Election Out of Subchapter K for Producers of Natural Gas

DEPARTMENT OF THE TREASURY

26 CFR Parts 1 and 602

[T.D. 8578]

RIN 1545-AP23

Election Out of Subchapter K for Producers of Natural Gas

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations that amend the

regulations under section 761 of the Internal Revenue Code relating to

the election out of subchapter K of chapter 1 of the Code. The final

regulations contain certain requirements that must be met by co-

producers of natural gas subject to a joint operating agreement in

order to make or maintain an election under section 761. The final

regulations provide that the co-producers under a joint operating

agreement must use one of two permissible methods described in the

regulations in reporting income from gas sales and certain related

deductions and credits.

EFFECTIVE DATE: January 1, 1995.

FOR FURTHER INFORMATION CONTACT: Grace Kim, 202-622-3060 (not a toll-

free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

The collection of information contained in these final regulations

has been reviewed and approved by the Office of Management and Budget

in accordance with the requirements of the Paperwork Reduction Act (44

U.S.C. 3504(h)) under control number 1545-1338. The estimated annual

burden per respondent/recordkeeper varies from 15 minutes to 45 minutes

depending on individual circumstances, with an estimated average of 30

minutes.

These estimates are approximations. They are based on such

information as is available to the Internal Revenue Service. Individual

respondents/recordkeepers may require more or less time, depending on

their particular circumstances.

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,

D.C. 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, D.C. 20503.

Background

On September 16, 1992, a notice of proposed rulemaking (PS-103-90)

was published in the Federal Register (57 FR 42712) proposing

amendments to the Income Tax Regulations (26 CFR part 1, 602) under

section 761 of the Internal Revenue Code (Code). A notice of hearing

relating to the proposed regulations was published in that same issue

(57 FR 42720), and a public hearing was held on November 17, 1992.

After consideration of all written and oral comments regarding the

proposed amendments, the proposed regulations are adopted as revised by

this Treasury decision. These regulations are issued under the

authority contained in sections 446(b), 761(a), and 7805.

Explanation of Provisions

In General

Except for modifications in response to comments, these final

regulations generally provide the same rules as the proposed

regulations. Thus, the final regulations prescribe the methods of

accounting for gas sales that may be used by co-producers of a gas

producing property that seek to make or maintain an election under

section 761(a) of the Code. Co-producers must use either the cumulative

gas balancing method (cumulative method) or the annual gas balancing

method (annual method). The final regulations require permission of the

Commissioner to use the annual method. This is to ensure that the co-

producers (particularly those with different taxable year-ends)

properly take income and deductions into account.

Changes to the Proposed Regulations in Response to Comments

I. Effective Date and Transitional Rules

The proposed regulations apply to co-producers under an existing

gas balancing agreement (GBA) or ``any agreement similar to a gas

balancing agreement'' in effect on or after September 16, 1992, for

taxable years beginning on or after that date. They also provide an

automatic consent procedure for gas co-producers under existing GBAs to

change their method of accounting and the rules for taking the related

section 481(a) adjustments into account.

Commentators have expressed uncertainty as to the meaning of ``an

agreement similar to a gas balancing agreement,'' e.g., whether a joint

operating agreement (JOA), without a formal GBA, is a similar

agreement. Additionally, commentators asserted that the automatic

consent procedure was overly burdensome and the section 481(a)

adjustment rules were in some cases impractical. Some recommended that

the regulations be entirely prospective and that the effective date be

delayed.

The final regulations are revised to remove the uncertainty

concerning the meaning of ``an agreement similar to a gas balancing

agreement,'' and are to apply to all gas co-producers operating under a

JOA, without regard to whether a GBA exists. Additionally, the final

regulations are revised to simplify the automatic consent procedure and

to delay the effective date so as to apply to gas co-producers under

JOAs in effect on or after the start of their first taxable year

beginning after December 31, 1994. If, however, the co-producers under

a JOA do not all have the same taxable year and they are changing to

the annual method, the regulations apply on and after January 1, 1996,

with respect to that JOA. Finally, although the final regulations

maintain the six-year section 481(a) adjustment period, they are

revised to add an election to take an aggregate section 481(a)

adjustment for all JOAs, whether negative or positive, into account in

the year of the change in method of accounting.

II. Entitlements Method as Elective Method

A commentator suggested that the entitlements method be adopted as

an elective method or as a replacement for the annual method. Under the

entitlements method, a co-producer reports income currently only for

its proportionate share of current production under the JOA.

The final regulations do not adopt this suggestion because total

income for tax purposes should be reported on the basis of the relative

economics of current production, rather than entitlement under the JOA.

III. Consequences of Noncompliance

Commentators indicated that the requirement of the proposed

regulations that all co-producers under the same GBA use the same

permissible gas balancing method might be construed as meaning that one

co-producer's noncompliance would cause the section 761 election of all

of the co-producers to be revoked.

Accordingly, the final regulations are revised to require that all

co-producers under a JOA use the cumulative method, unless the co-

producers are eligible to, and agree in writing, to use the annual

method. The final regulations also clarify that the failure of a co-

producer to follow this rule will be treated as the use of an

impermissible method of accounting, but will not cause the co-

producers' section 761 election to be revoked, unless the Commissioner

determines that there was willful failure to comply.

IV. The Standard for Revoking a Section 761 Election Under the

Cumulative Method

The proposed regulations contain an anti-abuse rule under which the

section 761 election of certain co-producers using the cumulative

method could be revoked. The standard for applying the anti-abuse rule

is a determination that ``a principal purpose'' of shifting income,

deductions, or credits is to avoid tax. Commentators suggested

replacing ``a principal purpose'' with ``the principal purpose.'' After

careful consideration of the comments, the Service and Treasury have

concluded that the standard contained in the proposed regulations is

appropriate. Thus, the anti-abuse rule in the proposed regulations is

finalized.

V. Requests for Clarification Under the Cumulative Method

Commentators requested certain clarifying changes under the

cumulative method relating to depletion deductions and the section 29

credit for producing fuel from a nonconventional source. First, the

rule that a taking co-producer's deduction for making a payment to a

co-producer is reduced by the amount of any depletion deduction allowed

on the related gas sales is revised to make it clear that the payment

deduction is reduced only by the taking co-producer's percentage

depletion deduction allowed on the related sales. The final regulations

are not modified to clarify the section 29 credit issues because this

project is not the appropriate one for addressing these issues.

Special Analyses

It has been determined that these regulations are not major rules

as defined in Executive Order 12291. Therefore, a Regulatory Impact

Analysis is not required. It has also 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 Code, the notice of

proposed rulemaking for the regulations was submitted to the Chief

Counsel for Advocacy of the Small Business Administration for comment

on their impact on small business.

Drafting Information

The principal author of these regulations is H. Grace Kim of the

Office of Assistant Chief Counsel (Passthroughs and Special

Industries), Internal Revenue Service. However, personnel from other

offices of the Internal Revenue Service and Treasury Department

participated in developing the regulations, both on matters of

substance and style.

List of Subjects

26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

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 adding

the following citation:

Authority: 26 U.S.C. 7805 * * *. Section 1.761-2 also issued

under 26 U.S.C. 446(b) and 26 U.S.C. 761(a). * * *

Par. 2. Section 1.761-2 is amended as follows:

1. The section heading for Sec. 1.761-2 is revised.

2. A sentence is added to the end of paragraph (a)(3) concluding

text.

3. Paragraph (d) is redesignated as paragraph (e).

4. New paragraph (d) is added.

5. The revised and added provisions read as follows:

Sec. 1.761-2 Exclusion of certain unincorporated organizations from

the application of all or part of subchapter K of chapter 1 of the

Internal Revenue Code.

(a) * * *

(3) * * *

* * * In addition, except as provided in paragraph (d)(2)(i) of this

section, this paragraph (a)(3) does not apply to any unincorporated

organization that produces natural gas under a joint operating

agreement, unless all members of the unincorporated organization comply

with paragraph (d) of this section.

* * * * *

(d) Rules for gas producers that produce natural gas under joint

operating agreements--(1) Joint operating agreements and gas balancing.

Co-owners of a property producing natural gas enter into a joint

operating agreement (JOA) to define the rights and obligations of each

co- producer of the gas in place. The JOA determines, among other

things, each co-producer's proportionate share of the natural gas as it

is produced from the reservoir, together with the associated production

expenses. A gas imbalance arises when a co-producer does not take its

proportionate share of current gas production under the JOA

(underproducer) and another co-producer takes more than its

proportionate share of current production (overproducer). The co-

producers often enter into a gas balancing agreement (GBA) as an

addendum to their JOA to establish their rights and obligations when a

gas imbalance arises. A GBA typically allows the overproducer to take

the amount of the gas imbalance (overproduced gas) and entitles the

underproducer to recoup the overproduced gas either from the volume of

the gas remaining in the reservoir or by a cash balancing payment.

(2) Permissible gas balancing methods--(i) General requirement. All

co-producers of natural gas operating under the same JOA must use the

cumulative gas balancing method, as described in paragraph (d)(3) of

this section, unless they use the annual gas balancing method described

in paragraph (d)(4) of this section. A co-producer's failure to comply

with the provisions of this paragraph (d)(2)(i) generally constitutes

the use of an impermissible method of accounting, requiring a change to

a permissible method under Sec. 1.4461(e)(3) with any terms and

conditions as may be imposed by the Commissioner. The co-producers'

election to be excluded from all or part of subchapter K will not be

revoked, unless the Commissioner determines that there was willful

failure to comply with the requirements of this paragraph (d)(2)(i).

(ii) Change in method of accounting; adoption of method of

accounting--(A) In general. The annual gas balancing method and the

cumulative gas balancing method are methods of accounting. Accordingly,

a change to or from either of these methods is a change in method of

accounting that requires the consent of the Commissioner. See section

446(e) and Sec. 1.446-1(e). For purposes of this section, each JOA is

treated as a separate trade or business. Paragraph (d)(2)(ii)(B) of

this section provides rules for adopting either permissible method of

accounting. Paragraph (d)(2)(ii)(C) of this section provides rules on

the timing of required changes to either permissible method during the

transitional period, and paragraph (d)(5) of this section contains the

procedural provisions for making a change in method of accounting

required in paragraph (d)(2)(ii)(C) of this section.

(B) Adoption of method of accounting. A co-producer must adopt a

permissible method for each JOA entered into on or after the start of

the co-producer's first taxable year beginning after December 31, 1994

(or, in the case of the use of the annual gas balancing method by co-

producers not having the same taxable year, the start of the first

taxable year beginning after December 31, 1994, of the co-producer

whose taxable year begins latest in the calendar year). If a co-

producer is adopting the cumulative method, the co-producer may adopt

the method by using the method on its timely filed return for the

taxable year of adoption. A co-producer may adopt the annual gas

balancing method with the permission of the Commissioner under

guidelines set forth in paragraph (d)(4)(ii) of this section.

(C) Required change in method of accounting for certain joint

operating agreements. This paragraph (d)(2)(ii)(C) applies to certain

JOAs entered into prior to 1996. Except in the case of a part-year

change in method of accounting or in the case of the cessation of a JOA

(both of which are described in this paragraph (d)(2)(ii)(C)), for each

JOA entered into prior to a co-producer's first taxable year beginning

after December 31, 1994, and in effect as of the beginning of that

year, the co-producer must change its method of accounting for sales of

gas and its treatment of certain related deductions and credits to a

permissible method as of the start of its first taxable year beginning

after December 31, 1994. In the case of a JOA of co-producers that do

not all have the same taxable year and that choose the annual gas

balancing method, if the JOA is entered into prior to the first taxable

year beginning after December 31, 1994 of the co-producer whose taxable

year begins latest in the calendar year and the JOA is in effect as of

January 1, 1996, a change to the annual gas balancing method by each

co-producer under that JOA is made as of January 1, 1996 (part-year

change in method of accounting). If the co-producers would have made a

part-year change to the annual gas balancing method but for the fact

that their JOA ceased to be in effect before January 1, 1996 (cessation

of a JOA), the co-producers do not change their method of accounting

with respect to the JOA. Rather, for their taxable years in which the

JOA ceases to be in effect, the co-producers use their current method

of accounting with respect to that JOA.

(3) Cumulative gas balancing method--(i) In general. The cumulative

gas balancing method (cumulative method), solely for purposes of

reporting income from gas sales and certain related deductions and

credits, treats each co-producer under the same JOA as the sole owner

of its percentage share of the total gas in the reservoir and

disregards the ownership arrangement described in the JOA for gas as it

is produced from the reservoir. Each co-producer is considered to be

taking only its share of the total gas in the reservoir as long as the

gas remaining in the reservoir is sufficient to satisfy the ownership

rights of the co-producers in their percentage shares of the total gas

in the reservoir. After a co-producer has taken its entire share of the

total gas in the reservoir, any additional gas taken by that co-

producer (taking co-producer) is treated as having been taken from its

other co-producers' shares of the total gas in the reservoir. The

effect of being treated as a taking co-producer under the cumulative

method is that the taking co-producer generally may not claim an

allowance for depletion and a production credit on its sales of its

other co-producers' percentage shares of the total gas in the

reservoir.

(ii) Requirements--(A) Reporting of income from sales of gas. Under

the cumulative method, each co-producer must include in gross income

under its overall method of accounting the amount of its sales from all

gas produced from the reservoir, including sales of gas taken from

another co-producer's share of the gas in the reservoir.

(B) Reporting of deduction of taking co-producer. A taking co-

producer deducts the amount of a payment (in cash or property, other

than gas produced under the JOA) made to another co-producer for sales

of that co-producer's gas, but only for the taxable year in which the

payment is made. Thus, an accrual method taking co-producer is not

permitted a deduction for any obligation it has to pay another co-

producer for sales of that co-producer's gas until a payment is made.

See paragraph (d)(3)(iii)(B) of this section for a rule requiring a

reduction of the amount of the deduction described in this paragraph

(d)(3)(ii)(B) if the taking co-producer had mistakenly claimed a

depletion deduction relating to those sales.

(C) Reporting of income by other co-producers. Any co-producer that

is entitled to receive a payment from a taking co-producer must include

the amount of the payment in gross income as proceeds from the sale of

its gas only for the taxable year that the payment is actually

received, regardless of its overall method of accounting.

(D) Reporting of production expenses. Each co-producer deducts its

proportionate share of production expenses, as provided in the JOA,

under its regular method of accounting for the expenses.

(iii) Special rules for production credits and depletion deductions

under the cumulative method--(A) In general. Under the cumulative

method, a co-producer's depletion allowance and production credit for a

taxable year are based on its income from gas sales and production of

gas from its percentage share of the total gas in the reservoir, and

are not based on its current proportionate share of income and

production as determined under the JOA. Thus, in general, a taking co-

producer is not allowed a production credit or an allowance for

depletion on its sales of gas in excess of its percentage share of the

total gas in the reservoir. However, the Service will not disallow

depletion deductions or production credits claimed by a taking co-

producer on the gas of other co-producers if the taking co-producer had

a reasonable but mistaken belief that the deductions or credits were

claimed with respect to the taking co-producer's percentage share of

total gas in the reservoir and the taking co-producer makes the

appropriate reductions and additions to tax required in paragraphs

(d)(3)(iii)(B) and (d)(3)(iii)(C) of this section. The reasonableness

of the mistaken belief is determined at the time of filing the return

claiming the deductions or credits. A co-producer receiving a payment

for sales of its gas from a taking co-producer claims a production

credit and an allowance for depletion relating to those sales only for

the taxable year in which the amount of the payment is included in its

gross income.

(B) Reduction of taking co-producer's payment deduction for

depletion claimed on another co-producer's gas. If a taking co-producer

claims an allowance for depletion on another co-producer's gas, the

taking co-producer must reduce its deduction claimed in a later year

for making a payment to the other co-producer for sales of that co-

producer's gas by the amount of any percentage depletion deduction

allowed on the gas sales to which the payment relates. If the

percentage limitation of section 613A(d)(1) applied to disallow a

depletion deduction for a previous year, the taking co-producer must

reduce the amount of any carried over depletion deduction allowable in

the year of the payment or in a future year by the portion of the

carried over depletion deduction, if any, that relates to another co-

producer's gas.

(C) Addition to tax of taking co-producer for production credit

claimed on another co-producer's gas. If a taking co-producer claims a

production credit on another co-producer's gas, the taking co-producer

must add to its tax for the taxable year that it makes a payment to the

other co-producer for sales of that co-producer's gas any production

credit allowed in an earlier taxable year on the gas sales to which the

payment relates, but only to the extent the credit allowed actually

reduced the taking co- producer's tax in any earlier year. The taking

co-producer also must reduce the amount of its minimum tax credit

allowable by reason of section 53(d)(1)(B)(iii) in the year of the

payment or in a future year by the portion of the credit, if any, that

relates to another co-producer's gas.

(iv) Anti-abuse rule. If the Commissioner determines that co-

producers using the cumulative method have arranged or altered their

taking of production for a taxable year with a principal purpose of

shifting the income, deductions, or credits relating to that production

to avoid tax, the co- producers' election to be excluded from all or

part of subchapter K will be revoked for that year and for subsequent

years. In determining that a principal purpose was to avoid tax, the

Commissioner will examine all the facts and circumstances surrounding

the use of the cumulative method by the co-producers. See Examples 3

and 4 of paragraph (d)(6) of this section.

(4) Annual gas balancing method--(i) In general. The annual gas

balancing method (annual method) takes into account each co-producer's

ownership rights and obligations, as described in the JOA, with respect

to the co-producer's current proportionate share of gas as it is

produced from the reservoir. Under the annual method, gas imbalances

relating to a JOA must be eliminated annually through a balancing

payment, which may be in the form of cash, gas produced under the same

JOA, or other property. If all the co-producers under a JOA have the

same taxable year, any gas imbalance remaining at the end of a taxable

year must be eliminated by a balancing payment from the overproducer to

the underproducer by the due date of the overproducer's tax return for

that taxable year (including extensions). If all the co-producers under

a JOA do not have the same taxable year, any gas imbalance remaining at

the end of a calendar year must be eliminated by a balancing payment

from the overproducer to the underproducer by September 15 of the

following calendar year. The annual method may be used only if the

Commissioner's permission is obtained. Paragraph (d)(4)(ii) of this

section provides guidelines for applying for this permission. The

annual method is not available for a JOA with respect to which any co-

producer made an election under paragraph (d)(5)(i)(B)(3) of this

section (to take an aggregate section 481(a) adjustment for all JOAs of

a co-producer into account in the year of change).

(ii) Obtaining the Commissioner's permission to use the annual

method. A request for the Commissioner's permission to adopt the annual

method for a new JOA must be in writing and must set forth the names of

all the co-producers under the JOA and the respective taxable year of

adoption. See paragraphs (d)(2)(ii) and (d)(5)(ii) of this section for

the rules for a change in method of accounting to the annual method. In

addition, the request must contain an explanation of how the co-

producers will report income from gas sales, the making or receiving of

a balancing payment, production expenses, depletion deductions, and

production credits. Permission will be granted under appropriate

conditions, including, but not limited to, an agreement in writing by

all co-producers to use the annual method and to eliminate any gas

imbalances annually in accordance with paragraph (d)(4)(i) of this

section.

(5) Transitional rules for making a change in method of accounting

required in paragraph (d)(2)(ii)(C) of this section--(i) Change in

method of accounting to the cumulative method--(A) Automatic consent to

change in method of accounting to the cumulative method. A co-producer

changing to the cumulative method for any JOA entered into prior to its

first taxable year beginning after December 31, 1994, and in effect as

of the beginning of that year is granted the consent of the

Commissioner to change its method of accounting with respect to each

JOA to the cumulative method, provided the co-producer--

(1) Makes the change on its timely filed return for its first

taxable year beginning after December 31, 1994;

(2) Attaches a completed and signed Form 3115 to the co-producer's

tax return for the year of change, stating that, pursuant to

Sec. 1.761-2(d)(2)(ii) of the regulations, the co-producer is changing

its method of accounting for sales of gas and its treatment of certain

related deductions and credits under each JOA to the cumulative method;

(3) In the case of a co-producer making an election under paragraph

(d)(5)(i)(B)(3) of this section to take the aggregate section 481(a)

adjustment into account in the year of change, attaches the statement

described in paragraph (d)(5)(i)(B)(3)(ii) of this section; and

(4) In the case of a co-producer not making an election under

paragraph (d)(5)(i)(B)(3) of this section, attaches a list of each JOA

with respect to which there is a section 481(a) adjustment computed in

accordance with paragraph (d)(5)(i)(B)(2)(i) of this section.

(B) Section 481(a) adjustment--(1) Application of section 481(a). A

change in method of accounting to the cumulative method under the

automatic consent procedure in paragraph (d)(5)(i)(A) of this section

is a change in method of accounting to which the provisions of section

481(a) apply. Thus, a section 481(a) adjustment must be taken into

account in the manner provided by this paragraph (d)(5)(i)(B) to

prevent the omission or duplication of income. Paragraph

(d)(5)(i)(B)(2) of this section provides the general rules for

computing the amount of the section 481(a) adjustment of a co-producer

relating to a particular JOA and for taking the section 481(a)

adjustment into account. Paragraph (d)(5)(i)(B)(3) of this section

provides rules for electing to take a co-producer's section 481(a)

adjustment computed on an aggregate basis for all JOAs into account in

the year of change. Paragraph (d)(5)(i)(C) of this section provides

rules to coordinate the taking of a depletion deduction or a production

credit with the inclusion of a section 481(a) adjustment arising from a

change in method of accounting to the cumulative method under this

paragraph (d)(5)(i).

(2) Computation of the section 481(a) adjustment relating to a

joint operating agreement--(i) In general. The section 481(a)

adjustment of a co-producer relating to a JOA is computed as of the

first day of the co-producer's year of change and is equal to the

difference between the amount of income reported under the co-

producer's former method of accounting for all taxable years prior to

the year of change and the amount of income that would have been

reported if the co-producer's new method had been used in all those

taxable years.

(ii) Section 481(a) adjustment period. Except to the extent that

paragraph (d)(5)(i)(B)(3) of this section applies, a co-producer's

section 481(a) adjustment relating to a JOA, whether positive or

negative, is taken into account in computing taxable income ratably

over the 6-taxable-year period beginning with the year of change (the

section 481(a) adjustment period). If the co-producer has been in

existence less than 6 taxable years, the adjustment is taken into

account over the number of years the co-producer has been in existence.

If the co-producer ceases to engage in the trade or business that gave

rise to the section 481(a) adjustment at any time during the section

481(a) adjustment period, the entire remaining balance of the section

481(a) adjustment relating to that trade or business must be taken into

account in the year of the cessation. For purposes of this paragraph

(d)(5)(i)(B)(2)(ii), production under each JOA is treated as a separate

trade or business. The determination as to whether the co-producer

ceases to engage in its trade or business is to be made under the

principles of Sec. 1.446--1(e)(3)(ii) and its underlying administrative

procedures. For example, the permanent cessation of production under a

co-producer's JOA constitutes the cessation of a trade or business of

the co-producer. Accordingly, for the year that production under a JOA

permanently ceases, the remaining balance of the section 481(a)

adjustment relating to the JOA must be taken into account.

(3) Election to take aggregate section 481(a) adjustment for all

joint operating agreements into account in the year of change--(i) In

general. A co-producer may elect to take into account its section

481(a) adjustment, computed on an aggregate basis for all of its JOAs,

whether negative or positive, in the year of change, provided the co-

producer uses the cumulative method for all of its JOAs entered into

prior to its first taxable year beginning after December 31, 1994, and

in effect as of the beginning of that year. The aggregate section

481(a) adjustment of a co-producer is equal to the difference between

the amount of income reported under the co-producer's former method of

accounting for all taxable years prior to the year of change and the

amount of income that would have been reported if the co-producer's new

method had been used in all of those taxable years for all JOAs for

which the co-producer changes its method of accounting. An election

made under this paragraph (d)(5)(i)(B)(3) is irrevocable. If any person

who, together with another person, would be treated as a single

taxpayer under section 41(f)(1) (A) or (B) makes an election under this

paragraph (d)(5)(i)(B)(3), all persons within that single taxpayer

group will be treated as if they had made an election under this

paragraph (d)(5)(i)(B)(3) and, as such, will be irrevocably bound by

that election. If a co-producer does not make an election under this

paragraph, each JOA entered into prior to the start of its first

taxable year beginning after December 31, 1994, and in effect as of the

beginning of that year must be accounted for separately in computing

the section 481(a) adjustment and taxable income of the co-producer for

any year to which this paragraph (d) applies.

(ii) Time and manner for making the election. An election under

this paragraph (d)(5)(i)(B)(3) is made by attaching a statement to the

co-producer's timely filed return for its year of change indicating

that the co- producer is electing under Sec. 1.761-2(d)(5)(i)(B)(3) to

take its aggregate section 481(a) adjustment into account in the year

of change.

(C) Treatment of section 481(a) adjustment as a sale for purposes

of computing a production credit and as gross income from the property

for purposes of depletion deductions. Any positive section 481(a)

adjustment arising as a result of a change in method of accounting for

gas imbalances under this paragraph (d)(5)(i) and taken into account in

computing taxable income under paragraph (d)(5)(i)(B) of this section

is considered a sale by the taxpayer for purposes of computing any

production credit in the year that the adjustment is taken into

account. Similarly, the positive section 481(a) adjustment is

considered gross income from the property and taxable income from the

property for purposes of computing depletion deductions in the year the

adjustment is taken into account. Sales amounts used in computing any

production credit in any year in which a negative section 481(a)

adjustment is taken into account in computing taxable income under

paragraph (d)(5)(i)(B) of this section must be reduced by the amount of

the negative section 481(a) adjustment taken into account in that year.

Similarly, gross income from the property and taxable income from the

property used in computing any depletion deduction in any year in which

the negative section 481(a) adjustment is taken into account must be

reduced by the amount of the negative adjustment. For these purposes,

any taxpayer that makes an aggregate section 481(a) adjustment election

under paragraph (d)(5)(i)(B)(3) of this section must allocate the

adjustment among its properties in any reasonable manner that prevents

a duplication or omission of depletion deductions.

(ii) Change in method of accounting to the annual method--(A) In

general. A co-producer changing to the annual method in accordance with

paragraph (d)(2)(ii) of this section must request a change under

Sec. 1.446-1(e)(3) and will be subject to any terms and conditions as

may be imposed by the Commissioner.

(B) Section 481(a) adjustment. A change in method of accounting to

the annual method is a change in method of accounting to which the

provisions of section 481(a) apply. Thus, a section 481(a) adjustment

must be taken into account to prevent the omission or duplication of

income. If all the co-producers under a JOA have the same taxable year,

the section 481(a) adjustment involved in a change to the annual method

by a co-producer relating to the JOA is computed as of the first day of

the co-producer's year of change. If the co-producers under a JOA do

not all have the same taxable year (that is, in the case of a part-year

change described in paragraph (d)(2)(ii)(C) of this section), the

change in method of accounting occurs on January 1, 1996, and the

section 481(a) adjustment is computed on that date.

(iii) Untimely change in method of accounting to comply with this

section. Unless a co-producer required by this section to change its

method of accounting complies with the provisions of this paragraph

(d)(5) for its first applicable taxable year within the time prescribed

by this paragraph (d)(5), the co-producer must take the section 481(a)

adjustment into account under the provisions of any applicable

administrative procedure that is prescribed by the Commissioner

specifically for purposes of complying with this section. Absent such

an administrative procedure, a co-producer must request a change under

Sec. 1.446-1(e)(3) and will be subject to any terms and conditions as

may be imposed by the Commissioner.

(6) Examples. The following examples illustrate the application of

the cumulative method described in paragraph (d)(3) of this section.

Example 1. Operation of the cumulative method. (i) L, a

corporation using the cash receipts and disbursements method of

accounting, and M, a corporation using an accrual method, file

returns on a calendar year basis. On January 1, 1995, L and M enter

into a JOA to produce natural gas as an unincorporated organization

from a reservoir located in State Y. The JOA allocates reservoir

production 60 percent to L and 40 percent to M. L and M enter into a

GBA as an addendum to the JOA. L and M agree to use the cumulative

method to account for gas sales from the reservoir and elect under

section 761(a) and this section to exclude the organization from the

application of subchapter K. Production from the reservoir is

eligible for the section 29 credit for producing fuel from a

nonconventional source. L and M produce and sell the following

amounts of natural gas (in mmcf) until 2000 during which year

production from the reservoir ceases:

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

1995 1996 1997 1998 1999 2000

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

L............................. 720 480 600 -0- -0- -0-

M............................. 240 60 120 160 80 40

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

(ii) By the end of 1996, neither L nor M has fully produced its

percentage share of the total gas in the reservoir. In 1997, L

produces a total of 600 mmcf of gas at the rate of 50 mmcf per

month. Prior to filing its return for 1997, L determines that it

fully produced its percentage share of gas in the reservoir as of

June 30, 1997. Pursuant to the GBA executed by L and M, L pays M at

the end of 2000 for the 300 mmcf of M's gas (as determined under the

cumulative method) that L sold in the last half of 1997.

(iii) For 1995, L and M must include in their gross income the

amounts relating to gas sales of 720 mmcf and 240 mmcf,

respectively. For 1996, L and M must include the amounts relating to

gas sales of 480 mmcf and 60 mmcf, respectively. For both 1995 and

1996, L and M compute an allowance for depletion and a section 29

credit based upon gas taken and sold by each from the reservoir for

each taxable year.

(iv) For 1997, L and M must include in gross income the amounts

relating to their gas sales of 600 mmcf and 120 mmcf, respectively.

Under paragraph (d)(3)(iii)(A) of this section, L computes an

allowance for depletion and the section 29 credit based only on

production from L's proportionate share of gas in the reservoir

(that is, based on L's production through June 30, 1997).

Accordingly, for 1997, L claims depletion and the section 29 credit

only with respect to 300 mmcf of gas (50 mmcf per month x 6 months).

For 1997, because M has not fully produced from its percentage share

of the total gas in the reservoir as of the end of 1997, M claims

depletion and the section 29 credit on the 120 mmcf that M produced

in 1997.

(v) In 1998 and 1999, M must include in gross income the amounts

relating to M's sales of gas, that is, 160 mmcf for 1998 and 80 mmcf

for 1999. For 2000, M must include in gross income the amount

relating to sales of 340 mmcf of gas, which consists of its own

sales of 40 mmcf plus the payment for 300 mmcf of gas that L made to

M for having sold from M's share of the total gas in the reservoir

during the last half of 1997. Because M produced from its percentage

share of the total gas in the reservoir during 1998, 1999, and 2000,

M claims a depletion deduction and a section 29 credit on its income

and production for those years, that is, 160 mmcf for 1998, 80 mmcf

for 1999, and 40 mmcf for 2000. Additionally, for 2000, M claims

depletion and the section 29 credit relating to the payment that M

received from L for the 300 mmcf of M's gas that L sold in the last

half of 1997. Under paragraph (d)(3)(ii)(B) of this section, L's

deduction for its payment to M for the 300 mmcf of M's gas that L

sold in 1997 is allowable only for 2000.

Example 2. Adjustments under the cumulative method for depletion

deductions and production credits that were claimed for sales in

excess of a co-producer's percentage share of total gas in the

reservoir. (i) L, a corporation using the cash receipts and

disbursements method of accounting, and M, a corporation using an

accrual method, file returns on a calendar year basis. On January 1,

1995, L and M enter into a JOA to produce natural gas as an

unincorporated organization from a reservoir located in State Y. The

JOA allocates reservoir production 60 percent to L and 40 percent to

M. L and M enter into a GBA as an addendum to the JOA. L and M agree

to use the cumulative method to account for gas sales from the

reservoir and elect under section 761(a) and this section to exclude

the organization from the application of subchapter K. Production

from the reservoir is eligible for the section 29 credit for

producing fuel from a nonconventional source. L and M produce and

sell the following amounts of natural gas (in mmcf) until 2000

during which year production from the reservoir ceases:

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

1995 1996 1997 1998 1999 2000

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

L............................. 720 480 600 60 60 -0-

M............................. 240 60 120 60 60 40

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

(ii) In addition, L does not realize until December 31, 1999,

that L fully produced its percentage share of the total gas in the

reservoir as of June 30, 1997. At the time of filing its returns for

1997 and 1998, L reasonably believes that during 1997 and 1998,

respectively, it did not fully produce its percentage share of the

total gas in the reservoir. Thus, L claims depletion and the section

29 credit for its total sales of 600 mmcf in 1997 and 60 mmcf in

1998. Pursuant to the GBA executed by L and M, L pays M at the end

of 2000 for the 420 mmcf of M's gas (as determined under the

cumulative method) that L sold (300 mmcf in the last half of 1997

(assuming that production was at a rate of 50 mmcf per month), 60

mmcf in 1998, and 60 mmcf in 1999).

(iii) In 1997 and 1998, L and M include in gross income the

amounts relating to their respective sales of gas, that is, for L

600 mmcf for 1997 and 60 mmcf for 1998, and for M 120 mmcf for 1997

and 60 mmcf for 1998.

(iv) For 1999, L must include in gross income the amount of its

sales of 60 mmcf, but may not claim depletion or the section 29

credit on those sales. For 1999, M must include in gross income the

amount of its sales of 60 mmcf and claims depletion and the section

29 credit with respect to those 60 mmcf.

(v) For 2000, M must include in gross income the amount relating

to gas sales of 460 mmcf, that is, the amount of M's own gas sales

of 40 mmcf and the amount of the payment received from L for the 420

mmcf of M's gas that L sold (consisting of 300 mmcf in 1997, 60 mmcf

in 1998, and 60 mmcf in 1999). Under paragraph (d)(3)(iii)(A) of

this section, M computes a depletion deduction and a production

credit relating to the amount of M's actual gas sales for 2000 and

the payment received from L, that is, relating to a total of 460

mmcf of gas (M's sales of 40 mmcf for 2000, plus L's payment for 420

mmcf of gas). Under paragraph (d)(3)(ii)(B) of this section, L's

deduction for making its payment to M for 420 mmcf of gas is

allowable only for 2000. Under paragraph (d)(3)(iii)(B) of this

section, L must reduce its deduction by the amount of any percentage

depletion deductions allowed on its sales of M's gas, that is,

relating to 360 mmcf of gas (300 mmcf for 1997 and 60 mmcf for

1998). In addition, under paragraph (d)(3)(iii)(C) of this section,

L must increase its tax for 2000 by the amount of any section 29

credit L claimed on its sales of M's gas, but only to the extent

that the credit claimed actually reduced L's tax in any earlier

year.

Example 3. Non-abusive altering of the taking of production for

a taxable year. (i) C and D enter into a JOA and a GBA on December

1, 1994, for gas production from a reservoir. The JOA allocates

production at 50 percent to C and 50 percent to D. C and D agree in

writing to use the cumulative method to account for gas sales.

Additionally, C and D elect under section 761(a) and this section to

exclude their organization from the application of subchapter K. C

and D arrange to sell all their production under annually renewable

contracts. In 1995, C and D each sell 480 mmcf of gas from the

reservoir.

(ii) In November 1995, D is notified that its contract with its

purchaser will not be renewed for 1996. D is unable to find a new

purchaser for its gas for 1996. In December 1995, D notifies C that

it will not be taking production from the reservoir in 1996.

Pursuant to the GBA, C then contracts with its current gas purchaser

to sell an additional 20 mmcf per month in 1996. Accordingly, C

sells 720 mmcf in 1996 (60 mmcf per month x 12 months). Under the

facts described in this example, a principal purpose of altering the

taking of production is not to avoid tax. Accordingly, the co-

producers' election under section 761(a) will not be revoked by

reason of altering the taking of production.

Example 4. Abusive altering of the taking of production for a

taxable year. The facts are the same as in Example 3(i). For 1996, C

anticipates that C's regular tax (reduced by the credits allowable

under sections 27 and 28) will not exceed C's tentative minimum tax.

Accordingly, under section 29(b)(6), C's credit allowed under

section 29(a) for sales of its gas will be zero. For 1997, C

anticipates that its credit allowed under section 29(a) will not be

limited by section 29(b)(6). On the other hand, D anticipates that

any credit it may claim under section 29(a) for 1996, even including

a credit based on sales of C's share of current production under the

JOA, will not be limited by section 29(b)(6). However, for 1997, D

anticipates that its credit under section 29(a) will be limited by

section 29(b)(6). On January 1, 1996, C and D agree that D will

contract with its purchaser to sell the entire 960 mmcf produced

from the reservoir in 1996 and that C will contract with its

purchaser to sell the entire 960 mmcf produced from the reservoir in

1997. Under these facts, a principal purpose of altering the taking

of production is to avoid tax. Accordingly, the co-producers'

election under section 761(a) will be revoked for 1996 and for

subsequent years.

(7) Effective date. Except in the case of a part-year change to the

annual method or the cessation of a JOA, both of which are described in

paragraph (d)(2)(ii)(C) of this section, the provisions of this

paragraph (d) apply to all taxable years beginning after December 31,

1994, of any producer that is a member of an unincorporated

organization that produces natural gas under a JOA in effect on or

after the start of the producer's first taxable year beginning after

December 31, 1994. In the case of a part-year change, the provisions of

this paragraph (d) apply on and after January 1, 1996. In the case of

the cessation of a JOA, the co-producers use their current method of

accounting with respect to that JOA until the JOA ceases to be in

effect.

* * * * *

PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

Par. 3. The authority citation for part 602 continues to read as

follows:

Authority: 26 U.S.C. 7805.

Sec. 602.101 [Amended]

Par. 4. In Sec. 602.101, paragraph (c) is amended by removing the

existing entry for 1.761-2 and by adding the entry ``1.761-2 * * *

1545-1338'' in numerical order to the table.

Margaret Milner Richardson,

Commissioner of Internal Revenue.

Approved: December 12, 1994.

Leslie Samuels,

Assistant Secretary of the Treasury.

[FR Doc. 94-31291 Filed 12-22-94; 8:45 am]

BILLING CODE 4830-01-U