# SEQ 0001 JOB IRS28-001-005 PAGE-0003 COVER > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Airs%3A4d01c25b79e5add7 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text SEQ 0001 JOB IRS28-001-005 PAGE-0003 COVER REVISED 29JUL96 AT 23:01 BY LR DEPTH: 66.04 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-001 Bulletin No. 1996–28 July 8, 1996 HIGHLIGHTS OF THIS ISSUE 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. INCOME TAX certain agreements for the lease of tangible property. A public hearing will be held on September 25, 1996. Rev. Rul. 96–34, page 4. Federal rates; adjusted federal rates; adjusted federal longterm rate, and the long-term exempt rate. For purposes of sections 1274, 1288, 382, and other sections of the Code, tables set forth the rates for July 1996. TAX CONVENTIONS Page 36. The bilateral agreements between the U.S. and Luxembourg, providing for the reciprocal tax exemption of income from the international operation of ships and/or aircraft, are set forth. T.D. 8674, page 7. Final regulations under section 1275 of the Code relate to the tax treatment of debt instruments that provide for one or more contingent payments. ADMINISTRATIVE Announcement 96–62, page 53. Taxpayers can use the current Forms 706, 706–A, 706–NA, 709, 709–A, and their instructions until the new revisions are available. IA–292–84, page 38. Proposed regulations under section 467 of the Code relate to the treatment of rent and interest under Finding Lists begin on page 59. Announcement of Disbarments and Suspensions begins on page 56. 3 SEQ 0002 JOB IRS28-002-002 PAGE-0002 MISSION REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-002 Mission of the Service The purpose of the Internal Revenue Service is to collect the proper amount of tax revenue at the least cost; serve the public by continually improving the quality of our products and services; and perform in a manner warranting the highest degree of public confidence in our integrity, efficiency and fairness. Statement of Principles of Internal Revenue Tax Administration The function of the Internal Revenue Service is to administer the Internal Revenue Code. Tax policy for raising revenue is determined by Congress. With this in mind, it is the duty of the Service to carry out that policy by correctly applying the laws enacted by Congress; to determine the reasonable meaning of various Code provisions in light of the Congressional purpose in enacting them; and to perform this work in a fair and impartial manner, with neither a government nor a taxpayer point of view. At the heart of administration is interpretation of the Code. It is the responsibility of each person in the Service, charged with the duty of interpreting the law, to try to find the true meaning of the statutory provision and not to adopt a strained construction in the belief that he or she is ‘‘protecting the revenue.’’ The revenue is properly protected only when we ascertain and apply the true meaning of the statute. 2 The Service also has the responsibility of applying and administering the law in a reasonable, practical manner. Issues should only be raised by examining officers when they have merit, never arbitrarily or for trading purposes. At the same time, the examining officer should never hesitate to raise a meritorious issue. It is also important that care be exercised not to raise an issue or to ask a court to adopt a position inconsistent with an established Service position. Administration should be both reasonable and vigorous. It should be conducted with as little delay as possible and with great courtesy and considerateness. It should never try to overreach, and should be reasonable within the bounds of law and sound administration. It should, however, be vigorous in requiring compliance with law and it should be relentless in its attack on unreal tax devices and fraud. SEQ 0003 JOB IRS28-002-002 PAGE-0003 MISSION REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-002 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 and may be obtained from the Superintendent of Documents on a subscription basis. Bulletin contents of a permanent nature are consolidated semiannually into Cumulative Bulletins, which are sold on a single-copy basis. 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 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. With the exception of the Notice of Proposed Rulemaking and the disbarment and suspension list included in this part, none of these announcements are consolidated in the Cumulative Bulletins. The first Bulletin for each month includes an index for the matters published during the preceding month. These monthly indexes are cumulated on a quarterly and semiannual basis, and are published in the first Bulletin of the succeeding quarterly and semi-annual period, respectively. 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. For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, D.C. 20402. 3 SEQ 0004 JOB IRS28-003-007 PAGE-0004 PT 1 PGS 4REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-003 Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 42.—Low-Income Housing Credit The adjusted applicable federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. Section 468.—Special Rules for Mining and Solid Waste Reclamation and Closing Costs The adjusted applicable federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. Federal rates; adjusted federal rates; adjusted federal long-term rate, and the long-term exempt rate. For purposes of sections 1274, 1288, 382, and other sections of the Code, tables set forth the rates for July 1996. Rev. Rul. 96–34 Section 280G.—Golden Parachute Payments Federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. Section 382.—Limitation on Net Operating Loss Carryforwards and Certain Built-In Losses Following Ownership Change Section 483.—Interest on Certain Deferred Payments The adjusted applicable federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. Section 807.—Rules for Certain Reserves The adjusted federal long-term rate is set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. The adjusted applicable federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. Section 412.—Minimum Funding Standards Section 846.—Discounted Unpaid Losses Defined The adjusted applicable federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. The adjusted applicable federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. Section 467.—Certain Payments for the Use of Property or Services Section 1274.—Determination of Issue Price in the Case of Certain Debt Instruments Issued for Property The adjusted applicable federal short-term, mid-term, and long-term rates are set forth for the month of July 1996. See Rev. Rul. 96–34, on this page. (Also Sections 42, 280G, 382, 412, 467, 468, 482, 483, 807, 846, 1288, 7520, 7872.) 4 This revenue ruling provides various prescribed rates for federal income tax purposes for July 1996 (the current month.) Table 1 contains the shortterm, 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 taxexempt rate described in section 382(f). Table 4 contains the appropriate percentages for determining the lowincome housing credit described in section 42(b)(2) for buildings placed in service during the current month. 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 purposes of section 7872. SEQ 0005 JOB IRS28-003-007 PAGE-0005 PT 1 PGS 4REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 45.01 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-003 REV. RUL. 96–34 TABLE 1 Applicable Federal Rates (AFR) for July 1996 Period for Compounding Annual Semiannual Quarterly Monthly Short-Term AFR 110% AFR 120% AFR 130% AFR Mid-Term AFR 110% AFR 120% AFR 130% AFR 150% AFR 175% AFR 6.04% 6.66% 7.27% 7.89% 5.95% 6.55% 7.14% 7.74% 5.91% 6.50% 7.08% 7.67% 5.88% 6.46% 7.04% 7.62% 6.74% 7.42% 8.12% 8.81% 10.20% 11.94% 6.63% 7.29% 7.96% 8.62% 9.95% 11.60% 6.58% 7.22% 7.88% 8.53% 9.83% 11.44% 6.54% 7.18% 7.83% 8.47% 9.75% 11.33% Long-Term AFR 110% AFR 120% AFR 130% AFR 7.12% 7.85% 8.58% 9.31% 7.00% 7.70% 8.40% 9.10% 6.94% 7.63% 8.31% 9.00% 6.90% 7.58% 8.26% 8.93% Annual Period for Compounding Semiannual Quarterly Monthly 3.88% 3.84% 3.82% 3.81% 4.83% 4.77% 4.74% 4.72% 5.78% 5.70% 5.66% 5.63% REV. RUL. 96–34 TABLE 2 Adjusted AFR for July 1996 Short-term adjusted AFR Mid-term adjusted AFR Long-term adjusted AFR 5 SEQ 0006 JOB IRS28-003-007 PAGE-0006 PT 1 PGS 4REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-003 REV. RUL. 96–34 TABLE 3 Rates Under Section 382 for July 1996 Adjusted federal long-term rate for the current month 5.78% 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.) 5.78% REV. RUL. 96–34 TABLE 4 Appropriate Percentages Under Section 42(b)(2) for July 1996 Appropriate percentage for the 70% present value low-income housing credit 8.63% Appropriate percentage for the 30% present value low-income housing credit 3.70% REV. RUL. 96–34 TABLE 5 Rate Under Section 7520 for July 1996 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 8.2% REV. RUL. 96–34 TABLE 6 Blended Annual Rate for 1996 Section 7872(e)(2) blended annual rate for 1996 5.77% 6 SEQ 0007 JOB IRS28-003-007 PAGE-0007 PT 1 PGS 4REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-003 Section 1275.—Other Definitions and Special Rules 26 CFR 1.1275–4: Contingent payment debt instruments. T.D. 8674 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 Debt Instruments with Original Issue Discount; Contingent Payments; AntiAbuse Rule AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains final regulations relating to the tax treatment of debt instruments that provide for one or more contingent payments. This document also contains final regulations that treat a debt instrument and a related hedge as an integrated transaction. In addition, this document contains amendments to the original issue discount regulations, and finalizes the anti-abuse rule relating to those regulations. The final regulations in this document provide needed guidance to holders and issuers of contingent payment debt instruments. DATES: Except as noted below, the regulations are effective August 13, 1996. The amendments to §1.1275–5 are effective June 14, 1996, except for paragraphs (a)(6), (b)(2), and (c)(1), which are effective August 13, 1996. The removal of §1.483–2T is effective June 14, 1996. The removal of §1.1275–2T is effective August 13, 1996. For dates of applicability of these regulations, see Effective Dates under Supplementary Information. FOR FURTHER INFORMATION CONTACT: Concerning the regulations (other than §1.1275–6), William E. Blanchard, (202) 622-3950, or Jeffrey W. Maddrey, (202) 622-3940; or concerning §1.1275–6, Michael S. Novey, (202) 622-3900 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collections of information contained in these final regulations have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545–1450. Responses to these collections of information are required to determine a taxpayer’s interest income or deductions on a contingent payment debt instrument. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number. The estimated annual burden per respondent/recordkeeper varies from .3 hours to .5 hours, depending on individual circumstances, with an estimated average of .47 hours. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, T:FP, Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. Books or records relating to the collections of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. also contained proposed amendments to the regulations under sections 483 (relating to unstated interest), 1001 (relating to the amount realized on a sale, exchange, or other disposition of property), 1272 (relating to the accrual of OID), 1274 (relating to debt instruments issued for nonpublicly traded property), and 1275(c) (relating to OID information reporting requirements), and to §1.1275–5 (relating to variable rate debt instruments). In addition, the notice contained proposed regulations relating to the integration of a contingent payment or variable rate debt instrument with a related hedge. The notice withdrew the proposed regulations relating to contingent payment debt instruments that were previously published in the Federal Register on April 8, 1986 (51 FR 12087), and February 28, 1991 (56 FR 8308). On March 16, 1995, the IRS held a public hearing on the proposed regulations. In addition, the IRS received a number of written comments on the proposed regulations. The proposed regulations, with certain changes to respond to comments, are adopted as final regulations. In addition, certain clarifying and conforming amendments are made to the OID regulations that were published in the Federal Register on February 2, 1994. The comments and significant changes are discussed below. Background Section 1.1275–4 Contingent payment debt instruments Section 1275(d) of the Internal Revenue Code (Code) grants the Secretary the authority to prescribe regulations under the original issue discount (OID) provisions of the Code (sections 163(e) and 1271 through 1275), including regulations relating to debt instruments that provide for contingent payments. On February 2, 1994, the IRS published final OID regulations in the Federal Register (59 FR 4799 [TD 8517, 1994–1 C.B. 38]). However, the final OID regulations did not contain rules for contingent payment debt instruments. On December 16, 1994, the IRS published a notice of proposed rulemaking in the Federal Register (59 FR 62884 [FI–59–91, 1995–1 C.B. 894]) relating to the tax treatment of debt instruments that provide for one or more contingent payments. The notice 7 Explanation of Provisions A. Noncontingent bond method Under the noncontingent bond method in the proposed regulations, a taxpayer computes interest accruals on a contingent payment debt instrument by setting a payment schedule as of the issue date and applying the OID rules to the payment schedule. The payment schedule consists of all fixed payments on the debt instrument and a projected amount for each contingent payment. For market-based contingencies (i.e., contingencies for which price quotes are readily available), the projected amount is the forward price of the contingency. For other contingencies, the issuer first determines a reasonable yield for the debt instrument and then sets projected amounts equal to the relative expected payments on the SEQ 0008 JOB IRS28-003-007 PAGE-0008 PT 1 PGS 4REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-003 contingencies so that the payment schedule produces the reasonable yield. These rules were designed to produce a yield similar to the yield the issuer would obtain on a fixed rate debt instrument. Commentators suggested that the regulations could be simplified if they used the same basic methodology for both market-based and non-marketbased contingencies. In addition, commentators suggested that forward price quotes would be variable or manipulable and that taxpayers will set more appropriate payment schedules if they first determine yield and then set the payment schedule to fit the yield. The final regulations adopt these suggestions and generally conform the treatment of debt instruments that provide for either market-based or nonmarket-based contingent payments. Thus, for any contingent payment debt instrument subject to the noncontingent bond method, a taxpayer first determines the yield on the instrument and then sets the payment schedule to fit the yield. The yield is determined by the yield at which the issuer would issue a fixed rate debt instrument with terms and conditions similar to the contingent payment debt instrument (the comparable yield). Relevant terms and conditions include the level of subordination, term, timing of payments, and general market conditions. For example, if a hedge is available such that the issuer or holder could integrate the debt instrument and the hedge into a synthetic fixed-rate debt instrument under the rules of §1.1275– 6, the comparable yield is the yield that the synthetic fixed-rate debt instrument would have. If a §1.1275–6 hedge (or the substantial equivalent) is not available, but similar fixed rate debt instruments of the issuer trade at a price that reflects a spread above a benchmark rate, the comparable yield is the sum of the value of the benchmark rate on the issue date and the spread. In all cases, the yield must be a reasonable yield for the issuer and may not be less than the applicable Federal rate (AFR). Once the comparable yield is determined, the payment schedule is set to produce the comparable yield. The final regulations retain the general approach of the proposed regulations in determining the payment schedule. Thus, for market-based payments, the projected payment is the forward price of the payment. For non-market-based payments, the projected payment is the expected amount of the payment as of the issue date. Commentators were concerned that a taxpayer could overstate the yield on a contingent payment debt instrument and, therefore, claim excess interest deductions during the term of the instrument. They were particularly concerned about a long-term debt instrument that has non-market-based payments because the taxpayer’s determination would be hard to verify and any excess interest deductions would not be recaptured for a long time. The final regulations address this concern by providing that the comparable yield for a debt instrument is presumed to be the AFR if the instrument provides for a non-marketbased payment and is part of an issue that is marketed or sold in substantial part to tax-exempt investors or other investors for whom the treatment of the debt instrument is not expected to have a substantial effect on their U.S. tax liability. A taxpayer may overcome this presumption only with clear and convincing evidence that the comparable yield for the debt instrument should be a specific yield that is higher than the AFR. Appraisals and other valuations of nonpublicly traded property cannot be used to overcome the presumption, nor can references to general market rates. An issuer may, for example, overcome the presumption by showing that recently issued similar debt instruments of the issuer trade at a price that reflects a specific yield. One commentator suggested that the use of the term projected payment schedule caused securities law problems because the issuer could be seen as making representations to the holder about the expected payments. The comparable yield and projected payment schedule determined under these regulations are for tax purposes only and are not assurances by the issuer with respect to the payments. The final regulations retain the term projected payment schedule, but an issuer may use a different term to describe the payment schedule (e.g., payment schedule determined under §1.1275–4) if the language used by the issuer is clear. Under the proposed regulations, projected payments rather than actual payments are used to determine the adjusted issue price of a debt instrument, the holder’s basis in a debt instrument, and the amount of any contingent payment treated as made on 8 the scheduled retirement of a debt instrument. One commentator questioned the use of projected payments to make these determinations. The approach in the proposed regulations is appropriate, however, because a positive or negative adjustment is used to take into account the difference between the actual amount and the projected amount of a contingent payment. This difference would be counted twice if the adjusted issue price, the holder’s basis, and the amount deemed paid on retirement were based on the actual amount rather than the projected amount of a contingent payment. Thus, the approach used in the proposed regulations is retained in the final regulations. B. Tax-exempt obligations In response to comments, the rules contained in §1.1275–4(d) relating to tax-exempt contingent payment obligations have been revised. Under the proposed regulations, tax-exempt obligations are generally subject to the noncontingent bond method, with the following modifications: (1) The yield on which interest accruals are based may not exceed the greater of the yield on the obligation, determined without regard to the non-market-based contingent payments, and the tax-exempt AFR that applies to the obligation; (2) Positive adjustments are treated as gain from the sale or exchange of the obligation rather than as interest; and (3) Negative adjustments reduce the amount of tax-exempt interest, and, therefore, are generally not taken into account as deductible losses. These modifications to the noncontingent bond method for tax-exempt obligations were added because the IRS and Treasury believe that when a property right is embedded in a tax-exempt obligation it is generally inappropriate to treat payments on the right as interest on an obligation of a state or political subdivision. Several commentators suggested that the proposed regulations relating to taxexempt obligations are overly restrictive. These commentators questioned the reason for limiting the rate of accrual to the tax-exempt AFR and characterizing positive adjustments as taxable gain rather than interest. They also questioned the fairness of treating negative adjustments as nondeductible adjustments to tax-exempt interest when positive adjustments are treated SEQ 0009 JOB IRS28-003-007 PAGE-0009 PT 1 PGS 4REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-003 as taxable gain. Some of the commentators suggested that, at a minimum, the interest limitations should not apply to contingent obligations that pay interest based on interest rate formulas that reflect the cost of funds rather than changes in the value of embedded property rights. Finally, commentators noted that programs involving municipal refinancings of real estate projects (for example, low-income multi-family housing projects) would be jeopardized by the proposed regulations because payments on tax-exempt obligations issued to finance these projects are in certain cases contingent in part on the revenues or appreciation in value of the project. The IRS and Treasury continue to believe that gain from a property right should not be recharacterized as taxexempt interest merely because the property right is embedded in a taxexempt obligation. The IRS and Treasury nevertheless recognize that certain types of traditional tax-exempt financings should not be subject to the interest limitations of the proposed regulations (e.g., financings on which interest is computed in a manner that relates to the cost of funds). Accordingly, §1.1275–4(d) has been revised to include a category of tax-exempt obligations that will be subject to the noncontingent bond method without the tax-exempt interest limitations contained in the proposed regulations. This category of tax-exempt obligations includes (1) obligations that would qualify as variable rate debt instruments (VRDIs) except for the failure to meet certain of the technical requirements of the VRDI definition (such as the cap and floor limitations, or the requirement that interest be paid or compounded at least annually), and (2) certain obligations issued to refinance an obligation, the proceeds of which were used to finance a project. For other tax-exempt obligations, the interest restrictions of the proposed regulations are adopted in final form. Section 1.1275–4(d) has been revised, however, to provide that a negative adjustment is treated as a taxable loss from the sale or exchange of the obligation, rather than as a nondeductible adjustment to tax-exempt interest. C. Prepaid tuition plans A number of commentators asked whether contracts issued under state- sponsored prepaid tuition plans are subject to §1.1275–4. Although the terms of the contracts vary, the contracts generally are issued pursuant to a plan created by a state to enable the participants in the plan to save for post-secondary education for themselves or other designated beneficiaries. In addition, the plans generally provide protection against increases in the costs of higher education or otherwise subsidize these costs, often by providing for contingent payments that are linked to the future costs of post-secondary education. The commentators argue that §1.1275–4 does not apply to the contracts because the contracts are not debt instruments for federal income tax purposes. In addition, the commentators argue that, even if the contracts are debt instruments, the noncontingent bond method would be unduly burdensome and inappropriate for contracts of this type. The final regulations under §1.1275– 4 do not affect the treatment of contracts issued pursuant to statesponsored prepaid tuition plans, whether or not the contracts are debt instruments. The final regulations, like the proposed regulations, only apply to debt instruments. Thus, the final regulations do not apply to contracts issued pursuant to a plan created by a state to enable participants to save for post-secondary education if the contracts are not debt instruments. In addition, the final regulations provide an exception for any debt instrument issued pursuant to a state-sponsored prepaid tuition plan. This exception applies to a contract issued pursuant to a plan or arrangement if: The plan or arrangement is created by a state statute; the plan or arrangement has a primary objective of enabling the participants to pay for the costs of post-secondary education for themselves or their designated beneficiaries; and the contingencies under the contract are related to such purpose. These characteristics are intended to describe all existing state-sponsored prepaid tuition plans. Therefore, the final regulations do not change the tax treatment of a contract issued pursuant to these plans. As a result, if the contract is a debt instrument, the contingent payments on the contract are not taken into account by an individual until the payments are made. The exception in the final regulations is intended to apply only to the existing 9 state-sponsored prepaid tuition plans and to any future plans that are substantially similar to the existing plans. In addition, no inference is intended as to whether contracts issued by any state-sponsored prepaid tuition plan are debt instruments. D. Debt instruments subject to section 1274 The proposed regulations provide a method for contingent payment debt instruments not subject to the noncontingent bond method (i.e., a nonpublicly traded debt instrument issued in a sale or exchange of nonpublicly traded property). Under the method, a debt instrument’s noncontingent payments are treated as a separate debt instrument, which is generally taxed under the rules for noncontingent debt instruments. The debt instrument’s contingent payments are taken into account when made. A portion of each contingent payment is treated as principal, based on the amount determined by discounting the payment at the AFR from the payment date to the issue date, and the remainder is treated as interest. Special rules are provided if a contingent payment becomes fixed more than 6 months before it is due. The final regulations generally adopt the method in the proposed regulations. In addition, the final regulations contain rules for a holder whose basis in a debt instrument is different from the instrument’s adjusted issue price (e.g., a subsequent holder). E. Inflation-indexed bonds The Treasury recently announced that it was considering issuing bonds indexed to inflation (61 FR 25164). Depending on their ultimate structure, the noncontingent bond method might be inappropriate for these bonds. If the Treasury issues these bonds, the Treasury and IRS may issue regulations to provide a simplified tax treatment for the bonds. The treatment would require current accrual of the inflation component. Other amendments to the OID regulations A. Alternative payment schedules under §1.1272–1(c) Section 1.1272–1(c) provides rules to determine the yield and maturity of SEQ 0011 JOB IRS28-004-005 PAGE-0010 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 certain debt instruments that provide for one or more alternative payment schedules applicable upon the occurrence of a contingency (or contingencies), provided that the timing and amounts of the payments that comprise each payment schedule are known as of the issue date. Under these rules, the yield and maturity of a debt instrument are generally determined by assuming that the payments will be made under the payment schedule most likely to occur (based on all the facts and circumstances as of the issue date). Special rules are provided for unconditional options and mandatory sinking funds. The general rules in §1.1272–1(c) produce a reasonable result when a debt instrument has one stated payment schedule that is very likely to occur and one or more alternative payment schedules that are unlikely to occur. In this case, adherence to the stated payment schedule will result in accruals on the debt instrument that reasonably reflect the expected return on the instrument. The rules can lead to unreasonable results, however, if a debt instrument provides for a stated payment schedule and one or more alternative payment schedules that differ significantly and that have a comparable likelihood of occurring. In this case, the accruals based on the payment schedule identified as most likely to occur could differ significantly from the expected return on the debt instrument, which would reflect all the payment schedules and their relative probabilities of occurrence. Because the general rules of §1.1272–1(c) could produce unreasonable results, these rules have been modified. Under the final regulations, if a single payment schedule is significantly more likely than not to occur, the yield and maturity of the debt instrument are calculated based on that payment schedule. As a result, any other debt instrument that provides for an alternative payment schedule (other than because of an unconditional option or mandatory sinking fund) will generally be subject to the rules in §1.1275– 4 for contingent payment debt instruments. The final regulations generally retain the rules for mandatory sinking funds and unconditional options. B. Remote and incidental contingencies The proposed regulations provide that a payment subject to a remote or incidental contingency is not considered a contingent payment for purposes of §1.1275–4. In response to a comment, the rule relating to remote and incidental contingencies has been broadened, through the addition of new §1.1275–2(h), to provide that remote and incidental contingencies are generally ignored for purposes of sections 163(e) (other than section 163(e)(5)) and 1271 through 1275 and the regulations thereunder. Thus, for example, if an otherwise fixed payment debt instrument provides for an additional payment that will be made upon the occurrence of a contingency and there is a remote likelihood that the contingency will occur, the contingent payment is ignored for purposes of computing OID accruals on the instrument. If the contingency occurs, however, then, solely for purposes of sections 1272 and 1273, the debt instrument is treated as reissued. Therefore, OID on the debt instrument is redetermined. C. Definition of qualified stated interest The addition of the rules for remote or incidental contingencies and the changes to the rules for alternative payment schedules allow simplification of the definition of qualified stated interest. Under §1.1273–1(c), as published in the Federal Register on February 2, 1994, qualified stated interest must be unconditionally payable in cash or property at least annually at a single fixed rate. Interest is unconditionally payable only if late payment (other than a late payment that occurs within a reasonable grace period) or nonpayment is expected to be penalized or reasonable remedies exist to compel payment. This definition of unconditionally payable can be read to conflict with the alternative payment schedule rules. For example, if a debt instrument has two alternative payment schedules, one schedule can be stated as the required payment schedule and the other schedule can be stated as a penalty if the required payments are not made. The required payments might then be treated as unconditionally payable and, therefore, as being qualified stated interest even if they would not be qualified stated interest if treated under the alternative payment schedule rules. Under this treatment, if a payment is not made, the reissuance rules of the 10 alternative payment schedule regime do not apply. Holders can thus argue that no OID would accrue with respect to the debt instrument even though OID would accrue if the instrument were treated as having an alternative payment schedule and holders fully expect any unmade payment to be made in the future. The remote or incidental rules in §1.1275–2(h) provide a better mechanism for determining whether a payment is qualified stated interest and determining the treatment if no payment is made. Thus, the final regulations modify the definition of unconditionally payable so that interest is unconditionally payable only if reasonable legal remedies exist to compel payment or the debt instrument otherwise provides terms and conditions that make the likelihood of late payment (other than a late payment that occurs within a reasonable grace period) or nonpayment remote. If the payment is not made (other than because of insolvency, default, or similar circumstances), the final regulations require a deemed reissuance for OID purposes, which ensures that OID will accrue. This approach should simplify the treatment of many debt instruments and yet ensure that OID accrues in appropriate circumstances. D. OID anti-abuse rule On February 2, 1994, the IRS published in the Federal Register temporary and proposed regulations that contained an anti-abuse rule for purposes of the OID regulations (§1.1275–2T (59 FR 4831); §1.1275– 2(g) (59 FR 4878)). Under the antiabuse rule, the Commissioner can apply or depart from the regulations under section 163(e) or sections 1271 through 1275 as necessary to achieve a reasonable result if a principal purpose in structuring a debt instrument or engaging in a transaction is to achieve a result under the regulations that is unreasonable in light of the applicable statutes. This rule is adopted as a final regulation with some clarifying changes and the addition of an example to illustrate its application to certain contingent payment debt instruments. E. Determination of issue price under section 1274 Under the proposed regulations, the issue price of a contingent payment SEQ 0012 JOB IRS28-004-005 PAGE-0011 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 debt instrument that is subject to section 1274 (i.e., a debt instrument issued in exchange for nonpublicly traded property) is determined without taking into account the instrument’s contingent payments. Thus, the issue price of the debt instrument (and the buyer’s initial basis in the property) is limited to an amount determined by taking into account only the noncontingent payments. The buyer’s basis in the property, however, is increased by the amount of a contingent payment treated as principal. This approach was adopted primarily because it is inappropriate to allow a buyer a basis in property that reflects anticipated contingent payments that are uncertain in amount. In addition, this approach limits the ability of the buyer to overstate interest deductions over the term of the debt instrument. The approach of the proposed regulations has been adopted in the final regulations for taxable debt instruments subject to section 1274. See §1.1274–2(g). It is not appropriate, however, to apply this approach to tax-exempt contingent payment obligations subject to section 1274. Because the present value of projected contingent payments generally is not included in the issue price of a taxable debt instrument subject to section 1274, the instrument is accounted for under §1.1275–4(c). This regime is not appropriate for taxexempt obligations because it does not distinguish between tax-exempt interest and gain attributable to an embedded property right. Thus, in order to permit tax-exempt obligations to be subject to the noncontingent bond method under §1.1275–4(b), the final regulations provide special rules to determine the issue price of a tax-exempt contingent payment obligation subject to section 1274. Under these rules, the issue price of a tax-exempt contingent payment obligation subject to section 1274 is equal to the fair market value of the obligation on the issue date (or, in the case of an obligation that provides for interestbased or revenue-based payments, the greater of the obligation’s fair market value or stated principal amount). In addition, the obligation is subject to the rules of §1.1275–4(d) (the noncontingent bond method for tax-exempt contingent payment obligations) rather than §1.1275–4(c). However, to ensure that the buyer’s basis is the same as if the buyer had issued a taxable debt instrument, the final regulations limit the buyer’s basis to the present value of the fixed payments. §1.1275–6 Integration rules Commentators generally approved of the integration rules in the proposed regulations, and those rules are adopted with only two significant changes. First, the final regulations allow (but do not require) the integration of a hedge with a fixed rate debt instrument. For example, a taxpayer may integrate a fixed rate debt instrument and a swap into a VRDI. Although the hedging transaction regulations (§1.446–4) cover many of these transactions, the integration rules provide more certain treatment. The final regulations, however, do not allow the Commissioner to integrate a hedge with either a fixed rate debt instrument or a VRDI that provides for interest at a qualified floating rate. In these cases, treating the hedge and the debt instrument separately is a longstanding rule that generally clearly reflects income. Second, in limited circumstances, the final regulations allow a hedge to be entered into prior to the date the taxpayer issues or acquires the debt instrument. In these circumstances, however, the taxpayer must identify the hedge as part of an integrated transaction on the day the hedge is entered into by the taxpayer. Under the final regulations, if the hedging transaction has not yet had any cash flows (including amounts paid to enter into or purchase the hedge), the integration rules work appropriately so that any built-in gain or loss on the hedge at the time of integration is included over the term of the synthetic debt instrument. Thus, the final regulations put no restriction on the time the hedging transaction has to be entered into in this case. If there have been cash flows on the hedge, the final regulations require the hedge to be entered into no earlier than a date that is substantially contemporaneous with the date on which the debt instrument is acquired. This approach should allow commercially reasonable transactions to be integrated without the need to create complex rules to determine the treatment of prior cash flows on the hedging transaction. The rules for remote and incidental contingencies in §1.1275–2(h) apply for purposes of the integration rules. Thus, if there is an incidental mismatch 11 between a §1.1275–6 hedge and a qualifying debt instrument, a taxpayer may still integrate the hedge and the instrument. The mismatch is dealt with according to the rules for incidental contingencies. The final regulations also clarify the timing of income, deductions, gains, and losses from a hedge of a contingent payment debt instrument not subject to integration. Under §1.446–4, the income, deductions, gains, and losses must match the income, deductions, gains, and losses from the debt instrument. The final regulations clarify that gain or loss realized on a transaction that hedges a contingent payment on a debt instrument subject to §1.1275–4(c) is taken into account when the contingent payment is taken into account under §1.1275–4(c). This treatment does not allow the taxpayer to change the timing of the income, deductions, gains, and losses from the debt instrument. Effective Dates In general, the final regulations apply to debt instruments issued on or after August 13, 1996. Section 1.1275–6 applies to a qualifying debt instrument issued on or after August 13, 1996. Section 1.1275–6 also applies to a qualifying debt instrument acquired by the taxpayer on or after August 13, 1996, if the qualifying debt instrument is a fixed rate debt instrument or a VRDI or if the qualifying debt instrument and the §1.1275–6 hedge are acquired by the taxpayer substantially contemporaneously. Except as otherwise provided in the regulations, the changes to §1.1275–5 apply to debt instruments issued on or after April 4, 1994. Debt instruments issued before the effective date of the final regulations For a contingent payment debt instrument issued before August 13, 1996, a taxpayer may use any reasonable method to account for the debt instrument, including a method that would have been required under the proposed regulations when the debt instrument was issued. However, unless §1.1275–6 applies to the debt instrument, integration is not a reasonable method to account for the instrument. Consent to change accounting method The Commissioner grants consent for a taxpayer to change its method of SEQ 0013 JOB IRS28-004-005 PAGE-0012 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 accounting to follow the final regulations in this document. This consent is granted, however, only for a change for the first taxable year in which the taxpayer must account for a debt instrument under the final regulations. The change is made on a cut-off basis (i.e., the new method only applies to debt instruments issued on or after August 13, 1996). Therefore, no items of income or deduction are omitted or duplicated, and no adjustment under section 481 is allowed. Special Analyses Section 1.1275–6 also issued under 26 U.S.C. 1275(d). * * * Par. 2. Section 1.163–7 is amended by adding a sentence at the end of paragraph (a) to read as follows: §1.163–7 Deduction for OID on certain debt instruments. (a) * * * To determine the amount of interest (OID) that is deductible each year on a debt instrument that provides for contingent payments, see §1.1275– 4. * It has been determined that this Treasury decision is not a significant regulatory action as defined in EO 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to these regulations, and, therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Small Business Administration for comment on its impact on small business. Several persons from the Office of Chief Counsel and the Treasury Department, including Andrew C. Kittler, formerly of the Office of the Assistant Chief Counsel (Financial Institutions and Products), participated in developing these regulations. * * * * * * Adoption of Amendments to the Regulations * * * * Par. 3. Section 1.446–4 is amended by: 1. Redesignating paragraphs (a)(2)(ii) and (a)(2)(iii) as paragraphs (a)(2)(iii) and (a)(2)(iv), respectively. 2. Adding a new paragraph (a)(2)(ii). 3. Adding a sentence at the end of paragraph (e)(4). The additions read as follows: §1.446–4 Hedging transactions. (a) * * * (2) * * * (ii) An integrated transaction subject to §1.1275–6; * Drafting Information * * * * * * (e) * * * (4) * * * Similarly, gain or loss realized on a transaction that hedges a contingent payment on a debt instrument subject to §1.1275–4(c) (a contingent payment debt instrument issued for nonpublicly traded property) is taken into account when the contingent payment is taken into account under §1.1275–4(c). * * * * * * §1.483–2T [Removed] Accordingly, 26 CFR parts 1 and 602 are amended as follows: Part 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by removing the entry for §1.1275–2T and adding two entries in numerical order to read as follows: Authority: 26 U.S.C. 7805 * * * Section 1.483–4 also issued under 26 U.S.C. 483(f). * * * Par. 4. Section 1.483–2T is removed effective June 14, 1996. Par. 5. Section 1.483–4 is added to read as follows: §1.483–4 Contingent payments. (a) In general. This section applies to a contract for the sale or exchange of property (the overall contract) if the contract provides for one or more contingent payments and the contract is 12 subject to section 483. This section applies even if the contract provides for adequate stated interest under §1.483– 2. If this section applies to a contract, interest under the contract is generally computed and accounted for using rules similar to those that would apply if the contract were a debt instrument subject to §1.1275–4(c). Consequently, all noncontingent payments under the overall contract are treated as if made under a separate contract, and interest accruals on this separate contract are computed under rules similar to those contained in §1.1275–4(c)(3). Each contingent payment under the overall contract is characterized as principal and interest under rules similar to those contained in §1.1275–4(c)(4). However, any interest, or amount treated as interest, on a contract subject to this section is taken into account by a taxpayer under the taxpayer’s regular method of accounting (e.g., an accrual method or the cash receipts and disbursements method). (b) Examples. The following examples illustrate the provisions of paragraph (a) of this section. Example 1. Deferred payment sale with contingent interest—(i) Facts. On December 31, 1996, A sells depreciable personal property to B. As consideration for the sale, B issues to A a debt instrument with a maturity date of December 31, 2001. The debt instrument provides for a principal payment of $200,000 on the maturity date, and a payment of interest on December 31 of each year, beginning in 1997, equal to a percentage of the total gross income derived from the property in that year. However, the total interest payable on the debt instrument over its entire term is limited to a maximum of $50,000. Assume that on December 31, 1996, the shortterm applicable Federal rate is 4 percent, compounded annually, and the mid-term applicable Federal rate is 5 percent, compounded annually. (ii) Treatment of noncontingent payment as separate contract. Each payment of interest is a contingent payment. Accordingly, under paragraph (a) of this section, for purposes of applying section 483 to the debt instrument, the right to the noncontingent payment of $200,000 is treated as a separate contract. The amount of unstated interest on this separate contract is equal to $43,295, which is the amount by which the payment ($200,000) exceeds the present value of the payment ($156,705), calculated using the test rate of 5 percent, compounded annually. The $200,000 payment is thus treated as consisting of a payment of interest of $43,295 and a payment of principal of $156,705. The interest is includible in A’s gross income, and deductible by B, under their respective methods of accounting. (iii) Treatment of contingent payments. Assume that the amount of the contingent payment that is paid on December 31, 1997, is $20,000. Under paragraph (a) of this section, the $20,000 payment is treated as a payment of principal of $19,231 (the present value, as of the date of sale, SEQ 0014 JOB IRS28-004-005 PAGE-0013 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 of the $20,000 payment, calculated using a test rate equal to 4 percent, compounded annually) and a payment of interest of $769. The $769 interest payment is includible in A’s gross income, and deductible by B, in their respective taxable years in which the payment occurs. The amount treated as principal gives B additional basis in the property on December 31, 1997. The remaining contingent payments on the debt instrument are accounted for similarly, using a test rate of 4 percent, compounded annually, for the payments made on December 31, 1998, and December 31, 1999, and a test rate of 5 percent, compounded annually, for the payments made on December 31, 2000, and December 31, 2001. Example 2. Contingent stock payout—(i) Facts. M Corporation and N Corporation each owns one-half of the stock of O Corporation. On December 31, 1996, pursuant to a reorganization qualifying under section 368(a)(1)(B), M acquires the one-half interest of O held by N in exchange for 30,000 shares of M voting stock and a non-assignable right to receive up to 10,000 additional shares of M’s voting stock during the next 3 years, provided the net profits of O exceed certain amounts specified in the contract. No interest is provided for in the contract. No additional shares are received in 1997 or in 1998. In 1999, the annual earnings of O exceed the specified amount, and, on December 31, 1999, an additional 3,000 M voting shares are transferred to N. The fair market value of the 3,000 shares on December 31, 1999, is $300,000. Assume that on December 31, 1996, the short-term applicable Federal rate is 4 percent, compounded annually. M and N are calendar year taxpayers. (ii) Allocation of interest. Section 1274 does not apply to the right to receive the additional shares because the right is not a debt instrument for federal income tax purposes. As a result, the transfer of the 3,000 M voting shares to N is a deferred payment subject to section 483 and a portion of the shares is treated as unstated interest under that section. The amount of interest allocable to the shares is equal to the excess of $300,000 (the fair market value of the shares on December 31, 1999) over $266,699 (the present value of $300,000, determined by discounting the payment at the test rate of 4 percent, compounded annually, from December 31, 1999, to December 31, 1996). As a result, the amount of interest allocable to the payment of the shares is $33,301 ($300,000 – $266,699). Both M and N take the interest into account in 1999. (c) Effective date. This section applies to sales and exchanges that occur on or after August 13, 1996. Par. 6. Section 1.1001–1 is amended by revising paragraph (g) to read as follows: §1.1001–1 Computation of gain or loss. * * * * * * (g) Debt instruments issued in exchange for property—(1) In general. If a debt instrument is issued in exchange for property, the amount realized attributable to the debt instrument is the issue price of the debt instrument as determined under §1.1273–2 or §1.1274–2, whichever is applicable. If, however, the issue price of the debt instrument is determined under section 1273(b)(4), the amount realized attributable to the debt instrument is its stated principal amount reduced by any unstated interest (as determined under section 483). (2) Certain debt instruments that provide for contingent payments—(i) In general. Paragraph (g)(1) of this section does not apply to a debt instrument subject to either §1.483–4 or §1.1275–4(c) (certain contingent payment debt instruments issued for nonpublicly traded property). (ii) Special rule to determine amount realized. If a debt instrument subject to §1.1275–4(c) is issued in exchange for property, and the income from the exchange is not reported under the installment method of section 453, the amount realized attributable to the debt instrument is the issue price of the debt instrument as determined under §1.1274–2(g), increased by the fair market value of the contingent payments payable on the debt instrument. If a debt instrument subject to §1.483– 4 is issued in exchange for property, and the income from the exchange is not reported under the installment method of section 453, the amount realized attributable to the debt instrument is its stated principal amount, reduced by any unstated interest (as determined under section 483), and increased by the fair market value of the contingent payments payable on the debt instrument. This paragraph (g)(2)(ii), however, does not apply to a debt instrument if the fair market value of the contingent payments is not reasonably ascertainable. Only in rare and extraordinary cases will the fair market value of the contingent payments be treated as not reasonably ascertainable. (3) Coordination with section 453. If a debt instrument is issued in exchange for property, and the income from the exchange is not reported under the installment method of section 453, this paragraph (g) applies rather than §15a.453–1(d)(2) to determine the taxpayer’s amount realized attributable to the debt instrument. (4) Effective date. This paragraph (g) applies to sales or exchanges that occur on or after August 13, 1996. Par. 7. Section 1.1012–1 is amended by revising paragraph (g) to read as follows: 13 §1.1012–1 Basis of property. * * * * * * (g) Debt instruments issued in exchange for property—(1) In general. For purposes of paragraph (a) of this section, if a debt instrument is issued in exchange for property, the cost of the property that is attributable to the debt instrument is the issue price of the debt instrument as determined under §1.1273–2 or §1.1274–2, whichever is applicable. If, however, the issue price of the debt instrument is determined under section 1273(b)(4), the cost of the property attributable to the debt instrument is its stated principal amount reduced by any unstated interest (as determined under section 483). (2) Certain tax-exempt obligations. This paragraph (g)(2) applies to a taxexempt obligation (as defined in section 1275(a)(3)) that is issued in exchange for property and that has an issue price determined under §1.1274– 2(j) (concerning tax-exempt contingent payment obligations and certain taxexempt variable rate debt instruments subject to section 1274). Notwithstanding paragraph (g)(1) of this section, if this paragraph (g)(2) applies to a taxexempt obligation, for purposes of paragraph (a) of this section, the cost of the property that is attributable to the obligation is the sum of the present values of the noncontingent payments (as determined under §1.1274–2(c)). (3) Effective date. This paragraph (g) applies to sales or exchanges that occur on or after August 13, 1996. Par. 8. Section 1.1271–0(b) is amended by: 1. Revising the entries for paragraphs (c)(2), (c)(3), (c)(4), and (d) of §1.1272–1. 2. Adding an entry for paragraph (c)(7) of §1.1272–1. 3. Revising the entry for paragraph (g) and adding entries for paragraphs (i) and (j) of §1.1274–2. 4. Removing the language ‘‘[Reserved]’’ from the entry for paragraph (g) and adding entries for paragraphs (g), (h), (i), and (j) of §1.1275–2. 5. Removing the entr ies for §1.1275–2T. 6. Adding entries for §1.1275–4. 7. Adding entries for paragraphs (a)(5) and (a)(6) of §1.1275–5. 8. Revising the entries for paragraphs (c)(1) and (c)(5) of §1.1275–5. 9. Adding entries for §1.1275–6. SEQ 0015 JOB IRS28-004-005 PAGE-0014 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 The revisions and additions read as follows: §1.1271–0 Original issue discount; effective date; table of contents. * * * * * * * * * * * (b) * * * * §1.1272–1 Current inclusion of OID in income. * * * * * * (c) * * * (2) Payment schedule that is significantly more likely than not to occur. (3) Mandatory sinking fund provision. (4) Consistency rule. [Reserved] * * * * * * (7) Effective date. (d) Certain debt instruments that provide for a fixed yield. * * * * * * §1.1274–2 Issue price of debt instruments to which section 1274 applies. * * * * * * (g) Treatment of contingent payment debt instruments. * (i) (j) * * * * * [Reserved] Special rules for tax-exempt obligations. (1) Certain variable rate debt instruments. (2) Contingent payment debt instruments. (3) Effective date. * * * * * * §1.1275–2 Special rules relating to debt instruments. * * * * * * (g) Anti-abuse rule. (1) In general. (2) Unreasonable result. (3) Examples. (4) Effective date. (h) Remote and incidental contingencies. (1) In general. (2) Remote contingencies. (3) Incidental contingencies. (4) Aggregation rule. (5) Consistency rule. (6) Subsequent adjustments. (7) Effective date. (i) [Reserved] (j) Treatment of certain modifications. * * * * * * §1.1275–4 Contingent payment debt instruments. (a) Applicability. (1) In general. (2) Exceptions. (3) Insolvency and default. (4) Convertible debt instruments. (5) Remote and incidental contingencies. (b) Noncontingent bond method. (1) Applicability. (2) In general. (3) Description of method. (4) Comparable yield and projected payment schedule. (5) Qualified stated interest. (6) Adjustments. (7) Adjusted issue price, adjusted basis, and retirement. (8) Character on sale, exchange, or retirement. (9) Operating rules. (c) Method for debt instruments not subject to the noncontingent bond method. (1) Applicability. (2) Separation into components. (3) Treatment of noncontingent payments. (4) Treatment of contingent payments. (5) Basis different from adjusted issue price. (6) Treatment of a holder on sale, exchange, or retirement. (7) Examples. (d) Rules for tax-exempt obligations. (1) In general. (2) Certain tax-exempt obligations with interest-based or revenue-based payments (3) All other tax-exempt obligations. (4) Basis different from adjusted issue price. (e) Amounts treated as interest under this section. (f) Effective date. §1.1275–5 Variable rate debt instruments. (a) * * * (5) No contingent principal payments. (6) Special rule for debt instruments issued for nonpublicly traded property. 14 * * * * * * (c) * * * (1) Definition. * * * * * * (5) Tax-exempt obligations. * * * * * * §1.1275–6 Integration of qualifying debt instruments. (a) In general. (b) Definitions. (1) Qualifying debt instrument. (2) Section 1.1275–6 hedge. (3) Financial instrument. (4) Synthetic debt instrument. (c) Integrated transaction. (1) Integration by taxpayer. (2) Integration by Commissioner. (d) Special rules for legging into and legging out of an integrated transaction. (1) Legging into. (2) Legging out. (e) Identification requirements. (f) Taxation of integrated transactions. (1) General rule. (2) Issue date. (3) Term. (4) Issue price. (5) Adjusted issue price. (6) Qualified stated interest. (7) Stated redemption price at maturity. (8) Source of interest income and allocation of expense. (9) Effectively connected income. (10) Not a short-term obligation. (11) Special rules in the event of integration by the Commissioner. (12) Retention of separate transaction rules for certain purposes. (13) Coordination with consolidated return rules. (g) Predecessors and successors. (h) Examples. (i) [Reserved] (j) Effective date. Par. 9. Section 1.1272–1 is amended by: 1. Revising paragraphs (b)(2)(ii), (c), and (d). 2. Adding a sentence at the end of paragraph (f)(2). 3. Removing the language ‘‘determining yield and maturity’’ from the first sentence of paragraph (j) Example 5 (iii) and adding the language ‘‘sections 1272 and 1273’’ in its place. SEQ 0016 JOB IRS28-004-005 PAGE-0015 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 4. Removing the language ‘‘determining yield and maturity’’ from the second sentence of paragraph (j) Example 7 (v) and adding the language ‘‘sections 1272 and 1273’’ in its place. The revisions and addition read as follows: §1.1272–1 Current inclusion of OID in income. * * * * * * (b) * * * (2) * * * (ii) A debt instrument that provides for contingent payments, other than a debt instrument described in paragraph (c) or (d) of this section or except as provided in §1.1275–4; or * * * * * * (c) Yield and maturity of certain debt instruments subject to contingencies—(1) Applicability. This paragraph (c) provides rules to determine the yield and maturity of certain debt instruments that provide for an alternative payment schedule (or schedules) applicable upon the occurrence of a contingency (or contingencies). This paragraph (c) applies, however, only if the timing and amounts of the payments that comprise each payment schedule are known as of the issue date and the debt instrument is subject to paragraph (c)(2), (3), or (5) of this section. A debt instrument does not provide for an alternative payment schedule merely because there is a possibility of impairment of a payment (or payments) by insolvency, default, or similar circumstances. See §1.1275– 4 for the treatment of a debt instrument that provides for a contingency that is not described in this paragraph (c). See §1.1273–1(c) to determine whether stated interest on a debt instrument subject to this paragraph (c) is qualified stated interest. (2) Payment schedule that is significantly more likely than not to occur. If, based on all the facts and circumstances as of the issue date, a single payment schedule for a debt instrument, including the stated payment schedule, is significantly more likely than not to occur, the yield and maturity of the debt instrument are computed based on this payment schedule. (3) Mandatory sinking fund provision. Notwithstanding paragraph (c)(2) of this section, if a debt instrument is subject to a mandatory sinking fund provision, the provision is ignored for purposes of computing the yield and maturity of the debt instrument if the use and terms of the provision meet reasonable commercial standards. For purposes of the preceding sentence, a mandatory sinking fund provision is a provision that meets the following requirements: (i) The provision requires the issuer to redeem a certain amount of debt instruments in an issue prior to maturity. (ii) The debt instruments actually redeemed are chosen by lot or purchased by the issuer either in the open market or pursuant to an offer made to all holders (with any proration determined by lot). (iii) On the issue date, the specific debt instruments that will be redeemed on any date prior to maturity cannot be identified. (4) Consistency rule. [Reserved] (5) Treatment of certain options. Notwithstanding paragraphs (c)(2) and (3) of this section, the rules of this paragraph (c)(5) determine the yield and maturity of a debt instrument that provides the holder or issuer with an unconditional option or options, exercisable on one or more dates during the term of the debt instrument, that, if exercised, require payments to be made on the debt instrument under an alternative payment schedule or schedules (e.g., an option to extend or an option to call a debt instrument at a fixed premium). Under this paragraph (c)(5), an issuer is deemed to exercise or not exercise an option or combination of options in a manner that minimizes the yield on the debt instrument, and a holder is deemed to exercise or not exercise an option or combination of options in a manner that maximizes the yield on the debt instrument. If both the issuer and the holder have options, the rules of this paragraph (c)(5) are applied to the options in the order that they may be exercised. See paragraph (j) Example 5 through Example 8 of this section. (6) Subsequent adjustments. If a contingency described in this paragraph (c) (including the exercise of an option described in paragraph (c)(5) of this section) actually occurs or does not occur, contrary to the assumption made pursuant to this paragraph (c) (a change in circumstances), then, solely for 15 purposes of sections 1272 and 1273, the debt instrument is treated as retired and then reissued on the date of the change in circumstances for an amount equal to its adjusted issue price on that date. See paragraph (j) Example 5 and Example 7 of this section. If, however, the change in circumstances results in a substantially contemporaneous pro-rata prepayment as defined in §1.1275– 2(f)(2), the pro-rata prepayment is treated as a payment in retirement of a portion of the debt instrument, which may result in gain or loss to the holder. See paragraph (j) Example 6 and Example 8 of this section. (7) Effective date. This paragraph (c) applies to debt instruments issued on or after August 13, 1996. (d) Certain debt instruments that provide for a fixed yield. If a debt instrument provides for one or more contingent payments but all possible payment schedules under the terms of the instrument result in the same fixed yield, the yield of the debt instrument is the fixed yield. For example, the yield of a debt instrument with principal payments that are fixed in total amount but that are uncertain as to time (such as a demand loan) is the stated interest rate if the issue price of the instrument is equal to the stated principal amount and interest is paid or compounded at a fixed rate over the entire term of the instrument. This paragraph (d) applies to debt instruments issued on or after August 13, 1996. * * * * * * (f) * * * (2) * * * For purposes of the preceding sentence, the last possible date that the debt instrument could be outstanding is determined without regard to §1.1275–2(h) (relating to payments subject to remote or incidental contingencies). * * * * * * Par. 10. Section 1.1273–1 is amended by: 1. Removing the language ‘‘principal payments uncertain as to time’’ in the fourth sentence of paragraph (a) and adding the language ‘‘a fixed yield’’ in its place. 2. Revising paragraph (c)(1)(ii). 3. Revising paragraph (f) Example 4. The revisions read as follows: SEQ 0017 JOB IRS28-004-005 PAGE-0016 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 §1.1273–1 Definition of OID. * * * * * * (c) * * * (1) * * * (ii) Unconditionally payable. Interest is unconditionally payable only if reasonable legal remedies exist to compel timely payment or the debt instrument otherwise provides terms and conditions that make the likelihood of late payment (other than a late payment that occurs within a reasonable grace period) or nonpayment a remote contingency (within the meaning of §1.1275–2(h)). For purposes of the preceding sentence, remedies or other terms and conditions are not taken into account if the lending transaction does not reflect arm’s length dealing and the holder does not intend to enforce the remedies or other terms and conditions. For purposes of determining whether interest is unconditionally payable, the possibility of nonpayment due to default, insolvency, or similar circumstances, or due to the exercise of a conversion option described in §1.1272–1(e) is ignored. This paragraph (c)(1)(ii) applies to debt instruments issued on or after August 13, 1996. * * (f) * * * * * * * Example 4. Qualified stated interest on a debt instrument that is subject to an option—(i) Facts. On January 1, 1997, A issues, for $100,000, a 10-year debt instrument that provides for a $100,000 principal payment at maturity and for annual interest payments of $10,000. Under the terms of the debt instrument, A has the option, exercisable on January 1, 2002, to lower the annual interest payments to $8,000. In addition, the debt instrument gives the holder an unconditional right to put the debt instrument back to A, exercisable on January 1, 2002, in return for $100,000. (ii) Amount of qualified stated interest. Under paragraph (c)(2) of this section, the debt instrument provides for qualified stated interest to the extent of the lowest fixed rate at which qualified stated interest would be payable under any payment schedule. If the payment schedule determined by assuming that the issuer’s option will be exercised and the put option will not be exercised were treated as the debt instrument’s sole payment schedule, only $8,000 of each annual interest payment would be qualified stated interest. Under any other payment schedule, the debt instrument would provide for annual qualified stated interest payments of $10,000. Accordingly, only $8,000 of each annual interest payment is qualified stated interest. Any excess of each annual interest payment over $8,000 is included in the debt instrument’s stated redemption price at maturity. * * * * * * Par. 11. Section 1.1274–2 amended by: is 1. Removing the language ‘‘§1.1272–1(c)(3)(ii)’’ from paragraph (e) and adding the language ‘‘§1.1272– 1(c)(3)’’ in its place. 2. Revising paragraph (g). 3. Adding and reserving paragraph (i) and adding paragraph (j). The revisions and additions read as follows: §1.1274–2 Issue price of debt instruments to which section 1274 applies. * * * * * * (g) Treatment of contingent payment debt instruments. Notwithstanding paragraph (b) of this section, if a debt instrument subject to section 1274 provides for one or more contingent payments, the issue price of the debt instrument is the lesser of the instrument’s noncontingent principal payments and the sum of the present values of the noncontingent payments (as determined under paragraph (c) of this section). However, if the debt instrument is issued in a potentially abusive situation, the issue price of the debt instrument is the fair market value of the noncontingent payments. For additional rules relating to a debt instrument that provides for one or more contingent payments, see §1.1275–4. This paragraph (g) applies to debt instruments issued on or after August 13, 1996. * * * * * * (i) [Reserved] (j) Special rules for tax-exempt obligations—(1) Certain variable rate debt instruments. Notwithstanding paragraph (b) of this section, if a taxexempt obligation (as defined in section 1275(a)(3)) is a variable rate debt instrument (within the meaning of §1.1275–5) that pays interest at an objective rate and is subject to section 1274, the issue price of the obligation is the greater of the obligation’s fair market value and its stated principal amount. (2) Contingent payment debt instruments. Notwithstanding paragraphs (b) and (g) of this section, if a tax-exempt obligation (as defined in section 1275(a)(3)) is subject to section 1274 and §1.1275–4, the issue price of the obligation is the fair market value of the obligation. However, in the case of a tax-exempt obligation that is subject 16 to §1.1275–4(d)(2) (an obligation that provides for interest-based or revenuebased payments), the issue price of the obligation is the greater of the obligation’s fair market value and its stated principal amount. (3) Effective date. This paragraph (j) applies to debt instruments issued on or after August 13, 1996. Par. 12. Section 1.1275–2 is amended by adding the text of paragraph (g), adding paragraph (h), adding and reserving paragraph (i), and adding paragraph (j) to read as follows: §1.1275–2 Special rules relating to debt instruments. * * * * * * (g) Anti-abuse rule—(1) In general. If a principal purpose in structuring a debt instrument or engaging in a transaction is to achieve a result that is unreasonable in light of the purposes of section 163(e), sections 1271 through 1275, or any related section of the Code, the Commissioner can apply or depart from the regulations under the applicable sections as necessary or appropriate to achieve a reasonable result. For example, if this paragraph (g) applies to a debt instrument that provides for a contingent payment, the Commissioner can treat the contingency as if it were a separate position. (2) Unreasonable result. Whether a result is unreasonable is determined based on all the facts and circumstances. In making this determination, a significant fact is whether the treatment of the debt instrument is expected to have a substantial effect on the issuer’s or a holder’s U.S. tax liability. In the case of a contingent payment debt instrument, another significant fact is whether the result is obtainable without the application of §1.1275–4 and any related provisions (e.g., if the debt instrument and the contingency were entered into separately). A result will not be considered unreasonable, however, in the absence of an expected substantial effect on the present value of a taxpayer’s tax liability. (3) Examples. The following examples illustrate the provisions of this paragraph (g). Example 1. A issues a current-pay, increasingrate note that provides for an early call option. Although the option is deemed exercised on the call date under §1.1272–1(c)(5), the option is not expected to be exercised by A. In addition, a SEQ 0018 JOB IRS28-004-005 PAGE-0017 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 principal purpose of including the option in the terms of the note is to limit the amount of interest income includible by the holder in the period prior to the call date by virtue of the option rules in §1.1272–1(c)(5). Moreover, the application of the option rules is expected to substantially reduce the present value of the holder’s tax liability. Based on these facts, the application of §1.1272–1(c)(5) produces an unreasonable result. Therefore, under this paragraph (g), the Commissioner can apply the regulations (in whole or in part) to the note without regard to §1.1272–1(c)(5). Example 2. C, a foreign corporation not subject to U.S. taxation, issues to a U.S. holder a debt instrument that provides for a contingent payment. The debt instrument is issued for cash and is subject to the noncontingent bond method in §1.1275–4(b). Six months after issuance, C and the holder modify the debt instrument so that there is a deemed reissuance of the instrument under section 1001. The new debt instrument is subject to the rules of §1.1275–4(c) rather than §1.1275–4(b). The application of §1.1275–4(c) is expected to substantially reduce the present value of the holder’s tax liability as compared to the application of §1.1275–4(b). In addition, a principal purpose of the modification is to substantially reduce the present value of the holder’s tax liability through the application of §1.1275–4(c). Based on these facts, the application of §1.1275–4(c) produces an unreasonable result. Therefore, under this paragraph (g), the Commissioner can apply the noncontingent bond method to the modified debt instrument. Example 3. D issues a convertible debt instrument rather than an economically equivalent investment unit consisting of a debt instrument and a warrant. The convertible debt instrument is issued at par and provides for annual payments of interest. D issues the convertible debt instrument rather than the investment unit so that the debt instrument would not have OID. See §1.1273–2(j). In general, this is a reasonable result in light of the purposes of the applicable statutes. Therefore, the Commissioner generally will not use the authority under this paragraph (g) to depart from the application of §1.1273-2(j) in this case. (4) Effective date. This paragraph (g) applies to debt instruments issued on or after August 13, 1996. (h) Remote and incidental contingencies—(1) In general. This paragraph (h) applies to a debt instrument if one or more payments on the instrument are subject to either a remote or incidental contingency. Whether a contingency is remote or incidental is determined as of the issue date of the debt instrument, including any date there is a deemed reissuance of the debt instrument under paragraph (h)(6)(ii) or (j) of this section or §1.1272–1(c)(6). Except as otherwise provided, the treatment of the contingency under this paragraph (h) applies for all purposes of sections 163(e) (other than section 163(e)(5)) and 1271 through 1275 and the regulations thereunder. For purposes of this paragraph (h), the possibility of impairment of a payment by insolvency, default, or similar circumstances is not a contingency. (2) Remote contingencies. A contingency is remote if there is a remote likelihood either that the contingency will occur or that the contingency will not occur. If there is a remote likelihood that the contingency will occur, it is assumed that the contingency will not occur. If there is a remote likelihood that the contingency will not occur, it is assumed that the contingency will occur. (3) Incidental contingencies—(i) Contingency relating to amount. A contingency relating to the amount of a payment is incidental if, under all reasonably expected market conditions, the potential amount of the payment is insignificant relative to the total expected amount of the remaining payments on the debt instrument. If a payment on a debt instrument is subject to an incidental contingency described in this paragraph (h)(3)(i), the payment is ignored until the payment is made. However, see paragraph (h)(6)(i)(B) of this section for the treatment of the debt instrument if a change in circumstances occurs prior to the date the payment is made. (ii) Contingency relating to time. A contingency relating to the timing of a payment is incidental if, under all reasonably expected market conditions, the potential difference in the timing of the payment (from the earliest date to the latest date) is insignificant. If a payment on a debt instrument is subject to an incidental contingency described in this paragraph (h)(3)(ii), the payment is treated as made on the earliest date that the payment could be made pursuant to the contingency. If the payment is not made on this date, a taxpayer makes appropriate adjustments to take into account the delay in payment. However, see paragraph (h)(6)(i)(C) of this section for the treatment of the debt instrument if the delay is not insignificant. (4) Aggregation rule. For purposes of paragraph (h)(2) of this section, if a debt instrument provides for multiple contingencies each of which has a remote likelihood of occurring but, when all of the contingencies are considered together, there is a greater than remote likelihood that at least one of the contingencies will occur, none of the contingencies is treated as a remote 17 contingency. For purposes of paragraph (h)(3)(i) of this section, if a debt instrument provides for multiple contingencies each of which is incidental but the potential total amount of all of the payments subject to the contingencies is not, under reasonably expected market conditions, insignificant relative to the total expected amount of the remaining payments on the debt instrument, none of the contingencies is treated as incidental. (5) Consistency rule. For purposes of paragraphs (h)(2) and (3) of this section, the issuer’s determination that a contingency is either remote or incidental is binding on all holders. However, the issuer’s determination is not binding on a holder that explicitly discloses that its determination is different from the issuer’s determination. Unless otherwise prescribed by the Commissioner, the disclosure must be made on a statement attached to the holder’s timely filed federal income tax return for the taxable year that includes the acquisition date of the debt instrument. See §1.1275–2(e) for rules relating to the issuer’s obligation to disclose certain information to holders. (6) Subsequent adjustments—(i) Applicability. This paragraph (h)(6) applies to a debt instrument when there is a change in circumstances. For purposes of the preceding sentence, there is a change in circumstances if— (A) A remote contingency actually occurs or does not occur, contrary to the assumption made in paragraph (h)(2) of this section; (B) A payment subject to an incidental contingency described in paragraph (h)(3)(i) of this section becomes fixed in an amount that is not insignificant relative to the total expected amount of the remaining payments on the debt instrument; or (C) A payment subject to an incidental contingency described in paragraph (h)(3)(ii) of this section becomes fixed such that the difference between the assumed payment date and the due date of the payment is not insignificant. (ii) In general. If a change in circumstances occurs, solely for purposes of sections 1272 and 1273, the debt instrument is treated as retired and then reissued on the date of the change in circumstances for an amount equal to the instrument’s adjusted issue price on that date. (iii) Contingent payment debt instruments. Notwithstanding paragraph SEQ 0019 JOB IRS28-004-005 PAGE-0018 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 (h)(6)(ii) of this section, in the case of a contingent payment debt instrument subject to §1.1275–4, if a change in circumstances occurs, no retirement or reissuance is treated as occurring, but any payment that is fixed as a result of the change in circumstances is governed by the rules in §1.1275–4 that apply when the amount of a contingent payment becomes fixed. (7) Effective date. This paragraph (h) applies to debt instruments issued on or after August 13, 1996. (i) [Reserved] (j) Treatment of certain modifications. If the terms of a debt instrument are modified to defer one or more payments, and the modification does not cause an exchange under section 1001, then, solely for purposes of sections 1272 and 1273, the debt instrument is treated as retired and then reissued on the date of the modification for an amount equal to the instrument’s adjusted issue price on that date. This paragraph (j) applies to debt instruments issued on or after August 13, 1996. §1.1275–2T [Removed] Par. 13. Section 1.1275–2T is removed effective August 13, 1996. Par. 14. In §1.1275–3, paragraph (b)(1)(i) is revised to read as follows: §1.1275–3 OID information reporting requirements. * * * * * * (b) * * * (1) * * * (i) Set forth on the face of the debt instrument the issue price, the amount of OID, the issue date, the yield to maturity, and, in the case of a debt instrument subject to the rules of §1.1275–4(b), the comparable yield and projected payment schedule; or * * * * * * Par. 15. Section 1.1275–4 is added to read as follows: §1.1275–4 Contingent payment debt instruments. (a) Applicability—(1) In general. Except as provided in paragraph (a)(2) of this section, this section applies to any debt instrument that provides for one or more contingent payments. In general, paragraph (b) of this section applies to a contingent payment debt instrument that is issued for money or publicly traded property and paragraph (c) of this section applies to a contingent payment debt instrument that is issued for nonpublicly traded property. Paragraph (d) of this section provides special rules for tax-exempt obligations. See §1.1275–6 for a taxpayer’s treatment of a contingent payment debt instrument and a hedge. (2) Exceptions. This section does not apply to— (i) A debt instrument that has an issue price determined under section 1273(b)(4) (e.g., a debt instrument subject to section 483); (ii) A variable rate debt instrument (as defined in §1.1275–5); (iii) A debt instrument subject to §1.1272–1(c) (a debt instrument that provides for certain contingencies) or §1.1272–1(d) (a debt instrument that provides for a fixed yield); (iv) A debt instrument subject to section 988 (except as provided in section 988 and the regulations thereunder); (v) A debt instrument to which section 1272(a)(6) applies (certain interests in or mortgages held by a REMIC, and certain other debt instruments with payments subject to acceleration); (vi) A debt instrument (other than a tax-exempt obligation) described in section 1272(a)(2) (e.g., U.S. savings bonds, certain loans between natural persons, and short-term taxable obligations); or (vii) A debt instrument issued pursuant to a plan or arrangement if— (A) The plan or arrangement is created by a state statute; (B) A primary objective of the plan or arrangement is to enable the participants to pay for the costs of postsecondary education for themselves or their designated beneficiaries; and (C) Contingent payments on the debt instrument are related to such objective. (3) Insolvency and default. A payment is not contingent merely because of the possibility of impairment by insolvency, default, or similar circumstances. (4) Convertible debt instruments. A debt instrument does not provide for contingent payments merely because it provides for an option to convert the debt instrument into the stock of the 18 issuer, into the stock or debt of a related party (within the meaning of section 267(b) or 707(b)(1)), or into cash or other property in an amount equal to the approximate value of such stock or debt. (5) Remote and incidental contingencies. A payment is not a contingent payment merely because of a contingency that, as of the issue date, is either remote or incidental. See §1.1275–2(h) for the treatment of remote and incidental contingencies. (b) Noncontingent bond method—(1) Applicability. The noncontingent bond method described in this paragraph (b) applies to a contingent payment debt instrument that has an issue price determined under §1.1273–2 (e.g., a contingent payment debt instrument that is issued for money or publicly traded property). (2) In general. Under the noncontingent bond method, interest on a debt instrument must be taken into account whether or not the amount of any payment is fixed or determinable in the taxable year. The amount of interest that is taken into account for each accrual period is determined by constructing a projected payment schedule for the debt instrument and applying rules similar to those for accruing OID on a noncontingent debt instrument. If the actual amount of a contingent payment is not equal to the projected amount, appropriate adjustments are made to reflect the difference. (3) Description of method. The following steps describe how to compute the amount of income, deductions, gain, and loss under the noncontingent bond method: (i) Step one: Determine the comparable yield. Determine the comparable yield for the debt instrument under the rules of paragraph (b)(4) of this section. The comparable yield is determined as of the debt instrument’s issue date. (ii) Step two: Determine the projected payment schedule. Determine the projected payment schedule for the debt instrument under the rules of paragraph (b)(4) of this section. The projected payment schedule is determined as of the issue date and remains fixed throughout the term of the debt instrument (except under paragraph (b)(9)(ii) of this section, which applies to a payment that is fixed more than 6 months before it is due). (iii) Step three: Determine the daily portions of interest. Determine the SEQ 0020 JOB IRS28-004-005 PAGE-0019 PT 1 PGS 10REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-004 daily portions of interest on the debt instrument for a taxable year as follows. The amount of interest that accrues in each accrual period is the product of the comparable yield of the debt instrument (properly adjusted for the length of the accrual period) and the debt instrument’s adjusted issue price at the beginning of the accrual period. See paragraph (b)(7)(ii) of this section to determine the adjusted issue price of the debt instrument. The daily portions of interest are determined by allocating to each day in the accrual period the ratable portion of the interest that accrues in the accrual period. Except as modified by paragraph (b)(3)(iv) of this section, the daily portions of interest are includible in income by a holder for each day in the holder’s taxable year on which the holder held the debt instrument and are deductible by the issuer for each day during the issuer’s taxable year on which the issuer was primarily liable on the debt instrument. (iv) Step four: Adjust the amount of income or deductions for differences between projected and actual contingent payments. Make appropriate adjustments to the amount of income or deductions attributable to the debt instrument in a taxable year for any differences between projected and actual contingent payments. See paragraph (b)(6) of this section to determine the amount of an adjustment and the treatment of the adjustment. (4) Comparable yield and projected payment schedule. This paragraph (b)(4) provides rules for determining the comparable yield and projected payment schedule for a debt instrument. The comparable yield and projected payment schedule must be supported by contemporaneous documentation showing that both are reasonable, are based on reliable, complete, and accurate data, and are made in good faith. (i) Comparable yield—(A) In general. Except as provided in paragraph (b)(4)(i)(B) of this section, the comparable yield for a debt instrument is the yield at which the issuer would issue a fixed rate debt instrument with terms and conditions similar to those of the contingent payment debt instrument (the comparable fixed rate debt instrument), including the level of subordination, term, timing of payments, and general market conditions. For example, if a §1.1275–6 hedge (or the substantial equivalent) is available, the comparable yield is the yield on the synthetic fixed rate debt instrument that would result if the issuer entered into the §1.1275–6 hedge. If a §1.1275–6 hedge (or the substantial equivalent) is not available, but similar fixed rate debt instruments of the issuer trade at a price that reflects a spread above a benchmark rate, the comparable yield is the sum of the value of the benchmark rate on the issue date and the spread. In determining the comparable yield, no adjustments are made for the riskiness of the contingencies or the liquidity of the debt instrument. The comparable yield must be a reasonable yield for the issuer and must not be less than the applicable Federal rate (based on the overall maturity of the debt instrument). (B) Presumption for certain debt instruments. This paragraph (b)(4)(i)(B) applies to a debt instrument if the instrument provides for one or more contingent payments not based on market information and the instrument is part of an issue that is marketed or sold in substantial part to persons for whom the inclusion of interest under this paragraph (b) is not expected to have a substantial effect on their U.S. tax liability. If this paragraph (b)(4)(i)(B) applies to a debt instrument, the instrument’s comparable yield is presumed to be the applicable Federal rate (based on the overall maturity of the debt instrument). A taxpayer may overcome this presumption only with clear and convincing evidence that the comparable yield for the debt instrument should be a specific yield (determined using the principles in paragraph (b)(4)(i)(A) of this section) that is higher than the applicable Federal rate. The presumption may not be overcome with appraisals or other valuations of nonpublicly traded property. Evidence used to overcome the presumption must be specific to the issuer and must not be based on comparable issuers or general market conditions. (ii) Projected payment schedule. The projected payment schedule for a debt instrument includes each noncontingent payment and an amount for each contingent payment determined as follows: (A) Market-based payments. If a contingent payment is based on market information (a market-based payment), the amount of the projected payment is the forward price of the contingent payment. The forward price of a contingent payment is the amount one 19 party would agree, as of the issue date, to pay an unrelated party for the right to the contingent payment on the settlement date (e.g., the date the contingent payment is made). For example, if the right to a contingent payment is substantially similar to an exchange-traded option, the forward price is the spot price of the option (the option premium) compounded at the applicable Federal rate from the issue date to the date the contingent payment is due. (B) Other payments. If a contingent payment is not based on market information (a non-market-based payment), the amount of the projected payment is the expected value of the contingent payment as of the issue date. (C) Adjustments to the projected payment schedule. The projected payment schedule must produce the comparable yield. If the projected payment schedule does not produce the comparable yield, the schedule must be adjusted consistent with the principles of this paragraph (b)(4) to produce the comparable yield. For example, the adjusted amounts of non-market-based payments must reasonably reflect the relative expected values of the payments and must not be set to accelerate or defer income or deductions. If the debt instrument contains both marketbased and non-market-based payments, adjustments are generally made first to the non-market-based payments because more objective information is available for the market-based payments. (iii) Market information. For purposes of this paragraph (b), market information is any information on which an objective rate can be based under §1.1275–5(c)(1) or (2). (iv) Issuer/holder consistency. The issuer’s projected payment schedule is used to determine the holder’s interest accruals and adjustments. The issuer must provide the projected payment schedule to the holder in a manner consistent with the issuer disclosure rules of §1.1275–2(e). If the issuer does not create a projected payment schedule for a debt instrument or the issuer’s projected payment schedule is unreasonable, the holder of the debt instrument must determine the comparable yield and projected payment schedule for the debt instrument under the rules of this paragraph (b)(4). A holder that determines its own projected payment schedule must explicitly SEQ 0022 JOB IRS28-005-007 PAGE-0020 PT 1 PGS 20REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-005 disclose this fact and the reason why the holder set its own schedule (e.g., why the issuer’s projected payment schedule is unreasonable). Unless otherwise prescribed by the Commissioner, the disclosure must be made on a statement attached to the holder’s timely filed federal income tax return for the taxable year that includes the acquisition date of the debt instrument. (v) Issuer’s determination respected—(A) In general. If the issuer maintains the contemporaneous documentation required by this paragraph (b)(4), the issuer’s determination of the comparable yield and projected payment schedule will be respected unless either is unreasonable. (B) Unreasonable determination. For purposes of paragraph (b)(4)(v)(A) of this section, a comparable yield or projected payment schedule generally will be considered unreasonable if it is set with a purpose to overstate, understate, accelerate, or defer interest accruals on the debt instrument. In a determination of whether a comparable yield or projected payment schedule is unreasonable, consideration will be given to whether the treatment of the debt instrument under this section is expected to have a substantial effect on the issuer’s or holder’s U.S. tax liability. For example, if a taxable issuer markets a debt instrument to a holder not subject to U.S. taxation, the comparable yield will be given close scrutiny and will not be respected unless contemporaneous documentation shows that the yield is not too high. (C) Exception. Paragraph (b)(4)(v)(A) of this section does not apply to a debt instrument subject to paragraph (b)(4)(i)(B) of this section (concerning a yield presumption for certain debt instruments that provide for nonmarket-based payments). (vi) Examples. The following examples illustrate the provisions of this paragraph (b)(4). In each example, assume that the instrument described is a debt instrument for federal income tax purposes. No inference is intended, however, as to whether the instrument is a debt instrument for federal income tax purposes. Example 1. Market-based payment—(i) Facts. On December 31, 1996, X corporation issues for $1,000,000 a debt instrument that matures on December 31, 2006. The debt instrument provides for annual payments of interest, beginning in 1997, at the rate of 6 percent and for a payment at maturity equal to $1,000,000 plus the excess, if any, of the price of 10,000 shares of publicly traded stock in an unrelated corporation on the maturity date over $350,000, or less the excess, if any, of $350,000 over the price of 10,000 shares of the stock on the maturity date. On the issue date, the forward price to purchase 10,000 shares of the stock on December 31, 2006, is $350,000. (ii) Comparable yield. Under paragraph (b)(4)(i) of this section, the debt instrument’s comparable yield is the yield on the synthetic debt instrument that would result if X corporation entered into a §1.1275–6 hedge. A §1.1275– 6 hedge in this case is a forward contract to purchase 10,000 shares of the stock on December 31, 2006. If X corporation entered into this hedge, the resulting synthetic debt instrument would yield 6 percent, compounded annually. Thus, the comparable yield on the debt instrument is 6 percent, compounded annually. (iii) Projected payment schedule. Under paragraph (b)(4)(ii) of this section, the projected payment schedule for the debt instrument consists of 10 annual payments of $60,000 and a projected amount for the contingent payment at maturity. Because the right to the contingent payment is based on market information, the projected amount of the contingent payment is the forward price of the payment. The right to the contingent payment is substantially similar to a right to a payment of $1,000,000 combined with a cash-settled forward contract for the purchase of 10,000 shares of the stock for $350,000 on December 31, 2006. Because the forward price to purchase 10,000 shares of the stock on December 31, 2006, is $350,000, the amount to be received or paid under the forward contract is projected to be zero. As a result, the projected amount of the contingent payment at maturity is $1,000,000, consisting of the $1,000,000 base amount and no additional amount to be received or paid under the forward contract. (A) Assume, alternatively, that on the issue date the forward price to purchase 10,000 shares of the stock on December 31, 2006, is $370,000. If X corporation entered into a §1.1275–6 hedge (a forward contract to purchase the shares for $370,000), the resulting synthetic debt instrument would yield 6.15 percent, compounded annually. Thus, the comparable yield on the debt instrument is 6.15 percent, compounded annually. The projected payment schedule for the debt instrument consists of 10 annual payments of $60,000 and a projected amount for the contingent payment at maturity. The projected amount of the contingent payment is $1,020,000, consisting of the $1,000,000 base amount plus the excess $20,000 of the forward price of the stock over the purchase price of the stock under the forward contract. (B) Assume, alternatively, that on the issue date the forward price to purchase 10,000 shares of the stock on December 31, 2006, is $330,000. If X corporation entered into a §1.1275–6 hedge, the resulting synthetic debt instrument would yield 5.85 percent, compounded annually. Thus, the comparable yield on the debt instrument is 5.85 percent, compounded annually. The projected payment schedule for the debt instrument consists of 10 annual payments of $60,000 and a projected amount for the contingent payment at maturity. The projected amount of the contingent payment is $980,000, consisting of the $1,000,000 base amount minus the excess $20,000 of the purchase price of the stock under the forward contract over the forward price of the stock. 20 Example 2. Non-market-based payments—(i) Facts. On December 31, 1996, Y issues to Z for $1,000,000 a debt instrument that matures on December 31, 2000. The debt instrument has a stated principal amount of $1,000,000, payable at maturity, and provides for payments on December 31 of each year, beginning in 1997, of $20,000 plus 1 percent of Y’s gross receipts, if any, for the year. On the issue date, Y has outstanding fixed rate debt instruments with maturities of 2 to 10 years that trade at a price that reflects an average of 100 basis points over Treasury bonds. These debt instruments have terms and conditions similar to those of the debt instrument. Assume that on December 31, 1996, 4-year Treasury bonds have a yield of 6.5 percent, compounded annually, and that no §1.1275–6 hedge is available for the debt instrument. In addition, assume that the interest inclusions attributable to the debt instrument are expected to have a substantial effect on Z’s U.S. tax liability. (ii) Comparable yield. The comparable yield for the debt instrument is equal to the value of the benchmark rate (i.e., the yield on 4-year Treasury bonds) on the issue date plus the spread. Thus, the debt instrument’s comparable yield is 7.5 percent, compounded annually. (iii) Projected payment schedule. Y anticipates that it will have no gross receipts in 1997, but that it will have gross receipts in later years, and those gross receipts will grow each year for the next three years. Based on its business projections, Y believes that it is not unreasonable to expect that its gross receipts in 1999 and each year thereafter will grow by between 6 percent and 13 percent over the prior year. Thus, Y must take these expectations into account in establishing a projected payment schedule for the debt instrument that results in a yield of 7.5 percent, compounded annually. Accordingly, Y could reasonably set the following projected payment schedule for the debt instrument: Date 12/31/1997 12/31/1998 12/31/1999 12/31/2000 Noncontingent payment Contingent payment $ 20,000 20,000 20,000 1,020,000 $ 0 70,000 75,600 83,850 (5) Qualified stated interest. No amounts payable on a debt instrument to which this paragraph (b) applies are qualified stated interest within the meaning of §1.1273–1(c). (6) Adjustments. This paragraph (b)(6) provides rules for the treatment of positive and negative adjustments under the noncontingent bond method. A taxpayer takes into account only those adjustments that occur during a taxable year while the debt instrument is held by the taxpayer or while the taxpayer is primarily liable on the debt instrument. (i) Determination of positive and negative adjustments. If the amount of a contingent payment is more than the projected amount of the contingent payment, the difference is a positive adjustment on the date of the payment. SEQ 0023 JOB IRS28-005-007 PAGE-0021 PT 1 PGS 20REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-005 If the amount of a contingent payment is less than the projected amount of the contingent payment, the difference is a negative adjustment on the date of the payment (or on the scheduled date of the payment if the amount of the payment is zero). (ii) Treatment of net positive adjustments. The amount, if any, by which total positive adjustments on a debt instrument in a taxable year exceed the total negative adjustments on the debt instrument in the taxable year is a net positive adjustment. A net positive adjustment is treated as additional interest for the taxable year. (iii) Treatment of net negative adjustments. The amount, if any, by which total negative adjustments on a debt instrument in a taxable year exceed the total positive adjustments on the debt instrument in the taxable year is a net negative adjustment. A taxpayer’s net negative adjustment on a debt instrument for a taxable year is treated as follows: (A) Reduction of interest accruals. A net negative adjustment first reduces interest for the taxable year that the taxpayer would otherwise account for on the debt instrument under paragraph (b)(3)(iii) of this section. (B) Ordinary income or loss. If the net negative adjustment exceeds the interest for the taxable year that the taxpayer would otherwise account for on the debt instrument under paragraph (b)(3)(iii) of this section, the excess is treated as ordinary loss by a holder and ordinary income by an issuer. However, the amount treated as ordinary loss by a holder is limited to the amount by which the holder’s total interest inclusions on the debt instrument exceed the total amount of the holder’s net negative adjustments treated as ordinary loss on the debt instrument in prior taxable years. The amount treated as ordinary income by an issuer is limited to the amount by which the issuer’s total interest deductions on the debt instrument exceed the total amount of the issuer’s net negative adjustments treated as ordinary income on the debt instrument in prior taxable years. (C) Carryforward. If the net negative adjustment exceeds the sum of the amounts treated by the taxpayer as a reduction of interest and as ordinary income or loss (as the case may be) on the debt instrument for the taxable year, the excess is a negative adjust- ment carryforward for the taxable year. In general, a taxpayer treats a negative adjustment carryforward for a taxable year as a negative adjustment on the debt instrument on the first day of the succeeding taxable year. However, if a holder of a debt instrument has a negative adjustment carryforward on the debt instrument in a taxable year in which the debt instrument is sold, exchanged, or retired, the negative adjustment carryforward reduces the holder’s amount realized on the sale, exchange, or retirement. If an issuer of a debt instrument has a negative adjustment carryforward on the debt instrument for a taxable year in which the debt instrument is retired, the issuer takes the negative adjustment carryforward into account as ordinary income. (D) Treatment under section 67. A net negative adjustment is not subject to section 67 (the 2-percent floor on miscellaneous itemized deductions). (iv) Cross-references. If a holder has a basis in a debt instrument that is different from the debt instrument’s adjusted issue price, the holder may have additional positive or negative adjustments under paragraph (b)(9)(i) of this section. If the amount of a contingent payment is fixed more than 6 months before the date it is due, the amount and timing of the adjustment are determined under paragraph (b)(9)(ii) of this section. (7) Adjusted issue price, adjusted basis, and retirement—(i) In general. If a debt instrument is subject to the noncontingent bond method, this paragraph (b)(7) provides rules to determine the adjusted issue price of the debt instrument, the holder’s basis in the debt instrument, and the treatment of any scheduled or unscheduled retirements. In general, because any difference between the actual amount of a contingent payment and the projected amount of the payment is taken into account as an adjustment to income or deduction, the projected payments are treated as the actual payments for purposes of making adjustments to issue price and basis and determining the amount of any contingent payment made on a scheduled retirement. (ii) Definition of adjusted issue price. The adjusted issue price of a debt instrument is equal to the debt instrument’s issue price, increased by the interest previously accrued on the debt instrument under paragraph (b)(3)(iii) of this section (determined 21 without regard to any adjustments taken into account under paragraph (b)(3)(iv) of this section), and decreased by the amount of any noncontingent payment and the projected amount of any contingent payment previously made on the debt instrument. See paragraph (b)(9)(ii) of this section for special rules that apply when a contingent payment is fixed more than 6 months before it is due. (iii) Adjustments to basis. A holder’s basis in a debt instrument is increased by the interest previously accrued by the holder on the debt instrument under paragraph (b)(3)(iii) of this section (determined without regard to any adjustments taken into account under paragraph (b)(3)(iv) of this section), and decreased by the amount of any noncontingent payment and the projected amount of any contingent payment previously made on the debt instrument to the holder. See paragraph (b)(9)(i) of this section for special rules that apply when basis is different from adjusted issue price and paragraph (b)(9)(ii) of this section for special rules that apply when a contingent payment is fixed more than 6 months before it is due. (iv) Scheduled retirements. For purposes of determining the amount realized by a holder and the repurchase price paid by the issuer on the scheduled retirement of a debt instrument, a holder is treated as receiving, and the issuer is treated as paying, the projected amount of any contingent payment due at maturity. If the amount paid or received is different from the projected amount, see paragraph (b)(6) of this section for the treatment of the difference by the taxpayer. Under paragraph (b)(6)(iii)(C) of this section, the amount realized by a holder on the retirement of a debt instrument is reduced by any negative adjustment carryforward determined in the taxable year of the retirement. (v) Unscheduled retirements. An unscheduled retirement of a debt instrument (or the receipt of a pro-rata prepayment that is treated as a retirement of a portion of a debt instrument under §1.1275-2(f)) is treated as a repurchase of the debt instrument (or a pro-rata portion of the debt instrument) by the issuer from the holder for the amount paid by the issuer to the holder. (vi) Examples. The following examples illustrate the provisions of paragraphs (b)(6) and (7) of this section. In SEQ 0024 JOB IRS28-005-007 PAGE-0022 PT 1 PGS 20REVISED 29JUL96 AT 23:02 BY LR DEPTH: 65.01 PICAS WIDTH 46 PICAS COMPOSITE COLOR 778/20054/29JUL96/IRS28-005 each example, assume that the instrument described is a debt instrument for federal income tax purposes. No inference is intended, however, as to whether the instrument is a debt instrument for federal income tax purposes. Example 1. Treatment of positive and negative adjustments—(i) Facts. On December 31, 1996, Z, a calendar year taxpayer, purchases a debt instrument subject to this paragraph (b) at original issue for $1,000. The debt instrument’s comparable yield is 10 percent, compounded annually, and the projected payment schedule provides for payments of $500 on December 31, 1997 (consisting of a noncontingent payment of $375 and a projected amount of $125) and $660 on December 31, 1998 (consisting of a noncontingent payment of $600 and a projected amount of $60). The debt instrument is a capital asset in the hands of Z. (ii) Adjustment in 1997. Based on the projected payment schedule, Z’s total daily portions of interest on the debt instrument are $100 for 1997 (issue price of $1,000 x 10 percent). Assume that the payment actually made on December 31, 1997, is $375, rather than the projected $500. Under paragraph (b)(6)(i) of this section, Z has a negative adjustment of $125 on December 31, 1997, attributable to the difference between the amount of the actual payment and the amount of the projected payment. Because Z has no positive adjustments for 1997, Z has a net negative adjustment of $125 on the debt instrument for 1997. This net negative adjustment reduces to zero the $100 total daily portions of interest Z would otherwise include in income in 1997. Accordingly, Z has no interest income on the debt instrument for 1997. Because Z had no interest inclusions on the debt instrument for prior taxable years, the remaining $25 of the net negative adjustment is a negative adjustment carryforward for 1997 that results in a negative adjustment of $25 on January 1, 1998. (iii) Adjustment to issue price and basis. Z’s total daily portions of interest on the debt instrument are $100 for 1997. The adjusted issue price of the debt instrument and Z’s adjusted basis in the debt instrument are increased by this amount, despite the fact that Z does not include this amount in income because of the net negative adjustment for 1997. In addition, the adjusted issue price of the debt instrument and Z’s adjusted basis in the debt instrument are decreased on December 31, 1997, by the projected amount of the payment on that date ($500). Thus, on January 1, 1998, Z’s adjusted basis in the debt instrument and the adjusted issue price of the debt instrument are $600. (iv) Adjustments in 1998. Based on the projected payment schedule, Z’s total daily portions of interest are $60 for 1998 (adjusted issue price of $600 3 10 percent). Assume that the payment actually made on December 31, 1998, is $700, rather than the projected $660. Under paragraph (b)(6)(i) of this section, Z has a positive adjustment of $40 on December 31, 1998, attributable to the difference between the amount of the actual payment and the amount of the projected payment. Because Z also has a negative adjustment of $25 on January 1, 1998, Z has a net positive adjustment of $15 on the debt instrument for 1998 (the excess of the $40 positive adjustment over the $25 negative adjustment). As a result, Z has $75 of interest income on the debt instrument for 1998 (the $15 net positive adjustment plus the $60 total daily portions of interest that are taken into account by Z in that year). (v) Retirement. Based on the projected payment schedule, Z’s adjusted basis in the debt instrument immediately before the payment at maturity is $660 ($600 plus $60 total daily portions of interest for 1998). Even though Z receives $700 at maturity, for purposes of determining the amount realized by Z on retirement of the debt instrument, Z is treated as receiving the projected amount of the contingent payment on December 31, 1998. Therefore, Z is treated as receiving $660 on December 31, 1998. Because Z’s adjusted basis in the debt instrument immediately before its retirement is $660, Z recognizes no gain or loss on the retirement. Example 2. Negative adjustment carryforward for year of sale—(i) Facts. Assume the same facts as in Example 1 of this paragraph (b)(7)(vi), except that Z sells the debt instrument on January 1, 1998, for $630. (ii) Gain on sale. On the date the debt instrument is [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Airs%3A4d01c25b79e5add7. Public record. Not legal advice.