

of hardship is not an eligible rollover distribution. However, if the distribution satisfies the requirements under section 1.C

of this notice, then, except as otherwise

provided in section 6 of this notice (relating to nonqualified deferred compensation

plans), the distribution is not treated as

made on account of hardship for purposes

of this notice and, thus, any portion of the

distribution is permitted to be recontributed to an eligible retirement plan.

See section 4.C of this notice for rules

relating to recontributions of coronavirus-related distributions.

July 6, 2020

SECTION 2. GUIDANCE FOR

EMPLOYER RETIREMENT

PLANS MAKING CORONAVIRUSRELATED DISTRIBUTIONS

A. Coronavirus-related distributions

generally are treated as satisfying certain

plan distribution restrictions

Under section 2202(a)(6) of the CARES

Act, a distribution designated as a coronavirus-related distribution by an employer

retirement plan is treated as meeting the

distribution restrictions for qualified cash

or deferred arrangements under § 401(k)(2)

(B)(i), custodial accounts under § 403(b)

(7)(A)(i), annuity contracts under § 403(b)

(11), governmental deferred compensation plans under § 457(d)(1)(A), and the

Thrift Savings Plan under 5 U.S.C. 8433(h)

(1). Thus, for example, an employer may

expand the distribution options under its

plan to allow an amount attributable to an

elective, qualified nonelective, qualified

matching, or safe harbor contribution under

a qualified cash or deferred arrangement to

be distributed as a coronavirus-related distribution even though it is distributed before an otherwise permitted distributable

event, such as severance from employment, disability, or attainment of age 59½.

Except as described above, section

2202 of the CARES Act does not change

the rules for when plan distributions are

permitted to be made from employer retirement plans. Thus, for example, a qualified plan that is a pension plan (such as

a money purchase pension plan) is not

permitted to make a distribution before

an otherwise permitted distributable event

merely because the distribution, if made,

would qualify as a coronavirus-related

distribution. Further, a pension plan is not

permitted to make a distribution under a

distribution form that is not a qualified

joint and survivor annuity without spousal

consent merely because the distribution,

if made, could be treated as a coronavirus-related distribution.

B. Direct rollover, § 402(f) notice, and

20% withholding requirements are

not applicable to coronavirus-related

distributions

If a distribution is treated as a coronavirus-related distribution by an employer re-

July 6, 2020

tirement plan, the rules for eligible rollover

distributions under §§ 401(a)(31), 402(f),

and 3405 are not applicable to the distribution. Thus, the plan is not required to offer

the qualified individual a direct rollover with

respect to the distribution. In addition, the

plan administrator is not required to provide

a § 402(f) notice. Finally, the plan administrator or payor of the coronavirus-related

distribution is not required to withhold an

amount equal to 20% of the distribution,

as is usually required under § 3405(c)(1).

However, a coronavirus-related distribution

is subject to the voluntary withholding requirements of § 3405(b) and § 35.3405-1T.

distributions under all its retirement plans

with respect to a qualified individual is

not permitted to exceed $100,000. For

purposes of this rule, the term “employer”

means the employer maintaining the plan

and those employers required to be aggregated with the employer under § 414(b),

(c), (m), or (o). However, a plan will not

fail to satisfy any requirement under the

Code merely because a qualified individual’s total coronavirus-related distributions exceed $100,000 taking into account

distributions from IRAs or other eligible

retirement plans maintained by unrelated

employers.

C. Treatment of distributions as

coronavirus-related distributions

E. Reliance on certifications

An employer is permitted to choose

whether, and to what extent, to treat distributions under its plans as coronavirus-related distributions (as well as whether, and

to what extent, to apply coronavirus-related

plan loan rules described in section 5 of this

notice). Thus, for example, an employer

may choose to provide for coronavirus-related distributions but choose not to change

its plan loan provisions or loan repayment

schedules. Further, the employer (or plan

administrator) is permitted to develop any

reasonable procedures for identifying which

distributions are treated as coronavirus-related distributions under its retirement plans.

However, if, under an employer retirement

plan, any distribution of an amount subject

to § 401(k)(2)(B)(i), 403(b)(7)(A)(i), 403(b)

(11) or 457(d)(1)(A) is treated as a coronavirus-related distribution, the plan must be

consistent in its treatment of similar distributions. Accordingly, the amount of the

distribution must be taken into account in

determining the $100,000 limit on coronavirus-related distributions made under all the

retirement plans maintained by the employer. Even if, under a plan, a distribution is not

treated as coronavirus-related, a qualified individual may treat a distribution that meets

the requirements of section 1.C of this notice

as a coronavirus-related distribution on the

individual’s federal income tax return.

D. Distribution limits on coronavirusrelated distributions

The total amount of distributions treated by an employer as coronavirus-related

38

The administrator of an eligible retirement plan may rely on an individual’s

certification that the individual satisfies

the conditions to be a qualified individual

in determining whether a distribution is a

coronavirus-related distribution, unless

the administrator has actual knowledge to

the contrary. The requirement that an administrator not have “actual knowledge”

that is contrary to an individual’s certification does not mean that the administrator

has an obligation to inquire into whether

an individual has satisfied the conditions

described in section 1.B of this notice to

be a qualified individual. Rather, this requirement is limited to situations in which

the administrator already possesses sufficiently accurate information to determine

the veracity of a certification.

The following is an example of an acceptable certification:

Name: _______________________

(and other identifying information requested by the employer for administrative purposes).

I certify that I meet at least one of the

following conditions: (1) I was diagnosed with the virus SARS-CoV-2 or

with coronavirus disease 2019 (referred to collectively as COVID-19) by

a test approved by the Centers for Disease Control and Prevention (including a test authorized under the Federal

Food, Drug, and Cosmetic Act); (2) my

spouse or my dependent was diagnosed

with COVID-19 by a test approved by

the Centers for Disease Control and

Prevention (including a test authorized

Bulletin No. 2020–28

under the Federal Food, Drug, and

Cosmetic Act); or (3) I have experienced adverse financial consequences

because: (i) I, my spouse, or a member

of my household was quarantined, furloughed or laid off, or had work hours

reduced due to COVID-19; (ii) I, my

spouse, or a member of my household

was unable to work due to lack of childcare due to COVID-19; (iii) a business

owned or operated by me, my spouse,

or a member of my household closed

or reduced hours due to COVID-19;

or (iv) I, my spouse, or a member of

my household had a reduction in pay

(or self-employment income) due to

COVID-19 or had a job offer rescinded

or start date for a job delayed due to

COVID-19.

Signature: ______________________

Although an administrator may rely on

an individual’s certification in making and

reporting a distribution, the individual is

entitled to treat the distribution as a coronavirus-related distribution for purposes

of the individual’s federal income tax return only if the individual actually meets

the eligibility requirements for that treatment under section 1 of this notice.

F. An employer retirement plan will be

treated as operating in accordance with

its terms if certain requirements are

satisfied

An employer retirement plan will not

be treated as failing to operate in accordance with its terms merely because the

plan implements the provisions of section

2202 of the CARES Act if the employer

amends its plan by the dates described in

this paragraph. For employer retirement

plans other than governmental plans under

§ 414(d) of the Code, the date by which

any plan amendment to reflect the CARES

Act is required to be made is the last day

of the first plan year beginning on or after

January 1, 2022. For governmental plans

under § 414(d) of the Code, the date by

which any plan amendment to reflect the

CARES Act is required to be made is the

last day of the first plan year beginning on

or after January 1, 2024. Pursuant to the

authority of the Secretary under section

1

2202(c)(2) of the CARES Act, these dates

may be extended in future guidance.

SECTION 3. GUIDANCE FOR

ELIGIBLE RETIREMENT PLANS

MAKING OR ACCEPTING

RECONTRIBUTION OF

CORONAVIRUS-RELATED

DISTRIBUTIONS

This section provides guidance for eligible retirement plans (that is, employer

retirement plans and IRAs) making, or accepting recontribution of, coronavirus-related distributions.

A. Tax reporting on coronavirus-related

distributions

An eligible retirement plan must report

the payment of a coronavirus-related distribution to a qualified individual on Form

1099-R, Distributions from Pensions,

Annuities, Retirement or Profit-Sharing

Plans, IRAs, Insurance Contracts, etc.

This reporting is required even if the qualified individual recontributes the coronavirus-related distribution to the same eligible retirement plan in the same year. If

a payor is treating the payment as a coronavirus-related distribution and no other appropriate code applies, the payor is

permitted to use distribution code 2 (early

distribution, exception applies) in box 7

of Form 1099-R. However, a payor also is

permitted to use distribution code 1 (early

distribution, no known exception) in box 7

of Form 1099-R.

B. Accepting recontributions of

coronavirus-related distributions

In general, a qualified individual who

receives a coronavirus-related distribution

that is eligible for tax-free rollover treatment is permitted to recontribute, at any

time in a 3-year period, any portion of the

distribution to an eligible retirement plan

that is permitted to accept eligible rollover

contributions. The relief in Q&A-14 of

§ 1.401(a)(31)-1 applies to an employer retirement plan accepting recontributions of

coronavirus-related distributions. In order

to obtain the relief described in Q&A-14

of § 1.401(a)(31)-1, a plan administrator

accepting the recontribution of a coronavirus-related distribution must reasonably

conclude that the recontribution is eligible

for direct rollover treatment under section

2202(a)(3) of the CARES Act and that

the recontribution is made in accordance

with the rules under section 4.C of this

notice. In making this determination, the

rule in section 2.E of this notice applies.

Thus, the administrator of an eligible retirement plan may rely on an individual’s

certification that the individual satisfies

the conditions to be a qualified individual

in determining whether a distribution is a

coronavirus-related distribution, unless

the administrator has actual knowledge to

the contrary.

In general, it is anticipated that eligible

retirement plans will accept recontributions of coronavirus-related distributions,

which are to be treated as rollover contributions. However, eligible retirement

plans generally are not required to accept

rollover contributions. For example, if a

plan does not accept any rollover contributions, the plan is not required to change

its terms or procedures to accept recontributions of coronavirus-related distributions.

SECTION 4. GUIDANCE FOR

INDIVIDUALS RECEIVING

CORONAVIRUS-RELATED

DISTRIBUTIONS UNDER SECTION

2202 OF THE CARES ACT

This section provides guidance for

qualified individuals requesting and receiving coronavirus-related distributions.

A qualified individual receiving a coronavirus-related distribution is entitled to

the following favorable tax treatment with

respect to the distribution by reporting the

distribution on the individual’s federal

income tax return for 2020 and on Form

8915-E, Qualified 2020 Disaster Retirement Plan Distributions and Repayments

(or if there is no federal income tax return

for 2020, by filing just Form 8915-E).1

First, the 10% additional tax under § 72(t)

(including the 25% additional tax under

§ 72(t)(6) for certain distributions from

SIMPLE IRAs) does not apply to any

coronavirus-related distribution. Second,

a coronavirus-related distribution is per-

Form 8915-E is expected to be available before the end of 2020.

Bulletin No. 2020–28

39

July 6, 2020

mitted to be included in income ratably

over 3 years. Third, a qualified individual

is permitted to recontribute any portion

of a coronavirus-related distribution that

is eligible for tax-free rollover treatment

to an eligible retirement plan within the

3-year period beginning on the day after

the date on which the distribution was received, and the recontribution will be treated as if it were paid in a trustee-to-trustee

transfer to an eligible retirement plan. See

section 1.D of this notice for rules relating

to which coronavirus-related distributions

are permitted to be recontributed. Qualified individuals will use Form 8915-E to

report any recontribution made during the

taxable year and to determine the amount

of the coronavirus-related distribution includible in income for the taxable year.

A. Election to designate a distribution as

a coronavirus-related distribution

A qualified individual is permitted to

designate any distribution described in

section 1.C of this notice as a coronavirus-related distribution provided the total amount treated by the individual as

coronavirus-related distributions from all

eligible retirement plans does not exceed

$100,000.

Example 1. If a qualified individual

receives a distribution of $50,000 in August of 2020 and a distribution of $75,000

in September of 2020 and both distributions satisfy the definition of a coronavirus-related distribution, only $100,000

of the $125,000 received by the qualified

individual can be treated as a coronavirus-related distribution. Thus, the individual can only treat $100,000 of the August

and September distributions as coronavirus-related distributions on the individual’s 2020 federal income tax return. Assuming no § 72(t)(2) exception applies,

the remaining $25,000 of the distribution

is an early distribution that is subject to the

10% additional tax. This amount must be

included on the individual’s 2020 federal

income tax return and will not be eligible

for 3-year recontribution to an eligible retirement plan.

Example 2. A § 401(k) plan distributes

$35,000 to a qualified individual on December 1, 2020. The qualified individual

also receives a distribution from the individual’s IRA on December 1, 2020, of

July 6, 2020

$15,000. The individual is permitted to

treat both the $35,000 from the plan and

the $15,000 from the IRA as coronavirus-related distributions on the individual’s 2020 federal income tax return.

B. Income inclusion for coronavirusrelated distributions

There are two methods for a qualified

individual to include the taxable portion

of a coronavirus-related distribution in

income. A qualified individual who receives a coronavirus-related distribution

is permitted to include the taxable portion of the distribution in income ratably

over a 3-year period that begins in the

year of the distribution. Alternatively, a

qualified individual is permitted to elect

out of the 3-year ratable income inclusion

and include the entire amount of the taxable portion of the distribution in income

in the year of the distribution. This election cannot be made or changed after the

timely filing of the individual’s federal

income tax return (including extensions)

for the year of the distribution. All coronavirus-related distributions received in a

taxable year must be treated consistently

(either all distributions must be included

in income over a 3-year period or all distributions must be included in income in

the current year).

Example. Taxpayer A receives a

$30,000 distribution from his or her IRA

on October 1, 2020. Taxpayer A is a qualified individual and elects to treat the distribution as a coronavirus-related distribution. Taxpayer A uses the 3-year ratable

income inclusion method for the $30,000

distribution. Taxpayer A should include

$10,000 in income with respect to the

coronavirus-related distribution on each

of the individual’s 2020, 2021, and 2022

federal income tax returns.

C. Tax treatment of recontributions of

coronavirus-related distributions

If a coronavirus-related distribution

is eligible for tax-free rollover treatment

(taking into account section 1.D of this

notice), a qualified individual is permitted,

at any time in the 3-year period beginning

the day after the date of a coronavirus-related distribution, to recontribute any portion of the distribution, but not an amount

40

in excess of the amount of the distribution, to an eligible retirement plan. A recontribution of a coronavirus-related distribution will not be treated as a rollover

contribution for purposes of the one-rollover-per-year limitation under § 408(d)(3)

(B).

D. Tax treatment of recontributions of a

coronavirus-related distribution made to

a taxpayer who uses the 1-year income

inclusion method

If a qualified individual elects to include all coronavirus-related distributions

received in a year in gross income for that

year and recontributes any portion of the

coronavirus-related distributions to an eligible retirement plan at any time during

the 3-year recontribution period, then the

amount of the recontribution will reduce

the amount of the coronavirus-related distribution included in gross income for the

year of the distribution. The qualified individual will report the amount of the recontribution on Form 8915-E (which will be

filed with the individual’s federal income

tax return, if applicable).

If a qualified individual includes a

coronavirus-related distribution in gross

income in the year of the distribution and

recontributes the distribution to an eligible

retirement plan after the timely filing of the

individual’s federal income tax return for

the year of the distribution (that is, after the

due date, including extensions), the individual will need to file an amended federal

income tax return for the year of the distribution. The qualified individual will need

to file a revised Form 8915-E (with his or

her amended federal income tax return) to

report the amount of the recontribution and

should reduce his or her gross income by

the amount of the recontribution, but not

in an amount exceeding the amount of the

coronavirus-related distribution.

Example 1. Taxpayer B receives a

$45,000 distribution from a § 403(b) plan

on November 1, 2020. Taxpayer B is a

qualified individual and treats the distribution as a coronavirus-related distribution.

Taxpayer B receives no other coronavirus-related distribution from any eligible

retirement plan. Taxpayer B recontributes

$45,000 to an IRA on March 31, 2021.

Taxpayer B reports the recontribution on

Form 8915-E and files the 2020 federal

Bulletin No. 2020–28

income tax return on April 10, 2021. For

Taxpayer B, no portion of the coronavirus-related distribution is includible as income for the 2020 tax year.

Example 2. The facts are the same as in

Example 1 of this section 4.D, except that

Taxpayer B timely requests an extension

of time to file the 2020 federal income tax

return and makes a recontribution on August 2, 2021, before filing the 2020 federal income tax return. Taxpayer B files the

2020 federal income tax return on August

10, 2021. As in Example 1, no portion of

the coronavirus-related distribution is includible in income for the 2020 tax year

because Taxpayer B made the recontribution before the timely filing of the 2020

federal income tax return.

Example 3. Taxpayer C receives a

$15,000 distribution from a governmental

§ 457(b) plan on March 30, 2020. Taxpayer C is a qualified individual and treats

the distribution as a coronavirus-related

distribution. Taxpayer C elects out of the

3-year ratable income inclusion method

on Form 8915-E and includes the entire

$15,000 in gross income for the 2020 taxable year. On December 31, 2022, Taxpayer C recontributes $15,000 to the §

457(b) plan. Taxpayer C will need to file

an amended federal income tax return for

the 2020 tax year to report the amount of

the recontribution and reduce the gross

income by $15,000 with respect to the

coronavirus-related distribution included

on the 2020 original federal income tax

return.

E. Tax treatment for year of

recontribution of a coronavirus-related

distribution made to a taxpayer who

uses the 3-year ratable income inclusion

method

As explained above, a qualified individual is permitted to include a coronavirus-related distribution in income ratably

over a 3-year period. If a qualified individual includes a coronavirus-related distribution ratably over a 3-year period and

the individual recontributes any portion of

the coronavirus-related distribution to an

eligible retirement plan at any date before

the timely filing of the individual’s federal

income tax return (that is, by the due date,

including extensions) for a tax year in the

3-year period, the amount of the recontri-

Bulletin No. 2020–28

bution will reduce the ratable portion of

the coronavirus-related distribution that

is includible in gross income for that tax

year. See section 4.F of this notice for recontributions that affect income inclusion

in other tax years.

Example 1. Taxpayer D receives

$75,000 from a § 401(k) plan on December 1, 2020. Taxpayer D is a qualified individual and treats the $75,000 distribution as a coronavirus-related distribution.

Taxpayer D uses the 3-year ratable income

inclusion method for the distribution.

Taxpayer D makes one recontribution of

$25,000 to the § 401(k) plan on April 10,

2022. Taxpayer D files the 2021 federal

income tax return on April 15, 2022. Without the recontribution, Taxpayer D should

include $25,000 in income with respect

to the coronavirus-related distribution on

each of D’s 2020, 2021, and 2022 federal

income tax returns. However, as a result

of the recontribution to the § 401(k) plan,

Taxpayer D should include $25,000 in income with respect to the coronavirus-related distribution on the 2020 federal income tax return, $0 in income with respect

to the coronavirus-related distribution on

the 2021 federal income tax return, and

$25,000 in income with respect to the

coronavirus-related distribution on the

2022 federal income tax return.

Example 2. The facts are the same as in

Example 1 of this section 4.E, except that

Taxpayer D recontributes $25,000 to the

§ 401(k) plan on August 10, 2022. Taxpayer D files the 2021 federal income tax return

on April 15, 2022, and does not request an

extension of time to file that federal income

tax return. As a result of the recontribution

to the § 401(k) plan, Taxpayer D should

include $25,000 in income with respect to

the coronavirus-related distribution on the

2020 federal income tax return, $25,000

in income with respect to the coronavirus-related distribution on the 2021 federal

income tax return, and $0 in income with

respect to the coronavirus-related distribution on the 2022 federal income tax return.

F. Recontributions of a coronavirusrelated distribution may be carried back

or forward when using the 3-year ratable

income inclusion method

If a qualified individual using the

3-year ratable income inclusion meth-

41

od recontributes an amount of a coronavirus-related distribution for a tax

year in the 3-year period that exceeds

the amount that is otherwise includible in gross income for that tax year, as

described in section 4.E of this notice,

the excess amount of the recontribution

is permitted to be carried forward to reduce the amount of the coronavirus-related distribution that is includible in

gross income in the next tax year in the

3-year period. Alternatively, the qualified

individual is permitted to carry back the

excess amount of the recontribution to a

prior taxable year or years in which the

individual included income attributable

to a coronavirus-related distribution. The

individual will need to file an amended

federal income tax return for the prior

taxable year or years to report the amount

of the recontribution on Form 8915-E

and reduce his or her gross income by the

excess amount of the recontribution.

Example. Taxpayer E receives a distribution of $90,000 from his or her IRA

on November 15, 2020. Taxpayer E is a

qualified individual and treats the distribution as a coronavirus-related distribution.

Taxpayer E ratably includes the $90,000

distribution in income over a 3-year period. Without any recontribution, Taxpayer

E will include $30,000 in income with respect to the coronavirus-related distribution on each of the 2020, 2021, and 2022

federal income tax returns. Taxpayer E

includes $30,000 in income with respect

to the coronavirus-related distribution on

the 2020 federal income tax return. Taxpayer E then recontributes $40,000 to an

IRA on November 10, 2021 (and makes

no other recontribution in the 3-year period). Taxpayer E is permitted to do either

of the following:

Option 1. Taxpayer E includes $0 in

income with respect to the coronavirus-related distribution on the 2021 federal income tax return. Taxpayer E carries forward the excess recontribution of $10,000

to 2022 and includes $20,000 in income

with respect to the coronavirus-related

distribution on E’s 2022 federal income

tax return.

Option 2. Taxpayer E includes $0 in

income with respect to the coronavirus-related distribution on the 2021 tax return

and $30,000 in income on the 2022 federal income tax return. Taxpayer E also files

July 6, 2020

an amended federal income tax return for

2020 to reduce the amount included in

income as a result of the coronavirus-related distribution to $20,000 (that is, the

$30,000 original amount includible in

income for 2020 minus the remaining

$10,000 recontribution that is not offset

on either the 2021 or 2022 federal tax return).

G. Special rule for 3-year ratable income

inclusion method for coronavirus-related

distributions

If a qualified individual dies before

the full taxable amount of the coronavirus-related distribution has been included in gross income, then the remainder

must be included in gross income for the

taxable year that includes the individual’s

death.

H. Coronavirus-related distributions

will not be treated as a change in

substantially equal periodic payments

In the case of an individual receiving

substantially equal periodic payments

from an eligible retirement plan, the receipt of a coronavirus-related distribution

from that plan will not be treated as a

change in substantially equal payments as

described in § 72(t)(4) merely because of

the coronavirus-related distribution.

SECTION 5. APPLICATION OF

SECTION 2202 OF THE CARES ACT

TO PLAN LOANS

This section provides guidance regarding the application of section 2202(b) of

the CARES Act to plan loans, including

a safe harbor under which suspensions of

payments and extensions of loan terms will

be treated as satisfying section 2202(b)(2)

of the CARES Act. As described in section

2.C of this notice, an employer is permitted to choose whether, and to what extent,

to apply coronavirus-related plan loan

rules described in this section (regardless

of how coronavirus-related distributions

are treated).

A. Increase in the allowable loan amount

Special rules apply to a loan made from

a qualified employer plan (as defined in §

1.72(p)-1, Q&A-2) to a qualified individual on or after March 27, 2020 (the date of

enactment of the CARES Act) and before

September 23, 2020. For these loans, section 2202(b)(1) of the CARES Act changes the limits under § 72(p)(2)(A) of the

Code. In applying § 72(p) to a plan loan,

the $50,000 aggregate limit in § 72(p)(2)

(A)(i) is increased to $100,000 and the

rule in § 72(p)(2)(A)(ii) limiting the aggregate amount of loans to 50 percent of

the employee’s vested accrued benefit is

increased to 100 percent of the employee’s vested accrued benefit.2

B. Suspension of payments and extension

of term of loan

A special rule applies if a qualified

individual has an outstanding loan from

a qualified employer plan on or after

March 27, 2020. Section 2202(b)(2) of the

CARES Act provides that, for purposes of

§ 72(p), in the case of a qualified individual with a loan from a qualified employer plan outstanding on or after March 27,

2020, if the due date pursuant to § 72(p)

(2)(B) or (C) for any repayment with respect to the loan occurs during the period

beginning on March 27, 2020, and ending

on December 31, 2020, the due date shall

be delayed for 1 year. In addition, any

subsequent repayments of the loan shall

be adjusted appropriately to reflect the

delay and any interest accruing during the

delay, and the period of delay must be disregarded in determining the 5-year period

and the term of the loan under § 72(p)(2)

(B) and (C). The effect of section 2202(b)

(2) of the CARES Act is to permit a delay in certain plan loan repayments without causing the loans to violate § 72(p)(2)

(B) and (C). It does not, however, require

a delay in plan loan repayments in order

to satisfy § 72(p)(2)(B) and (C). Thus, an

employer is permitted to choose to allow

this delay in loan repayments under its

plan with respect to qualified individuals,

and, if it does, there will not be a deemed

distribution to those individuals under §

72(p) due to the delay. For example, each

repayment that becomes due during the

period from March 27, 2020, through December 31, 2020, may be delayed for up

to 1 year and then reamortized (taking into

account interest) over a period that is up to

1 year longer than the original term of the

loan. Each reamortized repayment may

then be added to other reamortized repayments and to non-reamortized repayments

to construct an overall loan reamortization

schedule.

This notice provides a safe harbor

for satisfying section 2202(b)(2) of the

CARES Act. Under this safe harbor, a

qualified employer plan will be treated as

satisfying the requirements of § 72(p) pursuant to section 2202(b)(2) of the CARES

Act if a qualified individual’s obligation to

repay a plan loan is suspended under the

plan for any period beginning not earlier

than March 27, 2020, and ending not later

than December 31, 2020 (suspension period). The loan repayments must resume

after the end of the suspension period, and

the term of the loan may be extended by

up to 1 year from the date the loan was

originally due to be repaid. If a qualified

employer plan suspends loan repayments

during the suspension period, the suspension will not cause the loan to be deemed

distributed even if, due solely to the suspension, the term of the loan is extended

beyond 5 years. Interest accruing during

the suspension period must be added to

the remaining principal of the loan. A plan

satisfies these rules if the loan is reamortized and repaid in substantially level installments over the remaining period of

the loan (that is, 5 years from the date of

the loan, assuming that the loan is not a

principal residence loan, plus up to 1 year

from the date the loan was originally due

to be repaid). If an employer, under its

plan, chooses to permit a suspension period that is less than the maximum suspension period described above, the employer

is permitted to extend the suspension period subsequently, but not beyond December 31, 2020.

The Department of Labor has advised the Department of the Treasury and the IRS that it will not treat any person as having violated the provisions of Title I of the Employee Retirement

Income Security Act (ERISA), including the adequate security and reasonably equivalent basis requirements in ERISA section 408(b)(1) and 29 CFR 2550.408b-1, solely because the person

made a plan loan to a qualified individual during the period beginning on March 27, 2020, and ending on September 22, 2020, in compliance with CARES Act section 2202(b)(1) and the

provisions of this notice. See EBSA Disaster Relief Notice 2020-01.

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July 6, 2020

42

Bulletin No. 2020–28

Example applying the safe harbor. On

April 1, 2020, a participant with a nonforfeitable account balance of $40,000 borrowed $20,000 to be repaid in level monthly

installments of $368.33 each over 5 years,

with the repayments to be made by payroll

withholding. The participant makes payments for 3 months through June 30, 2020.

The participant is a qualified individual

(as described in section 1.B of this notice).

The participant’s employer takes action to

suspend payroll withholding repayments,

for the period from July 1, 2020, through

December 31, 2020, for loans to qualified

individuals that are outstanding on or after

March 27, 2020. Because the participant is

a qualified individual, no further repayments

are made on the participant’s loan until January 1, 2021 (when the balance is $19,477).

At that time, repayments on the loan resume,

with the amount of each monthly installment reamortized to be $343.27 in order

for the loan to be repaid by March 31, 2026

(which is the date the loan originally would

have been fully repaid, plus 1 year).

The Department of the Treasury and the

IRS recognize that there may be additional reasonable, if more complex, ways to

administer section 2202(b) of the CARES

Act. For example, in a plan with a suspension period beginning April 1, 2020, each

repayment that becomes due during the

suspension period may be delayed to April

Bulletin No. 2020–28

1, 2021 (the 1-year anniversary of the beginning of the suspension period). After

originally scheduled repayments for January through March of 2021 are made, the

outstanding balance of the loan on April

1, 2021, including the delayed repayments

with interest, may be reamortized over a

period that is up to 1 year longer than the

original term of the loan.

C. Reliance on certifications

The administrator of a qualified employer plan may rely on an individual’s

certification that the individual satisfies

the conditions to be a qualified individual, and therefore qualifies for the special

treatment for loans under section 2202(b)

of the CARES Act, unless the administrator has actual knowledge to the contrary

under the standard described in section

2.E of this notice. See section 2.E of this

notice for an example of an acceptable

certification.

SECTION 6. PERMITTED

CANCELLATION OF

DEFERRAL ELECTION UNDER

NONQUALIFIED DEFERRED

COMPENSATION PLAN

Under § 1.409A-3(j)(4)(viii), a nonqualified deferred compensation plan

43

subject to § 409A may provide for a cancellation of a service provider’s deferral

election, or such a cancellation may be

made, due to an unforeseeable emergency or a hardship distribution pursuant to

§ 1.401(k)-1(d)(3). If a service provider

receives a distribution from an eligible

retirement plan that constitutes a coronavirus-related distribution, that distribution will be considered a hardship distribution pursuant to § 1.401(k)-1(d)(3) for

purposes of § 1.409A-3(j)(4)(viii). As a

result, a nonqualified deferred compensation plan may provide for a cancellation

of the service provider’s deferral election, or such a cancellation may be made,

due to a coronavirus-related distribution

described in section 1.C of this notice.

The deferral election must be cancelled,

not merely postponed or otherwise delayed.

DRAFTING INFORMATION

The principal author of this notice

is Jamie Dvoretzky of the Office of the

Associate Chief Counsel (Employee

Benefits, Exempt Organizations, and

Employment Taxes). For further information regarding this notice, contact Ms.

Dvoretzky at (202) 317-4102 (not a tollfree number).

July 6, 2020

Part IV

Notice of Proposed

Rulemaking

Qualified Transportation

Fringe, Transportation

and Commuting Expenses

under Section 274

REG-119307-19

AGENCY: Internal Revenue Service

(IRS), Treasury.

ACTION: Notice of proposed rulemaking.

SUMMARY: This document contains

proposed regulations to implement legislative changes to section 274 of the Internal Revenue Code (Code) effective for

taxable years beginning after December

31, 2017. Specifically, the proposed regulations address the elimination of the

deduction under section 274 for expenses

related to certain transportation and commuting benefits provided by employers

to their employees in taxable years beginning after December 31, 2017. The

proposed regulations provide guidance to

determine the amount of such expenses

that is nondeductible and apply certain exceptions under section 274(e) that may allow such expenses to be deductible. These

proposed regulations affect taxpayers who

pay or incur such expenses.

DATES: Written or electronic comments

and requests for a public hearing must be

received by August 24, 2020. Requests for

a public hearing must be submitted as prescribed in the “Comments and Requests

for a Public Hearing” section.

ADDRESSES: Commenters are strongly

encouraged to submit public comments

electronically. Submit electronic submissions via the Federal Rulemaking Portal

at www.regulations.gov (indicate IRS and

REG-119307-19) by following the online

instructions for submitting comments.

Once submitted to the Federal Rulemaking Portal, comments cannot be edited

or withdrawn. The IRS expects to have

July 6, 2020

limited personnel available to process

public comments that are submitted on

paper through mail. Until further notice,

any comments submitted on paper will be

considered to the extent practicable. The

Department of the Treasury (Treasury

Department) and the IRS will publish for

public availability any comment submitted electronically, and to the extent practicable any comment submitted on paper, to

its public docket. Send paper submissions

to: CC:PA:LPD:PR (REG-119307-19),

room 5203, Internal Revenue Service, PO

Box 7604, Ben Franklin Station, Washington, DC 20044.

FOR FURTHER INFORMATION

CONTACT: Concerning the proposed

regulations, call Patrick Clinton of the Office of Associate Chief Counsel (Income

Tax and Accounting), (202) 317-7005;

concerning the submission of comments

and/or requests for a public hearing, Regina L. Johnson, (202) 317-5177 (not tollfree numbers).

SUPPLEMENTARY INFORMATION:

Background

This notice of proposed rulemaking

contains proposed amendments to the Income Tax Regulations (26 CFR part 1) under section 274 of the Code.

1. Statutory Framework

Section 274 was added to the Code

by section 4 of the Revenue Act of 1962,

Public Law 87-834 (76 Stat. 960) and has

been amended numerous times over the

years. In general, section 274 limits or disallows deductions for certain expenditures

that otherwise would be allowable under

chapter 1 of the Code (chapter 1), primarily under section 162(a), which allows a

deduction for ordinary and necessary expenses paid or incurred during the taxable

year in carrying on any trade or business.

On December 22, 2017, section 274

was amended by section 13304 of Public

Law 115-97 (131 Stat. 2054), commonly

referred to as the Tax Cuts and Jobs Act

(TCJA), to disallow a deduction for the

expense of any qualified transportation

44

fringe (QTF) as defined in section 132(f)

provided to an employee of the taxpayer,

effective for amounts paid or incurred after December 31, 2017.

The TCJA also added section 512(a)

(7) providing that a tax-exempt organization’s unrelated business taxable income

(UBTI) is increased by the amount of the

QTF expense for which a deduction is not

allowable under section 274, effective for

amounts paid or incurred after December 31, 2017. However, on December

20, 2019, section 512(a)(7) was repealed

retroactive to the original date of enactment of the TCJA by section 302 of the

Taxpayer Certainty and Disaster Tax Relief Act of 2019, enacted as part of the

Further Consolidated Appropriations Act,

2020, Pub. L. No. 116-94, 133 Stat. 2534,

Div. Q, Title III (2019). Although section

512(a)(7) was retroactively repealed, the

rules of section 274 and these proposed

regulations apply to tax exempt organizations to the extent the amount of the QTF

expenses paid or incurred by an exempt

organization is directly connected with an

unrelated trade or business conducted by

the exempt organization. In such case, the

amount of the QTF expenses directly connected with the unrelated trade or business

is subject to the disallowance under section 274(a)(4) and, thus, is disallowed as a

deduction in calculating the UBTI attributable to such unrelated trade or business

under the general rule of section 512(a)

(1). While the examples set forth in proposed §1.274-13 involve taxable entities,

tax exempt organizations with unrelated

trades or businesses may use the examples to assist in determining the amount

of the section 274(a)(4) disallowance for

purposes of calculating their UBTI under

section 512(a)(1).

Finally, the TCJA added section 274(l),

which provides that no deduction is allowed under chapter 1 for any expense

incurred for providing any transportation,

or any payment or reimbursement, to an

employee of the taxpayer in connection

with travel between the employee’s residence and place of employment, except

as necessary for ensuring the safety of the

employee, effective for transportation and

commuting expenses paid or incurred after December 31, 2017.

Bulletin No. 2020–28

2. Qualified Transportation Fringes

Section 132 generally excludes from

employees’ gross income the value of

certain fringe benefits. Section 132(a)(5)

generally provides that gross income does

not include any fringe benefit that qualifies as a QTF under section 132(f). QTFs

are defined in section 132(f)(1) to mean

any of the following provided by an employer to an employee: (1) transportation

in a commuter highway vehicle between

the employee’s residence and place of employment, (2) any transit pass, (3) qualified parking, and (4) any qualified bicycle commuting reimbursement. Section

132(f)(5)(A), (B), (C), and (F)(i) define

transit pass, commuter highway vehicle,

qualified parking, and qualified bicycle

commuting reimbursement, respectively. Section 132(f)(2) provides that the

amount of QTFs provided by an employer to any employee that can be excluded

from gross income under section 132(a)

(5) cannot exceed a maximum monthly

dollar amount, adjusted for inflation. The

adjusted maximum monthly excludable

amount for 2020 is $270.

Although section 132(f)(1) includes

qualified bicycle commuting reimbursements as a QTF, section 132(f)(8) provides that the inclusion of qualified bicycle commuting reimbursements in the

definition of a QTF is suspended for taxable years beginning after December 31,

2017, and before January 1, 2026. Accordingly, for such taxable years, qualified bicycle commuting reimbursements

are not excluded from an employee’s income as a QTF.

Section 274(a)(4), as added by the

TCJA, provides that no deduction is allowed under chapter 1 for the expense of

any QTF (as defined in section 132(f))

provided by taxpayers to their employees

for expenses paid or incurred after December 31, 2017. Although the value of a

QTF is relevant in determining the exclusion under section 132(f) and whether the

section 274(e)(2) exception for expenses

treated as compensation applies, the deduction disallowed under section 274(a)

(4) relates to the expense of providing a

QTF, not its value. In addition, the disallowance of a deduction for commuting

and transportation expenses under section

274(l) is suspended for any qualified bicy-

Bulletin No. 2020–28

cle commuting reimbursement (described

in section 132(f)(5)(F)) paid or incurred

after December 31, 2017, and before January 1, 2026. Thus, for such period, deductions for qualified bicycle commuting

reimbursements are not disallowed under

sections 274(a)(4) and 274(l).

A. Section 274(e) Exceptions to Section

274(a)(4)

Section 274(e) enumerates nine specific exceptions to section 274(a), three of

which, sections 274(e)(2), (e)(7), and (e)

(8), are relevant for QTFs. Deductions for

expenses that are within any of the three

exceptions in section 274(e) are not disallowed under section 274(a)(4).

Section 274(e)(2) applies to expenses

for goods, services, and facilities, to the

extent that the expenses are treated by the

taxpayer, with respect to the recipient of

the entertainment, amusement, or recreation, as compensation to its employees

under chapter 1 and as wages to its employees under chapter 24 of the Code

(chapter 24). Although the language in

section 274(e)(2) refers to a recipient of

entertainment, amusement, or recreation,

it applies as a specific exception to the

application of section 274(a), which, as

amended by the TCJA, includes the QTF

expense disallowance in section 274(a)

(4). Thus, the Treasury Department and

the IRS have determined that QTF expenses are included in this exception to

the extent that the fair market value of the

QTF exceeds the section 132(f)(2) limitation on exclusion and such excess amount

is treated by the taxpayer as compensation

to the employee on the taxpayer’s return

of tax under chapter 1 and wages to such

employee for purposes of chapter 24. See

§1.132-9(b), Q/A-8. This interpretation

is consistent with Congressional intent.

See H.R. Rep. No.115-409, at 266 (2017)

(“As part of its broader tax reform effort,

the Committee believes that certain nontaxable fringe benefits should not be deductible by employers if not includible in

income of employees.”).

Section 274(e)(7) applies to expenses

for goods, services, and facilities made

available by the taxpayer to the general

public. Section 274(e)(8) applies to expenses for goods or services (including

the use of facilities) which are sold by the

45

taxpayer in a bona fide transaction for an

adequate full consideration in money or

money’s worth.

B. Qualified parking

As explained earlier in part 2 of this

Background, QTFs are defined in section

132(f)(1) to include qualified parking.

The term “qualified parking” is defined in

section 132(f)(5)(C) as parking provided

to an employee on or near the business

premises of the employer or on or near a

location from which the employee commutes to work. The term does not include

any parking on or near property used by

the employee for residential purposes.

On December 24, 2018, the Treasury

Department and the IRS published Notice

2018-99, 2018-52 I.R.B. 1067, “Parking

Expenses for Qualified Transportation

Fringes under § 274(a)(4) and § 512(a)

(7) of the Internal Revenue Code”. Notice

2018-99 explains that the Treasury Department and the IRS have received questions

about how to determine the amount of

parking expenses that is nondeductible or

treated as UBTI. Notice 2018-99 provides

interim guidance for taxpayers to determine the amount of parking expenses for

QTFs that is nondeductible under section

274(a)(4) (nondeductible amount) and for

tax exempt organizations to determine the

corresponding increase in the amount of

UBTI under section 512(a)(7) attributable

to the nondeductible parking expenses. Because section 512(a)(7) was retroactively

repealed, as noted in part 1 of this Background, the following discussion of Notice

2018-99 focuses only on section 274(a)(4).

Under Notice 2018-99, the method for

determining the nondeductible amount

depends on whether the taxpayer pays a

third party to provide parking for its employees or the taxpayer owns or leases

a parking facility where its employees

park. If a taxpayer pays a third party an

amount so that its employees may park

at the third party’s parking facility, the

section 274(a)(4) disallowance generally is calculated as the taxpayer’s total

annual cost of employee parking paid to

the third party. However, if the amount

the taxpayer pays to a third party for an

employee’s parking exceeds the section

132(f)(2) monthly limitation on exclusion, which for 2020 is $270 per employ-

July 6, 2020

ee, that excess amount generally must be

treated by the taxpayer as compensation

and wages to the employee. As a result,

the total of the monthly amount in excess of $270 per employee that is treated

as compensation and wages is excepted

from the taxpayer’s section 274(a) disallowance amount by section 274(e)(2).

Notice 2018-99 provides that if a taxpayer owns or leases all or a portion of

one or more parking facilities where its

employees park, the section 274(a)(4)

disallowance may be calculated using any

reasonable method and provides a fourstep methodology that is deemed to be a

reasonable method. However, using the

value of employee parking to determine

expenses allocable to employee parking

in a parking facility owned or leased by

the taxpayer is not a reasonable method because section 274(a)(4) disallows a

deduction for the expense of providing a

QTF, regardless of its value. Furthermore,

for taxable years beginning on or after

January 1, 2019, a method under Notice

2018-99 that fails to allocate expenses to

reserved employee spaces cannot be a reasonable method.

For purposes of Notice 2018-99, a

“parking facility” includes indoor and outdoor garages and other structures, as well

as parking lots and other areas, where employees may park on or near the business

premises of the employer or on or near a

location from which the employee commutes to work. The term does not include

any parking on or near property used by

the employee for residential purposes. If

a taxpayer owns or leases more than one

parking facility in a single geographic

location, the taxpayer may aggregate the

number of spaces in those parking facilities. However, if a taxpayer owns or

leases parking facilities in more than one

geographic location, the taxpayer may not

aggregate the spaces in parking facilities

that are in different geographic locations.

Also for purposes of Notice 2018-99,

“total parking expenses” include, but are

not limited to, repairs, maintenance, utility costs, insurance, property taxes, interest, snow and ice removal, leaf removal,

trash removal, cleaning, landscape costs,

parking lot attendant expenses, security,

and rent or lease payments or a portion

of a rent or lease payment (if not broken out separately). A deduction for an

July 6, 2020

allowance for depreciation on a parking

structure owned by a taxpayer and used

for parking by the taxpayer’s employees

is an allowance for the exhaustion, wear

and tear, and obsolescence of property,

and not a parking expense for purposes of

Notice 2018-99. Compare section 274(a)

(1) (disallowing deductions for any “item”

with respect to entertainment activities or

facilities) with section 274(a)(4) (disallowing deductions for the “expense” of

any QTF). See also W.L. Schautz v. United

States, 567 F.2d 373, 376 (Ct. Cl. 1977)

(noting that section 274(a)(1) applies to

deductions broadly, not to expenses), and

Gordon v. Commissioner, 37 T.C. 986,

987 (1962) (“Any allowance for depreciation is not an ‘expense paid’ or ‘amount

paid.’”). Expenses paid or incurred for

items not located on or in the parking facility, including items related to property

next to the parking facility, such as landscaping or lighting, also are not included.

The term “employee”, as used in Notice 2018-99, is defined in §§1.132-1(b)

(2)(i) and 1.132-9(b), Q/A-5, as any individual who is currently employed by the

employer; the term includes common law

employees and other statutory employees,

such as officers of corporations. Section

1.132-9(b), Q/A-24, explains that partners, 2-percent shareholders of S corporations, sole proprietors, and independent

contractors are not employees for purposes of section 132(f).

Notice 2018-99 provides a four-step

method deemed to be a reasonable method

for calculating the amount of parking expenses that is nondeductible under section

274(a)(4).

i. Step 1

First, the taxpayer calculates the disallowance for reserved employee spaces.

A taxpayer that owns or leases all or a

portion of one or more parking facilities

must identify the number of spaces in the

parking facility, or the taxpayer’s portion

thereof, exclusively reserved for the taxpayer’s employees (reserved employee

spaces). Employee spaces in the parking

facility, or portion thereof, may be exclusively reserved for employees by a variety

of methods, including, but not limited to,

specific signage (for example, “Employee

Parking Only”) or a separate facility or

46

portion of a facility segregated by a barrier to entry or limited by terms of access.

The taxpayer must then determine the

percentage of reserved employee spaces in relation to total parking spaces and

multiply that percentage by the taxpayer’s

total parking expenses for the parking facility. The product is the amount of the

deduction for total parking expenses that

is disallowed under section 274(a)(4) for

reserved employee spaces.

ii. Step 2

Second, the taxpayer determines the

primary use of remaining spaces (primary

use test). The taxpayer may identify the remaining parking spaces in the parking facility and determine whether their primary

use is to provide parking to the general

public. If the primary use of the remaining

parking spaces in the parking facility is to

provide parking to the general public, then

the remaining total parking expenses for

the parking facility are excepted from the

section 274(a) disallowance by the general public exception under section 274(e)

(7).

For purposes of calculating the disallowance, the term “primary use” means

greater than 50 percent of actual or estimated usage of the parking spaces in the

parking facility. Primary use of the parking spaces is tested during normal business hours on a typical business day. Nonreserved parking spaces that are available

to the general public but empty during

normal business hours on a typical business day are treated as provided to the

general public. In addition, if the actual or

estimated usage of the parking spaces varies significantly between days of the week

or times of the year, the taxpayer may use

any reasonable method to determine the

average actual or estimated usage.

For purposes of Notice 2018-99, the

term “general public” includes, but is not

limited to, customers, clients, visitors,

individuals delivering goods or services

to the taxpayer, students of an educational institution, patients of a health care

facility, and congregants of a religious

organization. As noted in part 1 of the

Background, section 512(a)(7) was retroactively repealed, therefore “congregants

of a religious organization” is not included

in the definition of the “general public” in

Bulletin No. 2020–28

these proposed regulations. The general

public does not include employees, partners, 2-percent shareholders of S corporations, or independent contractors of the

taxpayer.

iii. Step 3

Third, the taxpayer calculates the allowance for reserved nonemployee spaces. If the primary use of a taxpayer’s remaining parking spaces is not to provide

parking to the general public, the taxpayer

may identify the number of spaces in the

parking facility, or the taxpayer’s portion

thereof, exclusively reserved for nonemployees (reserved nonemployee spaces).

For example, reserved nonemployee spaces include spaces reserved for visitors and

customers, as well as spaces reserved for

partners, sole proprietors, and 2-percent

shareholders of S corporations.

Notice 2018-99 explains that the number of reserved nonemployee spaces in the

parking facility, or portion thereof, may

be exclusively reserved for nonemployees

by a variety of methods, including, but not

limited to, specific signage (for example,

“Customer Parking Only”) or a separate

facility or portion of a facility segregated

by a barrier to entry or limited by terms

of access. A taxpayer that has no reserved

nonemployee spaces may proceed to

Step 4.

A taxpayer that has reserved nonemployee spaces may determine the percentage of reserved nonemployee spaces

in relation to the remaining total parking

spaces and multiply that percentage by

the taxpayer’s remaining total parking

expenses. The product is the amount of

the deduction for remaining total parking

expenses that is not disallowed under section 274(a)(4).

iv. Step 4

Fourth, the taxpayer determines the remaining use and allocable expenses of any

remaining parking spaces. If the taxpayer

completes Steps 1 through 3 of the method

in Notice 2018-99 and has any remaining

parking expenses not specifically categorized as deductible or nondeductible,

the taxpayer must reasonably determine

the employee use of the remaining parking spaces during normal business hours

Bulletin No. 2020–28

on a typical business day and the related

expenses allocable to employee parking

spaces. Methods to determine employee

use of the remaining parking spaces may

include specifically identifying the number of employee spaces based on actual or

estimated usage. Actual or estimated usage may be based on the number of spaces, the number of employees, the hours of

use, or other measures.

Several of the comments addressing

section 274(a)(4) are summarized in the

Explanation of Provisions. However,

comments recommending statutory revisions or addressing issues outside the

scope of these proposed regulations, such

as environmental policy issues, are not addressed.

C. Comments on Notice 2018-99

The proposed regulations describe and

clarify the statutory requirements of section 274(a)(4) and 274(l), as well as the

applicability of certain exceptions under

section 274(e) to QTF expenses. To implement the TCJA’s disallowance of deductions for QTF expenses under section

274(a)(4), the proposed regulations create

a new §1.274-13 (proposed §1.274-13) to

address QTF expenses paid or incurred by

an employer, and the application of certain exceptions in section 274(e) to QTF

expenses. Further, the proposed regulations create a new §1.274-14 (proposed

§1.274-14) to address transportation and

commuting expenses paid or incurred by

an employer. As discussed in part 2 of the

Background, the statutory changes made

by the TCJA apply to QTF expenses paid

or incurred by employers after December

31, 2017.

Notice 2018-99 requested comments

for future guidance to further clarify the

treatment of QTFs under section 274. In

particular, the Treasury Department and

the IRS requested comments on the definitions of “primary use” and “general public”, whether primary use should be used

to determine the extent to which parking is

made available to the general public under

section 274(e)(7), other methodologies for

determining the use of the parking spaces

and the related expenses allocable to employee parking, the applicability of section 274(e)(8) to expenses for any goods

or services that constitute a QTF sold by

the taxpayer to an employee in a bona fide

transaction for an adequate and full consideration in money or money’s worth,

and the circumstances under which such

a transaction should be excluded from the

term QTF for purposes of section 274(a)

(4).

The Treasury Department and the IRS

received approximately 500 comments

in response to Notice 2018-99. All comments were considered in drafting these

proposed regulations and are available

at www.regulations.gov or upon request.

Approximately 200 comments addressed

issues involving section 512(a)(7), which

was retroactively repealed, as explained in

part 1 of the Background. Approximately

70 comments expressed support for the

disallowance of parking expenses in section 274(a)(4) on environmental policy

grounds and encouraged the Treasury Department and the IRS to further discourage employers from subsidizing employees that drive to work. The majority of the

remaining comments requested additional

methodologies and simplified rules for

taxpayers that own or lease parking facilities to calculate the amount of the parking

expense disallowance.

47

Explanation of Provisions

1. Qualified Transportation Fringes

A. In General

Proposed §1.274-13 restates the statutory rules under section 274(a)(4), defines relevant terms, and modifies certain

guidance in Notice 2018-99, providing a

general rule and three simplified methodologies to determine the amount of nondeductible parking expenses when a parking

facility is owned or leased by the taxpayer. Additionally, the proposed regulations

build on Notice 2018-99 to include rules

addressing the deduction disallowance for

expenses related to providing employees

transportation in a commuter highway vehicle and transit pass QTFs.

The proposed regulations include special rules to clarify and simplify the calculations underlying the methodologies to

determine the amount of QTF parking expenses. In addition, the proposed regulations generally apply the guidance in No-

July 6, 2020

tice 2018-99 and the applicable exceptions

in section 274(e) to all QTF e­ xpenses.

Specifically, as in Notice 2018-99, the

proposed regulations provide that if the

taxpayer pays a third party for its employee’s QTF, the section 274(a)(4) disallowance is generally calculated as the

taxpayer’s total annual cost of the QTF

paid to the third party. With regard to

QTF parking expenses, the proposed regulations provide that if the taxpayer owns

or leases all or a portion of one or more

parking facilities, the section 274(a)(4)

disallowance may be calculated using a

general rule, as defined below, or any one

of three simplified methodologies. Taxpayers may choose to apply the general

rule or a simplified methodology for each

taxable year and for each parking facility.

Special rules and definitions are included

in the proposed regulations for allocating

certain mixed parking expenses, aggregating parking spaces by geographic location, removing inventory/unusable spaces

from available parking spaces, defining

general public for multi-tenant building

parking facilities, and disregarding five

or fewer reserved parking spaces if the

reserved spaces are 5 percent or less of

total parking spaces. Taxpayers may use

statistical sampling with the general rule

or simplified methodologies if they follow the procedures in Rev. Proc. 2011-42,

2011-37 I.R.B. 318, as corrected by Ann.

2013-46, 2013-48 I.R.B. 593.

The general rule in the proposed regulations allows taxpayers to calculate the

disallowance based on a reasonable interpretation of section 274(a)(4). However,

taxpayers must use the expense paid or

incurred in providing a QTF instead of its

value to an employee, allocate parking expenses to reserved employee spaces, and

properly apply the exception for parking

made available to the general public. A

special rule for aggregating parking spaces by geographic location may be used

with the general rule.

The proposed regulations also include

three simplified methodologies that taxpayers may use instead of the general rule.

Under the first simplified methodology,

the “qualified parking limit methodology,” taxpayers calculate the disallowance

by multiplying the total number of spaces

used by employees during the peak demand period, or, alternatively, the total

July 6, 2020

number of the taxpayer’s employees, by

the section 132(f)(2) monthly per employee limitation on exclusion for qualified

parking ($270), for each month in the taxable year.

The second simplified methodology,

the “primary use methodology,” is largely

based on the method deemed reasonable

in Notice 2018-99, modified in response

to comments received. Special rules for

allocating certain mixed parking expenses

and aggregating parking spaces by geographic location may be used with the primary use methodology. Definitions in Notice 2018-99 for employee, general public,

parking facility, total parking spaces, reserved employee spaces, reserved nonemployee spaces, primary use, and total

parking expenses, as modified in response

to comments, are also included in the proposed regulations. New definitions for

geographic location, inventory/unusable

spaces, available parking spaces, peak demand period, and mixed parking expense

are included in the proposed regulations

to clarify the methodology in response to

comments received.

The final simplified methodology is

the “cost per space methodology,” which

allows taxpayers to calculate the disallowance by multiplying the cost per parking

space by the number of available parking

spaces to be used by employees during

the peak demand period. Cost per space

is calculated by dividing total parking expenses (including expenses for inventory/

unusable spaces) by total parking spaces

(including inventory/unusable spaces).

Special rules for allocating certain mixed

parking expenses and aggregating parking spaces by geographic location may be

used with the cost per space methodology.

B. Definitions

As described below, the proposed regulations generally include the definitions

from Notice 2018-99, modified in response to comments received, along with

new definitions to clarify terms as needed.

i. Qualified Transportation Fringe

The proposed regulations add a definition for the term “qualified transportation

fringe.” The definition is based on section

132(f)(1), except that it does not include

48

qualified bicycle commuting reimbursements for the reasons described in part 2

of the Background. Thus, the proposed

regulations provide that the term “qualified transportation fringe” means any of

the following provided by an employer to

an employee: transportation in a commuter highway vehicle if such transportation

is in connection with travel between the

employee’s residence and place of employment (as described in sections 132(f)

(1)(A) and 132(f)(5)(B)); any transit pass

(as described in sections 132(f)(1)(B) and

132(f)(5)(A)); or qualified parking (as

described in sections 132(f)(1)(C) and

132(f)(5)(C)).

ii. Employee

The proposed regulations include the

definition of the term “employee,” which

is taken from §§1.132-1(b)(2)(i) and

1.132-9(b), Q/A-5 and Q/A-24. Commenters have asked whether volunteers

are treated as employees under Notice

2018-99, although most of the comments

concerning the status of volunteers related

to section 512(a)(7), which has been retroactively repealed. The term “employee” for Federal tax purposes generally

is understood to refer to a common-law

employee (although the regulations under

section 132 also include certain statutory

employees such as officers of corporations

in the definition of employee for purposes

of QTFs). Whether a service provider is a

common-law employee generally turns on

whether the service recipient has the right

to direct and control the service provider,

not only as to the result to be accomplished

by the work but also as to the details and

means by which that result is accomplished. See, e.g., §31.3121(d)-1(c)(2) of

the Employment Taxes and Collection of

Income Tax at Source Regulations. The

determination does not depend on whether or how the individual is compensated,

or by which person. The employment status of a volunteer depends on the facts and

circumstances in each case. Accordingly,

the proposed regulations do not address

the employment status of volunteers.

iii. General Public

Commenters raised concerns that, for

taxpayers that lease space in a multi-

Bulletin No. 2020–28

tenant building, Notice 2018-99 did not

include employees, partners, 2-percent

shareholders of S corporations, independent contractors, clients, or customers

of unrelated tenants in the building as

members of the general public. In response to these comments, the proposed

regulations modify the definition of the

term “general public” from Notice 201899 to include employees, partners, 2-percent shareholders of S corporations, sole

proprietors, independent contractors,

clients, or customers of unrelated tenants in multi-tenant buildings, as well

as customers, clients, or visitors of the

taxpayer, individuals delivering goods or

services to the taxpayer, students of an

educational institution, and patients of a

health care facility.

iv. Parking Facility

The proposed regulations include a

definition of the term “parking facility”

that follows the definition of qualified

parking in section 132(f)(5)(C) and includes one or more indoor or outdoor

garages and other structures, as well as

parking lots and other areas where employees may park. Commenters suggested

that because qualified parking as defined

in section 132(f)(5)(C) and §1.132-9(b),

Q/A-4(c) does not include any parking on

or near property used by the employee for

residential purposes, including parking for

resident employees of residential rental

buildings, the definition of “total parking

spaces” should exclude such spaces. In response to these comments, the proposed

regulations specifically exclude parking

spaces on or near property used by the

employee for residential purposes from

the definition of parking facility.

v. Geographic Location

Commenters have asked how a geographic location is defined for purposes of aggregating the number of parking

spaces to determine the section 274(a)(4)

disallowance using the primary use methodology. Specifically, Notice 2018-99

provides that if a taxpayer owns or leases

more than one parking facility in a single

geographic location, the taxpayer may

aggregate the number of spaces in those

parking facilities. However, if a taxpayer

Bulletin No. 2020–28

owns or leases parking facilities in more

than one geographic location, the taxpayer

may not aggregate the spaces in parking

facilities that are in different geographic

locations.

In response to these comments, the

proposed regulations add a definition of

the term “geographic location” as contiguous tracts or parcels of land owned or

leased by the taxpayer. Two or more tracts

or parcels of land are contiguous if they

share common boundaries or would share

common boundaries but for the interposition of a road, street, railroad, stream, or

similar property. Tracts or parcels of land

which touch only at a common corner are

not contiguous. The proposed regulations

follow Notice 2018-99 and allow taxpayers to aggregate the number of parking

spaces in a single geographic location to

determine the section 274(a)(4) disallowance using the general rule, primary use

methodology, or cost per space methodology.

vi. Total Parking Spaces

The proposed regulations define the

term “total parking spaces” as the total

number of parking spaces in the parking

facility. New terms “available parking

spaces” and “inventory/unusable spaces”

are added to the proposed regulations and

the definition of the term “parking facility” is clarified in response to comments

received.

vii. Reserved Employee Spaces

A commenter recommended that the

definition of the term “reserved employee spaces” be limited to parking spaces

actually used by employees on a typical

business day. Because section 274(a)(4)

disallows the deduction for the expense

of providing a QTF to an individual employee, the commenter reasoned that the

taxpayer should identify the expense for

each QTF provided to each individual employee when determining the amount that

is disallowed.

After considering the comment, the

Treasury Department and the IRS have

determined that costs allocated to reserved

employee spaces should be disallowed regardless of actual use of the reserved spaces. However, a special rule is included in

49

step 1 of the primary use methodology

providing that there is no disallowance for

reserved employee spaces if the primary use of the available parking spaces is

to provide parking to the general public,

there are five or fewer reserved employee

spaces, and the number of reserved employee spaces is 5 percent or less of the

total parking spaces in the parking facility.

viii. Reserved Nonemployee Spaces

A commenter suggested that parking

spaces reserved for drivers with disabilities be treated as “reserved nonemployee

spaces” and as such, any related expenses not be disallowed under section 274(a)

(4). After considering the comment, the

Treasury Department and the IRS have

determined that the proposed regulations should not include parking spaces

reserved for drivers with disabilities in

the definition of reserved nonemployee

spaces. Unlike parking spaces reserved

for customers or visitors, parking spaces

reserved for drivers with disabilities may

be used by employees (with disabilities),

and section 274(a)(4) would then apply

to disallow the expense. Parking spaces

reserved for drivers with disabilities are

also not included in “reserved employee

spaces” because they may or may not be

exclusively reserved for employees.

ix. Inventory/Unusable Spaces

The Treasury Department and the IRS

received questions and comments on how

parking spaces reserved for, or used by,

inventoried vehicles are to be treated for

purposes of determining the disallowance.

For example, taxpayers asked whether

parking spaces reserved exclusively for,

or used by, vehicles to be sold or leased to

customers at a car dealership or car rental

agency are treated as spaces available to

the general public.

In response to the comments and questions received, the proposed regulations

add a new definition for the term “inventory/unusable spaces” that includes parking spaces used for inventoried vehicles,

qualified nonpersonal use vehicles (as

described in §1.274-5(k)), other fleet vehicles used in a taxpayer’s trade or business, or otherwise not usable for parking

by employees.

July 6, 2020

Inventory/unusable spaces are specifically excluded from the definitions of

“available parking spaces,” discussed later, and “reserved nonemployee spaces,”

discussed earlier, under the primary use

methodology and primary use test in the

proposed regulations. The proposed regulations exclude inventory/unusable spaces

because those spaces are generally not

available to employees or the general public but are instead used for other purposes.

Inventory/unusable spaces are included

in total parking spaces under the cost per

space methodology because taxpayers do

incur costs in maintaining the spaces.

x. Available Parking Spaces

The proposed regulations add a new

definition for the term “available parking

spaces” to clarify that reserved employee

spaces and inventory/unusable spaces are

not included in determining primary use

under the primary use methodology.

xi. Primary Use

The Treasury Department and the IRS

received numerous comments on the primary use test used in step 2 of the fourstep method in Notice 2018-99 to determine the extent to which parking is made

available to the general public under section 274(e)(7). Notice 2018-99 provides

that “primary use” means greater than 50

percent of actual or estimated usage by the

general public of the parking spaces in the

parking facility.

Several commenters suggested that primary use should mean greater than 85, 90,

or 95 percent of actual or estimated usage

by the general public, thereby applying

the exception in section 274(e)(7) only to

taxpayers with less than 15 percent actual

or estimated usage by employees. Other

commenters suggested that 50 percent is

fair and reasonable.

After considering the comments received, the Treasury Department and the

IRS have decided to retain the primary

use test as described in Notice 2018-99 as

a reasonable interpretation of the exception in section 274(e)(7) for parking made

available to the general public. This interpretation is consistent with recent proposed regulations addressing the application of the section 274(e)(7) exception to

July 6, 2020

the limitation on deduction for meals and

entertainment expenses. See 85 FR 11020

(February 26, 2020). Specifically, the proposed regulations for meals and entertainment expenses (proposed §1.274-11 and

§1.274-12) include a definition of the term

“primarily consumed” that means greater

than 50 percent of actual or reasonably estimated consumption.

xii. Total Parking Expenses

Commenters suggested that safety-related expenses, such as lighting, snow and

ice removal, leaf removal, trash removal,

cleaning, and security, should be excluded from the definition of “total parking

expenses.” Commentators reasoned that

including the expenses may encourage

unsafe parking conditions and neglect of

care in maintaining the parking facilities.

Commenters also requested the removal of indirect costs, such as utility costs,

insurance, property taxes, snow and ice

removal, leaf removal, trash removal,

cleaning, parking lot attendant expenses,

and security. Multiple commenters also

suggested adding depreciation to total

parking expenses, reasoning that these are

costs of parking facilities.

After considering the comments received, the Treasury Department and the

IRS have determined that the proposed regulations should adopt the definition of the

term “total parking expenses” from Notice

2018-99. Section 274(a)(4) disallows a deduction for the expense of providing a QTF,

without regard to whether the expense is

required for safety reasons. Further, QTF

parking expenses include indirect costs such

as allocable salaries for security and maintenance personnel, property taxes, repairs

and maintenance, etc. See Joint Committee

on Taxation, General Explanation of Public

Law 115-97 (JCS-1-18), at 190, December 2018. However, as explained in Notice

2018-99 and in part 2.B. of the Background,

a deduction for an allowance for depreciation is not included in total parking expenses

because it is an allowance for the exhaustion,

wear and tear, and obsolescence of property,

and not a parking expense.

xiii. Mixed Parking Expense

Numerous commenters expressed concerns and asked questions about how to

50

determine the amount of expenses allocable to a parking facility if the invoice does

not separate parking facility expenses

from nonparking facility expenses. Commenters explained that determining and

allocating expenses may impose excessive and unduly burdensome recordkeeping requirements on taxpayers and may be

difficult for taxpayers and the IRS to administer. Commenters noted that such expenses for parking and nonparking property may include rent or lease payments,

repairs, maintenance, utility costs, insurance, property taxes, interest, snow or ice

removal, and security. In response to the

comments, the Treasury Department and

the IRS have included in the proposed regulations a definition for the term “mixed

parking expense” and a special rule for

allocating certain mixed parking expenses. “Mixed parking expense” is defined as

an amount paid or incurred by a taxpayer

for both a parking facility and nonparking

facility property that a taxpayer owns or

leases. The special rule for allocating certain mixed parking expenses to a parking

facility is explained in part 1.C of this Explanation of Provisions.

xiv. Peak Demand Period

In these proposed regulations, several of the methodologies for determining

the section 274(a)(4) disallowance for

parking facilities require the taxpayer to

determine the total number of parking

spaces used by employees during the peak

demand period for employee parking on a

typical business day. Thus, the proposed

regulations provide that for purposes of

proposed §1.274-13, the term “peak demand period” means the period of time on

a typical business day when the greatest

number of the taxpayer’s employees are

utilizing parking spaces in the taxpayer’s

parking facility. If a taxpayer’s employees

work in shifts, the peak demand period

would take into account the shift during

which the largest number of employees

park in the taxpayer’s parking facility.

However, a brief transition period during

which two shifts overlap in their use of

parking spaces, as one shift of employees

is getting ready to leave and the next shift

is reporting to work, may be disregarded.

Taxpayers may use any reasonable methodology to determine the total number of

Bulletin No. 2020–28

spaces used by employees during the peak

demand period on a typical business day,

for example based on periodic inspections

or employee surveys.

The recent Coronavirus Disease

(COVID-19) pandemic highlights that

taxpayers may experience significant

variations in employee parking during the

taxable year due to a national emergency

or other type of disaster. The Treasury

Department and the IRS request comments on what additional rules, if any, are

needed to address significant variations in

employee parking during the taxable year

and whether any additional rules should

apply to all taxpayers generally or should

be triggered only upon certain events.

C. Special Rules for QTF Parking

Expenses

Multiple commenters expressed concerns and asked questions regarding how

to allocate mixed parking expenses. Commenters suggested the use of a special rule

that would allow the taxpayer to allocate

a certain percentage of the taxpayer’s

mixed parking expenses, such as 5 percent, to a parking facility. Commenters

also recommended that taxpayers be permitted to allocate mixed parking expenses

by comparing rent or lease payments for

leases with and without parking facilities

or comparing the value of similar nonparking facilities with and without parking facilities.

In response to concerns raised by commenters, the proposed regulations include

a special rule for certain mixed parking

expenses to reduce administrative burdens

for taxpayers and simplify calculations in

complying with section 274(a)(4). Specifically, the proposed regulations provide

that a taxpayer may choose to allocate 5

percent of certain mixed parking expenses to the parking facility. This special rule

applies to mixed parking expenses related

to payments under a lease or rental agreement, and payments for utilities, insurance, interest and property taxes. The special rule to allocate certain mixed parking

expenses may only be used in the primary

use methodology and cost per space methodology and may not be used with the

general rule or the qualified parking limit

methodology. Taxpayers are not required

to use the special rule for certain mixed

Bulletin No. 2020–28

parking expenses and may instead use any

reasonable methodology for mixed parking expenses.

The proposed regulations also include

a special rule allowing taxpayers to aggregate the number of parking spaces in a

single geographic location. The rule generally follows the rule in Notice 2018-99,

but in response to comments adds a definition of the term “geographic location,”

which is based on tracts or parcels of land

that are contiguous. The special rule for

aggregation of parking spaces in a single

geographic location may be used with the

general rule, primary use methodology,

and cost per space methodology, but may

not be used with the qualified parking limit methodology.

D. Calculation of Disallowance of QTF

Parking Expenses

The proposed regulations follow Notice 2018-99 and provide that if a taxpayer pays one or more third parties an

amount for its employees’ QTFs, the section 274(a)(4) disallowance is equal to the

taxpayer’s total annual cost for the QTFs

paid or incurred to third parties. A commenter suggested that if a taxpayer pays a

third party for parking spaces that are not

assigned to specific employees, some of

which are not used (for example, taxpayer

leases 10 spaces and only has 8 employees), the disallowance should be limited

to parking spaces actually used by employees on a typical business day. After

considering the comment, the Treasury

Department and the IRS determined that

amounts paid to a third party for qualified

parking in such situations should be disallowed regardless of actual employee use

of the spaces because the taxpayer paid

or incurred the expense for its employees’

QTFs regardless of employee use.

If instead, the taxpayer owns or leases a parking facility, the taxpayer may

use the general rule or choose any of the

following three simplified methodologies

for each parking facility to determine the

section 274(a)(4) disallowance for each

taxable year.

i. General Rule

Multiple commenters requested guidance on additional methodologies that

51

may be used to calculate the disallowance

under section 274(a)(4). In response to

these comments, the Treasury Department

and the IRS determined that taxpayers

may calculate the disallowance using a

general rule if the calculation is based on a

reasonable interpretation of section 274(a)

(4), as long as the taxpayer’s methodology

does not use the value of a QTF instead

of its expense, fail to allocate parking

expense to reserved employee spaces, or

improperly apply the exception for qualified parking made available to the public

(for example, by treating a parking facility

regularly used by employees as available

to the public merely because the public

has access to the parking facility).

ii. Qualified Parking Limit Methodology

Multiple commenters suggested that a

standard cost per parking space similar to

the standard mileage rate or per diem rate

be used to determine the disallowance under section 274(a)(4). Other commenters

suggested that a national average fair market value per parking space be used.

In response to the comments received, the Treasury Department and the

IRS have determined that the maximum

monthly dollar amount under section

132(f)(2), adjusted for inflation, may

be used as a simple estimate of the taxpayer’s monthly total cost per parking

space. The adjusted maximum monthly

excludable amount for 2020 is $270 per

employee. Using the qualified parking

limit methodology, taxpayers may determine the disallowance simply by multiplying the section 132(f)(2) monthly per

employee limitation on the exclusion by

the total number of spaces used by employees during the peak demand period.

Alternatively, the proposed regulations

provide that taxpayers using this methodology may instead multiply the section

132(f)(2) monthly per employee limitation on the exclusion by the total number

of the taxpayer’s employees.

Section 274(e)(2) and proposed

§1.274-13(e)(2)(i) provide that the section 274(a)(4) disallowance for QTFs

does not apply to the extent that a QTF

is treated as compensation to an employee on the taxpayer’s return and as wages

to the employee. A taxpayer using this

qualified parking limit methodology who

July 6, 2020

has monthly expenses per parking space

exceeding the section 132(f)(2) monthly

per employee limitation on the exclusion

can deduct those excess expenses without regard to how much (if any) of the

value of the parking space to the employee exceeds the section 132(f)(2) monthly

per employee limitation on exclusion.

However, these proposed regulations

provide that the qualified parking limit methodology may be used only if the

value of the QTF, to the extent it exceeds

the sum of the amount paid (if any) by the

employee for the QTF and the applicable

statutory monthly limit in section 132(f)

(2), is included on the taxpayer’s Federal income tax return as originally filed as

compensation paid to the employee and

as wages to the employee for purposes

of withholding under chapter 24 (relating to collection of Federal income tax at

source on wages).

Section 132(a)(5) excludes from gross

income the value of a QTF up to the section 132(f)(2) monthly per employee

limitation on exclusion, and therefore

no amount for the value of QTFs up to

the section 132(f)(2) monthly limitation

can be included in an employee’s wages. Thus, the exception in section 274(e)

(2) and proposed §1.274-13(e)(2)(i)(A)

cannot be applied to the value of a QTF

that is less than or equal to the monthly

per employee limitation on exclusion in

section 132(f)(2). Because this qualified

parking limit methodology already limits the taxpayer’s expenses per parking

space to the section 132(f)(2) monthly per employee limitation on exclusion, section 274(e)(2) cannot be used

to reduce the disallowed expenses even

further. For this reason, the proposed

regulations provide that the exception

to the disallowance for amounts treated as employee compensation provided

for in section 274(e)(2) and in proposed

§1.274-13(e)(2)(i) cannot be applied to

reduce a section 274(a)(4) disallowance

calculated using this method.

iii. Primary Use Methodology

The Treasury Department and the IRS

received numerous comments on the

four-step method in Notice 2018-99. The

proposed regulations adopt the four-step

method in Notice 2018-99, with revisions

July 6, 2020

in response to comments, and rename it

as the “primary use methodology.” Comments received on the definition of primary use in Notice 2018-99 are discussed in

part 1.B.xi. of this Explanation of Provisions.

The four-step method in Notice 201899 provides that employee use of parking

spaces is determined by identifying the

actual or estimated usage of the parking

spaces during normal business hours on

a typical business day. Multiple commenters suggested that taxpayers should

instead be required to count the number

of parking spaces in the parking facility

actually used by employees. The Treasury Department and the IRS considered

these comments and determined that, to

ease the burden of counting actual spaces

used by employees and provide a clearer standard, taxpayers must identify the

number of available parking spaces used

by employees during the peak demand

period.

iv. Cost Per Space Methodology

Multiple commenters stated that the

four-step method in Notice 2018-99 is

cumbersome and complex. As an alternative, the Treasury Department and the IRS

include in the proposed regulations the

cost per space methodology, which allows

taxpayers to calculate the disallowance by

multiplying the cost per space by the number of spaces used by employees. Taxpayers must identify the number of available

parking spaces used by employees during

the peak demand period. Cost per space

is calculated by dividing total parking

expenses (including expenses related to

inventory/unusable spaces) by the total

number of spaces (including inventory/

unusable spaces).

v. Expenses for Transportation in a

Commuter Highway Vehicle and Transit

Pass QTFs

Notice 2018-99 addresses only expenses related to parking QTFs. The proposed

regulations include rules addressing the

disallowance of deductions for expenses

for transportation in a commuter highway

vehicle and transit pass QTFs, as well as

the applicability of certain exceptions under section 274(e).

52

E. Specific Exceptions to Section 274(a)

for QTF Expenses

The Treasury Department and the IRS

received multiple questions and comments about whether the exceptions in

section 274(e) apply to QTF expenses that

are otherwise nondeductible under section

274(a)(4). Section 274(e) provides that

the deduction disallowance under section

274(a) does not apply to any expense described in section 274(e). The Treasury

Department and the IRS considered the

comments and note that while section

274(e) was not amended by the TCJA, it

provides that section 274(a) “shall not apply to” deductions for expenses described

in section 274(e). Therefore, except as described in part 1.E.i. of this Explanation of

Provisions, the proposed regulations provide that the deduction disallowance does

not apply to expenditures for QTFs that

meet the requirements of sections 274(e)

(2), (7) and (8).

Numerous commenters also recommended providing exceptions from the

section 274(a)(4) disallowance for QTFs

with a zero or a de minimis fair market

value, QTFs required to be provided to

employees under certain laws, or QTFs

provided by small business taxpayers.

Exceptions for QTFs with a zero or a de

minimis fair market value, QTFs required

under certain laws, and small business

taxpayers are not provided for in any of

the exceptions under section 274(e) and

therefore are not exceptions to the section

274(a)(4) disallowance.

i. Certain QTF Expenses Treated as

Compensation under Section 274(e)(2)

Pursuant to section 274(e)(2), the proposed regulations provide that the disallowance under section 274(a) does not

apply to expenditures for QTFs to the

extent the taxpayer treats the expenses

as compensation to the employee on the

taxpayer’s Federal income tax return as

originally filed, and as wages to the employee for purposes of withholding under

chapter 24 relating to collection of Federal

income tax at source on wages. However, section 132(a)(5) excludes the value of

QTFs from an employee’s gross income

subject to the limitations on exclusion

provided by section 132(f)(2). Therefore,

Bulletin No. 2020–28

in determining whether the section 274(e)

(2) exception for expenses treated as compensation applies, the proposed regulations provide that the exception in section

274(e)(2) does not apply to expenses paid

or incurred for QTFs the value of which

(including a purported value of zero) is

excluded from an employee’s gross income under section 132(a)(5).

The Treasury Department and the IRS

are aware that some taxpayers may attempt to claim a deduction under section

274(e)(2) by including a value that is less

than the amount required to be included

under §1.61-21, which provides the rules

for valuation of fringe benefits, or by including a purported value of zero, as compensation and as wages to the employee.

The proposed regulations therefore provide that the exception in section 274(e)

(2) does not apply to expenses paid or incurred for QTFs for which the value that

is included in gross income is less than the

amount required to be included in gross

income under §1.61-21. Similarly, if the

amount required to be included in gross

income under §1.61-21 is purportedly

zero, the exception in section 274(e)(2)

and proposed §1.274-13(e)(2)(i) does not

apply.

As noted above, section 132(a)(5) excludes the value of QTFs from an employee’s gross income subject to the monthly

per employee limitations on exclusion

provided by section 132(f)(2). Section

132(f)(2) provides that the amount of

QTFs that can be excluded from gross income cannot exceed a maximum monthly dollar amount, adjusted for inflation.

For taxable years beginning in 2020, the

monthly per employee limitation under

section 132(f)(2)(A) regarding the aggregate fringe benefit exclusion amount for

transportation in a commuter highway

vehicle and any transit pass is $270 per

employee. The monthly limitation under

section 132(f)(2)(B) regarding the fringe

benefit exclusion amount for qualified

parking is $270 per employee. Rev. Proc.

2019-44, 2019-47 I.R.B. 1093. Therefore,

if an employer provides an employee

with QTFs, the value of which exceeds

the sum of the amount, if any, paid by the

employee for the fringe benefits and the

applicable statutory monthly per employee limit, then the employer must include

the value of the benefits provided in ex-

Bulletin No. 2020–28

cess of the amount paid by the employee

and the applicable statutory per employee

monthly limit in the employee’s wages

for income and employment tax purposes.

See §1.61–21(b)(1) and §1.132-9(b), Q/A8. The proposed regulations provide that

the employer must follow this treatment in

order to rely on the exception in section

274(e)(2).

ii. Expenses for Transportation in a

Commuter Highway Vehicle, Transit

Pass, or Parking Made Available to the

Public

As noted in part 2.A. of the Background, section 274(e)(7) applies to expenses for goods, services, and facilities

made available by the taxpayer to the general public. When enacting section 274(n)

in 1986 (limiting the deduction for meal

and entertainment expenses), Congress

indicated that a taxpayer’s customers and

potential customers are members of the

general public for purposes of section

274(e)(7):

The reduction rule [in section 274(n)]

does not apply in the case of items, such

as samples and promotional activities,

that are made available to the general

public. For example, if the owner of a

hardware store advertises that tickets to

a baseball game will be provided to the

first 50 people who visit the store on

a particular date, or who purchase an

item from the store during a sale, then

the full amount of the face value of the

tickets is deductible by the owner.

H.R. Rep. No. 99-426 (1986), reprinted in 1986-3 (Vol. 2) C.B. 1, 124, and

S. Rep. No. 99-313 (1986), reprinted in

1986-3 (Vol. 3) C.B. 1, 72. Thus, the Treasury Department and the IRS have determined that expenses for transportation in

a commuter highway vehicle, any transit

pass, and parking that otherwise qualify as

QTFs and are made available to the general public, which includes a taxpayer’s customers and potential customers, are within

this exception. However, goods, services,

and facilities are not made available to the

general public if they are made available

only to an exclusive list of guests. See

Churchill Downs, Inc. v. Commissioner,

307 F.3d 423 (6th Cir. 2002).

Pursuant to section 274(e)(7), the proposed regulations provide that any tax-

53

payer expense for transportation in a commuter highway vehicle, a transit pass, or

parking that otherwise qualifies as a QTF

under section 132(f)(1) and that is also

made available to the general public is

not subject to the deduction disallowance

under section 274(a) to the extent such

transportation, transit pass, or parking is

made available to the general public. As

described further in part 1.B.iii. of this Explanation of Provisions, “general public”

includes, but is not limited to, customers,

clients, visitors, individuals delivering

goods or services to the taxpayer, and patients of a health care facility. The general

public does not include employees, partners, 2-percent shareholders of S corporations, sole proprietors, or independent

contractors of the taxpayer. If a taxpayer

owns or leases space in a multi-tenant

building, employees, partners, 2-percent

shareholders of S corporations, sole proprietors, independent contractors or customers of unrelated tenants in the building

are included in the definition of general

public.

iii. Expenses for Transportation in a

Commuter Highway Vehicle, Transit

Pass, or Parking Sold to Customers

As noted in part 2.A. of the Background, section 274(e)(8) applies to expenses for goods or services (including the

use of facilities) that are sold by the taxpayer in a bona fide transaction for an adequate and full consideration in money or

money’s worth. The Treasury Department

and the IRS have determined that expenses

for transportation in a commuter highway

vehicle, any transit pass, and parking that

otherwise qualify as QTFs and that are sold

by a taxpayer fall within this exception.

Pursuant to section 274(e)(8), the proposed regulations provide that any taxpayer expense for transportation in a commuter highway vehicle, a transit pass, or

parking that otherwise qualifies as a QTF

under section 132(f)(1) that is sold to customers in a bona fide transaction for an adequate and full consideration in money or

money’s worth is not subject to the deduction disallowance under section 274(a).

The proposed regulations also provide

that for purposes of this section, the term

“customer” includes an employee of the

taxpayer who purchases the transportation

July 6, 2020

in a commuter highway vehicle, transit

pass, or parking in a bona fide transaction

for an adequate and full consideration in

money or money’s worth.

Some commenters have stated that

QTFs offered through a compensation reduction agreement should not be subject

to the disallowance under section 274(a)

(4) because an employer should not be

disallowed a deduction for expenses

for otherwise deductible compensation

when an employee chooses to use that

compensation towards the purchase of a

QTF through a compensation reduction

agreement. Pursuant to section 132(f)(4),

no amount for a QTF is included in the

gross income of an employee solely because the employee can choose between

any QTF (other than a qualified bicycle

commuting reimbursement) and compensation that would otherwise be includible

in the employee’s gross income. Thus, an

employee who is offered this choice and

who elects QTFs is not required to include the foregone cash compensation in

income if the election is made pursuant

to a compensation reduction agreement

and the relevant requirements are met.

See §1.132-9(b), Q/A-11 through 15. In

other words, an employer who provides

an employee a QTF through a compensation reduction agreement is incurring an

expense for an excludible QTF (assuming

the relevant requirements are met), rather than an expense for the compensation

that was reduced. Therefore, the Treasury

Department and the IRS do not adopt this

approach because a QTF is subject to the

section 274(a)(4) disallowance regardless

of whether the benefit is provided by the

employer in-kind, through a bona fide cash

reimbursement arrangement, or through a

compensation reduction agreement.

2. Transportation and Commuting

Expenses

Proposed §1.274-14 addresses the disallowance of deductions under section

274(l) for amounts paid or incurred after December 31, 2017, for any expense

incurred to provide any transportation,

or any payment or reimbursement, to an

employee of the taxpayer in connection

with travel between the employee’s residence and place of employment, except

as necessary for ensuring the safety of

July 6, 2020

the employee. Travel between the employee’s residence and place of employment includes travel that originates at a

transportation hub near the employee’s

residence or place of employment. For

example, an employee who commutes to

work by airplane from an airport near the

employee’s residence to an airport near

the employee’s place of employment

is traveling between the residence and

place of employment.

Responding to comments received, the

proposed regulations provide a definition

for an employee’s “residence,” referencing the definition of the term “residence”

in §1.121-1(b)(1). Under §1.121-1(b)(1),

whether property is used by the taxpayer as

the taxpayer’s residence depends upon all

the facts and circumstances. A property used

by the taxpayer as the taxpayer’s residence

may include a houseboat, a house trailer, or

the house or apartment that the taxpayer is

entitled to occupy as a tenant-stockholder

in a cooperative housing corporation. The

proposed regulations also define the term

“safety of the employee,” referencing the

description of a bona fide business-oriented

security concern in §1.132-5(m).

Commentators have asked whether section 274(l) applies to expenses for

QTFs provided to an employee of the

taxpayer for which a deduction would be

disallowed under section 274(a)(4) except

that one of the exceptions under section

274(e) applies. The Treasury Department

and the IRS have determined that section

274(l) does not apply to deductions for

such expenses.

The Treasury Department and the IRS

also received comments suggesting that the

exception in section 274(e)(2) for expenses treated as compensation should apply

to section 274(l) transportation and commuting expenses. However, the exceptions

in section 274(e) apply only to amounts

that are disallowed under section 274(a),

and not to those disallowed under section

274(l). The Joint Committee on Taxation’s

Bluebook on the TCJA confirms that the

exception in section 274(e)(2) does not apply to section 274(l) expenses:

The provision is intended to include

qualified transportation fringe expenses in the exception to the deduction

disallowance for expenses that are

treated as compensation. Any expenses incurred for providing any form of

54

transportation which are not qualified

transportation fringes (or any payment

or reimbursement) for commuting between the employee’s residence and

place of employment, even if included

in compensation, are not eligible for

this exception.

Joint Committee on Taxation, General

Explanation of Public Law 115-97 (JCS1-18), at 190, December 2018. Thus, the

proposed regulations do not apply the section 274(e)(2) exception to section 274(l)

expenses.

Request for Comments

The Treasury Department and the IRS

request comments on all aspects of these

proposed regulations. Regarding QTF

parking expenses under proposed §1.27413, comments are specifically requested

on other methodologies for determining

the use of parking spaces and the related

expenses allocable to employee parking.

Comments are also requested on additional guidance needed to determine the

amount of commuter highway vehicle

and transit pass expenses for QTFs that

is nondeductible under section 274(a)(4),

including whether any specific examples

should be addressed. Regarding transportation and commuting expenses under

proposed §1.274-14, comments are specifically requested on additional guidance

needed to determine whether transportation is necessary for ensuring the safety of

the employee, and how to define an employee’s residence and place of employment. Comments are also requested on

whether any specific examples of transportation and commuting expenses should

be addressed.

Proposed Applicability Date

These regulations are proposed to apply for taxable years beginning on or after

the date these regulations are published as

final regulations in the Federal Register.

Pending the issuance of the final regulations, a taxpayer may rely on these proposed regulations for QTF expenses and

transportation and commuting expenses,

as applicable, that are paid or incurred in

taxable years beginning after December

31, 2017. Alternatively, a taxpayer may

choose to rely on the guidance in Notice

Bulletin No. 2020–28

2018-99 until these proposed regulations

are finalized.

Special Analyses

These proposed regulations are not

subject to review under section 6(b) of

Executive Order 12866 pursuant to the

Memorandum of Agreement (April 11,

2018) between the Treasury Department

and the Office of Management and Budget

regarding review of tax regulations.

In accordance with the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this proposed rule will

not have a significant economic impact

on a substantial number of small entities.

Although the rule may affect a substantial

number of small entities, the economic impact of the regulations is not likely to be

significant. Data are not readily available

about the number of taxpayers affected,

but the number is likely to be substantial

for both large and small entities because the

rule affects any entity that provides QTFs

or certain commuting benefits to employees. The economic impact of these regulations is not likely to be significant, however, because these proposed regulations

substantially incorporate prior guidance

and otherwise clarify the application of

the TCJA changes to section 274 related to

QTFs and certain commuting benefits. The

proposed regulations will assist taxpayers

in understanding the changes to section 274

and make it easier for taxpayers to comply

with those changes. Notwithstanding this

certification, the Treasury Department and

the IRS welcome comments on the impact

of these regulations on small entities.

Pursuant to section 7805(f), these proposed regulations have been submitted to

the Chief Counsel for Advocacy of the

Small Business Administration for comment on their impact on small business.

Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates

Reform Act of 1995 (UMRA) requires

that agencies assess anticipated costs and

benefits and take certain other actions before issuing a final rule that includes any

Federal mandate that may result in expenditures in any one year by a state, local, or

tribal government, in the aggregate, or by

the private sector, of $100 million (updat-

Bulletin No. 2020–28

ed annually for inflation). This rule does

not include any Federal mandate that may

result in expenditures by state, local, or

tribal governments, or by the private sector in excess of that threshold.

Executive Order 13132: Federalism

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing

any rule that has federalism implications if

the rule either imposes substantial, direct

compliance costs on state and local governments, and is not required by statute, or

preempts state law, unless the agency meets

the consultation and funding requirements

of section 6 of the Executive order. This

proposed rule does not have federalism implications and does not impose substantial

direct compliance costs on state and local

governments or preempt state law within

the meaning of the Executive order.

Comments and Requests for a Public

Hearing

Before these proposed regulations are

adopted as final regulations, consideration

will be given to any comments that are

submitted timely to the IRS as prescribed

in this preamble under the “ADDRESSES” heading. Any electronic comments

submitted, and to the extent practicable

any paper comments submitted, will be

made available at http://www.regulations.

gov or upon request.

A public hearing will be scheduled if requested in writing by any person who timely

submits electronic or written comments. Requests for a public hearing are also encouraged to be made electronically and can also

be made as prescribed in this preamble under the “ADDRESSES” heading. If a public

hearing is scheduled, notice of the date and

time for the public hearing will be published

in the Federal Register. Announcement

2020-4, 2020-17 IRB 1, provides that until

further notice, public hearings conducted

by the IRS will be held telephonically. Any

telephonic hearing will be made accessible

to people with disabilities.

Statement of Availability of IRS

Documents

IRS Revenue Procedures, Revenue

Rulings, and Notices cited in this pream-

55

ble are published in the Internal Revenue

Bulletin (or Cumulative Bulletin) and are

available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS web site at http://www.irs.gov.

Drafting Information

The principal author of this proposed

regulation is Patrick Clinton, Office of the

Associate Chief Counsel (Income Tax &

Accounting). Other personnel from the

Treasury Department and the IRS participated in their development.

List of Subjects in 26 CFR Part 1

Income Taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the

Regulations

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

Part 1—INCOME TAX

Paragraph 1. The authority citation for

part 1 is amended by adding sectional authorities for §§1.274-13 and 1.274-14 in

numerical order to read in part as follows:

Authority: 26 U.S.C. 7805.

*****

Section 1.274-13 also issued under 26

U.S.C. 274.

Section 1.274-14 also issued under 26

U.S.C. 274.

*****

Par. 2. Sections 1.274-13 and 1.274-14

are added to read as follows:

§1.274-13 Disallowance of deductions

for certain qualified transportation fringe

expenditures.

(a) In general. Except as provided in

this section, no deduction otherwise allowable under chapter 1 of the Internal

Revenue Code (Code) is allowed for any

expense of any qualified transportation

fringe as defined in paragraph (b)(1) of

this section.

(b) Definitions. The following definitions apply for purposes of this section:

(1) Qualified transportation fringe.

The term qualified transportation fringe

means any of the following provided by

July 6, 2020

an employer to an employee: transportation in a commuter highway vehicle if

such transportation is in connection with

travel between the employee’s residence

and place of employment (as described in

sections 132(f)(1)(A) and 132(f)(5)(B));

any transit pass (as described in sections

132(f)(1)(B) and 132(f)(5)(A)); or qualified parking (as described in sections

132(f)(1)(C) and 132(f)(5)(C)).

(2) Employee. The term employee

means a common law employee or other

statutory employee, such as an officer of

a corporation, who is currently employed

by the taxpayer. See §1.132-9 Q/A-5.

Partners, 2-percent shareholders of S corporations, sole proprietors, and independent contractors are not employees of the

taxpayer for purposes of this section.

(3) General public. The term general public includes, but is not limited to,

customers, clients, visitors, individuals

delivering goods or services to the taxpayer, students of an educational institution,

and patients of a health care facility. If a

taxpayer owns or leases space in a multitenant building, the term general public

includes employees, partners, 2-percent

shareholders of S corporations, sole proprietors, independent contractors, clients,

or customers of unrelated tenants in the

building. The term general public does

not include individuals that are employees, partners, 2-percent shareholders of S

corporations, sole proprietors, or independent contractors of the taxpayer. Also, an

exclusive list of guests is not the general

public.

(4) Parking facility. The term parking

facility includes indoor and outdoor garages and other structures, as well as parking lots and other areas, where a taxpayer

provides qualified parking (as defined in

section 132(f)(5)(C)) to one or more of its

employees. The term parking facility may

include one or more parking facilities but

does not include parking spaces on or near

property used by an employee for residential purposes.

(5) Geographic location. The term

geographic location means contiguous

tracts or parcels of land owned or leased

by the taxpayer. Two or more tracts or

parcels of land are contiguous if they

share common boundaries or would share

common boundaries but for the interposition of a road, street, railroad, stream, or

July 6, 2020

similar property. Tracts or parcels of land

which touch only at a common corner are

not contiguous.

(6) Total parking spaces. The term total parking spaces means the total number

of parking spaces, or the taxpayer’s portion thereof, in the parking facility.

(7) Reserved employee spaces. The

term reserved employee spaces means

the spaces in the parking facility, or the

taxpayer’s portion thereof, exclusively

reserved for the taxpayer’s employees.

Employee spaces in the parking facility,

or portion thereof, may be exclusively reserved for employees by a variety of methods, including, but not limited to, specific

signage (for example, “Employee Parking

Only”) or a separate facility or portion of a

facility segregated by a barrier to entry or

limited by terms of access. Inventory/unusable spaces are not included in reserved

employee spaces.

(8) Reserved nonemployee spaces. The

term reserved nonemployee spaces means

the spaces in the parking facility, or the

taxpayer’s portion thereof, exclusively

reserved for nonemployees. For example,

such parking spaces may include, but are

not limited to, spaces reserved exclusively for visitors, customers, partners, sole

proprietors, 2-percent shareholders of S

corporations, vendor deliveries, and passenger loading/unloading. Nonemployee

spaces in the parking facility, or portion

thereof, may be exclusively reserved for

nonemployees by a variety of methods,

including, but not limited to, specific signage (for example, “Customer Parking

Only”) or a separate facility, or portion of

a facility, segregated by a barrier to entry

or limited by terms of access. Inventory/

unusable spaces are not included in reserved nonemployee spaces.

(9) Inventory/unusable spaces. The

term inventory/unusable spaces means the

spaces in the parking facility, or the taxpayer’s portion thereof, exclusively used

or reserved for inventoried vehicles, qualified nonpersonal use vehicles described in

§1.274-5(k), or other fleet vehicles used in

the taxpayer’s business, or that are otherwise not usable for parking by employees.

Examples of such parking spaces include,

but are not limited to, parking spaces for

vehicles that are intended to be sold or

leased at a car dealership or car rental

agency, parking spaces for vehicles owned

56

by an electric utility used exclusively to

maintain electric power lines, or parking

spaces occupied by trash dumpsters (or

similar property).

(10) Available parking spaces. The

term available parking spaces means the

total parking spaces, less reserved employee spaces and less inventory/unusable

spaces, that are available to employees

and the general public.

(11) Primary use. The term primary

use means greater than 50 percent of actual or estimated usage of the available

parking spaces in the parking facility.

(12) Total parking expenses. The term

total parking expenses means all expenses of the taxpayer related to total parking

spaces in a parking facility including, but

not limited to, repairs, maintenance, utility costs, insurance, property taxes, interest, snow and ice removal, leaf removal,

trash removal, cleaning, landscape costs,

parking lot attendant expenses, security,

and rent or lease payments or a portion

of a rent or lease payment (if not broken

out separately). A deduction for an allowance for depreciation on a parking facility

owned by a taxpayer and used for parking

by the taxpayer’s employees is an allowance for the exhaustion, wear and tear, and

obsolescence of property, and not included in total parking expenses for purposes

of this section. Expenses paid or incurred

for nonparking facility property, including

items related to property next to the parking facility, such as landscaping or lighting, also are not included in total parking

expenses.

(13) Mixed parking expense. The term

mixed parking expense means a single expense amount paid or incurred by a taxpayer that includes both parking facility

and nonparking facility expenses for a

property that a taxpayer owns or leases.

(14) Peak demand period. The term

peak demand period refers to the period

of time on a typical business day when

the greatest number of the taxpayer’s employees are utilizing parking spaces in the

taxpayer’s parking facility. If a taxpayer’s

employees work in shifts, the peak demand period would take into account the

shift during which the largest number of

employees park in the taxpayer’s parking

facility. However, a brief transition period

during which two shifts overlap in their

use of parking spaces, as one shift of em-

Bulletin No. 2020–28

ployees is getting ready to leave and the

next shift is reporting to work, may be

disregarded. Taxpayers may use any reasonable methodology to determine the

total number of spaces used by employees during the peak demand period on a

typical business day. A reasonable methodology may include periodic inspections

or employee surveys.

(c) Special rules for calculating disallowance of deductions for qualified transportation fringe parking expenses; taxpayer owned or leased parking facilities.

Either or both of the following special

rules may be used for determining total

parking expenses and total parking spaces

in calculating the disallowance of deductions for qualified transportation fringe

parking expenses under the methodologies in paragraph (d)(2)(ii)(B) and (C) of

this section. The special rule in paragraph

(c)(2) of this section may be used for determining total parking spaces in calculating the disallowance of deductions for

qualified transportation fringe parking

expenses under the methodology in paragraph (d)(2)(i) of this section.

(1) Calculation of mixed parking expenses. For purposes of determining total parking expenses, a taxpayer may use

any reasonable methodology to allocate

the applicable portion of mixed parking

expenses to a parking facility. A taxpayer may choose to allocate 5 percent of the

following mixed parking expenses to a

parking facility: lease or rental agreement

expenses, property taxes, interest expense,

and expenses for utilities and insurance.

(2) Aggregation of spaces by geographic location. If a taxpayer owns or

leases more than one parking facility in

a single geographic location, the taxpayer may aggregate the number of spaces

in those parking facilities for purposes of

calculating the disallowance of deductions

for certain qualified transportation fringe

expenses. For example, parking spaces at

an office park or an industrial complex in

the geographic location may be aggregated. However, a taxpayer may not aggregate parking spaces in parking facilities

that are in different geographic locations.

(d) Calculation of disallowance of

deductions for qualified transportation

fringe expenses—(1) Taxpayer pays a

third party for parking qualified transportation fringe. If a taxpayer pays a third

Bulletin No. 2020–28

party an amount for its employees’ parking qualified transportation fringe, the

section 274(a)(4) disallowance generally

is calculated as the taxpayer’s total annual

cost of employee parking qualified transportation fringes paid to the third party.

(2) Taxpayer provides parking qualified transportation fringe at a parking facility it owns or leases. If a taxpayer owns

or leases all or a portion of one or more

parking facilities where its employees

park, the section 274(a)(4) disallowance

may be calculated using the general rule in

paragraph (d)(2)(i) of this section or any

of the simplified methodologies in paragraph (d)(2)(ii) of this section. A taxpayer

may choose to use the general rule or any

of the following methodologies for each

taxable year and for each parking facility.

(i) General rule. A taxpayer that uses

the general rule in this paragraph (d)(2)

(i) must calculate the disallowance of deductions for qualified transportation fringe

parking expenses for each employee receiving the qualified transportation fringe

based on a reasonable interpretation of

section 274(a)(4). A taxpayer that uses

the general rule in this paragraph (d)(2)(i)

may not use the special rule in paragraph

(c)(1) of this section but may use the special rule in paragraph (c)(2) of this section. An interpretation of section 274(a)

(4) is not reasonable unless the taxpayer

applies the following rules when calculating the disallowance under this paragraph

(d)(2)(i).

(A) A taxpayer must not use value to

determine expense. A taxpayer may not

use the value of employee parking to determine expenses allocable to employee

parking that is either owned or leased by

the taxpayer because section 274(a)(4)

disallows a deduction for the expense of

providing a qualified transportation fringe,

regardless of its value.

(B) A taxpayer must not deduct expenses related to reserved employee spaces.

A taxpayer must determine the allocable

portion of total parking expenses that relate to any reserved employee spaces. No

deduction is allowed for the parking expenses that relate to reserved employee

spaces.

(C) A taxpayer must not improperly

apply the exception for qualified parking

made available to the public. A taxpayer

must not improperly apply the exception

57

in section 274(e)(7) or paragraph (e)(2)(ii)

of this section to parking facilities, for example, by treating a parking facility regularly used by employees as available to the

general public merely because the general

public has access to the parking facility.

(ii) Additional simplified methodologies. Instead of using the general rule in

paragraph (d)(2)(i) of this section for a

taxpayer owned or leased parking facility,

a taxpayer may use a simplified methodology under paragraph (d)(2)(ii)(A), (B), or

(C) of this section.

(A) Qualified parking limit methodology. A taxpayer that uses the qualified

parking limit methodology in this paragraph (d)(2)(ii)(A) must calculate the

disallowance of deductions for qualified

transportation fringe parking expenses

by multiplying the total number of spaces

used by employees during the peak demand period, or the total number of taxpayer’s employees, by the section 132(f)

(2) monthly per employee limitation on

exclusion (adjusted for inflation), for each

month in the taxable year. The result is the

amount of the taxpayer’s expenses that are

disallowed under section 274(a)(4). This

methodology may be used only if the taxpayer includes the value of the qualified

transportation fringe in excess of the sum

of the amount, if any, paid by the employee for the qualified transportation fringe

and the applicable statutory monthly limit

in section 132(f)(2) on the taxpayer’s Federal income tax return as originally filed

as compensation paid to the employee and

as wages to the employee for purposes of

withholding under chapter 24 of the Code

(relating to collection of Federal income

tax at source on wages). In addition, the

exception to the disallowance for amounts

treated as employee compensation provided for in section 274(e)(2) and in paragraph (e)(2)(i) of this section cannot be

applied to reduce a section 274(a)(4) disallowance calculated using this method. A

taxpayer using this methodology may not

use either of the special rules in paragraph

(c) of this section.

(B) Primary use methodology. A taxpayer that uses the primary use methodology in this paragraph (d)(2)(ii)(B) must

use the following four-step methodology

to calculate the disallowance of deductions for qualified transportation fringe

parking expenses for each parking facility.

July 6, 2020

A taxpayer may use either or both of the

special rules in paragraph (c) of this section for determining total parking expenses and total parking spaces.

(1) Step 1 - Calculate the disallowance

for reserved employee spaces. A taxpayer

must identify the total parking spaces in

the parking facility, or the taxpayer’s portion thereof, exclusively reserved for the

taxpayer’s employees. The taxpayer must

then determine the percentage of reserved

employee spaces in relation to total parking spaces and multiply that percentage

by the taxpayer’s total parking expenses

for the parking facility. The product is the

amount of the deduction for total parking

expenses that is disallowed under section

274(a)(4) for reserved employee spaces.

There is no disallowance for reserved

employee spaces if the primary use (as

defined in paragraphs (b)(11) and (d)(2)

(ii)(B)(2) of this section) of the available

parking spaces is to provide parking to the

general public, and there are five or fewer

reserved employee spaces in the parking

facility and the reserved employee spaces

are 5 percent or less of the total parking

spaces.

(2) Step 2 - Determine the primary use

of available parking spaces. A taxpayer

must identify the available parking spaces in the parking facility and determine

whether their primary use is to provide

parking to the general public. If the primary use of the available parking spaces in the parking facility is to provide

parking to the general public, then total

parking expenses allocable to available

parking spaces at the parking facility are

excepted from the section 274(a)(4) disallowance by the general public exception

under section 274(e)(7) and paragraph

(e)(2)(ii) of this section. Primary use of

available parking spaces is based on the

number of available parking spaces used

by employees during the peak demand period. Nonreserved parking spaces that are

available to the general public but empty

during normal business hours on a typical

business day are treated as provided to the

general public.

(3) Step 3 - Calculate the allowance for

reserved nonemployee spaces. If the primary use of a taxpayer’s available parking spaces is not to provide parking to the

general public, the taxpayer must identify

the number of available parking spaces

July 6, 2020

in the parking facility, or the taxpayer’s

portion thereof, exclusively reserved for

nonemployees. A taxpayer that has no reserved nonemployee spaces may proceed

to Step 4 in paragraph (d)(2)(ii)(B)(4) of

this section. If the taxpayer has reserved

nonemployee spaces, it may determine

the percentage of reserved nonemployee

spaces in relation to remaining total parking spaces and multiply that percentage

by the taxpayer’s remaining total parking

expenses. The product is the amount of

the deduction for remaining total parking

expenses that is not disallowed because

the spaces are not available for employee

parking.

(4) Step 4 - Determine remaining use

of available parking spaces and allocable

expenses. If a taxpayer completes Steps 1

- 3 in paragraph (d)(2)(ii)(B) of this section and has any remaining total parking

expenses not specifically categorized as

deductible or nondeductible, the taxpayer

must reasonably allocate such expenses

by determining the total number of available parking spaces used by employees

during the peak demand period.

(C) Cost per space methodology. A taxpayer using the cost per space methodology in this paragraph (d)(2)(ii)(C) must calculate the disallowance of deductions for

qualified transportation fringe parking expenses by multiplying the cost per space

by the total number of available parking

spaces used by employees during the peak

demand period. The product is the amount

of the deduction for total parking expenses that is disallowed under section 274(a)

(4). A taxpayer may calculate cost per

space by dividing total parking expenses

by total parking spaces. A taxpayer using

this methodology may use either or both

of the special rules in paragraph (c) of this

section for determining total parking expenses and total parking spaces.

(3) Expenses for transportation in a

commuter highway vehicle or transit pass.

If a taxpayer pays a third party an amount

for its employees’ commuter highway vehicle or a transit pass qualified transportation fringe, the section 274(a)(4) disallowance generally is equal to the taxpayer’s

total annual cost of employee commuter

highway vehicle or a transit pass qualified transportation fringes paid to the third

party. If a taxpayer provides transportation

in a commuter highway vehicle or transit

58

pass qualified transportation fringes in

kind directly to its employees, the taxpayer must calculate the disallowance of

deductions for expenses for such fringes

based on a reasonable interpretation of

section 274(a)(4). However, a taxpayer may not use the value of the qualified

commuter highway vehicle or transit pass

fringe to the employee to determine expenses allocable to such fringe because

s

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