Bulletin No. 1996–36

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Bulletin No. 1996–36

September 3, 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

Rev. Rul. 96–43, page 4.

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

September 1996.

income from the international operation of ships and/or

aircraft, are set forth.

ADMINISTRATIVE

Notice 96–44, page 7.

T.D. 8128, 1987–1 C.B. 325, relating to certain rules

for the tax treatment of partnership items, is corrected.

INTL–4–95, page 8.

Proposed regulations under sections 861, 865, and 904

of the Code relate to the allocation of loss realized on

the disposition of stock.

Announcement 96–81, page 13.

IA–26–94, 1996–30 I.R.B. 25, relating to the 50-percent

exclusion for gain from certain small business stock, is

corrected.

Notice 96–43, page 7.

Guidelines are set forth for determining for August

1996, the weighted average interest rate and the

resulting permissible range of interest rates used to

calculate current liability for purposes of the full funding

limitation of section 412(c)(7) of the Code as amended

by the Omnibus Budget Reconciliation Act of 1987 and

by the Uruguay Round Agreements Act (GATT).

Announcement 96–82, page 14.

T.D. 8663, 1996–23 I.R.B. 4, concerning the treatment

of certain transfers to a controlled corporation, is

corrected.

TAX CONVENTIONS

Page 6.

The bilateral agreements between the United States and

Russia, providing for the reciprocal tax exemption of

Finding Lists begin on page 17.

Monthly Index for August on page 19.

Announcement 96–83, page 14.

T.D. 8669, 1996–23 I.R.B. 6, relating to the computation of combined taxable income under the profit split

method, is corrected.

Announcement 96–84, page 14.

T.D. 8662, 1996–23 I.R.B. 5, relating to the diversification of common trust funds at the time of a combination

or division, is corrected.

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 Service also has the responsibility of applying

and administering the law in a reasonable,

practical manner. Issues should only be raised by

examining of ficers 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.

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.

Administration should be both reasonable and

vigorous. It should be conducted with as little

delay as possible and with great cour tesy 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.

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

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.

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.

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.

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).

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.

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.

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,

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

Part I. Rulings and Decisions Under the Internal Revenue Code of 1986

Section 42.—Low-Income Housing

Credit

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

month of September 1996. See Rev. Rul. 96–43,

on this page.

Section 280G.—Golden Parachute

Payments

Federal short-term, mid-term, and long-term

rates are set forth for the month of September

1996. See Rev. Rul. 96–43, on this page.

Section 382.—Limitation on Net

Operating Loss Carryforwards and

Certain Built-In Losses Following

Ownership Change

The adjusted federal long-term rate is set forth

for the month of September 1996. See Rev. Rul.

96–43, on this page.

Section 412.—Minimum Funding

Standards

Section 468.—Special Rules for

Mining and Solid Waste

Reclamation and Closing Costs

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

month of September 1996. See Rev. Rul. 96–43,

on this page.

Section 483.—Interest on Certain

Deferred Payments

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

month of September 1996. See Rev. Rul. 96–43,

on this page.

Section 807.—Rules for Certain

Reserves

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

month of September 1996. See Rev. Rul. 96–43,

on this page.

Section 846.—Discounted Unpaid

Losses Defined

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

month of September 1996. See Rev. Rul. 96–43,

on this page.

Section 467.—Certain Payments

for the Use of Property or Services

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

month of September 1996. See Rev. Rul. 96–43,

on this page.

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

month of September 1996. See Rev. Rul. 96–43,

on this page.

Section 1274.—Determination of

Issue Price in the Case of Certain

Debt Instruments Issued for

Property

(Also sections 42, 280G, 382, 412, 467, 468, 482,

483, 807, 846, 1288, 7520, 7872.)

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 September 1996.

Rev. Rul. 96–43

This revenue ruling provides various

prescribed rates for federal income tax

purposes for September 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 low-income

housing credit described in section

42(b)(2) for buildings placed in service

during the current month. Finally, 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.

REV. RUL. 96–43 TABLE 1

Applicable Federal Rates (AFR) for September 1996

Annual

Period for Compounding

Semiannual

Quarterly

Monthly

Short-Term

AFR

110% AFR

120% AFR

130% AFR

6.02%

6.63%

7.25%

7.86%

5.93%

6.52%

7.12%

7.71%

5.89%

6.47%

7.06%

7.64%

5.86%

6.43%

7.02%

7.59%

Mid-Term

AFR

110% AFR

120% AFR

130% AFR

150% AFR

175% AFR

6.64%

7.31%

7.99%

8.67%

10.04%

11.76%

6.53%

7.18%

7.84%

8.49%

9.80%

11.43%

6.48%

7.12%

7.76%

8.40%

9.68%

11.27%

6.44%

7.07%

7.71%

8.34%

9.61%

11.17%

Long-Term

AFR

110% AFR

120% AFR

130% AFR

7.03%

7.74%

8.46%

9.18%

6.91%

7.60%

8.29%

8.98%

6.85%

7.53%

8.21%

8.88%

6.81%

7.48%

8.15%

8.82%

4

REV. RUL. 96–43 TABLE 2

Adjusted AFR for September 1996

Annual

Short-term

adjusted AFR

Mid-term

adjusted AFR

Long-term

adjusted AFR

Period for Compounding

Semiannual

Quarterly

Monthly

4.00%

3.96%

3.94%

3.93%

4.69%

4.64%

4.61%

4.60%

5.63%

5.55%

5.51%

5.49%

REV. RUL. 96–43 TABLE 3

Rates Under Section 382 for September 1996

Adjusted federal long-term rate for the current month

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

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

5.63%

5.80%

REV. RUL. 96–43 TABLE 4

Appropriate Percentages Under Section 42(b)(2) for September 1996

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

8.61%

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

3.69%

REV. RUL. 96–43 TABLE 5

Rate Under Section 7520 for September 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

Section 1288.—Treatment of

Original Issue Discount on

Tax-Exempt Obligations

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

month of September 1996. See Rev. Rul. 96–43,

page 4.

8.0%

Section 7520.—Valuation Tables

Section 7872.—Treatment of Loans

with Below-Market Interest Rates

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

month of September 1996. See Rev. Rul. 96–43,

page 4.

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

month of September 1996. See Rev. Rul. 96–43,

page 4.

5

Part II. Treaties and Tax Legislation

Subpart A.—Tax Conventions

RUSSIA

EMBASSY OF

THE UNITED STATES OF AMERICA

MOSCOW

JULY 18, 1994

The Embassy of the United States of

America presents its compliments to the

Ministry of Foreign Affairs of the Russian Federation. The Government of the

United States of America, in accordance

with Sections 872(b) and 883(a) of the

Internal Revenue Code, agrees to exempt from tax gross income derived

from the international operations of

ships or aircraft by individual residents

of the Russian Federation (other than

U.S. citizens) and corporations which

are incorporated in the Russian Federation. This exemption is granted on the

basis of equivalent exemptions granted

by the Russian Federation to individual

residents of the United States and to

corporations organized in the United

States.

In the case of a Russian corporation,

the exemptions shall apply only if the

corporation meets the ownership or public trading requirements of U.S. law.

Gross income includes all income

derived from the international operation

of ships or aircraft, including:

I. Income from the rental on a full

(time or voyage) basis of ships or

aircraft used in international transport;

II. Income from the rental on a

bareboat basis of ships or aircraft

used in international transport if such

income is incidental to income from

the international operation of ships or

aircraft;

III. Income from the rental of containers and related equipment used in

international transport if such income

is incidental to income from the international operation of ships or aircraft;

IV. Gains from the sale or other

alienation of ships or aircraft used in

international transport by a person

primarily engaged in the international

operation of ships or aircraft.

When the Government of the Russian

Federation agrees to these terms, this

will constitute an agreement between the

two governments. This agreement shall

enter into force on the date of the

Government of the Russian Federation’s

reply note and shall have effect with

respect to taxable years beginning on or

after January 1, 1991, and terminate

from the date of entry into force of the

Agreement between the Russian Federation and the United States of America to

Avoid Double Taxation and Prevention

of Tax Evasion with Respect to Taxes

on Income and Capital dated June 17,

1992.

The Embassy of the United States of

America avails itself of the opportunity

to extend to the Ministry of Foreign

Affairs of the Russian Federation renewed assurances of its highest consideration.

RUSSIAN FEDERATION

MINISTRY OF

FOREIGN AFFAIRS

MOSCOW

JULY 21, 1994

The Ministry of Foreign Affairs of the

Russian Federation presents its compliments to the Embassy of the United

States of America and has the honor to

confirm receipt of the Embassy note no.

MFA/112/94 dated July 18, 1994, which

reads as follows:

The Russian translation of the abovementioned note agrees in all substantive

6

respects with the original English text,

with the following exceptions:

P. 1, para. 1

English: . . . presents its compliments to

the Ministry of Foreign Affairs of the

Russian Federation. The Government of

the United States of America. . .

Russian: . . . presents its compliments to

the Ministry of Foreign Affairs of the

Russian Federation and has the honor to

advise that the Government of the

United States of America . . .

Ibid

English: the Internal Revenue Code

Russian: the Tax Code

P. 2, para. IV

English: . . . by a person primarily engaged in the international transport . . .

Russian: . . . by a juridical person

engaged in the international

transport . . .

[Translator’s note: in the numeration of

paragraphs on pp. 1–2, the English text

uses Roman numerals, whereas the Russian text employs ordinary numbers]

We have the honor to inform you that

the foregoing is acceptable to the Government of the Russian Federation, and

it therefore agrees that the U.S. Embassy note and this reply thereto shall

constitute an Agreement between the

Government of the Russian Federation

and the Government of the United

States of America, which shall enter into

force on the date of this reply.

The Ministry of Foreign Affairs of the

Russian Federation avails itself of the

opportunity to extend to the Embassy of

the United States of America the assurances of its high consideration.

Part III. Administrative, Procedural, and Miscellaneous

Weighted Average Interest Rate

Update

Notice 96–43

Notice 88–73 provides guidelines for

determining the weighted average interest rate and the resulting permissible

range of interest rates used to calculate

current liability for the purpose of the

full funding limitation of § 412(c)(7) of

the Internal Revenue Code as amended

by the Omnibus Budget Reconciliation

Act of 1987 and as further amended by

the Uruguay Round Agreements Act,

Month

Year

Weighted

Average

August

1996

6.92

Drafting Information

The principal author of this notice is

Donna Prestia of the Employee Plans

Division. For further information regarding this notice, call (202) 622–6076

between 2:30 and 4:00 p.m. Eastern

time (not a toll-free number). Ms.

Prestia’s number is (202) 622–7377

(also not a toll-free number).

Miscellaneous Provisions Relating

to the Tax Treatment of Partnership

Items; Procedure and

Administration; OMB Control

Numbers; Correction

Notice 96–44

AGENCY: Internal Revenue Service,

Treasury.

ACTION: Correcting amendment.

SUMMARY: This document contains a

correction to temporary regulations

(T.D. 8128 [1987–1 C.B. 325]), which

were published in the Federal Register

Pub. L. 103–465 (GATT).

The average yield on the 30-year

Treasury Constant Maturities for July

1996 is 7.03 percent.

The following rates were determined

for the plan years beginning in the

month shown below.

90% to 108%

Permissible

Range

90% to 110%

Permissible

Range

6.22 to 7.47

6.22 to 7.61

on Thursday, March 5, 1987 (52 FR

6779) relating to certain rules for the tax

treatment of partnership items.

EFFECTIVE DATE: March 5, 1987.

FOR FURTHER INFORMATION CONTACT: D. Lindsay Russell (202) 622–

3050, (not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

The temporary regulations that are the

subject of this correction is under sections 6221 thru 6233 of the Internal

Revenue Code.

Need for Correction

cise taxes, Gift taxes, Income taxes,

Penalties, Reporting and recordkeeping

requirements.

Accordingly, 26 CFR part 301 is

corrected by making the following correcting amendment:

PART 301—PROCEDURE AND

ADMINISTRATION

Paragraph 1. The authority citation

for part 301 continues to read in part as

follows:

Authority: 26 U.S.C. 7805 * * *

§ 301.6231(a)(7)–1T [Correctly

redesignated from § 301.6231(a)(7)–1]

Par. 2. Section 301.6231(a)(7)–1 is

redesignated as § 301.6231(a)(7)–1T.

As published, the temporary regulations (T.D. 8128) contains an error

which may prove to be misleading and

is in need of clarification.

Michael L. Slaughter,

Acting Chief, Regulations Unit,

Assistant Chief Counsel (Corporate).

List of Subjects in 26 CFR Part 301

(Filed by the Office of the Federal Register on

July 18, 1996, 8:45 a.m., and published in the

issue of the Federal Register for July 19, 1996, 61

F.R. 37683)

Employment taxes, Estate taxes, Ex-

7

Part IV. Items of General Interest

Notice of Proposed Rulemaking

and Notice of Public Hearing

Allocation of Loss on Disposition of

Stock

INTL–4–95

AGENCY: Internal Revenue Service

(IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

SUMMARY: This document contains

proposed Income Tax Regulations relating to the allocation of loss realized on

the disposition of stock. These regulations will affect United States and foreign shareholders of stock in domestic

and foreign corporations. The regulations are necessary to modify existing

guidance with respect to stock losses.

This document also contains a notice of

public hearing on the regulations.

DATES: Written comments must be received by October 7, 1996. Outlines of

topics to be discussed at the public

hearing scheduled for November 6,

1996, at 10 a.m. must be received by

October 16, 1996.

ADDRESSES: Send submissions to:

CC:DOM:CORP:R (INTL–4–95), room

5228, Internal Revenue Service, POB

7604, Ben Franklin Station, Washington

DC 20044. In the alternative, submissions may be hand delivered between

the hours of 8 a.m. and 5 p.m. to:

CC:DOM:CORP:R (INTL–4–95), Courier’s Desk, Internal Revenue Service,

1111 Constitution Avenue NW., Washington DC. The public hearing will be

held in room 2615, Internal Revenue

Building, 1111 Constitution Avenue

NW., Washington, DC.

FOR FURTHER INFORMATION

CONTACT: Concerning the regulations,

Seth B. Goldstein, (202) 622–3850; concerning submissions and the hearing,

Evangelista Lee, (202) 622–7190 (not

toll-free numbers).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

The collection of information contained in this notice of proposed

rulemaking has been submitted to the

Office of Management and Budget for

review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.

3507).

1996–36

I.R.B.

Comments on the collection of information should be sent to the Office of

Management and Budget, Attn: Desk

Officer for the Department of Treasury,

Office of Information and Regulatory

Affairs, Washington, DC 20503, with

copies to the Internal Revenue Service,

Attn: IRS Reports Clearance Officer,

T:FP, Washington, DC 20224. Comments on the collection of information

should be received by September 6,

1996.

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 collection of information under

section 865(j)(1) is in § 1.865–2(e)(2)(ii). The proposed regulations provide

that in order for taxpayers to elect

retroactive application of the regulations,

taxpayers must comply with the reporting requirements contained in § 1.865–

2(e)(2)(ii). This information is required

by the IRS as a condition for a taxpayer

to elect to apply the rules of § 1.865–2

retroactively. This information will be

used to determine whether a taxpayer

properly applied the regulations. The

respondents generally will be U.S. corporations or individuals that sell or

otherwise dispose of stock in a foreign

corporation of which the seller owns

more than 10% of the vote or value.

Books or records relating to a collection 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.

Estimated total annual reporting burden: 4,000 hours. The estimated annual

burden per respondent varies from 1

hour to 5 hours, depending on individual

circumstances, with an estimated average of 2 hours.

Estimated number of respondents:

2,000.

Estimated annual frequency of responses: Once.

Background

This document contains proposed

regulations amending the Income Tax

Regulations (26 CFR Part 1) under

sections 861, 865, and 904 of the Internal Revenue Code. These regulations are

8

also issued under authority contained in

section 7805 of the Internal Revenue

Code.

Explanation of Provisions

This notice of proposed rulemaking

provides rules under section 865(j) relating to the treatment of losses from the

sale or other disposition of stock.

Section 1.865–1 provides that the allocation of loss on the disposition of

property not governed by § 1.865–2

continues to be governed by the generally applicable rules of § 1.861–8, except as provided in other administrative

pronouncements. For example, Notice

89–58 (1989–1 C.B. 699) remains in

effect with respect to losses described in

that Notice. The treatment of portfolio

stock, which is excluded from § 1.865–

2, will be reviewed in the context of a

broader project dealing with similar

portfolio investments, including debt instruments and derivative financial products. Allocation of loss on the disposition of stock of a regulated investment

company and stock of an S corporation

also will continue to be governed by

§§ 1.861–8(e)(7)(i) and (ii).

Section 1.865–2(a) provides the general rule that stock losses are allocated

in the same manner as stock gains

(determined without regard to sections

1248 and 865(f)). Thus, stock loss generally is allocated to the residence of the

seller. Loss recognized by a United

States resident on the disposition of

stock attributable to a foreign branch is

allocated to foreign source income if a

gain would have been taxable by the

foreign country and the highest marginal

rate of tax imposed in that foreign

country is at least 10 percent. Loss

recognized by a nonresident alien individual or foreign corporation with respect to stock constituting a United

States real property interest reduces

United States source income, in accordance with section 897.

Section 1.865–2(b) provides exceptions to the general rule. Section 1.865–

2(b)(1) provides a dividend recapture

rule that applies to losses realized on a

disposition of stock within 24 months

following the inclusion of a dividend or

similar amount. To the extent of the

dividend recapture amount, the loss shall

be allocated to the same class of income

as the dividend. Under a de minimis

rule, the recapture rule will not apply if

the sum of all dividend recapture

amounts is less than 10 percent of the

realized loss.

A dividend recapture amount includes

an actual dividend, a subpart F or

qualified electing fund inclusion attributable to a dividend received by a controlled foreign corporation in a separate

limitation category other than that for

passive income, and an inclusion attributable to section 956 or 956A. Dividends from foreign corporations, which

often are sheltered from United States

tax by foreign tax credits and do not

reduce the shareholder’s basis in the

stock, may reduce the selling price of

the stock, thereby creating or increasing

a loss on sale. Similarly, the identified

subpart F inclusions may increase the

shareholder’s stock basis without substantially affecting the value of the

stock, offering similar opportunities to

create a tax mismatch from an economic

‘‘wash’’ by pairing tax-sheltered foreign

source inclusions and United States

source loss.

Section 1.865–2(b)(2) provides a consistency rule requiring generally that

loss recognized on the disposition of an

80%-owned foreign affiliate reduces foreign source passive income if, within

the past five years, the seller or any

member of its consolidated group recognized gain on the disposition of a foreign affiliate that was sourced under

section 865(f). In order to provide relief

for taxpayers that could have taken steps

to avoid section 865(f) treatment on

gain sales occurring prior to the publication of these proposed regulations, the

five-year lookback period will be phased

in so that losses will be tainted only by

reason of gains recognized after September 6, 1996.

Section 1.865–2(b)(3) provides antiabuse rules designed to prevent taxpayers from changing the allocation of a

loss with respect to stock or other

property by entering into certain transactions.

Section 1.865–2(c) provides rules of

general application. Section 1.865–

2(c)(1) provides that a partner’s distributive share of loss resulting from a

disposition of stock by a partnership is

allocated as if the partner disposed of

the stock. In an appropriate case the loss

may be attributable to a fixed place of

business of the partnership rather than to

the partner’s residence.

Section 1.865–2(c)(2) provides that

worthlessness shall be treated as a disposition for purposes of the stock loss

allocation rules.

Section 1.865–2(d) provides definitions.

Under § 1.865–2(e), the regulations

are proposed to be effective for taxable

years beginning after 60 days after the

date final regulations are published in

the Federal Register. However, a taxpayer may elect to apply the regulations

retroactively to stock losses in all open

post-1986 taxable years. A taxpayer generally may make the election by attaching a statement to an original or

amended federal income tax return filed

after final regulations are published in

the Federal Register. However, the

election will not be effective unless

amended returns are filed within 120

days of the date final regulations are

published in the Federal Register.

Section 1.904–4(c) is proposed to be

amended to provide rules specifically

addressing the treatment of loss allocated to the section 904(d) separate

category for passive income. The proposed amendments provide that, for purposes of the grouping rules relating to

the high-tax kick-out described in section 904(d)(2)(F), a passive loss is initially allocated to a group based on the

foreign tax that was, or would have

been, imposed on the transaction had the

sale resulted in a gain under foreign law.

If, after allocation and apportionment of

all deductions, net income in a group is

less than zero, any taxes imposed with

respect to the group are considered

related to general limitation income. The

net loss is not considered related to

general limitation income, but proportionately reduces income in the other

passive income groups. The determination of whether income in the positive

income groups is high-taxed is made

after this allocation of loss groups. Any

net loss in the section 904(d) separate

category for passive income constitutes

a separate limitation loss governed by

section 904(f)(5).

Special Analyses

It has been determined that this notice

of proposed rulemaking is not a significant regulatory action as defined in

Executive Order 12866. Therefore, a

regulatory assessment is not required. It

is hereby certified that these regulations

do not have a significant economic

impact on a substantial number of small

entities. This certification is based on

the fact that these regulations will primarily affect U.S. owners of significant

interests in foreign corporations, which

owners generally are large multinational

9

corporations. This certification is also

based upon the fact that, even in cases

in which the regulation applies to small

entities, the burden imposed by the

collection of information in the regulation, which is merely an election to

apply the regulation to prior taxable

years, is not substantial and, therefore,

the collection of information will not

impose a significant economic impact

on such entities. Therefore, a Regulatory

Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6)

is not required. Pursuant to section

7805(f) of the Internal Revenue Code,

this notice of proposed rulemaking will

be submitted to the Chief Counsel for

Advocacy of the Small Business Administration for comment on their impact on

small business.

Comments and Public Hearing

Before these proposed regulations are

adopted as final regulations, consideration will be given to any written comments (signed original and eight (8)

copies) that are timely submitted to the

IRS. All comments will be available for

public inspection and copying.

A public hearing has been scheduled

for November 6, 1996, at 10 a.m., in

room 2615, Internal Revenue Building,

1111 Constitution Avenue NW., Washington DC. Because of access restrictions, visitors will not be admitted beyond the building lobby more than 15

minutes before the hearing starts.

The rules of 26 CFR 601.601(a)(3)

apply to the hearing. Persons that wish

to present oral comments at the hearing

must submit written comments by October 7, 1996 and submit an outline of

topics to be discussed and time to be

devoted to each topic (signed original

and eight (8) copies) by October 16,

1996.

A period of 10 minutes will be allotted to each person for making comments.

An agenda showing the scheduling of

the speakers will be prepared after the

deadline for receiving outlines has

passed. Copies of the agenda will be

available free of charge at the hearing.

Drafting Information

The principal author of these regulations is Seth B. Goldstein, of the Office

of the Associate Chief Counsel (International), IRS. However, other personnel

from the IRS and Treasury Department

participated in their development.

1996–36

I.R.B.

Adoption of Amendments to the Regulations

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

PART 1—INCOME TAXES

Paragraph 1. The authority citation for

part 1 is amended by adding entries in

numerical order to read as follows:

Authority: 26 U.S.C. 7805 * * *

Section 1.865–1 is also issued under

26 U.S.C. 865(j)(1).

Section 1.865–2 is also issued under

26 U.S.C. 865(j)(1).

Par. 2. Section 1.861–8 is amended by

adding paragraph (e)(7)(iii) to read as

follows: § 1.861–8 Computation of taxable income from sources within the

United States and from other sources

and activities.

*

*

*

*

*

(e) * * *

(7) * * *

(iii) Special rules for allocation of

loss from disposition of stock. See

§ 1.865–2 for special rules regarding

the allocation of loss recognized on

certain dispositions of stock in taxable

years beginning after December 31,

1986.

Par. 3. Sections 1.865–1 and 1.865–2

are added under the undesignated center heading, DETERMINATION OF

SOURCES OF INCOME, to read as

follows:

§ 1.865–1 Loss from the disposition of

personal property.

Allocation of loss on the sale or other

disposition of portfolio stock, stock of a

regulated investment company (as defined in section 851), stock of an S

corporation (as defined in section 1361),

and other personal property not governed by § 1.865–2 is governed by

§ 1.861–8 or other administrative pronouncements. Portfolio stock is, with

respect to a taxpayer, stock in a corporation in which the taxpayer owns, or is

considered to own under the rules of

section 267(c), less than 10 percent of

the total combined voting power of all

classes of stock entitled to vote of such

corporation and less than 10 percent of

the total value of the stock of such

corporation.

§ 1.865–2 Loss from the disposition of

certain stock.

(a) General rules for allocation of

loss on disposition of stock—(1) Allocation against gain. Except as otherwise

1996–36

I.R.B.

provided in § 1.865–1 and paragraph

(b) of this section, loss recognized on

the sale or other disposition of stock

shall be allocated to the class of gross

income and, if necessary, apportioned

between the statutory grouping of gross

income (or among the statutory groupings) and the residual grouping of gross

income, with respect to which gain

(other than gain treated as a dividend

under section 1248) from the sale of

such stock would give rise in the hands

of the seller (without regard to section

865(f)). For purposes of section 904,

any such loss shall be allocated to the

separate category to which such gain

would have been assigned (without regard to section 904(d)(2)(A)(iii)(III)).

For purposes of § 1.904–4(c)(2)(ii)(A),

any loss allocated to passive income

shall be allocated (prior to the application of § 1.904–4(c)(2)(ii)(B)) to the

group of passive income to which gain

on the sale would have been assigned if

the sale of the stock had resulted in the

recognition of a gain under the law of

the relevant foreign jurisdiction or jurisdictions. See section 904(f)(5) and the

regulations under that section for rules

regarding the treatment of separate limitation losses.

(2) Stock attributable to foreign office. Except as otherwise provided in

§ 1.865–1 and paragraph (b) of this

section, in the case of loss on the sale or

other disposition of stock (other than

stock constituting inventory) by a

United States resident that is attributable

to an office or other fixed place of

business in a foreign country within the

meaning of section 865(e)(3), the loss

shall be allocated to reduce foreign

source income if a gain would have

been taxable by the foreign country and

the highest marginal rate of tax imposed

in the foreign country is at least 10

percent.

(3) Stock constituting a United States

real property interest. Loss recognized

by a nonresident alien individual or a

foreign corporation on the sale or other

disposition of stock that constitutes a

United States real property interest shall

be allocated to reduce United States

source income. For additional rules governing the treatment of such loss, see

section 897 and the regulations thereunder.

(b) Exceptions—(1) Dividend recapture exception—(i) In general. Except as

otherwise provided in § 1.865–1, if a

taxpayer realizes a loss on a disposition

of stock, and the taxpayer included in

income a dividend recapture amount (or

10

amounts) with respect to such stock at

any time during the recapture period,

then, to the extent of the dividend

recapture amount (or amounts), the loss

shall be allocated and apportioned on a

proportionate basis to the class or

classes of gross income or the statutory

or residual grouping or groupings of

gross income to which the dividend

recapture amount was assigned.

(ii) Exception for de minimis

amounts. Paragraph (b)(1)(i) of this section shall not apply to a loss realized by

a taxpayer on the disposition of stock if

the sum of all dividend recapture

amounts included in income by the

taxpayer with respect to such stock

during the recapture period is less than

10 percent of the realized loss.

(2) Consistency exception—(i) In

general. Except to the extent provided

in paragraph (b)(1) of this section, loss

recognized by a taxpayer with respect to

the sale or other disposition of stock of

a foreign affiliate (or of a corporation

that was a foreign affiliate within the

five-year period preceding the date of

the sale) or a foreign affiliate holding

company shall be allocated to reduce

foreign source income if the taxpayer

(or, in the case of a taxpayer that is a

member of a consolidated group (within

the meaning of § 1.1502–1(h)) at the

time the loss is recognized, the consolidated group) recognized gain on the

disposition of any stock that was

sourced under section 865(f) within the

five-year period ending on the last day

of the taxable year in which the loss

was recognized. See paragraph (a)(1) of

this section for rules relating to the

allocation of the loss to separate categories described in section 904(d).

(ii) Phased-in lookback period. The

rule of paragraph (b)(2)(i) of this section

shall apply only if gain sourced under

section 865(f) was recognized after September 6, 1996.

(3) Anti-abuse rules. If one of the

principal purposes of a reorganization

within the meaning of section 368(a),

liquidation under section 332, transfer to

a corporation under section 351, transfer

to a partnership under section 721,

transfer to a trust, distribution by a

partnership, distribution by a trust, or

transfer to or from a qualified business

unit (within the meaning of section

989(a)) is to change the allocation of a

built-in loss on the disposition of stock

(or other personal property), the loss

shall be allocated as if it were recognized on the disposition of the stock (or

other personal property) immediately

prior to the reorganization, liquidation,

transfer, or distribution. In addition, if a

loss recognized by a taxpayer with respect to the sale or other disposition of

stock in a corporation is primarily attributable to loss with respect to one or

more financial instruments held by the

corporation, and one of the taxpayer’s

principal purposes for holding the financial instrument or instruments through

the corporation is to allocate loss under

§ 1.865–2, the stock loss shall be allocated under § 1.865–1 as if it were

recognized on the disposition of such

financial instrument or instruments.

Whether a taxpayer has a principal

purpose to allocate loss under § 1.865–

2 shall be determined by taking into

account all the facts and circumstances,

including whether the corporation engages in business activities (other than

trading financial instruments) and

whether the taxpayer or any related

person or persons (within the meaning

of section 267(b) or 954(d)(3)) hold

positions that offset loss positions held

by the corporation. For purposes of this

paragraph (b)(3), positions are offsetting

if the risk of loss of holding one or

more positions is substantially diminished by holding one or more other

positions. A person may have a principal

purpose of affecting loss allocation even

though this purpose is outweighed by

other purposes (taken together or separately).

(4) Example. The application of this

paragraph (b) may be illustrated by the

following example:

Example. (i) P, a domestic corporation, is a

United States shareholder of N, a controlled

foreign corporation. N has never had any subpart

F income and all of its earnings and profits are

described in section 959(c)(3). On August 5, 1997,

N distributes a dividend to P in the amount of

$100. The dividend gives rise to a $5 foreign

withholding tax, and P is deemed to have paid an

additional $45 of foreign income tax with respect

to the dividend under section 902. Under section

904(d)(3) the dividend is general limitation income

described in section 904(d)(1)(I).

(ii) On February 6, 1998, P sells its shares of N

and recognizes a $110 loss. In 1998, P has the

following taxable income, excluding the loss on

the sale of N:

(A) $1,000 of foreign source income that is

general limitation income described in section

904(d)(1)(I), which is subject to foreign taxes of

$400;

(B) $1,000 of foreign source capital gain that is

passive income described in section 904(d)(1)(A)

attributable to gain on the sale of stock in a

foreign affiliate that is sourced under section

865(f), which is subject to foreign taxes of $30.

(iii) The $100 dividend paid in 1997 is a

dividend recapture amount that was included in

P’s income within the recapture period preceding

the disposition of the N stock. The de minimis

exception of paragraph (b)(1)(ii) of this section

does not apply because the $100 dividend recapture amount exceeds 10 percent of the $110 loss.

Therefore, to the extent of the $100 dividend

recapture amount, the loss must be allocated under

paragraph (b)(1)(i) of this section to the separate

limitation category to which the dividend was

assigned (general limitation income).

(iv) Because P recognized gain on the sale of

stock in a foreign affiliate that was sourced under

section 865(f) within the period described in

paragraph (b)(2)(i) of this section, P’s remaining

$10 loss on the disposition of the N stock is

allocated to foreign source passive income under

paragraph (b)(2)(i) of this section.

(v) After allocation of the stock loss, P’s taxable income in 1998 consists of $900 of foreign

source general limitation income and $990 of

foreign source passive income.

(c) Rules of application—(1) Loss

recognized by partnership. A partner’s

distributive share of loss resulting from

the sale or other disposition of stock by

a partnership shall be allocated and

apportioned in accordance with this section as if the partner had disposed of the

stock. If a sale of stock is attributable to

an office or other fixed place of business of the partnership within the meaning of section 865(e)(3), such office or

fixed place of business shall be considered to be an office of the partner for

purposes of this section.

(2) Worthless stock. For purposes of

this section, worthlessness giving rise to

a deduction under section 165(g) (including section 165(g)(3)) with respect

to stock shall be treated as a disposition.

(d) Definitions—(1) Terms defined in

§ 1.861–8. See § 1.861–8 for the meaning of class of gross income, statutory

grouping of gross income, and residual

grouping of gross income.

(2) Dividend recapture amount. A

dividend recapture amount is a dividend

(except for an amount treated as a

dividend under section 78), an inclusion

described in section 951(a)(1)(A)(i) (but

only to the extent attributable to a

dividend included in the earnings of a

controlled foreign corporation that is

included in foreign personal holding

company income under section 954(c)(1)(A) and that, pursuant to section

904(d)(3)(B), is treated as income in a

separate category other than the separate

category for passive income described in

section 904(d)(2)(A)), an inclusion described in section 951(a)(1)(B) or (C),

and an inclusion described in section

1293(a)(1) (but only to the extent attributable to a dividend that is included in

the earnings of a qualified electing fund

and that, pursuant to section 904(d)(3)(I), is treated as income in a separate

category other than the separate cat-

11

egory for passive income described in

section 904(d)(2)(A)).

(3) Foreign affiliate. A foreign affiliate is a foreign corporation that is a

member of the affiliated group (within

the meaning of section 1504(a) without

regard to section 1504(b)) that includes

the taxpayer.

(4) Foreign affiliate holding company. A foreign affiliate holding company is any corporation, substantially all

the assets of which consist of stock of

one or more foreign affiliates, held

directly or indirectly. For purposes of

this paragraph, any assets acquired or

held by a corporation with a principal

purpose of avoiding foreign affiliate

holding company status shall be disregarded.

(5) Recapture period. A recapture period is the 24-month period preceding

the date on which a taxpayer realizes a

loss on a disposition of stock, increased

by any period of time in which the

taxpayer has diminished its risk of loss

in a manner described in section

246(c)(4) and the regulations thereunder.

(6) Taxpayer. A taxpayer shall include

all predecessors or successors of the

taxpayer.

(7) United States resident. See section 865(g) and the regulations thereunder for the definition of United States

resident.

(e) Effective date—(1) In general.

This section is effective for taxable

years beginning after the date that is 60

days after the date these regulations are

published as final regulations in the

Federal Register.

(2) Prior year election—(i) In general. A taxpayer may elect to apply the

rules of this section to all (but not less

than all) of its taxable years that begin

after December 31, 1986, and on or

before the date that is 60 days after the

date these regulations are published as

final regulations in the Federal Register, and with respect to which the

statute of limitations expires after the

date that is 120 days after the date these

regulations are published as final regulations in the Federal Register. The election shall be effective only if the taxpayer satisfies all the applicable

requirements specified in paragraph

(e)(2)(ii) of this section.

(ii) Requirements for election—(A)

Statement filed with original or

amended return. For each taxable year

subject to the election, a taxpayer shall

file an original or amended federal income tax return that reflects the rules of

this section and includes the statement

1996–36

I.R.B.

described in paragraph (e)(2)(ii)(C) of

this section. Amended returns filed pursuant to this section must be filed on or

before the date that is 120 days after the

date these regulations are published as

final regulations in the Federal Register.

(B) Presentation of statement upon

audit. A taxpayer that is under examination with respect to any taxable year

subject to the election on the date that is

120 days after the date these regulations

are published as final regulations in the

Federal Register must furnish a copy

of the statement described in paragraph

(e)(2)(ii)(C) of this section for all years

subject to the election to the revenue

agent responsible for examining its federal income tax returns on or before the

date that is 140 days after the date these

regulations are published as final regulations in the Federal Register. For purposes of this paragraph (e)(2)(ii)(B), a

taxpayer is under examination beginning

on the date the taxpayer (or any member

of the consolidated group of which the

taxpayer is a member) has been contacted in any manner by a representative

of the Internal Revenue Service for the

purpose of scheduling any type of examination of any of its federal income

tax returns and ending on the earliest of

the date: the taxpayer (or consolidated

group of which the taxpayer is a member) receives a ‘‘no change’’ letter; the

taxpayer (or consolidated group of

which the taxpayer is a member) pays

the deficiency (or proposed deficiency);

or on which a deficiency, jeopardy,

termination, bankruptcy, or receivership

assessment is made. An electing taxpayer that is not under examination with

respect to any taxable year subject to

the election on the date that is 120 days

after the date these regulations are published as final regulations in the Federal

Register and is contacted thereafter by a

representative of the Internal Revenue

Service for the purpose of scheduling

any type of examination of any of its

federal income tax returns for a year

subject to the election must furnish a

copy of the statement described in paragraph (e)(2)(ii)(C) of this section for all

years subject to the election to the

revenue agent responsible for examining

its federal income tax returns within 20

days of being contacted.

(C) Contents of statement. The statement shall be entitled ‘‘ELECTION UNDER § 1.865–2(e)(2) TO APPLY RETROACTIVELY § 1.865–2 STOCK

LOSS ALLOCATION RULES.’’ The

statement shall identify, for the taxable

1996–36

I.R.B.

year subject to the election, each loss

from the disposition of stock that is

subject to this section and that was

incurred by the taxpayer or by any

controlled foreign corporation (within

the meaning of section 953(c)(1)(B) or

957) with respect to which the taxpayer

is a United States shareholder (within

the meaning of section 951(b) or

953(c)(1)(A)). For each such loss, the

statement shall provide the name and

identifying number of the entity that

incurred the loss, the amount of the loss,

and the paragraph of this section under

which the loss is allocated. Each loss

subject to paragraph (b)(1) of this section shall be separately identified with a

notation stating ‘‘Subject to dividend

recapture under § 1.865–2(b)(1).’’ The

statement shall also include the following declaration: ‘‘No losses, other than

those so identified herein, are subject to

§ 1.865–2(b)(1).’’ The statement shall

indicate whether the taxpayer or any

controlled foreign corporation (within

the meaning of section 953(c)(1)(B) or

957) with respect to which the taxpayer

is a United States shareholder (within

the meaning of section 951(b) or

953(c)(1)(A)) acquired the stock after

July 8, 1996, as a result of a transaction

described in paragraph (b)(3) of this

section (regardless of the purpose or

purposes of the transaction). An election

shall not be effective unless each statement required by this paragraph

(e)(2)(ii) contains all the information

specified herein.

Par. 4. Section 1.904–0 is amended

by revising the entry for § 1.904–

4(c)(2)(ii) and adding entries for paragraphs (c)(2)(ii)(A) and (B) of that

section to read as follows:

§ 1.904–0 Outline of regulation provisions for section 904.

*

*

*

*

*

§ 1.904–4 Separate application of section 904 with respect to certain categories of income.

*

*

*

*

*

(c) * * *

(2) * * *

(ii) Grouping rules.

(A) Initial allocation and apportionment of deductions.

(B) Reallocation of loss groups.

Par. 5. Section 1.904–4 is amended

by revising paragraphs (c)(1) and (c)(2)

and adding paragraph (c)(8) Example 11

and Example 12 to read as follows:

(c) High-taxed income—(1) In general. Income received or accrued by a

12

United States person that would otherwise be passive income shall not be

treated as passive income if the income

is determined to be high-taxed income.

Income shall be considered to be hightaxed income if, after allocating expenses, losses and other deductions of

the United States person to that income

under paragraph (c)(2)(ii) of this section,

the sum of the foreign income taxes

paid or accrued by the United States

person with respect to such income and

the foreign taxes deemed paid or accrued by the United States person with

respect to such income under section

902 or section 960 exceeds the highest

rate of tax specified in section 1 or

section 11, whichever applies (and with

reference to section 15 if applicable),

multiplied by the amount of such income (including the amount treated as a

dividend under section 78). If, after

application of this paragraph (c), income

that would otherwise be passive income

is determined to be high-taxed income,

such income shall be treated as general

limitation income, and any taxes imposed on that income shall be considered related to general limitation income

under § 1.904–6. If, after application of

this paragraph (c), passive income is

less than zero, the loss shall constitute a

passive separate limitation loss (subject

to the rules of section 904(f)(5) and the

regulations under that section), but any

taxes imposed on passive income shall

be considered related to general limitation income under § 1.904–6. For additional rules regarding losses related to

passive income, see paragraph (c)(2) of

this section. Income and taxes shall be

translated at the appropriate rates, as

determined under sections 986, 987 and

989 and the regulations under those

sections, before application of this paragraph (c). For purposes of allocating

taxes to groups of income, United States

source passive income is treated as any

other passive income. In making the

determination whether income is hightaxed, however, only foreign source income, as determined under United States

tax principles, is relevant. See paragraph

(c)(8) Examples (10), (11) and (12) of

this section for examples illustrating the

application of this paragraph (c)(1) and

paragraph (c)(2) of this section.

(2) Grouping of items of income in

order to determine whether passive income is high-taxed income—(i) Effective

date. For purposes of determining

whether passive income is high-taxed

income, the grouping rules of paragraphs (c)(3), (c)(4), and (c)(5) of this

section apply to taxable years beginning

after December 31, 1987. See notice

87–6 for the grouping rules applicable

to taxable years beginning after December 31, 1986 and before January 1,

1988. Paragraph (2)(ii)(B) of this section

is effective for taxable years beginning

after the date that is 60 days after the

date these regulations are published as

final regulations in the Federal Register.

(ii) Grouping rules(A) Initial allocation and apportionment of deductions.

For purposes of determining whether

passive income is high-taxed, expenses,

losses and other deductions shall be

allocated and apportioned initially to

each of the groups of passive income

(described in paragraphs (c)(3), (4), and

(5) of this section) under the rules of

§§ 1.861–8 through 1.861–14T, 1.865–

1, and 1.865–2. Taxpayers that allocate

and apportion interest expense on an

asset basis may nevertheless apportion

passive interest expense among the

groups of passive income on a gross

income basis. If loss from the disposition of property gives rise to foreign tax

(e.g., the transaction giving rise to the

loss is treated under foreign law as

having given rise to a gain), the foreign

tax shall be allocated to the group of

passive income to which the loss is

allocated under this paragraph (c)(2)(ii)(A), without regard to paragraph

(c)(2)(ii)(B) of this section. A determination of whether passive income is hightaxed shall be made only after application of paragraph (c)(2)(ii)(B) of this

section (if applicable).

(B) Reallocation of loss groups. If,

after allocation and apportionment of

expenses, losses and other deductions

under paragraph (c)(2)(ii)(A) of this section, the sum of the allocable deductions

exceeds the gross income in one or

more groups, the excess deductions shall

proportionately reduce income in the

other groups (but not below zero), and

any taxes imposed with respect to such

loss group or groups shall be considered

related to general limitation income.

*

*

*

*

*

(8) * * *

Example 11. P, a domestic corporation, earns

the following items of gross income: $100 of

foreign source, passive limitation interest income

not subject to any foreign tax, $200 of foreign

source, passive limitation royalty income subject

to a 5 percent foreign withholding tax (foreign tax

paid is $10), $1300 of foreign source, passive

limitation rental income subject to a 25 percent

foreign withholding tax (foreign tax paid is $325),

$500 of foreign source, general limitation income

that gives rise to a $250 foreign tax, and $2000 of

U.S. source capital gain that is not subject to any

foreign tax. P has a $700 deduction allocable to its

passive rental income. P’s only other deduction is

a $500 capital loss on a sale of stock that is

allocated to foreign source passive limitation income under § 1.865–2(b)(2). If P had recognized

a gain on the stock sale under foreign law, the

gain would not have been subject to foreign tax.

The $500 capital loss is initially allocated to the

group of passive income not subject to any foreign

tax, and the $400 amount by which the capital

loss exceeds the income in the group must be

reapportioned to the other groups under paragraph

(c)(2)(ii)(B) of this section. The net royalty income is thus reduced by $100 to $100 ($200 2

($400 x (200/800))) and the net rental income is

reduced by $300 to $300 ($1300 2 $700 2 ($400

x (600/800))). The $100 net royalty income is not

high-taxed and remains passive income. The $300

net rental income is high-taxed because the foreign

taxes exceed the highest United States rate of tax

on that income. Under the high-tax kick-out, the

$300 of net rental income (the gross rental income

and expenses allocated and apportioned thereto)

and the $325 of associated foreign tax are assigned to the general limitation category.

Example 12. The facts are the same as in

Example 11 except the amount of the capital loss

that is allocated under § 1.865–2(b)(2) and paragraph (c)(2) of this section to the group of foreign

source passive income subject to no foreign tax is

$1100. Under paragraph (c)(2)(ii)(B) of this section, the excess deductions of $1000 must be

reapportioned to the $200 of net royalty income

subject to a 5% withholding tax and the $600 of

net rental income subject to a 25% withholding

tax. The income in each of these groups is reduced

to zero, and the foreign taxes imposed on the

rental and royalty income are considered related to

general limitation income. The remaining loss of

($200) constitutes a separate limitation loss with

respect to passive income.

*

*

*

*

*

Margaret Milner Richardson,

Commissioner of Internal Revenue.

(Filed by the Office of the Federal Register on

July 5, 1996, 8:45 a.m., and published in the issue

of the Federal Register for July 8, 1996, 61 F.R.

35696)

Qualified Small Business Stock;

Correction

Announcement 96–81

AGENCY: Internal Revenue Service

(IRS), Treasury.

ACTION: Correction to notice of proposed rulemaking and notice of public

hearing.

SUMMARY: This document contains

corrections to notice of proposed

rulemaking and notice of public hearing

(IA–26–94 [1996–30 I.R.B. 24]) which

was published in the Federal Register on Thursday, June 6, 1996 (61 FR

28821). The notice of proposed

rulemaking and notice of public hearing

relates to the 50-percent exclusion for

gain from certain small business stock.

13

FOR FURTHER INFORMATION CONTACT: Catherine A. Prohofsky (202)

622–4930 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

The notice of proposed rulemaking

that is subject to these corrections are

under section 1202 of the Internal Revenue Code.

Need for Correction

As published, the notice of proposed

rulemaking and notice of public hearing

(IA–26–94) contain errors which may

prove to be misleading and are in need

of clarification.

Correction of Publication

Accordingly, the publication of proposed rulemaking (IA–26–94) which is

the subject of FR Doc. 96–14231 is

corrected as follows:

1. On page 28821, column 3, in the

preamble, under the caption ‘‘DATES:’’,

lines 3 and 4, the language ‘‘public

hearing scheduled for October 3, 1996

must be’’ is corrected to read ‘‘public

hearing scheduled for October 3, 1996,

must be’’.

§ 1.1202–0 [Corrected]

2. On page 28822, column 3,

§ 1.1202–0, table of contents, the entries for paragraphs (b)(1) and (2) under

§ 1.1202–2, are corrected to read as

follows:

§ 1.1202–0 Table of contents.

*

*

*

*

*

§ 1.1202–2 Qualified Small Business

Stock; Effect of Redemptions.

*

*

*

*

*

(b) * * *

(1) In general.

(2) De minimis amount.

*

*

*

*

*

Cynthia E. Grigsby,

Chief, Regulations Unit,

Assistant Chief Counsel (Corporate).

(Filed by the Office of the Federal Register on

July 25, 1996, 8:45 a.m., and published in the

issue of the Federal Register for July 26, 1996, 61

F.R. 39104)

1996–36

I.R.B.

Transfers to Investment

Companies; Correction

Announcement 96–82

AGENCY: Internal Revenue Service,

Treasury.

ACTION: Correction to final regulations.

SUMMARY: This document contains a

correction to final regulations (T.D.

8663 [1996–23 I.R.B. 4]) which were

published in the Federal Register on

Thursday, May 2, 1996 (61 FR 19544).

The final regulations concern the treatment of certain transfers to a controlled

corporation.

Computation of Combined Taxable

Income Under the Profit Split

Method When the Possession

Product Is a Component Product or

an End-Product Form for Purposes

of the Possessions Credit Under

Section 936; Correction

Announcement 96–83

AGENCY: Internal Revenue Service

(IRS), Treasury.

ACTION: Correction to final regulations.

FOR FURTHER INFORMATION CONTACT: Andrew M. Eisenberg, (202)

622–7790 (not a toll-free number).

SUMMARY: This document contains

corrections to final regulations (T.D.

8669 [1996–23 I.R.B. 6]) which were

published in the Federal Register on

Friday, May 10, 1996 (61 FR 21366).

The final regulations relate to the computation of combined taxable income

under the profit split method.

SUPPLEMENTARY INFORMATION:

EFFECTIVE DATE: May 10, 1996

Background

FOR FURTHER INFORMATION

CONTACT: Jacob Feldman (202) 622–

3870 (not a toll-free number).

EFFECTIVE DATE: May 2, 1996

The final regulations that are the

subject of this correction are under

section 351 of the Internal Revenue

Code.

Need for Correction

Correction of Publication

Need for Correction

Accordingly, the publication of the

final regulations which are the subject

of FR Doc. 96–10394 is corrected as

follows:

As published, the final regulations

[T.D. 8669] contain errors which may

prove to be misleading and are in need

of clarification.

Cynthia E. Grigsby,

Chief, Regulations Unit,

Assistant Chief Counsel (Corporate).

(Filed by the Office of the Federal Register on

June 25, 1996, 8:45 a.m., and published in the

issue of the Federal Register for June 26, 1996, 61

F.R. 39072)

1996–36

I.R.B.

3. On page 21368, § 1.936–6, in

paragraph (b)(1), in A. 12 (iv) in the

table, under the heading ‘‘Production

costs (excluding costs of materials):’’,

item 3, the language ‘‘3. P’s costs for

the CPU’s (the possession product)’’ is

corrected to read ‘‘3. P’s costs for the

CPUs (the possession product)’’.

4. On page 21369, column 3,

§ 1.936–6, paragraph (b)(1), under A.

12 (vii), line 3, the language ‘‘ending 30

days after May 10, 1996. If’’ is corrected to read ‘‘ending after June 9,

1996. If’’.

Cynthia E. Grigsby,

Chief, Regulations Unit,

Assistant Chief Counsel (Corporate).

(Filed by the Office of the Federal Register on

July 25, 1996, 8:45 a.m., and published in the

issue of the Federal Register for July 26, 1996, 61

F.R. 39071)

Diversification of Common Trust

Funds; Correction

Background

The final regulations that are subject

to these corrections are under section

936 of the Internal Revenue Code.

On page 19545, column 3, in amendatory instruction ‘‘Paragraph 1.’’, lines

1 and 2, the language ‘‘Paragraph 1. The

authority citation for part 1 continues to

read as follows:’’ is corrected to read

‘‘Paragraph 1. The authority citation for

part 1 is amended by adding an entry in

numerical order to read as follows:’’.

§ 1.936–6 [Corrected]

SUPPLEMENTARY INFORMATION:

As published, T.D. 8663 contains an

error that is in need of correction.

Part 1 [Corrected]

10, 1996. If’’ is corrected to read ‘‘regulations apply to taxable years ending

after June 9, 1996. If’’.

Correction of Publication

Accordingly, the publication of the

final regulations (TD 8669) which is the

subject of FR Doc. 96–11639, is corrected as follows:

1. On page 21366, column 3, in the

preamble, following the paragraph heading ‘‘Discussion’’, the first full paragraph in the column, line 4, the language ‘‘forms under the profit-split

method’’ is corrected to read ‘‘forms

under the profit split method’’.

2. On page 21367, column 1, in the

preamble, following the paragraph heading ‘‘Discussion’’, the second full paragraph in the column, lines 12 and 13,

the language ‘‘regulation is effective for

taxable years ending 30 days after May

14

Announcement 96–84

AGENCY: Internal Revenue Service,

Treasury.

ACTION: Correction to final regulations.

SUMMARY: This document contains a

correction to final regulations (T.D.

8662 [1996–23 I.R.B. 5]) which were

published in the Federal Register on

Thursday, May 2, 1996 (61 FR 19546).

The final regulations relate to the diversification of common trust funds at the

time of a combination or division.

EFFECTIVE DATE: May 2, 1996.

FOR FURTHER INFORMATION CONTACT: Steven Schneider, (202) 622–

3060 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

The final regulations that are the

subject of this correction are under

section 584 of the Internal Revenue

Code.

Need for Correction

§ 1.584–4 [Corrected]

As published, T.D. 8662 contains an

error that is in need of correction.

On page 19547, column 1, § 1.584–

4(a), the fifteenth line from the bottom

of the paragraph, the language ‘‘participant in substantially the same as’’ is

corrected to read ‘‘participant is substantially the same as’’.

Correction of Publication

Accordingly, the publication of final

regulations which are the subject of FR

Doc 96–10393 is corrected as follows.

15

Cynthia E. Grigsby,

Chief, Regulations Unit,

Assistant Chief Counsel (Corporate).

(Filed by the Office of the Federal Register on

June 25, 1996, 8:45 a.m., and published in the

issue of the Federal Register for June 26, 1996, 61

F.R. 39072)

1996–36

I.R.B.

Definition of Terms

Revenue rulings and revenue procedures

(hereinafter referred to as ‘‘rulings’’)

that have an effect on previous rulings

use the following defined terms to describe the effect:

Amplified describes a situation where

no change is being made in a prior

published position, but the prior position

is being extended to apply to a variation

of the fact situation set forth therein.

Thus, if an earlier ruling held that a

principle applied to A, and the new

ruling holds that the same principle also

applies to B, the earlier ruling is amplified. (Compare with modified, below).

Clarified is used in those instances

where the language in a prior ruling is

being made clear because the language

has caused, or may cause, some confusion. It is not used where a position in a

prior ruling is being changed.

Distinguished describes a situation

where a ruling mentions a previously

published ruling and points out an essential difference between them.

Modified is used where the substance

of a previously published position is

being changed. Thus, if a prior ruling

held that a principle applied to A but not

to B, and the new ruling holds that it

applies to both A and B, the prior ruling

is modified because it corrects a published position. (Compare with amplified

and clarified, above).

Obsoleted describes a previously published ruling that is not considered determinative with respect to future transactions. This term is most commonly

used in a ruling that lists previously

published rulings that are obsoleted because of changes in law or regulations.

A ruling may also be obsoleted because

the substance has been included in regulations subsequently adopted.

Revoked describes situations where

the position in the previously published

ruling is not correct and the correct

position is being stated in the new

ruling.

Superseded describes a situation

where the new ruling does nothing more

than restate the substance and situation

of a previously published ruling (or

rulings). Thus, the term is used to

republish under the 1986 Code and

regulations the same position published

under the 1939 Code and regulations.

The term is also used when it is desired

to republish in a single ruling a series of

situations, names, etc., that were previously published over a period of time in

separate rulings. If the new ruling does

more than restate the substance of a

prior ruling, a combination of terms is

used. For example, modified and superseded describes a situation where the

substance of a previously published ruling is being changed in part and is

continued without change in part and it

is desired to restate the valid portion of

the previously published ruling in a new

ruling that is self contained. In this case

the previously published ruling is first

modified and then, as modified, is superseded.

Supplemented is used in situations in

which a list, such as a list of the names

of countries, is published in a ruling and

that list is expanded by adding further

names in subsequent rulings. After the

original ruling has been supplemented

several times, a new ruling may be

published that includes the list in the

original ruling and the additions, and

supersedes all prior rulings in the series.

Suspended is used in rare situations to

show that the previous published rulings

will not be applied pending some future

action such as the issuance of new or

amended regulations, the outcome of

cases in litigation, or the outcome of a

Service study.

Abbreviations

E.O.—Executive Order.

ER—Employer.

ERISA—Employee Retirement Income Security Act.

EX—Executor.

F—Fiduciary.

PHC—Personal Holding Company.

PO—Possession of the U.S.

FC—Foreign Country.

FICA—Federal Insurance Contribution Act.

Pub. L.—Public Law.

REIT—Real Estate Investment Trust.

FISC—Foreign International Sales Company.

FPH—Foreign Personal Holding Company.

F.R.—Federal Register.

FUTA—Federal Unemployment Tax Act.

FX—Foreign Corporation.

G.C.M.—Chief Counsel’s Memorandum.

GE—Grantee.

GP—General Partner.

GR—Grantor.

IC—Insurance Company.

I.R.B.—Internal Revenue Bulletin.

LE—Lessee.

LP—Limited Partner.

LR—Lessor.

Rev. Proc.—Revenue Procedure.

Rev. Rul.—Revenue Ruling.

S—Subsidiary.

S.P.R.—Statements of Procedural Rules.

Stat.—Statutes at Large.

T—Target Corporation.

T.C.—Tax Court.

T.D.—Treasury Decision.

TFE—Transferee.

TFR—Transferor.

T.I.R.—Technical Information Release.

TP—Taxpayer.

TR—Trust.

TT—Trustee.

M—Minor.

U.S.C.—United States Code.

Nonacq.—Nonacquiescence.

X—Corporation.

O—Organization.

Y—Corporation.

P—Parent Corporation.

Z—Corporation.

The following abbreviations in current use and

formerly used will appear in material published in

the Bulletin.

A—Individual.

Acq.—Acquiescence.

B—Individual.

BE—Beneficiary.

BK—Bank.

B.T.A.—Board of Tax Appeals.

C.—Individual.

C.B.—Cumulative Bulletin.

CFR—Code of Federal Regulations.

CI—City.

COOP—Cooperative.

Ct.D.—Court Decision.

CY—County.

D—Decedent.

DC—Dummy Corporation.

DE—Donee.

Del. Order—Delegation Order.

DISC—Domestic International Sales Corporation.

DR—Donor.

E—Estate.

EE—Employee.

16

PR—Partner.

PRS—Partnership.

PTE—Prohibited Transaction Exemption.

Numerical Finding List1

Bulletins 1996–27 through 1996–35

Announcements:

96–61, 1996–27 I.R.B. 72

96–62, 1996–28 I.R.B. 55

96–63, 1996–29 I.R.B. 18

96–64, 1996–29 I.R.B. 18

96–65, 1996–29 I.R.B. 18

96–66, 1996–29 I.R.B. 19

96–67, 1996–30 I.R.B. 27

96–68, 1996–31 I.R.B. 45

96–69, 1996–32 I.R.B. 38

96–70, 1996–32 I.R.B. 40

96–71, 1996–33 I.R.B. 16

96–72, 1996–33 I.R.B. 16

96–73, 1996–33 I.R.B. 18

96–74, 1996–33 I.R.B. 19

96–75, 1996–34 I.R.B. 29

96–76, 1996–34 I.R.B. 29

96–77, 1996–35 I.R.B. 15

96–78, 1996–35 I.R.B. 15

96–79, 1996–35 I.R.B. 15

96–80, 1996–35 I.R.B. 16

Revenue Rulings:

96–33, 1996–27 I.R.B. 4

96–34, 1996–28 I.R.B. 4

96–35, 1996–31 I.R.B. 4

96–36, 1996–30 I.R.B. 6

96–37, 1996–32 I.R.B. 4

96–38, 1996–33 I.R.B. 4

96–39, 1996–34 I.R.B. 4

96–42, 1996–35 I.R.B. 4

Tax Conventions:

1996–28 I.R.B. 36

Treasury Decisions:

8673, 1996–27 I.R.B. 4

8674, 1996–28 I.R.B. 7

8675, 1996–29 I.R.B. 5

8676, 1996–30 I.R.B. 4

8677, 1996–30 I.R.B. 7

8678, 1996–31 I.R.B. 11

8679, 1996–31 I.R.B. 4

8680, 1996–33 I.R.B. 5

Court Decisions:

2058, 1996–34 I.R.B. 13

2059, 1996–34 I.R.B. 10

2060, 1996–34 I.R.B. 5

Notices:

96–36, 1996–27 I.R.B. 11

96–37, 1996–31 I.R.B. 29

96–38, 1996–31 I.R.B. 29

96–39, 1996–32 I.R.B. 8

96–40, 1996–33 I.R.B. 11

96–41, 1996–35 I.R.B. 6

96–42, 1996–35 I.R.B. 6

Proposed Regulations:

CO–9–96, 1996–34 I.R.B. 20

CO–24–96, 1996–30 I.R.B. 22

CO–25–96, 1996–31 I.R.B. 30

CO–26–96, 1996–31 I.R.B. 31

FI–28–96, 1996–31, I.R.B. 33

FI–32–95, 1996–34 I.R.B. 21

FI–48–95, 1996–31 I.R.B. 36

FI–59–94, 1996–30 I.R.B. 23

GL–7–96, 1996–33 I.R.B. 13

IA–26–94, 1996–30 I.R.B. 24

IA–29–96, 1996–33 I.R.B. 14

IA-292-84, 1996–28 I.R.B. 38

PS–22–96, 1996–33 I.R.B. 15

PS–39–93, 1996–34 I.R.B. 27

Public Laws:

104–117, 1996–34 I.R.B. 19

Railroad Retirement Quarterly Rate

1996–29 I.R.B. 14

Revenue Procedures:

96–36, 1996–27 I.R.B. 11

96–37, 1996–29 I.R.B. 16

96–39, 1996–33 I.R.B. 11

96–40, 1996–32 I.R.B. 8

96–41, 1996–32 I.R.B. 9

96–42, 1996–32 I.R.B. 14

96–43, 1996–35 I.R.B. 6

96–44, 1996–35 I.R.B. 7

96–45, 1996–35 I.R.B. 12

1

A cumulative list of all Revenue Rulings, Revenue Procedures, Treasury Decisions, etc., published in Internal Revenue Bulletins 1996–1

through 1996–26 will be found in Internal Revenue Bulletin 1996–27, dated July 1, 1996.

17

Finding List of Current Action on

Previously Published Items1

Bulletins 1996–27 through 1996–35

*Denotes entry since last publication

Revenue Procedures:

80–27

Modified by

96–40, 1996–32 I.R.B. 8

87–32

Modified by

TD 8680, 1996–33 I.R.B. 5

92–20

Modified by

TD 8680, 1996–33 I.R.B. 5

95–29

Superseded by

96–36, 1996–27 I.R.B. 11

95–29A

Superseded by

96–36, 1996–27 I.R.B. 11

95–30

Superseded by

96–42, 1996–32 I.R.B. 14

1

A cumulative finding list for previously published

items mentioned in Internal Revenue Bulletins

1996–1 through 1996–26 will be found in Internal

Revenue Bulletin 1996–27, dated July 1, 1996.

18

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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