us-irs-revenue-procedures-irb-2005-47-pdf•Internal Revenue Bulletin 2005-47 (PDF rendition): IRS Revenue Procedures
Internal Revenue Bulletin 2005-47 (PDF rendition): IRS Revenue Procedures
us-irs-revenue-procedures-irb-2005-47-pdfInternal Revenue Bulletin 2005-47 (PDF rendition): IRS Revenue ProceduresGuidance
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Bulletin No. 200 5-47 November 21, 200 5 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 T.D. 9228, page 972. Final regulations under section 42 of the Code eliminate the requirement in regulations section 1.42–1(h) that a completed Form 8609,Low-Income Housing Credit Allocation and Certifi- cation, must be filed with an owner’s Federal income tax return for each of the 15 taxable years of the compliance period when theownerclaimsthelow-incomehousingcredit. REG–1058 47–05, page 987. Proposed r egulations under section 199 of the Code relate to the deduc tion for income attributable to domestic production activiti es. Section 199 was enacted as part of the American Jobs Crea tion Act of 2004, and allows a deduction equal to 3percent (for 2005 and 2006) of the lesser of the qualified producti on activities income of the taxpayer for the taxable year, or thetaxableincomeofthetaxpayerforthetaxable year, su bject to certain limits. The applicable percentage rises to 6 perc ent for 2007, 2008, and 2009, and 9 percent for 2010 and subsequent years. A public hearing is scheduled for Januar y 11, 2006. Rev. Proc. 2005–70, page 979. Cost-of-living adjustments for 2006.This procedure sets forth the cost-of-living adjustments to certain items for 2006 as required under various provisions of the Code. Rev. Proc. 2005–71, page 985. This procedure modifies Rev. Proc. 2004–59, 2004–2 C.B. 678, to extend the sunset date for participation in the Voluntary Compliance Program from December 31, 2005, to March 31, 2006, and provides that no extensions will be granted beyond June 30, 2006. Rev. Proc. 2004–59 modified. EMPLOYEE PLANS Notice 2005–72, page 976. Weighted average interest rate update; corporate bond indices; 30-year Treasury securities.The weighted aver- age interest rate for November 2005 and the resulting permis- sible range of interest rates used to calculate current liability and to determine the required contribution are set forth. ESTATE TAX Rev. Proc. 2005–70, page 979. Cost-of-living adjustments for 2006.This procedure sets forth the cost-of-living adjustments to certain items for 2006 as required under various provisions of the Code. GIFT TAX Rev. Proc. 2005–70, page 979. Cost-of-living adjustments for 2006.This procedure sets forth the cost-of-living adjustments to certain items for 2006 as required under various provisions of the Code. EXCISE TAX Rev. Proc. 2005–70, page 979. Cost-of-living adjustments for 2006.This procedure sets forth the cost-of-living adjustments to certain items for 2006 as required under various provisions of the Code. (Continued on the next page) Fi nding Lists begin on page ii. ADMINISTRATIVE Notice 2005–81, page 977. This notice supplements Notice 2005–66, 2005–40 I.R.B. 620, which postponed until January 3, 2006, deadlines for the IRS to perform certain acts under section 7508A of the Code with respect to certain taxpayers affected by Hurricane Katrina. This notice (1) expands the definition of “covered dis- aster area” to include additional counties and parishes that the Federal Emergency Management Agency (FEMA) determined were eligible for federal assistance after the IRS issued Notice 2005–66; (2) extends the deadlines for the IRS to perform certain acts to February 28, 2006, to match the deadlines for affected taxpayers to file, pay, and perform certain acts; (3) expands the definition of affected taxpayer to match the definition of affected taxpayers in Notice 2005–73, 2005–42 I.R.B. 723; and (4) grants the IRS a postponement of time to perform an act not previously identified in Notice 2005–66 – issuing a Notice of Final Partnership Administrative Adjustment (FPAA) under section 6223. Notice 2005–66 supplemented. Notice 200 5–82, page 978. In Notice 2 005–82, the IRS under section 7508A of the Code extends th e period for the government to take certain actions until Febr uary 28, 2005, with respect to certain taxpayers af- fected by H urricane Rita. In response to Hurricane Rita, in News Release I R-2005-110 of September 26, 2005, the IRS granted relief fo r taxpayers affected by Hurricane Rita. News Release IR-2005- 110 provided that all counties and parishes in Texas and Louis iana constitute a “covered disaster area” within the meaning o f regulations section 301.7508A–1(d)(2). Further, News Rel ease IR-2005-110 provided that taxpayers affected by the di saster will have until February 28, 2006, to file tax returns and submit payments, including, but not limited to, the October 17, 2005, deadline for individuals who received a sec- ond ext ension for filing their individual income tax returns. In additi on, News Release IR-2005-110 provided affected taxpay- ers unt il February 28, 2006, to perform the acts listed in sec- tion 30 1.7508A–1(c)(1) and Rev. Proc. 2005–27, 2005–20 I.R.B. 1050. Rev. Proc. 2005–70, page 979. Cost-of-living adjustments for 2006.This procedure sets forth the cost-of-living adjustments to certain items for 2006 as required under various provisions of the Code. Rev. Proc. 2005–71, page 985. This procedure modifies Rev. Proc. 2004–59, 2004–2 C.B. 678, to extend the sunset date for participation in the Voluntary Compliance Program from December 31, 2005, to March 31, 2006, and provides that no extensions will be granted beyond June 30, 2006. Rev. Proc. 2004–59 modified. November 21, 20052005–47 I.R.B. The IRS Mission Provide America’s taxpayers top quality service by helping them understand and meet their tax responsibilities and by applying the tax law with integrity and fairness to all. Introduction The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conven- tions, 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 are compiled semiannually into Cumulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all sub- stantive rulings necessary to promote a uniform application of the tax laws, including all rulings that supersede, revoke, mod- ify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless otherwise indi- cated. Procedures relating solely to matters of internal man- agement are not published; however, statements of internal practices and procedures that affect the rights and duties of taxpayers are published. Revenue rulings represent the conclusions of the Service on the application of the law to the pivotal facts stated in the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices, identifying details and information of a confidential nature are deleted to prevent unwarranted invasions of privacy and to comply with statutory requirements. Rulings and procedures reported in the Bulletin do not have the force and effect of Treasury Department Regulations, but they may be used as precedents. Unpublished rulings will not be relied on, used, or cited as precedents by Service personnel in the disposition of other cases. In applying published rulings and procedures, the effect of subsequent legislation, regulations, court decisions, rulings, and procedures must be considered, and Service personnel and others concerned are cautioned against reaching the same conclusions in other cases unless the facts and circumstances are substantially the same. The Bulletin is divided into four parts as follows: Part I.—19 86 Code. This part i ncludes rulings and decisions based on provisions of the Intern al Revenue Code of 1986. Part II.—Treaties and Tax Legislation. This part is divided into two subparts as follows: Subpart A, Tax Conventions and Other Related Items, and Subpart B, Leg- islation 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 Rul- ings. Bank Secrecy Act Administrative Rulings are issued by the Department of the Treasury’s Office of the Assistant Sec- retary (Enforcement). Part IV .—Items of General Interest. This par t includes notices of proposed rulemakings, disbar- ment an d suspension lists, and announcements. The last Bulletin for each month includes a cumulative index for the matters published during the preceding months. These monthly indexes are cumulated on a semiannual basis, and are published in the last Bulletin of each semiannual period. The c ontents 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, DC 20402. 2005–47 I.R.B.November 21, 2005 Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 1.—Tax Imposed The Service provides inflation adjustments to the tax rate tables for individuals, trusts, and estates for taxable years beginning in 2006. In addition, the amounts of certain reductions allowed against the unearned income of minor children in computing the “kiddie tax” are adjusted. Also adjusted are the amounts used to determine whether a parent may elect to report the “kiddie tax” on the parent’s return. See Rev. Proc. 2005-70, page 979. Section 23.—Adoption Expenses The Service provides inflation adjustments to the adoption credit allowed for the adoption of a child for taxable years beginning in 2006. The Service also provides inflation adjustments to the value used in calculating the modified adjusted gross income lim- itations used to determine the amount of adoption credit that is allowed in taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 24.—Child Tax Credit The Service provides inflation adjustments for the value used in determining the amount of the credit that may be refundable beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 25A.—Hope and Lifetime Learning Credits The Service provides inflation adjustments for the amount of qualified tuition and related expenses that are taken into account in determining the amount of the Hope Scholarship Credit for taxable years begin- ning in 2006, and for the amount of a taxpayer’s mod- ified adjusted gross income that is taken into account in determining the reduction in the amount of the Hope Scholarship and Lifetime Learning Credits oth- erwise available. See Rev. Proc. 2005-70, page 979. Section 32.—Earned Income The Service provides inflation adjustments to the limitations on the earned income credit for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 42.—Low-Income Housing Credit The Service provides inflation adjustments to the amounts used to calculate the State housing credit ceiling used in determining the low-income housing credit for calendar year 2006. See Rev. Proc. 2005- 70, page 979. 26 CFR 1.42–1: Limitation on low-income housing credit allowed with respect to qualified low-income buildings receiving housing credit allocations from State or local housing credit agency. T.D. 9228 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Low-Income Housing Credit Allocation and Certification; Revisions AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains reg- ulations that reduce the burden for taxpay- ers filing Form 8609, “Low-Income Hous- ing Credit Allocation and Certification.” The regulations affect owners of low-in- come housing projects who claim the low- income housing credit. DATES:Effective Date: These regulations are effective November 7, 2005. Date of Applicability: For date of appli- cability, see §1.42–1(j). FOR FURTHER INFORMATION CONTACT: Paul F. Handleman, (202) 622–3040 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background On January 27, 2004, the Treasury Department and IRS published Treasury Decision 9112, 2004–1 C.B. 523, in the Federal Register(69 FR 3826), which removed impediments to the electronic filing of Form 8609, “Low-Income Hous- ing Credit Allocation and Certification,” by revising former §1.42–1T(e)(1) and (h)(2) and adding §1.42–1(h). Former §1.42–1T(e)(1) and (h)(2) required an owner to include a third-party signature from an authorized State or local hous- ing credit agency (Agency) official when filing the form with the owner’s Fed- eral income tax return for each year of the 15-year compliance period. Section 1.42–1(h) contains the filing requirement for Form 8609 and no longer requires the third-party signature when filing the form with the owner’s Federal income tax re- turn. Explanation of Provisions Section 42 provides for a low-income housing credit that may be claimed as part of the general business credit under sec- tion 38. In general, the credit is allowable only if the owner of a qualified low-in- come building receives a housing credit al- location from an Agency of the jurisdiction where the building is located. Section 1.42–1(h) provides that a com- pleted Form 8586, “Low-Income Housing Credit,” must be filed with the owner’s Federal income tax return for each taxable year the owner of a qualified low-income building is claiming the low-income hous- ing credit under section 42(a). A com- pleted Form 8609 must be filed with the owner’s Federal income tax return for each of the 15 taxable years of the compliance period. Failure to comply with the require- ment of the preceding sentence for any tax- able year after the first taxable year in the credit period will be treated as a mathemat- ical or clerical error for purposes of section 6213(b)(1) and (g)(2). The IRS plans to reduce taxpayer bur- den by allowing taxpayers to file Form 8609 one time, instead of filing the form with the same information for 15 consec- utive years. Taxpayers currently file the form as part of their return with the Inter- nal Revenue Service center that processes their return. Planned revisions to the form should improve administration of the low- income housing credit program by requir- ing taxpayers to send completed forms to the Philadelphia service center, where each Agency currently sends Part I of the form. The requirements for completing and fil- ingForm8609willbeaddressedinthein- structions to the form. 2005–47 I.R.B.972November 21, 2005 Special Analyses It has been determined that this Trea- sury decision is not a significant regula- tory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been deter- minedthatsection553(b)and(d)ofthe Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regula- tions. Because no notice of proposed rule- making is required, the Regulatory Flex- ibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Admin- istration for comment on their impact on small business. Drafting Information The principal author of these regula- tions is Paul F. Handleman, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the IRS and Treasury Department participated in their develop- ment. ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. Section 1.42–1 is amended by revising paragraphs (h) and (j) to read as follows: §1.42–1 Limitation on low-income housing credit allowed with respect to qualified low-income buildings receiving housing credit allocations from a State or local housing credit agency. ***** (h)Filing of forms. Unless otherwise provided in forms or instructions, a com- pleted Form 8586, “Low-Income Housing Credit,” (or any successor form) must be filed with the owner’s Federal income tax return for each taxable year the owner of a qualified low-income building is claiming the low-income housing credit under sec- tion 42(a). Unless otherwise provided in forms or instructions, a completed Form 8609, “Low-Income Housing Credit Al- location and Certification,” (or any suc- cessor form) must be filed by the build- ing owner with the IRS. The requirements for completing and filing Forms 8586 and 8609 are addressed in the instructions to the forms. ***** (j)Effective dates.Section 1.42–1(h) appliestoformsfiledonorafterNovem- ber 7, 2005. The rules that apply for forms filed before November 7, 2005 are con- tained in §1.42–1T(h) and §1.42–1(h) (see 26 CFR part 1 revised as of April 1, 2003, and April 1, 2005). Mark E. Matthews, Deputy Commissioner for Services and Enforcement. Approved October 26, 2005. Eric Solomon, Acting Deputy Assistant Secretary of the Treasury. (Filed by the Office of the Federal Register on November 4, 2005, 8:45 a.m., and published in the issue of the Federal Register for November 7, 2005, 70 F.R. 67355) Section 59.—Other Definitions and Special Rules The Service provides an inflation adjustment to the exemption amount used in computing the alternative minimum tax for a minor child subject to the “kiddie tax” for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 62.—Adjusted Gross Income Defined The Service provides inflation adjustments to the amounts an eligible employer may pay in 2006 to cer- tain welders and heavy equipment mechanics for rig- related expenses that are deemed substantiated under an accountable plan when paid in accordance with Rev. Proc. 2002–41, 2002–1 C.B. 1098. See Rev. Proc. 2005-70, page 979. Section 63.—Taxable Income Defined The Service provides inflation adjustments to the standard deduction amounts (including the limitation in the case of certain dependents, and the additional standard deduction for the aged or blind) for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 68.—Overall Limitation on Itemized Deductions The Service provides inflation adjustments to the overall limitation on itemized deductions for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 132.—Certain Fringe Benefits The Service provides inflation adjustments to the limitations on the exclusion of income for a qualified transportation fringe benefit for taxable years begin- ning in 2006. See Rev. Proc. 2005-70, page 979. Section 135.—Income From United States Savings Bonds Used to Pay Higher Education Tuition and Fees The Service provides inflation adjustments to the limitation on the exclusion of income from United States savings bonds for taxpayers who pay qualified higher education expenses for taxable years begin- ning in 2006. See Rev. Proc. 2005-70, page 979. Section 137.—Adoption Assistance Programs The Service provides inflation adjustments to the maximum amount that can be excluded from an em- ployee’s gross income in connection with a qualified adoption assistance programfor taxable years begin- ning in 2006. The Service also provides inflation ad- justments to the amount used to calculate the modi- fied adjusted gross income limitations used to deter- mine the amount that can be excluded from an em- ployee’s gross income for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 146.—Volume Cap The Service provides inflation adjustments to the amounts used to determine the State ceiling for the volume cap of private activity bonds for calendar year 2006. See Rev. Proc. 2005-70, page 979. Section 148.—Arbitrage 26 CFR 1.148–5: Yield and valuation of investments. The Service provides inflation adjustments for de- termining in the calendar year 2006 whether a bro- ker’s commission or similar fee with respect to the November 21, 20059732005–47 I.R.B. acquisition of a guaranteed investment contract or in- vestments purchased for a yield restricted defeasance escrow is reasonable. See Rev. Proc. 2005-70, page 979. Section 151.—Allowance of Deductions for Personal Exemptions The Service provides inflation adjustments to the personal exemption and to the threshold amounts of adjusted gross income above which the exemption amount phases out for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 170.—Charitable, etc., Contributions and Gifts The Service provides inflation adjustments to the “insubstantial benefit” guidelines for calendar year 2006. Under the guidelines, a charitable contribu- tion is fully deductible even though the contributor re- ceives “insubstantial benefits” from the charity. See Rev. Proc. 2005-70, page 979. Section 179.—Election to Expense Certain Depreciable Business Assets The Service provides inflation adjustments to the aggregate cost of section 179 property that a taxpayer may elect to treat as an expense for taxable years be- ginning in 2006. See Rev. Proc. 2005-70, page 979. Section 213.—Medical, Dental, etc., Expenses The Service provides inflation adjustments to the limitation on the amount of eligible long-term care premiums includible in the term “medical care” for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 220.—Archer MSAs The Service provides inflation adjustments to the amounts used to determine whether a health plan is a “high deductible health plan” for purposes of de- termining whether an individual is eligible for a de- duction for cash paid to a medical savings account for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 221.—Interest on Education Loans The Service provides inflation adjustments to the income limitations used to determine the allowable deduction for interest on education loans for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. Section 223.—Health Savings Accounts The Service provides inflation adjustments for cal- endar year 2006 to the monthly limitations on deduc- tions under a high deductible plan and to the amounts used in defining a high deductible plan. See Rev. Proc. 2005-70, page 979. Section 512.—Unrelated Business Taxable Income The Service provides an inflation adjustment to the maximum amount of annual dues that can be paid to certain agricultural or horticultural organizations without any portion being treated as unrelated trade or business income by reason of any benefits or priv- ileges available to members for taxable years begin- ning in 2006. See Rev. Proc. 2005-70, page 979. Section 513.—Unrelated Trade or Business The Service provides an inflation adjustment to the maximum cost of a “low cost article” for tax- able years beginning in 2006. Funds raised through a charity’s distribution of “low cost articles” will not be treated as unrelated business income to the charity. See Rev. Proc. 2005-70, page 979. Section 685.—Treatment of Funeral Trusts The Service provides an inflation adjustment to the maximum amount of contributions that may be made to a qualified funeral trust for contracts entered in calendar year 2006. See Rev. Proc. 2005-70, page 979. Section 877.—Expatriation to Avoid Tax The Service provides an inflation adjustment to the amount used for calendar year 2006 to determine whether an individual’s loss of United States citizen- ship had the avoidance of United States tax as one of its principal purposes. See Rev. Proc. 2005-70, page 979. Section 2032A.—Valuation of Certain Farm, etc., Real Property The Service provides an inflation adjustment to the maximum amount by which the value of certain farm and other qualified real property included in a dece- dent’s gross estate may be deceased for purposes of valuing the estate of a decedent dying in calendar year 2006. See Rev. Proc. 2005-70, page 979. Section 2503.—Taxable Gifts The Service provides an inflation adjustment to the amount of gifts that may be made to a person in a calendar year without including the amount in taxable gifts for calendar year 2006. See Rev. Proc. 2005-70, page 979. Section 2523.—Gift to Spouse The Service provides an inflation adjustment to the amount of gifts that may be made in a calendar year to a spouse who is not a citizen of the United States without including the amount in taxable gifts for cal- endar year 2006. See Rev. Proc. 2005-70, page 979. Section 4161.—Imposition of Tax The Service provides an inflation adjustment to the amount of excise tax imposed for calendar year 2006 on the first sale by a manufacturer, producer, or im- porter of any shaft of a type used in the manufacture of certain arrows. See Rev. Proc. 2005-70, page 979. Section 4261.—Imposition of Tax The Service provides inflation adjustments to the amounts of the excise taxes on passenger air trans- portation beginning or ending in the United States and for each domestic segment of air transportation for calendar year 2006. See Rev. Proc. 2005-70, page 979. Section 60 33.—Returns by Exempt Organizations The Service provides an inflation adjustment to the amount of dues certain exempt organizations with nondeductible lobbying expenditures can charge and still be excepted from reporting requirements for tax- able years beginning in 2006. See Rev. Proc. 2005- 70, page 979. Section 6039F.—Notice of Large Gifts Received From Foreign Persons The Service provides an inflation adjustment to the amount of gifts received, in a taxable year from for- eign persons, that triggers areporting requirement for a United States person for taxable years beginning in 2006. See Rev. Proc. 2005-70, page 979. 2005–47 I.R.B.974November 21, 2005 Section 6323.—Validity and Priority Against Certain Persons The Service provides inflation adjustments for cal- endar year 2006 to (1) the maximum amount of a ca- sual sale of personal property below which a federal tax lien will not be valid against a purchaser of the property and (2) the maximum amount of a contract for the repair or improvement of certain residential property at or below which a federal tax lien will not be valid against a mechanic’s lienor. See Rev. Proc. 2005-70, page 979. Section 6334.—Property Exempt From Levy The Service provides inflation adjustments to the value of certain property exempt from levy (fuel, pro- visions, furniture, household personal effects, arms for personal use, livestock, poultry, and books and tools of a trade, business, or profession) for calendar year 2006. See Rev. Proc. 2005-70, page 979. Section 6601.—Interest on Underpayment, Nonpayment, or Extensions of Time for Payment, of Tax The Service provides an inflation adjustment to the amount used to determine the amount of interest charged on a certain portion of the estate tax payable in installments for the estate of a decedent dying in calendar year 2006. See Rev. Proc. 2005-70, page 979. Section 7430.—Awarding of Costs and Certain Fees The Service provides an inflation adjustment to the hourly limit on attorney fees incurred in calendar year 2006 that may be awarded in a judgment or settlement of an administrative or judicial proceeding concern- ing the determination, collection, or refund of tax, in- terest, or penalty. See Rev. Proc. 2005-70, page 979. Section 7702B.—Treatment of Qualified Long-Term Care Insurance The Service provides an inflation adjustment to the stated dollar amount for calendar year 2006 of theper diemlimitation regarding periodic payments received under a qualified long-term care insurance contract or periodic payments received under a life insurance contract that are treated aspaid by reason of the death of a chronically ill individual. See Rev. Proc. 2005- 70, page 979. November 21, 20059752005–47 I.R.B. Part III. Administrative, Procedural, and Miscellaneous Weighted Average Interest Rate Update Notice 2005–72 This notice provides guidance as to the corporate bond weighted average interest rate and the permissible range of interest rates specified under § 412(b)(5)(B)(ii)(II) of the Internal Revenue Code. In ad- dition, it provides guidance as to the interest rate on 30-year Treasury securi- ties under § 417(e)(3)(A)(ii)(II), and the weighted average interest rate and permis- sible ranges of interest rates based on the 30-year Treasury securities rate. CORPORATE BOND WEIGHTED AVERAGE INTEREST RATE Sections412(b)(5)(B)(ii)and 412(l)(7)(C)(i), as amended by the Pen- sion Funding Equity Act of 2004, provide that the interest rates used to calculate cur- rent liability and to determine the required contribution under § 412(l) for plan years beginning in 2004 or 2005 must be within a permissible range based on the weighted average of the rates of interest on amounts invested conservatively in long term in- vestment grade corporate bonds during the 4-year period ending on the last day before the beginning of the plan year. Notice 2004–34, 2004–1 C.B. 848, pro- vides guidelines for determining the cor- porate bond weighted average interest rate and the resulting permissible range of in- terest rates used to calculate current liabil- ity. That notice establishes that the corpo- rate bond weighted average is based on the monthly composite corporate bond rate de- rived from designated corporate bond in- dices. The composite corporate bond rate for October 2005 is 5.68 percent. Pursuant to Notice 2004–34, the Service has de- termined this rate as the average of the monthly yields for the included corporate bond indices for that month. The following corporate bond weighted average interest rate was determined for plan years beginning in the month shown below. For Plan Years Corporate Bond90% to 110% Beginning in:WeightedPermissible MonthYearAverageRange November20055.795.21 to 5.79 30-YEAR TREASURY SECURITIES WEIGHTED AVERAGE INTEREST RATE Section 417(e)(3)(A)(ii)(II) defines the applicable interest rate, which must be used for purposes of determining the minimum present value of a participant’s benefit under § 417(e)(1) and (2), as the annual rate of interest on 30-year Treasury securities for the month before the date of distribution or such other time as the Secretary may by regulations prescribe. Section 1.417(e)–1(d)(3) of the Income Tax Regulations provides that the applica- bleinterestrateforamonthistheannual interest rate on 30-year Treasury securi- ties as specified by the Commissioner for that month in revenue rulings, notices or other guidance published in the Internal Revenue Bulletin. Section 404(a)(1) of the Code, as amended by the Pension Funding Eq- uity Act of 2004, permits an employer to elect to disregard subclause (II) of § 412(b)(5)(B)(ii) to determine the max- imum amount of the deduction allowed under § 404(a)(1). The rate of interest on 30-year Treasury securities for October 2005 is 4.68 percent. Pursuant to Notice 2002–26, 2002–1 C.B. 743, the Service has determined this rate as the monthly average of the daily deter- mination of yield on the 30-year Treasury bond maturing in February 2031. The following 30-year Treasury rates were determined for the plan years begin- ning in the month shown below. For Plan Years 30-Year Treasury90% to 105%90% to 110% Beginning in:WeightedPermissiblePermissible MonthYearAverageRangeRange November20054.884.39 to 5.124.39 to 5.37 Drafting Information The principal authors of this notice are Paul Stern and Tony Montanaro of the Employee Plans, Tax Exempt and Government Entities Division. For fur- ther information regarding this notice, please contact the Employee Plans’ tax- payer assistance telephone service at 1–877–829–5500 (a toll-free number), between the hours of 8:00 a.m. and 6:30 p.m. Eastern time, Monday through Friday. Mr. Stern may be reached at 1–202–283–9703. Mr. Montanaro may be reached at 1–202–283–9714. The tele- phone numbers in thepreceding sentences are not toll-free. 2005–47 I.R.B.976November 21, 2005 Katrina — Supplemental Government Acts Notice Notice 2005–81 PURPOSE This notice supplements Notice 2005–66, 2005–40 I.R.B. 620 (October 3, 2005), which postponed until January 3, 2006, deadlines for the Internal Rev- enue Service (IRS) to perform certain acts under section 7508A with respect to certain taxpayers affected by Hurricane Katrina. This Notice (1) expands the defi- nition of “covered disaster area” to include additional counties and parishes that the Federal Emergency Management Agency (FEMA) determined were eligible for fed- eral assistance after the IRS issued Notice 2005–66; (2) extends the deadlines for the IRS to perform certain acts to February 28, 2006, to match the deadlines for af- fected taxpayers to file, pay, and perform certain acts; (3) expands the definition of affected taxpayer to match the definition of affected taxpayers in Notice 2005–73, 2005–42 I.R.B. 723 (October 17, 2005); and (4) grants the IRS a postponement of time to perform an act not previously identified in Notice 2005–66 — issuing a Notice of Final Partnership Administrative Adjustment (FPAA) under section 6223. ADDENDA TO NOTICE 2005–66 Covered disaster area Notice 2005–66 specifically identified those counties and parishes FEMA had designated at that time as eligible for Pub- lic Assistance or Public Assistance and Individual Assistance as constituting a “covered disaster area” within the mean- ing of Treas. Reg. § 301.7508A–1(d)(2). After the IRS issued Notice 2005–66, FEMA designated eight additional coun- ties in Florida, 16 additional counties in Alabama, and 30 additional counties in Mississippi as eligible for Public Assis- tance or Public Assistance and Individual Assistance. All counties and parishes so designated by FEMA constitute a “covered disaster area” within the meaning of sec- tion 301.7508A–1(d)(2).SeeAppendix to Notice 2005–73 (complete list of coun- ties and parishes designated by FEMA). The postponement of time for the IRS to perform the acts listed in Notice 2005–66, otherwise due on or after September 6, 2005, and on or before February 28, 2006, applies to all the counties and parishes listed in the Appendix to Notice 2005–73, and to counties and parishes that FEMA later designates as eligible for Individual Assistance and/or Public Assistance as a result of the devastation caused by Hurri- cane Katrina. Extension of the postponement period By news releases issued on August 30, 2005, September 2, 2005, Septem- ber 8, 2005, and September 14, 2005, the IRS granted affected taxpayers un- til January 3, 2006, to file certain re- turns, to pay certain taxes, and to per- form certain time-sensitive acts listed in section 301.7508A–1(c)(1) and Rev. Proc. 2005–27, 2005–20 I.R.B. 1050.See IR–2005–84; IR–2005–91; IR–2005–96; IR–2005–103. Notice 2005–73 and News Release IR–2005–109 summarize the re- lief granted and the definitions of affected taxpayers and covered disaster area. On September 23, 2005, the President signed the Katrina Emergency Tax Relief Act of 2005, Pub. L. 109–73 (KETRA). Section 403(b) of KETRA provides that in the case of any taxpayer determined by the Secretary of the Treasury to be affected by the Presidentially declared disaster relat- ing to Hurricane Katrina, any relief pro- vided under section 7508A should be for a period ending not earlier than February 28, 2006. By News Release IR–2005–112 of September 28, 2005, the IRS informed affected taxpayers of the postponement of time to February 28, 2006, to file returns, pay taxes, and perform other time-sensi- tive acts under the tax laws. In consid- eration of the additional time Congress granted affected taxpayers to file, pay, and perform certain acts, this notice supple- ments Notice 2005–66 by extending the period for the IRS to perform certain acts otherwise due on or after September 6, 2005, and on or before February 28, 2006, to February 28, 2006. Affected taxpayers Under section 301.7508A–1(d)(1)(vii), the IRS may determine that any other per- son is affected by a Presidentially-declared disaster and thereforeeligible for relief. Accordingly, the IRS has determined that the following persons are also affected by Hurricane Katrina and its aftermath: (1) all workers assisting in the relief activi- ties in the covered disaster area, regardless of whether they are affiliated with recog- nized government or philanthropic organi- zations; (2) any individual whose principal residence, and any business entity whose principal place of business, is not located in the covered disaster area, but whose tax professional/practitioner’s office is lo- cated in the covered disaster area; and (3) individuals, visiting the covered disaster areas, who were killed or injured as a result of Hurricane Katrina and its aftermath. For purposes of (3) above, the estate of an in- dividual visiting the covered disaster who was killed as a result of the hurricane is also considered to be an affected taxpayer. SeeNotice 2005–73. Thus, this notice sup- plements Notice 2005–66 by extending the period for the IRS to perform certain acts related to affected taxpayers as defined in Notice 2005–73 otherwise due on or after September 6, 2005, and on or before Feb- ruary 28, 2006, to February 28, 2006. Time for Issuing Notice of Final Partnership Administrative Adjustment In addition to the acts listed in Notice 2005–66, for affected taxpayers described in Notice 2005–66 (including taxpayers whose documents maintained by the IRS within the covered disaster area may have been lost or destroyed as a result of Hurri- cane Katrina, or remain in buildings that are inaccessible) and this notice, a post- ponement until February 28, 2006, is pro- vided under section 7508A for the IRS to issueanFPAAtotheTaxMattersPart- ner under section 6223 with respect to the tax attributable to the partnership items of partners of any partnership that is an af- fected taxpayer if the last date for issuance of the FPAA is on or after November 7, 2005, and on or before February 28, 2006. DRAFTING INFORMATION The principal author of this notice is Dillon Taylor of the Office of Associate Chief Counsel, Procedure and Administra- tion (Administrative Provisions and Judi- cial Practice Division). For further infor- mation regarding thisnotice, you may call (202) 622–4940 (not a toll-free call). November 21, 20059772005–47 I.R.B. Rita — Government Act Notice Notice 2005–82 PURPOSE This notice under section 7508A post- pones the deadlines for certain acts per- formed by the Internal Revenue Service (IRS) with respect to certain taxpayers affected by Hurricane Rita. In response to Hurricane Rita, the President issued disaster declarations on September 23, 2005, covering Texas and Louisiana. The Presidential declarations authorized, un- der the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121–5206 (Stafford Act), the Fed- eral Emergency Management Agency (FEMA) to provide Individual Assistance, Public Assistance, and assistance under the Hazard Mitigation Grant Program to counties and parishes in each state. Un- der that authority, FEMA determined that certain counties and parishes within those states were eligible for both Individual Assistance and Public Assistance, that all counties in Texas and all parishes in Louisiana were eligible for Public Assis- tance, and that all counties and parishes could apply for assistance under the Haz- ard Mitigation Grant Program. By News Release IR–2005–110 of September 26, 2005, the IRS granted re- lief for taxpayers affected by Hurricane Rita. News Release IR–2005–110 pro- vided that all counties and parishes in Texas and Louisiana constitute a “cov- ered disaster area” within the meaning of § 301.7508A–1(d)(2), of the Procedure & Administration Regulations. Further, News Release IR–2005–110 provided that taxpayers affected by the disaster will have until February 28, 2006, to file tax returns and submit payments. In addition, News Release IR–2005–110 provided affected taxpayers until Febru- ary 28, 2006, to perform the acts listed in section 301.7508A–1(c)(1) and Rev. Proc. 2005–27, 2005–20 I.R.B. 1050 (May 16, 2005). BACKGROUND Section 7508A provides the Secretary with authority to postpone the time for performing certain acts under the internal revenue laws for a taxpayer affected by a Presidentially declared disaster as de- fined in section 1033(h)(3). Pursuant to section 7508A(a), a period of up to one year may be disregarded in determining whether the performance of certain acts by affected taxpayers is timely under the in- ternal revenue laws. Section 7508A(a)(1) includes the acts listed in section 7508(a) as those that may be postponed.See also § 301.7508A–1(c)(1). Section 7508(a) and § 301.7508A–1(c)(1) include a number of acts performed by taxpayers for which sec- tion 7508A relief may apply. These in- clude, but are not limited to: the filing of certain tax returns; the payment of certain taxes; the filing of a Tax Court petition; the filing of a claim for credit or refund of tax; and the bringing of a lawsuit upon a claim for credit or refund of tax. Section 301.7508A–1(d)(1) describes several types of “affected taxpayers” el- igible for certain postponements of up to one year. These affected taxpayers include any individual whose principal residence, and any business entity whose principal place of business, is located in the cov- ered disaster area; any individual who is a relief worker affiliated with a recognized government or philanthropic organiza- tion and who is assisting in the covered disaster area; any individual whose prin- cipal residence, and any business entity whose principal place of business, is not located in the covereddisaster area, but whose records necessary to meet a filing or payment deadline are maintained in the covered disaster area; any estate or trust that has tax records necessary to meet a filing or payment deadline in the covered disaster area; and any spouse of an af- fected taxpayer, solely with regard to a joint return of the husband and wife. Additionally,undersection 301.7508A–1(d)(1)(vii), the IRS may determine that any other person is affected by a Presidentially declared disaster and is therefore eligible for relief. Accordingly, as stated in News Release IR–2005–110, the IRS has determined that the following persons are also affected by Hurricane Rita and its aftermath: (1) all workers assisting in the relief activities in the covered disaster area, regardless of whether they are affiliated with rec- ognized government or philanthropic organizations; (2) any individual whose principal residence, and any business entity whose principal place of business, is not located in the covered disaster area, but whose tax professional/practitioner’s office is located in the covered disaster area; and (3) individuals, visiting the covered disaster area, who were killed or injured as a result of Hurricane Rita and its aftermath. For purposes of (3) above, the estate of an individual visiting the covered disaster area who was killed as a result of the hurricane is also considered to be an affected taxpayer.SeeIR–2005–110. ACTSPERFORMEDBYTHE GOVERNMENT In News Release IR–2005–110, the IRS granted affected taxpayers additional time until February 28, 2006, to file tax re- turns, to submit payments, and to perform certain time-sensitive acts listed in sec- tion 301.7508A–1(c)(1) and in Rev. Proc. 2005–27. In consideration of the addi- tional time that affected taxpayers have been granted to perform certain acts, this notice extends the period for the govern- ment to take certain actions. Under the au- thority of section 7508A(a)(1) and section 301.7508A–1(c)(2), for affected taxpayers covered by News Release IR–2005–110, this notice provides a postponement until February 28, 2006, under section 7508A for the following government acts if the last date for performance of the act is on or after November 7, 2005, and on or be- fore February 28, 2006: making an assess- ment of any tax; issuing a statutory no- tice of deficiency; allowing a credit or re- fund of any tax; collecting by the Secre- tary, by levy or otherwise, the amount of any liability in respect of any tax; bring- ing suit by the United States, or any officer on its behalf, in respect of any tax liabil- ity; returning property under section 6343; discharging an executor from personal lia- bility for a decedent’s taxes under section 6905; and issuing a notice of Final Partner- ship Administrative Adjustment (FPAA) to the Tax Matters Partner under section 6223 with respect to the tax attributable to the partnership items of partners of any partnership subject to TEFRA proceedings that is an affected taxpayer. Documents maintained by the IRS within the covered disaster area may have been lost or destroyed as a result of Hur- ricane Rita, or remain in buildings that are inaccessible. The destruction, loss or inaccessibility of these documents will 2005–47 I.R.B.978November 21, 2005 materially interfere with the IRS’s ability to timely administer the internal revenue laws with respect to certain taxpayers. The taxpayers to whom these records relate are “affected taxpayers”for the limited pur- poses set forth in this paragraph. In these cases, a postponement until February 28, 2006, is provided under section 7508A for the following government acts if the last date for performance of the act is on or after November 7, 2005, and on or before February 28, 2006: making an assessment of any tax; issuing a statutory notice of de- ficiency; allowing a credit or refund of any tax; collecting by theSecretary, by levy or otherwise, the amount of any liability in respect of any tax; bringing suit by the United States, or any office on its behalf, in respect of any tax liability; returning property under section 6343; the discharge of an executor from personal liability for a decedent’s taxes under section 6905, and issuing an FPAA under section 6223 as described above. The disregarding of time under section 7508A results in a deadline of February 28, 2006, not in a suspension of a period. The IRS will notify as soon as practicable any affected taxpayers, as defined under this paragraph, of the gov- ernment act or acts that will be postponed. DRAFTING INFORMATION The principal author of this notice is Dillon Taylor of the Office of Associate Chief Counsel, Procedure and Administra- tion (Administrative Provisions and Judi- cial Practice Division). For further infor- mation regarding thisnotice, you may call (202) 622–4940 (not a toll-free call). 26 CFR 601.602: Tax forms and instructions. (Also Part I, §§ 1, 23, 24, 25A, 32, 42, 59, 62, 63, 68, 132, 135, 137, 146, 148, 151, 170, 179, 213, 220, 221, 223, 512, 513, 685, 877, 2032A, 2503, 2523, 4161, 4261, 6033, 6039F, 6323, 6334, 6601, 7430, 7702B; 1.148–5.) Rev. Proc. 2005–70 TABLE OF CONTENTS SECTION 1. PURPOSE SECTION 2. CHANGES SECT ION 3. 2006 ADJUSTED ITEMS C odeSection .01TaxRateTables.......................................................................... 1(a)–(e) .02 UnearnedIncomeofMinorChildrenTaxedasifParent’sIncome(“KiddieTax”)................ 1(g ) .03AdoptionCredit.......................................................................... 23 .04ChildTaxCredit......................................................................... 24 .05 HopeandLifetimeLearningCredits........................................................ 25A .06EarnedIncomeCredit..................................................................... 32 .07Low-IncomeHousingCredit .............................................................. 42(h) .0 8AlternativeMinimumTaxExemptionforaChildSubjecttothe“KiddieTax”................... 59 (j) .09 Transportation Mainline Pipeline ConstructionIndustry Optional Expense Substantiation Rules for PaymentstoEmployeesunderAccountablePlans ............................................... 62(c) .10StandardDeduction ...................................................................... 63 . 11OverallLimitationonItemizedDeductions.................................................. 6 8 .12QualifiedTransportationFringe............................................................ 132(f) .13 Income from United States Savings Bonds for Taxpayers Who Pay Qualified Higher Education Expenses................................................................................... 135 .14AdoptionAssistancePrograms............................................................. 137 .15PrivateActivityBondsVolumeCap........................................................ 146(d) .16 Safe Harbor Rules for Broker Commissions on Guaranteed Investment Contracts or Investments PurchasedforaYieldRestrictedDefeasanceEscrow............................................. 148 .17PersonalExemption...................................................................... 151 .18ElectiontoExpenseCertainDepreciableAssets.............................................. 179 November 21, 20059792005–47 I.R.B. .19EligibleLong-TermCarePremiums........................................................ 213(d)(10) .20MedicalSavingsAccounts ................................................................ 220 .21InterestonEducationLoans............................................................... 221 .22HealthSavingsAccounts.................................................................. 223 .23TreatmentofDuesPaidtoAgriculturalorHorticulturalOrganizations.......................... 512(d) .24 Insubstantial Benefit Limitations for Contributions Associated with Charitable Fund-Raising Campaigns ................................................................................. 513(h) .25FuneralTrusts ........................................................................... 685 .26ExpatriationtoAvoidTax................................................................. 877 .27 Valuation of Qualified Real Property in Decedent’s Gross Estate............................... 2032A .28AnnualExclusionforGifts................................................................ 2503&2523 .29TaxonArrowShafts...................................................................... 4161 .30PassengerAirTransportationExciseTax.................................................... 4261 .31 Reporting Exception for Certain Exempt Organizations with Nondeductible Lobbying Expenditures ............................................................................... 6033(e)(3) .32 Notice of Large Gifts Received from Foreign Persons........................................ 6039F .33PersonsAgainstWhichaFederalTaxLienIsNotValid....................................... 6323 .34PropertyExemptfromLevy............................................................... 6334 .35InterestonaCertainPortionoftheEstateTaxPayableinInstallments.......................... 6601(j) .36AttorneyFeeAwards..................................................................... 7430 .37 Periodic Payments Received under Qualified Long-Term Care Insurance Contracts or under Certain LifeInsuranceContracts ..................................................................... 7702B(d) SECTION 4. EFFECTIVE DATE SECTION 5. DRAFTING INFORMATION SECTION 1. PURPOSE This revenue procedure sets forth infla- tion adjusted items for 2006. SECTION 2. CHANGES .01 The amount of tax imposed by § 4161(b)(2)(A) on the first sale by the manufacturer, producer, or importer of any shaft of a type used in the manu- facture of certain arrows is adjusted for inflation. (Section 3.29). SECTION3.2006ADJUSTEDITEMS .01Tax Rate Tables. For taxable years beginning in 2006, the tax rate tables under §1areasfollows: TABLE 1 — Section 1(a). — Married Individuals Filing Joint Returns and Surviving Spouses If Taxable Income Is:The Tax Is: Not Over $15,100 10% of the taxable income Over $15,100 but not over $61,300$1,510 plus 15% of the excess over $15,100 Over $61,300 but not over $123,700$8,440 plus 25% of the excess over $61,300 Over $123,700 but not over $188,450$24,040 plus 28% of the excess over $123,700 Over $188,450 but not over $336,550$42,170 plus 33% of the excess over $188,450 Over $336,550$91,043 plus 35% of the excess over $336,550 2005–47 I.R.B.980November 21, 2005 TABLE 2 — Section 1(b). — Heads of Households If Taxable Income Is:The Tax Is: Not Over $10,750 10% of the taxable income Over $10,750 but not over $41,050$1,075 plus 15% of the excess over $10,750 Over $41,050 but not over $106,000$5,620 plus 25% of the excess over $41,050 Over $106,000 but not over $171,650$21,857.50 plus 28% of the excess over $106,000 Over $171,650 but not over $336,550$40,239.50 plus 33% of the excess over $171,650 Over $336,550$94,656.50 plus 35% of the excess over $336,550 TABLE 3 — Section 1(c). — Unmarried Individuals (other than Surviving Spouse and Heads of Households). If Taxable Income Is:The Tax Is: Not Over $7,550 10% of the taxable income Over $7,550 but not over $30,650$755 plus 15% of the excess over $7,550 Over $30,650 but not over $74,200$4,220 plus 25% of the excess over $30,650 Over $74,200 but not over $154,800$15,107.50 plus 28% of the excess over $74,200 Over $154,800 but not over $336,550$37,675.50 plus 33% of the excess over $154,800 Over $336,550$97,653 plus 35% of the excess over $336,550 TABLE 4 — Section 1(d). — Married Individuals Filing Separate Returns If Taxable Income Is:The Tax Is: Not Over $7,550 10% of the taxable income Over $7,550 but not over $30,650$755 plus 15% of the excess over $7,550 Over $30,650 but not over $61,850$4,220 plus 25% of the excess over $30,650 Over $61,850 but not over $94,225$12,020 plus 28% of the excess over $61,850 Over $94,225 but not over $168,275$21,085 plus 33% of the excess over $94,225 Over $168,275$45,521.50 plus 35% of the excess over $168,275 TABLE 5 — Section 1(e). — Estates and Trusts I f Taxable Income Is: T he Tax Is: Not Over $2,050 15% of the taxable income Over $2,050 but not over $4,850$307.50 plus 25% of the excess over $2,050 Over $4,850 but not over $7,400$1,007.50 plus 28% of the excess over $4,850 Over $7,400 but not over $10,050$1,721.50 plus 33% of the excess over $7,400 Over $10,050$2,596 plus 35% of the excess over $10,050 .02Unearned Income of Minor Chil- dren Taxed as if Parent’s Income (the “Kiddie Tax”).For taxable years beginning in 2006, the amount in § 1(g)(4)(A)(ii)(I), which is used to reduce the net unearned income reported on the child’s return that is subject to the “kiddie tax,” is $850. (This amount is the same as the $850 standard deduction amount provided in section 3.10(2) of this revenue procedure.) The same $850 amount is used for purposes of § 1(g)(7) (that is, in determining whether a parent may elect to include a child’s gross income in the parent’s gross income and for calculating the “kiddie tax”). For example, one of the requirements for the parental election is that a child’s gross income is more than the November 21, 20059812005–47 I.R.B. amount referenced in § 1(g)(4)(A)(ii)(I) but less than 10 times such amount; thus, a child’s gross income for 2006 must be more than $850 but less than $8,500 to satisfy that requirement. .03Adoption Credit. For taxable years beginning in 2006, under § 23(a)(3) the maximum credit allowed for an adoption of a child with special needs is $10,960. For taxable years beginning in 2006, under § 23(b)(1) the maximum credit al- lowed with regard to other adoptions is the amount of qualified adoption expenses up to $10,960. The available adoption credit begins to phase out under § 23(b)(2)(A) for taxpayers with modified adjusted gross income in excess of $164,410 and is completely phased out for taxpayers with modified adjusted gross income of $204,410. (See section 3.14 of this rev- enue procedure for the adjusted items relating to adoption assistance programs.) .04Child Tax Credit. For taxable years beginning in 2006, the value used in § 24(d)(1)(B)(i) in determining the amount of credit under § 24 that may be refundable is $11,300. .05Hope and Lifetime Learning Cred- its. (1) For taxable years beginning in 2006, 100 percent of qualified tuition and re- lated expenses not in excess of $1,100 and 50 percent of such expenses in excess of $1,100 are taken into account in determin- ing the amount of the Hope Scholarship Credit under § 25A(b)(1). (2) For taxable years beginning in 2006, a taxpayer’s modified adjusted gross income in excess of $45,000 ($90,000 for a joint return) is taken into account in determining the reduction un- der § 25A(d)(2)(A)(ii) in the amount of the Hope Scholarship and Lifetime Learn- ing Credits otherwise allowable under §25A(a). .06Earned Income Credit. (1)In general. For taxable years be- ginning in 2006, the following amounts are used to determine the earned income credit under § 32(b). The “earned in- come amount” is the amount of earned income at or above which the maximum amount of the earned income credit is al- lowed. The “threshold phaseout amount” is the amount of adjusted gross income (or, if greater, earned income) above which the maximum amount of the credit begins to phase out. The “completed phaseout amount” is the amount of adjusted gross income (or if greater, earned income) at or above which no credit is allowed. Number of Qualifying Children ItemOneTwo or MoreNone Earned Income Amount $ 8,080$11,340$ 5,380 Maximum Amount of Credit $ 2,747$ 4,536$ 412 Threshold Phaseout Amount (Single, Surviving Spouse, or Head of Household) $14,810$14,810$ 6,740 Completed Phaseout Amount (Single, Surviving Spouse, or Head of Household) $32,001$36,348$12,120 Threshold Phaseout Amount (Married Filing Jointly) $16,810$16,810$ 8,740 Completed Phaseout Amount (Married Filing Jointly) $34,001$38,348$14,120 The instructions for the Form 1040 se- ries provide tables showing the amount of the earned income credit for each type of taxpayer. (2)Excessive investment income.For taxable years beginning in 2006, the earned income tax credit is denied under § 32(i) if the aggregate amount of certain investment income exceeds $2,800. .07Low-Income Housing Credit.For calendar year 2006, the amounts used un- der § 42(h)(3)(C)(ii) to calculate the State housing credit ceiling for the low-income housing credit is the greater of (i) $1.90 multiplied by the State population, or (ii) $2,190,000. .08Alternative Minimum Tax Exemp- tion for a Child Subject to the “Kiddie Tax.”For taxable years beginning in 2006, for a child to whom the § 1(g) “kiddie tax” applies, the exemption amount under §§ 55 and 59(j) for purposes of the alternative minimum tax under § 55 may not exceed the sum of (i) such child’s earned income for the taxable year, plus (ii) $6,050. .09Transportation Mainline Pipeline Construction Industry Optional Expense Substantiation Rules for Payments to Em- ployees under Accountable Plans.For calendar year 2006, an eligible employer may pay certain welders and heavy equip- mentmechanicsanamountofupto$14 per hour for rig-related expenses that is deemed substantiated under an account- able plan when paid in accordance with Rev. Proc. 2002–41, 2002–1 C.B. 1098. If the employer provides fuel or otherwise reimburses fuel expenses, up to $8 per hour is deemed substantiated when paid under Rev. Proc. 2002–41. .10Standard Deduction. (1)In general. For taxable years be- ginning in 2006, the standard deduction amounts under § 63(c)(2) are as follows: 2005–47 I.R.B.982November 21, 2005 Filing StatusStandard Deduction Married Individuals Filing Joint Returns and Surviving Spouses (§ 1(a)) $10,300 Heads of Households (§ 1(b)) $ 7,550 Unmarried Individuals (other than Surviving Spouses and Heads of Households) (§ 1(c)) $ 5,150 Married Individuals Filing Separate Returns (§ 1(d)) $ 5,150 (2)Dependent. For taxable years be- ginning in 2006, the standard deduction amount under § 63(c)(5) for an individual who may be claimed as a dependent by an- other taxpayer may not exceed the greater of (i) $850, or (ii) the sum of $300 and the individual’s earned income. (3)Aged and blind. For taxable years beginning in 2006, the additional standard deduction amounts under § 63(f) for the aged and for the blindare $1,000 for each. These amounts are increased to $1,250 if the individual is also unmarried and not a surviving spouse. .11Overall Limitation on Itemized De- ductions. For taxable years beginning in 2006, the “applicable amount” of adjusted gross income under § 68(b), above which the amount of otherwise allowable item- ized deductions is reduced under § 68, is $150,500 (or $75,250 for a separate return filed by a married individual). .12Qualified Transportation Fringe. For taxable years beginning in 2006, the monthly limitation under § 132(f)(2)(A) (regarding the aggregate fringe benefit exclusion amount for transportation in a commuter highway vehicle and any tran- sit pass) is $105. The monthly limitation under § 132(f)(2)(B) (regarding the fringe benefit exclusion amount for qualified parking) is $205. .13Income from United States Savings Bonds for Taxpayers Who Pay Qualified Higher Education Expenses. For taxable years beginning in 2006, the exclusion un- der § 135 (regarding income from United States savings bonds for taxpayers who pay qualified higher education expenses) begins to phase out for modified adjusted gross income above $94,700 for joint re- turns and $63,100 for other returns. This exclusion completely phases out for modi- fied adjusted gross income of $124,700 or more for joint returns and $78,100 or more for other returns. .14Adoption Assistance Programs.For taxable years beginning in 2006, under § 137(a)(2) the maximum amount that can be excluded from an employee’s gross income in connection with the adoption by the employee of a child with special needs is $10,960. For taxable years be- ginning in 2006, under § 137(b)(1) the maximum amount that can be excluded from an employee’s gross income for the amounts paid or expenses incurred by the employer for qualified adoption expenses furnished pursuant to an adoption assis- tance program in connection with other adoptions by the employee is $10,960. The amount excludable from an employee’s gross income begins to phase out under § 137(b)(2)(A) for taxpayers with mod- ified adjusted gross income in excess of $164,410 and is completely phased out for taxpayers with modified adjusted gross income of $204,410. (See section 3.03 of this revenue procedure for the adjusted items relating to the adoption credit.) .15Private Activity Bonds Volume Cap. For calendar year 2006, the amounts used under § 146(d)(1) to calculate the State ceiling for the volume cap for private activity bonds is the greater of (i) $80 multiplied by the State population, or (ii) $246,610,000. .16Safe Harbor Rules for Broker Commissions on Guaranteed Invest- ment Contracts or Investments Purchased for a Yield Restricted Defeasance Es- crow. For calendar year 2006, under § 1.148–5(e)(2)(iii)(B)(1), a broker’s commission or similar fee with respect to the acquisition of a guaranteed invest- ment contract or investments purchased for a yield restricted defeasance escrow is reasonable to the extent that (i) the amount of the fee that the issuer treats as a qualified administrative cost does not exceed the lesser of (A) $32,000, or (B) 0.2 percent of the computational base (as defined in § 1.148–5(e)(2)(iii)(B)(2)) or, if more, $3,000; and (ii) the issuer does not treat more than $90,000 in brokers’ commissions or similar fees as qualified administrative costs with respect to all guaranteed investment contracts and in- vestments for yield restricted defeasance escrows purchased with gross proceeds of the issue. .17Personal Exemption. (1)Exemption amount. For taxable years beginning in 2006, the personal ex- emption amount under § 151(d) is $3,300. (2)Phase out. For taxable years be- ginning in 2006, the personal exemption amount begins to phase out at, and is com- pletely phased out after, the following ad- justed gross income amounts: Filing StatusAGI – Beginning of Phaseout AGI – Exemption Fully Phased Out Married Individuals Filing Joint Returns and Surviving Spouses (§ 1(a)) $225,750$348,250 Heads of Households (§ 1(b)) $188,150$310,650 Unmarried Individuals (other than Surviving Spouses and Heads of Households) (§ 1(c)) $150,500$273,000 Married Individuals Filing Separate Returns (§ 1(d)) $112,875$174,125 November 21, 20059832005–47 I.R.B. .18Election to Expense Certain Depre- ciable Assets. For taxable years beginning in 2006, under § 179(b)(1) the aggregate cost of any § 179 property a taxpayer may elect to treat as an expense shall not exceed $108,000. Under § 179(b)(2) the $108,000 limitation shall be reduced (but not below zero) by the amount by which the cost of § 179 property placed in service during the 2006 taxable year exceeds $430,000. .19Eligible Long-Term Care Premi- ums. For taxable years beginning in 2006, the limitations under § 213(d)(10) (re- garding eligible long-term care premiums includible in the term “medical care”) are as follows: Attained Age Before the Close of the Taxable YearLimitation on Premiums 40 or less $280 More than 40 but not more than 50 $530 More than 50 but not more than 60 $1,060 More than 60 but not more than 70 $2,830 More than 70 $3,530 .20Medical Savings Accounts. (1)Self-only coverage. For taxable years beginning in 2006, the term “high deductible health plan” as defined in § 220(c)(2)(A) means,for self-only cov- erage, a health plan that has an annual deductible that is not less than $1,800 and not more than $2,700, and under which the annual out-of-pocket expenses required to be paid (other than for premiums) for cov- ered benefits does not exceed $3,650. (2)Family coverage. For taxable years beginning in 2006, the term “high de- ductible health plan” means, for family coverage, a health plan that has an annual deductible that is not less than $3,650 and not more than $5,450, and under which the annual out-of-pocket expenses required to be paid (other than for premiums) for cov- ered benefits does not exceed $6,650. .21Interest on Education Loans.For taxable years beginning in 2006, the $2,500 maximum deduction for interest paid on qualified education loans under § 221 is reduced under § 221(b)(2)(B) when modified adjusted gross income ex- ceeds $50,000 ($105,000 for joint returns), and is completely eliminated when mod- ified adjusted gross income is $65,000 ($135,000 for joint returns). .22Health Savings Accounts. (1)Monthly contribution limitation. For calendar year 2006, the monthly limi- tation on deductions under § 223(b)(2)(A) for an individual with self-only coverage under a high deductible plan as of the first dayofsuchmonthis 1 /12ofthelesserof(i) the annual deductible, or (ii) $2,700. For calendar year 2006, the monthly limitation on deductions under § 223(b)(2)(B) for an individual with family coverage under a high deductible plan as of the first day of such month is 1 /12of the lesser of (i) the annual deductible, or (ii) $5,450. (2)High deductible health plan.For calendar year 2006, a high deductible health plan is defined under § 223(c)(2)(A) as a health plan with an annual deductible that is not less than $1,050 for self-only coverage or $2,100 for family coverage, and the annual out-of pocket expenses (deductibles, co-payments, and other amounts, but not premiums) do not ex- ceed $5,250 for self-only coverage or $10,500 for family coverage. .23Treatment of Dues Paid to Agricul- tural or Horticultural Organizations.For taxable years beginning in 2006, the limi- tation under § 512(d)(1) (regarding the ex- emption of annual dues required to be paid by a member to an agricultural or horticul- tural organization) is $131. .24Insubstantial Benefit Limitations for Contributions Associated with Chari- table Fund-Raising Campaigns. (1)Low cost article. For taxable years beginning in 2006, the unrelated business income of certain exempt organizations under § 513(h)(2) does not include a “low cost article” of $8.60 or less. (2)Other insubstantial benefits.For taxable years beginning in 2006, the $5, $25, and $50 guidelines in section 3 of Rev. Proc. 90–12, 1990–1 C.B. 471 (as amplified and modified), for disregarding the value of insubstantial benefits received by a donor in return for a fully deductible charitable contribution under § 170, are $8.60, $43, and $86, respectively. .25Funeral Trusts. For a contract en- tered into during calendar year 2006 for a “qualified funeral trust,” as defined in § 685, the trust may not accept aggregate contributions by or for the benefit of an in- dividual in excess of $8,500. .26Expatriation to Avoid Tax. For cal- endar year 2006, an individual with “av- erage annual net income tax” of more than $131,000 for the 5 taxable years ending be- fore the date of the loss of United States citizenship under § 877(a)(2)(A) is subject to tax under § 877(b). .27Valuation of Qualified Real Prop- erty in Decedent’s Gross Estate.Foran estate of a decedent dying in calendar year 2006, if the executor elects to use the spe- cial use valuation method under § 2032A for qualified real property, the aggregate decrease in the value of qualified real prop- erty resulting from electing to use § 2032A that is taken into account for purposes of the estate tax may not exceed $900,000. .28Annual Exclusion for Gifts. (1) For calendar year 2006, the first $12,000 of gifts to any person (other than gifts of future interests in property) are not included in the total amount of taxable gifts under § 2503 made during that year. (2) For calendar year 2006, the first $120,000 of gifts to a spouse who is not a citizen of the United States (other than gifts of future interests in property) are not included in the total amount of taxable gifts under §§ 2503 and 2523(i)(2) made during that year. .29Tax on Arrow Shafts. For calen- dar year 2006, the tax imposed under § 4161(b)(2)(A) on the first sale by the manufacturer, producer, or importer of any shaft of a type used in the manufac- ture of certain arrows is $0.40 per shaft. .30Passenger Air Transportation Ex- cise Tax. For calendar year 2006, the tax 2005–47 I.R.B.984November 21, 2005 under § 4261(b) on the amount paid for each domestic segment of taxable trans- portation by air is $3.30. For calendar year 2006, the tax under § 4261(c) on any amount paid (whether within or without the United States) for any transportation ofanypersonbyair,ifsuchtransportation begins or ends in the United States, gen- erally is $14.50. However, for a domes- tic segment beginning or ending in Alaska or Hawaii as described in § 4261(c)(3), the tax only applies to departures and is at the rate of $7.30. .31Reporting Exception for Certain Exempt Organizations with Nondeductible Lobbying Expenditures. For taxable years beginning in 2006, the annual per per- son, family, or entity dues limitation to qualify for the reporting exception under § 6033(e)(3) (and section 5.05 of Rev. Proc. 98–19, 1998–1 C.B. 547), regarding certain exempt organizations with nonde- ductible lobbying expenditures, is $91 or less. .32Notice of Large Gifts Received from Foreign Persons. For taxable years begin- ning in 2006, recipients of gifts from cer- tain foreign persons may be required to re- port these gifts under § 6039F if the ag- gregate value of gifts received in a taxable year exceeds $12,760. .33Persons Against Which a Federal Tax Lien Is Not Valid. For calendar year 2006, a federal tax lien is not valid against (i) certain purchasers under § 6323(b)(4) who purchased personal property in a casual sale for less than $1,240, or (ii) a mechanic’s lienor under § 6323(b)(7) that repaired or improved certain residen- tial property if the contract price with the owner is not more than $6,210. .34Property Exempt from Levy.For calendar year 2006, the value of property exempt from levy under § 6334(a)(2) (fuel, provisions, furniture, and other household personal effects, as well as arms for per- sonal use, livestock, and poultry) may not exceed $7,430. The value of property ex- empt from levy under § 6334(a)(3) (books and tools necessary for the trade, business, or profession of the taxpayer) may not ex- ceed $3,710. .35InterestonaCertainPortionofthe Estate Tax Payable in Installments.Foran estate of a decedent dying in calendar year 2006, the dollar amount used to determine the “2-percent portion” (for purposes of calculating interest under § 6601(j)) of the estate tax extended as provided in § 6166 is $1,200,000. .36Attorney Fee Awards. For fees incurred in calendar year 2006, the attorney fee award limitation under § 7430(c)(1)(B)(iii) is $160 per hour. .37Periodic Payments Received un- der Qualified Long-Term Care Insurance Contracts or under Certain Life Insur- ance Contracts. For calendar year 2006, the stated dollar amount of theper diem limitation under § 7702B(d)(4) (regarding periodic payments received under a qual- ified long-term care insurance contract or periodic payments received under a life insurance contract that are treated as paid by reason of the death of a chronically ill individual) is $250. SECTION 4. EFFECTIVE DATE .01General Rule. Except as provided in section 4.02, this revenue procedure ap- plies to taxable years beginning in 2006. .02Calendar Year Rule. This revenue procedure applies to transactions or events occurring in calendar year 2006 for pur- poses of sections 3.07 (low-income hous- ing credit), 3.09 (pipeline construction industry optional expense substantiation rules), 3.15 (private activity bond volume cap), 3.16 (safe harbor rules for broker commissions on guaranteed investment contracts or investments purchased for a yield restricted defeasance escrow), 3.22 (health savings accounts), 3.25 (funeral trusts), 3.26 (expatriation to avoid tax), 3.27 (valuation of qualified real property in decedent’s gross estate), 3.28 (annual exclusion for gifts),3.29(taxonarrow shafts), 3.30 (passenger air transportation excise tax), 3.33 (persons against which a federal tax lien is not valid), 3.34 (prop- erty exempt from levy), 3.35 (interest on a certain portion of the estate tax payable in installments), 3.36 (attorney fee awards), and 3.37 (periodic payments received un- der qualified long-term care insurance contracts or under certain life insurance contracts). SECTION 5. DRAFTING INFORMATION The principal author of this revenue procedure is Marnette M. Myers of the Of- fice of Associate Chief Counsel (Income Tax & Accounting). For further infor- mation regarding this revenue procedure, contact Ms. Myers at (202) 622–4920 (not a toll-free call). 26 CFR 1.1441–7: Extension of offer to resolve issues arising from certain tax, withholding, and reporting obligations of U.S. withholding agents with respect to payments to foreign persons. AmendmenttoSunsetDate of Section 1441 Voluntary Compliance Program Under Rev. Proc. 2004–59 Rev. Proc. 2005–71 SECTION 1. PURPOSE This revenue procedure modifies Rev. Proc. 2004–59, 2004–2 C.B. 678, to ex- tend the sunset date of the Section 1441 Voluntary Compliance Program (“Section 1441 VCP”) to March 31, 2006. SECTION 2. BACKGROUND Rev. Proc. 2004–59 set forth the pro- visions of the Section 1441 VCP, a pro- gram that is available to certain withhold- ing agents with respect to the withholding, payment, and reporting of certain taxes due on payments to foreign persons. The IRS initiated the Section 1441 VCP as a temporary program. Section 6 of Rev. Proc. 2004–59 provided that the Section 1441 VCP became effective September 29, 2004, and would be available for submis- sions made on or before December 31, 2005. The volume of Section 1441 VCP sub- missions has increased steadily since the inception of the program. Many withhold- ing agents that wish to participate in the program will not be able to complete the submission process before December 31, 2005, and will be excluded from participa- tion in the VCP without an extension. To enable such withholding agents to partic- ipate in the VCP, this revenue procedure amends Section 6 of Rev. Proc. 2004–59 to extend the sunset date of the program for three months, to March 31, 2006. In addition, this revenue procedure amends Section 5.01, which allows taxpayers to re- quest extensions to complete VCP submis- sions under certain circumstances. This revenue procedure provides that, for sec- November 21, 20059852005–47 I.R.B. tion 1441 VCP submissions made after December 31, 2005, no extensions will be granted beyond June 30, 2006. SECTION 3. EXTENSION OF SUNSET DATE Sections 5 and 6 of Rev. Proc. 2004–59 are amended as follows. In Section 5.01, the following sentence is added after the existing text. “For sec- tion 1441 VCP submissions made after December 31, 2005, no extensions will be granted beyond June 30, 2006.” In Section 6, the second sentence is amended by deleting “December 31, 2005” and inserting in its place, “March 31, 2006.” A third, fourth, and fifth sen- tence are added as follows: “A Section 1441 VCP submission may not be made for calendar year 2005 Forms 1042 and 1042-S. A Section 1441 VCP submission made after December 31, 2005, must in- clude an executed Form 872,Consent to Extend the Time to Assess Tax, consenting to extend for one additional year the time to assess tax with respect to amounts re- portable on Form 1042 for the 2002 year. If the withholding agent has filed a Form 945 for the 2002 year, it should further include an executed Form SS–10,Consent to Extend the Time to Assess Employment Taxes, to extend the assessment period for income tax withholding for an additional year.” SECTION 4. INQUIRIES For further information regarding the Section 1441 VCP contact the Section 1441 VCP Coordinator at (212) 298–2698 (not a toll-free number). SECTION 5. EFFECT ON OTHER DOCUMENTS Rev. Proc. 2004–59 is modified. SECTION 6. EFFECTIVE DATE This revenue procedure is effective September 29, 2004, the effective date of Rev. Proc. 2004–59. SECTION 7. DRAFTING INFORMATION The principal author of this revenue procedure is Kathryn Holman of the Office of Associate Chief Counsel (In- ternational). For further information re- garding this revenue procedure, contact Kathryn Holman at (202) 622–3840 (not a toll-free call). 2005–47 I.R.B.986November 21, 2005 Part IV. Items of General Interest Notice of Proposed Rulemaking and Notice of Public Hearing Income Attributable to Domestic Production Activities REG–105847–05 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemak ing and notice of public hearing. SUMMARY: This document contains pro- posed regulations concerning the deduc- tion for income attributable to domestic production activities under section 199. Section 199 was enacted as part of the American Jobs Creation Act of 2004, (the Act). The regulations will affect taxpayers engaged in certain domestic production activities. This document also provides a notice of a public hearing on these pro- posed regulations. DATES: Written or electronic comments must be received by January 3, 2006. Out- lines of topics to be discussed at the public hearing scheduled for Wednesday, January 11, 2006, must be received by December 21, 2005. ADDRESSES: Send submissions to: CC:PA:LPD:PR(REG–105847–05), room 5203, Internal Revenue Ser- vice, POB 7604, Ben Franklin Sta- tion, Washington, DC 20044. Submis- sions may be hand delivered Monday through Friday between the hours of 8 a.m.and4p.m.to:CC:PA:LPD:PR (REG–105847–05), Courier’s Desk, In- ternal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC, or sent electronically, via the IRS Internet site at www.irs.gov/regsor via the Federal eRule- making Portal atwww.regulations.gov (IRS-REG–105847–05). The public hear- ingwillbeheldintheIRSAuditorium, Internal Revenue Building, 1111 Constitu- tion Avenue, NW, Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning §§1.199–1, 1.199–3, 1.199–6, and 1.199–8, Paul Handleman or Lauren Ross Taylor, (202) 622–3040; concerning §1.199–2, Alfred Kelley, (202) 622–6040; con- cerning §1.199–4(c) and (d), Richard Chewning, (202) 622–3850; concerning all other provisions of §1.199–4, Scott Rabinowitz, (202) 622–4970; concern- ing §1.199–5, Martin Schaffer, (202) 622–3080; concerning §1.199–7, Ken Cohen, (202) 622–7790; concerning sub- mission of comments, the hearing, and/or to be placed on the building access list to attend the hearing, LaNita Van Dyke, (202) 622–7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collections of information con- tained in this notice of proposed rulemak- ing have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduc- tion Act of 1995 (44 U.S.C. 3507(d)). Comments on the collections of infor- mation should be sent to theOffice of Management and Budget,Attn: Desk Officer for the Department of the Trea- sury, Office of Information and Regula- tory Affairs, Washington, DC 20503, with copies to theInternal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by January 3, 2006. Comments are specifically requested concerning: Whether the proposed collection of in- formation is necessary for the proper per- formance of the functions of the IRS, in- cluding whether the information will have practical utility; The accuracy of the estimated burden associated with the proposed collection of information; How the quality, utility, and clarity of the information to be collected may be en- hanced; How the burden of complying with the proposed collections of information may be minimized, including through the appli- cation of automated collection techniques or other forms of information technology; and Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information. The collection of information in these proposed regulations is in §1.199–6(b) in- volving patrons of agricultural and horti- cultural cooperatives. This information is required so that patrons of agricultural and horticultural cooperatives may claim the section 199 deduction. The collections of information is mandatory. The likely re- spondents are business or other for-profit institutions. Estimated total annual reporting bur- den: 9,000 hours. Estimated average annual burden hours per respondent: 3 hours. Estimated number of respondents: 3,000. Estimated annual frequency of re- sponses: annually. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Of- fice of Management and Budget. 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. Background This document contains proposed reg- ulations relating to the deduction for in- come attributable to domestic production activities under section 199 of the Inter- nal Revenue Code (Code). Section 199 was added to the Code by section 102 of the Act (Public Law 108 357, 118 Stat. 1418). On January 19, 2005, the IRS and Treasury Department issued Notice 2005–14, 2005–7 I.R.B. 498, providing in- terim guidance on section 199 and invit- ing comments on issues arising under sec- tion 199. Written and electronic comments responding to Notice 2005–14 were re- ceived. The IRS and Treasury Department have reviewed and considered all the com- ments in the process of preparing these proposed regulations. This preamble to the proposed regulations describes many of the more significant comments received November 21, 20059872005–47 I.R.B. by the IRS and Treasury Department. Be- cause of the large volume of comments re- ceived, however, the IRS and Treasury De- partment are not able to address all of the comments in this preamble. General Overview Section 199(a)(1) allows a deduction equal to 9 percent (3 percent in the case of taxable years beginning in 2005 or 2006, and 6 percent in the case of taxable years beginning in 2007, 2008, or 2009) of the lesser of: (a) the qualified production ac- tivities income (QPAI) of the taxpayer for the taxable year; or (b) taxable income (de- termined without regard to section 199) for the taxable year (or, in the case of an indi- vidual, adjusted gross income (AGI)). Section 199(b)(1) limits the deduction for a taxable year to 50 percent of the W–2 wages paid by the taxpayer during the cal- endar year that ends in such taxable year. For this purpose, section 199(b)(2) defines the termW–2 wagesto mean the sum of the aggregate amounts the taxpayer is re- quired under section 6051(a)(3) and (8) to include on the Forms W–2, “Wage and Tax Statement,” of the taxpayer’s employees during the calendar year ending during the taxpayer’s taxable year. Section 199(b)(3) provides that the Secretary shall prescribe rules for the application of section 199(b) in the case of an acquisition or disposition of a major portion of either a trade or busi- ness or a separate unit of a trade or business during the taxable year. Qualified Production Activities Income Under section 199(c)(1), QPAI is the excess of domestic production gross re- ceipts (DPGR) over the sum of: (a) the cost of goods sold (CGS) allocable to such re- ceipts; (b) other deductions, expenses, or losses directly allocable to such receipts; and (c) a ratable portion of deductions, ex- penses, and losses not directly allocable to such receipts or another class of income. Section 199(c)(2) provides that the Sec- retary shall prescribe rules for the proper allocation of items of income, deduction, expense, and loss for purposes of deter- mining QPAI. Section 199(c)(3) provides special rules for determining costs in computing QPAI. Under these special rules, any item or ser- vice imported into the United States with- out an arm’s length transfer price shall be treated as acquired by purchase, and its cost shall be treated as not less than its value immediately after it enters the United States. A similar rule applies in de- termining the adjusted basis of leased or rented property when the lease or rental gives rise to DPGR. If the property has been exported by the taxpayer for further manufacture, the increase in cost or ad- justed basis must not exceed the difference between the value of the property when ex- ported and its value when imported back into the United States after further manu- facture. Section 199(c)(4)(A) definesDPGRto mean the taxpayer’s gross receipts that are derived from: (i) any lease, rental, license, sale, exchange, or other disposition of (I) qualifying production property (QPP) that was manufactured, produced, grown, or extracted (MPGE) by the taxpayer in whole or in significant part within the United States; (II) any qualified film pro- duced by the taxpayer; or(III) electricity, natural gas, or potable water (collectively, utilities) produced by the taxpayer in the United States; (ii) construction performed in the United States; or (iii) engineering or architectural servicesperformedinthe United States for construction projects in the United States. Section 199(c)(4)(B) excepts from DPGR gross receipts of the taxpayer that are derived from: (i) the sale of food and beverages prepared by the taxpayer at a retail establishment; and (ii) the transmis- sion or distribution of electricity, natural gas, or potable water. Section 199(c)(5) definesQPPto mean: (A) tangible personal property; (B) any computer software; and (C) any property described in section 168(f)(4) (certain sound recordings). Section 199(c)(6) defines aqualified filmto mean any property described in sec- tion 168(f)(3) if not less than 50 percent of the total compensation relating to pro- duction of the property is compensation for services performed in the United States by actors, production personnel, directors, and producers. The term does not include property with respect to which records are required to be maintained under 18 U.S.C. 2257 (generally, films, videotapes, or other matter that depict actual sexually explicit conduct and are produced in whole or in part with materials that have been mailed or shipped in interstate or foreign com- merce, or are shipped or transported or are intended for shipment or transportation in interstate or foreign commerce). Section 199(c)(7) provides that DPGR does not include any gross receipts of the taxpayer derived from property leased, li- censed, or rented by the taxpayer for use by any related person. A person is treated as related to another person if both persons are treated as a single employer under ei- ther section 52(a) or (b) (without regard to section 1563(b)), or section 414(m) or (o). Pass-thru Entities Section 199(d)(1) provides that, in the case of an S corporation, partnership, es- tate or trust, or other pass-thru entity, sec- tion 199 generally is applied at the share- holder, partner, or similar level, except as otherwise provided in rules applicable to patrons of cooperatives. Section 199(d)(1) further provides that the Secretary shall prescribe rules for the application of sec- tion 199, including rules relating to: (a) re- strictions on the allocation of the deduction to taxpayers at the partner or similar level; and (b) additional reporting requirements. The general rule is that section 199 is applied at the shareholder, partner, or sim- ilar level. However, section 199(d)(1)(B) limits the amount of W–2 wages from a pass-thru entity that may be used by each shareholder, partner, or similar person to compute the section 199 deduction. Specifically, section 199(d)(1)(B) pro- vides that such person is treated as having been allocated W–2 wages from such en- tity in an amount equal to the lesser of: (i) such person’s allocable share of such wages (without regard to this rule) from such entity as determined under regula- tions prescribed by the Secretary; or (ii) 2 times 9 percent (3 percent in the case of taxable years beginning in 2005 or 2006, and 6 percent in the case of taxable years beginning in 2007, 2008, or 2009) of the QPAI of that entity allocated to such per- son for the taxable year. Individuals In the case of an individual, section 199(d)(2) provides that the deduction is equal to the applicable percentage of the lesser of the taxpayer’s: (a) QPAI for the taxable year; or (b) AGI for the taxable year determined after applying sections 86, 2005–47 I.R.B.988November 21, 2005 135, 137, 219, 221, 222, and 469, and without regard to section 199. Patrons of Certain Cooperatives Section 199(d)(3) provides special rules under which a taxpayer receiving certain patronage dividends or certain qualified per-unit retain allocations from a cooper- ative (to which subchapter T applies) en- gaged in the MPGE, in whole or in sig- nificant part, or in the marketing of any agricultural or horticultural product is al- lowed a section 199 deduction with respect to the amount of the patronage dividends or qualified per-unit retain allocations that are: (a) allocable to the portion of the co- operative’s QPAI that would be deductible by the cooperative; and (b) designated as such by the cooperative in a written notice mailed to its patrons during the payment period described in section 1382. Such an amount, however, does not reduce the tax- able income of the cooperative under sec- tion 1382. In determining the portion of the coop- erative’s QPAI that would be deductible by the cooperative, the cooperative’s tax- able income is computed without taking into account any deduction allowable un- der section 1382(b) or (c) (relating to patronage dividends, per-unit retain allo- cations, and nonpatronage distributions) and, in the case of a cooperative engaged in marketing agricultural and horticultural products, the cooperative is treated as hav- ing MPGE, in whole or in significant part, any agricultural and horticultural products marketed by the cooperative that its pa- trons have MPGE. Expanded Affiliated Groups Section 199(d)(4)(A) provides that all members of an expanded affiliated group (EAG) are treated as a single corpora- tion for purposes of section 199. Taking into account the provisions of the Con- gressional Letter, as described elsewhere, section 199(d)(4)(B) provides that an EAG is an affiliated group as defined in section 1504(a), determined by substituting “more than 50 percent” for “at least 80 percent” each place it appears and without regard to section 1504(b)(2) and (4). Section 199(d)(4)(C) provides that, ex- cept as provided in regulations, the sec- tion 199 deduction is allocated among the members of the EAG in proportion to each member’s respective amount (if any) of QPAI. Trade or Business Requirement Section 199(d)(5) provides that section 199 is applied by taking into account only items that are attributable to the actual con- duct of a trade or business. Alternative Minimum Tax Section 199(d)(6) provides rules to co- ordinate the deduction allowed under sec- tion 199 with the alternative minimum tax (AMT) imposed by section 55. Taking into account the provisions of the Congres- sional Letter, as described elsewhere, sec- tion 199(d)(6) provides that for purposes of determining alternative minimum tax- able income (AMTI) under section 55, the section 199 deduction shall be determined without regard to any adjustments under sections 56 through 59, except that in the case of a corporation (including a corpora- tion subject to tax under section 511), the taxable income limitation is the corpora- tion’s AMTI. Authority to Prescribe Regulations Section 199(d)(7) authorizes the Secre- tary to prescribe such regulations as are necessary to carry out the purposes of sec- tion 199. Congressional Letter On July 21, 2005, the Chairman and Ranking Member of the Senate Finance Committee and the Chairman of the House Ways and Means Committee introduced the Tax Technical Corrections Act of 2005, H.R. 3376 and S. 1447, 109th Cong. (2005). In a letter on the same date to the Treasury Department (the Congressional Letter), they provided clarification for sev- eral issues so that appropriate regulatory guidance may be issued reflecting their intention. These proposed regulations reflect the intent expressed in the Con- gressional Letter with respect to section 199. Summary of Comments Qualified Production Activities Income One commentator requested that the proposed regulations clarify the treatment of advance payments, and the costs related to those payments, for purposes of com- puting QPAI. Section 4.03(3) of Notice 2005–14 provides that, in the case of ad- vance payments (for goods, services, and use of property) thatare recognized under the taxpayer’s method of accounting in a taxable year earlier than that in which the property or servicesare delivered, per- formed, and provided, the taxpayer must accurately identify, based on a reasonable method, whether the receipts (and the cor- responding expenses) qualify as DPGR. If a taxpayer recognizes an advance pay- ment in Year 1, and the CGS in Year 2, the commentator asks whether CGS must be applied to reduce DPGR in Year 2, even though the DPGR and CGS are recognized in different taxable years. The proposed regulations clarify that, in the example the commentator cites involving advance payments, as well as other circumstances (such as taxpayers that use the cash receipts and disburse- ments method) where gross receipts and corresponding expenses are recognized in different taxable years, taxpayers must take the receipts and expenses into account for purposes of section 199 in the taxable year such items are recognized under their methods of accounting for Federal in- come tax purposes. The IRS and Treasury Department believe it would be unduly burdensome and complicated to create a separate set of timing rules for purposes of section 199. Thus, gross receipts and costs are taken into account for purposes of computing QPAI in the taxable year they are recognized for Federal income tax purposes under the taxpayer’s methods of accounting, even if the related gross re- ceipts or costs, as applicable, are taken into account in different taxable years. If the gross receipts are recognized in an inter- company transaction within the meaning of §1.1502–13, see also §1.199–7(d). A commentator requested clarification of how the advance payment rules would apply in the following scenario. In Year 1, a taxpayer sells for $100 a one-year software maintenance agreement that pro- vides for software updates (that the tax- payer would MPGE in whole or in sig- nificant part within the United States) and customer support services. At the end of Year 1, the taxpayer uses a reasonable method to allocate 60 percent of the gross receipts ($60) to the software updates and November 21, 20059892005–47 I.R.B. 40 percent ($40) to the customer support services. The taxpayer treats the $60 as DPGR in Year 1. In Year 2, no software updates are provided. The commentator asks whether the taxpayer in this scenario would be required to amend its Year 1 re- turn and reduce its DPGR by $60, reduce DPGR by $60 in Year 2, or make no ad- justment for Year 1 or Year 2. Consistent with the application of the rules relating to advance payments, which require that the taxpayer follow its meth- ods of accounting for Federal income tax purposes, the taxpayer should make no ad- justment in Year 1 (by amended return) or in Year 2 for the $60 that was appropriately treated as DPGR in Year 1, even though no software updates were provided in Year 2. A commentator suggested that the pro- posed regulations clarify how a taxpayer that uses a long-term contract method de- termines the portion of the percentage of completion revenue reported for each con- tract for the taxable year that is allocated to DPGR. The proposed regulations provide that taxpayers using a long-term contract method (for example, under section 460) may use any reasonable method of allocat- ing gross receipts under such a contract be- tween DPGR and non-DPGR. A number of comments were received regarding the rule in section 4.03(1) of No- tice 2005–14 that requires that section 199 be applied on an item-by-item basis. Some commentators stated that applying section 199 on an item-by-item basis is unduly burdensome, and that the proposed regula- tions should permit taxpayers to determine QPAI on a division or product-line basis instead. The IRS and Treasury Depart- ment, however, continue to believe that ap- plying section 199 on a basis other than item-by-item would allow taxpayers to re- ceive the benefits of section 199 with re- spect to gross receipts that should not qual- ify as DPGR. Accordingly, the proposed regulations retain the requirement that sec- tion 199 be applied on an item-by-item ba- sis. Many commentators requested clarifi- cation of what constitutes an item. Com- mentators asked whether an item is a final product or whether one or more compo- nent parts of the final product may qualify as an item. For example, if a final product does not meet the in whole or in significant part requirement (so that gross receipts from the sale of the final product are non- DPGR), commentators inquired whether they could allocate gross receipts to a com- ponent of the product that did meet all of the requirements of section 199(c), and thereby treat that portion of the gross re- ceipts as DPGR. H.R. Conf. Rep. No. 755, 108th Cong., 2d Sess. 272 n. 27 (2004) (the Conference Report) indicates that a com- ponent may be treated as qualifying prop- erty in the case of food and beverages. Footnote 27 of the Conference Report ex- plains that, in the context of food and bev- erages prepared at a retail establishment, although a cup of coffee prepared at a re- tail establishment does not qualify under section 199(c), a portion of the cup of cof- fee, that is, the coffee beans (roasted at a facility separate from the retail estab- lishment) that meet the requirements un- der section 199(c), does qualify under sec- tion 199. The Joint Committee on Taxation Staff,General Explanation of Tax Legisla- tion Enacted in the 108th Congress, 109th Cong., 1st Sess. 172 (2005) (the Blue Book), indicates Congressional intent that this treatment is not limited to food and beverages, but rather, is permitted with re- spect to section 199 in general. Accord- ingly, in the case of QPP, qualified films, and utilities, the proposed regulations de- fine anitemas the property offered for sale to customers that meets all of the require- ments under section 199(c). If the prop- erty offered for sale does not meet all of the requirements under section 199(c), a taxpayer must treat as the item any portion of the property offered for sale that meets all of these requirements. However, in no case shall the portion of the property of- fered for sale that is treated as the item ex- clude any other portion that meets all of the requirements under section 199(c). For example, assume that the taxpayer MPGE software entirely within the United States, attaches the software to a router that it MPGE entirely outside the United States, and then sells the combined property. As- sume further that if the combined property is treated as the item, the gross receipts from the sale will not qualify as DPGR be- cause the combined property does not sat- isfy the in whole or in significant part re- quirement. The proposed regulations re- quire the taxpayer to treat the software as an item; separate from the router, because the software meets allof the requirements of section 199(c) (that is, it is computer software that is MPGE by the taxpayer in whole or in significant part within the United States). This is the case even if the software is not offered for sale to cus- tomers separately from the router. Accord- ingly, the gross receipts from the software qualify as DPGR, but the gross receipts from the router do not qualify as DPGR. Alternatively, assume that the taxpayer MPGE only software but that some of the content is MPGE within the United States and some content is MPGE outside the United States. Assuming that the software does not meet the requirements of section 199(c), that portion of the software that is MPGE within the United States must be treated as the item. Accordingly, gross re- ceipts from the sale of the software must be allocated (using any reasonable method) between that portion that is MPGE within the United States (which is DPGR if all other requirements of section 199(c) are met) and that portion that is MPGE outside the United States (which is non-DPGR). In the case of construction and architec- tural and engineering services, commen- tators asked that the proposed regulations clarify whether the item is the construction project itself, or whether the item can con- stitute a task or sub-task that is performed as part of the construction project. The IRS and Treasury Department believe that the determination of what constitutes the item for purposes of construction and ar- chitectural or engineering services should be made on a case-by-case basis taking into account all of the facts and circum- stances. Taxpayers may use any reason- able method of determining the item for this purpose. A commentator requested that the pro- posed regulations clarify how the rules for determining DPGR apply in the case of a taxpayer that repairs or rebuilds property for a customer. The commentator sug- gested the IRS and Treasury Department distinguish between “repair” activities and “rebuild” activities. In the case of a re- pair contract where the customer retains the benefits and burdens of the property while it is being repaired, the commen- tator suggests that the contractor should be permitted to treat as DPGR the gross receipts attributable to parts that the con- tractor MPGE in whole or in significant part within the United States, as well as the gross receipts attributable to the in- stallation of those parts. Gross receipts 2005–47 I.R.B.990November 21, 2005 attributable to the parts MPGE by the tax- payer in whole or in significant part within the United States are DPGR (assuming all the other requirements of section 199(c) are met). Consistent with the general rule for installation (discussed below), the installation activity will be considered an MPGE activity only if the contractor retains the benefits and burdens of own- ership with respect to the parts while the parts are being installed. In addition, the gross receipts attributable to the instal- lation of parts that the contractor MPGE may qualify as DPGR if the exception for embedded installation described in §1.199–3(h)(4)(ii)(D) of the proposed reg- ulations applies. The contractor is not permitted to treat as DPGR gross receipts attributable to purchased parts, or the in- stallation of purchased parts. The commentator suggested that the proposed regulations provide a special rule for “rebuild” contracts, which the commentator suggested be defined as any contract where the value of the rebuild work performed exceeds 25 percent of the value of the preexisting property immedi- ately before the rebuild. The commentator further suggested that if more than 50 percent of the contractor’s costs of per- forming the rebuild is attributable to the cost of parts that the contractor MPGE, the contractor should not be required to allocate its gross receipts between parts that it MPGE and any parts that it pur- chased. The commentator’s suggested rule would effectively create for rebuild contracts a separatede minimisexception to the general allocation requirement. The IRS and Treasury Department believe that thede minimisexceptions provided in the proposed regulations (for example, the 5 percentde minimisexception discussed later generally applicable to embedded services and embedded nonqualifying property) are appropriate. Accordingly, the proposed regulations do not adopt this suggestion. Section 4.03(2) of Notice 2005–14 pro- vides that, if the amount of the taxpayer’s gross receipts that do not qualify as DPGR equals or exceeds 5 percent of the total gross receipts, the taxpayer is required to allocate all gross receipts between DPGR and non-DPGR. For purposes of this 5 percentde minimisrule, the proposed reg- ulations in §1.199–1(d)(2) provide that, in the case of an S corporation, partner- ship, estate, trust, or other pass-thru entity, the determination of whether less than 5 percent of the pass-thru entity’s total gross receipts are non-DPGR is made at the pass-thru entity level. In the case of an owner of a pass-thru entity, the deter- mination of whether less than 5 percent of the owner’s total gross receipts are non-DPGR is made at the owner level, taking into account the owner’s share of any of the pass-thru entity’s gross receipts as well as all other gross receipts of the owner. In addition, the 5 percentde min- imisexception in §1.199–3(h)(4)(ii)(E) applies at the entity level to each item that qualifies. Commentators also observed that, in determining whether the taxpayer’s method of allocating gross receipts and CGS between DPGR and non-DPGR is reasonable, the list of factors cited in section 4.03(2) of Notice 2005–14 with respect to gross receipts is inconsistent with the list of factors cited in section 4.05(2)(b) of the notice with respect to CGS. The list of factors was intended to be as consistent as possible for both gross receipts and CGS, and appropriate changes to the lists have been incorporated into the proposed regulations as necessary. Taxable Income In the Congressional Letter, the Trea- sury Department was advised that unre- lated business taxable income, rather than taxable income, applies for purposes of section 199(a)(1) in computing the unre- lated business income tax under section 511. Accordingly, the proposed regula- tions in §1.199–1(b) provide that, for pur- poses of determining the tax imposed by section 511, section 199(a)(1)(B) is ap- plied using unrelated business taxable in- come. The Congressional Letter also indicates that the section 199 deduction is not taken into account for purposes of computing taxable income under the rules relating to the carryover of a net operating loss (NOL). Accordingly, the proposed regu- lations provide that for purposes of com- puting the section 199 deduction, the def- inition of taxable income under section 63 applies, but without regard to section 199. The proposed regulations also pro- vide that the section 199 deduction is not taken into account in computing taxable income when determining the amount of the NOL carryback and carryover under section 172(b)(2). Thus, except as oth- erwise provided in §1.199–7(c)(2) of the proposed regulations (concerning the por- tion of a section 199 deduction allocated to a member of an EAG), the section 199 de- duction can neither create an NOL carry- back or carryover nor increase the amount of an NOL carryback or carryover. Wage Limitation A commentator requested that the IRS and Treasury Department clarify whether self-employment income of self-employed individuals as reported on the individuals’ Schedule SE, “Self-Employment Tax,” of Form 1040 and/or payments for nonem- ployee compensation reported by the taxpayer on Form 1099-MISC, “Miscella- neous Income,” are included in determin- ing the amount of the W–2 wages of the taxpayer. A commentator also requested that the IRS clarify whether guaranteed payments to partners are included in W–2 wages for purposes of section 199. The statutory language in section 199(b) refers to the amounts a taxpayer is required to report as wages on Form W–2 pursuant to section 6051 with respect to the employment of employees of the taxpayer. Neither self-employment in- come nor guaranteed payments to partners are required to be reported under section 6051. In addition, section 4.02(1)(a) of Notice 2005–14 and §1.199–2(a)(1) of the proposed regulations define employees as including only common law employees of the taxpayer and officers of a corporate taxpayer. Consistent with the statutory intent, this definition does not include in- dependent contractors or partners. Thus, payments to independent contractors and self-employment income, including guar- anteed payments made to partners, are not included in determining W–2 wages. The proposed regulations provide for the same three methods of calculating W–2 wages as contained in Notice 2005–14. It is anticipated that when final regula- tions are issued, these three methods will be published in a notice rather than as part of the final regulations. It is antic- ipated that this notice will be published at the same time as the final regulations. The methods will be included in a notice rather than the final regulations so that if November 21, 20059912005–47 I.R.B. changes are made to the box numbers on Form W–2, “Wage and Tax Statement,” a new notice can be issued reflecting those changes more promptly than an amend- ment to final regulations. The non-duplication rule in §1.199–2(e) continues to provide that amounts that are treated as W–2 wages for any taxable year under any method may not be treated as W–2 wages for any other taxable year. Additional language has been added to the non-duplication rule to clarify that the same W–2 wages cannot be claimed by more than one taxpayer for purposes of section 199. Domestic Production Gross Receipts DPGR includes the gross receipts of the taxpayer that are derived from any lease, rental, license, sale, exchange, or other dis- position of property described in section 199(c)(4)(A)(i). Commentators specifi- cally asked whether fees such as cotton or real estate broker’s fees are DPGR. These fees are non-DPGR because they are not derived from any lease, rental, license, sale, exchange, or other disposition of property under section 199(c)(4)(A)(i). Commentators asked for clarification of whether DPGR includes gross receipts de- rived by a taxpayer from the subsequent sale or lease of QPP MPGE within the United States by the taxpayer, sold, and then reacquired by the taxpayer. The pro- posed regulations in §1.199–3(h)(2) pro- vide an example to illustrate the rule that gross receipts from the subsequent sale or lease of QPP are DPGR to the taxpayer that originally MPGE the QPP within the United States. Any interest component of the lease payment also qualifies as DPGR because section 199(c)(4)(A)(i) provides that DPGR means gross receipts derived by the taxpayer from any lease. Commentators pointed out that the rule for allocating gross receipts for purposes of identifying DPGRunder section 3.04(1) of Notice 2005–14 appears to adopt a spe- cific identification standard, whereas sec- tion 4.03(2) appears to provide a reason- able basis standard. The proposed regu- lations provide in §1.199–1(d)(1) that the taxpayer must allocate its gross receipts from all transactions based on a reason- able method that is satisfactory to the Sec- retary based on all of the facts and cir- cumstances and that accurately identifies the gross receipts that constitute DPGR. If a taxpayer can, without undue burden or expense, specifically identify where an item was manufactured, or if the taxpayer uses a specific identification method for other purposes, then the taxpayer must use that specific identification method to de- termine DPGR. If a taxpayer does not use a specific identification method for other purposes and cannot, without undue bur- den or expense, use a specific identifica- tion method, the taxpayer is not required to use a specific identification method to determine DPGR. Related Persons Section 199(c)(7) provides that DPGR does not include any gross receipts of the taxpayer derived fromproperty leased, li- censed, or rented by the taxpayer for use by any related person. A person is treated as related to another person if both persons are treated as a single employer under ei- ther section 52(a) or (b) (without regard to section 1563(b)), or section 414(m) or (o). However, footnote 29 in the Confer- ence Report indicates that this provision is not intended to apply to property leased by the taxpayer to a related person if the prop- erty is held for sublease or is subleased to an unrelated person for the ultimate use of such unrelated person, or to a license to a related person for reproduction and sale, exchange, lease, rental or sublicense to an unrelated person for the ultimate use of such unrelated person. Accordingly, the proposed regulations include these excep- tions from the general rule of exclusion un- der section 199(c)(7). One commentator stated that if a televi- sion network licenses programming to an affiliate station, applying section 199(c)(7) to treat the royalty payment received from the affiliate as non-DPGR places these vertically integrated companies at a com- petitive disadvantage. The commentator therefore suggested that the proposed reg- ulations provide an exception for networks and affiliate stations. The proposed regu- lations do not adopt this suggestion, which is not consistent with section 199(c)(7). Derived from a Lease, Rental, License, Sale, Exchange, or Other Disposition Commentators asked whether gains and losses associated with hedging trans- actions are included in DPGR. For exam- ple, utilities may hedge to manage the risk of changes in prices of ordinary inputs into the production process. For purposes of section 199 only, the proposed regu- lations include a rule in §1.199–3(h)(3) concerning hedges (within the meaning of section 1221(b)(2) and §1.1221–2(b)) of inventory that is QPP and supplies con- sumed in activities giving rise to DPGR. The proposed regulations require gain or loss on the hedging transaction to be taken into account in determining DPGR. The proposed rule applies to hedges that man- age the risk of currency fluctuations but only to the extent that the hedges are not integrated with an underlying transaction under §1.988–5(b). Commentators suggested that the pro- posed regulations treat gross receipts attributable to the distribution or delivery of QPP as derived from the lease, rental, license, sale, exchange, or other disposi- tion of that property. The commentators stated that section 199(c)(4)(B)(ii), which specifically provides that DPGR does not include gross receipts derived from the transmission and distribution of utilities, indicates (by negative implication) that gross receipts attributable to the distribu- tion or delivery of QPP is intended to be considered DPGR. Moreover, some com- mentators interpreted language in section 3.04(10)(c) of Notice 2005–14, stating that bottled water is treated as QPP and that DPGR may include gross receipts at- tributable to distribution of bottled water, as suggesting that gross receipts attribut- able to distribution and delivery of QPP are considered DPGR. In general, the IRS and Treasury De- partment believe that gross receipts at- tributable to distribution and delivery of QPP are not DPGR because distribution and delivery are properly regarded as services, regardless of whether the tax- payer retains the benefits and burdens of ownership of the property at the time it is delivered. No inference to the con- trary in Notice 2005–14 was intended. Thus, the proposed regulations clarify that taxpayers generally must allocate gross receipts between the lease, rental, license, sale, exchange, or other disposition of the property itself and the delivery compo- nent. The IRS and Treasury Department, however, believe that, because distribu- tion and delivery are service components commontoQPP,itisappropriate,asa 2005–47 I.R.B.992November 21, 2005 matter of administrative convenience, to treat embedded distribution and delivery services similar to the qualified warranty exception in section 4.04(7)(b) of Notice 2005–14. Thus, the taxpayer must include in DPGR gross receipts attributable to the distribution and delivery of QPP if (1) in the normal course of business, the charge for the delivery or distribution service is included in the price charged for the sale of the QPP, and (2) the charge for the delivery or distribution service is neither separately offered nor separately bargained for with the customer. For similar reasons, the proposed regu- lations also treat embedded qualified oper- ating manuals provided in connection with the sale or disposition of QPP, qualified films, and utilities similar to embedded qualified warranties. The proposed regulations also provide special rules for installation activities. The IRS and Treasury Department believe that, in some circumstances, installation is ap- propriately viewed as an MPGE activity, and in others it is appropriately viewed as a service. For example, installation is prop- erly viewed as an MPGE activity if the tax- payer MPGE QPP within the United States and installs the QPP while the taxpayer re- tains the benefits and burdens of owner- ship of the QPP. In that case, gross receipts attributable to the installation, whether or not embedded, are derived from the lease, rental, license, sale, exchange, or other dis- position of the QPP. If, however, the bene- fits and burdens of ownership pass to the customer prior to the installation of the QPP, the taxpayer is performing a service by installing the customer’s property. In that case, gross receipts attributable to in- stallation are not derived from the lease, rental, license, sale, exchange, or other dis- position of the property, and the taxpayer generally is required under the proposed regulations to allocate gross receipts be- tween the proceeds of sale or disposition of the property (DPGR) and the installa- tion service (non-DPGR). However, the IRS and Treasury Department believe that, because installation is a service component common to sales or dispositions of QPP, if the benefits and burdens of ownership pass to the customer prior to the installa- tion, it is appropriate to treat embedded in- stallation similar to an embedded qualified warranty, qualified delivery, and a quali- fied operating manual. A number of commentators suggested that the IRS and Treasury Department ex- pand the exception to the allocation re- quirement for a qualified warranty to in- clude all services (including training, tech- nical and customer support, and regular maintenance of the property), as well as all nonqualifying property (including pur- chased spare parts), the charge for which is embedded in the contract price of the lease, rental, license, sale, exchange, or other disposition ofQPP, qualified films, and utilities. Other commentators stated that the proposed regulations should adopt principles similar to §1.482–2(b), so that services that are ancillary and incidental to the sale of QPP, qualified films, and utilities would not be treated as embed- ded services and no allocation of gross re- ceipts to those services would be required. These commentators believe that footnote 27 in the Conference Report supports such a position in stating that the conferees in- tend that the Secretary provide guidance regarding the allocation of gross receipts that draws on the principles of section 482. Other commentators stated that, elsewhere in the Code and regulations, transactions are given a single characterization based on their predominant nature and that sec- tion 199 should be applied in the same manner. For example, if the predominant nature of a transaction is the sale of prop- erty, all gross receipts from the transaction should be treated as proceeds from the sale. Finally, some commentators stated that a taxpayer’s treatment of a transaction for financial reporting purposes should gov- ern its characterization for section 199 pur- poses. The IRS and Treasury Department in- fer that the commentators are referring to §1.482–2(b)(8), which provides that, in general, no separate allocation will be made in connection with ancillary and subsidiary services provided with a trans- fer of property. Services ancillary and subsidiary to another transaction may be referred to, outside the section 199 con- text, as embedded services. The IRS and Treasury Department do not intend that services defined as embedded services un- der section 199 will be treated in the same manner provided in §1.482–2(b)(8) be- cause such treatmentwould be generally inconsistent with the intent and purpose of section 199. The IRS and Treasury Department fur- ther believe that the reference to section 482 principles in footnote 27 of the Con- ference Report reflects an intent to apply section 482 principles consistently with the general intent and purpose of section 199. The IRS and Treasury Department continue to believe that the statutory lan- guage and legislative history require that transactions be bifurcated into qualify- ing and nonqualifying elements and that gross receipts be allocated accordingly for purposes of section 199. The IRS and Treasury Department further believe that the exceptions to this general rule should be limited. Expanding the special exceptions to include all, or ancillary or incidental, embedded services and embed- ded nonqualifying property would result in the inclusion in DPGR of gross receipts that the IRS and Treasury Department do not believe were intended to be within the scope of section 199. The legislative history also does not support adopting principles applicable to other Code sec- tions under which a single predominant nature character is assigned to a trans- action, or characterizing transactions for purposes of section 199 according to their treatment for financialreporting purposes. Accordingly, the proposed regulations do not adopt these suggestions. One commentator requested that the proposed regulations clarify whether the embedded services rule is intended to require taxpayers to treat certain ser- vice-type activities that take place as part of the MPGE process as embedded ser- vices. The proposed regulations clarify that embedded services do not include service-type activities that take place as part of the MPGE process (that is, while the taxpayer is engaged in an MPGE ac- tivity with respect to the property and retains the benefits and burdens of owner- ship of the property). For example, with respect to QPP, activities such as non-con- struction engineering, materials analysis and selection, subcontractor inspections and approval, routine production inspec- tions, product testing and documentation, and assistance with certain regulatory ap- provals, if undertaken in connection with a qualifying MPGE activity, are considered part of the MPGE of the QPP and are not considered embedded services. No sep- arate allocation of gross receipts to such activities is required. November 21, 20059932005–47 I.R.B. Services and nonqualifying property are not considered embedded if they are either separately offered or separately bargained for, or a charge for the service or nonqualifying property is separately stated. Thus, for example, if a charge for freight or delivery is separately stated on an invoice for the sale of an item of QPP, the delivery service is not embedded and gross receipts attributable to that service are non-DPGR, even if the purchaser does not have the option of refusing the service. Further, separately stated or bargained for amounts will not be respected unless they reflect the fair market value of the service or nonqualifying property. For example, if a taxpayer offers contracts to customers that include a cellular phone priced on the invoice at $595 and three years of cellular telephone service priced on the invoice at $5, the $5 stated amount for the service will only be respected if it represents an allocation of gross receipts consistent with the principles of section 482. Gross receipts attributable to embedded services, embedded nonqualifying prop- erty, or any other embedded element (other than a qualified warranty, qualified de- livery, qualified installation, and a quali- fied operating manual) may be considered DPGR under the 5 percentde minimisex- ception. The proposed regulations clarify that, with respect to thede minimisex- ception, taxpayers should apply the 5 per- cent against the total amount of the gross receipts derived from the lease, rental, li- cense, sale, exchange, or other disposi- tion of the item of QPP, qualified films, or utilities. The total amount of DPGR in- cludes gross receipts attributable to a qual- ified warranty, qualified delivery, qualified installation, and/or a qualified operating manual that are treated as DPGR with re- spect to that item. In the case of a lease or an installment sale, thede minimisex- ception is applied by taking into account the total amount of gross receipts under the lease or installment sale that are attribut- able to the item of QPP, qualified films, or utilities. Under the proposed regulations, as un- der Notice 2005–14, applicable Federal income tax principles apply in determin- ing whether a transaction (or any part of a transaction) is, in substance, a lease, rental, license, sale, exchange, or other dis- position, or whether it is a service. For this purpose, section 3.04(7)(a) of Notice 2005–14 cites Rev. Rul. 88–65, 1988–2 C.B. 32, and describes that revenue rul- ing as treating a short-term rental as a ser- vice. Many commentators asked that the proposed regulations clarify that not all short-term rentals will be regarded as ser- vices for purposes of section 199. They observed that Rev. Rul. 88–65 involves the lease of automobiles and trucks on a daily basis (normally for not more than one week), and that the taxpayer performs sig- nificant services in connection with the ve- hicle, including maintenance and repairs, and pays all taxes and insurance on the ve- hicle. The IRS and Treasury Department acknowledge that the short-term nature of a transaction does not, by itself, render the transaction a service for purposes of sec- tion 199 and that many transactions in- clude both service and property rental el- ements. Therefore, the proposed regula- tions clarify that, in such cases, taxpay- ers must allocate gross receipts between the qualifying rental of QPP or qualified films (DPGR) and the non-qualifying ser- vices (non-DPGR). The allocation must be based on the facts and circumstances of each transaction. Generally, in the case of short-term transactions, such as those de- scribed in Rev. Rul. 88–65, in which sig- nificant services are provided in connec- tion with the property, the transaction will consist mostly of services. Not every transaction in which prop- erty is used in connection with provid- ing a service to customers, however, con- stitutes a mixture of services and rental for which allocation of gross receipts is appropriate. For example, assume that a taxpayer operates a video game arcade that features video game machines that the taxpayer MPGE. The machines remain in the taxpayer’s possession during the cus- tomers’ use. Gross receipts derived from customers’ use of the machines at the tax- payer’s arcade are not derived from the lease, rental, license, sale, exchange, or other disposition of the machines. Rather, the machines are used to provide a ser- vice and, thus, the gross receipts are non- DPGR. A number of commentators objected to the position taken in section 4.04(7)(d) of Notice 2005–14 that gross receipts from Internet access services, online ser- vices, customer support, telephone ser- vices, games played through a website, provider-controlled software online ac- cess services, and other services are not derived from a lease, rental, license, sale, exchange, or other disposition of the soft- ware. Consistent with the notice, the proposed regulations reflect the position that the use of online computer software does not rise to the level of a lease, rental, license, sale, exchange, or other disposi- tion as required under section 199 but is instead a service. This is the case even if the customer must agree to terms and conditions (which may be termed alicense by the software provider) before using the software online,or receive enabling software to facilitate the customer’s use of the primary software on the customer’s hardware. If gross receipts attributable to the use of online software were permitted to qual- ify as DPGR because the same or simi- lar software also is available to customers on disk or by download, different items of software available online would be subject to disparate treatment under section 199. In addition, if online software were per- mitted to qualify as DPGR, it would be difficult to distinguish this online software from software that is used to facilitate a service. The IRS and Treasury Department are requesting comments in the Request for Comments section on this issue. One commentator suggested that the term lease, rental, license, sale, exchange, or other disposition, especially the term other disposition, was intended to be in- terpreted broadly to include gross receipts from any means of commercialization of property, whether or not an actual transfer of the property occurs. Another com- mentator noted that section 3.04(7)(d) of Notice 2005–14 states that gross receipts derived by a taxpayer from software that is merely offered for use to customers online for a fee are non-DPGR, and sug- gested that if the software is also offered to customers on disk or by download, then gross receipts for online use of otherwise qualifying software would be DPGR. The commentator also noted that the same section provides that a “service provided using computer software that does not in- volve a transfer of the computer software does not result in [DPGR],” and suggested that this language implies that if the soft- ware is not used in providing a service, no transfer is required for purposes of section 199. The IRS and Treasury Department did not intend the results suggested by the 2005–47 I.R.B.994November 21, 2005 commentators and the proposed regula- tions have been clarified as necessary. A number of commentators requested clarification and expansion of the rule in Notice 2005–14 that treats advertising receipts attributableto the sale or other disposition of newspapers and magazines as DPGR. Notice 2005–14 explains that advertising receipts in this context are inextricably linked to the gross receipts derived from the lease, rental, license, sale, exchange, or other disposition of the newspapers and magazines. In response to comments, the proposed regulations clarify that this rule also applies, under the same rationale, to advertising receipts relating to telephone directories and pe- riodicals, whereby ataxpayer’s gross receipts derived from the lease, rental, li- cense, sale, exchange, or other disposition of the telephone directories or periodicals that are MPGE in whole or in significant part within the United States includes advertising income from advertisements placed in those media, but only to the ex- tent the gross receipts, if any, derived from the lease, rental, license, sale, exchange, or other disposition of the telephone di- rectories or periodicals are DPGR. The proposed regulations clarify that adver- tising revenue for advertising in online newspapers and periodicals is non-DPGR, because any underlying receipts from the property itself are non-DPGR, as there is no lease, rental, license, sale, exchange, or other disposition of such property. The proposed regulations provide similar treatment for gross receipts attributable to product placements in a qualified film. The gross receipts attributable to product placements will be treated as DPGR, but (as with newspapers) only if the gross receipts derived from the lease, rental, li- cense, sale, exchange, or other disposition of the qualified film are DPGR. Thus, for product placement revenue to be derived from a qualified film, there must be a lease, rental, license, sale, exchange, or other disposition of the qualified film. Section 3.04(9)(a) of Notice 2005–14 provides that revenue from the licensing of film characters is not derived from the lease, rental, license, sale, exchange, or other disposition of a qualified film. One commentator stated that this treatment is inconsistent with the income forecast method, and that revenue from licensing of film-related intangibles is inextricably linked to (and therefore should be treated as derived from) the qualified film. The proposed regulations do not adopt this comment. Section 199(c)(4)(A)(i)(II) clearly requires that receipts must be de- rived from a lease, rental, license, sale, exchange, or other disposition of a qual- ified film to be DPGR. Receipts derived from the licensing of related intangibles, including film characters, trademarks, and trade names, do not meet this requirement. Further, the IRS and Treasury Department do not agree that receipts derived from licensing of film-related intangibles are inextricably linked to the gross receipts derived from a qualified film. Some commentators objected to the rule in section 4.04(7)(a) of Notice 2005–14 that provides that if a taxpayer exchanges QPP MPGE by the taxpayer in whole or in significant part within the United States for other property in a taxable exchange, the value of the prop- erty received by the taxpayer is DPGR; whereas any gross receipts derived from a subsequent sale by the taxpayer of the acquired property are non-DPGR because the taxpayer did not MPGE the acquired property. The commentators noted that in their industry, fungible commodities held for sale to customers are exchanged routinely between producers as a practi- cal means of avoiding logistical problems in meeting customers’ needs and reduc- ing transportation and storage costs. The commentators noted that these exchanges typically are not treated as taxable ex- changes on the parties’ financial records. The commentators requested that the pro- posed regulations instead provide that if the property relinquished in the exchange is QPP, qualified films, or utilities, then the property received in the exchange should be treated as QPP, qualified films, or util- ities and gross receipts derived from the subsequent sale of that property should be treated as DPGR. Another commentator suggested that this treatment be applied only to nontaxable exchanges. The proposed regulations do not adopt these suggestions. The IRS and Treasury Department believe that the character of property as having been MPGE in whole or in significant part by the taxpayer within the United States is not an attribute of the property, like basis and holding periods, that may be substituted with the transfer of the property. The IRS and Department Treasury believe that the commentators’ interpretations are inconsistent with sec- tion 199(c)(4)(A)(i)(I). Commentators requested that the IRS and Treasury Department clarify whether gross receipts from mineral royalties and net profits interests are properly treated as DPGR. Mineral royalties, including net profits interests, are returns on passive interests in mineral properties, the owner of which makes no expenditure for oper- ation or development. The courts and the IRS have long considered these types of income to be in the nature of rent (see, for example,Kirby Petroleum Co. v. Comm’r, 326 U.S. 599 (1946)). Accordingly, the proposed regulations in §1.199–3(h)(9) provide that gross receipts from mineral interests and net profits interests other than operating or working interests are not treated as DPGR. Definition of Manufactured, Produced, Grown, or Extracted Section 4.04(3)(b) of Notice 2005–14 provides that a taxpayer that MPGE QPP for the taxable year should treat itself as a producer under section 263A with re- spect to the QPP for the taxable year un- less the taxpayer is not subject to section 263A. In response, commentators ques- tioned whether all taxpayers that are sub- ject to section 263A are considered to have MPGE QPP for purposes of section 199. Taxpayers who do not MPGE QPP may nevertheless be subject to section 263A. For example, a taxpayer that has property produced for it under a contract is con- sidered a producer of property under sec- tion 263A, but may not be considered as having MPGE property for purposes of section 199 if it does not have the bene- fits and burdens of ownership of the prop- erty while it is being produced. Addition- ally, in some circumstances a taxpayer that manufactures propertyfor a customer pur- suant to a contract may be considered the producer of the property for purposes of section 263A and not to have MPGE the property for purposes of section 199. Ac- cordingly, not all taxpayers that are sub- ject to section 263A are considered to have MPGE QPP for purposes of section 199. Commentators also have questioned whether a taxpayer that engages in cer- tain production activities that are exempt from section 263A (for example, develop- November 21, 20059952005–47 I.R.B. ing computer software under Rev. Proc. 2000–50, 2000–2 C.B. 601, producing property pursuant to a long-term contract under section 460, or farming exempt un- der section 263A(d)) must treat itself as a producer under section 263A if the tax- payer wants to be treated as MPGE QPP for purposes of section 199. The proposed regulations in §1.199–3(d)(4) provide that a taxpayer that has MPGE QPP for the taxable year should treat itself as a pro- ducer under section263A with respect to the QPP for the taxable year unless the taxpayer is not subject to section 263A. A taxpayer whose MPGE activity is ex- empt from section 263A is not required to change its method of accounting under section 263A to treat itself as engaged in theMPGEofQPPforpurposesofsection 199. Commentators requested clarification as to whether a reseller that engages inde minimisproduction activities or that has property produced for it under contract, which constitutes the MPGE of QPP un- der section 199, is precluded from using the simplified resale method provided by §1.263A–3(d). Section 1.263A–3(a)(4)(ii) provides that a reseller withde minimis production activities is permitted to use the simplified resale method. Likewise, §1.263A–3(a)(4)(iii) provides that a re- seller otherwise permitted to use the sim- plified resale method is permitted to use the method if it has personal property produced for it under a contract if the con- tract is entered into incident to its resale activities and the property is sold to its customers. The section 263A consistency rule provided in §1.199–3(d)(4) of the pro- posed regulations does not affect the rules provided in §1.263A–3. Accordingly, a reseller withde minimisproduction or that has property produced for it under a contract that is considered the MPGE of QPP for purposes of section 199 is not precluded from using the simplified resale method if the taxpayer meets the require- ments of §1.263A–3(a)(4)(ii) or (iii). Definition of By the Taxpayer Section 1.199–3(e)(1) of the proposed regulations provides that, with the ex- ception of rules that are applicable to an EAG, certain oil and gas partnerships described in §1.199–3(h)(7), EAG part- nerships described in §1.199–3(h)(8), and certain government contracts described in §1.199–3(e)(2), only one taxpayer may claim the section 199 deduction with respecttotheMPGEofQPP.Ifonetax- payer MPGE QPP pursuant to a contract with another person, then only the tax- payer that has the benefits and burdens of ownership of the property under Fed- eral income tax principles during the time the property is MPGE will be consid- ered to have MPGE the QPP. In con- trast, §1.263A–2(a)(1)(ii)(B) provides that property produced for the taxpayer under a contract is considered as produced by the taxpayer to the extent the taxpayer makes payments or otherwise incurs costs with respect to the property, even if the taxpayer is not the owner of the property while the property is being produced. Commenta- tors questioned why a similar rule does not apply in the context of section 199. The rule provided by §1.263A–2(a)(1)(ii)(B) is derived from section 263A(g)(2). That section specifically provides that a tax- payer is treated as producing property produced for it under a contract to the ex- tent that it has made payments or incurred costs with respect to the contract. In con- trast, section 199(c)(4)(A)(i) provides that DPGR only includes gross receipts of the taxpayer that are derived from any lease, rental, license, sale, exchange, or other disposition of QPP MPGE by the taxpayer in whole in significant part within the United States. Accordingly, the proposed regulations do not contain a provision that is analogous to §1.263A–2(a)(1)(ii)(B). While sections 199, 263A, and 936 all have benefits and burdens standards, the standard under section 199 is not the same as those under sections 263A and 936. Commentators suggested that the proposed regulations adopt the broader standard under §1.263A–2(a)(1)(ii)(A) that provides that a taxpayer is not con- sidered to be producing property unless the taxpayer is considered the owner of the property produced under Federal in- come tax principles. The determination of whether a taxpayer is considered an owner is based on all of the facts and cir- cumstances, including the various benefits and burdens of ownership vested with the taxpayer. Because the standard under the section 263A regulations is broad, it has been interpreted to allow two tax- payers to be considered the producer of the same property. Compare, for exam- ple,Suzy’s Zoo v. Comm’r,114T.C.1 (2000),aff’d273 F.3d 875 (9th Cir. 2001) andGolden Gate Litho v. Comm’r,T.C. Memo (1998–184). The IRS and Treasury Department continue to believe that the requirement of section 199(c)(4)(A)(i) that property be MPGE by the taxpayer means that only one taxpayer may claim the section 199 deduction with respect to the same function performed with respect to the same property. Therefore, it would be inappropriate to adopt the standard under the section 263A regulations. In addi- tion, this interpretation is supported by the Congressional Letter that states the Treasury Department has the authority to prescribe rules to prevent the section 199 deduction from being claimed by more than one taxpayer with respect to the same economic activity described in section 199(c)(4)(A)(i). Thus, consistent with Notice 2005–14, the proposed regulations in §1.199–3(e)(1) provide that only one taxpayer may claim the section 199 deduc- tion with respect to any MPGE activity. Commentators also proposed other alternatives to the benefits and burdens standard, such as looking to the person that has the economic risks and benefits, adopting the qualified research rules un- der §1.41–2(e)(2), providing safe harbors based on contract terms, treating the per- son that arranges for the acquisition of the property as the owner, and looking to the person that controls the process by which the property is MPGE. The pro- posed regulations do not adopt any of these suggestions because the IRS and Treasury Department believe that there is considerable variation in the types of con- tract manufacturing situations. Therefore, the proposed regulations contain the same benefits and burdens standard used in No- tice 2005–14 because it is a standard that the IRS and Treasury Department believe covers all of the varied factual situations. Commentators requested that the pro- posed regulations provide examples of how to apply the benefits and burdens standard. The proposed regulations con- tain examples illustrating contract manu- facturing situations in which the taxpayer with the benefits and burdens of owner- ship under Federal income tax principles is treated as manufacturing the QPP. In the Congressional Letter, the Trea- sury Department was advised that gross 2005–47 I.R.B.996November 21, 2005 receipts derived from certain contracts to manufacture or produce property for the Federal government are derived from the sale of such property and, therefore, are DPGR. The proposed regulations in §1.199–3(e)(2) provide that a taxpayer will be treated as meeting the by the tax- payer requirement if the QPP, qualified films, or utilities are MPGE or other- wise produced in the United States by the taxpayer pursuant to acontract with the Federal government and the Federal Ac- quisition Regulation requires that title or risk of loss with respect to the QPP, quali- fied films, or utilities be transferred to the Federal government before the MPGE or production of the QPP, qualified films, or utilities is complete. In Whole or In Significant Part Under section 199(c)(4)(A)(i)(I), QPP must be MPGE in whole or in signif- icant part by the taxpayer within the United States. The proposed regulations in §1.199–3(f)(1) clarify that the in whole or in significant part requirement applies to both the by the taxpayer requirement and the within the United States require- ment. Section 4.04(5)(b) of Notice 2005–14 provides that QPP will be treated as hav- ing been MPGE in significant part by the taxpayer within the United States if the MPGE of the QPP performed within the United States is substantial in nature. De- sign and development costs do not qual- ify as substantial in nature for any QPP other than computer software and sound recordings. The proposed regulations in §1.199–3(f)(2) substitute research and ex- perimental expenditures under section 174 for design and development costs. Section 4.04(5)(c) of Notice 2005–14 provides that a taxpayer will be treated as having MPGE property in whole or in sig- nificant part within the United States if, in connection with the property, conversion costs (direct labor and related factory bur- den) to MPGE the property are incurred by the taxpayer within the United States and the costs account for 20 percent or more of the total CGS of the property. The pro- posed regulations in §1.199–3(f)(3) pro- vide that, in the case of tangible personal property, research and experimental ex- penditures under section 174 and any other costs of creating intangibles may be ex- cluded from total CGS for purposes of the safe harbor. A commentator suggested that a tax- payer’s activity within the United States that is critical to the functionality or nature of property should be considered to meet the in significant part requirement under section 199(c)(4)(A)(i)(I) even if the activ- ity is not substantial in nature. The pro- posed regulations do not adopt this sugges- tion because the IRS and Treasury Depart- ment do not believe that this is an accurate measurement of the degree of activity re- quired to satisfy the in whole or in signifi- cant part requirement. Qualifying Production Property Commentators requested that the IRS and Treasury Department reconsider the rule under section 4.04(8)(c) and (d) of Notice 2005–14 which provides that, if the medium in which computer software or sound recordings are contained is tangible, then such medium is considered tangible personal property for purposes of section 199. This rule has been removed and the proposed regulations in §1.199–3(i)(5) provide that if a taxpayer MPGE com- puter software or sound recordings that the taxpayer fixed on, or added to, tan- gible personal property (for example, a computer diskette oran appliance), then the tangible medium with the computer software or sound recordings may be treated by the taxpayer as computer soft- ware or sound recordings, as applicable. However, the proposed regulations pro- vide that, if a taxpayer treats the tangible medium as computer software or sound recordings, any costs under section 174 attributable to the tangible medium are not considered in determining whether the taxpayer’s activity is substantial in nature under §1.199–3(f)(2) or conversion costs under §1.199–3(f)(3). In addition, because a taxpayer may MPGE tangible personal property, but not computer software or sound recordings that the taxpayers fixes on, or adds to, the tangible personal prop- erty MPGE by the taxpayer, the proposed regulations provide that the computer soft- ware or sound recordings may be treated by the taxpayer as tangible personal prop- erty. Commentators requested that the pro- posed regulations clarify whether the exceptions from computer software under section 168(i)(2)(B)(iv) apply to computer software under section 199. In response to this comment, the proposed regulations provide in §1.199–3(i)(3)(i) that these exceptions do not apply for purposes of section 199 and computer software also includes the machine-readable code for video games and similar programs, for equipment that is an integral part of other property, and for typewriters, calculators, adding and accounting machines, copiers, duplicating equipment, and similar equip- ment, regardless of whether the code is designed to operate on a computer (as de- fined in section 168(i)(2)(B)). Computer programs of all classes, for example, op- erating systems, executive systems, mon- itors, compilers and translators, assembly routines, and utility programs as well as application programs, are included. A commentator requested that the pro- posed regulations provide that the creation and licensing of copyrighted business in- formation reports constitutes the MPGE of QPP. Formerly distributed in hard copy, this information is now generally dis- tributed electronically. Customers are re- quired to use the information only for their own use, and no copyright is transferred to them. The commentator contends that, while the activity of creating the business information reports provided to customers is not a production activity in the tradi- tional sense, the definition of MPGE is broad enough to encompass this activity. The IRS and Treasury Department do not agree with this comment because creating a database of business information is not MPGE, the database is not QPP, and the business information reports are not QPP MPGE by the taxpayer. Qualified Films Similar to the rules for computer software, section 4.04(9)(a) of Notice 2005–14 provides that if a medium on which a qualified film is fixed is tangible (such as a DVD), the property consists of both a qualified film and tangible personal property. The notice contains examples in which taxpayers that either produce a qualified film and purchase the tangible medium, or MPGE the tangible medium and license the qualified film, must allo- cate gross receipts between the tangible medium and the qualified film. For the reasons stated under the discussion of November 21, 20059972005–47 I.R.B. computer software, the proposed regu- lations allow certain taxpayers to treat such combined property as either tangible personal property or a qualified film, as applicable. One commentator requested that the proposed regulations clarify the require- ment that 50 percent of the total compen- sation relating to the production of the film be compensation for services per- formed in the United States by actors, production personnel, directors, and pro- ducers. Specifically, the commentator requested that the phrase “total compensa- tion relating to the production of the film” be interpreted to mean compensation for services performed only by actors, produc- tion personnel, directors, and producers. The commentator further requested that the term “compensation” be interpreted to include all compensation (not just W–2 wages) that is paid to these individuals and that is required to be capitalized by film producers under section 263A and §1.263A–1(e)(2) and (3). These sugges- tions have been adopted in the proposed regulations. Definition of Construction Performed in the United States Section 4.04(11)(a) of Notice 2005–14 defines the term “construction” to mean the construction or erection of real prop- erty by a taxpayer that is in a trade or business that is considered construction for purposes of the North American Industry Classification System (NAICS). Commen- tators asked how a taxpayer in multiple trades or businesses determines if it is in a construction NAICS code. The proposed regulations clarify that in order for a tax- payer to be considered in a construction NAICS code, it must be engaged in a con- struction trade or business (but not neces- sarily its primary trade or business) on a regular and ongoing basis. The determi- nation of whether an entity is in a NAICS code is generally tested on an entity-by-en- tity basis. Under this rule, a member of an EAG must perform the construction activity in order for its gross receipts to qualify as DPGR from construction. See §1.199–7(a)(3). In addition, the taxpayer must actually perform the construction ac- tivity. For example, if a taxpayer in a con- struction NAICS code hired an unrelated general contractor to construct a building, the gross receipts derived by the taxpayer from the sale of the building would not be DPGR because the taxpayer did not con- struct the building. The proposed regula- tions provide an example to illustrate this rule. Commentators also asked that the proposed regulations clarify whether eligible construction activities are lim- ited to a specific NAICS code. Section 1.199–3(l)(1)(i) provides that a trade or business that is considered construction for purposes of the NAICS codes means a construction activity under the two-digit NAICS code of 23 and any other construc- tion activity in any other NAICS code relating to the construction of real prop- erty. For example, a construction activity relating to the construction of real prop- erty that is not under the two-digit NAICS code of 23 but which qualifies as an eli- gible construction activity would include the construction of oil and gas wells for NAICS code 213111 (drilling oil and gas wells) and 213112 (support activities for oil and gas operations). Commentators also asked that the proposed regulations include a listing of construction activities relating to oil and gas wells. In response to this request, the proposed regulations pro- vide, as a matter of administrative grace, that qualifying construction activities also include activities relating to drilling an oil well and mining, and include any activi- ties treated by the taxpayer as intangible drilling and development costs under sec- tion 263(c) and §1.612–4 and development expenditures for a mine or natural deposit under section 616. Commentators contend that gross re- ceipts attributable to the leasing or rental of constructed real property qualify as DPGR because the right to use constructed property represents one right in the bundle of rights derived from the construction of real property. The proposed regulations do not adopt this interpretation because gross receipts derived from the rental of real property that a taxpayer constructs are not derived from construction, but are instead compensation for the use or forbearance of the property. Similarly, gross receipts derived from renting or leasing equipment such as bulldozers and generators to con- tractors for use in the construction of real property are non-DPGR (assuming the rental companies do not manufacture the equipment). Section 4.04(11)(a) of Notice 2005–14 contains a safe harbor rule for determin- ing when tangible personal property that is sold as part of a construction project may be considered real property. If more than 95 percent of the total gross receipts derived by a taxpayer from a construc- tion project are derived from real property (as defined in §1.263A–8(c)), then the to- tal gross receipts derived by the taxpayer from the project are DPGR from construc- tion. Commentators stated that it was un- clear what items of tangible personal prop- erty are included in this rule (for exam- ple, small or major appliances, home the- aters, and fixtures installed by a builder) and whether it was intended that land be included for purposes of this safe harbor. Consequently, this rule has been replaced in the proposed regulations with ade min- imisexception in §1.199–3(l)(1)(ii). Ac- cordingly, if less than 5 percent of the total gross receipts derived by a taxpayer from a construction project are derived from ac- tivities other than the construction of real property in the United States (for exam- ple, from non-construction activities, the sale of tangible personal property, or land) then the total gross receipts derived by the taxpayer from the project are DPGR from construction. Many commentators suggested that the proposed regulations treat gross receipts attributable to the sale or other disposition of land as DPGR derived from construc- tion of real property. Commentators also suggested that construction begins as soon as production activities begin, that is, when land is acquired and the entitlement process, such as obtaining proper zoning and permits, commences in connection with construction of real property. The proposed regulations do not adopt these suggestions. The IRS and Treasury De- partment continue to believe that Congress intended the benefitunder section 199 only for construction services performed in the United States. Taxpayers do not construct land and thus any gain attributable to the disposition of land (including zoning, planning, entitlement costs and other costs capitalized to the land such as the demo- lition of structures under section 280B) is not eligible for the section 199 deduction. Commentators also argue that the land exclusion creates an administrative and financial burden because a valuation will be necessary for any sale of real property 2005–47 I.R.B.998November 21, 2005 that includes land. To address the admin- istrative burden in identifying and valuing the gross receipts attributable to land in connection with qualifying construction activities, the proposed regulations pro- vide a safe harbor in §1.199–3(l)(5)(ii). Under this safe harbor, a taxpayer may al- locate gross receipts between the proceeds from the sale, exchange, or other dispo- sition of real property constructed by the taxpayer and the gross receipts attributable to the sale, exchange, or other disposition of land by reducing its costs related to DPGR in §1.199–4 by costs of the land and any other costs capitalized to the land (collectively, land costs) (including land costs in any common improvements as de- fined in section 2.01 of Rev. Proc. 92–29, 1992–1 C.B. 748), and by reducing its DPGR from qualifying construction activ- ities by those land costs plus a specified percentage. The percentage is based on the number of years that elapse between the date the taxpayer acquires the land, including the date the taxpayer enters into the first option to acquire all or a portion of the land, and ends on the date the tax- payer sells each itemof real property on the land. The percentage is 5 percent for years zero through 5; 10 percent for years 6 through 10; and 15 percent for years 11 through 15. Land held by a taxpayer for 16 or more years is not eligible for the safe harbor and the taxpayer must allocate gross receipts between the land and the qualifying real property. For example, if a taxpayer acquires land in 2001 and con- structs houses that it sells in 2005, 2008, and 2012, the houses sold in 2005 are sub- ject to the 5 percent reduction; the houses sold in 2008 are subject to the 10 percent reduction; and the houses sold in 2012 are subject to the 15 percent reduction. Commentators suggested that develop- ers of raw land should be entitled to a sec- tion 199 deduction for improvements to land such as building roads, sidewalks, and installing utilities. In addition, they sug- gested that entitlements such as zoning, permits, and surveys that add value to the land should be included in DPGR similar to the treatment of design and development costs for software and sound recordings. The proposed regulations provide that a taxpayer in a construction NAICS code that sells developed land will have DPGR to the extent the receipts are attributable to real property such as infrastructure but not to the land and any entitlements attribut- able to the land. The proposed regulations provide examples in §1.199–3(l)(5)(iii) to illustrate this rule. Commentators suggested that the pro- posed regulations extend the embedded services exception for qualified warranties in connection with the sale of property to construction warranties. The IRS and Treasury Department agree with this sug- gestion. Accordingly, §1.199–3(l)(5)(i) provides DPGR derived from the con- struction of real property includes gross receipts from any warranty that is provided in connection with the construction of the real property if, in the normal course of the taxpayer’s business, the charge for the construction warranty is included in the price for the construction project and the construction warrantyis neither separately offered by the taxpayer nor separately bar- gained for with the customer (that is, the customer cannot purchase the constructed real property without the construction warranty). Engineering and Architectural Services Section 4.04(12)(a) of Notice 2005–14 provides that DPGR includes gross re- ceipts derived from engineering or ar- chitectural services performed in the United States for realproperty construc- tion projects in the United States. Com- mentators stated that the definition of en- gineering and architectural services should not be limited to real property because this limitation is inconsistent with the rules for engineering and architectural services under the domestic international sales cor- poration, foreign sales corporation, and extraterritorial income exclusion provi- sions. The IRS and Treasury Department continue to believe that the statutory lan- guage in section 199(c)(4)(A)(iii) requires that only engineering and architectural services relating to real property qualify for the section 199 deduction and that the same rules relating to construction of real property apply for engineering or architec- tural services. In addition, the Blue Book at page 172 n. 292, states that DPGR includes gross receipts derived from the engineering or architectural services per- formed with respect to real property only. Thus, DPGR only includes gross receipts derived from engineering or architectural services performed in the United States for the construction of real property in the United States. In addition, the IRS and Treasury Department believe that, consistent with the rules for construction activities, a taxpayer performing engi- neering and architectural services must be in a trade or business described in an engineering or architectural NAICS code. Accordingly, the proposed regula- tions require that, at the time the taxpayer performs the engineering or architectural services, the taxpayer must be in a trade or business on a regular and ongoing basis (but not necessarily its primary trade or business) that is considered engineering or architectural services for purposes of the NAICS codes, for example NAICS codes 541330 (engineering services) or 541310 (architectural services). A commentator also requested clari- fication of whether a structure enclosing an electric generation station as described in Rev. Rul. 69–412, 1969–2 C.B. 2, would be considered real property for purposes of section 199(c)(4)(A)(iii). In that revenue ruling, the structure quali- fied as section 38 property for investment credit purposes. The revenue ruling does not determine whether the property was real or personal property. Under section 4.04(11)(a) of Notice 2005–14, real prop- erty includes residential and commercial buildings including items that are struc- tural components of such buildings and inherently permanent structures other than tangible personal property in the nature of machinery. The proposed regulations in §1.199–3(l)(1)(i) retain this language. Thus, a structure enclosing an electric generation station as described in Rev. Rul. 69–412 is treated as real property for purposes of section 199(c)(4)(A)(iii). In addition, similar to the rules for con- struction, the determination of whether an entity is in an engineering or architectural NAICS code is made on an entity-by-en- tity basis. Under this rule, a member of an EAG must perform the engineering or architectural services in order for its gross receipts to qualify as DPGR from engineering or architectural services. See §1.199–7(a)(3). In addition, the taxpayer must actually perform the engineering or architectural services. One commentator pointed out that the requirement in section 4.04(12)(a) of No- tice 2005–14 that a taxpayer must substan- tiate that the engineering or architectural November 21, 20059992005–47 I.R.B. services relate to a construction project in the United States is unnecessary because taxpayers are already required to identify and allocate gross receipts attributable to DPGR based upon a reasonable method satisfactory to the Secretary for purposes of determining QPAI. Because there was no intention on the part of the IRS and Treasury Department to create an addi- tional substantiation requirement for engi- neering and architectural services, this ad- ditional substantiation requirement is not required under the proposed regulations. Commentators requested clarification of whether gross receipts attributable to feasibility studies, for example, planning possible road or building configurations for a potential real property develop- ment project, is a qualifying activity. The commentators state that engineering and architectural firms are often hired for these studies to determine a project’s practicability. Accordingly, the proposed regulations provide in §1.199–3(m)(1) that DPGR includes gross receipts derived from engineering or architectural services, including feasibility studies for a con- struction project in the United States, even if the planned construction project is not undertaken or is not completed. Food and Beverages Section 199(c)(4)(B)(i) provides that DPGR does not include gross receipts of the taxpayer that are derived from the sale of food and beverages prepared by the taxpayer at a retail establishment. Sec- tion 4.04(13) of Notice 2005–14 defines a “retail establishment” as real property leased, occupied, or otherwise used by the taxpayer in its trade or business of selling food or beverages to the public at which retail sales are made. One commentator stated that food carts and portable food stands should not be considered retail establishments because they do not consti- tute real property. The IRS and Treasury Department believe that the term “retail establishment” is intended to be inter- preted broadly to include any facility at which the taxpayer prepares food or bev- erages and makes retail sales of the food or beverages to the public. See Conference Report at page 272 (footnote 27) (retail es- tablishment not limited to establishments at which customers dine on premises or to those engaged primarily in the dining trade). Accordingly, the proposed regula- tions do not adopt this suggestion, and the term “retail establishment” is clarified to include both real and personal property. In addition, a facility at which food and beverages are prepared solely for take out service or delivery is a retail establishment (for example, a caterer). Consistent with Notice 2005–14, the proposed regulations provide that if a tax- payer’s facility is a retail establishment, then, as a matter of administrative grace, a taxpayer is permitted to allocate its gross receipts between gross receipts derived from the wholesale sale of the food and beverages prepared at the retail establish- ment (which are DPGR, assuming all the other requirements of section 199(c) are met) and the gross receipts derived from the retail sale of the food and beverages prepared and sold at the retail establish- ment (which are non-DPGR). For this purpose, wholesale sales are defined as sales of food and beverages to be resold by the purchaser. One commentator requested clarifica- tion how the retail establishment excep- tion applies in the case of wineries. While producers of distilled spirits, wines, and beer may conduct retail sales of their prod- ucts on their premises, such sales do not transform the entire premises of the dis- tilled spirits plant, bonded wine cellar (or bonded winery), or brewery into a retail es- tablishment. Chapter 51 of Title 26 of the United States Code, and the implementing regulations found in 27 CFR Parts 19, 24, and 25, create clear distinctions between that portion of a distilled spirits plant, win- ery, or brewery devoted to production ac- tivities and the portion devoted to other activities, such as retail sales. Consis- tent with the treatment of such facilities for purposes of Chapter 51 of Title 26 of the United States Code and the regulations thereunder, the proposed regulations pro- vide that the portion of a distilled spirits plant, bonded winery, or brewery that is restricted to production activities, includ- ing the processing and blending of distilled spirits, wine, and beer products, will not be treated as a retail establishment for pur- poses of section 199(c)(4)(B)(i). Thus, for example, for purposes of section 199, tax- paid wine sold from the taxpaid premises of a bonded winery is not considered to have been produced at a retail establish- ment because it is considered to have been produced on the bonded premises of the winery. Accordingly, the sales of such wine will be treated as DPGR for purposes of section 199 (assuming all the other re- quirements of section 199(c) are met). A similar result applies to the sale of taxpaid distilled spirits from the general (taxpaid) premises of a distilled spirits plant, and to the sale of taxpaid beer from the tavern portion of a brewery. A commentator suggested that the pro- posed regulations interpret the termfood and beveragesto mean only items pre- pared by the taxpayer in a single serving size for immediate consumption by the purchaser. The commentator believes that the Conference Report in footnote 27 supports this interpretation because these characteristics are common to the exam- ples that the footnote provides (that is, brewed coffee and venison sausage pre- pared at a restaurant). The commentator further contends that this interpretation eliminates the distinction between food and beverages prepared off-site (gross re- ceipts from the retail sale of which may be DPGR) and those prepared on-site (gross receipts from the retail sale of which are non-DPGR), a distinction that the com- mentator believes Congress did not intend. The IRS and Treasury Department do not believe that the statute or Conference Report supports the commentator’s inter- pretation. If the commentator’s interpreta- tion was correct, then gross receipts from the retail sale of the roasted coffee beans in footnote 27 would have qualified as DPGR even if the taxpayer had roasted the beans at its retail establishment be- cause the beans are not sold in single serv- ings for immediate consumption. How- ever, footnote 27 makes clear that the gross receipts attributableto the beans only qual- ify because the beans were roasted at a facility separate from the retail establish- ment. Thus, the statute and legislative his- tory clearly provide different treatment for gross receipts attributable to the retail sale of food and beverages prepared at a retail establishment and food and beverages pre- pared elsewhere. The same commentator requested clar- ification of how the food and beverages exception applies to in-store bakeries. Footnote 27 of the Conference Report provides an example of a taxpayer that operates a supermarket that includes an in-store bakery, and provides that the 2005–47 I.R.B.1000November 21, 2005 taxpayer may allocate its gross receipts between DPGR and non-DPGR. The com- mentator believes that the example could be interpreted to mean that all gross re- ceipts allocable to sales (both retail and wholesale) of items prepared in the bakery are non-DPGR. Section 4.04(13) of Notice 2005–14 however, as a matter of adminis- trative grace, permits gross receipts from wholesale sales of food and beverages produced at a retail establishment to qual- ify as DPGR (if all other requirements of section 199(c) are met), and the proposed regulations retain this rule. Thus, gross receipts from wholesale sales of items pro- duced at the in-store bakery (for example, items sold to restaurants) may qualify as DPGR (if all other requirements of section 199(c) are met). The commentator further stated, consistent with the first comment, that gross receipts from retail sales of bakery products that require further pro- cessing by the consumer to be suitable for individual consumption (such as unsliced cakes and unsliced loaves of bread) should not be excluded from DPGR under section 199(c)(4)(B)(i). For the reasons stated above, the IRS and Treasury Department believe that retail sales of these items are subject to that exclusion. Receipts allo- cable to wholesale sales of these items, however, may qualify as DPGR under the administrative exception, assuming all the other requirements of section 199(c) are met. Determining Costs To determine its QPAI for the taxable year, a taxpayer must subtract from its DPGR the amount of CGS allocable to DPGR, the other deductions, expenses, and losses (deductions) directly allocable to DPGR, and a ratable portion of other deductions that are not directly allocable to DPGR or another class of income. A taxpayer’s costs must be determined using the taxpayer’s methods of accounting for Federal income tax purposes. Allocation of Cost of Goods Sold Notice 2005–14 provides that if a tax- payer can identify from its books and records CGS allocable to DPGR, CGS al- locable to DPGR is that amount. The No- tice also provides that if a taxpayer’s books and records do not allow it to identify CGS allocable to DPGR, the taxpayer may use a reasonable allocation method to allocate CGS between DPGR and non-DPGR. The Notice further provides that, if a taxpayer uses a method to allocate gross receipts between DPGR and non-DPGR, then the taxpayer may not use a different method for purposes of allocating CGS. Commentators suggested that a tax- payer should be permitted to allocate CGS using a reasonable method separate from the method used to allocate gross receipts because using the sameallocation method for gross receipts and CGS may not be possible or may distort income. For exam- ple, a taxpayer that can identify from its books and records gross receipts allocable to DPGR may not be able to specifically identify CGS allocable to DPGR. Com- mentators also questioned whether a tax- payer that can identify from its books and records CGS allocable to DPGR must al- locate CGS on such basis when it allocates gross receipts using a different method. The proposed regulations clarify that if a taxpayer does, or can without undue burden or expense, specifically identify from its books and records CGS alloca- ble to DPGR, CGS allocable to DPGR is that amount irrespective of whether the taxpayer uses another allocation method to allocate gross receipts between DPGR and other gross receipts. The proposed regulations also clarify that if a taxpayer cannot, without undue burden or expense, use a specific identification method to determine CGS allocable to DPGR, the taxpayer is not required to use a specific identification method to determine CGS allocable to DPGR, but may use some other reasonable method. A taxpayer’s use of a method for purposes of allocat- ing CGS between DPGR and non-DPGR that is different from its method for allo- cating gross receipts between DPGR and non-DPGR will ordinarily not be con- sidered reasonable unless the method for allocating CGS is demonstrably more ac- curate than the method used to allocate gross receipts. Commentators also suggested that CGS allocable to DPGR may not be read- ily ascertainable when a taxpayer uses the last-in, first-out (LIFO) method to account for its inventory. Therefore, commenta- tors requested that a simplified method be provided to allocate CGS between DPGR and non-DPGR when a taxpayer uses the LIFO method to account for its inventory. The proposed regulations provide that a taxpayer that uses the LIFO method to account for its inventory may use any rea- sonable method to allocate CGS between DPGR and non-DPGR. In addition, the regulations provide simplified methods that a taxpayer may use to allocate CGS when a taxpayer uses the LIFO method to account for its inventories. The IRS and Treasury Department also received comments requesting clarifica- tion of the types of costs that are required to be allocated as CGS allocable to DPGR. In particular, commentators stated that section 263A only requires taxpayers to capitalize costs with respect to inventory on hand at the end of the taxable year and that as a result taxpayers generally do not include indirect costs in CGS, but instead deduct the amount not allocated to ending inventory. Section 263A requires a taxpayer that produces inventory to in- clude in inventory costs the direct costs of producing the property and the property’s properly allocable share of indirect costs for purposes of determining both ending inventory and CGS. Consistent with No- tice 2005–14, the proposed regulations provide that, for purposes of determining CGS allocable to DPGR, CGS includes the costs that would have been included in ending inventory under the principles of sections 263A, 471, and 472 if the goods sold during the taxable year were on hand at the end of the taxable year. However, a taxpayer is permitted to use any reasonable method to allocate indirect costs properly included in CGS between DPGR and non-DPGR if the taxpayer’s books and records do not, or cannot with- out undue burden or expense, specifically identify CGS allocable to DPGR. Comments also were received concern- ing whether a taxpayer is permitted to use a reasonable allocation method to allocate CGS if it uses the simplified production method or simplified resale method for additional section 263A costs. The pro- posed regulations clarify that a taxpayer that uses either the simplified production method or the simplified resale method for additional section 263A costs may use a reasonable allocation method to allocate both section 471 costs and additional sec- tion 263A costs included in CGS. The pro- posed regulations further provide that if a taxpayer uses the simplified production method or the simplified resale method to November 21, 200510012005–47 I.R.B. allocate additional section 263A costs to ending inventory, additional section 263A costs ordinarily should be allocated in the same proportion as section 471 costs are allocated. Allocation and Apportionment of Deductions Consistent with Notice 2005–14, the proposed regulations provide three meth- ods for allocating and apportioning de- ductions. However, as described below, modifications have been made in these proposed regulations to the qualification requirements of the simplified deduction method and the small business simplified overall method. The first method, the “section 861 method,”isrequiredtobeusedbya taxpayer, unless the taxpayer is eligible and chooses to use either the simpli- fied deduction method or the small busi- ness simplified overall method. Under the section 861 method, section 199 is treated as an operative section described in §1.861–8(f). Accordingly, a taxpayer determines the deductions allocated and apportioned to DPGR by applying the allocation and apportionment rules pro- vided by §§1.861–8 through 1.861–17 and §§1.861–8T through 1.861–14T (the section 861 regulations), subject to cer- tain special rules. The IRS and Treasury Department recognize that the allocation and apportionment rules of the section 861 method may be burdensome to certain taxpayers, particularly smaller taxpayers, that otherwise would not be required to use these rules. Accordingly, the pro- posed regulations provide two alternative methods, the simplified deduction method and the small business simplified overall method, with a goal of minimizing the need for smaller taxpayers to devote addi- tional resources to compliance. Under the “simplified deduction method,” a taxpayer’s deductions are apportioned between DPGR and other receipts based on relative gross receipts. The simplified deduction method does not apply to the allocation of CGS. Notice 2005–14 permits only taxpayers with aver- age annual gross receipts of $25,000,000 or less to use the simplified deduction method. Several commentators requested that the simplified deduction method also be made available to taxpayers with gross receipts in excess of $25,000,000. Many of these comments were from taxpayers that have not in the past been required to allocate and apportion deductions under the section 861 regulations. Some com- mentators suggested that the simplified deduction method be used for all costs, except for limited identified costs such as interest, for which the section 861 method would continue to apply. Still other com- mentators suggested that taxpayers be allowedtouseotherexistingcostalloca- tion methods, such as those under section 263A or under other government regula- tory procedures. In response to these comments, the IRS and Treasury Department have modified the eligibility requirements for the simpli- fied deduction method. Under the pro- posed regulations, a taxpayer may use the simplified deduction method if it has aver- age annual gross receipts of $25,000,000 or less, or total assets at the end of the tax- able year of $10,000,000 or less. However, the IRS and Treasury Department still be- lieve that for taxpayers above this thresh- old the section 861 method is the appro- priate method of allocating and apportion- ing deductions for purposes of determining QPAI. Furthermore, the alternative alloca- tion methods suggested by commentators would each require additional rules and guidance to address the interaction of the suggested methods with other Federal in- come tax rules and would result in admin- istrative complexity and inefficiency. The IRS and Treasury Department believe that use of the section 861 method will result in an appropriate cost allocation and appor- tionment for purposes of section 199 and will be easier administratively for both tax- payers and the IRS than any new, equally comprehensive cost allocation and appor- tionment rules that might be created. Section 1.199–4(f) of the proposed reg- ulations provides that a qualifying small taxpayer may use the “small business sim- plified overall method” to apportion CGS and deductions to DPGR. Under Notice 2005–14, a qualifying small taxpayer is a taxpayer that has average annual gross re- ceipts of $5,000,000 or less or a taxpayer that is eligible to use the cash method as provided in Rev. Proc. 2002–28, 2002–1 C.B. 815. The IRS and Treasury Depart- ment are concerned that the $5,000,000 av- erage annual gross receipts threshold with- out further modification could be used by large taxpayers to circumvent the require- ments to allocate and apportion deductions usingthesection861method. Asare- sult, a deduction limitation has been added to this method. In addition, commentators requested that the definition of qualifying small taxpayer for purposes of the small business simplified overall method be ex- panded to include farmers that are not re- quired to use the accrual method under sec- tion 447. The proposed regulations incor- porate this suggestion. Accordingly, the proposed regulations provide that a quali- fying small taxpayer is a taxpayer that; (1) has both average annual gross receipts of $5,000,000 or less, and CGS and deduc- tions (excluding NOL deductions and de- ductions not attributable to the conduct of a trade or business) for the current taxable year of $5,000,000 or less; (2) is engaged in the trade or business of farming that is not required to use the accrual method un- der section 447; or (3) is eligible to use the cash method as provided in Rev. Proc. 2002–28. Notice 2005–14 specifically requested comments on whether taxpayers should be able to change between the three cost allo- cation methods of section 199 on amended returns and whether there should be re- strictions on a taxpayer’s ability to change from one method to another. Several com- mentators suggested that a taxpayer should be allowed to change its cost allocation method on an amended return and that a taxpayer should be able to annually choose to use any of the three methods. The IRS and Treasury Department agree that a taxpayer that qualifies to use a particu- lar allocation and apportionment method should be able to change to that method at any time. Accordingly, the proposed regulations generally provide that a tax- payer eligible to use the simplified deduc- tion method may choose at any time to use the simplified deduction method or the section 861 method for a taxable year. A taxpayer eligible to use the small business simplified overall method may choose at any time to use the small business sim- plified overall method, the simplified de- duction method, or the section 861 method for a taxable year. This rule does not affect, however, any restrictions or limi- tations that apply within the section 861 method. 2005–47 I.R.B.1002November 21, 2005 Pass-thru Entities Section 199 applies at the owner level in a manner consistent with the economic arrangement of the owners of the pass-thru entity. Under the proposed regulations, each owner computes its section 199 de- duction by taking into account its distribu- tive or proportionate share of the pass-thru entity’s items (including items of income and gain, as well as items of loss and de- duction not otherwise disallowed by the Code), CGS allocated to such items of in- come, and gross receipts included in such items of income. In response to a commen- tator’s inquiry, the proposed regulations make it clear that the owner of a pass-thru entity need not be engaged directly in the entity’s trade or business in order to claim asection199deductiononthebasisof that owner’s share of the pass-thru entity’s items. Some commentators recommended that section 199 be applied to partnerships by using an aggregate approach in situations where the qualified production activities are conducted by the partnership, which distributes or sells the QPP, qualified films, or utilities to a partner who then leases, rents, licenses, sells, exchanges, or oth- erwise disposes of the property, or where the qualified production activities are con- ducted by a partner which contributes or sells the QPP, qualified films, or utilities to the partnership, which then leases, rents, licenses, sells, exchanges, or otherwise disposes of the property. The commenta- tors maintained that the income derived by the partners and the partnerships from the lease, rental, license, sale, exchange, or other disposition of the property in these situations should be treated as QPAI and qualify for the section 199 deduction. The proposed regulations do not follow the commentators’ recommendation be- cause section 199(c)(4)(A) requires that the gross receipts must be derived from the taxpayer’s own qualified production activities to qualify as DPGR. Accord- ingly, except for; (i) certain qualifying oil and gas partnerships; and (ii) EAG part- nerships, discussed below, the proposed regulations provide that the owner of a pass-thru entity is not treated as directly conducting the qualified production activ- ities of the pass-thru entity, and vice versa, with respect to the property transferred be- tween the pass-thru entity and the owner. This rule applies to all partnerships, in- cluding partnerships that have elected out of subchapter K under section 761(a). In addition, attribution of activities does not apply for purposes of the construction of real property and the performance of engi- neering and architectural services. The proposed regulations, pursuant to the Congressional Letter, provide a lim- ited exception for certain partnerships in which all of the capital and profits inter- ests are owned by members of a single EAG at all times during the taxable year of the partnership (EAG partnership). For purposes of determining the DPGR of a partnership and its partners, an EAG part- nership and all members of the EAG in which the partners of the EAG partner- ship are members are treated as a single taxpayer during the taxable year for pur- poses of section 199(c)(4). Thus, if an EAG partnership MPGE or produces prop- erty and distributes, leases, rents, licenses, sells, exchanges, or otherwise disposes of that property to a member of an EAG in which the partners of the EAG partnership are members, then the MPGE or produc- tion activity conducted by the EAG part- nership will be treated as having been con- ducted by the members of the EAG. Sim- ilarly, if one or more members of an EAG in which the partners of an EAG part- nership are members MPGE or produces property, and contributes, leases, rents, li- censes, sells, exchanges, or otherwise dis- poses of that property to the EAG partner- ship, then the MPGE or production activity conducted by the EAG member (or mem- bers) will be treated as having been con- ducted by the EAG partnership. Except as otherwise provided, an EAG partnership is generally treated the same as other partnerships for purposes of sec- tion 199. Accordingly, the proposed regu- lations provide that an EAG partnership is subject to the rules of §1.199–5 regarding the application of section 199 to pass-thru entities, and the application of the sec- tion 199(d)(1)(B) wage limitation under §1.199–5(a)(3). Under the proposed reg- ulations, if an EAG partnership distributes property to a partner, then, solely for pur- poses of section 199(d)(1)(B)(ii), the EAG partnership is treated as having gross re- ceipts in the taxable year of the distribution equal to the fair market value of the prop- erty at the time of distribution to the part- ner and the deemed gross receipts are allo- cated to that partner, provided the partner derives gross receipts from the distributed property during the taxable year of the partner with or within which the partner- ship’s taxable year (in which the distribu- tion occurs) ends. Costs included in the ad- justed basis of the distributed property and any other relevant deductions are taken into account in computing the partner’s QPAI. The proposed regulations provide that the small business simplified overall method is not available to EAG partner- ships. Another commentator asked whether the owner of a pass-thru entity might have to perform multiple QPAI calcula- tions, distinguishing between pass-thru and non-pass-thru production activities. The proposed regulations make it clear that, when determining its section 199 deduction, an owner of a pass-thru entity aggregates items of income and expense from the entity (including W–2 wages) with its own items of income and expense (including W–2 wages) for purposes of allocating and apportioning deductions to DPGR. As noted above, the amount of W–2 wages of a pass-thru entity taken into account by an owner in applying the wage limitation of section 199(b) is determined under section 199(d)(1)(B). The proposed regulations provide that in determining an owner’s allocable share of wages under section 199(d)(1)(B)(i), W–2 wages are deemed to be allocated in the same way as wage expense is allocated. In the case of a non-grantor trust or estate, the W–2 wages are deemed to be allocated among the trust or estate and the various bene- ficiaries in the same manner as QPAI, as described below. Although a pass-thru entity’s QPAI is computed by deducting wages paid by the entity during its entire taxable year, generally it is the pass-thru entity’s W–2 wages (as shown on the Forms W–2 for the calendar year ending within that taxable year) that are used to compute the wage limitation under section 199(b) and an owner’s allocable share of wages under section 199(d)(1)(B)(i). If QPAI,computedbytakingintoaccount only the items of the pass-thru entity al- located to the owner, is not greater than zero, the owner may not take into account the W–2 wages of the entity in computing the section 199(b) wage limitation. A commentator requested that the pro- posed regulations clarify and illustrate November 21, 200510032005–47 I.R.B. by example how the section 199(d)(1)(B) wage limitation applies in a tiered partner- ship structure. In particular, the commen- tator suggested that the W–2 wages of a lower-tier partnership with positive QPAI are properly allocable to the partner of the upper-tier partnership even if the QPAI allocated to the partner from the upper-tier partnership is less than zero. The proposed regulations do not adopt this suggestion. The proposed regulations provide that the section 199(d)(1)(B) wage limitation must be applied at each level in a tiered structure. Thus, in a tiered structure, the owner of a pass-thru entity (including an owner that itself is a pass-thru en- tity) calculates the amounts described in section 199(d)(1)(B)(i) (allocable share) and (d)(1)(B)(ii) (twice the applicable percentage of the QPAI from the entity) separately with regard to its interest in that pass-thru entity. The proposed regulations provide rules regarding the treatment of W–2 wages when a pass-thru entity (up- per-tier entity) owns an interest in one or more other pass-thru entities (lower-tier entities). An example in the proposed reg- ulations illustrates the application of these rules. The proposed regulations contain spe- cial rules for trusts and estates. To the extent that a grantor or another person is treated as owning all or part of a trust under sections 671 through 679 (grantor trust), the owner will compute its QPAI with re- spect to the owned portion of the trust as if that QPAI had been generated by activ- ities performed directly by the owner. In the case of a non-grantor trust or estate, the DPGR and expenses needed to compute the QPAI, as well as the W–2 wages rele- vant to the computation of the wage limita- tion, must be allocated among the trust or estate and its various beneficiaries. Each beneficiary’s share of the trust’s or estate’s QPAI (which will be less than zero if the CGS and the deductions allocated and ap- portioned to DPGR exceed the trust’s or estate’s DPGR) and W–2 wages will be determined based on the proportion of the trust’s or estate’s distributable net income (DNI), as defined by section 643(a), that is deemed to be distributed to that ben- eficiary for that taxable year. Similarly, the proportion of the entity’s DNI that is not deemed distributed by the trust or es- tate will determine the entity’s share of the QPAI and W–2 wages. In addition, if the trust or estate has no DNI in a particular taxable year, any QPAI and W–2 wages are allocated to the trust or estate, and not to any beneficiary. Section 199(d)(1)(A)(i) provides that, in the case of an estate or trust (or other pass-thru entity), section 199 shall apply at the beneficiary (or similar) level. Pur- suant to this provision, as clarified by the Congressional Letter, the proposed regu- lations provide that a trust or estate may claim the section 199 deduction to the ex- tent that QPAI is allocated to it. Solely for purposes of determining the section 199 deduction for the taxable year, theQPAIofatrustorestatemustbecom- puted by allocating the expenses described in section 199(d)(5) under §1.652(b)–3 with respect to directly attributable ex- penses. With respect to other expenses described in section 199(d)(5), a trust or estate that qualifies for the simplified de- duction method described in §1.199–4(e) must use that method, and any other trust or estate must use the section 861 method described in §1.199–4(d). The small business simplifiedoverall method is not available to a trust or estate. Because the sale of an interest in a pass- thru entity does not reflect the realization of DPGR by that entity, DPGR generally does not include gain or loss recognized on the sale, exchange or other disposition of an interest in the entity. However, consis- tent with Notice 2005–14, if section 751(a) or (b) applies, then gain or loss attribut- able to partnership assets giving rise to or- dinary income under section 751(a) or (b), the sale, exchange, or other disposition of which would give rise to an item of DPGR, is taken into account in computing the part- ner’s section 199 deduction. Section 199 applies to taxable years be- ginning after December 31, 2004. Ac- cordingly, these proposed regulations ap- ply to taxable years of pass-thru entities that begin on or after January 1, 2005. The IRS and Treasury Department recognize that a pass-thru entity will need to provide certain information to its owners to allow those persons to compute the section 199 deduction. No special provision with re- gard to information reporting is made for electing large partnerships (ELPs) as de- finedbysection775,whicharesubjectto the same methods for allocating and ap- portioning deductions as are other partner- ships. Thus, ELPs are required to pro- vide the same information to their part- ners as other partnerships for purposes of computing the section 199 deduction. The IRS and the Treasury Department intend to provide information reporting rules for pass-thru entities in the relevant forms and instructions. Agricultural and Horticultural Cooperatives A commentator suggested that the pro- posed regulations provide that patrons cannot include patronage dividends and per-unit retain certificates in the computa- tion of the QPAI from the patron’s other farming operations to the extent that those amounts were taken into account by a co- operative in determining the cooperative’s section 199 deduction. The commentator stated that in many cases, both the coop- erative and its patrons will be engaged in qualifying activities. For example, gross receipts from crops raised by a farmer in the United States may be eligible for the section 199 deduction as well as the receipts the cooperative derives from the marketing of the crop. To avoid duplica- tion of section 199 benefits, the proposed regulations clarify that under §1.199–6(h) patronage dividends and per-unit alloca- tions a patron receives from a cooperative that are taken into account as part of the cooperative’s computation of QPAI may not be taken into account in computing the patron’s QPAI from its own qualifying ac- tivities. In addition, patronage dividends and per-unit retain allocations include any advances on patronage or per-unit retains paid in money made during the taxable year. Examples are provided to illustrate this rule. A commentator suggested that the pro- posed regulations clarify the amount of the section 199 deduction a cooperative is re- quired to pass through to its patrons. Ac- cordingly, the proposed regulations clarify in §1.199–6(d) that the cooperative may, at its discretion, pass through all, some, or none of the allowable section 199 deduc- tion to its patrons. A commentator suggested that it would be useful if the proposed regulations ad- dress whether a cooperative member of a federated cooperative may pass through to its patrons the section 199 deduction it receives as a patron cooperative. Ac- cordingly, the proposed regulations in 2005–47 I.R.B.1004November 21, 2005 §1.199–6(d) provide that a cooperative patron of a federated cooperative may pass through the section 199 deduction it receives to its member patrons. A commentator requested that the proposed regulations address the form, content, and timing of the patron notifi- cation requirements. The commentator stated that the notice should not have to accompany the patronage distribution. For instance, a cooperative should be permit- ted to send out a notice passing through an estimated amount of the section 199 deduction at the time patronage dividends are paid and a second notice (when the Federal income tax return is completed and the section 199 deduction is actually determined) covering anything that was not passed through by the first notice, pro- vided the notice is sent during the payment period in section 1382(d). The proposed regulations provide in §1.199–6(b) that, in order for a patron to qualify for the section 199 deduction, the cooperative must designate the patron’s portion of the section 199 deduction in a written notice mailed by the cooperative to its patrons no later than the 15 th day of the ninth month following the close of the cooperative’s taxable year. The cooperative may use the same written notice, if any, that it uses to notify patrons of their respective allo- cations of patronage dividends, or may use a separate timely written notice(s) to comply with this section. The cooperative must report the amount of the patron’s sec- tion 199 deduction on Form 1099-PATR, “Taxable Distributions Received From Cooperatives,” issued to the patron. A commentator suggested that the proposed regulations clarify that patrons (whether they use the cash or accrual method of accounting) are entitled to claim the section 199 deduction passed through from the cooperative on the re- turn for the taxable year in which they receive written notification from the coop- erative. The proposed regulations provide in §1.199–6(d) that patrons may claim the section 199 deduction for the taxable year they receive the written notice informing them of the section 199 deduction amount. A commentator suggested that the pro- posed regulations clarify that the section 199 deduction of a cooperative is subject to the W–2 wage limitation under section 199(b) at the cooperative level and that it is not subject to a second W–2 wage lim- itation at the patron level to the extent the section 199 deduction is passed through to its patrons. The proposed regulations provide in §1.199–6(e) that the W–2 wage limitation shall be applied only at the co- operative level whether or not the cooper- ative chooses to pass through some or all of the section 199 deduction. In addition, the proposed regulations in §1.199–6(d) pro- vide that patrons may claim the section 199 deduction without regard to the taxable in- come limitation. A commentator suggested that the pro- posed regulations address what happens when an audit determination results in a decrease in the amount of a cooperative’s section 199 deduction passed through to its patrons. The proposed regulations pro- vide in §1.199–6(f) that, if an audit deter- mines or an amended return reports that the amount of the section 199 deduction that was passed through to patrons exceeded the amount determined to be allowable by the audit or on the amended return, recap- ture of the audit adjustment amount or ex- cess amended return amount will occur at the cooperative level. Expanded Affiliated Groups Section 199(d)(4)(A) provides that all members of an EAG are treated as a single corporation for purposes of section 199. Thesinglecorporationlanguageinsec- tion 199(d)(4)(A) has created confusion among commentators and the proposed regulations clarify themeaning of this lan- guage. The proposed regulations provide that except as otherwise provided in the Code and regulations (see, for example, sections 199(c)(7) and 267, §§1.199–3(b) and 1.199–7(a)(3), and the consolidated return regulations), each member of an EAG is a separate taxpayer that computes its own taxable income or loss, QPAI, and W–2 wages, which are then aggregated at the EAG level. For example, if corpora- tions X and Y are members of the same EAG, but are not members of the same consolidated group, and X sells QPP it MPGE within the United States to Y, the transaction is taken into account in deter- mining the EAG’s section 199 deduction. If X and Y are members of the same con- solidated group, see the section entitled Consolidated Groups, below. The IRS and Treasury Department be- lieve that Congress intended that an EAG should be eligible for the section 199 de- duction if the activities to produce QPP, qualified films, and utilities are done by one or more members of the EAG other than the member who leases, rents, li- censes, sells, exchanges, or otherwise disposes of the QPP, qualified films, and utilities. Accordingly, the proposed regu- lations provide generally that if a member of an EAG (the disposing member) de- rives gross receipts from the lease, rental, license, sale, exchange, or other disposi- tion of QPP, qualified films, and utilities MPGE or otherwise produced by another member or members of the same EAG, the disposing member is treated as con- ducting the activities conducted by each other member of the EAG with respect to the QPP, qualified films, and utilities in determining whether its gross receipts are DPGR. However, in general, attribution of activities does not apply for purposes of the construction of real property un- der §1.199–3(l)(1) or the performance of engineering and architectural services under §1.199–3(m)(1). A member of an EAG must engage in a construction activity under §1.199–3(l)(2), provide en- gineering services under §1.199–3(m)(2), or provide architectural services under §1.199–3(m)(3) in order for the mem- ber’s gross receipts to be derived from construction, engineering, or architectural services. Notwithstanding the above, attri- bution of activities in the construction of real property and the performance of en- gineering and architectural services does apply for members of the same consoli- dated group. For example, if X and Y are members of the same EAG, but are not members of the same consolidated group, and X constructs a commercial building and sells the building to Y, and Y, who performs no construction activities with respect to the building, sells the building to an unrelated person, Y is not attributed the construction activities of X and Y’s receipts from the sale of the building will not be DPGR. However, if X and Y are members of the same consolidated group, Y is attributed the construction activities of X and, assuming all the requirements of section 199(c) are met, Y’s receipts will be DPGR. Some commentators suggested that the proposed regulations provide a special rule excluding finance companies from an EAG. Section 199(d)(4)(A) specifically November 21, 200510052005–47 I.R.B. states that all members of an EAG shall be treated as a single corporation. Nei- ther the statute nor the legislative history provide any exceptions that would allow taxpayers to exclude certain types of com- panies, including finance companies, from the EAG. Accordingly, the commentators’ suggestion has not been adopted. Notwithstanding that a transaction be- tween members of the same EAG (an intra- group transaction) generally is taken into account in determining the section 199 de- duction, the IRS and Treasury Department recognize that taxpayers may engage in an intragrouptransactioninanattempttoob- tain a section 199 deduction when none should be available. Accordingly, the pro- posed regulations retain the anti-avoidance rule contained in Notice 2005–14. Thus, if a transaction between members of the same EAG is engaged in or structured with a principal purpose of qualifying for, or in- creasing the amount of, the section 199 de- duction of the EAG or the portion of the section 199 deduction allocated to one or more members of the EAG, adjustments must be made to eliminate the effect of the transaction on the computation of the sec- tion 199 deduction. Some commentators asked whether the $25,000,000 and $5,000,000 aver- age annual gross receipts thresholds for using the simplified deduction method and the small business simplified over- all method, respectively, are applied at the EAG level, the consolidated group level, or at the member level. If the EAG was a single corporation, the $25,000,000 and $5,000,000 average annual gross re- ceipts thresholds would take into account the activities of all the members of the EAG. Accordingly, the $25,000,000 and $5,000,000 average annual gross receipts thresholds are applied at the EAG level. Similarly, the new $10,000,000 total as- sets threshold for using the simplified deduction method and the new $5,000,000 current year CGS and deductions thresh- old for using the small business simplified overall method also are applied at the EAG level. The determination of whether a taxpayer is engaged in the trade or busi- ness of farming that is not required to use the accrual method of accounting under section 447 is determined by taking into account the activities of all the members of the EAG. Similarly, the determination of whether a taxpayer is eligible to use the cash method as provided in Rev. Proc. 2002–28, and is thus eligible to use the small business simplified overall method, is determined by taking into account the activities of all the members of the EAG. Commentators requested that the rule in Notice 2005–14 that requires all mem- bers of the same EAG to use the same cost allocation method be changed to al- low members to use different cost allo- cation methods. In response to the com- ments received, the IRS and Treasury De- partment agree that if an EAG is eligible to use the simplified deduction method, each member of the EAG may individu- ally determine whether it wants to use the section 861 method or the simplified de- duction method, notwithstanding that an- other member of the EAG uses a different method. Similarly, if the EAG is eligible to use the small business simplified over- all method, each member of the EAG may individually determine whether it wants to use the section 861 method, the simplified deduction method, or the small business simplified overall method, notwithstand- ing that another member of the EAG uses a different method. However, if the EAG is not eligible to use either the simplified de- duction method or the small business sim- plified overall method, then all members of the EAG must use the section 861 method. Notwithstanding that the members of an EAG generally are not required to use the same cost allocation method, each member of a consolidated group must use the same cost allocation method. Examples are pro- vided to illustrate these provisions. A commentator also asked at what level thede minimisrule described in §1.199–1(d)(2) is tested. Section 1.199–1(d)(2) treats all of a taxpayer’s gross receipts as DPGR if less than 5 percent of the taxpayer’s total gross re- ceipts are non-DPGR. Thede minimis rule is intended to eliminate the burden to a taxpayer of allocating gross receipts between DPGR and non-DPGR when less than 5 percent of its total gross receipts are non-DPGR. When considering the purpose of thede minimisrule, the IRS and Treasury Department believe that it is appropriate that the 5 percent threshold be determined at the corporation level, rather than at the EAG or consolidated group level. Consolidated Groups The section 199 deduction of a consol- idated group (or the section 199 deduction allocated to a consolidated group that is a member of an EAG) is allocated to the members of the consolidated group in pro- portion to each consolidated group mem- ber’s QPAI, regardless of whether the con- solidated group member has separate tax- able income or loss or W–2 wages for the taxable year. Further, if two or more members of a consolidated group engage in an intercompany transaction, as defined in §1.1502–13(b)(1), the proposed regu- lations clarify that if an item of income, gain, deduction, or loss is not yet taken into account under §1.1502–13, the intercom- pany transaction that gave rise to the item is not taken into account in computing the section 199 deduction until the time and in the same proportion that the item is taken into account under §1.1502–13. For ex- ample, if corporations X and Y file a con- solidated Federal income tax return and X sells QPP it MPGE within the United States to Y, the transaction is not taken into account until the time (and in the same pro- portion) provided in the matching rule of §1.1502–13(c) or the acceleration rule of §1.1502–13(d). The proposed regulations provide examples to illustrate these princi- ples. Some commentators suggested that if X’s receipts from an intercompany trans- action with consolidated group member Y are non-DPGR (for example, X licenses non-QPP to Y) and Y’s CGS and other de- ductions from the intercompany transac- tion are taken into account in determining the consolidated group’s QPAI, the con- solidated group’s QPAI could be different than if X and Y were divisions of a sin- gle corporation, contrary to the general in- tent of §1.1502–13. The consolidated re- turn regulations already prevent this result. Under §1.1502–13(c)(1)(i) and (c)(4), X’s, Y’s, or both X’s and Y’s separate entity at- tributes must be redetermined to the extent necessary to treat X and Y as if they were divisions of a single corporation. Thus, X’s income may be redetermined to be DPGR (notwithstanding section 199(c)(7) or that the item licensed by X in the in- tercompany transaction does not otherwise meet the requirements of section 199(c)) or Y’s CGS and other deductions from the intercompany transaction may be re- 2005–47 I.R.B.1006November 21, 2005 determined to be not allocable to DPGR, whichever produces the effect as though X and Y were divisions of a single corpora- tion. Similarly, if X MPGE QPP within the United States and sells the QPP to Y, but Y does not use the QPP in creating DPGR, in order to produce the effect as though X and Y were divisions of a sin- gle corporation, X’s gross receipts from the sale of the QPP may be redetermined to be non-DPGR or Y’s CGS and other de- ductions may be redetermined to be alloca- ble to DPGR. In addition, if X MPGE QPP within the United States and sells the QPP to Y, and Y sells the QPP to an unrelated person, X’s gross receipts may be redeter- mined to be non-DPGR (and non-receipts) and Y’s CGS and other deductions may be redetermined to be not allocable to DPGR, to the extent necessary to produce the ef- fect as though X and Y were divisions of a single corporation. The proposed regula- tions provide examples to illustrate the sit- uations described above. Some commentators asked whether the section 199 deduction results in a down- ward basis adjustment under §1.1502–32 if the deduction is allocated to a sub- sidiary member (S) of a consolidated group. Section 1.1502–32(b)(3)(ii)(B) already addresses this situation. Al- though the section 199 deduction is taken into account under the general operating rules of §1.1502–32(b)(3)(i), paragraph (b)(3)(ii)(B) of that section provides that not only is S’s income taken into ac- count under the general operating rules of §1.1502–32(b)(3)(i), but an amount of S’s income equivalent to the section 199 de- duction is also treated as being tax-exempt income under §1.1502–32(b)(3)(ii)(A). The net result is that the basis that P (S’s parent) has in its S stock is not reduced on account of the section 199 deduction. For example, if S earns $100 and is entitled to a $9 section 199 deduction, P’s basis in S increases by $100 because the $100 income and the $9 deduction are taken into account under §1.1502–32(b)(3)(i) (resulting in $91 of the increase) and $9 of the income also is taken into account un- der §1.1502–32(b)(3)(ii)(A) as tax-exempt income (resulting in $9 of the increase). The proposed regulations treat a con- solidated group as a single member of the EAG.Forexample,ifA,B,C,S1,andS2 are members of the same EAG, and A, S1, and S2 are members of the same consol- idated group (the A consolidated group), then the A consolidated group is treated as one member of the EAG. Thus, the EAG is considered to have three members, the A consolidated group, B, and C. Alternative Minimum Tax Section 199(d)(6),as clarified by the Congressional Letter, provides that for purposes of determining AMTI under sec- tion 55, the section 199 deduction must be computed in the same manner as for regular tax, except that in the case of a corporation, the taxable income limitation is the corporation’s AMTI. Accordingly, the proposed regulations provide that for purposes of determining AMTI under sec- tion 55, a taxpayer that is not a corporation maydeductanamountequalto9percent (3 percent in the case of taxable years beginning in 2005 or 2006, and 6 percent in the case of taxable years beginning in 2007, 2008, or 2009) of the lesser of the taxpayer’s QPAI for the taxable year, or the taxpayer’s taxable income for the tax- able year, determined without regard to the section 199 deduction (or in the case of an individual, AGI). In the case of a cor- poration (including a corporation subject to tax under section 511(a)), a taxpayer maydeductanamountequalto9percent (3 percent in the case of taxable years beginning in 2005 or 2006, and 6 percent in the case of taxable years beginning in 2007, 2008, or 2009) of the lesser of the taxpayer’s QPAI for the taxable year, or the taxpayer’s AMTI (as defined in section 55(b)(2)) for the taxable year, determined without regard to the section 199 deduc- tion. For purposes of computing AMTI, QPAI is determined without regard to any adjustments under sections 56 through 59. In the case of an individual or a trust, AGI and taxable income are also determined without regard to any adjustments under sections 56 through 59. The amount of the deduction allowable for purposes of com- puting AMTI for any taxable year cannot exceed 50 percent of the W–2 wages of the employer for the taxable year (as de- termined under §1.199–2). Revocation of Election under Section 631(a) Section 102(c) of the Act allows a tax- payer to revoke an election under section 631(a) to treat the cutting of timber as a sale or exchange. Any section 631(a) elec- tion for a taxable year ending on or before October 22, 2004, may be revoked under section 102(c) of the Act for any taxable year ending after that date. In addition, any election under section 631(a) for a taxable year ending on or before October 22, 2004 (and any revocation of the election under section 102(c) of the Act), is disregarded for purposes of determining whether the taxpayer is eligible to make a subsequent election under section 631(a). A revoca- tion under section 102(c) of the Act will remain in effect until the first taxable year for which the taxpayer makes a new elec- tion under section 631(a). Commentators suggested that, if a taxpayer makes an election under sec- tion 631(a), section 199 should apply to any resulting section 1231 gain. A tax- payer that makes an election under section 631(a) reports the difference between the fair market value of the timber cut and its actual cost as section 1231 gain. The proposed regulations do not adopt the sug- gestion because timber is real property, not tangible personal property, and the cutting of timber does not qualify under section 199(c)(4)(A)(i)(I). In the case of a taxpayer who does not make an election under section 631(a), or a taxpayer who revokes an election under section 631(a) pursuant to section 102(c) of the Act, the cutting and sawing of timber produces lumber which qualifies as tangible per- sonal property. The gross receipts derived by a taxpayer from the sale of lumber it produces qualify as DPGR (assuming all the other requirements of section 199(c) are met). Proposed Effective Date The regulations are proposed to be ap- plicable to taxable years beginning after December 31, 2004. Section 199 applies to taxable years of pass-thru entities be- ginning after December 31, 2004. Accord- ingly, section 199 does not apply to taxable years of pass-thru entities beginning be- fore January 1, 2005. For example, assume a pass-thru entity has a taxable year be- ginning July 1, 2004, and ending June 30, 2005, and the owners of the pass-thru en- tity have calendar taxable years. Because section 199 first applies to the pass-thru entity for its taxable year beginning July 1, 2005, the first taxable year in which an November 21, 200510072005–47 I.R.B. owner of the pass-thru entity will be eli- gible to claim a section 199 deduction for the owner’s allocable orpro ratashare of items allocated or apportioned to the qual- ified production activities of the pass-thru entity will be the calendar year 2006. Con- versely, assume that a pass-thru entity has a calendar taxable year beginning January 1, 2005, and has a short taxable year end- ing on June 30, 2005, due to the termina- tion of the entity. Assume the owners of that pass-thru entity have taxable years be- ginning July 1, 2004, and ending June 30, 2005. Because section 199 first applies to the owners for their taxable years begin- ning July 1, 2005, under §1.199–8(g), the owners of the pass-thru entity will be inel- igible to claim a section 199 deduction for the owners’ allocable orpro ratashare of items allocated or apportioned to the qual- ified production activities of the pass-thru entity for their taxable years ending June 30, 2005. Until the date final regulations are published in theFederal Register,the proposed regulations provide that tax- payersmayrelyontherulessetforthin the interim guidance on section 199 as set forth in Notice 2005–14 (Notice) as well as the proposed regulations under §§1.199–1 through 1.199–8 (proposed regulations). For this purpose, if the proposed regu- lations and the Notice include different rules for the same particular issue, then the taxpayer may rely on either the rule set forth in the proposed regulations or the rule set forth in the Notice. For example, the Notice and the proposed regulations both include the small business simplified overall method, however the eligibil- ity requirements for the method under the Notice have been modified in the proposed regulations. Accordingly, a taxpayer may rely on the eligibility requirements for the method set forth in either the Notice or the proposed regulations. However, if the proposed regulations include a rule that was not included in the Notice, taxpayers arenotpermittedtorelyontheabsence ofaruletoapplyarulecontrarytothe proposed regulations. For example, No- tice 2005–14 does not include any rules regarding the treatment of hedging trans- actions whereas the proposed regulations include such rules. Accordingly, taxpayers are not permitted to treat hedging transac- tions contrary to the treatment provided in the proposed regulations. Request for Comments The IRS and Treasury Department in- vite taxpayers to submit comments on is- sues relating to section 199. The IRS and Treasury Department intend to finalize the proposed regulations as soon as possible so taxpayers will have the final regulations as they begin to prepare their 2005 Federal income tax returns. Accordingly, the IRS and Treasury Department encourage tax- payers to submit their comments by Jan- uary 3, 2006, so they can be given proper consideration. In particular, the IRS and Treasury Department encourage taxpayers to submit comments on the following is- sues: 1. Questions have arisen as to the ap- plicability under section 199 of a Large and Mid-Size Business (LMSB) directive dated March 14, 2002, “Field Directive on the Use of Estimates from Probability Samples,” that authorizes in appropriate circumstances the use of statistical sam- pling by taxpayers. LMSB taxpayers are not precluded from applying the concepts of the LMSB directive for purposes of sec- tion 199. The proposed regulations do not provide specific rules on the use of statis- tical sampling for 199 purposes, however comments are requested on how taxpay- ers can apply statistical sampling to section 199, what specific areas of section 199 sta- tistical sampling could be applied to, and whether application of statistical sampling should be limited to specific areas of sec- tion 199. 2. Taxpayers are eligible to make cer- tain elections under the section 861 regu- lations. For example, §1.861–9T(g)(1)(ii) permits a taxpayer to elect to determine the value of its assets on the basis of ei- ther their tax book value or fair market value. Some of the elections under the sec- tion 861 regulations require the consent of the Commissioner to revoke or to change to another method. See §§1.861–8T(c)(2), 1.861–9T(i)(2), and1.861–17(e). Because the section 861 method requires certain taxpayers to use the rules of the section 861 regulations in a new context, these taxpayers may want to reconsider previ- ously made elections under those regula- tions. The IRS and Treasury Department intend to issue a revenue procedure grant- ing taxpayers automatic consent to change certain elections under the section 861 reg- ulations. Comments are requested con- cerning such an automatic consent proce- dure, including which elections should be included and the appropriate time period during which the automatic consent should apply. 3. The IRS and Treasury Depart- ment note that there are special rules regarding the application of the sec- tion 861 method in the case of affiliated groups. See section 864(e)(5) and (6); see also §§1.861–11(d)(7), 1.861–11T(d)(6), 1.861–14(d) and 1.861–14T. Comments are requested regarding whether addi- tional guidance is needed to clarify how the rules under §§1.861–11T(c) and (g) and 1.861–14T(c) apply under the section 861 method to allocate and apportion in- terest and other expenses such as research and experimentation expenses in comput- ingQPAIofthemembersofsuchaffiliated groups in which otherwise includible cor- porations are owned indirectly through foreign corporations and partnerships. 4. Comments are requested concerning whether gross receipts derived from the provision of certain types of online soft- ware should qualify under section 199 as being derived from a lease, rental, license, sale, exchange, or other disposition of the software and, if so, how to distinguish be- tween such types of online software. 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 as- sessment is not required. It has also been determined that section 553(b) of the Ad- ministrative Procedure Act (5 U.S.C. chap- ter 5) does not apply. It is hereby certi- fied that the collection of information in this regulation will not have a significant economic impact on a substantial num- ber of small entities. This certification is based upon the fact that, as previously dis- cussed, any burden on cooperatives is min- imal. Accordingly, a Regulatory Flexibil- ity Analysis under the Regulatory Flexibil- ity Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advo- cacy of the Small Business Administration for comment on their impact on small busi- ness. 2005–47 I.R.B.1008November 21, 2005 Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submit- ted timely to the IRS. Comments are re- quested on all aspects of the proposed reg- ulations. In addition, the IRS and Trea- sury Department specifically request com- ments on the clarity of the proposed rules and how they can be made easier to under- stand. All comments will be available for public inspection and copying. A public hearing has been scheduled for Wednesday, January 11, 2006, at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW, Washington, DC. Due to building security procedures, visitors must enter at the Con- stitution Avenue entrance. In addition, all visitors must presentphoto identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the “FOR FURTHER IN- FORMATION CONTACT” section of this preamble. The rules of 26 CFR 601.601(a)(3) ap- ply to the hearing. Persons who wish to present oral com- ments at the hearing must submit elec- tronic or written comments and an out- line of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by Decem- ber 21, 2005. A period of 10 minutes will be allotted to each person for making com- ments. 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 authors of these reg- ulations are Paul Handleman and Lauren Ross Taylor, Office of Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other person- nel from the IRS and Treasury Department participated in their development. ***** Proposed 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 part1isamendedbyaddingentriesinnu- merical order to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Section 1.199–1 also issued under 26 U.S.C. 199(d). Section 1.199–2 also issued under 26 U.S.C. 199(d). Section 1.199–3 also issued under 26 U.S.C. 199(d). Section 1.199–4 also issued under 26 U.S.C. 199(d). Section 1.199–5 also issued under 26 U.S.C. 199(d). Section 1.199–6 also issued under 26 U.S.C. 199(d). Section 1.199–7 also issued under 26 U.S.C. 199(d). Section 1.199–8 also issued under 26 U.S.C. 199(d). * * * Par. 2. Sections 1.199–0 through 1.199–8 are added to read as follows: §1.199–0 Table of contents. This section lists the headings that ap- pear in §§1.199–1 through 1.199–8. §1.199–1 Income attributable to domestic production activities. (a) In general. (b) Taxable income and adjusted gross income. (1) In general. (2) Examples. (c) Qualified production activities in- come. (1) In general. (2) Definition of item. (i) In general. (ii) Examples. (d) Allocation of gross receipts. (1) In general. (2)De minimisrule. (3) Examples. (e) Timing rules for determining QPAI. (1) Gross receipts and costs recognized in different taxable years. (2) Percentage of completion method. (3) Example. §1.199–2 Wage limitation. (a) Rules of application. (1) In general. (2) Wages paid by entity other than common law employer. (b) No application in determining whether amounts are wages for employ- ment tax purposes. (c) Application in case of taxpayer with short taxable year. (d) Acquisition or disposition of a trade or business (or major portion). (e) Non-duplication rule. (f) Definition of W–2 wages. (1) In general. (2) Methods for calculating W–2 wages. (i) Unmodified box method. (ii) Modified Box 1 method. (iii) Tracking wages method. §1.199–3 Domestic production gross receipts. (a) In general. (b) Related persons. (1) In general. (2) Exceptions. (c) Definition of gross receipts. (d) Definition of manufactured, pro- duced, grown, or extracted. (1) In general. (2) Packaging, repackaging, labeling, or minor assembly. (3) Installing. (4) Consistency with section 263A. (5) Examples. (e) Definition of by the taxpayer. (1) In general. (2) Special rule for certain government contracts. (3) Examples. (f) Definition of in whole or in signifi- cant part. (1) In general. (2) Substantial in nature. (3) Safe harbor. (4) Examples. (g) Definition of United States. (h) Definition of derived from the lease, rental, license, sale, exchange, or other dis- position. (1) In general. (2) Examples. (3) Hedging transactions. (i) In general. (ii) Currency fluctuations. November 21, 200510092005–47 I.R.B. (iii) Other rules. (4) Allocation of gross receipts — em- bedded services and non-qualified prop- erty. (i) In general. (ii) Exceptions. (iii) Examples. (5) Advertising income. (i) Tangible personal property. (ii) Qualified films. (iii) Examples. (6) Computer software. (i) In general. (ii) Examples. (7) Exception for certain oil and gas partnerships. (i) In general. (ii) Example. (8) Partnerships owned by members of a single expanded affiliated group. (i) In general. (ii) Special rules for distributions from EAG partnerships. (iii) Examples. (9) Non-operating mineral interests. (i) Definition of qualifying production property. (1) In general. (2) Tangible personal property. (i) In general. (ii) Local law. (iii) Machinery. (iv) Intangible property. (3) Computer software. (i) In general. (ii) Incidental and ancillary rights. (iii) Exceptions. (4) Sound recordings. (i) In general. (ii) Exception. (5) Tangible personal property with computer software or sound recordings. (i) Computer software and sound recordings. (ii) Tangible personal property. (j) Definition of qualified film. (1) In general. (2) Tangible personal property with a film. (i) Film licensed by a taxpayer. (ii) Film produced by a taxpayer. (A) Qualified films. (B) Nonqualified films. (3) Derived from a qualified film. (4) Examples. (5) Compensation for services. (6) Determination of 50 percent. (7) Exception. (k) Electricity, natural gas, or potable water. (1) In general. (2) Natural gas. (3) Potable water. (4) Exceptions. (i) Electricity. (ii) Natural gas. (iii) Potable water. (iv)De minimisexception. (5) Example. (l) Definition of construction performed in the United States. (1) Construction of real property. (i) In general. (ii)De minimisexception. (2) Activities constituting construction. (3) Definition of infrastructure. (4) Definition of substantial renovation. (5) Derived from construction. (i) In general. (ii) Land safe harbor. (iii) Examples. (m) Definition of engineering and ar- chitectural services. (1) In general. (2) Engineering services. (3) Architectural services. (4)De minimisexception for perfor- mance of services in the United States. (n) Exception for sales of certain food and beverages. (1) In general. (2) Examples. §1.199–4 Costs allocable to domestic production gross receipts. (a) In general. (b) Cost of goods sold allocable to do- mestic production gross receipts. (1) In general. (2)Allocatingcostofgoodssold. (3) Special rules for imported items or services. (4) Rules for inventories valued at mar- ket orbona fideselling prices. (5) Rules applicable to inventories ac- counted for under the last-in, first-out (LIFO) inventory method. (i) In general. (ii) LIFO/FIFO ratio method. (iii) Change in relative base-year cost method. (6) Taxpayers using the simplified production method or simplified resale method for additional section 263A costs. (7) Examples. (c) Other deductions allocable or ap- portioned to domestic production gross re- ceipts or gross income attributable to do- mestic production gross receipts. (1) In general. (2) Treatment of certain deductions. (i) In general. (ii) Net operating losses. (iii) Deductions not attributable to the conduct of a trade or business. (d) Section 861 method. (1) In general. (2) Deductions for charitable contribu- tions. (3) Research and experimental expen- ditures. (4) Deductions related to gross receipts deemed to be domestic production gross receipts. (5) Examples. (e) Simplified deduction method. (1) In general. (2) Members of an expanded affiliated group. (i) In general. (ii) Exception. (iii) Examples. (f) Small business simplified overall method. (1) In general. (2) Qualifying small taxpayer. (3) Members of an expanded affiliated group. (i) In general. (ii) Exception. (iii) Examples. (4) Ineligible pass-thru entities. (g) Average annual gross receipts. (1) In general. (2) Members of an EAG. (h) Total assets. (1) In general. (2) Members of an EAG. (i) Total costs for the current taxable year. (1) In general. (2) Members of an EAG. §1.199–5 Application of section 199 to pass-thru entities. (a) Partnerships. (1) Determination at partner level. (2) Disallowed deductions. (3) Partner’s share of W–2 wages. (4) Examples. (b) S corporations. (1) Determination at shareholder level. 2005–47 I.R.B.1010November 21, 2005 (2) Disallowed deductions. (3) Shareholder’s share of W–2 wages. (c) Grantor trusts. (d) Non-grantor trusts and estates. (1) Computation of section 199 deduc- tion. (2) Example. (e) Gain or loss from the disposition of an interest in a pass-thru entity. (f) Section 199(d)(1)(B) wage limita- tion and tiered structures. (1) In general. (2) Share of W–2 wages. (3) Example. (g) No attribution of qualified activities. §1.199–6 Agricultural and horticultural cooperatives. (a) In general. (b) Written notice to patrons. (c) Determining cooperative’s qualified production activities income. (d) Additional rules relating to pass- through of section 199 deduction. (e) W–2 wages. (f) Recapture of section 199 deduction. (g) Section is exclusive. (h) No double counting. (i) Examples. §1.199–7 Expanded affiliated groups. (a) In general. (1) Definition of expanded affiliated group. (2) Identification of members of an ex- panded affiliated group. (i) In general. (ii) Becoming or ceasing to be a mem- ber of an expanded affiliated group. (3) Attribution of activities. (4) Examples. (5) Anti-avoidance rule. (b) Computation of expanded affiliated group’s section 199 deduction. (1) In general. (2) Net operating loss carryovers. (c) Allocation of an expanded affili- ated group’s section 199 deduction among members of the expanded affiliated group. (1) In general. (2) Use of section 199 deduction to cre- ate or increase a net operating loss. (d) Special rules for members of the same consolidated group. (1) Intercompany transactions. (2) Attribution of activities in the con- struction of real property and the perfor- mance of engineering and architectural services. (3) Application of the simplified deduc- tion method and the small business simpli- fied overall method. (4) Determining the section 199 deduc- tion. (i) Expanded affiliated group consists of consolidated group and non-consoli- dated group members. (ii) Expanded affiliated group consists only of members of a single consolidated group. (5) Allocation of the section 199 de- duction of a consolidated group among its members. (e) Examples. (f) Allocation of income and loss by a corporation that is a member of the ex- panded affiliated group for only a portion of the year. (1) In general. (i)Pro rataallocation method. (ii) Section 199 closing of the books method. (iii) Making the section 199 closing of the books election. (2) Coordination with rules relat- ing to the allocation of income under §1.1502–76(b). (g) Total section 199 deduction for a corporation that is a member of an ex- panded affiliated group for some or all of its taxable year. (1)Memberofthesameexpandedaffil- iated group for the entire taxable year. (2)Memberoftheexpandedaffiliated group for a portion of the taxable year. (3) Example. (h) Computation of section 199 deduc- tion for members of an expanded affiliated group with different taxable years. (1) In general. (2) Example. §1.199–8 Other rules. (a) Individuals. (b) Trade or business requirement. (c) Coordination with alternative mini- mum tax. (d) Nonrecognition transactions. (1) In general. (2) Section 1031 exchanges. (3) Section 381 transactions. (e) Taxpayers with a 52–53 week tax- able year. (f) Section 481(a) adjustments. (g) Effective date. §1.199–1 Income attributable to domestic production activities. (a)In general. A taxpayer may deduct an amount equal to 9 percent (3 percent in the case of taxable years beginning in 2005 or 2006, and 6 percent in the case of taxable years beginning in 2007, 2008, or 2009) of the lesser of the taxpayer’s qual- ified production activities income (QPAI) (as defined in paragraph (c) of this section) for the taxable year, or the taxpayer’s tax- able income for the taxable year (or, in the case of an individual, adjusted gross in- come). The amount of the deduction al- lowable under this paragraph (a) for any taxable year cannot exceed 50 percent of the W–2 wages of the employer for the tax- able year (as determined under §1.199–2). (b)Taxable income and adjusted gross income—(1)In general. For purposes of paragraph (a) of this section, the defini- tion of taxable income under section 63 applies and taxable income is determined without regard to section 199. In the case of individuals, adjusted gross income for the taxable year is determined after ap- plying sections 86, 135, 137, 219, 221, 222, and 469, and without regard to sec- tion 199. For purposes of determining the tax imposed by section 511, paragraph (a) of this section is applied using unrelated business taxable income. For purposes of determining the amount of a net operating loss (NOL) carrybackor carryover under section 172(b)(2), taxable income is deter- mined without regard to the deduction al- lowed under section 199. (2)Examples. The following examples illustrate the application of this paragraph (b): Example 1.(i)Facts. X, a United States corpo- ration that is not part of an expanded affiliated group (EAG) (as defined in §1.199–7), engages in produc- tion activities that generate QPAI and taxable income (without taking into account the deduction under this section) of $600 in 2010. During 2010, X incurs W–2 wages of $300. X has an NOL carryover to 2010 of $500. X’s deduction under this section for 2010 is $9 (.09 x (lesser of QPAI of $600 and taxable income of $100) subject to the wage limitation of $150 (50% x $300)). Example 2.(i)Facts. X, a United States corpo- ration that is not part of an EAG, engages in produc- tion activities that generate QPAI and taxable income (without taking into account the deduction under this section and an NOL deduction) of $100 in 2010. X has an NOL carryover to 2010 of $500. X’s deduc- November 21, 200510112005–47 I.R.B. tion under this section for 2010 is $0 (.09 x (lesser of QPAI of $100 and taxable income of $0)). (ii)Carryover to 2011. X’s taxable income for purposes of determining its NOL carryover to 2011 is $100. Accordingly, X’s NOL carryover to 2011 is $400 ($500 NOL carryover to 2010 - $100 NOL used in 2010). (c)Qualified production activities in- come—(1)In general. QPAI for any tax- able year is an amount equal to the excess (if any) of the taxpayer’s domestic produc- tion gross receipts (DPGR) over the sum of the cost of goods sold (CGS) that is alloca- ble to such receipts, other deductions, ex- penses, or losses (collectively, deductions) directly allocable to such receipts, and a ratable portion of deductions that are not directly allocable to such receipts or an- other class of income. See §§1.199–3 and 1.199–4. For purposes of this paragraph (c), QPAI is determined on an item-by- item basis (and not, for example, on a di- vision-by-division, product line-by-prod- uct line, or transaction-by-transaction ba- sis) and is the sum of QPAI derived by the taxpayer from each item (as defined in paragraph (c)(2) of this section). For purposes of this determination, QPAI from each item may be positive or negative. DPGR and its related CGS and deductions must be included in the QPAI computa- tion regardless of whether, when viewed in isolation, the DPGR exceeds the CGS and deductions allocated and apportioned thereto. For example, if a taxpayer has $3 of QPAI from the sale of a shirt and derives ($1) of QPAI from the sale of a hat, the tax- payer’sQPAIis$2. (2)Definition of item—(i)In general. Except as otherwise provided in this para- graph, the termitemmeans, for purposes of §§1.199–1 through 1.199–8, the property offered for sale to customers that meets all of the requirements under this section and §1.199–3. If the property offered for sale does not meet these requirements, a taxpayer must treat as the item any por- tion of the property offered for sale that meets these requirements. However, in no case shall the portion of the property of- fered for sale that is treated as the item ex- clude any other portion that meets these requirements. Innoeventmayanitem consist of two or more properties offered for sale that are not packaged and sold to- gether as one item. In addition, in the case of property customarily sold by weight or by volume, the item is determined using the custom of the industry (for example, barrels of oil). In the case of construc- tion (as defined in §1.199–3(l)(1)) or en- gineering and architectural services (as de- fined in §1.199–3(m)(1)), a taxpayer may use any reasonable method, taking into ac- count all of the facts and circumstances, to determine what construction activities and engineering or architectural services con- stitute an item. (ii)Examples. The following exam- ples illustrate the application of paragraph (c)(2)(i) of this section: Example 1. X manufactures leather and rubber shoe soles in the United States. X imports shoe up- pers, which are the parts of the shoe above the sole. X manufactures shoes for sale by sewing or other- wise attaching the soles to the imported uppers. If the shoes do not meet the requirements under this sec- tion and §1.199–3, then under paragraph (c)(2)(i) of this section, X must treat the sole as the item if the sole meets the requirements under this section and §1.199–3. Example 2. The facts are the same as inExample 1except that X also buys some finished shoes from unrelated parties and resells them to retail shoe stores. X sells shoes in individual pairs. X ships the shoes in boxes, each box containing 50 pairs of shoes, some of which X manufactured, and some of which X pur- chased. X cannot treat a box of 50 pairs of shoes as an item, because the box of shoes is not sold at retail. Example 3. Y manufactures toy cars in the United States. Y also purchases cars that were manufac- tured by unrelated parties. In addition to packaging some cars individually, Y also packages some cars in sets of three. Some of the cars in the sets may have been manufactured by Y and some may have been purchased. The three-car packages are sold by toy stores at retail. Y must treat each three-car pack- age as the item. However, if the three-car package does not meet the requirements under this section and §1.199–3, Y must treat a toy car in the three-car pack- age as the item, provided the toy car meets the re- quirements under this section and §1.199–3. Example 4. The facts are the same asExample 3 except that the toy store follows Y’s recommended pricing arrangement for the individual toy cars for sale to customers at three for $10. Frequently, this results in retail customers purchasing three individual cars in one transaction. Y must treat each toy car as an item and cannot treat three individual toy cars as one item, because the individual toy cars are not packaged together for retail sale. Example 5. Z produces in bulk form in the United States the active ingredient for a pharmaceu- tical product. Z sells the active ingredient in bulk form to FX, a foreign corporation. This sale qualifies as DPGR assuming all the other requirements of this section and §1.199–3 are met. FX uses the active ingredient to produce the finished dosage form drug. FX sells the drug in finished dosage to Z, which sells the drug to customers. Under paragraph (c)(2)(i) of this section, if the finished dosage does not meet the requirements under this section and §1.199–3, Z must treat the active ingredient portion as the item if the ingredient meets the requirements under this section and §1.199–3. (d)Allocation of gross receipts—(1)In general. A taxpayer must determine the portion of its gross receipts that is DPGR and the portion of its gross receipts that is non-DPGR. Applicable Federal income tax principles apply to determine whether a transaction is, in substance, a lease, rental, license, sale, exchange or other disposi- tion, or whether it is a service (or some combination thereof). For example, if a taxpayer leases, rents, licenses, sells, ex- changes, or otherwise disposes of quali- fyingproductionproperty(QPP)(asde- fined in §1.199–3(i)(1)), the gross receipts of which constitute DPGR, and engages in transactions with respect to similar prop- erty, the gross receipts of which do not con- stitute DPGR, the taxpayer must allocate its gross receipts from all the transactions based on a reasonable method that is sat- isfactory to the Secretary based on all of the facts and circumstances and that accu- rately identifies thegross receipts that con- stitute DPGR. Factors taken into consider- ation in determining whether the method is reasonable include whether the taxpayer uses the most accurate information avail- able; the relationship between the gross re- ceipts and the method chosen; the accu- racy of the method chosen as compared with other possible methods; whether the method is used by the taxpayer for in- ternal management or other business pur- poses; whether the method is used for other Federal or state income tax purposes; the time, burden, and cost of using various methods; and whether the taxpayer ap- plies the method consistently from year to year. Thus, if a taxpayer can, without un- due burden or expense, specifically iden- tify where an item was manufactured, or if the taxpayer uses a specific identifica- tion method for other purposes, then the taxpayer must use that specific identifica- tion method to determine DPGR. If a tax- payer does not use a specific identifica- tion method for other purposes and can- not, without undue burden or expense, use a specific identification method, then the taxpayer is not required to use a specific identification methodtodetermineDPGR. (2)De minimis rule.Allofatax- payer’s gross receipts may be treated as DPGR if less than 5 percent of the tax- payer’s total gross receipts are non-DPGR (after application of exceptions provided in §1.199–3(h)(4), (k)(4)(iv), (l)(1)(ii), (m)(4), and (n)(1) that result in gross 2005–47 I.R.B.1012November 21, 2005 receipts being treated as DPGR). If the amount of the taxpayer’s gross receipts that do not qualify as DPGR equals or exceeds 5 percent of the taxpayer’s total gross receipts, the taxpayer is required to allocate all gross receipts between DPGR and non-DPGR in accordance with paragraph (d)(1) of this section. If a cor- poration is a member of an EAG or a consolidated group, the determination of whether less than 5 percent of the tax- payer’s total gross receipts are non-DPGR is made at the corporation level rather than at the EAG or consolidated group level, as applicable. In the case of an S corporation, partnership, estate or trust, or other pass-thru entity, the determina- tion of whether less than 5 percent of the pass-thru entity’s total gross receipts are non-DPGR is made at the pass-thru entity level. In the case of an owner of a pass-thru entity, the determination of whether less than 5 percent of the owner’s total gross receipts are non-DPGR is made at the owner level, taking into account all gross receipts earned by the owner from its activities as well as the owner’s share of any pass-thru entity’s gross receipts. (3)Examples. The following examples illustrate the application of this paragraph (d): Example 1. X derives its gross receipts from the sale of gasoline refined by X within the United States and the sale of refined gasoline that X acquired (ei- ther by purchase or in a taxable exchange for gasoline refined by X in the United States) from an unrelated party. X does not commingle the gasoline. X must allocate its gross receipts between the gross receipts attributable to the gasoline refined by X in the United States (that qualify as DPGR if all the other require- ments of §1.199–3 are met) and X’s gross receipts derived from the resale of the acquired gasoline (that do not qualify as DPGR) if 5 percent or more of X’s total gross receipts are not from the sale of gasoline refined by X within the United States. Example 2. X manufactures the same type of QPP at facilities within the United States and outside the United States which are sold separately. X must al- locate its gross receipts between the receipts from the QPP manufactured within the United States and receipts from the QPP not manufactured within the United States if 5 percent ormoreofX’stotalgross receipts are not from the sale of QPP manufactured by X within the United States. (e)Timing rules for determining QPAI—(1)Gross receipts and costs rec- ognized in different taxable years.Ifa taxpayer recognizes and reports on a Fed- eral income tax return gross receipts that the taxpayer identifies as DPGR, then the taxpayer must treat the CGS and deduc- tions related to suchreceipts as relating to DPGR, regardless of whether such receipts ultimately qualify as DPGR. Sim- ilarly, if a taxpayer pays or incurs and reports on a Federal income tax return CGS or deductions and identifies such CGS or deductions as relating to DPGR, then the taxpayer must treat the gross re- ceipts related to such CGS or deductions as DPGR, regardless of whether such re- ceipts ultimately qualify as DPGR. Similar rules apply if the taxpayer recognizes and reports on a Federal income tax return gross receipts that the taxpayer identifies as non-DPGR, or pays or incurs and re- ports on a Federal income tax return CGS or deductions that the taxpayer identifies as relating to non-DPGR. The determina- tion of whether gross receipts qualify as DPGR or non-DPGR, and whether CGS or deductions relate to DPGR or non-DPGR, must be made in accordance with the rules provided in §§1.199–1 through 1.199–8, as applicable. If the gross receipts are recognized in an intercompany transac- tion within the meaning of §1.1502–13, see also §1.199–7(d). See §1.199–4 for allocation and apportionment of CGS and deductions. (2)Percentage of completion method. A taxpayer using the percentage of com- pletion method under section 460 must de- termine the ratio of DPGR and non-DPGR using a reasonable method that accurately identifies the gross receipts that constitute DPGR. See paragraph (d)(1) of this sec- tion for the factors taken into considera- tion in determining whether the taxpayer’s method is reasonable. (3)Example. The following example illustrates the application of paragraph (e)(1) of this section: Example. X, a calendar year accrual method tax- payer, enters into a contract with Y, an unrelated per- son, in 2005 for the sale of QPP. In 2005, X receives an advance payment from Y for the QPP. In 2006, X manufactures the QPP within the United States and delivers the QPP to Y. X’s method of accounting re- quires X to include the entire advance payment in its gross income for Federal income tax purposes in 2005. Assuming X can determine, using any reason- able method, that all the requirements of this section and §1.199–3 will be met, the advance payment qual- ifies as DPGR in 2005. The CGS and deductions re- lating to the QPP under the contract are taken into account under §1.199–4 in determining X’s QPAI in 2006, the taxable year the CGS and deductions are otherwise deductible for Federal income tax purposes and must be treated as relating to DPGR in that tax- able year. §1.199–2 Wage limitation. (a)Rules of application—(1)In gen- eral. The amount of the deduction al- lowable under §1.199–1(a) (section 199 deduction) to a taxpayer for any taxable year shall not exceed 50 percent of the W–2 wages of the taxpayer. For this pur- pose, except as provided in paragraph (c) of this section, the Forms W–2, “Wage and Tax Statement,” used in determining the amount of W–2 wages are those issued for the calendar year ending during the tax- payer’s taxable year for wages paid to em- ployees (or former employees) of the tax- payer for employment by the taxpayer. For purposes of this section, employees of the taxpayer are limited to employees of the taxpayer as defined in section 3121(d)(1) and (2) (that is, officers of a corporate tax- payer and employees of the taxpayer un- der the common law rules). For purposes of section 199(b)(2) and this section, the termtaxpayermeans employer. (2)Wages paid by entity other than common law employer. In determining W–2 wages, a taxpayer may take into ac- count any wages paid by another entity and reported by the other entity on Forms W–2 with the other entity as the employer listed in Box c of the Forms W–2, provided that the wages were paid to employees of the taxpayer for employment by the taxpayer. If the taxpayer is treated as an employer described in section 3401(d)(1) because of control of the payment of wages (that is, the taxpayer is not the common law employer of the payee of the wages), the payment of wages may not be included in determining W–2 wages of the taxpayer. If the taxpayer is paying wages as an agent of another entity to individuals who are not employees of the taxpayer, the wages may not be included in determining the W–2 wages of the taxpayer. (b)No application in determining whether amounts are wages for employ- ment tax purposes. The discussion of wages in this section is for purposes of section 199 only and has no application in determining whether amounts are wages under section 3121(a) for purposes of the Federal Insurance Contributions Act (FICA), under section 3306(b) for pur- poses of the Federal Unemployment Tax Act (FUTA), under section 3401(a) for purposes of the Collection of Income Tax at Source on Wages (Federal income tax November 21, 200510132005–47 I.R.B. withholding), or any other wage related determination. (c)Application in case of taxpayer with short taxable year.In the case of a tax- payer with a short taxable year, subject to the rules of paragraph (a) of this sec- tion, the W–2 wages of the taxpayer for the short taxable year shall include those wages paid during the short taxable year to employees of the taxpayer as deter- mined under the tracking wages method described in paragraph (f)(2)(iii) of this section. In applying the tracking wages method in the case of ashort taxable year, the taxpayer must apply the method as follows— (1) In paragraph (f)(2)(iii)(A) of this section, the total amount of wages subject to Federal income tax withholding and re- ported on Form W–2 must include only those wages subject to Federal income tax withholding that are actually paid to em- ployees during the short taxable year and reported on Form W–2 for the calendar year ending within that short taxable year; (2) In paragraph (f)(2)(iii)(B) of this section, only the supplemental unemploy- ment benefits paid during the short taxable year that were includedin the total in para- graph (f)(2)(iii)(A) of this section as mod- ified by paragraph (c)(1) of this section are required to be deducted; and (3) In paragraph (f)(2)(iii)(C) of this section, only the portion of the amounts re- ported in Box 12, Codes D, E, F, G, and S, on Forms W–2, that are actually deferred or contributed during the short taxable year may be included in W–2 wages. (d)Acquisition or disposition of a trade or business (or major portion).Ifatax- payer (a successor) acquires a trade or business, the major portion of a trade or business, or the major portion of a separate unit of a trade or business from another taxpayer (a predecessor), then, for pur- poses of computing the respective section 199 deduction of the successor and of the predecessor, the W–2 wages paid for that calendar year shall be allocated between the successor and the predecessor based on whether the wages are for employment by the successor or for employment by the predecessor. Thus, in this situation, the W–2 wages are allocated based on whether the wages are for employment for a period during which the employee was employed by the predecessor or for employment for a period during which the employee was employed by the successor, regardless of which permissible method for Form W–2 reporting is used. (e)Non-duplication rule. Amounts that are treated as W–2 wages for a taxable year under any method may not be treated as W–2 wages of any other taxable year. Also, an amount may not be treated as W–2 wages by more than one taxpayer. (f)Definition of W–2 wages—(1)In general. Section 199(b)(2) definesW–2 wagesfor purposes of section 199(b)(1) as the sum of the amounts required to be included on statements under section 6051(a)(3) and (8) with respect to employ- ment of employees of the taxpayer for the calendar year. Thus, the termW–2 wages includes the total amount of wages as de- fined in section 3401(a); the total amount of elective deferrals (within the meaning of section 402(g)(3)); the compensation deferred under section 457; and for taxable years beginning after December 31, 2005, the amount of designated Roth contribu- tions (as defined in section 402A). Under the 2004 and 2005 Form W–2, the elec- tive deferrals under section 402(g)(3) and the amounts deferred under section 457 directly correlate to coded items reported inBox12onFormW–2.Box12,CodeD, is for elective deferrals to a section 401(k) cash or deferred arrangement; Box 12, Code E, is for elective deferrals under a section 403(b) salary reduction agreement; Box 12, Code F, is for elective deferrals under a section 408(k)(6) salary reduction Simplified Employee Pension (SEP); Box 12, Code G, is for elective deferrals under a section 457(b) plan; and Box 12, Code S, is for employee salary reduction con- tributions under a section 408(p) SIMPLE (simple retirement account). (2)Methods for calculating W–2 wages. For any taxable year, taxpayers may use one of three methods in calculating W–2 wages. These three methods are subject to the non-duplication rule provided in para- graph (e) of this section, and the tracking wages method is subject to the rule pro- vided in paragraph (c) of this section, if ap- plicable. (i)Unmodified box method. Under the Unmodified box method, W–2 wages are calculated by taking, without modifica- tion, the lesser of— (A) The total entries in Box 1 of all Forms W–2 filed with the Social Security Administration (SSA) by the taxpayer with respect to employees of the taxpayer for employment by the taxpayer; or (B) The total entries in Box 5 of all Forms W–2 filed with the SSA by the tax- payer with respect to employees of the tax- payer for employment by the taxpayer. (ii)Modified Box 1 method. Under the Modified Box 1 method, the taxpayer makes modifications to the total entries in Box 1 of Forms W–2 filed with respect to employees of the taxpayer. W–2 wages under this method are calculated as fol- lows— (A) Total the amounts in Box 1 of all Forms W–2 filed with the SSA by the tax- payer with respect to employees of the tax- payer for employment by the taxpayer; (B) Subtract from the total in paragraph (f)(2)(ii)(A) of this section amounts in- cluded in Box 1 of Forms W–2 that are not wages for Federal income tax withholding purposes and amounts included in Box 1 of Forms W–2 that are treated as wages under section 3402(o) (for example, supplemen- tal unemployment benefits); and (C) Add to the amount obtained af- ter paragraph (f)(2)(ii)(B) of this section amounts that are reported in Box 12 of Forms W–2 with respect to employees of the taxpayer for employment by the tax- payer and that are properly coded D, E, F, G, or S. (iii)Tracking wages method.Underthe Tracking wages method, the taxpayer ac- tually tracks total wages subject to Federal income tax withholding and makes appro- priate modifications. W–2 wages under this method are calculated as follows— (A) Total the amounts of wages subject to Federal income tax withholding that are paid to employees of the taxpayer for em- ployment by the taxpayer and that are re- ported on Forms W–2 filed with the SSA by the taxpayer for the calendar year; (B) Subtract from the total in paragraph (f)(2)(iii)(A) of this section the supple- mental unemployment compensation ben- efits (as defined in section 3402(o)(2)(A)) that were included in the total in paragraph (f)(2)(iii)(A) of this section; and (C) Add to the amount obtained af- ter paragraph (f)(2)(iii)(B) of this section amounts that are reported in Box 12 of Forms W–2 with respect to employees of the taxpayer for employment by the tax- payer and that are properly coded D, E, F, G, or S. 2005–47 I.R.B.1014November 21, 2005 §1.199–3 Domestic production gross receipts. (a)In general. Domestic production gross receipts (DPGR) are the gross re- ceipts (as defined in paragraph (c) of this section) of the taxpayer that are derived from (as defined in paragraph (h) of this section)— (1) Any lease, rental, license, sale, ex- change, or other disposition of— (i) Qualifying production property (QPP) (as defined in paragraph (i)(1) of this section) that is manufactured, pro- duced, grown, or extracted (MPGE) (as defined in paragraph (d) of this section) by the taxpayer (as defined in paragraph (e) of this section) in whole or in signif- icant part (as defined in paragraph (f) of this section) within the United States (as defined in paragraph (g) of this section); (ii) Any qualified film (as defined in paragraph (j) of this section) produced by the taxpayer (in accordance with para- graph (j) of this section); or (iii) Electricity, natural gas, or potable water (as defined in paragraph (k) of this section) (collectively, utilities) produced by the taxpayer in the United States (in ac- cordance with paragraph (k) of this sec- tion); (2) Construction (as defined in para- graph (l) of this section) performed in the United States (in accordance with para- graph (l) of this section); or (3) Engineering or architectural ser- vices (as defined in paragraph (m) of this section) performed in the United States for construction projects in the United States (in accordance with paragraph (m) of this section). (b)Related persons—(1)In general. DPGR does not include any gross receipts of the taxpayer derived from property leased, licensed, or rented by the taxpayer for use by any related person. A person is treated as related to another person if both persons are treated as a single employer under either section 52(a) or (b) (with- out regard to section 1563(b)), or section 414(m) or (o). (2)Exceptions. Paragraph (b)(1) of this section does not apply to any QPP or qual- ified films leased or rented by the taxpayer to a related person if the QPP or qualified films are held for sublease or rent, or are subleased or rented, by the related person to an unrelated person for the ultimate use of the unrelated person. Similarly, para- graph (b)(1) of this section does not apply to the license of QPP or qualified films to a related person for reproduction and sale, exchange, lease, rental or sublicense to an unrelated person for the ultimate use of the unrelated person. (c)Definition of gross receipts.The termgross receiptsmeans the taxpayer’s receipts for the taxable year that are rec- ognized under the taxpayer’s methods of accounting used for Federal income tax purposes for the taxable year. If the gross receipts are recognized in an intercom- pany transaction within the meaning of §1.1502–13, see also §1.199–7(d). For this purpose, gross receipts include to- tal sales (net of returns and allowances) and all amounts received for services. In addition, gross receipts include any income from investments and from inci- dental or outside sources. For example, gross receipts include interest (including original issue discount and tax-exempt interest within the meaning of section 103), dividends, rents, royalties, and an- nuities, regardless of whether the amounts are derived in the ordinary course of the taxpayer’s trade of business. Gross re- ceipts are not reduced by cost of goods sold (CGS) or by the cost of property sold if such property is described in section 1221(a)(1), (2), (3), (4), or (5). Gross receipts do not include the amounts re- ceived in repayment of a loan or similar instrument (for example, a repayment of the principal amount of a loan held by a commercial lender) and, except to the extent of gain recognized, do not include gross receipts derived from a non-recog- nition transaction, such as a section 1031 exchange. Finally, gross receipts do not include amounts received by the taxpayer with respect to sales tax or other similar state and local taxes if, under the appli- cable state or local law, the tax is legally imposed on the purchaser of the good or service and the taxpayer merely collects and remits the tax to the taxing authority. If, in contrast, the tax is imposed on the taxpayer under the applicable law, then gross receipts include the amounts re- ceived that are allocable to the payment of such tax. (d)Definition of manufactured, pro- duced, grown, or extracted—(1)In gen- eral. Except as provided in paragraphs (d)(2) and (3) of this section, the term MPGEincludes manufacturing, produc- ing, growing, extracting, installing, de- veloping, improving, and creating QPP; making QPP out of scrap, salvage, or junk material as well as from new or raw mate- rial by processing, manipulating, refining, or changing the form of an article, or by combining or assembling two or more articles; cultivating soil, raising livestock, fishing, and mining minerals. The term MPGEalso includes storage, handling, or other processing activities (other than transportation activities) within the United States related to the sale, exchange, or other disposition of agricultural products, provided the products are consumed in connection with, or incorporated into, the MPGE of QPP whether or not by the tax- payer. The taxpayer must have the benefits and burdens of ownership of the QPP un- der Federal income tax principles during the period the MPGE activity occurs, pur- suant to paragraph (e)(1) of this section, in order for gross receipts derived from the MPGE of QPP to qualify as DPGR. (2)Packaging, repackaging, labeling, or minor assembly. If a taxpayer pack- ages, repackages, labels, or performs mi- nor assembly of QPP and the taxpayer en- gages in no other MPGE activity with re- spect to that QPP, the taxpayer’s packag- ing, repackaging, labeling, or minor as- sembly do not qualify as MPGE. (3)Installing. If a taxpayer installs an item of QPP and engages in no other MPGE with respect to the QPP, the tax- payer’s installing activity does not qualify as MPGE. However, if the taxpayer installs an item of QPP MPGE by the taxpayer, and the taxpayer has the benefits and bur- dens of ownership of the item of QPP un- der Federal income tax principles during the period the installing activity occurs, the portion of the installing activity that relates to the item of QPP is MPGE. (4)Consistency with section 263A. A taxpayer that has MPGE QPP for the taxable year should treat itself as a pro- ducer under section 263A with respect to the QPP for the taxable year unless the taxpayer is not subject to section 263A. A taxpayer that currently is not properly accounting for its production ac- tivities under section 263A, and wishes to change its method of accounting to comply with the producer requirements of section 263A, must follow the appli- cable administrative procedures issued November 21, 200510152005–47 I.R.B. under §1.446–1(e)(3)(ii) for obtaining the Commissioner’s consent to a change in accounting method (for further guid- ance, for example, see Rev. Proc. 97–27, 1997–1 C.B. 680, or Rev. Proc. 2002–9, 2002–1 C.B. 327, whichever applies (see §601.601(d)(2) of this chapter)). (5)Examples. The following examples illustrate the application of this paragraph (d): Example 1. A, B, and C are unrelated taxpayers and are not cooperatives to which Part I of subchapter T of the Internal Revenue Code applies. A owns grain storage bins in the United States in which it stores for a fee B’s agricultural products that were grown in the United States. B sells its agricultural products to C. C processes B’s agricultural products into refined agricultural products in the United States. The gross receipts from A’s, B’s, and C’s activities are DPGR from the MPGE of QPP. Example 2. The facts are the same as inExample 1except that B grows the agricultural products out- side the United States and C processes B’s agricul- tural products into refined agricultural products out- side the United States. Pursuant to paragraph (d)(1) of this section, the gross receipts derived by A are DPGR from the MPGE of QPP within the United States. B’s and C’s respective activities occur out- side the United States and, therefore, their respective gross receipts are non-DPGR. Example 3. Y is hired to reconstruct and refur- bish unrelated customers’ tangible personal property. As part of the reconstruction and refurbishment, Y in- stalls purchased replacement parts in the customers’ property. Y’s installation of purchased replacement parts does not qualify as MPGE pursuant to paragraph (d)(3) of this section because Y did not MPGE the re- placement parts. Example 4. The facts are the same as inExample 3except that Y manufacturesthe replacement parts it uses for the reconstruction and refurbishment of cus- tomers’ tangible personal property. Y has the ben- efits and burdens of ownership of the replacement parts during the reconstruction and refurbishment ac- tivity and while installing the parts. Y’s gross re- ceipts from the MPGE of thereplacement parts and Y’s gross receipts from the installation of the replace- ment parts, which is an MPGE activity pursuant to paragraph (d)(3) of this section, are DPGR. Example 5. Z MPGE QPP within the United States. The following activities are performed by Z as part of the MPGE of the QPP while Z has the benefits and burdens of ownership under Federal income tax principles: materials analysis and selec- tion, subcontractor inspections and qualifications, testing of component parts, assisting customers in their review and approval of the QPP, routine produc- tion inspections, product documentation, diagnosis and correction of system failure, and packaging for shipment to customers. Because Z MPGE the QPP, these activities performed by Z are part of the MPGE of the QPP. Example 6. X purchases automobiles from unrelated parties and customizes them by adding ground effects, spoilers, custom wheels, specialized paint and decals, sunroofs, roof racks, and similar accessories. X does not manufacture any of the accessories. X’s activity is minor assembly under paragraph (d)(2) of this section which is not an MPGE activity. Example 7. The facts are the same as inEx- ample 6except that X manufactures some of the accessories it adds to the automobiles. Pursuant to §1.199–1(c)(2), if an automobile with accessories does not meet the requirements for being an item, X must treat each accessory that it manufactures as an item for purposes of determining whether X MPGE the item in whole or in significant part within the United States under paragraph (f)(1) of this section and whether the installation of the item is MPGE under paragraph (d)(3) of this section. Example 8. Y manufactures furniture in the United States that it sells to unrelated persons. Y also engraves customers’ names on pens and pen- cils purchased from unrelated persons and sells the pens and pencils to such customers. Although Y’s sales of furniture qualify as DPGR if all the other requirements of this section are met, Y’s sales of the engraved pens and pencils do not qualify as DPGR because Y does not MPGE the pens and pencils. (e)Definition of by the taxpayer—(1) In general. With the exception of the rules applicable to an expanded affiliated group (EAG) under §1.199–7, certain oil and gas partnerships under paragraph (h)(7) of this section, EAG partnerships under paragraph (h)(8) of this section, and gov- ernment contracts in paragraph (e)(2) of this section, only one taxpayer may claim the deduction under §1.199–1(a) with respect to any qualifying activity under paragraph (d)(1) of this section performed in connection with the same QPP, or the production of qualified films or utilities. If one taxpayer performs a qualifying activ- ity under paragraph (d)(1), (j)(1), or (k)(1) of this section pursuant to a contract with another party, then only the taxpayer that has the benefits and burdens of ownership of the property under Federal income tax principles during the period the qualifying activity occurs is treated as engaging in the qualifying activity. (2)Special rule for certain government contracts. QPP, qualified films, or utili- ties will be treated as MPGE or otherwise produced by the taxpayer notwithstanding the requirements of paragraph (e)(1) of this section if— (i) The QPP, qualified films, or utilities are MPGE or otherwise produced by the taxpayer pursuant to a contract with the Federal government; and (ii) The Federal Acquisition Regulation (Title 48 CFR) requires that title or risk of loss with respect to the QPP, qualified films, or utilities be transferred to the Fed- eral government before the MPGE of the QPP, or the production of the qualified films or utilities, is complete. (3)Examples. The following examples illustrate the application of this paragraph (e): Example 1. X designs machines that it uses in its trade or business. X contracts with Y, an unrelated taxpayer, for the manufacture of the machines. The contract between X and Y is a fixed-price contract. The contract specifies that the machines will be man- ufactured in the United States using X’s design. X owns the intellectual property attributable to the de- sign and provides it to Y with a restriction that Y may only use it during the manufacturing process and has no right to exploit the intellectual property. The con- tract specifies that Y controls the details of the man- ufacturing process while the machines are being pro- duced; Y bears the risk of loss or damage during man- ufacturing of the machines; and Y has the economic loss or gain upon the sale of the machines based on the difference between Y’s costs and the fixed price. Y has legal title during the manufacturing process and legal title to the machines is not transferred to X until final manufacturing of the machines has been com- pleted. Based on all of the facts and circumstances, pursuant to paragraph (e)(1) of this section Y has the benefits and burdens of ownership of the machines under Federal income tax principles during the period the manufacturing occurs and, as a result, Y is treated as the manufacturer of the machines. Example 2. X designs and engineers machines that it sells to customers. X contracts with Y, an un- related taxpayer, for the manufacture of the machines. The contract between X and Y is a cost-reimbursable type contract. X has the benefits and burdens of own- ership of the machines under Federal income tax prin- ciples during the period themanufacturing occurs ex- cept that legal title to the machines is not transferred to X until final manufacturing of the machines is com- pleted. Based on all of the facts and circumstances, X is treated as the manufacturer of the machines under paragraph (e)(1) of this section. (f)Definition of in whole or in signif- icant part—(1)In general.QPPmustbe MPGE in whole or in significant part by the taxpayer and in whole or in signifi- cant part within the United States to qual- ify under section 199(c)(4)(A)(i)(I). If a taxpayer enters into a contract pursuant to paragraph (e)(1) of this section with an unrelated party for the unrelated party to MPGE QPP for the taxpayer and the tax- payer has the benefits and burdens of own- ership of the QPP under applicable Federal income tax principles during the period the MPGE activity occurs, then the taxpayer is considered to MPGE the QPP under this section. The unrelated party must perform the MPGE activity on behalf of the tax- payer in whole or in significant part within the United States in order for the taxpayer to satisfy the requirements of this para- graph (f)(1). 2005–47 I.R.B.1016November 21, 2005 (2)Substantial in nature.QPPwill be treated as MPGE in significant part by the taxpayer within the United States for purposes of paragraph (f)(1) of this sec- tion if the MPGE of the QPP by the tax- payer within the United States is substan- tial in nature taking into account all of the facts and circumstances, including the rel- ative value added by, and relative cost of, the taxpayer’s MPGE activity within the United States, the nature of the property, and the nature of the MPGE activity that the taxpayer performs within the United States. Research and experimental activ- ities under section 174 and the creation of intangibles do not qualify as substantial in nature for any QPP other than computer software (as defined in paragraph (i)(3) of this section) and sound recordings (as de- fined in paragraph (i)(4) of this section). In the case of an EAG member, an EAG partnership (as defined in paragraph (h)(8) of this section), or members of an EAG in which the partners of the EAG partner- ship are members, in determining whether the substantial in nature requirement is met with respect to an item of QPP, all of the previous activities of the members of the EAG, the EAG partnership, and all mem- bers of the EAG in which the partners of the EAG partnership are members, as ap- plicable, are taken into account. (3)Safe harbor. A taxpayer will be treated as having MPGE QPP in whole or in significant part within the United States for purposes of paragraph (f)(1) of this section if, in connection with the QPP, conversion costs (direct labor and related factory burden) of such taxpayer to MPGE the QPP within the United States account for 20 percent or more of the tax- payer’s CGS of the QPP. For purposes of the safe harbor under this paragraph (f)(3), research and experimental expenditures under section 174 and the costs of creating intangibles do not qualify as conversion costs for any QPP other than computer software and sound recordings. In the case of tangible personal property (as de- fined in paragraph (i)(2) of this section), research and experimental expenditures under section 174 and any other costs in- curred in the creation of intangibles may be excluded from CGS for purposes of determining whether the taxpayer meets the safe harbor under this paragraph (f)(3). For purposes of this safe harbor, research and experimental expenditures under sec- tion 174 and any other costs of creating intangibles for computer software and sound recordings must be allocated to the computer softwareand sound recordings to which the expenditures and costs relate under §1.199–4(b). In the case of an EAG member, an EAG partnership, or members of an EAG in which the partners of the EAG partnership are members, in deter- mining whether the requirements of the safe harbor under this paragraph (f)(3) are met with respect to an item of QPP, all of the previous conversion costs of the mem- bers of the EAG, the EAG partnership, and all members of the EAG in which the partners of the EAG partnership are mem- bers, as applicable, to MPGE the QPP are taken into account. If a taxpayer enters into a contract with an unrelated party for the unrelated party to MPGE QPP for the taxpayer, and the taxpayer is considered pursuant to paragraph (e)(1) of this section to MPGE the QPP, then for purposes of this safe harbor the taxpayer’s conversion costs shall include both the taxpayer’s conversion costs as well as the conversion costs of the unrelated party to MPGE the QPP under the contract. (4)Examples. The following examples illustrate the application of this paragraph (f): Example 1. X purchases from Y unrefined oil extracted outside the United States and X refines the oil in the United States. The refining of the oil by X is an MPGE activity that is substantial in nature. Example 2. X purchases gemstones and precious metal from outside the United States and then uses these materials to produce jewelry within the United States by cutting and polishing the gemstones, melt- ing and shaping the metal, and combining the fin- ished materials. X’s activity is substantial in nature under paragraph (f)(2) of this section. Therefore, X has MPGE the jewelry in significant part within the United States. Example 3. (i) X operates an automobile assem- bly plant in the United States. In connection with such activity, X purchases assembled engines, trans- missions, and certain other components from Y, an unrelated taxpayer, and Xassembles all of the compo- nent parts into an automobile. X also conducts stamp- ing, machining, and subassembly operations, and X uses tools, jigs, welding equipment, and other ma- chinery and equipment in the assembly of automo- biles. On a per-unit basis, X ’s selling price and costs of such automobiles are as follows: Selling price: $ 2,500 Cost of goods sold: Material — Acquired from Y: $ 1,475 Conversion costs (direct labor and factory burden): $325 Total cost of goods sold: $1,800 Gross profit: $700 Administrative and selling expenses: $300 Taxable income: $400 (ii) Although X’s conversion costs are less than 20 percent of total CGS ($325/$1,800, or 18 percent), the operations conducted by X in connection with the property purchased and soldare substantial in nature under paragraph (f)(2) of this section because of the nature of X’s activity and the relative value of X’s activity. Therefore, X’s automobiles will be treated as MPGE in significant part by X within the United States for purposes of paragraph (f)(1) of this section. Example 4. X produces a qualified film (as de- fined in paragraph (j)(1) of this section) and licenses the film to Y, an unrelated taxpayer, for duplication of the film onto DVDs. Y purchases the DVDs from an unrelated person. Unless Y satisfies the safe har- bor under paragraph (f)(3) of this section, Y’s income for duplicating X’s qualified film onto the DVDs is non-DPGR because the duplication is not substantial in nature relative to the DVD with the film. Example 5. X imports into the United States QPP that is partially manufactured. X completes the man- ufacture of the QPP within the United States and X’s completion of the manufacturing of the QPP within the United States satisfies the in whole or in signif- icant part requirement under paragraph (f)(1) of this section. Therefore, X’s gross receipts from the lease, rental, license, sale, exchange, or other disposition of the QPP qualify as DPGR if all other applicable re- quirements under this section are met. Example 6. X manufactures QPP in significant part within the United States and exports the QPP for further manufacture outside the United States. As- suming X meets all the requirements under this sec- tion for the QPP after the further manufacturing, X’s gross receipts derived from the lease, rental, license, sale, exchange, or other disposition of the QPP will be considered DPGR, regardless of whether the QPP November 21, 200510172005–47 I.R.B. is imported back into the United States prior to the lease, rental, license, sale, exchange, or other dispo- sition of the QPP. Example 7. X is a retailer that sells cigars and pipe tobacco that X purchases from an unrelated per- son. While being displayed and offered for sale by X, the cigars and pipe tobacco age on X’s shelves in a room with controlled temperature and humidity. Although X’s cigars and pipe tobacco may become more valuable as they age,the gross receipts derived by X from the sale of the cigars and pipe tobacco are non-DPGR because the aging of the cigars and pipe tobacco while being displayed and offered for sale by X does not qualify as an MPGE activity that occurs in whole or in significant part within the United States. (g)Definition of United States.For purposes of this section, the termUnited Statesincludes the 50 states, the District of Columbia, the territorial waters of the United States, and the seabed and subsoil of those submarine areas that are adjacent to the territorial waters of the United States and over which the United States has ex- clusive rights, in accordance with interna- tional law, with respect to the exploration and exploitation of natural resources. The termUnited Statesdoes not include pos- sessions and territories of the United States or the airspace or space over the United States and these areas. (h)Definition of derived from the lease, rental, license, sale, exchange, or other disposition—(1)In general.Theterm derived from the lease, rental, license, sale, exchange, or other dispositionis de- fined as, and limited to, the gross receipts directly derived from the lease, rental, license, sale, exchange, or other dispo- sition, even if the taxpayer has already recognized gross receipts from a previous lease, rental, license, sale, exchange, or other disposition of the same property. Applicable Federal income tax principles apply to determine whether a transaction is, in substance, a lease, rental, license, sale, exchange or other disposition, or whether it is a service (or some combina- tion thereof). For example, gross receipts derived from the sale of QPP includes gross receipts derived from the sale of QPP MPGE in whole or in significant part within the United States by a taxpayer for sale, as well as gross receipts derived fromthesaleofQPPMPGEinwholeor in significant part within the United States by a taxpayer and used in the taxpayer’s trade or business before being sold. The entire amount of lease income including any interest that is not separately stated is considered derived from the lease of QPP or a qualified film. In addition, the proceeds from business interruption insurance, governmental subsidies, and governmental payments not to produce are treated as gross receipts derived from the lease, rental, license, sale, exchange, or other disposition to the extent that they are substitutes for gross receipts that would qualify as DPGR. The value of property received by a taxpayer in a taxable ex- change of QPP MPGE in whole or in significant part within the United States, qualified films, or utilities for an unrelated person’s property is DPGR for the tax- payer (assuming all the other requirements of this section are met). However, un- less the taxpayer further MPGE the QPP or further produces the qualified films or utilities received in the exchange, any gross receipts from the subsequent sale by the taxpayer of the property received in the exchange are non-DPGR because the taxpayer did not MPGE or otherwise pro- duce such property, even if the property was QPP, qualified films, or utilities in the hands of the other person. (2)Examples. The following exam- ples illustrate the application of paragraph (h)(1) of this section: Example 1. X MPGE QPP within the United States and sells the QPP to Y, an unrelated person. Y leases the QPP for 3 years to Z, a taxpayer unre- lated to both X and Y, and shortly thereafter, X repur- chases the QPP from Y subject to the lease. At the end of the lease term, Z purchases the QPP from X. X’s proceeds derived from the sale of the QPP to Y, from the lease to Z, and from the sale of the QPP to Z all qualify as DPGR (assuming all the other require- ments of this section are met). Example 2. X MPGE QPP within the United States and sells the QPP to Y, an unrelated taxpayer, for $25,000. X finances Y’s purchase of the QPP and receives total payments of$35,000, of which $10,000 relates to interest and finance charges. The $25,000 qualifies as DPGR but the $10,000 in interest and fi- nance charges do not qualify as DPGR because the $10,000 is not derived from the MPGE of QPP within the United States but rather from X’s lending activity. Example 3. Cable company X charges sub- scribers $15 a month for its basic cable television. Y, an unrelated taxpayer, produces in the United States all of the programs on its cable channel which it licenses to X for $.10 per subscriber per month. The programs are qualified films within the meaning of paragraph (j)(1) of this section. The gross receipts derived by Y are derived from a license of a qualified film produced by Y and are DPGR (assuming all the other requirements of this section are met). (3)Hedging transactions—(i)In gen- eral. For purposes of this section, provided that the risk being hedged relates to QPP described in section 1221(a)(1) or property described in section 1221(a)(8) consumed in the activity giving rise to DPGR, and provided that the transaction is a hedging transaction within the meaning of section 1221(b)(2) and §1.1221–2(b), then— (A) In the case of a hedge of pur- chases of property described in section 1221(a)(1), gain or loss on the hedging transaction must be taken into account in determining CGS; (B) In the case of a hedge of sales of property described in section 1221(a)(1), gain or loss on the hedging transaction must be taken into account in determining DPGR; and (C) In the case of a hedge of pur- chases of property described in section 1221(a)(8), gain or loss on the hedging transaction must be taken into account in determining DPGR. (ii)Currency fluctuations.Forpur- poses of this section, in the case of a trans- action that manages the risk of currency fluctuations, the determination of whether the transaction is a hedging transaction within the meaning of §1.1221–2(b) is made without regard to whether the trans- action is a section 988 transaction. See §1.1221–2(a)(4). The preceding sentence applies only to the extent that §1.988–5(b) does not apply. (iii)Other rules. See §1.1221–2(e) for rules applicable to hedging by members of a consolidated group and §1.446–4 for rules regarding the timing of income, de- ductions, gain, or loss with respect to hedg- ing transactions. (4)Allocation of gross receipts — em- bedded services and non-qualified prop- erty—(i)In general. Except as otherwise provided in paragraph (h)(4)(ii), paragraph (l) (relating to construction), and para- graph (m) (relating to architectural and engineering services) of this section, gross receipts derived from the performance of services do not qualify as DPGR. In the case of an embedded service, that is, a service the price of which is not sepa- rately stated from the amount charged for the lease, rental, license, sale, exchange, or other disposition of QPP, qualified films, or utilities, DPGR includes only the receipts from the lease, rental, license, sale, exchange, or other disposition of the item (if all the other requirements of this section are met) and not any receipts attributable to the embedded service by the taxpayer. In addition, DPGR does not include the gross receipts derived from 2005–47 I.R.B.1018November 21, 2005 the lease, rental, license, sale, exchange, or other disposition of property that does not meet all of the requirements under this section (non-qualified property). For example, gross receipts derived from the lease, rental, license, sale, exchange, or other disposition of a replacement part that is non-qualified property does not qualify as DPGR. (ii)Exceptions. There are five excep- tions to the rules under paragraph (h)(4)(i) of this section regarding embedded ser- vices and non-qualified property. A tax- payer may include in DPGR, if all the other requirements of this section are met with respect to the underlying item of property to which the embedded services or non- qualified property relate, gross receipts de- rived from— (A) A qualified warranty, that is, a war- ranty that is provided in connection with the lease, rental, license, sale, exchange, or other disposition of QPP, qualified films or utilities if— (1) In the normal course of the tax- payer’s business, the price for the warranty is not separately stated from the amount charged for the lease, rental, license, sale, exchange, or other disposition of the prop- erty; and (2) The warranty is neither separately offered by the taxpayer nor separately bar- gained for with the customer (that is, a cus- tomer cannot purchase the property with- out the warranty); (B) A qualified delivery, that is, a de- livery or distribution service that is pro- vided in connection with the lease, rental, license, sale, exchange, or other disposi- tion of QPP if— (1) In the normal course of the tax- payer’s business, the price for the deliv- ery or distribution service is not separately stated from the amount charged for the lease, rental, license, sale, exchange, or other disposition of the property; and (2) The delivery or distribution service is neither separately offered by the tax- payer nor separately bargained for with the customer (that is, a customer cannot pur- chase the property without delivery or dis- tribution service); (C) A qualified operating manual, that is, a manual of instructions (including electronic instructions) that is provided in connection with the lease, rental, license, sale, exchange, or other disposition of QPP, qualified films or utilities if— (1) In the normal course of the tax- payer’s business, the price for the manual is not separately stated from the amount charged for the lease, rental, license, sale, exchange, or other disposition of the prop- erty; (2) The manual is neither separately of- fered by the taxpayer nor separately bar- gained for with the customer (that is, a cus- tomer cannot purchase the property with- out the manual); and (3) The manual is not provided in con- nection with a training course for the cus- tomer; (D) A qualified installation, that is, an installation service (including minor as- sembly) for QPP that is provided in con- nection with the lease, rental, license, sale, exchange, or other disposition of the QPP if— (1) In the normal course of the tax- payer’s business, the price for the instal- lation service is not separately stated from the amount charged for the lease, rental, li- cense, sale, exchange, or other disposition of the property; and (2) The installation is neither separately offered by the taxpayer nor separately bar- gained for with the customer (that is, a cus- tomer cannot purchase the property with- out the installation service); and (E) Ade minimisamount of gross re- ceipts from embedded services and non- qualified property for each item of QPP, qualified films, or utilities. For purposes of the preceding sentence, ade minimis amount of gross receipts from embedded services and non-qualified property is less than 5 percent of the total gross receipts de- rived from the lease, rental, license, sale, exchange, or other disposition of each item of QPP, qualified films, or utilities (includ- ing the gross receipts for the embedded ser- vices and property described in paragraphs (h)(4)(ii)(A), (B), (C), (D) and (k)(4)(iv) of this section). The allocation of the gross receipts attributable to the embedded services or non-qualified property will be deemed to be reasonable if the allocation reflects the fair market value of the em- bedded services or property. In the case of gross receipts derived from the lease, rental, license, sale, exchange, or other dis- position of QPP, qualified films, and utili- ties that are received over a period of time (for example, a multi-year lease or install- ment sale), thisde minimisexception is ap- plied by taking into account the total gross receipts derived from the lease, rental, li- cense, sale, exchange, or other disposi- tion of the item of QPP, qualified films, or utilities. For purposes of applying this de minimisexception, the gross receipts described in paragraphs (h)(4)(ii)(A), (B), (C), (D) and (k)(4)(iv) of this section are treated as DPGR. Thisde minimisexcep- tion does not apply if the prices of the ser- vices or non-qualified property are sepa- rately stated by the taxpayer, or if the ser- vices or non-qualified property are sepa- rately offered or separately bargained for with the customer (that is, the customer can purchase the property without the services or non-qualified property). (iii)Examples. The following examples illustrate the application of this paragraph (h)(4): Example 1. X MPGE QPP within the United States. As part of the sale of the QPP to Z, X trains Z’s employees on how to use and operate the QPP. No other services or property are provided to Z in connection with the sale of the QPP to Z. The QPP and training services are separately stated in the sales contract. Because the training services are separately stated, the training services are not treated as embed- ded services under thede minimisexception in para- graph (h)(4)(ii)(E) of this section. Example 2.ThefactsarethesameasinExample 1except that the training services are not separately stated in the sales contract and the customer cannot purchase the QPP without the training services. If the gross receipts for the embedded training services are less than 5 percent of the gross receipts derived from the sale of X’s QPP to Z, including the gross receipts for the training services, then the gross receipts may be included in DPGR under thede minimisexception in paragraph (h)(4)(ii)(E) of this section. Example 3. X MPGE QPP within the United States. As part of the sale of the QPP to retailers, X charges a fee for delivering the QPP. The price of the QPP and the delivery fee are separately stated in the sales contract. The retailer’s customers cannot pur- chase the QPP without paying for the delivery fee. Because the delivery fee is separately stated, the de- livery fee does not qualify as DPGR under the qual- ified delivery exception in paragraph (h)(4)(ii)(B) of this section or thede minimisexception under para- graph (h)(4)(ii)(E) of this section. Example 4. X enters into a single, lump-sum priced contract with Y, an unrelated taxpayer, and the contract has the following terms: X will produce QPP within the United States for Y; X will deliver the QPP to Y; X will provide a one-year warranty on the QPP; X will provide operating and maintenance manuals with the QPP; X will provide 100 hours of training and training manuals to Y’s employees on the use and maintenance of the QPP; X will provide purchased spare parts for the QPP; and X will provide a 3-year service agreement for the QPP. None of the services or property was separately offered or separately bar- gained for. The receipts for the production of the QPP are DPGR under paragraphs (d)(1) and (f) of this sec- tion (assuming all the other requirements of this sec- tion are met). X may include in DPGR the gross re- November 21, 200510192005–47 I.R.B. ceipts for delivering the QPP, which is a qualified de- livery under paragraph (h)(4)(ii)(B) of this section; the gross receipts for the one-year warranty, which is a qualified warranty under paragraph (h)(4)(ii)(A) of this section; and the gross receipts for the operating and maintenance manuals, each of which is a quali- fied operating manual under paragraph (h)(4)(ii)(C) of this section. If the gross receipts for the embed- ded services consisting of the employee training and 3-year service agreement, and for the non-qualified property consisting of the purchased spare parts and the employee training manuals, which are not quali- fied operating manuals, are in total less than 5 percent of the gross receipts derived from the sale of X’s QPP to Y (including the gross receipts for the embedded services and non-qualified property), those gross re- ceipts may be included in DPGR (assuming there are no other embedded services or non-qualified property under the contract) under thede minimisexception in paragraph (h)(4)(ii)(E) of this section. If, how- ever, the gross receipts for the embedded services and non-qualified property consisting of employee train- ing, the 3-year service agreement, purchased spare parts, and employee training manuals equal or exceed 5 percent of the gross receipts derived from the sale of X’s QPP to Y (including the gross receipts for the embedded services and non-qualified property), those gross receipts do not qualify as DPGR under thede minimisexception in paragraph (h)(4)(ii)(E) of this section. (5)Advertising income—(i)Tangible personal property. A taxpayer’s gross receipts that are derived from the lease, rental, license, sale, exchange, or other disposition of newspapers, magazines, telephone directories, or periodicals that are MPGE in whole or in significant part within the United States include advertis- ing income from advertisements placed in those media, but only to the extent the gross receipts, if any, derived from the lease, rental, license, sale, exchange, or other disposition of the newspapers, magazines, telephone directories, or peri- odicals are DPGR (without regard to this paragraph (h)(5)(i)). (ii)Qualified films. A taxpayer’s gross receipts that are derived from the lease, rental, license, sale, exchange, or other dis- position of a qualified film include prod- uct-placement income with respect to that qualified film, that is, compensation for placing or integrating a product into the qualified film, but only to the extent the gross receipts derived from the qualified film (if any) are DPGR (without regard to this paragraph (h)(5)(ii)). (iii)Examples. The following examples illustrate the application of this paragraph (h)(5): Example 1. X MPGE and sells newspapers within the United States. X’s gross receipts from the news- papers include gross receipts derived from the sale of newspapers to customers and payments from adver- tisers to publish display advertising or classified ad- vertisements in X’s newspapers. X’s gross receipts described above are DPGR derived from the sale of X’s newspapers. Example 2. The facts are the same as inExample 1except that X also distributes with its newspapers advertising flyers that are MPGE by the advertiser. The fees X receives for distributing the advertising flyers are not derived from the sale of X’s newspapers because X did not MPGE the advertising flyers that it distributes. As a result, the distribution fee is for the provision of a distribution service and is non-DPGR under paragraph (h)(5)(i) of this section. Example 3. X produces two television programs that are qualified films (as defined in paragraph (j)(1) of this section). X licenses the first television pro- gram to Y’s television station and X licenses the sec- ond television program to Z’s television station. Both television programs contain product placements for which X received compensation. Z, but not Y, is a related person to X within the meaning of paragraph (b)(1) of this section. The gross receipts derived by X from licensing the qualified film to Y are DPGR. As a result, pursuant to paragraph (h)(5)(ii) of this section, all of X’s product placement income for the first television programis treated as gross receipts that are derived from the license of the qualified film. The gross receipts derived by X from licensing the qualified film to Z are non-DPGR under paragraph (b)(1) of this section. As a result, pursuant to para- graph (h)(5)(ii) of this section, none of X’s product placement income for the second television program is treated as gross receipts derived from the qualified film under paragraph (h)(5)(ii) of this section. (6)Computer software—(i)In general. Gross receipts derived from the lease, rental, license, sale, exchange, or other disposition of computer software (as de- fined in paragraph (i)(3) of this section) do not include gross receipts derived from Internet access services, online services, customer and technical support, telephone services, online electronic books and jour- nals, games played through a website, provider-controlled software online ac- cess services, and other similar services that do not constitute the lease, rental, li- cense, sale, exchange, or other disposition of computer software that was developed by the taxpayer. (ii)Examples. The following examples illustrate the application of this paragraph (h)(6): Example 1. X produces and prints a newspaper in the United States which it sells to customers. X also has an online version of the newspaper which is available only to subscribers. The gross receipts derived from the sale ofthe newspaper X produces and prints qualify as DPGR. However, because X’s gross receipts from the online newspaper subscription are not derived from the lease, rental, license, sale, exchange, or disposition of computer software under paragraph (h)(6)(i) of thissection, the gross receipts attributable to the online newspaper subscription fees are non-DPGR under paragraph (h)(6)(i) of this sec- tion. Example 2. ThefactsarethesameasinExam- ple 1except that X’s gross receipts attributable to the online version of its newspaper are derived from fees from customers to view the newspaper online and payments from advertisers to display advertis- ing online. X’s gross receipts derived from allow- ing customers online access to X’s newspaper are non-DPGR because, pursuant to paragraph (h)(6)(i) of this section, the gross receipts relating to online newspapers are not derived from the lease, rental, li- cense, sale, exchange, or other disposition of QPP, but rather is the provision of an online access service. As a result, because X’s gross receipts from the on- line access services are non-DPGR, the related on- line advertising receipts are similarly non-DPGR un- der paragraph (h)(5)(i) of this section. (7)Exception for certain oil and gas partnerships—(i)In general.Ifapart- nership is engaged solely in the extrac- tion, refining, or processing of oil or nat- ural gas, and distributes the oil or natu- ral gas or products derived from the oil or natural gas (products) to one or more partners, then each partner is treated as ex- tracting, refining, or processing any oil or natural gas or products extracted, refined, or processed by the partnership and dis- tributed to that partner. Thus, to the ex- tent that the extracting, refining, or pro- cessing of the distributed oil or natural gas or products occurs in whole or in signif- icant part within the United States, gross receipts derived by each partner from the sale, exchange, or other disposition of the distributed oil or natural gas or products are treated as DPGR (provided all require- ments of this section are met). Solely for purposes of section 199(d)(1)(B)(ii), the partnership is treated as having gross re- ceipts in the taxable year of the distribu- tion equal to the fair market value of the distributed oil or natural gas or products at the time of distribution to the partner and the deemed gross receipts are allocated to that partner, provided the partner derives gross receipts from the distributed prop- erty during the taxable year of the partner with or within which the partnership’s tax- able year (in which the distribution occurs) ends. Costs included in the adjusted basis of the distributed oil or natural gas or prod- ucts and any other relevant deductions are taken into account in computing the part- ner’s QPAI. See §1.199–5 for the applica- tion of section 199 to pass-thru entities. (ii)Example. The following example il- lustrates the application of this paragraph (h)(7). Assume that PRS and X are calen- 2005–47 I.R.B.1020November 21, 2005 dar year taxpayers. The example reads as follows: Example. X is a partner in PRS, a partnership which engages solely in the extraction of oil within the United States. In 2010, PRS distributes oil to X that PRS derived from its oil extraction. PRS incurred $600 of CGS, including $500 of W–2 wages (as de- fined in §1.199–2(f)), extracting the oil distributed to X, and X’s adjusted basis in the distributed oil is $600. The fair market value of the oil at the time of the distribution to X is $1,000. X incurs $200 of CGS, including $100 of W–2 wages, in refining the oil within the United States. In 2010, X sells the oil for $1,500 to a customer. Under paragraph (h)(7)(i) of this section, X is treated as having extracted the oil. The extraction and refining of the oil qualify as an MPGE activity under paragraph (d)(1) of this sec- tion. Therefore, X’s $1,500 of gross receipts qualify as DPGR. X subtracts from the $1,500 of DPGR the $600 of CGS incurred by PRS and the $200 of refin- ing costs incurred by X. Thus, X’s QPAI is $700 for 2010. In addition, PRS is treated as having $1,000 of DPGR solely for purposes of applying the wage lim- itation of section 199(d)(1)(B)(ii). Accordingly, X’s share of PRS’s W–2 wages determined under section 199(d)(1)(B) is $72, the lesser of $500 (X’s alloca- ble share of PRS’s W–2 wages included in CGS) and $72 (2 x ($400 ($1,000 deemed DPGR less $600 of CGS) x .09)). X adds the $72 of PRS W–2 wages to its $100 of W–2 wages incurred in refining the oil for purposes of section 199(b). (8)Partnerships owned by members of a single expanded affiliated group—(i)In general. For purposes of this section, if all of the interests in the capital and prof- its of a partnership are owned by mem- bers of a single EAG at all times during the taxable year of the partnership (EAG partnership), then the EAG partnership and all members of that EAG are treated as a single taxpayer for purposes of section 199(c)(4) during that taxable year. Thus, if an EAG partnership MPGE or produces property and distributes, leases, rents, li- censes, sells, exchanges, or otherwise dis- poses of that property to a member of an EAG in which the partners of the EAG partnership are members, then the MPGE or production activity conducted by the EAG partnership will be treated as hav- ing been conducted by the members of the EAG. Similarly, if one or more members of an EAG in which the partners of an EAG partnership are members MPGE or produces property and contributes, leases, rents, licenses, sells, exchanges, or other- wise disposes of that property to the EAG partnership, then the MPGE or produc- tion activity conducted by the EAG mem- ber (or members) will be treated as hav- ing been conducted by the EAG partner- ship. Attribution of activities does not ap- ply for purposes of the construction of real property under §1.199–3(l)(1) and the per- formance of engineering and architectural services under §1.199–3(m)(2) and (3), re- spectively. An EAG partnership may not use the small business simplified overall method described in §1.199–4(f). Except as provided in this paragraph (h)(8), an EAG partnership is treated the same as other partnerships for purposes of section 199. Accordingly, anEAG partnership is subject to the rules of §1.199–5 regarding the application of section 199 to pass-thru entities, including application of the sec- tion 199(d)(1)(B) wage limitation under §1.199–5(a)(3). See paragraphs (f)(2) and (3) of this section for the aggregation of ac- tivities and conversion costs among EAG partnerships and all members of the EAG in which the partners of the EAG partner- ship are members. (ii)Special rules for distributions from EAG partnerships.IfanEAGpart- nership distributes property to a part- ner, then, solely for purposes of section 199(d)(1)(B)(ii), the EAG partnership is treated as having gross receipts in the tax- able year of the distribution equal to the fair market value of the property at the time of distribution to the partner and the deemed gross receipts are allocated to that partner, provided the partner derives gross receipts from the distributed property dur- ing the taxable year of the partner with or within which the partnership’s taxable year (in which the distribution occurs) ends. Costs included in the adjusted basis of the distributed property and any other relevant deductions are taken into account in computing the partner’s QPAI. (iii)Examples. The following examples illustrate the rules of this paragraph (h)(8). Assume that PRS, X, Y, and Z all are cal- endar year taxpayers. The examples read as follows: Example 1.Contribution. XandY,bothmem- bers of a single EAG, are the only partners in PRS, a partnership, for PRS’s entire 2010 taxable year. In 2010, X MPGE QPP within the United States and contributes the property to PRS. In 2010, PRS sells the QPP for $1,000. PRS’s $1,000 gross re- ceipts constitute DPGR. PRS, X, and Y must apply the rules of §1.199–5 regarding the application of section 199 to pass-thru entities with respect to the activity of PRS, including application of the section 199(d)(1)(B) wage limitation under §1.199–5(a)(3). Example 2.Sale.X,Y,andZaretheonlymem- bers of a single EAG. X and Y each own 50% of the capital and profits interests in PRS, a partnership, for PRS’s entire 2010 taxable year. In 2010, PRS MPGE QPP within the United States and then sells the prop- erty to X for $6,000, its fair market value at the time of the sale. PRS’s grossreceipts of $6,000 qualify as DPGR. In 2010, X sells the QPP to customers for $10,000, incurring selling expenses of $2,000. Under this paragraph (h)(8), X is treated as having MPGE the QPP within the United States, and X’s $10,000 of gross receipts qualify as DPGR ($6,000 of CGS and $2,000 of other selling expenses are subtracted from DPGR in determining X’s QPAI). The results would be the same if PRS sold the property to Z rather than to X. Example 3.Distribution. XandY,bothmem- bers of a single EAG, are the only partners in PRS, a partnership, for PRS’s entire 2010 taxable year. In 2010, PRS MPGE QPP within the United States, in- curring $600 of CGS, including $500 of W–2 wages (as defined in §1.199–2(f)), and then distributes the QPP to X. X’s adjusted basis in the QPP is $600. At the time of the distribution, the fair market value of the QPP is $1,000. X incurs $200 of directly alloca- ble costs, including $100 of W–2 wages, to further MPGE the QPP within the United States. In 2010, X sells the QPP for $1,500 to a customer. Under para- graph (h)(8)(i) of this section, X is treated as having MPGE the QPP within the United States, and X’s $1,500 of gross receipts qualify as DPGR. X sub- tracts from the $1,500 of DPGR the $600 of CGS in- curred by PRS and the $200 of direct costs incurred by X. Thus, X’s QPAI is $700 for 2010. In addition, PRS is treated as having DPGR of $1,000 solely for purposes of applying the wage limitation of section 199(d)(1)(B)(ii). Accordingly, X’s share of PRS’s W–2 wages determined under section 199(d)(1)(B) is $72, the lesser of $500 (X’s allocable share of PRS’s W–2 wages included in CGS) and $72 (2 x ($400 ($1,000 deemed DPGR less $600 of CGS) x .09)). X adds the $72 of PRS W–2 wages to its $100 of W–2 wages incurred in MPGE the QPP for purposes of section 199(b). Example 4.Multiple sales. X and Y, both non-consolidated members of a single EAG, are the only partners in PRS, a partnership, for PRS’s entire 2010 taxable year. PRS produces in bulk form in the United States the active ingredient for a pharmaceuti- cal product. Assume that PRS’s own MPGE activity with respect to the active ingredient is not substantial in nature, taking into account all of the facts and circumstances, and PRS’s conversion costs to MPGE the active ingredient within the United States are $15 and account for 15 percent of PRS’s $100 CGS of the active ingredient. PRS sells the active ingredient in bulk form to X. X uses the active ingredient to produce the finished dosage form drug. Assume that X’s own MPGE activity with respect to the drug is not substantial in nature, taking into account all of the facts and circumstances, and X’s conversion costs to MPGE the drug within the United States are $12 and account for 10 percent of X’s $120 CGS of the drug. X sells the drug in finished dosage to Y and Y sells thedrugtocustomers. Yincurs $2 ofconversion costs and Y’s CGS in selling the drug to customers is $130. PRS’s gross receipts from the sale of the active ingredient to X are non-DPGR because PRS’s MPGE activity is not substantial in nature and PRS does not satisfy the safe harbor described in para- graph (f)(3) of this section because PRS’s conversion costs account for less than 20 percent of PRS’s CGS of the active ingredient. X’s gross receipts from November 21, 200510212005–47 I.R.B. thesaleofthedrugtoYareDPGRbecauseXis considered to have MPGE the drug in significant part in the United States pursuant to the safe harbor described in paragraph (f)(3) of this section because the $27 ($15 + $12) of conversion costs incurred by PRS and X equals or exceeds 20 percent of X’s total CGS ($120) of the drug at the time the drug is sold to Y. Similarly, Y’s gross receipts from the sale of the drug to customers are DPGR because Y is considered to have MPGE the drug in significant part in the United States pursuant to the safe harbor described in paragraph (f)(3) of this section because the $29 ($15 + $12 + $2) of conversion costs incurred by PRS, X, and Y equals or exceeds 20 percent of Y’s total CGS ($130) of the drug at the time the drug is sold to customers. (9)Non-operating mineral interests. DPGR does not include gross receipts derived from mineral interests other than operating mineral interests within the meaning of §1.614–2(b). (i)Definition of qualifying production property—(1)In general.QPPmeans— (i) Tangible personal property (as de- fined in paragraph (i)(2) of this section); (ii) Computer software (as defined in paragraph (i)(3) of this section); and (iii) Sound recordings (as defined in paragraph (i)(4) of this section). (2)Tangible personal property—(i)In general.Thetermtangible personal prop- ertyis any tangible property other than land, buildings (including items that are structural components of such buildings), and any property described in paragraph (i)(3), (i)(4), (j)(1), or (k) of this section. Property such as production machinery, printing presses, transportation and office equipment, refrigerators, grocery coun- ters, testing equipment, display racks and shelves, and neon and other signs that are contained in or attached to a building constitutes tangible personal property for purposes of this paragraph (i)(2)(i). Ex- cept as provided in paragraphs (i)(5)(ii) and (j)(2)(i) of this section, computer software, sound recordings, and qualified films are not treated as tangible personal property regardless of whether they are fixed on a tangible medium. However, the tangible medium on which such property may be fixed (for example, a videocas- sette, a computer diskette, or other similar tangible item) is tangible personal prop- erty. (ii)Local law. In determining whether property is tangible personal property, lo- cal law is not controlling. (iii)Machinery. Property that is in the nature of machinery (other than structural components of a building) is tangible per- sonalpropertyevenifsuchpropertyislo- cated outside a building. Thus, for exam- ple, a gasoline pump, hydraulic car lift, or automatic vending machine, although an- nexed to the ground, is considered tangible personal property. A structure that is prop- erty in the nature of machinery or is essen- tially an item of machinery or equipment is not an inherently permanent structure and is tangible personal property. In the case, however, of a building or inherently permanent structure that includes property in the nature of machinery as a structural component, the property in the nature of machinery is real property. (iv)Intangible property.Thetermtan- gible personal propertydoes not include property in a form other than in a tangi- ble medium. For example, mass-produced books are tangible personal property, but neither the rights to the underlying manu- script nor an online version of the book is tangible personal property. (3)Computer software—(i)In general. The termcomputer softwaremeans any program or routine or any sequence of machine-readable code that is designed to cause a computer to perform a desired function or set of functions, and the docu- mentation required to describe and main- tain that program or routine. For purposes of this paragraph (i)(3), computer software also includes the machine-readable code for video games and similar programs, forequipmentthatisanintegralpartof other property, and for typewriters, calcu- lators, adding and accounting machines, copiers, duplicating equipment, and sim- ilar equipment, regardless of whether the code is designed to operate on a computer (as defined in section 168(i)(2)(B)). Com- puterprogramsofallclasses,forexample, operating systems, executive systems, monitors, compilers and translators, as- sembly routines, and utility programs, as well as application programs, are included. Except as provided in paragraph (i)(5) of this section, if the medium in which the software is contained, whether written, magnetic, or otherwise, is tangible, then such medium is considered tangible per- sonal property for purposes of this section. (ii)Incidental and ancillary rights. Computer softwarealso includes any incidental and ancillary rights that are necessary to effect the acquisition of the title to, the ownership of, or the right to use the computer software, and that are used only in connection with that specific computer software. Such incidental and ancillary rights are not included in the definition of trademark or trade name un- der §1.197–2(b)(10)(i). For example, a trademark or trade name that is ancillary to the ownership or use of a specific com- puter software program in the taxpayer’s trade or business and is not acquired for the purpose of marketing the computer software is included in the definition of computer software and is not included in the definition of trademark or trade name. (iii)Exceptions. Computer software does not include any data or information base unless the data or information base is in the public domain and is incidental to a computer program. For this purpose, a copyrighted or proprietary data or infor- mation base is treated as in the public do- main if its availability through the com- puter program does not contribute signif- icantly to the cost of the program. For ex- ample, if a word-processing program in- cludes a dictionary feature that may be used to spell-check a document or any por- tion thereof, the entire program (including the dictionary feature) is computer soft- ware regardless of the form in which the dictionary feature is maintained or stored. (4)Sound recordings—(i)In general. The termsound recordingsmeans any works that result from the fixation of a series of musical, spoken, or other sounds under section 168(f)(4). The definition of soundrecordingsislimitedtothemaster copy of the recordings (or other copy from which the holder is licensed to make and produce copies), and, except as provided in paragraph (i)(5) of this section, if the medium (such as compact discs, tapes, or other phonorecordings) in which the sounds may be embodied is tangible, the medium is considered tangible personal property for purposes of paragraph (i)(2) of this section. (ii)Exception.Thetermsound record- ingsdoes not include the creation of copy- righted material in a form other than a sound recording, such as lyrics or music composition. (5)Tangible personal property with computer software or sound record- ings—(i)Computer software and sound recordings. If a taxpayer MPGE computer software or sound recordings that is fixed on, or added to, tangible personal property 2005–47 I.R.B.1022November 21, 2005 by the taxpayer (for example, a computer diskette, or an appliance), then for pur- posesofthissection— (A) The computer software and the tan- gible personal property may be treated by the taxpayer as computer software. If the taxpayer treats the tangible personal prop- erty as computer software under this para- graph (i)(5)(i)(A), any costs under section 174 attributable to the tangible personal property are not considered in determining whether the taxpayer’s activity is substan- tial in nature under paragraph (f)(2) of this section and are not conversion costs under paragraph (f)(3) of this section; and (B) The sound recordings and the tan- gible personal property with the sound recordings may be treated by the tax- payer as sound recordings. If the taxpayer treats the tangible personal property as sound recordings under this paragraph (i)(5)(i)(B), any costs under section 174 attributable to the tangible personal prop- erty are not considered in determining whether the taxpayer’s activity is substan- tial in nature under paragraph (f)(2) of this section and are not conversion costs under paragraph (f)(3) of this section. (ii)Tangible personal property.Ifa taxpayer MPGE tangible personal prop- erty but not the computer software or sound recordings that the taxpayer fixes on, or adds to, the tangible personal prop- erty MPGE by the taxpayer (for example, a computer diskette or an appliance), then for purposes of this section the tangible personal property with the computer soft- ware or sound recordings may be treated by the taxpayer as tangible personal prop- erty under paragraph (i)(2) of this section. For purposes of paragraph (f)(3) of this section, the taxpayer’s CGS for each item includes the taxpayer’s cost of licensing the computer software or sound record- ings. (j)Definition of qualified film—(1)In general.Thetermqualified filmmeans any motion picture film or video tape un- der section 168(f)(3), or live or delayed television programming if not less than 50 percent of the total compensation paid to all actors, production personnel, directors, and producers relating to the production of the motion picture film, video tape, or television programming is compensation for services performed in the United States by those individuals. The termproduc- tion personnelincludes writers, choreog- raphers and composers providing services during the production of a film, casting agents, camera operators, set designers, lighting technicians,make-up artists, and others whose activities are directly related to the production of the film. The termpro- duction personneldoes not include, how- ever, individuals whose activities are an- cillary to the production, such as advertis- ers and promoters, distributors, studio ad- ministrators and managers, studio security personnel, and personal assistants to ac- tors. The termproduction personnelalso does not include individuals whose activ- ities relate to fixing the film on tangible personal property. The definition ofquali- fied filmis limited to the master copy of the film (or other copy from which the holder is licensed to make and produce copies), and, except as provided in paragraph (j)(2) of this section, does not include tangible personal property embodying the qualified film, such as DVDs or videocassettes. (2)Tangible personal property with a film—(i)Film licensed to a taxpayer.If a taxpayer MPGE tangible personal prop- erty (such as a DVD) in whole or in signif- icant part in the United States and fixes to the tangible personal property a film that the taxpayer licenses from the producer of the film, then the taxpayer may treat the tangible personal property with the affixed film as QPP, regardless of whether the film is a qualified film. The determination of whether gross receipts of such a taxpayer from the lease, rental, license, sale, ex- change, or other disposition of the tangi- ble personal property with the affixed film are DPGR is made under the rules of para- graphs (d), (e), and (f) of this section. For purposes of paragraph (f)(3) of this sec- tion, the taxpayer’s CGS for each item in- cludes the taxpayer’s cost of licensing the film from the producer of the film. (ii)Film produced by a taxpayer.If a taxpayer produces a film and also fixes the film on tangible personal property (for example, a DVD), then for purposes of this section— (A)Qualified films. If the film is a qual- ified film, the taxpayer may treat the tan- gible personal property on which the qual- ified film is fixed as part of the qualified film, in which case the gross receipts de- rived from the lease, rental, license, sale, exchange, or other disposition of the tangi- ble personal property with the affixed qual- ified film will be DPGR (assuming all the other requirements of this section are met), regardless of whether the taxpayer MPGE the tangible personal property in whole or in significant part within the United States; and (B)Nonqualified films. If the film is not a qualified film (nonqualified film), any gross receipts derived from the lease, rental, license, sale, exchange, or other disposition of the tangible personal prop- erty with the nonqualified film that are allocable to the nonqualified film are non-DPGR. The taxpayer, however, may treat the tangible personal property (with- out the nonqualified film) as an item of QPP. Thus, the determination of whether gross receipts of such a taxpayer de- rived from the lease, rental, license, sale, exchange, or other disposition of the tan- gible personal property with the affixed nonqualified film, that are allocable to the tangible personal property, are DPGR is made under the rules of paragraphs (d), (e), and (f) of this section. (3)Derived from a qualified film. DPGR includes the gross receipts of the taxpayer which are derived from any lease, rental, license, sale, exchange, or other disposition of any qualified film produced by the taxpayer. Showing a qualified film on a television station is not a lease, rental, license, sale, exchange, or other disposition of the qualified film. Ticket sales for viewing qualified films do not constitute DPGR because the gross receipts are not derived from the lease, rental, license, sale, exchange, or other disposition of a qualified film. Because a taxpayer that merely writes a screenplay or other similar material is not considered to have produced a qualified film under para- graph (j)(1) of this section, the amounts that the taxpayer receives from the sale of the script or screenplay, even if the script is developed into a qualified film, are not gross receipts derived from a qualified film. In addition, revenue from the sale of film-themed merchandise is revenue from the sale of tangible personal property and not gross receipts derived from a qualified film. Gross receipts derived from a license of the right to use the film characters are not gross receipts derived from a qualified film. (4)Examples. The following exam- ples illustrate the application of paragraphs (j)(2) and (3) of this section: November 21, 200510232005–47 I.R.B. Example 1. X produces a qualified film in the United States and duplicates the film onto purchased DVDs. X sells the DVDs with the qualified film to customers. Under paragraph (j)(2)(ii)(A) of this sec- tion, X may treat the DVD with the qualified film as a qualified film. Accordingly, X’s gross receipts de- rived from the sale of the qualified film to customers are DPGR (assuming all the other requirements of this section are met). Example 2. The facts are the same as inEx- ample 1except that the film is a nonqualified film because the film does not satisfy the 50 percent re- quirement under (j)(1) of this section and X manu- factures the DVDs in the United States. Under para- graph (j)(2)(ii)(B) of this section, X may treat the DVD without the nonqualified film as tangible per- sonal property. X’s gross receipts (not including the gross receipts attributable to the nonqualified film) derived from the sale of the tangible personal prop- erty are DPGR (assuming all the other requirements of this section are met). Example 3. X produces television programs that are qualified films. X shows the programs on its own television station. X sells advertising time slots to advertisers for the television programs. Because showing qualified films on a television station is not a lease, rental, license, sale, exchange, or other dis- position, pursuant to paragraph (j)(3) of this section, the advertising income X receives from advertisers is not derived from the lease, rental, license, sale, ex- change, or other disposition of qualified films. Example 4. X produces a qualified film and con- tracts with Y, an unrelated taxpayer, to duplicate the film onto DVDs. Y manufactures blank DVDs within the United States, duplicates X’s film onto the DVDs in the United States, and sells the DVDs with the qualified film to X who then sells them to customers. Y has all of the benefits and burdens of ownership un- der Federal income tax principles of the DVDs dur- ing the MPGE and duplication process. Assume Y’s activities relating to manufacture of the blank DVDs and duplicating the film onto the DVDs collectively satisfy the safe harbor underparagraph (f)(3) of this section. Y’s gross receipts from manufacturing the DVDs and duplicating the film onto the DVDs are DPGR. X’s gross receipts from the sale of the DVDs to customers are DPGR. (5)Compensation for services.The termcompensation for servicesmeans all payments for services performed by actors, production personnel, directors, and pro- ducers, including participations and resid- uals. In the case of a taxpayer that uses the income forecast method of section 167(g) and capitalizes participations and residuals into the adjusted basis of the qualified film, thetaxpayermustusethesameestimate of participations and residuals for services performed by actors, production person- nel, directors, and producers for purposes of this section. In the case of a taxpayer that excludes participations and residuals from the adjusted basis of the qualified film under section 167(g)(7)(D)(i), the tax- payer must determine the compensation expected to be paid for services performed by actors, production personnel, directors, and producers as participations and resid- uals based on the total forecasted income used in determining income forecast de- preciation. Compensation for services in- cludes all direct and indirect compensa- tion costs required to be capitalized un- der section 263A for film producers under §1.263A–1(e)(2) and (3). Compensation for services is not limited to W–2 wages and includes compensation paid to inde- pendent contractors. (6)Determination of 50 percent.Atax- payer may use any reasonable method of determining the compensation for services performed in the United States by actors, production personnel, directors, and pro- ducers, and the total compensation paid to those individuals for services relating to the production of the property. Among the factors to be considered in determining whether a taxpayer’s method of allocating compensation is reasonable is whether the taxpayer uses that method consistently. (7)Exception.Aqualified filmdoes not include property with respect to which records are required to be maintained un- der 18 U.S.C. 2257. Section 2257 of Title 18 requires maintenance of certain records with respect to any book, magazine, pe- riodical, film, videotape, or other matter that— (i) Contains one or more visual depic- tions made after November 1, 1990, of ac- tual sexually explicit conduct; and (ii) Is produced in whole or in part with materials that have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce. (k)Electricity, natural gas, or potable water—(1)In general. DPGR includes gross receipts derived from any lease, rental, license, sale, exchange, or other disposition of utilities produced by the taxpayer in the United States if all other requirements of this section are met. In the case of an integrated producer that both produces and delivers utilities, see para- graph (k)(4) of this section that describes certain gross receipts that do not qualify as DPGR, therefore requiring a taxpayer to allocate its gross receipts between DPGR and non-DPGR. (2)Natural gas.Thetermnatural gas includes only natural gas extracted from a natural deposit and does not include, for example, methane gas extracted from a landfill. In the case of natural gas, pro- duction activities include all activities involved in extracting natural gas from the ground and processing the gas into pipeline quality gas. (3)Potable water.Thetermpotable watermeans unbottled drinking water. In the case of potable water, production ac- tivities include the acquisition, collection, and storage of raw water (untreated water), transportation of raw water to a water treat- ment facility, and treatment of raw water at such a facility. Gross receipts attribut- able to any of these activities are included in DPGR if all other requirements of this section are met. (4)Exceptions—(i)Electricity.Gross receipts attributable to the transmission of electricity from the generating facil- ity to a point of local distribution and gross receipts attributable to the distribu- tion of electricity to final customers are non-DPGR. (ii)Natural gas. Gross receipts attrib- utable to the transmission of pipeline qual- ity gas from a natural gas field (or, if treat- ment at a natural gas processing plant is necessary to produce pipeline quality gas, from a natural gas processing plant) to a local distribution company’s citygate (or to another customer) are non-DPGR. Like- wise, gross receipts of a local gas distri- bution company attributable to distribution from the citygate to the local customers are non-DPGR. (iii)Potable water. Gross receipts at- tributable to the storage of potable wa- ter after completion of treatment of the potable water, as well as gross receipts at- tributable to the transmission and distribu- tion of potable water, are non-DPGR. (iv)De minimis exception.Notwith- standing paragraphs (k)(4)(i), (ii), and (iii) of this section, if less than 5 percent of a taxpayer’s gross receipts derived from a sale, exchange, or other disposition of util- ities are attributable to the transmission or distribution of the utilities, then the gross receipts derived from that lease, rental, li- cense, sale, exchange, or other disposition that are attributable to the transmission and distribution of the utilities must be treated for purposes of section 199 as being DPGR if all other requirements of this section are met. 2005–47 I.R.B.1024November 21, 2005 (5)Example. The following example illustrates the application of this paragraph (k): Example. X owns a wind turbine in the United States that generates electricity and Y owns a high voltage transmission line that passes near X’s wind turbine and ends near the system of local distribu- tion lines of Z. X sells the electricity produced at the wind turbine to Z and contracts with Y to transmit the electricity produced at the wind turbine to Z who sells the electricity to customers using Z’s distribu- tion network. The gross receipts received by X for the sale of electricity produced at the wind turbine are DPGR. The gross receipts of Y from transporting X’s electricity to Z are non-DPGR under paragraph (k)(4)(i) of this section. Likewise, the gross receipts of Z from distributing the electricity are non-DPGR under paragraph (k)(4)(i) of this section. If X made direct sales of electricity to customers in Z’s service area and Z receives remuneration for the distribution of electricity, the gross receipts of Z are non-DPGR under paragraph (k)(4)(i) of this section. If X, Y, and Z are related persons (as defined in paragraph (b) of this section), then X, Y, and Z must allocate gross re- ceipts to production activities, transmission activities, and distribution activities. (l)Definition of construction performed in the United States—(1)Construction of real property—(i)In general.Theterm constructionmeans the construction or erection of real property (that is, residen- tial and commercial buildings (including items that are structural components of such buildings), inherently permanent structures other than tangible personal property in the nature of machinery (see paragraph (i)(2)(iii) of this section), inher- ently permanent land improvements, oil and gas wells, and infrastructure) in the United States by a taxpayer that, at the time the taxpayer constructs the real prop- erty, is engaged in a trade or business (but not necessarily its primary, or only, trade or business) that is considered construc- tion for purposes of the North American Industry Classification System (NAICS) on a regular and ongoing basis. A trade or business that is considered construction under the NAICS means a construction activity under the two-digit NAICS code of 23 and any other construction activity in any other NAICS code provided the construction activity relates to the con- struction of real property such as NAICS code 213111 (drilling oil and gas wells) and 213112 (support activities for oil and gas operations). Tangible personal prop- erty (for example, appliances, furniture, and fixtures) that is sold as part of a con- struction project is not considered real property for purposes of this paragraph (l)(1)(i). In determining whether property is real property, the fact that property is real property under local law is not con- trolling. Conversely, property may be real property for purposes of this paragraph (l)(1)(i) even though under local law the property is considered tangible personal property. (ii)De minimis exception. For purposes of paragraph (l)(1)(i) of this section, if less than 5 percent of the total gross receipts derived by a taxpayer from a construction project (as described in paragraph (l)(1)(i) of this section) are derived from activities other than the construction of real property in the United States (for example, from non-construction activities or the sale of tangible personal property or land) then the total gross receipts derived by the taxpayer from the project are DPGR from construc- tion. (2)Activities constituting construction. Activities constituting construction in- clude activities performed in connection with a project to erect or substantially renovate real property, but do not include tangential services such as hauling trash and debris, and delivering materials, even if the tangential services are essential for construction. However, if the tax- payer performing construction also, in connection with the construction project, provides tangential services such as de- livering materials to the construction site and removing its construction debris, the gross receipts derived from the tangential services are DPGR. Improvements to land that are not capitalizable to the land (for example, landscaping) and painting are activities constituting construction only if these activities are performed in connec- tion with other activities (whether or not by the same taxpayer) that constitute the erection or substantial renovation of real property and provided the taxpayer meets the requirements under paragraph (l)(1) of this section. The taxpayer engaged in these activities must make a reasonable inquiry to determinewhether the activ- ity relates to the erection or substantial renovation of real property in the United States. Constructionactivities also include activities relating to drilling an oil well and mining and include any activities pursuant to which the taxpayer could deduct intan- gible drilling and development costs under section 263(c) and §1.612–4 and develop- ment expenditures for a mine or natural deposit under section 616. The lease, license, or rental of equipment, for exam- ple, bulldozers, generators, or computers, to contractors for use by the contractors in the construction of real property is not a construction activity under this para- graph (l)(2). The termconstructiondoes not include any activity that is within the definition of engineering and architectural services under paragraph (m) of this sec- tion. (3)Definition of infrastructure.The terminfrastructureincludes roads, power lines, water systems, railroad spurs, com- munications facilities, sewers, sidewalks, cable, and wiring. The term also includes inherently permanent oil and gas plat- forms. (4)Definition of substantial renovation. The termsubstantial renovationmeans the renovation of a major component or sub- stantial structural part of real property that materially increases the value of the prop- erty, substantially prolongs the useful life of the property, or adapts the property to a new or different use. (5)Derived from construction—(i)In general. Assuming all the requirements of this section are met, DPGR derived from the construction of real property performed in the United States includes the proceeds from the sale, exchange, or other disposition of real property con- structed by the taxpayer in the United States (whether or not the property is sold immediately after construction is com- pleted and whether or not the construction project is complete). DPGR derived from the construction of real property includes compensation for the performance of con- struction services by the taxpayer in the United States. However, DPGR derived from the construction of real property does not include gross receipts from the lease or rental of real property constructed by the taxpayer or, except as provided in paragraph (l)(5)(ii) ofthis section, gross receipts attributable to the sale or other disposition of land (including zoning, planning, entitlement costs, and other costs capitalized to the land such as the demolition of structures under section 280B). In addition, DPGR derived from the construction of real property includes gross receipts from any qualified con- struction warranty, that is, a warranty that is provided in connection with the con- structed real property if— November 21, 200510252005–47 I.R.B. (A) In the normal course of the tax- payer’s business, the price for the con- struction warranty is not separately stated from the amount charged for the con- structed real property; and (B) The construction warranty is nei- ther separately offered by the taxpayer nor separately bargained for with the customer (that is, the customer cannot purchase the constructed real property without the con- struction warranty). (ii)Land safe harbor. For purposes of paragraph (l)(5)(i) of this section, a tax- payer may allocate gross receipts between the proceeds from the sale, exchange, or other disposition of real property con- structed by the taxpayer and the gross receipts attributable to the sale, exchange, or other disposition of land by reducing its costs related to DPGR under §1.199–4 by costs of the land and any other costs capitalized to the land (collectively, land costs) (including zoning, planning, enti- tlement costs, and other costs capitalized to the land such as the demolition of struc- tures under section 280B and land costs in any common improvements as defined in section 2.01 of Rev. Proc. 92–29, 1992–1 C.B. 748, (see §601.601(d)(2) of this chapter)) and by reducing its DPGR by those land costs plus a percentage. The percentage is based on the number of years that elapse between the date the taxpayer acquires the land, including the date the taxpayer enters into the first option to ac- quire all or a portion of the land, and ends on the date the taxpayer sells each item of real property on the land. The percentage is 5 percent for years zero through 5; 10 percent for years 6 through 10; and 15 percent for years 11 through 15. Land held by a taxpayer for 16 or more years is not eligible for the safe harbor under this paragraph (l)(5)(ii) and the taxpayer must allocate gross receipts between land and qualifying real property. (iii)Examples. The following examples illustrate the application of this paragraph (l)(5): Example 1. X, who is in the trade or business of construction under NAICS code 23 on a regular and ongoing basis, purchases a building in the United States and retains Y, an unrelated taxpayer (a general contractor), to oversee a substantial renovation of the building (within the meaning of paragraph (l)(4) of this section). Y retains Z (a subcontractor) to install a new electrical system in the building as part of that substantial renovation. The amounts that Y receives from X for construction services, and amounts that Z receives from Y for construction services, qual- ify as DPGR under paragraph (l)(5)(i) of this sec- tion provided Y and Z meet all of the requirements of paragraph (l)(1) of this section. The gross receipts that X receives from the subsequent sale of the build- ing do not qualify as DPGR because X did not en- gage in any activity constituting construction under paragraph (l)(2) of this section even though X is in the trade or business of construction. The results would be the same if X and Y were members of the same EAG under §1.199–7(a). However, if X and Y were members of the same consolidated group, see §1.199–7(d)(2). Example 2. X is engaged as an electrical con- tractor under NAICS code 238210 on a regular and ongoing basis. X purchases the wires, conduits, and other electrical materials that it installs in construc- tion projects in the United States. In a particular con- struction project, all of the wires, conduits, and other electrical materials installed by X for the operation of that building are considered structural components of the building. X’s gross receipts derived from in- stalling that property are derived from the construc- tion of real property under paragraph (l)(1) of this sec- tion. However, X’s gross receipts derived from the purchased materials do not qualify as DPGR. Example 3. X is in a trade or business that is considered construction under the two-digit NAICS code of 23. X buys unimproved land. X gets the land zoned for residential housing through an entitlement process. X grades the land and sells the land to home builders. The gross receipts that X receives from the sale of the land do not qualify as DPGR under para- graph (l)(5)(i) of this section because the gross re- ceipts are not derived from the construction of real property. Example 4. The facts are the same as inExam- ple 3except that X builds roads, sewers, sidewalks, and installs power and water lines on the land. The gross receipts that X receives that are attributable to the sale of the roads, sewers, sidewalks, and power and water lines, which qualify as infrastructure under paragraph (l)(3) of this section, are DPGR. X’s gross receipts from the land including capitalized costs of entitlements do not qualify as DPGR under paragraph (l)(5)(i) of this section because the gross receipts are not derived from the construction of real property. Example 5. (i) X is engaged in the business activ- ities of constructing housing within the meaning of paragraph (l)(1) of this section. On June 1, 2005, X pays $50,000,000 for 1,000 acres of land that X will develop as a new housing development. In 2008, after the expenditure of $10,000,000 for entitlement costs, X receives permits to begin construction. After this expenditure, X’s land costs total $60,000,000. The development consists of 1,000 houses to be built on half-acre lots over 5 years. On January 31, 2010, the first house is sold for $300,000. Construction costs for each house are $170,000. Common improve- ments consisting of streets, sidewalks, sewer lines, playgrounds, clubhouses, tennis courts, and swim- ming pools that X is contractually obligated or re- quired by law to provide cost $55,000 per lot. The common improvements include $30,000 in land costs underlying the common improvements. (ii) Pursuant to the land safe harbor under para- graph (l)(5)(ii) of this section, X calculates the to- tal costs under §1.199–4 for each house sold in 2010 as $195,000 (total costs of $255,000 ($170,000 in construction costs plus $55,000 in common improve- ments (including $30,000 in land costs) plus $30,000 in land costs for the lot), which are reduced by land costs of $60,000). X calculates the DPGR for each house sold by May 31, 2010, by taking the gross re- ceipts of $300,000 and reducing that amount by land costs of $60,000 plus a percentage of $60,000. As X acquired the land on June 1, 2005, and sold the houses on the land between January 31, 2010, and May 31, 2010, the percentage reduction for X is 5 percent because X has held the land for not more than 5 years from the anniversary of the date of acquisi- tion. Thus, the DPGR for each house is $237,000 ($300,000 - $60,000 - $3,000) with costs for each house of $195,000 for a calculation of QPAI for each house of $42,000. Example 6.ThefactsarethesameasinExample 5except some of the houses are sold between June 1, 2010, and December 31, 2010. X calculates the DPGR for each house sold between June 1, 2010, and December 31, 2010, by taking the gross receipts of $300,000 and reducing that amount by land costs of $60,000 plus a percentage of $60,000. As X acquired the land on June 1, 2005, and sold the houses on the land between June 1, 2010, and December 31, 2010, the percentage reduction for X is 10 percent because X has held the land for more than 5 years but not more than 10 years from the anniversary of the date of acquisition. Thus, the DPGR for each house is $234,000 ($300,000 - $60,000 - $6,000) with costs for each house of $195,000 for a calculation of QPAI for each house of $39,000. (m)Definition of engineering and architectural services—(1)In general. DPGR includes gross receipts derived from engineering or architectural services performed in the United States for a con- struction project described in paragraph (l) of this section. At the time the taxpayer performs the engineering or architectural services, the taxpayer must be engaged in a trade or business (but not necessarily its primary, or only, trade or business) that is considered engineering or architec- tural services for purposes of the NAICS, for example NAICS codes 541330 (engi- neering services) or 541310 (architectural services), on a regular and ongoing ba- sis. DPGR includes gross receipts derived from engineering or architectural services, including feasibility studies for a con- struction project in the United States, even if the planned construction project is not undertaken or is not completed. (2)Engineering services. Engineering services in connection with any con- struction project include any professional services requiring engineering educa- tion, training, and experience and the application of special knowledge of the mathematical, physical, or engineering sciences to those professional services such as consultation, investigation, eval- uation, planning, design, or responsible 2005–47 I.R.B.1026November 21, 2005 supervision of construction for the pur- pose of assuring compliance with plans, specifications, and design. (3)Architectural services. Architec- tural services in connection with any construction project include the offering or furnishing of any professional services such as consultation,planning, aesthetic and structural design, drawings and spec- ifications, or responsible supervision of construction (for the purpose of assuring compliance with plans,specifications, and design) or erection, in connection with any construction project. (4)De minimis exception for perfor- mance of services in the United States. If less than 5 percent of the total gross receipts derived by a taxpayer from en- gineering or architectural services per- formed in the United States for a construc- tion project (described in paragraph (l) of this section) are derived from services not relating to a construction project described in paragraph (l) of this section (for exam- ple, the services are performed outside the United States or in connection with prop- erty other than real property) then the total gross receipts derived by the taxpayer are DPGR from engineering or architectural services performed in the United States for a construction project. (n)Exception for sales of certain food and beverages—(1)In general.DPGR does not include gross receipts of the tax- payer that are derived from the sale of food or beverages prepared by the taxpayer at a retail establishment. Aretail establish- mentis defined as tangible property (both real and personal) leased, occupied, or oth- erwise used by the taxpayer in its trade or business of selling food or beverages to the public at which retail sales are made. In addition, a facility that prepares food and beverages solely for take out service or delivery is a retail establishment (for example, a caterer). A facility at which food or beverages are prepared will not be treated as a retail establishment if less than 5 percent of the gross receipts from the sale of food or beverages at that fa- cility during the taxable year are attribut- able to retail sales. If a taxpayer’s facil- ity is a retail establishment in the United States, then, for purposes of this section, the taxpayer may allocate its gross receipts between gross receipts derived from the re- tail sale of the food and beverages prepared and sold at the retail establishment (which are non-DPGR) and gross receipts derived from the wholesale sale of the food and beverages prepared at the retail establish- ment (which are DPGR). Wholesale sales are sales of food and beverages to be resold by the purchaser. The exception for sales of certain food and beverages also applies to food and beverages for non-human con- sumption. Aretail establishmentdoes not include the bonded premises of a distilled spirits plant or wine cellar, or the premises of a brewery (other than a tavern on the brewery premises). See Chapter 51 of Ti- tle 26 of the United States Code and the implementing regulations thereunder. (2)Examples. The following examples illustrate the application of this paragraph (n): Example 1. X buys coffee beans and roasts those beans at a facility in the United States, the only activ- ity of which is the roasting and packaging of roasted coffee beans. X sells the roasted coffee beans through a variety of unrelated third-party vendors and also sells roasted coffee beans at X’s retail establishments. At X’s retail establishments, X prepares brewed cof- fee and other foods. To the extent that the gross re- ceipts of X’s retail establishments represent receipts from the sale of coffee beans roasted at the facility, the receipts are DPGR. To the extent the gross receipts of X’s retail establishments represent receipts from the retail sale of brewed coffee or food prepared at the re- tail establishments, the receipts are non-DPGR. How- ever, pursuant to §1.199–1(c)(2), X must allocate part of the receipts from the retail sale of the brewed cof- fee as DPGR to the extent of the value of the coffee beans that were roasted at the facility and that were used to brew coffee. Example 2. Y operates a bonded winery in California. Bottles of wine produced by Y at the bonded winery are sold to consumers at the taxpaid premises. Pursuant to paragraph (n)(1) of this sec- tion, the bonded premises is not considered a retail establishment and is treated as separate and apart from the taxpaid premises, which is considered a re- tail establishment for purposes of paragraph (n)(1) of this section. Accordingly, the wine produced by Y in the bonded premises and sold by Y from the taxpaid premises is not considered to have been produced at a retail establishment, and the sales of the wine are DPGR (assuming all the other requirements of this section are met). §1.199–4 Costs allocable to domestic production gross receipts. (a)In general. To determine its quali- fied production activities income (QPAI) (as defined in §1.199–1(c)) for a taxable year, a taxpayer must subtract from its do- mestic production gross receipts (DPGR) (as defined in §1.199–3(a)) the cost of goods sold (CGS) allocable to DPGR, the amount of expenses or losses (deductions) directly allocable toDPGR, and a ratable portion of other deductions not directly allocable to DPGR or to another class of income. Paragraph (b) of this section provides rules for determining CGS al- locable to DPGR. Paragraph (c) of this section provides rules for determining the deductions allocated and apportioned to DPGR and a ratable portion of de- ductions that are notdirectly allocable to DPGR or to another class of income. Paragraph (d) of this section provides that a taxpayer generally must determine deductions allocated and apportioned to DPGR or to gross income attributable to DPGR using the rules of the regula- tions at §§1.861–8 through 1.861–17 and §§1.861–8T through 1.861–14T (the sec- tion 861 regulations), subject to the rules in paragraph (d) of this section (the section 861 method). Paragraph (e) of this sec- tion provides that certain taxpayers may apportion deductions to DPGR using the simplified deduction method. Paragraph (f) of this section provides a small business simplified overall method that a qualifying small taxpayer may use to apportion CGS and deductions to DPGR. (b)Cost of goods sold allocable to domestic production gross receipts—(1) In general. When determining its QPAI, a taxpayer must reduce DPGR by the CGS allocable to DPGR. A taxpayer de- termines its CGS allocable to DPGR in accordance with this paragraph (b) or, if applicable, paragraph (f) of this section. In the case of a sale, exchange, or other disposition of inventory, CGS is equal to beginning inventory plus purchases and production costs incurred during the tax- able year and includedininventorycosts, less ending inventory. CGS is determined under the methods of accounting that the taxpayer uses to compute taxable income. See sections 263A, 471, and 472. Ad- ditional section 263A costs, as defined in §1.263A–1(d)(3), must be included in determining CGS. In the case of a sale, exchange, or other disposition (including, for example, theft, casualty, or abandon- ment) of non-inventory property, CGS for purposes of this section includes the ad- justed basis of the property. CGS allocable to DPGR for a taxable year may include the inventory cost and adjusted basis of qualifying production property (QPP) (as defined in §1.199–3(i)(1)), a qualified film (as defined in §1.199–3(j)(1)), or electric- ity, natural gas, and potable water (as November 21, 200510272005–47 I.R.B. defined in §1.199–3(k)) (collectively, util- ities) that will, or have, generated DPGR notwithstanding thatthe gross receipts at- tributable to the sale of the QPP, qualified films, or utilities will, or have been, in- cluded in the computation of gross income for a different taxable year. For exam- ple, advance payments related to DPGR may be included in gross income under §1.451–5(b)(1)(i) in a different taxable year than the related CGS allocable to that DPGR. CGS allocable to DPGR includes inventory valuation adjustments such as writedowns under the lower of cost or market method. If non-DPGR is treated as DPGR pursuant to §§1.199–1(d)(2) and 1.199–3(h)(4), (k)(4)(iv), (l)(1)(ii), (m)(4), or (n)(1), CGS related to such gross re- ceipts that are treated as DPGR must be allocated or apportioned to DPGR. (2)Allocating cost of goods sold.A taxpayer must use a reasonable method that is satisfactory to the Secretary to allo- cate CGS between DPGR and non-DPGR. Whether an allocation method is rea- sonable is based on all of the facts and circumstances including whether the tax- payer uses the most accurate information available; the relationship between CGS and the method used; the accuracy of the method chosen as compared with other possible methods; whether the method is used by the taxpayer for internal man- agement and other business purposes; whether the method is used for other Fed- eral or state income tax purposes; the availability of costing information; the time, burden, and cost of using various methods; and whether the taxpayer ap- plies the method consistently from year to year. If a taxpayer does, or can, with- out undue burden or expense, specifically identify from its books and records CGS allocable to DPGR, the CGS allocable to DPGR is that amount irrespective of whether the taxpayer uses another allo- cation method to allocate gross receipts between DPGR and non-DPGR. A tax- payer that cannot, without undue burden or expense, use a specific identification method to determine CGS allocable to DPGR is not required to use a specific identification method to determine CGS allocable to DPGR. Ordinarily, if a tax- payer uses a method to allocate gross receipts between DPGR and non-DPGR, the use of a different method to allocate CGS that is not demonstrably more accu- rate than the method used to allocate gross receipts will not be considered reasonable. Depending on the facts and circumstances, reasonable methods may include methods based on gross receipts, number of units sold, number of units produced, or total production costs. (3)Special rules for imported items or services. The cost of any item or service brought into the United States (as defined in §1.199–3(g)) without an arm’s length transfer price may not be treated as less than its value immediately after it entered the United States for purposes of determin- ingtheCGStobeusedinthecomputation of QPAI. When an item or service is im- ported into the United States that had been exported by the taxpayer for further man- ufacture, the increase in cost may not ex- ceed the difference between the value of the property when exported and the value of the property when imported back into the United States after further manufac- ture. For this purpose, the value of prop- erty is its customs value as defined in sec- tion 1059A(b)(1). (4)Rules for inventories valued at mar- ket or bona fide selling prices.Ifpartof CGS is attributable to inventory valuation adjustments, CGS allocable to DPGR in- cludes inventory adjustments to QPP that is MPGE in whole or in significant part within the United States, qualified films produced in the United States, or utilities produced in the United States. Accord- ingly, taxpayers that value inventory under §1.471–4 (inventories at cost or market, whichever is lower) or §1.471–2(c) (sub- normal goods atbona fideselling prices) must allocate a proper share of such ad- justments (for example, writedowns) to DPGR based on a reasonable method that is satisfactory to theSecretary based on all of the facts and circumstances. Fac- tors taken into account in determining whether the method is reasonable include whether the taxpayer uses the most accu- rate information available; the relationship between the adjustment and the allocation base chosen; the accuracy of the method chosen as compared with other possible methods; whether the method is used by the taxpayer for internal management or other business purposes; whether the method is used for other Federal or state income tax purposes; the time, burden, and cost of using various methods; and whether the taxpayer applies the method consistently from year to year. If a tax- payer does, or can, without undue burden or expense, specifically identify from its books and records the proper amount of inventory valuation adjustments allocable to DPGR, then the taxpayer must allocate that amount to DPGR. A taxpayer that cannot, without undue burden or expense, use a specific identification method to determine the proper amount of inventory valuation adjustments allocable to DPGR is not required to use a specific identifi- cation method to allocate adjustments to DPGR. (5)Rules applicable to inventories ac- counted for under the last-in, first-out (LIFO) inventory method—(i)In gen- eral. This paragraph applies to inventories accounted for using the specific goods last-in, first-out (LIFO) method or the dollar-value LIFO method. Whenever a specific goods grouping or a dollar-value pool contains QPP, qualified films, or util- ities that produces DPGR and goods that do not, the taxpayer must allocate CGS at- tributable to that grouping or pool between DPGR and non-DPGR using a reasonable method. Whether a method of allocating CGS between DPGR and non-DPGR is reasonable must be determined in accor- dance with paragraph (b)(2) of this section. In addition, this paragraph (b)(5) provides methods that a taxpayer may use to allo- cate CGS for inventories accounted for using the LIFO method. If a taxpayer uses the LIFO/FIFO ratio method provided in paragraph (b)(5)(ii) of this section or the change in relative base-year cost method provided in paragraph (b)(5)(iii) of this section, the taxpayer must use that method for all inventory accounted for under the LIFO method. (ii)LIFO/FIFO ratio method.Atax- payer using the specific goods LIFO method or the dollar-value LIFO method may use the LIFO/FIFO ratio method. The LIFO/FIFO ratio method is applied with respect to all LIFO inventory of a taxpayer on a grouping-by-grouping or pool-by-pool basis. Under the LIFO/FIFO ratio method, a taxpayer computes the CGS of a grouping or pool allocable to DPGR by multiplying the CGS of QPP, qualified films, or utilities in the grouping or pool that produced DPGR computed using the first-in, first-out (FIFO) method by the LIFO/FIFO ratio of the grouping or pool. The LIFO/FIFO ratio of a grouping 2005–47 I.R.B.1028November 21, 2005 or pool is equal to the total CGS of the grouping or pool computed using the LIFO method over the total CGS of the grouping or pool computed using the FIFO method. (iii)Change in relative base-year cost method. A taxpayer using the dollar-value LIFO method may use the change in rela- tive base-year cost method. The change in relative base-year cost method is applied with respect to all LIFO inventory of a tax- payer on a pool-by-pool basis. The change in relative base-year cost method deter- mines the CGS allocable to DPGR by in- creasing or decreasing the total production costs (section 471 costs and additional sec- tion 263A costs) of QPP, qualified films, and utilities that generate DPGR by a por- tion of any increment or liquidation of the dollar-value pool. The portion of an incre- ment or liquidation allocable to DPGR is determined by multiplying the LIFO value of the increment or liquidation (expressed as a positive number) by the ratio of the change in total base-year cost (expressed as a positive number) of the QPP, quali- fying films, and utilities that will generate DPGR in ending inventory to the change in total base-year cost (expressed as a pos- itive number) of all goods in the ending in- ventory. The portion of an increment or liquidation allocable to DPGR may be zero but cannot exceed the amount of the incre- ment or liquidation. Thus, a ratio in excess of 1.0 must be treated as 1.0. (6)Taxpayers using the simplified production method or simplified resale method for additional section 263A costs. A taxpayer that uses the simplified produc- tion method or simplified resale method to allocate additional section 263A costs, as defined in §1.263A–1(d)(3), to end- ing inventory must follow the rules in paragraph (b)(2) of this section to deter- mine the amount of additional section 263A costs allocable to DPGR. Alloca- ble additional section 263A costs include additional section263A costs included in beginning inventory as well as additional section 263A costs incurred during the taxable year. Ordinarily, if a taxpayer uses the simplified production method or the simplified resale method, then additional section 263A costs should be allocated in the same proportion as section 471 costs are allocated. (7)Examples. The following examples illustrate the application of this paragraph (b): Example 1.Advance payments. T, a calendar year taxpayer, is a manufacturer of furniture in the United States. Under its method of accounting, T includes advance payments in gross income when the payments are received. In December 2005, T receives an advance payment of $5,000 from X with respect to an order of furniture to be manufactured for a total price of $20,000. In 2006, T produces and ships the furniture to X. In 2006, T incurs $14,000 of section 471 and additional section 263A costs to produce the furniture ordered by X. T receives the remaining $15,000 of the contract price from X in 2006. T must include the $5,000 advance payment in income and DPGR in 2005. The remaining $15,000 of the contract price must be included in income and DPGR when received by T in 2006. T must include the $14,000 it incurred to produce the furniture in CGS and CGS allocable to DPGR in 2006. See §1.199–1(e)(1) forrules regarding gross receipts and costs recognized in different taxable years. Example 2.Use of standard cost method.X,a calendar year taxpayer, manufactures item A in a fac- tory located in the United States and item B in a fac- torylocatedinCountryY.ItemAisproducedbyX in significant part within the United States and the sale of A generates DPGR. X uses the FIFO inventory method to account for its inventory and determines the cost of item A using a standard cost method. At the beginning of its taxable year, X’s inventory con- tains 2,000 units of item A at a standard cost of $5 per unit. X did not incur significant cost variances in previous taxable years. During the 2005 taxable year, X produces 8,000 units of item A at a standard cost of $6 per unit. X determines that with regard to its production of item A it has incurred a significant cost variance. When X reallocates the cost variance to the units of item A that it has produced, the production cost of item A is $7 per unit. X sells 7,000 units of item A during the taxable year. X can identify from its books and records that CGS related to sale of item A is $45,000 ((2,000 x $5) + (5,000 x $7)). Accord- ingly, X has CGS allocable to DPGR of $45,000. Example 3.Change in relative base-year cost method. (i) Y elects, beginning with the calendar year 2005, to compute its inventories using the dol- lar-value, LIFO method under section 472. Y estab- lishes a pool for items A and B. Y produces item A in significant part within the United States and the sales of item A generate DPGR. Y does not produce item B in significant part within the United States and the sale of item B does not generate DPGR. The compo- sition of the inventory for the pool at the base date, January 1, 2005, is as follows: ItemUnitUnit costTotal cost A2,000 $ 5.00$ 10,000 B 1,250 4.00 5,000 Total $ 15,000 (ii) Y uses a standard cost method to allocate all direct and indirect costs (section 471 and additional section 263A costs) to the units of item A and item B that it produces. During 2005, Y incurs $52,500 of section 471 costs and additional section 263A costs to produce 10,000 units of item A and $114,000 of section 471 costs and additional section 263A costs to produce 20,000 units of item B. (iii) The closing inventory of the pools at Decem- ber 31, 2005, contains 3,000 units of item A and 2,500 units of item B. The closing inventory of the pool at December 31, 2005, shown at base-year and cur- rent-year cost is as follows: ItemQuantity Base-year costAmount Current-year costAmount A3,000 $5.00$15,000$5.25$15,750 B 2,500 4.0010,000 5.7014,250 Totals $25,000$30,000 November 21, 200510292005–47 I.R.B. (iv) The base-year costof the closing LIFO in- ventory at December 31, 2005, amounts to $25,000, and exceeds the $15,000 base-year cost of the open- ing inventory for the taxable year by $10,000 (the in- crement stated at base-year cost). The increment val- ued at current-year cost is computed by multiplying the increment stated at base-year cost by the ratio of the current-year cost of the pool to total base-year cost of the pool (that is, $30,000/$25,000, or 120 percent). The increment stated at current-year cost is $12,000 ($10,000 x 120%). (v) The change in relative base-year cost of item A is $5,000 ($15,000 - $10,000). The change in rel- ative base-year cost (theincrement stated at base- year cost) of the total inventory is $10,000 ($25,000 - $15,000). The ratio of the change in base-year cost of item A to the change in base-year cost of the total inventory is 50% ($5,000/$10,000). (vi) CGS allocable to DPGR is $46,500, com- puted as follows: Current-year production costs related to DPGR $52,500 Less: Increment stated at current-year cost $12,000 Ratio 50% Total( 6,000) Total $46,500 Example 4.Change in relative base-year cost method. (i) The facts are the same as inExample 3 except that, during the calendar year 2006, Y expe- riences an inventory decrement. During 2006, Y in- curs $66,000 of section 471 costs and additional sec- tion 263A costs to produce 12,000 units of item A and $150,000 of section 471 costs and additional section 263A costs to produce 25,000 units of item B. (ii) The closing inventory of the pool at December 31, 2006, contains 2,000 units of item A and 2,500 units of item B. The closing inventory of the pool at December 31, 2006, shown at base-year and current- year cost is as follows: ItemQuantity Base-year costAmount Current-year costAmount A2,000 $5.00$10,000$5.50$11,000 B 2,500 4.0010,0006.00 15,000 Totals $20,000$26,000 (iii) The base-year cost of the closing LIFO inven- tory at December 31, 2006,amounts to $20,000, and is less than the $25,000 base-year cost of the open- ing inventory for that year by $5,000 (the decrement stated at base-year cost). This liquidation is reflected by reducing the most recent layer of increment. The LIFO value of the inventory at December 31, 2006 is: Base costIndexLIFO value January 1, 2005, base cost $15,000 1.00 $15,000 December 31, 2005, increment5,000 1.206,000 Total $21,000 (iv) The change in relative base-year cost of item A is $5,000 ($15,000 -$10,000). The change in rel- ative base-year cost of the total inventory is $5,000 ($25,000 - $20,000). The ratio of the change in base- year cost of item A to the change in base-year cost of the total inventory is 100% ($5,000/$5,000). (v) CGS allocable to DPGR is $72,000, computed as follows: Current-year production costs related to DPGR $66,000 Plus: LIFO value of decrement $6,000 Ratio100% Total6,000 Total $72,000 Example 5.LIFO/FIFO ratio method.(i)The facts are the same as inExample 3except that Y uses the LIFO/FIFO ratio method to determine its CGS allocable to DPGR. (ii) Y’s CGS related to item A on a FIFO basis is $46,750 ((2,000 units at $5) + (7,000 units at $5.25)). (iii) Y’s total CGS computed on a LIFO basis is $154,500 (beginning inventory of $15,000 plus total production costs of $166,500 less ending inventory of $27,000). (iv) Y’s total CGS computed on a FIFO basis is $151,500 (beginning inventory of $15,000 plus total production costs of $166,500 less ending inventory of $30,000). (v) The ratio of Y’s CGS computed using the LIFO method to its CGS computed using the FIFO method is 102% ($154,500/$151,500). Y’s CGS re- lated to DPGR computed using the LIFO/FIFO ratio method is $47,685 ($46,750 x 102%). Example 6.LIFO/FIFO ratio method.(i)The facts are the same as inExample 4except that Y uses the LIFO/FIFO ratio method to compute CGS alloca- ble to DPGR. (ii) Y’s CGS related to item A on a FIFO basis is $70,750 ((3,000 units at $5.25) + (10,000 units at $5.50)). (iii) Y’s total CGS computed on a LIFO basis is $222,000 (beginning inventory of $27,000 plus total 2005–47 I.R.B.1030November 21, 2005 production costs of $216,000 less ending inventory of $21,000). (iv) Y’s total CGS computed on a FIFO basis is $220,000 (beginning inventory of $30,000 plus total production costs of $216,000 less ending inventory of $26,000). (v) The ratio of Y’s CGS computed using the LIFO method to its CGS computed using the FIFO method is 101% ($222,000/$220,000). Y’s CGS re- lated to DPGR computed using the LIFO/FIFO ratio method is $71,457 ($70,750 x 101%). (c)Other deductions allocable or ap- portioned to domestic production gross re- ceipts or gross income attributable to do- mestic production gross receipts—(1)In general. In determining its QPAI, a tax- payer must subtract from its DPGR, in ad- dition to its CGS allocable to DPGR, the deductions that are directly allocable to DPGR, and a ratable portion of deductions that are not directly allocable to DPGR or to another class of income. A tax- payer generally must allocate and appor- tion these deductions using the rules of the section 861 method. In lieu of the section 861 method, certain taxpayers may appor- tion these deductions using the simplified deduction method provided in paragraph (e) of this section. Paragraph (f) of this section provides a small business simpli- fied overall method that may be used by a qualified small taxpayer, as defined in that paragraph. A taxpayer using the simpli- fied deduction method or the small busi- ness simplified overall method must use that method for all deductions. A taxpayer eligible to use the small business simpli- fied overall method may choose at any time to use the small business simplified overall method, the simplified deduction method, or the section 861 method for a taxable year. A taxpayer eligible to use the simplified deduction method may choose at any time to use the simplified deduc- tion method or the section 861 method for a taxable year. (2)Treatment of certain deduc- tions—(i)In general. The rules provided in this paragraph (c)(2) apply to net oper- ating losses and certain other deductions for purposes of allocating and apportion- ing deductions to DPGR or gross income attributable to DPGR for all of the meth- ods provided by this section. (ii)Net operating losses. A deduction under section 172 for a net operating loss is not allocated or apportioned to DPGR or gross income attributable to DPGR. (iii)Deductions not attributable to the conduct of a trade or business. Deductions not attributable to the conduct of a trade or business are not allocated or apportioned to DPGR or gross income attributable to DPGR. For example, the standard deduc- tion provided by section 63(c) and the de- duction for personal exemptions provided by section 151 are not allocated or appor- tioned to DPGR or gross income attribut- able to DPGR. (d)Section 861 method—(1)In gen- eral. A taxpayer must allocate and appor- tion its deductions using the allocation and apportionment rules provided by the sec- tion 861 method under which section 199 is treated as an operative section described in §1.861–8(f). Accordingly, the taxpayer applies the rules of the section 861 regula- tions to allocate and apportion deductions (including its distributive share of deduc- tions from pass-thru entities) to gross in- come attributable to DPGR. If the taxpayer applies the allocation and apportionment rules of the section 861 regulations for an operative section other than section 199, the taxpayer must use the same method of allocation and the same principles of ap- portionment for purposes of all operative sections (subject to the rules provided in paragraphs (c)(2) and (d)(2) and (3) of this section). See §1.861–8(f)(2)(i). (2)Deductions for charitable contribu- tions. Deductions for charitable contri- butions (as allowed under sections 170, 873(b)(2), and 882(c)(1)(B)) must be rat- ably apportioned between gross income at- tributable to DPGR and other gross income based on the relative amounts of gross in- come. For individuals, this provision ap- plies solely to deductions for charitable contributions that are attributable to the ac- tual conduct of a trade or business. (3)Research and experimental expendi- tures. Research and experimental expendi- tures must be allocated and apportioned in accordance with §1.861–17 without taking into account the exclusive apportionment rule of §1.861–17(b). (4)Deductions related to gross re- ceipts deemed to be domestic production gross receipts. If non-DPGR is treated as DPGR pursuant to §§1.199–1(d)(2) and 1.199–3(h)(4), (k)(4)(iv), (l)(1)(ii), (m)(4), or (n)(1), deductions related to such gross receipts that are treated as DPGR must be allocated or apportioned to gross income attributable to DPGR. (5)Examples. The following examples illustrate the operation of the section 861 method. Assume that with respect to the allocation and apportionment of interest expense, §1.861–10T does not apply in the following examples. The examples read as follows: Example 1.General section 861 method.(i)X, a United States corporation that is not a member of an expanded affiliated group (EAG) (as defined in §1.199–7), engages in activities that generate both DPGR and non-DPGR. All of X’s production activ- ities that generate DPGR are within Standard Indus- trial Classification (SIC) Industry Group AAA (SIC AAA)). All of X’s production activities that gener- ate non-DPGR are within SIC Industry Group BBB (SIC BBB). X is able to identify from its books and records CGS allocable to DPGR and to non-DPGR. X incurs $900 of research and experimentation ex- penses (R&E) that are deductible under section 174, $300 of which are performed with respect to SIC AAA and $600 of which are performed with respect to SIC BBB. None of the R&E is legally mandated R&E as described in §1.861–17(a)(4) and none of the R&E is included in CGS. X incurs section 162 sell- ing expenses (that include W–2 wages as defined in §1.199–2(f)) that are not includible in CGS and not directly allocable to any gross income. For 2010, the adjusted basis of X’s assets that generate gross in- come attributable to DPGR and to non-DPGR is, re- spectively, $4,000 and $1,000. For 2010, X’s taxable income is $1,380 based on the following Federal in- come tax items: November 21, 200510312005–47 I.R.B. DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000 Non-DPGR(allfromsalesofproductswithinSICBBB).................................. $3,000 CGSallocabletoDPGR(includes$100ofW–2wages...................................($600) CGS allocable tonon-DPGR(includes$100ofW–2wages)............................... ($1,800) Section162sellingexpenses(includes$100ofW–2wages)...............................($840) Section174R&E–SICAAA........................................................ ($300) Section174R&E–SICBBB........................................................ ($600) Interestexpense(notincludedinCGS)................................................ ($300) Charitablecontributions............................................................ ($180) X’s taxable income ............................................................... $1,380 (ii)X’s QP AI. X chooses to allocate and apportion its deductions to gross income attributable to DPGR under the section 861 method of this paragraph (d). In this ca se, the section 162 selling expenses (includ- ing W–2 wages) are definitely related to all of X’s gross income. Based on the facts and circumstances of this spe cific case, apportionment of those expenses between DPGR and non-DPGR on the basis of X’s gross receipts is appropriate. For purposes of appor- tioning R &E, X elects to use the sales method as de- scribed in §1.861–17(c). X elects to apportion in- terest expense under the tax book value method of §1.861–9T (g). X has $2,400 of gross income attrib- utable to DPGR (DPGR of $3,000 - CGS of $600 (in- cludes $100 of W–2 wages) allocated based on X’s books and records). X’s QPAI for 2010 is $1,320, as shown below: DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000 CGSallocabletoDPGR(includes$100ofW–2wages) .............................................($600) Section 162 selling expenses (includes $100 of W–2 wages) ($840 x ($3,000 DPGR/$6,000 total gross receipts)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .($420) Intere st expense (not included in CGS) ($300 x ($4,000 (X’s DPGR assets)/ $5,000(X’stotalassets)))............................................................($240) Charitable contributions (not included in CGS) ($180 x ($2,400 gross income attributable to DPGR/ $3,600totalgrossincome))...........................................................($120) Section174R&E–SICAAA................................................................... ($300) X’sQPAI.................................................................................. $1,320 (iii)Section 199 deduction determination.X’s tentative deduction under §1.199–1(a) (section 199 deduction) is $119 (.09 x (lesser of QPAI of $1,320 and taxable income of $1,380)) subject to the wage limitation of $150 (50% x $300). Accordingly, X’s section 199 deduction for 2010 is $119. Example 2.Section 861 method and EAG.(i) Facts. The facts are the same as inExample 1ex- cept that X owns stock in Y, a United States corpora- tion, equal to 75 percent of the total voting power of stock of Y and 80 percent of the total value of stock of Y. X and Y are not members of an affiliated group as defined in section 1504(a). Accordingly, the rules of §1.861–14T do not apply to X’s and Y’s selling expenses, R&E, and charitable contributions. X and Y are, however, members of an affiliated group for purposes of allocating and apportioning interest ex- pense (see §1.861–11T(d)(6)) and are also members of an EAG. For 2010, the adjusted basis of Y’s assets that generate gross income attributable to DPGR and to non-DPGR is, respectively, $21,000 and $24,000. All of Y’s activities that generate DPGR are within SIC Industry Group AAA (SIC AAA). All of Y’s ac- tivities that generate non-DPGR are within SIC In- dustry Group BBB (SIC BBB). None of X’s and Y’s sales are to each other. Y is not able to identify from its books and records CGS allocable to DPGR and non-DPGR. In this case, because CGS is definitely related under the facts and circumstances to all of Y’s gross receipts, apportionment of CGS between DPGR and non-DPGR based on gross receipts is ap- propriate. For 2010, Y’s taxable income is $1,910 based on the following tax items: DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000 No n-DPGR(allfromsalesofproductswithinSICBBB)............................................. $3 ,000 CGSallocatedtoDPGR(includes$300ofW–2wages) .............................................($1,200) CGSallocatedtonon-DPGR(includes$300ofW–2wages)..........................................($1,200) Section162sellingexpenses(includes$300ofW–2wages)..........................................($840) Section174R&E–SICAAA................................................................... ($100) Section174R&E–SICBBB................................................................... ($200) Interestexpense(notincludedinCGSandnotsubjectto§1.861–10T).................................. ($500) Charitablecontributions....................................................................... ($50) Y’staxableincome .......................................................................... $1,910 (ii)QPAI.(A)X’s QPAI. Determination of X’s QPAI is the same as inExample 1except that interest is apportioned to gross income attributable to DPGR based on the combined adjusted bases of X’s and Y’s assets. See §1.861–11T(c). Accordingly, X’s QPAI for 2010 is $1,410, as shown below: 2005–47 I.R.B.1032November 21, 2005 DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000 CGSallocatedtoDPGR(includes$300ofW–2wages) .............................................($600) Section 162 selling expenses (includes $100 of W–2 wages) $840 x ($3,000 DPGR/$6,000totalgrossreceipts))........................................ ($420) Interest expense (not included in CGS and not subject to §1.861–10T) ($300 x ($25,000 (tax book value of X’s andY’sDPGRassets)/$50,000(taxbookvalueofX’sandY’stotalassets)))...................($150) Charitable contributions (not included in CGS) ($180 x ($2,400 gross income attributable to DPGR/$3,600 totalgrossincome)) ................................................................ ($120) Section174R&E–SICAAA................................................................... ($300) X’sQPAI.................................................................................. $1,410 (B)Y’s QPAI. Y makes the same elections under the section 861 method as does X. Y has $1,800 of gross income attributable to DPGR (DPGR of $3,000 - CGS of $1,200 allocated based on Y’s gross re- ceipts). Y’s QPAI for 2010 is $1,005, as shown be- low: DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000 CGSallocatedtoDPGR(includes$300ofW–2wages) .............................................($1,200) Section 162 selling expenses (includes $300 of W–2 wages) ($840 x ($3,000 DPGR/$6,000 total gross receipts)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .($420) Interest expense (not included in CGS and not subject to §1.861–10T) ($500 x ($25,000 (tax book value of X’s andY’sDPGRassets)/$50,000(taxbookvalueofX’sandY’stotalassets)))....................($250) Charitable contributions (not included in CGS) ($50 x ($1,800 gross income attributable to DPGR/$3,600 totalgrossincome)) ................................................................ ($25) Section174R&E–SICAAA................................................................... ($100) Y’sQPAI.................................................................................. $1,005 (iii)Section 199 deduction determination.The section 199 deduction of the X and Y EAG is de- ter mined by aggregating theseparately determined QPAI, taxable income, and W–2 wages of X and Y. See §1.199–7(b). Accordingly, the X and Y EAG’s ten tative section 199 deduction is $217 (.09 x (lesser of combined taxable incomes of X and Y of $3,290 (X’s taxable income of $1,380 plus Y’s taxable in- co me of $1,910) and combined QPAI of $2,415 (X’s QPAI of $1,410 plus Y’s QPAI of $1,005)) subject to the wage limitation of $600 (50% x ($300 (X’s W–2 wa ges) + $900 (Y’s W–2 wages))). Accordingly, the X and Y EAG’s section 199 deduction for 2010 is $217. The $217 is allocated to X and Y in proportion to their QPAI. See §1.199–7(c). (e )Simplified deduction method—(1) In general. A taxpayer with average an- n ual gross receipts (as defined in para- g raph (g) of this section) of $25,000,000 o r less, or total assets at the end of the t axable year (as defined in paragraph (h) o f this section) of $10,000,000 or less, may use the simplified deduction method to apportion deductions between DPGR and non-DPGR. This paragraph does not apply to CGS. Under the simplified de- duction method, a taxpayer’s deductions (except the net operating loss deduction as provided in paragraph (c)(2)(ii) of this section and deductions not attributable to the actual conduct of a trade or business as provided in paragraph (c)(2)(iii) of this section) are ratably apportioned between DPGR and non-DPGR based on relative gross receipts. Accordingly, the amount of deductions apportioned to DPGR is equal to the same proportion of the total deduc- tions that the amount of DPGR bears to total gross receipts. Whether an owner of a pass-thru entity may use the simpli- fied deduction method is determined at the level of the owner of the pass-thru en- tity. Whether a trust or an estate may use the simplified deduction method is de- termined at the trust or estate level. In the case of a trust or estate, the simpli- fied deduction method is applied at the trust or estate level, taking into account the trust’s or estate’s DPGR, non-DPGR, and other items from all sources, includ- ing its distributive or allocable share of those items of any lower-tier entity, prior to any charitable or distribution deduc- tion. In the case of an owner of any other pass-thru entity, the simplified deduction method is applied at the level of the owner of the pass-thru entity taking into account the owner’s DPGR, non-DPGR, and other items from all sources including its dis- tributive or allocable share of those items of the pass-thru entity. (2)Members of an expanded affiliated group—(i)In general. Whether the mem- bers of an EAG may use the simplified de- duction method is determined by reference to the average annual gross receipts and to- tal assets of the EAG. If the average an- nual gross receipts of the EAG are less than or equal to $25,000,000 or the total assets of the EAG at the end of its taxable year are less than or equal to $10,000,000, each member of the EAG may individually de- termine whether to use the simplified de- duction method, regardless of the cost allo- cation method used by the other members. (ii)Exception. Notwithstanding para- graph (e)(2)(i) of this section, all members of the same consolidated group must use the same cost allocation method. (iii)Examples. The following exam- ples illustrate the application of paragraph (e)(2) of this section: Example 1. Corporations X, Y, and Z are the o nly three members of an EAG. Neither X, Y, nor Z is a member of a consolidated group. X, Y, and Z have average annual gross receipts of $2,000,000, $ 7,000,000, and $13,000,000, respectively. X, Y, and Z each have total assetsat the end of the taxable year of $5,000,000. Because the average annual gross receipts of the EAG are less than or equal to $25,000,000, each of X, Y,and Z may use either the simplified deduction method or the section 861 method. Example 2.ThefactsarethesameasinExample 1except that X and Y are members of the same con- solidated group. X, Y, and Z may use either the sim- plified deduction method or the section 861 method. November 21, 200510332005–47 I.R.B. However, X and Y must use the same cost allocation method. Example 3. ThefactsarethesameasinExam- ple 1except that Z’s average annual gross receipts are $17,000,000. Because the average annual gross receipts of the EAG are greater than $25,000,000 and the total assets of the EAG at the end of the taxable year are greater than $10,000,000, X, Y, and Z must each use the section 861 method. (f)Small business simplified overall method—(1)In general. A qualifying small taxpayer may use the small business simplified overall method to apportion CGS and deductions between DPGR and non-DPGR. Under the small business simplified overall method, a taxpayer’s total costs for the current taxable year (as defined in paragraph (i) of this section) are apportioned between DPGR and other receipts based on relative gross receipts. Accordingly, the amount of total costs for the current taxable year apportioned to DPGR is equal to the same proportion of total costs for the current taxable year that the amount of DPGR bears to total gross receipts. In the case of a pass-thru entity, whether the small business simpli- fied overall method may be used by such entity is determined at the pass-thru entity level and, if such entity is eligible, the small business simplified overall method is applied at the pass-thru entity level. (2)Qualifying small taxpayer. For pur- poses of this paragraph (f), aqualifying small taxpayeris— (i) A taxpayer that has both average annual gross receipts (as defined in para- graph (g) of this section) of $5,000,000 or less and total costs for the current taxable year of $5,000,000 or less; (ii) A taxpayer that is engaged in the trade or business of farming that is not re- quired to use the accrual method of ac- counting under section 447; or (iii) A taxpayer that is eligible to use the cash method as provided in Rev. Proc. 2002–28, 2002–1 C.B. 815 (that is, cer- tain taxpayers with average annual gross receipts of $10,000,000 or less that are not prohibited from using the cash method under section 448, including partnerships, S corporations, C corporations, or individ- uals). See §601.601(d)(2) of this chapter. (3)Members of an expanded affiliated group—(i)In general. Whether the mem- bers of an EAG may use the small busi- ness simplified overall method is deter- mined by reference to all the members of the EAG. If both the average annual gross receipts and the total costs for the cur- rent taxable year of the EAG are less than or equal to $5,000,000; the EAG, viewed as a single corporation, is engaged in the trade or business of farming that is not re- quired to use the accrual method of ac- counting under section 447; or the EAG, viewed as a single corporation, is eligible tousethecashmethodasprovidedinRev. Proc. 2002–28, then each member of the EAG may individually determine whether to use the small business simplified over- all method, regardless of the cost alloca- tion method used by the other members. (ii)Exception. Notwithstanding para- graph (f)(3)(i) of this section, all members of the same consolidated group must use the same cost allocation method. (iii)Examples. The following exam- ples illustrate the application of paragraph (f)(3) of this section: Example 1. Corporations L, M, and N are the only three members of an EAG. Neither L, M, nor N is a member of a consolidated group. L, M, and N have average annual gross receipts and total costs for the current taxable year of $1,000,000, $1,500,000, and $2,000,000, respectively. Because both the aver- age annual gross receipts and total costs for the cur- rent taxable year of the EAG are less than or equal to $5,000,000, each of L, M, and N may use the small business simplified overall method, the simplified de- duction method, or the section 861 method. Example 2. The facts are the same as inExam- ple 1except that M and N are members of the same consolidated group. L, M, and N may use the small business simplified overall method, the simplified de- duction method, or the section 861 method. However, M and N must use the same cost allocation method. Example 3. The facts are the same as inExample 1except that N has average annual gross receipts of $4,000,000. Unless the EAG, viewed as a single cor- poration, is engaged in the trade or business of farm- ing that is not required to use the accrual method of accounting under section 447, or the EAG, viewed as a single corporation, is eligible to use the cash method as provided in Rev. Proc. 2002–28, because the aver- age annual gross receipts of the EAG are greater than $5,000,000, L, M, and N are all ineligible to use the small business simplified overall method. (4)Ineligible pass-thru entities.Qual- ifying oil and gas partnerships under §1.199–3(h)(7), EAG partnerships under §1.199–3(h)(8), and trusts and estates un- der §1.199–5(d) may not use the small business simplified overall method. (g)Average annual gross receipts—(1) In general. For purposes of the simplified deduction method and the small business simplified overall method, average annual gross receipts means the average annual gross receipts of the taxpayer for the 3 tax- able years (or, if fewer, the taxable years during which the taxpayer was in exis- tence) preceding the current taxable year, even if one or more of such taxable years began before the effective date of section 199. In the case of any taxable year of less than 12 months (a short taxable year), the gross receipts shall be annualized by mul- tiplying the gross receipts for the short pe- riod by 12 and dividing the result by the number of months in the short period. (2)Members of an EAG. To compute the average annual gross receipts of an EAG, the gross receipts, for the entire tax- able year, of each corporation that is a member of the EAG at the end of its tax- able year that ends with or within the tax- able year of the computing member (as de- scribed in §1.199–7(h)) are aggregated. (h)Total assets—(1)In general.For purposes of the simplified deduction method provided by paragraph (e) of this section, total assets means the total assets the taxpayer has at the end of the taxable year that are attributable to the taxpayer’s trade or business. In the case of a C cor- poration, the corporation’s total assets at the end of the taxable year is the amount requiredtobereportedonScheduleLof the Form 1120, “United States Corpora- tion Income Tax Return,” in accordance with the Form 1120 instructions. (2)Members of an EAG. To compute the total assets at the end of the taxable year of an EAG, the total assets, at the end of its taxable year, of each corporation that is a member of the EAG at the end of its taxable year that ends with or within the taxable year of the computing member are aggregated. (i)Total costs for the current taxable year—(1)In general. For purposes of the small business simplified overall method, total costs for the current taxable year means the total CGS and deductions (ex- cluding the net operating loss deduction as provided in paragraph (c)(2)(ii) of this section and deductions not attributable to the conduct of a trade or business as provided in paragraph (c)(2)(iii) of this section) for the current taxable year. (2)Members of an EAG. To compute the total costs for the current taxable year of an EAG, the total costs for the entire taxable year of each corporation that is a memberoftheEAGattheendofthetax- able year that ends with or within the tax- able year of the computing member are ag- gregated. 2005–47 I.R.B.1034November 21, 2005 §1.199–5 Application of section 199 to pass-thru entities. (a)Partnerships—(1)Determination at partner level. The deduction allowable un- der §1.199–1(a) (section 199 deduction) is determined at the partner level. As a re- sult, each partner must compute its deduc- tion separately. For purposes of this sec- tion, each partner is allocated, in accor- dance with sections 702 and 704, its share of partnership items (including items of in- come, gain, loss, and deduction), cost of goods sold (CGS) allocated to such items of income, and gross receipts that are in- cluded in such items of income, even if the partner’s share of CGS and other deduc- tions and losses exceeds domestic produc- tion gross receipts (DPGR) (as defined in §1.199–3(a)). A partnership may specially allocate items of income, gain, loss, or de- duction to its partners, subject to the rules of section 704(b) and the supporting reg- ulations. To determine its section 199 de- duction for the taxable year, a partner gen- erally aggregates its distributive share of such items, to the extent they are not oth- erwise disallowed by the Internal Revenue Code, with those items it incurs outside the partnership (whether directly or indirectly) for purposes of allocating and apportion- ing deductions to DPGR and computing its qualified production activities income (QPAI) (as defined in §1.199–1(c)). How- ever, if a partnership uses the small busi- ness simplified overall method described in §1.199–4(f), then each partner is allo- cated its share of QPAI and W–2 wages (as defined in §1.199–2(f)), which (subject to the limitation under section 199(d)(1)(B)) are combined with the partner’s QPAI and W–2 wages from other sources. Under this method, a partner’s distributive share of QPAI from a partnership may be less than zero. (2)Disallowed deductions. Deductions of a partnership that otherwise would be taken into account in computing the part- ner’s section 199 deduction are taken into account only if and to the extent the part- ner’s distributive share of those deduc- tions from all of the partnership’s activi- ties is not disallowed by section 465, 469, 704(d), or any other provision of the In- ternal Revenue Code. If only a portion of the partner’s distributive share of the losses or deductions is allowed for a tax- able year, a proportionate share of those allowable losses or deductions that are al- located to the partnership’s qualified pro- duction activities, determined in a manner consistent with sections 465, 469, 704(d), and any other applicable provision of the Internal Revenue Code, is taken into ac- count in computing the section 199 deduc- tion for that taxable year. To the extent that any of the disallowed losses or deduc- tions are allowed in a later taxable year, the partner takes into account a proportionate share of those losses or deductions in com- puting its QPAI for that later taxable year. (3)Partner’s share of W–2 wages.Un- der section 199(d)(1)(B), a partner’s share of W–2 wages of a partnership for pur- poses of determining the partner’s section 199(b) limitation is the lesser of the part- ner’s allocable share of those wages (with- out regard to section 199(d)(1)(B)), or 2 times 9 percent (3 percent for taxable years beginning in 2005 or 2006, and 6 per- cent for taxable years beginning in 2007, 2008, or 2009) of the QPAI computed by taking into account only the items of the partnership allocated to the partner for the taxable year of the partnership. In gen- eral, this QPAI calculation is performed by the partner using the same cost alloca- tion method that the partner uses in cal- culating the partner’s section 199 deduc- tion. However, if a partnership uses the small business simplified overall method described in §1.199–4(f), the QPAI used by each partner to determine the wage lim- itation under section 199(d)(1)(B) is the same as the share of QPAI allocated to the partner. Each partner must compute its share of W–2 wages from the partnership in accordance with section 199(d)(1)(B) (with W–2 wages being allocated to the partner in the same manner as is wage ex- pense), and then add that share to its W–2 wages from other sources, if any. The ap- plication of section 199(d)(1)(B) therefore means that if QPAI, computed by taking into account only the items of the partner- ship allocated to the partner for the taxable year, is not greater than zero, the partner may not take into account any W–2 wages of the partnership in computing the part- ner’s section 199 deduction. See §1.199–2 for the computation of W–2 wages, and paragraph (f) of this section for rules re- garding pass-thru entities in a tiered struc- ture. (4)Examples. The following examples illustrate the application of this paragraph (a). Assume that each partner has suf- ficient adjusted gross income or taxable income so that the section 199 deduction is not limited under section 199(a)(1)(B); that the partnership and each of its partners (whether individual or corporate) are cal- endar year taxpayers; and that the amount of the partnership’s W–2 wages equals wage expense for each taxable year. The examples read as follows: Example 1.Section 861 method with interest ex- pense.(i)Partnership Federal income tax items.X and Y, unrelated United States corporations, are each 50% partners in PRS, a partnership that engages in production activities that generate both DPGR and non-DPGR. X and Y share all items of income, gain, loss, deduction, and credit 50% each. PRS is not able to identify from its books and records CGS al- locable to DPGR and non-DPGR. In this case, be- cause CGS is definitely related under the facts and cir- cumstances to all of PRS’s gross income, apportion- ment of CGS between DPGR and non-DPGR based on gross receipts is appropriate. For 2010, the ad- justed basis of PRS business assets is $5,000, $4,000 of which generate gross income attributable to DPGR and $1,000 of which generate gross income attribut- able to non-DPGR. For 2010, PRS has the following Federal income tax items: November 21, 200510352005–47 I.R.B. DPGR..................................................................................... $3,000 Non-DPGR................................................................................. $3,000 CGS(includes$200ofW–2wages).............................................................$3,240 Section 162 se llingexpenses(includes$300ofW–2wages).......................................... $1,200 Interestexpense(notincludedinCGS)........................................................... $300 (ii)Allocation of PRS’s items of income, gain, loss, deduction, or credit. X and Y each receive the following distributive share of PRS’s items of in- come, gain, loss, deduction or credit, as determined under the principles of §1.704–1(b)(1)(vii): Gross income attributable to DPGR ($1,500 (DPGR) - $810 (allocable CGS, includes $50 ofW–2wages)).................................................................... $690 Gross income attributable to non-DPGR ($1,500 (non-DPGR) - $810 (allocable CGS, includes $50 ofW–2wages)).................................................................... $690 Section162sellingexpenses(includes$150ofW–2wages)..........................................$600 Interest expense(notincludedinCGS)........................................................... $150 (iii)De termination of QPAI.(A)X’s QPAI.Be- cause the section 199 deduction is determined at the partner level, X determines its QPAI by aggregating, to the e xtent necessary, its distributive share of PRS’s Federal income tax items with all other such items from all other, non-PRS-related activities. For 2010, Xdoesn ot have any other such items. For 2010, the adjusted basis of X’s non-PRS assets, all of which are inve stment assets, is $10,000. X’s only gross re- ceipts for 2010 are those attributable to the allocation of gross income from PRS. X allocates and apportions its ded uctible items to gross income attributable to DPGR under the section 861 method of §1.199–4(d). In this case, the section 162 selling expenses (includ- ing W–2 wages) are definitely related to all of PRS’s gross receipts. Based on the facts and circumstances of this s pecific case, apportionment of those expenses between DPGR and non-DPGR on the basis of PRS’s gross receipts is appropriate. X elects to apportion its dis tributive share of interest expense under the tax book value method of §1.861–9T(g). X’s QPAI for 2010 is $366, as shown below: DPGR..................................................................................... $1,50 0 CGSallocabletoDPGR(includes$50ofW–2wages) ..............................................($810) Section162sellingexpenses(includes$75ofW–2wages)($600x$1,500/$3,000)........................($300) Interest expense (not included in CGS) ($150 x $2,000 (X’s share of PRS’s DPGR assets)/ $12,500(X’snon-PRSassetsandX’sshareofPRSassets)).................................($24) X’sQPAI.................................................................................. $366 (B)Y’s QPAI.(1) For 2010, in addition to the ac- tivities of PRS, Y engages in production activities that generate both DPGR and non-DPGR. Y is able to identify from its books and records CGS allocable to DPGR and to non-DPGR. For 2010, the adjusted basis of Y’s non-PRS assets attributable to its produc- tion activities that generate DPGR is $8,000 and to other production activities that generate non-DPGR is $2,000. Y has no other assets. Y has the following Federal income tax items relating to its non-PRS ac- tivities: Gross income attributable to DPGR ($1,500 (DPGR) - $900 (allocable CGS, includes $70 ofW–2wages)).................................................................... $600 Gross income attributable to non-DPGR ($3,000 (other gross receipts) - $1,620 (allocable CGS, includes $ 150ofW–2wages))............................................................... $ 1,380 Section162sellingexpenses(includes$30ofW–2wages)...........................................$540 Interestexpense(notincludedinCGS)........................................................... $90 (2) Y determines its QPAI in the same general manner as X. However, because Y has activities out- side of PRS, Y must aggregate its distributive share of PRS’s Federal income tax items with its own such items. Y allocates and apportions its deductible items to gross income attributable to DPGR under the sec- tion 861 method of §1.199–4(d). In this case, Y’s dis- tributive share of PRS’s section 162 selling expenses (including W–2 wages), as well as those selling ex- penses from Y’s non-PRS activities, are definitely re- lated to all of its gross income. Based on the facts and circumstances of this specific case, apportionment of those expenses between DPGR and non-DPGR on the basis of Y’s gross receipts is appropriate. Y elects to apportion its distributive share of interest expense under the tax book value method of §1.861–9T(g). Y has $1,290 of gross income attributable to DPGR ($3,000 DPGR ($1,500 from PRS and $1,500 from non-PRS activities) - $1,710 CGS ($810 from PRS and $900 from non-PRS activities). Y’s QPAI for 2010 is $642, as shown below: 2005–47 I.R.B.1036November 21, 2005 DPGR ($1,500 from PRS and $1,500 from non-PRS activities). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$3,000 CGS allocable to DPGR ($810 from PRS and $900 from non-PRS activities) (includes $120 of W–2 wages) . . .($1,710) Section 162 selling expenses (includes $180 of W–2 wages) ($1,140 ($600 from PRS and $540 from non-PRS activities) x ($1,500 PRS DPGR + $1,500 non-PRS DPGR)/($3,000 PRS total gross receipts + $4,500 non-PRS total gross receipts)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .($456) Interest expense (not included in CGS) ($240 ($150 from PRS and $90 from non-PRS activities) x $10,000 (Y’s non-PRS DPGR assets and Y’s share of PRS DPGR assets)/$12,500(Y’snon-PRSassetsandY’sshareofPRSassets))...........................($192) Y’sQPAI.................................................................................. $642 (iv)PRS W– 2wagesallocatedtoXandYunder section 199(d)(1)(B). Solely for purposes of calculat- ing the PRS W–2 wages that are allocated to them under sec tion 199(d)(1)(B) for purposes of the wage limitation of section 199(b), X and Y must separately determine QPAI taking into account only the items of PRS alloc ated to them. X and Y must use the same methods of allocation and apportionment that they use to dete rmine their QPAI in paragraphs (iii)(A) and (B) of thisExample 1, respectively. Accord- ingly, X and Y must apportion deductible section 162 selling e xpenses which includes W–2 wage expense on the basis of gross receipts, and apportion interest expense according to the tax book value method of §1.861–9 T(g). (A)QPAIof X and Y, solely for this purpose, is determined by allocating and apportioning each part- ner’s share of PRS expenses to each partner’s share of PRS gro ss income of $690 attributable to DPGR ($1,500 DPGR - $810 CGS, apportioned based on gross receipts). Thus, QPAI of X and Y solely for this purp ose is $270, as shown below: DPGR..................................................................................... $1,500 CGSallocabletoDPGR ...................................................................... ($810) Section162sellingexpenses(includingW–2wages)($600x($1,500/$3,000))...........................($300) Interest expense (not included in CGS) ($150 x $2,000 (partner’s share of adjusted basis of PRS’sDPGRassets)/$2,500(partner’sshareofadjustedbasisoftotalPRSassets))..............($120) QPAI...................................................................................... $270 (B) X’s and Y’s shares of PRS’s W–2 wages de- termined under section 199(d)(1)(B) for purposes of the wage limitation of section 199(b) are $49, the lesser of $250 (partner’s allocable share of PRS’s W–2 wages ($100 included in CGS, and $150 in- cluded in selling expenses) and $49 (2 x ($270 x .09)). (v)Section 199 deduction determination. (A) X’s tentative section 199 deduction is $33 (.09 x $366 (that is, QPAI determined at partner level)) subject to the wage limitation of $25 (50% x $49). Accordingly, X’s section 199 deduction for 2010 is $25. (B) Y’s tentative section 199 deduction is $58 (.09 x $642 (that is, QPAI determined at the partner level) subject to the wage limitation of $150 (50% x ($49 (from PRS)) and $250 (from non-PRS activities)). Accordingly, Y’s section 199 deduction for 2010 is $58. Example 2.Section 861 method with R&E ex- pense.(i)Partnership items of income, gain, loss, de- duction or credit. X and Y, unrelated United States corporations, are partners in PRS, a partnership that engages in production activities that generate both DPGR and non-DPGR. Neither X nor Y is a mem- ber of an affiliated group. X and Y share all items of income, gain, loss, deduction, and credit 50% each. All of PRS’s domestic production activities that gen- erate DPGR are within Standard Industrial Classifi- cation (SIC) Industry Group AAA (SIC AAA). All of PRS’s production activities that generate non-DPGR are within SIC Industry Group BBB (SIC BBB). PRS is not able to identify from its books and records CGS allocable to DPGR and to non-DPGR and, therefore, apportions CGS to DPGR and non-DPGR based on its gross receipts. PRS incurs $900 of research and experimentation expenses (R&E) that are deductible under section 174, $300 of which are performed with respect to SIC AAA and $600 of which are performed with respect to SIC BBB. None of the R&E is legally mandated R&E as described in §1.861–17(a)(4) and none is included in CGS. PRS incurs section 162 sell- ing expenses (that include W–2 wage expense) that are not includible in CGS and not directly allocable to any gross income. For 2010, PRS has the follow- ing Federal income tax items: DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000 Non-DPGR(allfromsalesofproductswithinSICBBB)............................................. $3,000 CGS(includes$200ofW–2wages).............................................................$2,400 Section162sellingexpenses(includes$100ofW–2wages)..........................................$840 Section174R&E–SICAAA................................................................... $300 S ection174R&E–SICBBB................................................................... $ 600 (ii)Allocation of PRS’s items of income, gain, loss, deduction, or credit. X and Y each receive the following distributive share of PRS’s items of in- come, gain, loss, deduction, or credit, as determined under the principles of §1.704–1(b)(1)(vii): November 21, 200510372005–47 I.R.B. Gross income attributable to DPGR ($1,500 (DPGR) - $600 (CGS, includes $50 of W–2 wages)) . . . . . . . . . . . .$900 Gross income attributableto non-DPGR ($1,500 (other gross receipts) - $600 (CGS,includes$50ofW–2wages))....................................................$900 Section 162 se llingexpenses(includes$50ofW–2wages)........................................... $420 Section174R&E–SICAAA................................................................... $150 Section174R&E–SICBBB................................................................... $300 (iii)Determination of QPAI.(A)X’s QPAI.Be- cause the section 199 deduction is determined at the partner level, X determines its QPAI by aggregat- ing, to the extent necessary, its distributive shares of PRS’s Federal income tax items with all other such items from all other, non-PRS-related activities. For 2010, X does not have any other such tax items. X’s only gross receipts for 2010 are those attributable to the allocation of gross income from PRS. As stated, all of PRS’s domestic production activities that gen- erate DPGR are within SIC AAA. X allocates and apportions its deductible items to gross income at- tributable to DPGR under the section 861 method of §1.199–4(d). In this case, the section 162 selling ex- penses (including W–2 wages) are definitely related to all of PRS’s gross income. Based on the facts and circumstances of this specific case, apportionment of those expenses between DPGR and non-DPGR on the basis of PRS’s gross receipts is appropriate. For purposes of apportioning R&E, X elects to use the sales method as described in §1.861–17(c). Because X has no direct sales of products, and because all of PRS’s SIC AAA sales attributable to X’s share of PRS’s gross income generate DPGR, all of X’s share of PRS’s section 174 R&E attributable to SIC AAA is taken into account for purposes of determin- ingX’sQPAI.Thus,X’stotalQPAIfor2010is$540, as shown below: DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,500 CGS(includes$50ofW–2wages)..............................................................($600) Section 162 selling expenses (including W–2 wages) ($420 x ($1,500 DPGR/$3,000 total gross receipts)). . . . . .($210) Section174R&E–SICAAA................................................................... ($150) X’sQPAI.................................................................................. $540 (B)Y’s QPAI.(1) For 2010, in addition to the ac- tivities of PRS, Y engages in domestic production activities that generate both DPGR and non-DPGR. With respect to those non-PRS activities, Y is not able to identify from its books and records CGS al- locabletoDPGRandtonon-DPGR.Inthiscase,be- cause CGS is definitely related under the facts and cir- cumstances to all of Y’s non-PRS gross receipts, ap- portionment of CGS between DPGR and non-DPGR based on Y’s non-PRS gross receipts is appropriate. For 2010, Y has the following non-PRS Federal in- come tax items: DPGR(fromsalesofproductswithinSICAAA)................................................... $1,500 DPGR (from sales of products within SIC BBB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,500 Non-DPGR (from sales of products within SIC BBB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000 CGS(allocatedtoDPGRwithinSICAAA)(includes$56ofW–2wages)...............................$750 CGS (allocated to DPGR within SIC BBB) (includes $56 of W–2 wages) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$750 CGS (allocated to non-DPGR within SIC BBB) (includes $113 of W–2 wages) . . . . . . . . . . . . . . . . . . . . . . . . . .$1,500 Section162sellingexpenses(includes$30ofW–2wages)...........................................$540 Section174R&E–SICAAA................................................................... $300 Section174R&E–SICBBB................................................................... $450 (2) Because Y has DPGR as a result of activi- ties outside PRS, Y must aggregate its distributive share of PRS’s Federal income tax items with such items from all its other, non-PRS-related activ ities. Y allocates and apportions its deductible items to gross income attributable to DPGR under the section 861 method of §1.199–4(d). In this case, the sect ion 162 selling expenses (including W–2 wages) are definitely related to all of Y’s gross income. Based on the facts and circumstances of the specific c ase, apportionment of such expenses between DPGR and non-DPGR on the basis of Y’s gross receipts is appropriate. For purposes of apportioning R&E, Y elects to use the sales method as described in §1.861–17(c). (3) With respect to sales that generate DPGR, Y has gross income of $2,400 ($4,500 DPGR ($1,500 from PRS and $3,000 from non-PRS activities) - $2,100 CGS ($600 from sales of products by PRS and $1,500 from non-PRS activities)). Because a ll of the sales in SIC AAA generate DPGR, all of Y’s share of PRS’s section 174 R&E attributable to SIC AAA and the section 174 R&E attributable to SIC AAA that Y incurs in its non-PRS activities are ta ken into account for purposes of determining Y’s QPAI. Because only a portion of the sales within SIC BBB generate DPGR, only a portion of the section 174 R&E attributable to SIC BBB is taken into account in determining Y’s QPAI. Thus, Y’s QPAI for 2010 is $1,282, as shown below: DPGR ($4,500 DPGR ($1,500 from PRS and $3,000 from non-PRS activities . . . . . . . . . . . . . . . . . . . . . . . . . . . .$4,500 CGS($600fromsalesofproductsbyPRSand$1,500fromnon-PRSactivities...........................($2,100) Section 162 selling expenses (including W–2 wages) ($420 from PRS + $540 from non-PRS activities) x ($4,500 DPGR/$9,000 total gross receipts)). . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .($480) Section 174 R&E–SIC AAA ($150 from PRS and $300 from non-PRS activities) . . . . . . . . . . . . . . . . . . . . . . . . .($450) Section 174 R&E–SIC BBB ($300 from PRS + $450 from non-PRS activities) x ($1,500 DPGR/$6,000 total gross receipts allocated to SIC BBB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ($188) Y’sQPAI.................................................................................. $1,282 2005–47 I.R.B.1038November 21, 2005 (iv)PRSW–2wagesallocatedtoXandYun- der section 199(d)(1)(B). Solely for purposes of cal- culating the PRS W–2 wages that are allocated to X and Y under section 199(d)(1)(B) for purposes of the wage limitation of section 199(b), X and Y must sep- arately determine QPAI taking into account only the items of PRS allocated to them. X and Y must use the same methods of allocation and apportionment that they use to determine their QPAI in paragraphs (iii)(A) and (B) of thisExample 2, respectively. Ac- cordingly, X and Y must apportion section 162 sell- ing expense which includes W–2 wage expense on the basis of gross receipts, and apportion section 174 R&E expense under the sales method as described in §1.861–17(c). (A)QPAIofXandY,solelyforthispurpose,is determined by allocating and apportioning each part- ner’s share of PRS expenses to each partner’s share of PRS gross income of $900 attributable to DPGR ($1,500 DPGR - $600 CGS, allocated based on PRS’s gross receipts). Because all of PRS’s SIC AAA sales generate DPGR, all of X’s and Y’s shares of PRS’s section 174 R&E attributable to SIC AAA is taken into account for purposes of determining X’s and Y’s QPAI. None of PRS’s section 174 R&E attributable to SIC BBB is taken into account because PRS has no DPGR within SIC BBB. Thus, X and Y each has QPAI, solely for this purpose, of $540, as shown be- low: DPGR (all from sales of products within SIC AAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,500 CGS(includes$50ofW–2wages...............................................................($600) Section162sellingexpenses(includingW–2wages)($420x$1,500/$3,000)............................($210) Section174R&E–SICAAA................................................................... ($150) QPAI...................................................................................... $540 (B) X’ sandY’ssharesofPRS’sW–2wagesde- termined under section 199(d)(1)(B) for purposes of the wage limitation of section 199(b) are $97, the lesse r of $150 (partner’s allocable share of PRS’s W–2 wages ($100 included in CGS, and $50 included in selling expenses)) and $97 (2 x ($540 x .09)). (v)S ection 199 deduction determination. (A) X’s tentative section 199 deduction is $49 (.09 x $540 (QPAI determined at partner level)) subject to the wage limitation of $49 (50% x $97). Accordingly, X’s section 199 deduction for 2010 is $49. (B) Y’s tentative section 199 deduction is $115 (.09 x $1,282 (QPAI determined at partner level) sub- ject to the wage limitation of $176 (50% x $352 ($97 from PRS + $255 from non-PRS activities)). Accord- ing ly, Y’s section 199 deduction for 2010 is $115. Example 3.Simplified deduction method with special allocations.(i)In general.XandYare unr elated corporate partners in PRS. PRS engages in a domestic production activity and other activities. In general, X and Y share all partnership items of inc ome, gain, loss, deduction, and credit equally, except that 80% of the wage expense of PRS and 20% of PRS’s other expenses are specially allocated to X (substantial economic effect under section 704(b) is presumed). In the 2010 taxable year, PRS’s only wage expense is $2,000 for marketing, which is not included in CGS. PRS has $8,000 of gross receipts ($6,000 of which is DPGR), $4,000 of CGS ($3,500 of which is allocable to DPGR), and $3,000 o f deductions (comprised of $2,000 of wages for marketing and $1,000 of other expenses). X qualifies for and uses the simplified deduction method under § 1.199–4(e). Y does not qualify to use that method and therefore, must use the section 861 method under §1.199–4(d). In the 2010 taxable year, X has gross r eceipts attributable to non-partnership activities of $1,000 and wages of $200. None of X’s non-PRS gross receipts is DPGR. (ii)Allocation and apportionment of costs. Under the partnership agreement, X’s distributive share of the items of the partnership is $1,250 of gross income attributable to DPGR ($3,000 DPGR - $1,750 alloca- ble CGS), $750 of gross income attributable to non- DPGR ($1,000 non-DPGR - $250 allocable CGS), and $1,800 of deductions (comprised of X’s special allocations of $1,600 of wage expense for market- ing and $200 of other expenses). Under the simpli- fied deduction method, X apportions $1,200 of other deductions to DPGR ($2,000 ($1,800 from the part- nersh ip and $200 from non-partnership activities) x ($3,000 DPGR/$5,000 totalgross receipts)). Accord- ingly, X’s QPAI is $50 ($3,000 DPGR - $1,750 CGS - $1,2 00 of deductions). However, in determining the section 199(d)(1)(B) wage limitation, QPAI is com- puted taking into account only the items of the part- ners hip allocated to the partner for the taxable year of the partnership. Thus, X apportions $1,350 of deduc- tions to DPGR ($1,800 x ($3,000 DPGR/$4,000 total gros s receipts from PRS)). Accordingly, X’s QPAI for purposes of the section 199(d)(1)(B) wage limitation is $0 ($3,000 DPGR - $1,750 CGS - $1,350 of de- duc tions).X’sshareofPRS’sW–2wagesis$0,the lesser of $1,600 (X’s 80% allocable share of $2,000 of wage expense for marketing) or $0 (2 x ($0 QPAI x.0 9)). X’s tentative deduction is $5 ($50 QPAI x .09), subject to the section 199(b)(1) wage limitation of $100 (50% x $200 ($0 of PRS-related W–2 wages +$ 200 of non-PRS W–2 wages)). Accordingly, X’s total section 199 deduction for the 2010 taxable year is $5. Ex ample 4.Small business simplified overall method. A, an individual, and X, a corporation, are partners in PRS. PRS engages in manufacturing ac tivities that generate both DPGR and non-DPGR. A and X share all items of income, gain, loss, de- duction, and credit equally. In the 2010 taxable year, P RS has total gross receipts of $2,000 ($1,000 of which is DPGR), CGS of $800 (including $400 of W–2 wages), and deductions of $800. A and PRS use t he small business simplified overall method under §1.199–4(f). X uses the section 861 method. Under the small business simplified overall method, PRS’s CGS and deductions apportioned to DPGR equal $800 (($800 CGS plus $800 of other deductions) x ($1,000 DPGR/$2,000 totalgross receipts)). Accord- ingly, PRS’s QPAI is $200 ($1,000 DPGR - $800 CGS and other deductions). Under the partnership agreement, PRS’s QPAI is allocated $100 to A and $100toX.A’sshareofpartnership W–2 wages for purposes of the section 199(d)(1)(B) limitation is $18, the lesser of $200 (A’s 50% allocable share of PRS’s $400 of W–2 wages) or $18 (2 x ($100 QPAI x .09)). A’s tentative deduction is $9 ($100 QPAI x .09), subject to the section 199(b)(1) wage limitation of $9 (50% x $18). Assuming that A engages in no other activities generating DPGR, A’s total section 199 deduction for the 2010 taxable year is $9. X must use $100 of QPAI and $18 of W–2 wages to deter mine its section 199 deduction using the section 861 method. (b)S corporations—(1)Determination at shareholder level. The section 199 de- duction is determined at the shareholder level. As a result, each shareholder must compute its deduction separately. For pur- poses of this section, each shareholder is allocated, in accordance with section 1366, itspro ratashare of S corporation items (including items of income, gain, loss, and deduction), CGS allocated to such items of income, and gross receipts included in such items of income, even if the share- holder’s share of CGS and other deduc- tions and losses exceeds DPGR. To de- termine its section 199 deduction for the taxable year, the shareholder generally ag- gregates itspro ratashare of such items, to the extent they are not otherwise disal- lowed by the Internal Revenue Code, with those items it incurs outside the S cor- poration (whether directly or indirectly) for purposes of allocating and apportion- ing deductions to DPGR and computing its QPAI. However, if an S corporation uses the small business simplified over- all method described in §1.199–4(f), then each shareholder is allocated its share of QPAI and W–2 wages, which (subject to the limitation under section 199(d)(1)(B)) are combined with the shareholder’s QPAI and W–2 wages from other sources. Un- der this method, a shareholder’s share of QPAI from an S corporation may be less than zero. (2)Disallowed deductions. Deductions of the S corporation that otherwise would be taken into account in computing the shareholder’s section 199 deduction are taken into account only if and to the ex- tent the shareholder’spro ratashare of the November 21, 200510392005–47 I.R.B. losses or deductions from all of the S cor- poration’s activities are not disallowed by section 465, 469, 1366(d), or any other provision of the Internal Revenue Code. If only a portion of the shareholder’spro ratashare of the losses or deductions is al- lowed for a taxable year, a proportionate share of the losses or deductions allocated to the S corporation’s qualified production activities, determined in a manner consis- tent with sections 465, 469, 1366(d), and any other applicable provision of the In- ternal Revenue Code, is taken into account in computing the section 199 deduction for that taxable year. To the extent that any of the disallowed losses or deductions is allowed in a later taxable year, the share- holder takes into account a proportionate share of those losses or deductions in com- puting its QPAI for that later taxable year. (3)Shareholder’s share of W–2 wages. Under section 199(d)(1)(B), an S corpora- tion shareholder’s share of the W–2 wages of the S corporation for purposes of de- termining the shareholder’s section 199(b) limitation is the lesser of the shareholder’s allocable share of those wages (without re- gard to section 199(d)(1)(B)), or 2 times 9 percent (3 percent for taxable years be- ginning in 2005 or 2006, and 6 percent for taxable years beginning in 2007, 2008, or 2009) of the QPAI computed by taking into account only the items of the S corpo- ration allocated to the shareholder for the taxable year. In general, this QPAI calcula- tion is performed by the shareholder using the same cost allocation method that the shareholder uses in calculating the share- holder’s section 199 deduction. However, if an S corporation uses the small busi- ness simplified overall method described in §1.199–4(f), the QPAI used by each shareholder to determine the wage limi- tation under section 199(d)(1)(B) is the same as the share of QPAI allocated to the shareholder. Each shareholder must compute its share of W–2 wages from an S corporation in accordance with section 199(d)(1)(B) (with W–2 wages being allo- cated to the shareholder in the same man- ner as is wage expense), and then add that share to the shareholder’s W–2 wages from other sources, if any. The application of section 199(d)(1)(B) therefore means that if QPAI, computed by taking into ac- count only the items of the S corporation allocated to the shareholder for the taxable year, is not greater than zero, the share- holder may not take into account any W–2 wages of the S corporation in computing the shareholder’s section 199 deduction. See §1.199–2 for the computation of W–2 wages, and paragraph (f) of this section for rules regarding pass-thru entities in a tiered structure. (c)Grantor trusts. To the extent that the grantor or another person is treated as owning all or part (the owned portion) of a trust under sections 671 through 679, the owner computes its QPAI with respect to the owned portion of the trust as if that QPAI had been generated by activities per- formed directly by the owner. Similarly, for purposes of the section 199(b) wage limitation, the owner of the trust takes into account the owner’s share of the W–2 wages of the trust that are attributable to the owned portion of the trust. The section 199(d)(1)(B) wage limitation is not appli- cable to the owned portion of the trust. (d)Non-grantor trusts and estates—(1) Computation of section 199 deduction. Except as provided in paragraph (c) of this section, solely for purposes of de- termining the section 199 deduction for the taxable year, the QPAI of a trust or estate must be computed by allocating expenses described in section 199(d)(5) under §1.652(b)–3 with respect to directly attributable expenses, and under the sim- plified deduction method of §1.199–4(e) with respect to other expenses described in section 199(d)(5) (unless the trust or es- tate does not qualify to use the simplified deduction method, in which case it must use the section 861 method of §1.199–4(d) with respect to such other expenses). For this purpose, the trust’s or estate’s share of other expenses from a lower-tier pass-thru entity is not directlyattributable to any class of income (whether or not those other expenses are directly attributable to the aggregate pass-thru gross income as a class for purposes other than section 199). A trust or estate may not use the small business simplified overall method for computing its QPAI. See §1.199–4(f)(4). The QPAI (which will be less than zero if the CGS and deductions allocated and apportioned to DPGR exceed the trust’s or estate’s DPGR) and W–2 wages of the trust or estate are allocated to each ben- eficiary and to the trust or estate based on the relative proportion of the trust’s or estate’s distributable net income (DNI), as defined by section 643(a), for the taxable year that is distributed or required to be distributed to the beneficiary or is retained by the trust or estate. To the extent that the trust or estate has no DNI for the tax- able year, any QPAI and W–2 wages are allocated entirely to the trust or estate. A trust or estate may claim the section 199 deduction in computing its taxable income to the extent that QPAI and W–2 wages are allocated to the trust or estate. A ben- eficiary of a trust or estate is allowed the section 199 deduction in computing its taxable income based on its share of QPAI and W–2 wages from the trust or estate, which (subject to the wage limitation of section 199(d)(1)(B)) are aggregated with the beneficiary’s QPAI and W–2 wages from other sources. Each beneficiary must compute its share of W–2 wages from a trust or estate in accordance with section 199(d)(1)(B). The application of section 199(d)(1)(B) therefore means that if QPAI, computed by taking into account only the items of the trust or estate allo- cated to the beneficiary for the taxable year, is not greater than zero, the benefi- ciary may not take into account any W–2 wages of the trust or estate in computing the beneficiary’s section 199 deduction. See paragraph (f) of this section for rules applicable to pass-thru entities in a tiered structure. (2)Example. The following example illustrates the application of this paragraph (d). Assume that the partnership, trust, and trust beneficiary all are calendar year taxpayers. The example is as follows: Example.(i)Computation of DNI and inclusion and deduction amounts.(A)Trust’s distributive share of partnership items.Trust,acomplextrust,is a partner in PRS, a partnership that engages in activ- ities that generate DPGR and non-DPGR. In 2010, PRS distributes $10,000 to Trust. Trust’s distributive share of PRS items, which are properly included in Trust’s DNI, is as follows: 2005–47 I.R.B.1040November 21, 2005 Gross income attributable to DPGR ($15,000 DPGR - $5,000 CGS (including W–2 wages of $1,000)) . . . . . . . .$10,000 Gross income attributable to other gross receipts ($5,000 other gross receipts - $0 CGS). . . . . . . . . . . . . . . . . . . .$5,000 Selling expenses (includes W–2 wages of $2,000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$3,000 Other expense s(includesW–2wagesof$1,000)................................................... $2,000 (B)Trust’s direct activities. In addition to receiv- ing in 2010 the distribution from PRS, Trust also di- rectly has the following items which are properly in- cluded in Trust’s DNI: Dividends.................................................................................. $10,000 Tax-exemptinterest.......................................................................... $10,000 Rentsfromcommercialrealpropertythatissubjecttoasection6166election............................ $10,000 Realestatetaxes............................................................................. $1,000 Trusteecommissions......................................................................... $3,000 Stateincomeandpersonalpropertytaxes......................................................... $5,000 W–2wages ................................................................................ $2,000 Otherbusinessexpenses ...................................................................... $1,000 (C)All ocation of deductions under §1.652(b)–3. (1)Directly attributable expenses. In computing Trust’s DNI for the taxable year, the distributive share of expenses of PRS are directly attributable un- der §1.652(b)–3(a) to the distributive share of income of PRS. Accordingly, the $20,000 of gross receipts from P RS is reduced by $5,000 of CGS, $3,000 of selling expenses, and $2,000 of other expenses, resulting in net income from PRS of $10,000. With resp ect to the Trust’s direct expenses, $1,000 of the trustee commissions, the $1,000 of real estate taxes, and the $2,000 of W–2 wages are directly attributable unde r §1.652(b)–3(a) to the rental income. (2)Non-directly attributable expenses. Under §1.652(b)–3(b), the trustee must allocate a portion of th e sum of the balance of the trustee commissions ($2,000), state income and personal property taxes ($5,000), and the other business expenses ($1,000) to the $10,000 of tax-exempt interest. The portion to be attributed to tax-exempt interest is $2,222 ($8,000 x ($10,000 tax exempt interest/$36,000 gross receipts net of direct expenses)), resulting in $7,778 ($10,000 - $2,222) of net tax-exempt interest. Pursuant to its authority recognized under §1.652(b)–3(b), the tr ustee allocates the entire amount of the remaining $5,778 of trustee commissions, state income and personal property taxes, and other business expenses to the $6,000 of net rental income, resulting in $222 ($6,000 - $5,778) of net rental income. (D)Amounts included in taxable income.For 20 10, Trust has DNI of $28,000 (net dividend in- come of $10,000 + net PRS income of $10,000 + net rental income of $222 + net tax-exempt income of $ 7,778). Pursuant to Trust’s governing instrument, Trustee distributes 50%, or $14,000, of that DNI to B, an individual who is a discretionary beneficiary of T rust. Assume that there are no separate shares un- der Trust, and no distributions are made to any other beneficiary that year. Consequently, with respect to the $14,000 distribution, B properly includes in B’s gross income $5,000 of income from PRS, $111 of rents, and $5,000 of dividends, and properly excludes from B’s gross income $3,889 of tax-exempt interest. Trust includes $20,222 in its adjusted total income and deducts $10,111 under section 661(a) in comput- ing its taxable income. (ii)Se ction 199 deduction.(A)Simplified deduc- tion method. For purposes of computing the section 199 deduction for the taxable year, assume Trust quali fies for the simplified deduction method under §1.199–4(e). Determining Trust’s QPAI under the simplified deduction method requires a multi-step appro ach to allocating costs. In step 1, the Trust’s DPGR is first reduced by the Trust’s expenses di- rectly attributable to DPGR under §1.652(b)–3(a). In this step, the $15,000 of DPGR from PRS is reduced by the directly attributable $5,000 of CGS and sell- ing expenses of $3,000. In step 2, Trust allocates its othe r business expenses on the basis of its total gross receipts. In this example,the portion of the trustee commissions not directly attributable to the rental op- era tion, as well as the portion of the state income and personal property taxes not directly attributable to ei- ther the PRS interests or the rental operation, are not tra de or business expenses and, thus, are ignored in computing QPAI. The portion of the state income and personal property taxes that is treated as other trade or business expenses is $3,000 ($5,000 x $30,000 total trade or business gross receipts/$50,000 total gross receipts). Trust thencombines its non-directly at tributable (other) expenses ($2,000 from PRS + $4,000 ($1,000 + $3,000) from its own activities) and then apportions this total between DPGR and o ther receipts on the basis of Trust’s total gross re- ceipts ($6,000 x $15,000 DPGR/$50,000 total gross receipts = $1,800). Thus, for purposes of computing T rust’s and B’s section 199 deduction, Trust’s QPAI is $5,200 ($7,000 - $1,800). Because the distribution of Trust’s DNI to B equals one-half of Trust’s DNI, T rust and B each has QPAI from PRS for purposes of the section 199 deduction of $2,600. (B)Section 199(d)(1)(B) wage limitation.The wage limitation under section 199(d)(1)(B) must be applied both at the Trust level and at B’s level. Af- ter applying this limitation to the Trust’s share of PRS’s W–2 wages, Trust is allocated $990 of W–2 wages from PRS (the lesser of Trust’s allocable share of PRS’s W–2 wages ($4,000) or 2 x 9% of PRS’s QPAI ($5,500)). PRS’s QPAI for purposes of the sec- tion 199(d)(1)(B) limitation is determined by taking into account only the items of PRS allocated to Trust ($15,000 DPGR - ($5,000 of CGS + $3,000 selling expenses + $1,500 of other expenses). For this pur- pose, t he $1,500 of other expenses is determined by multiplying $2,000 of other expenses from PRS by $15,000 of DPGR from PRS, divided by $20,000 of total gross receipts from PRS. Trust adds this $990 of W–2 wages to Trust’s own $2,000 of W–2 wages (thus, $2,990). Because the $14,000 distribution to B equa ls one-half of Trust’s DNI, Trust and B each has W–2 wages of $1,495. After applying the sec- tion 199(d)(1)(B) wage limitation to B’s share of the W–2 w ages allocated from Trust, B has W–2 wages of $468 from Trust (lesser of $1,495 (allocable share of W–2 wages) or 2 x .09 x $2,600 (Trust’s QPAI)). Bhas W–2 wages of $100 from non-Trust activities for a total of $568 of W–2 wages. (C)Section 199 deduction computation.(1)B’s comp utation. B is eligible to use the small business simplified overall method. Assume that B has suf- ficient adjusted gross income so that the section 199 ded uction is not limited under section 199(a)(1)(B). B has $1,000 of QPAI from non-Trust activities which is added to the $2,600 QPAI from Trust for a total of $ 3,600 of QPAI. B’s tentative deduction is $324 (.09 x $3,600) which is limited under section 199(b) to $284 (50% x $568 W–2 wages). Accordingly, B’s se ction 199 deduction for 2010 is $284. (2)Trust’s computation. Trust has sufficient tax- able income so that the section 199 deduction is not li mited under section 199(a)(1)(B). Trust’s tentative deduction is $234 (.09 x $2,600 QPAI) which is lim- ited under section 199(b) to $748 (50% x $1,495 W–2 wa ges). Accordingly, Trust’s section 199 deduction for 2010 is $234. (e)Gain or loss from the disposition of an interest in a pass-thru entity.DPGR generally does not include gain or loss rec- ognized on the sale, exchange, or other dis- position of an interest in a pass-thru entity. However, with respect to partnerships, if section 751(a) or (b) applies, gain or loss attributable to assets of the partnership giv- ing rise to ordinary income under section 751(a) or (b), the sale, exchange, or other disposition of which would give rise to DPGR, is taken into account in computing November 21, 200510412005–47 I.R.B. the partner’s section 199 deduction. Ac- cordingly, to the extent that money or prop- erty received by a partner in a sale or ex- change for all or part of its partnership in- terest is attributable to unrealized receiv- ables or inventory items within the mean- ing of section 751(c) or (d), respectively, and the sale or exchange of the unrealized receivable or inventory items would give rise to DPGR if sold or exchanged or oth- erwise disposed of by the partnership, the money or property received is taken into account by the partner in determining its DPGR for the taxable year. Likewise, to the extent that a distribution of property to a partner is treated under section 751(b) as a sale or exchange of property between the partnership and the distributee partner, and any property deemed sold or exchanged would give rise to DPGR if sold or ex- changed by the partnership, the deemed sale or exchange of the property must be taken into account in determining the part- nership’s and distributee partner’s DPGR. See §1.751–1(b). (f)Section 199(d)(1)(B) wage limita- tion and tiered structures—(1)In general. If a pass-thru entity owns an interest, di- rectly or indirectly, in one or more pass- thru entities, the wage limitation of section 199(d)(1)(B) must beapplied at each tier (that is, separately for each entity). Thus, at each tier, the owner of a pass-thru en- tity calculates the amounts described in sections 199(d)(1)(B)(i) (allocable share) and 199(d)(1)(B)(ii) (twice the applicable percentage of QPAI from that entity) sep- arately with regard to its interest in that pass-thru entity. (2)Share of W–2 wages. For purposes of section 199(d)(1)(B)(i) and section 199(b), the W–2 wages of the owner of an interest in a pass-thru entity (upper-tier entity) that owns an interest in one or more pass-thru entities (lower-tier entities) are equal to the sum of the owner’s allocable share of W–2 wages of the upper-tier en- tity, as limited in accordance with section 199(d)(1)(B), and the owner’s own W–2 wages. The upper-tier entity’s W–2 wages are equal to the sum of the upper-tier en- tity’s allocable share of W–2 wages of the next lower-tier entity, as limited in accor- dance with section 199(d)(1)(B), and the upper-tier entity’s own W–2 wages. The W–2 wages of each lower-tier entity in a tiered structure, in turn, is computed as described in the preceding sentence. Al- though all wages paid during that taxable year are taken intoaccount in computing QPAI, only the W–2 wages as described in §1.199–2 are taken into account in com- puting the W–2 wage limitation. (3)Example. The following example illustrates the application of this paragraph (f). Assume that each partnership and each partner (whether or not an individual) is a calendar year taxpayer. The example is as follows: Example. (i) In 2010, A, an individual, owns a 50% interest in a partnership, UTP, which in turn owns a 50% interest in another partnership, LTP. All partnership items are allocated in proportion to these ownership percentages. Both partnerships are eligible for and use the small business simplified overall method under §1.199–4(f). LTP has QPAI of $400 ($900 DPGR - $450 CGS (which includes W–2 wages of $100) - $50 other deductions). Before taking into account its distributive share from LTP, UTP has QPAI of ($500) ($500 DPGR - $500 CGS (which includes W–2 wages of $200) - $500 other deductions). UTP’s distributive share of LTP’s QPAI is $200. (ii) UTP’s share of LTP’s W–2 wages for pur- poses of the section 199(d)(1)(B) limitation is $36, the lesser of $50 (UTP’s allocable share of LTP’s W–2 wages paid) or $36 (2 x ($200 QPAI x .09)). Af- ter taking into account its distributive share from LTP, UTP has QPAI of ($300) and W–2 wages of $236. A’s distributive share of UTP’s QPAI is ($150). A’s limi- tation under section 199(d)(1)(B) with respect to A’s interest in UTP is $0, the lesser of $118 (A’s allocable share of UTP’s W–2 wages paid) or $0 (because A’s share of QPAI, ($150), is less than zero). (g)No attribution of qualified activi- ties. Except as provided in §1.199–3(h)(7) regarding certain qualifying oil and gas partnerships and §1.199–3(h)(8) regarding EAG partnerships, for purposes of section 199, an owner of a pass-thru entity is not treated as conducting the qualified produc- tion activities of the pass-thru entity, and vice versa. This rule applies to all part- nerships, including partnerships that have elected out of subchapter K under sec- tion 761(a). Accordingly, if a partnership MPGE QPP within the United States, or otherwise produces a qualified film or util- ities in the United States, and distributes or leases, rents, licenses, sells, exchanges, or otherwise disposes of the property to a partner who then leases, rents, licenses, sells, exchanges, or otherwise disposes of the property, the partner’s gross re- ceipts from this latter lease, rental, license, sale, exchange, or other disposition are not treated as DPGR under §1.199–3. In addition, if a partner MPGE QPP within the United States, or otherwise produces a qualified film or utilities in the United States, and contributes or leases, rents, licenses, sells, exchanges, or otherwise disposes of the property to a partnership which then leases, rents, licenses, sells, exchanges, or otherwise disposes of the property, the partnership’s gross receipts from this latter disposition are not treated as DPGR under §1.199–3. §1.199–6 Agricultural and horticultural cooperatives. (a)In general. This section applies to a cooperative to which Part I of subchap- ter T of the Internal Revenue Code applies and its patrons if the cooperative has man- ufactured, produced, grown, or extracted (MPGE) (as defined in §1.199–3(d)) in whole or significant part (as defined in §1.199–3(f)) within the United States (as defined in §1.199–3(g)) any agricultural or horticultural product, or has marketed agri- cultural or horticultural products. For this purpose, agricultural or horticultural prod- ucts also include fertilizer, diesel fuel, and other supplies used in agricultural or hor- ticultural production. If any amount of a patronage dividend or per-unit retain al- location received by apatron is allocable to the qualified production activities in- come (QPAI) (as defined in §1.199–1(c)) of the cooperative, would be allowable as a deduction under §1.199–1(a) (section 199 deduction) by the cooperative, and is des- ignated as such in a written notice to the patron during the payment period defined under section 1382(d), then such amount is deductible by the patron as a section 199 deduction. For this purpose, patron- age dividends and per-unit retain alloca- tions include any advances on patronage or per-unit retains paid in money during the taxable year. (b)Written notice to patrons.Inor- der for a patron to qualify for the section 199 deduction, paragraph (a) of this sec- tion requires that the cooperative designate in a written notice the amount of the pa- tron’s patronage dividend or per-unit re- tain allocation that is allocable to QPAI and deductible by the cooperative. This written notice designating the patron’s por- tion of the section 199 deduction must be mailed by the cooperative to its patrons no later than the 15 th day of the ninth month following the close of the taxable year. The cooperative may use the same written notice, if any, that it uses to no- 2005–47 I.R.B.1042November 21, 2005 tify patrons of their respective allocations of patronage dividends, or may use a sep- arate timely written notice(s) to comply with this section. The cooperative must report the amount of the patron’s section 199 deduction on Form 1099-PATR, “Tax- able Distributions Received From Cooper- atives,” issued to the patron. (c)Determining cooperative’s qualified production activities income. In determin- ing the portion of the cooperative’s QPAI that would be allowable as a section 199 deduction by the cooperative, the cooper- ative’s taxable income is computed with- out taking into account any deduction al- lowable under section 1382(b) or (c) (re- lating to patronage dividends, per-unit re- tain allocations, and nonpatronage distri- butions) and, in the case of a cooperative engaged in the marketing of agricultural and/or horticultural products, the coopera- tive is treated as having MPGE in whole or in significant part within the United States any agricultural or horticultural products marketed by the cooperative that its pa- trons have MPGE. (d)Additional rules relating to pass-through of section 199 deduction. The cooperative may, at its discretion, pass through all, some, or none of the section 199 deduction to its patrons. A cooperative member of a federated coop- erative may pass through the section 199 deduction it receives from the federated cooperative to its member patrons. Pa- trons may claim the section 199 deduction for the taxable year in which they receive the written notice from the cooperative informing them of the section 199 amount without regard to the taxable income limi- tation under §1.199–1(a) and (b). (e)W–2 wages. The W–2 wage limita- tion described in §1.199–2 shall be applied at the cooperative level whether or not the cooperative chooses to pass through some or all of the section 199 deduction. Any section 199 deduction that has been passed through by a cooperative to its patrons is not subject to the W–2 wage limitation a second time at the patron level. (f)Recapture of section 199 deduction. If the amount of the section 199 deduction that was passed through to patrons exceeds the amount allowable as a section 199 de- duction as determined on audit or reported on the amended return, recapture of the ex- cess will occur at the cooperative level. (g)Section is exclusive. This section is the exclusive method for cooperatives and their patrons to compute the amount of the section 199 deduction. Thus, a patron may not deduct any amount with respect to a patronage dividend or a per-unit retain allocation unless the requirements of this section are satisfied. (h)No double counting. A patronage dividend or per-unit retain allocation re- ceived by a patron of a cooperative is not QPAI in the hands of the patron. (i)Examples. The following examples illustrate the application this section: Example 1. (i) Cooperative X markets corn grown by its members within the United States for sale to retail grocers. For its calendar year ended December 31, 2005, Cooperative X has gross re- ceipts of $1,500,000, all derived from the sale of corn grown by its members. Cooperative X’s W–2 wages for 2005 total $500,000. Cooperative X has no other costs. Patron A is a member of Cooperative X. Patron A is a cash basis taxpayer and files Federal income tax returns on a calendar year basis. All corn grown by Patron A in 2005 is sold through Coopera- tive X and Patron A is eligible to share in patronage dividends paid by Cooperative X for that year. (ii) Cooperative X is an agricultural cooperative described in paragraph (a) of this section. Accord- ingly, this section applies to Cooperative X and its pa- trons and all of Cooperative X’s gross receipts from the sale of its patrons’ corn qualify as domestic pro- duction gross receipts (as defined §1.199–3(a)). Co- operative X’s QPAI under paragraph (c) of this sec- tion is $1,000,000. Cooperative X’s section 199 de- duction for its taxable year 2005 is $30,000 (.03 x $1,000,000). Since this amount is less than 50% of Cooperative X’s W–2 wages, the entire amount is de- ductible. Example 2. (i)ThefactsarethesameasinEx- ample 1except that Cooperative X decides to pass its entire section 199 deduction through to its members. Cooperative X declares a patronage dividend for its 2005 taxable year of $1,000,000, which it pays on March 15, 2006. Pursuant to paragraph (b) of this sec- tion, Cooperative X notifies members in written no- tices which accompany the patronage dividend notifi- cation that it is allocating to them the section 199 de- duction it is entitled to claim in the taxable year 2005. On March 15, 2006, Patron A receives a $10,000 pa- tronage dividend from Cooperative X. In the notice that accompanies the patronage dividend, Patron A is designated a $300 section 199 deduction. Under paragraph (d) of this section, Patron A may claim a $300 section 199 deduction for the taxable year end- ing December 31, 2006, without regard to the taxable income limitation under §1.199–1(a) and (b). Coop- erative X must report the amount of Patron A’s sec- tion 199 deduction on Form 1099-PATR, “Taxable Distributions Received From Cooperative,” issued to the Patron A for the calendar year 2006. (ii) Under section 199(d)(3)(A), Cooperative X is required to reduce its patronage dividend deduction of $1,000,000 by the $30,000 section 199 deduction passed through to members (whether or not Cooper- ative X pays patronage on book or tax net earnings). As a consequence, Cooperative X is entitled to a pa- tronage dividend deduction for the taxable year end- ing December 31, 2005, in the amount of $970,000 ($1,000,000 - $30,000) and to a section 199 deduc- tion in the amount of $30,000 ($1,000,000 x .03). Its taxable income for 2005 is $0. Example 3. (i) The facts are the same as inEx- ample 1except that Cooperative X paid out $500,000 to its patrons as advances on expected patronage net earnings. In 2005, Cooperative X pays its patrons a $500,000 ($1,000,000 - $500,000 already paid) pa- tronage dividend in cash or a combination of cash and qualified written notices of allocation. Under sections 199(d)(3)(A) and 1382, Cooperative X is al- lowed a patronage dividend deduction of $470,000 ($500,000 - $30,000 section 199 deduction), whether patronage net earnings are distributed on book or tax net earnings. (ii) The patrons will havereceived a gross amount of $1,000,000 from Cooperative X ($500,000 paid during the taxable year as advances and the additional $500,000 paid as qualified patronage dividends). If Cooperative X passes through its entire section 199 deduction to its members by providing the notice re- quired by paragraph (b) of this section, the patrons will be allowed a $30,000 section 199 deduction, re- sulting in a net $970,000 taxable distribution from Cooperative X. Pursuant to paragraph (h) of this sec- tion, the $1,000,000 received by the patrons from Co- operative X is not QPAI in the hands of the patrons. §1.199–7 Expanded affiliated groups. (a)In general.Allmembersofanex- panded affiliated group (EAG) are treated as a single corporation for purposes of sec- tion 199. Notwithstanding the preceding sentence, except as otherwise provided in the Internal RevenueCode and regulations (see, for example, sections 199(c)(7) and 267, §1.199–3(b), paragraph (a)(3) of this section, and the consolidated return reg- ulations), each member of an EAG is a separate taxpayer that computes its own taxable income or loss, qualified produc- tion activites income (QPAI) (as defined in §1.199–1(c)), and W–2 wages (as defined in §1.199–2(f)). If members of an EAG are also members of a consolidated group, see paragraph (d) of this section. (1)Definition of expanded affiliated group. An EAG is an affiliated group as defined in section 1504(a), determined by substituting “more than 50 percent” for “at least 80 percent” each place it appears and without regard to section 1504(b)(2) and (4). (2)Identification of members of an ex- panded affiliated group—(i)In general.A corporation must determine if it is a mem- ber of an EAG on a daily basis. (ii)Becoming or ceasing to be a mem- ber of an expanded affiliated group.If November 21, 200510432005–47 I.R.B. a corporation becomes or ceases to be a member of an EAG, the corporation is treated as becoming or ceasing to be a member of the EAG at the end of the day on which its status as a member changes. (3)Attribution of activities. In general, if a member of an EAG (the disposing member) derives gross receipts (as de- fined in §1.199–3(c)) from the lease, rental, license, sale, exchange, or other disposition (as defined in §1.199–3(h)) ofqualifyingproductionproperty(QPP) (as defined in §1.199–3(i)) that was man- ufactured, produced, grown or extracted (MPGE) (as defined in §1.199–3(d)), in whole or in significant part (as defined in §1.199–3(f)), in the United States (as defined in §1.199–3(g)), a qualifed film (as defined in §1.199–3(j)) that was pro- duced in the United States, or electricity, natural gas, or potable water (as defined in §1.199–3(k)) (collectively, utilities) that was produced in the United States by another member or members of the same EAG, the disposing member is treated as conducting the activities conducted by each other member of the EAG with re- spect to the QPP, qualified film, or utilities in determining whether its gross receipts are domestic production gross receipts (DPGR) (as defined in §1.199–3(a)). However, attribution of activities does not apply for purposes of the construction of real property under §1.199–3(l) or the per- formance of engineering and architectural services under §1.199–3(m). A member of an EAG must engage in a construction activity under §1.199–3(l)(2), provide en- gineering services under §1.199–3(m)(2), or provide architectural services under §1.199–3(m)(3) in order for the member’s gross receipts to be derived from construc- tion, engineering, or architectural services. (4)Examples. The following exam- ples illustrate the application of paragraph (a)(3) of this section: Example 1. Corporations M and N are members of the same EAG. M is engaged solely in the trade or business of manufacturing furniture in the United States that it sells to unrelated persons. N is engaged solely in the trade or business of engraving compa- nies’ names on pens and pencils purchased from un- related persons and then selling the pens and pencils to such companies. If N was not a member of an EAG, its activities would not qualify as MPGE. Ac- cordingly, although M’s sales of the furniture qual- ify as DPGR (assuming all the other requirements of §1.199–3 are met), N’s sales of the engraved pens and pencils do not qualify as DPGR because neither N nor another member of the EAG MPGE the pens and pen- cils. Example 2. For the entire 2006 taxable year, Cor- porations A and B are members of the same EAG. A is engaged solely in the trade or business of man- ufacturing QPP in the United States. A and B each own 45 percent of partnership C and unrelated per- sons own the remaining 10 percent. C is engaged solely in the trade or business of manufacturing the same type of QPP in the United States as A. In 2006, B purchases and then resells the QPP manufactured in 2006 by A and C. B also resells QPP it purchases from unrelated persons. If only B’s activities were considered, B would not qualify for the deduction un- der §1.199–1(a) (section 199 deduction). However, because B is a member of the EAG that includes A, B is treated as conducting A’s manufacturing activities in determining whether B’s gross receipts are DPGR. C is not a member of the EAG and thus C’s MPGE ac- tivities are not attributed to B in determining whether B’s gross receipts are DPGR. Accordingly, B’s gross receipts attributable to itssale of the QPP it purchases from A are DPGR (assuming all the other require- ments of §1.199–3 are met). B’s gross receipts attrib- utable to its sale of the QPP it purchases from C and from the unrelated persons are non-DPGR because no member of the EAG MPGE the QPP. If rather than re- selling the QPP, B rented the QPP it acquired from A to unrelated persons, B’s gross receipts attributable to the rental of the QPP would also be DPGR (assuming all the other requirements of §1.199–3 are met). (5)Anti-avoidance rule. If a transaction between members of an EAG is engaged in or structured with a principal purpose of qualifying for, or increasing the amount of, the section 199 deduction of the EAG or the portion of the section 199 deduction allocated to one or more members of the EAG, adjustments must be made to elim- inate the effect of the transaction on the computation of the section 199 deduction. (b)Computation of expanded affili- ated group’s section 199 deduction—(1) In general. The section 199 deduction for an EAG is determined by aggregating each member’s taxable income or loss, QPAI, and W–2 wages. For this purpose, a member’s QPAI is determined under §1.199–1. For purposes of this determi- nation, a member’s QPAI may be positive or negative. A member’s taxable income or loss and QPAI shall be determined by reference to the member’s methods of accounting. (2)Net operating loss carryovers.In determing the taxable income of an EAG, if a member of an EAG has a net operating loss (NOL) carryback or carryover to the taxable year, then the amount of the NOL used to offset taxable income cannot ex- ceed the taxable income of that member. (c)Allocation of an expanded af- filiated group’s section 199 deduction among members of the expanded affiliated group—(1)In general. An EAG’s sec- tion 199 deduction is allocated among the members of the EAG in proportion to each member’s QPAI regardless of whether the EAG member has taxable income or loss or W–2 wages for the taxable year. For this purpose, if a member has negative QPAI, the QPAI of the member shall be treated as zero. (2)Use of section 199 deduction to cre- ate or increase a net operating loss.Not- withstanding §1.199–1(b), which gener- ally prevents the section 199 deduction from creating or increasing an NOL, if a member of an EAG has some or all of the EAG’s section 199 deduction allocated to it under paragraph (c)(1) of this section and the amount allocated exceeds the mem- ber’s taxable income(determined prior to allocation of the section 199 deduction), the section 199 deduction will create an NOL for the member. Similarly, if a mem- ber of an EAG, prior to the allocation of some or all of the EAG’s section 199 de- duction to the member, has an NOL for the taxable year, the portion of the EAG’s sec- tion 199 deduction allocated to the mem- ber will increase the member’s NOL. (d)Special rules for members of the same consolidated group—(1)Intercom- pany transactions. In the case of an in- tercompany transaction between consoli- dated group members S and B (intercom- pany transaction, S, and B as defined in §1.1502–13(b)(1)), S takes an intercom- pany transaction into account in comput- ingthesection199deductionatthesame time and in the same proportion as S takes into account the income, gain, deduction, or loss from the intercompany transaction under §1.1502–13. (2)Attribution of activities in the con- struction of real property and the perfor- mance of engineering and architectural services. Notwithstanding paragraph (a)(3) of this section, a disposing member (as described in suchparagraph) is treated as conducting the activities conducted by each other member of the consolidated group with respect to the construction of real property under §1.199–3(l) and the performance of engineering and architec- tural services under §1.199–3(m). (3)Application of the simplified de- duction method and the small business simplified overall method. For purposes of applying the simplified deduction method 2005–47 I.R.B.1044November 21, 2005 under §1.199–4(e) and the small busi- ness simplified overall method under §1.199–4(f), a consolidated group deter- mines its QPAI by reference to its mem- bers’ DPGR, non-DPGR, cost of goods sold (CGS), and all other deductions, ex- penses, or losses (deductions), determined on a consolidated basis. (4)Determining the section 199 deduc- tion—(i)Expanded affiliated group con- sists of consolidated group and non-con- solidated group members.IfanEAGin- cludes corporations that are members of the same consolidated group and corpora- tions that are not members of the same con- solidated group, in computing the taxable income of the EAG, the consolidated tax- able income or loss, QPAI, and W–2 wages of the consolidated group, not the separate taxable income or loss, QPAI, and W–2 wages of the members of the consolidated group, are aggregated with the taxable in- come or loss, QPAI, and W–2 wages of the non-consolidated group members. For ex- ample, if A, B, C, S1, and S2 are members ofthesameEAG,andA,S1,andS2are members of the same consolidated group (the A consolidated group), the A consoli- dated group is treated as one member of the EAG. Accordingly, the EAG is considered to have three members, the A consolidated group, B, and C. The consolidated taxable income or loss, QPAI, and W–2 wages of the A consolidated group are aggregated with the taxable income or loss, QPAI, and W–2 wages of B and C in determining the EAG’s section 199 deduction. (ii)Expanded affiliated group consists only of members of a single consolidated group. If all the members of an EAG are members of the same consolidated group, the consolidated group’s section 199 de- duction is determined by reference to the consolidated group’s consolidated taxable income or loss, QPAI, and W–2 wages, not the separate taxable income or loss, QPAI, and W–2 wages of its members. (5)Allocation of the section 199 de- duction of a consolidated group among its members. The section 199 deduction of a consolidated group (or the section 199 de- duction allocated to a consolidated group that is a member of an EAG) must be allocated to the members of the consoli- dated group in proportion to each consol- idated group member’s QPAI, regardless of whether the consolidated group mem- ber has separate taxable income or loss or W–2 wages for the taxable year. For purposes of allocating the section 199 de- duction of a consolidated group among its members, any redetermination of a cor- poration’s receipts from an intercompany transaction as DPGR or non-DPGR or as non-receipts, and anyredetermination of a corporation’s CGS or other deductions from an intercompany transaction as ei- ther allocable to or not allocable to DPGR under §1.1502–13(c)(1)(i) or (c)(4) is not taken into account. Also, for purposes of this allocation, if a consolidated group member has negative QPAI, the QPAI of the member shall be treated as zero. (e)Examples. The following examples illustrate the application of paragraphs (b), (c), and (d) of this section: Example 1. Corporations X and Y are members of the same EAG but are not members of a consolidated group. X and Y each use the section 861 method de- scribed in §1.199–4(d) for allocating and apportion- ing their deductions. X incurs $5,000 in costs in man- ufacturing a machine, all of which are capitalized. X is entitled to a $1,000 depreciation deduction for the machine in the current taxable year. X rents the ma- chine to Y for $1,500. Y uses the machine in man- ufacturing QPP within the United States. Y incurs $1,400 of CGS in manufacturing the QPP. Y sells the QPP to unrelated persons for $7,500. Pursuant to sec- tion 199(c)(7) and §1.199–3(b), X’s rental income is non-DPGR (and its related costs are not attributable to DPGR). Accordingly, Y has $4,600 of QPAI (Y’s $7,500 DPGR received from unrelated persons - Y’s $1,400 CGS allocable to such receipts - Y’s $1,500 of rental expense), X has $0 of QPAI, and the EAG has $4,600 of QPAI. Example 2. The facts are the same as inExample 1except that X and Y are members of the same con- solidated group. Pursuant to section 199(c)(7) and §1.199–3(b), X’s rental income ordinarily would not be DPGR (and its related costs would not be allocable to DPGR). However, because X and Y are members of the same consolidated group, §1.1502–13(c)(1)(i) provides that the separate entity attributes of X’s income or Y’s expenses, or both X’s income and Y’s expenses, may be redetermined in order to produce the same effect as if X and Y were divisions of a single corporation. If X and Y were divisions of a single corporation, X and Y would have QPAI of $5,100 ($7,500 DPGR received from unrelated persons - $1,400 CGS allocable to such receipts - $1,000 depreciation deduction). To obtain this same result for the consolidated group, X’s rental income is recharacterized as DPGR, which results in the consolidated group having $9,000 of DPGR (the sum of Y’s DPGR of $7,500 + X’s DPGR of $1,500) and $3,900 of costs allocable to DPGR (the sum of Y’s $1,400 CGS + Y’s $1,500 rental expense + X’s $1,000 depreciation expense). For purposes of determining how much of the consoli- dated group’s section 199 deduction is allocated to X and Y, pursuant to paragraph (d)(5) of this section, the redetermination of X’s rental income as DPGR under §1.1502–13(c)(1)(i) is not taken into account (X’s costs are considered to be allocable to DPGR because they are allocableto the consolidated group deriving DPGR). Accordingly, for this purpose, X is deemed to have ($1,000) of QPAI (X’s $0 DPGR - X’s $1,000 depreciation deduction). Because X is deemed to have negative QPAI, also pursuant to paragraph (d)(5) of this section, X’s QPAI is treated as zero. Y has $4,600 of QPAI (Y’s $7,500 DPGR - Y’s $1,400 CGS allocable to such receipts - Y’s $1,500 of rental expense). Accordingly, X is allo- cated $0/($0 + $4,600) of the consolidated group’s section 199 deduction andY is allocated $4,600/($0 + $4,600) of the consolidated group’s section 199 deduction. Example 3.(i)Facts. Corporations A and B are the only two members of an EAG but are not members of a consolidated group. A and B each file Federal income tax returns on a calendar year basis. The average annual gross receipts of the EAG are less than or equal to $25,000,000 and A and B each use the simplified deduction method under §1.199–4(e). In 2006, A MPGE televisions within the United States. A has $10,000,000 of DPGR from sales of televisions to unrelated persons and $2,000,000 of DPGR from sales of televisions to B. In addition, A has gross receipts from computer consulting ser- vices with unrelated persons of $3,000,000. A has CGS of $6,000,000. A is able to determine from its books and records that $4,500,000 of its CGS are attributable to televisions sold to unrelated persons and $1,500,000 are attributable to televisions sold to B (see §1.199–4(b)(2)). A has other deductions of $4,000,000. A has no other items of income, gain, or deductions. In 2006, B sells the televisions it pur- chased from A to unrelated persons for $4,100,000 and pays $100,000 for administrative services per- formed in 2006. B has no other items of income, gain, or deductions. (ii)QPAI.(A)A’s QPAI. In order to determine A’s QPAI, A subtracts its $6,000,000 CGS from its $12,000,000 DPGR. Under the simplified deduction method, A then apportions its remaining $4,000,000 of deductions to DPGR in proportion to the ratio of its DPGR to total gross receipts. Thus, of A’s $4,000,000 of deductions, $3,200,000 is apportioned to DPGR ($4,000,000 x $12,000,000/$15,000,000). Accordingly, A’s QPAI is $2,800,000 ($12,000,000 DPGR - $6,000,000 CGS - $3,200,000 deductions apportioned to its DPGR). (B)B’s QPAI. Although B did not MPGE the televisions it sold, pursuant to paragraph (a)(3) of this section, B is treated as conducting A’s MPGE of the televisions in determining whether B’s gross re- ceipts are DPGR. Thus, B has $4,100,000 of DPGR. In order to determine B’s QPAI, B subtracts its $2,000,000 CGS from its $4,100,000 DPGR. Under the simplified deduction method, B then apportions its remaining $100,000 of deductions to DPGR in proportion to the ratio of its DPGR to total gross receipts. Thus, because B has no other gross receipts, all of B’s $100,000 of deductions is apportioned to DPGR ($100,000 x $4,100,000/$4,100,000). Accordingly, B’s QPAI is $2,000,000 ($4,100,000 DPGR - $2,000,000 CGS - $100,000 deductions apportioned to its DPGR). Example 4.(i)Facts. The facts are the same as inExample 3except that A and B are members of the same consolidated group, B does not sell the televisions purchased from A until 2007, and B’s $100,000 paid for administrative services are paid November 21, 200510452005–47 I.R.B. in 2007 for services performed in 2007. In addition, in 2007, A has $3,000,000 in gross receipts from computer consulting services with unrelated persons and $1,000,000 in related deductions. (ii)Consolidated group’s 2006 QPAI.Thecon- solidated group’s DPGR and total gross receipts in 2006 are $10,000,000 and $13,000,000, respec- tively, because, pursuant to paragraph (d)(1) of this section and §1.1502–13, the sale of the televisions from A to B is not taken into account in 2006. In order to determine the consolidated group’s QPAI, the consolidated group subtracts its $4,500,000 CGS from the televisions sold to unrelated persons from its $10,000,000 DPGR. Under the simplified deduction method, the consolidated group appor- tions its remaining $4,000,000 of deductions to DPGR in proportion to the ratio of its DPGR to total gross receipts. Thus, $3,076,923 ($4,000,000 x $10,000,000/$13,000,000) is allocated to DPGR. Ac- cordingly, the consolidated group’s QPAI for 2006 is $2,423,077 ($10,000,000 DPGR - $4,500,000 CGS - $3,076,923 deductions apportioned to its DPGR). (iii)Allocation of consolidated group’s 2006 sec- tion 199 deduction to its members. Because B’s only activity during 2006 is the purchase of televisions from A, B has no DPGR or deductions and thus, no QPAI, in 2006. Accordingly, the entire section 199 deduction in 2006 for the consolidated group will be allocated to A. (iv)Consolidated group’s 2007 QPAI.Pursuantto paragraph (d)(1) of this section and §1.1502–13(c), A’s sale of televisions to B in 2006 is taken into account in 2007 when B sells the televisions to unre- lated persons. However, because A and B are mem- bers of a consolidated group, §1.1502–13(c)(1)(i) provides that the separate entity attributes of A’s income or B’s expenses, or both A’s income and B’s expenses, may be redetermined in order to produce the same effect as if A and B were divisions of a single corporation. Accordingly, A’s $2,000,000 of gross receipts are redetermined to be non-DPGR and non-receipts and B’s $2,000,000 CGS are redeter- mined to be not allocable to DPGR. Notwithstanding that A’s receipts are redetermined to be non-DPGR and non-receipts, A’s CGS are still considered to be allocable to DPGR because they are allocable to the consolidated group deriving DPGR. Accord- ingly, the consolidated group’s DPGR in 2007 is $4,100,000 from B’s sales of televisions, and its total receipts are $7,100,000 ($4,100,000 DPGR plus $3,000,000 non-DPGR from A’s computer consulting services). To determine the consolidated group’s QPAI, the consolidated group subtracts A’s $1,500,000 CGS from the televisions sold to B from its $4,100,000 DPGR. Under the simplified deduc- tion method, the consolidated group apportions its remaining $1,100,000 of deductions ($1,000,000 from A and $100,000 from B) to DPGR in propor- tion to the consolidated group’s ratio of its DPGR to total gross receipts. Thus, $635,211 ($1,100,000 x $4,100,000/$7,100,000) is allocated to DPGR. Ac- cordingly, the consolidated group’s QPAI for 2007 is $1,964,789 ($4,100,000 DPGR - $1,500,000 CGS - $635,211 deductions apportioned to its DPGR), the same QPAI that would result if A and B were divisions of a single corporation. (v)Allocation of consolidated group’s 2007 sec- tion 199 deduction to its members.(A)A’s QPAI. For purposes of allocating the consolidated group’s section 199 deduction to its members, pursuant to paragraph (d)(5) of this section, the redetermination of A’s $2,000,000 in receipts as non-DPGR and non-receipts is disregarded. Accordingly, for this purpose, A’s DPGR is $2,000,000 (receipts from the sale of televisions to B taken into account in 2007) and its total receipts are $5,000,000 ($2,000,000 DPGR + $3,000,000 non-DPGR from its computer consulting services). In determining A’s QPAI, A subtracts its $1,500,000 CGS from the televisions sold to B from its $2,000,000 DPGR. Under the sim- plified deduction method, A apportions its remaining $1,000,000 of deductions in proportion to the ra- tio of its DPGR to total receipts. Thus, $400,000 ($1,000,000 x $2,000,000/$5,000,000) is allocated to DPGR. Thus, A’s QPAI is $100,000 ($2,000,000 DPGR - $1,500,000 CGS - $400,000 deductions allocated to its DPGR). (B)B’s QPAI. B’s DPGR and its total gross receipts are each $4,100,000. For purposes of allocating the consolidated group’s section 199 de- duction to its members, pursuant to paragraph (d)(5) of this section, the redetermination of B’s $2,000,000 CGS as not allocable to DPGR is disregarded. In determining B’s QPAI, B subtracts its $2,000,000 CGS from the televisions purchased from A from its $4,100,000 DPGR. Under the simplified deduc- tion method, B apportions its remaining $100,000 deductions in proportion to the ratio of its DPGR to total receipts. Thus, all $100,000 ($100,000 x $4,100,000/$4,100,000) is allocated to DPGR. Thus, B’s QPAI is $2,000,000 ($4,100,000 DPGR - $2,000,000 CGS - $100,000 deductions allocated to its DPGR). (C)AllocationtoAandB. Pursuant to para- graph (d)(5) of this section, the consolidated group’s section 199 deduction for 2007 is allo- cated $100,000/($100,000 + $2,000,000) to A and $2,000,000/($100,000 + $2,000,000) to B. Example 5. Corporations S and B are members of the same consolidated group. In 2006, S manu- factures office furniture for B to use in B’s corporate headquarters and S sells the office furniture to B. S and B have no other activities in the taxable year. If S and B were not members of a consolidated group, S’s gross receipts from the sale of the office furniture to B would be DPGR (assuming all the other requirements of §1.199–3 are met) and S’s CGS or other deduc- tions, expenses, or losses from the sale to B would be allocable to S’s DPGR. However, because S and B are members of a consolidated group, the separate entity attributes of S’s income or B’s expenses, or both S’s income and B’s expenses, may be redetermined un- der §1.1502–13(c)(1)(i) or (c)(4) in order to produce the same effect as if S and B were divisions of a sin- gle corporation. If S and B were divisions of a single corporation, there would be no DPGR with respect to the office furniture because there would be no lease, rental, license, sale, exchange, or other disposition of the furniture by the single corporation (and no CGS or other deductions allocable to DPGR). Thus, in order to produce the same effect as if S and B were divisions of a single corporation, S’s gross receipts are redeter- mined as non-DPGR. Accordingly, the consolidated group has no DPGR (and no CGS or other deductions allocated or apportioned to DPGR) and receives no section 199 deduction in 2006. Example 6. Corporations X, Y, and Z are mem- bers of the same EAG but are not members of a con- solidated group. X, Y, and Z each files Federal in- come tax returns on a calendar year basis. Assume thattheEAGhasW–2wagesinexcessofthesec- tion 199(b) wage limitation. Prior to 2006, X had no taxable income or loss. In 2006, X has $0 of taxable income and $2,000 of QPAI, Y has $4,000 of taxable income and $3,000 of QPAI, and Z has $4,000 of taxable income and $5,000 of QPAI. Ac- cordingly, the EAG has taxable income of $8,000, the sum of X’s taxable income of $0, Y’s taxable in- come of $4,000, and Z’s taxable income of $4,000. The EAG has QPAI of $10,000, the sum of X’s QPAI of $2,000, Y’s QPAI of $3,000, and Z’s QPAI of $5,000. Because X’s, Y’s, and Z’s taxable years all began in 2006, the transition percentage under section 199(a)(2) is 3 percent. Thus, the EAG’s section 199 deduction for 2006 is $240 (3% of the lesser of the EAG’s taxable income of $8,000 or the EAG’s QPAI of $10,000). Pursuant to paragraph (c)(1) of this sec- tion, the $240 section 199 deduction is allocated to X, Y, and Z in proportion to their respective amounts of QPAI, that is $48 to X ($240 x $2,000/$10,000), $72 to Y ($240 x $3,000/$10,000), and $120 to Z ($240 x $5,000/$10,000). Although X’s taxable income for 2006 determined prior to allocation of a portion of the EAG’s section 199 deduction to it was $0, pursuant to paragraph (c)(2) of this section X will have an NOL for 2006 equal to $48. Because X’s NOL for 2006 cannot be carried back to a previous taxable year, X’s NOL carryover to 2007 will be $48. (f)Allocation of income and loss by a corporation that is a member of the ex- panded affiliated group for only a portion of the year—(1)In general. A corporation that becomes or ceases to be a member of an EAG during its taxable year must allo- cate its taxable income or loss, QPAI, and W–2 wages between the portion of the tax- able year that it is a member of the EAG and the portion of the taxable year that it is not a member of the EAG. In general, this allocation of items must be made by using thepro rataallocation method de- scribed in paragraph (f)(1)(i) of this sec- tion. However, a corporation may elect to use the section 199 closing of the books method described in paragraph (f)(1)(ii) of this section. Neither thepro rataallocation method nor the section 199 closing of the books method is a method of accounting. (i)Pro rata allocation method. Under thepro rataallocation method, an equal portion of a corporation’s taxable income or loss, QPAI, and W–2 wages for the tax- able year is assigned to each day of the cor- poration’s taxable year. Those items as- signed to those days that the corporation was a member of the EAG are then aggre- gated. (ii)Section 199 closing of the books method. Under the section 199 closing of the books method, a corporation’s tax- 2005–47 I.R.B.1046November 21, 2005 able income or loss, QPAI, and W–2 wages for the period during which the corpora- tion was a member of an EAG are com- puted by treating the corporation’s taxable year as two separate taxable years, the first of which ends at the close of the day on whichthecorporation’sstatusasamem- ber of the EAG changes and the second of which begins at the beginning of the day after the corporation’s status as a member of the EAG changes. (iii)Making the section 199 closing of the books election. A corporation makes the section 199 closing of the books elec- tion by making the following statement: “The section 199 closing of the books election is hereby made with respect to [insert name of corporation and its em- ployer identification number] with respect to the following periods [insert dates of the two periods between which items are allocated pursuant to the closing of the books method].” The statement must be filed with the corporation’s timely filed (including extensions) Federal income tax return for the taxable year that includes the periods that are subject to the election. Once made, a section 199 closing of the books election is irrevocable. (2)Coordination with rules relat- ing to the allocation of income under §1.1502–76(b). If §1.1502–76(b) (relating to items included in a consolidated return) applies to a corporation that is a member of an EAG, any allocation of items required under this paragraph (f) is made only after the allocation of the corporation’s items pursuant to §1.1502–76(b). (g)Total section 199 deduction for a corporation that is a member of an ex- panded affiliated group for some or all of its taxable year—(1)Member of the same expanded affiliated group for the entire taxable year. If a corporation is a mem- ber of the same EAG for its entire taxable year, the corporation’s section 199 deduc- tion for the taxable year is the amount of the section 199 deduction allocated to the corporation by the EAG under paragraph (c)(1) of this section. (2)Member of the expanded affiliated group for a portion of the taxable year.If a corporation is a member of an EAG only for a portion of its taxable year and is either not a member of any EAG or is a member of another EAG, or both, for another por- tion of the taxable year, the corporation’s section 199 deduction for the taxable year is the sum of its section 199 deductions for each portion of the taxable year. (3)Example. The following example illustrates the application of paragraphs (f) and (g) of this section: Example. Corporations X and Y, calendar year corporations, are members of the same EAG for the entire 2005 taxable year. Corporation Z, also a cal- endar year corporation, is a member of the EAG of which X and Y are members for the first half of 2005 and not a member of any EAG for the second half of 2005. During the 2005 taxable year, Z does not join in the filing of a consolidated return. Z makes a section 199 closing of the books election. As a re- sult, Z has $80 of taxable income and $100 of QPAI that is allocated to the first half of the taxable year and a $150 taxable loss and ($200) of QPAI that is allocated to the second half of the taxable year. Tak- ing into account Z’s taxable income, QPAI, and W–2 wages allocated to the first half of the taxable year pursuant to the section 199 closing of the books elec- tion, the EAG has positive taxable income and QPAI for the taxable year and W–2 wages in excess of the section 199(b) wage limitation. Because the EAG has both positive taxable income and QPAI and sufficient W–2 wages, and because Z has positive QPAI for the first half of the year, a portion of the EAG’s section 199 deduction is allocated to Z. Because Z has nega- tive QPAI for the second half of the year, Z is allowed no section 199 deduction for the second half of the taxable year. Thus, despite the fact that Z has a $70 taxable loss and ($100) of QPAI for the entire 2005 taxable year, Z is entitled to a section 199 deduction for the taxable year equal to the section 199 deduc- tion allocated to Z as a member of the EAG. (h)Computation of section 199 deduc- tion for members of an expanded affiliated group with different taxable years—(1)In general. If members of an EAG have dif- ferent taxable years, in determining the section 199 deduction of a member (the computing member), the computing mem- ber is required to take into account the tax- able income or loss, QPAI, and W–2 wages of each group member that are both— (i) Attributable to the period that the member of the EAG and the computing member are both members of the EAG; and (ii) Taken into account in a taxable year that begins after the effective date of sec- tion 199 and ends with or within the tax- able year of the computing member with respect to which the section 199 deduction is computed. (2)Example. The following example illustrates the application of this paragraph (h): Example. (i) Corporations X, Y, and Z are mem- bers of the same EAG. Neither X, Y, nor Z is a mem- ber of a consolidated group. X and Y are calendar year taxpayers and Z is a June 30 fiscal year taxpayer. Each corporation has taxable income that exceeds its QPAI and has sufficient W–2 wages to avoid the lim- itation under section 199(b). For its taxable year end- ing June 30, 2005, Z’s QPAI is $4,000. For the tax- able year ending December 31, 2005, X’s QPAI is $8,000 and Y’s QPAI is ($6,000). For its taxable year ending June 30, 2006, Z’s QPAI is $2,000. (ii) Because Z’s taxable year ending June 30, 2005, began on July 1, 2004, prior to the effective date of section 199, Z is not allowed a section 199 deduction for its taxable year ending June 30, 2005. (iii) In computing X’s and Y’s respective section 199 deductions for their taxable years ending Decem- ber 31, 2005, Z’s items from its taxable year ending June 30, 2005, are not taken into account because Z’s taxable year began before the effective date of section 199. Instead, only X’s and Y’s taxable in- come, QPAI, and W–2 wages from their respective taxable years ending December 31, 2005, are aggre- gated. The EAG’s QPAI for this purpose is $2,000 (X’s QPAI of $8,000 + Y’s QPAI of ($6,000)). Be- cause the taxable years of the computing members, X and Y, began in 2005, the transition percentage un- der section 199(a)(2) is 3 percent. Accordingly, the EAG’s section 199 deduction is $60 ($2,000 x .03). The $60 deduction is allocated to each of X and Y in proportion to their respective QPAI as a percentage of the QPAI of each member of the EAG that was taken into account in computing the EAG’s section 199 de- duction. Pursuant to paragraph (c)(1) of this section, in allocating the section 199 deduction between X and Y, because Y’s QPAI is negative, Y’s QPAI is treated as being $0. Accordingly, X’s section 199 deduction for its taxable year ending December 31, 2005, is $60 ($60 x $8,000/($8,000 + $0)). Y’s section 199 deduc- tion for its taxable year ending December 31, 2005, is $0 ($60 x $0/($8,000 + $0)). (iv) In computing Z’s section 199 deduction for its taxable year ending June 30, 2006, X’s and Y’s items from their respective taxable years ending De- cember 31, 2005, are taken into account. Therefore, X’s and Y’s taxable income or loss, QPAI, and W–2 wages from their taxable years ending December 31, 2005, are aggregated with Z’s taxable income or loss, QPAI, and W–2 wages from its taxable year ending June 30, 2006. The EAG’s QPAI is $4,000 (X’s QPAI of $8,000 + Y’s QPAI of ($6,000) + Z’s QPAI of $2,000). Because the taxable year of the computing member, Z, began in 2005, the transition percentage under section 199(a)(2) is 3 percent. Accordingly, the EAG’s section 199 deduction is $120 ($4,000 x .03). A portion of the $120 deduction is allocated to Z in proportion to its QPAI as a percentage of the QPAI of each member of the EAG thatwas taken into account in computing the EAG’s section 199 deduction. Pur- suant to paragraph (c)(1) of this section, in allocat- ing a portion of the $120 deduction to Z, because Y’s QPAI is negative, Y’s QPAI is treated as being $0. Z’s section 199 deduction for its taxable year ending June 30, 2006, is $24 ($120 x $2,000/($8,000 + $0 + $2,000)). §1.199–8 Other rules. (a)Individuals. Inthecaseofanin- dividual, the deduction under §1.199–1(a) (section 199 deduction) is equal to the ap- plicable percentage of the lesser of the tax- payer’s qualified production activities in- come (QPAI) (as defined in §1.199–1(c)) November 21, 200510472005–47 I.R.B. for the taxable year, or adjusted gross in- come (AGI) for the taxable year deter- mined after applying sections 86, 135, 137, 219, 221, 222, and 469, and without regard to section 199. (b)Trade or business requirement. Sec- tion 1.199–3 is applied by taking into ac- count only items that are attributable to the actual conduct of a trade or business. (c)Coordination with alternative min- imum tax. For purposes of determin- ing alternative minimum taxable income (AMTI) under section 55, a taxpayer that is not a corporation may deduct an amount equal to 9 percent (3 percent in the case of taxable years beginning in 2005 or 2006, and 6 percent in the case of taxable years beginning in 2007, 2008, or 2009) of the lesser of the taxpayer’s QPAI for the taxable year, or the taxpayer’s taxable income for the taxable year, determined without regard to the section 199 deduc- tion (or in the case of an individual, AGI). For purposes of determining AMTI in the case of a corporation (including a corporation subjectto tax under section 511(a)), a taxpayer may deduct an amount equal to 9 percent (3 percent in the case of taxable years beginning in 2005 or 2006, and 6 percent in the case of taxable years beginning in 2007, 2008, or 2009) of the lesser of the taxpayer’s QPAI for the taxable year, or the taxpayer’s AMTI for the taxable year, determined without regard to the section 199 deduction. For purposes of computing AMTI, QPAI is determined without regard to any adjust- ments under sections 56 through 59. In the case of an individual or a trust, AGI and taxable income are also determined without regard to any adjustments under sections 56 through 59. The amount of the deduction allowable under this paragraph (c) for any taxable year cannot exceed 50 percent of the W–2 wages of the employer for the taxable year (as determined under §1.199–2). (d)Nonrecognition transactions—(1) In general. Except as provided for an ex- panded affiliated group (EAG) (as defined in §1.199–7) and EAG partnerships (as defined in §1.199–3(h)(8)), if property is transferred by the taxpayer to an entity in a transaction to which section 351 or 721 applies, then whether the gross receipts derived by the entity are domestic produc- tion gross receipts (DPGR) (as defined in §1.199–3) shall be determined based on the activities performed by the entity with- out regard to the activities performed by the taxpayer prior to the contribution of the property to the entity. Except as provided in §1.199–3(h)(7) and (8) (exceptions for certain oil and gas partnerships and EAG partnerships), if property is transferred by a partnership to a partner in a transaction to which section 731 applies, then whether gross receipts derived by the partner are DPGR shall be determined based on the activities performed bythe partner without regard to the activities performed by the partnership before the distribution of the property to the partner. (2)Section 1031 exchanges.Ifatax- payer exchanges property for replacement property in a transaction to which section 1031 applies, then whether the gross re- ceipts derived from the lease, rental, li- cense, sale, exchange, or other disposi- tion of the replacement property are DPGR shall be determined based solely on the ac- tivities performed by the taxpayer with re- spect to the replacement property. (3)Section 381 transactions.Ifacorpo- ration (the acquiring corporation) acquires the assets of another corporation (the target corporation) in a transaction to which sec- tion 381(a) applies, the acquiring corpora- tion shall be treated as performing those activities of the target corporation with re- spect to the acquired assets of the target corporation. Therefore, to the extent that the acquired assets of the target corpora- tion would have given rise to DPGR if leased, rented, licensed, sold, exchanged, or otherwise disposed of by the target cor- poration, then the assets will give rise to DPGR if leased, rented, licensed, sold, ex- changed, or otherwise disposed of by the acquiring corporation. (e)Taxpayers with a 52–53 week tax- able year. For purposes of applying §1.441–2(c)(1) in the case of a taxpayer using a 52–53 week taxable year, any ref- erence in section 199(a)(2) (the phase-in rule), §§1.199–1 through 1.199–7, and this section to a taxable year beginning after a particular calendar year means a taxable year beginning after December 31st of that year. Similarly, any reference to a taxable year beginning in a particular calendar year means a taxable year beginning after December 31st of the preceding calendar year. For example, a 52–53 week taxable year that begins on December 26, 2004, is deemed to begin on January 1, 2005, and the transition percentage for that taxable year is 3 percent. (f)Section 481(a) adjustments.For purposes of determining QPAI, a section 481(a) adjustment, whether positive or negative, taken into account during the taxable year that is solely attributable to either gross receipts, cost of goods sold (CGS), or deductions, expenses, or losses (deductions) must be allocated or apportioned in the same manner as the gross receipts, CGS, or deductions to which it is attributable. See §§1.199–1(d), 1.199–4(b), and 1.199–4(c) for rules re- lated to the allocation and apportionment of gross receipts, CGS, and deductions. For example, if a taxpayer changes its method of accounting for inventories from the last-in, first-out (LIFO) method to the first-in, first-out (FIFO) method, the tax- payer is required to allocate the resulting section 481(a) adjustment, whether posi- tive or negative, in the same manner as the CGS computed for the taxable year with respect to those inventories. If a section 481(a) adjustment is not solely attributable to either gross receipts, CGS, or deduc- tions (for example, the taxpayer changes its overall method of accounting from an accrual method to the cash method and the section 481(a) adjustment cannot be specifically identified with either gross receipts, CGS, or deductions), the section 481(a) adjustment, whether positive or negative, must be attributed to, or among, gross receipts, CGS, or deductions using any reasonable method that is satisfactory to the Secretary andallocated or appor- tioned in the same manner as the gross receipts, CGS, or deductions to which it is attributable. Factors taken into considera- tion in determining whether the method is reasonable include whether the taxpayer uses the most accurate information avail- able; the relationship between the section 481(a) adjustment and the apportionment base chosen; the accuracy of the method chosen as compared with other possible methods; and the time, burden, and cost of using various methods. If a section 481(a) adjustment is spread over more than one taxable year, a taxpayer must attribute the section 481(a) adjustment among gross re- ceipts, CGS, or deductions, as applicable, in the same manner for each taxable year within the spread period. For example, if a taxpayer, using a reasonable method, determines that a section 481(a) adjust- 2005–47 I.R.B.1048November 21, 2005 ment that is required to be spread over four taxable years should be attributed entirely to gross receipts, then the taxpayer must attribute the section 481(a) adjustment en- tirely to gross receipts in each of the four taxable years of the spread period. (g)Effective date. The final regulations will be applicable to taxable years begin- ning after December 31, 2004. In the case of pass-thru entities described in §1.199–5, the final regulations will be applicable to taxable years of pass-thru entities begin- ning after December 31, 2004. Until the date final regulations are published in the Federal Register, taxpayers may rely on the interim guidance on section 199 as set forth in Notice 2005–14, 2005–7 I.R.B. 498 (see §601.601(d)(2) of this chapter), as well as the proposed regulations under §§1.199–1 through 1.199–7, and this sec- tion. For this purpose, if the proposed reg- ulations and Notice 2005–14 include dif- ferent rules for the same particular issue, then the taxpayer may rely on either the rule set forth in the proposed regulations or the rule set forth in Notice 2005–14. However, if the proposed regulations in- clude a rule that was not included in No- tice 2005–14, taxpayers are not permitted to rely on the absence of a rule to apply a rule contrary to the proposed regulations. Kevin M. Brown, Acting Deputy Commissioner for Services and Enforcement. (Filed by the Office of the Federal Register on November 3, 2005, 8:45 a.m., and published in the issue of the Federal Register for November 4, 2005, 70 F.R. 67219) November 21, 200510492005–47 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 ef- fect: Amplifieddescribes a situation where no change is being made in a prior pub- lished position, but the prior position is be- ingextendedtoapplytoavariationofthe fact situation set forth therein. Thus, if an earlier ruling held that a principle ap- plied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare withmodi- fied,below). Clarifiedis used in those instances where the language in a prior ruling is be- ing 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. Distinguisheddescribes a situation where a ruling mentions a previously pub- lished ruling and points out an essential difference between them. Modifiedis 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 withamplifiedandclarified, above). Obsoleteddescribes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rul- ings that are obsoleted because of changes in laws or regulations. A ruling may also be obsoleted because the substance has been included in regulations subsequently adopted. Revokeddescribes situations where the position in the previously published ruling is not correct and the correct position is beingstatedinanewruling. Supersededdescribes a situation where the new ruling does nothing more than re- state the substance and situation of a previ- ously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same po- sition published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single rul- ing a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new rul- ing does more than restate the substance of a prior ruling, a combination of terms is used. For example,modifiedandsu- persededdescribes 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 pub- lished ruling is first modified and then, as modified, is superseded. Supplementedis 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 rul- ing has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the ad- ditions, and supersedes all prior rulings in the series. Suspendedis used in rare situations to show that the previous published rul- ings 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 The fol lowing abbreviations in current use and for merly used will appear in material publis hedintheBulletin. A—Individual. Acq.—A cquiescence. B—Individual. BE—Beneficiary. BK—Bank . B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cu mulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Coo perative. Ct.D.—Court Decision. CY—County. D—Decede nt. DC—Dummy Corporation. DE—Donee. Del. Order —Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. E.O.—Executive Order. ER—Emp loyer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduc iary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Fo reign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Fed eral Unemployment Tax Act. FX—Foreign corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grante e. GP—General Partner. GR—Grantor. IC—Insura nce Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—No nacquiescence. O—Organization. P—Parent Corporation. PHC—Persona l Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Pa rtnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Re al Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsi diary. S.P.R.—Statement of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Trans feree. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpay er. TR—Trust. TT—Trustee. U.S.C.—Uni ted States Code. X—Corporation. Y—Corporation. Z—Corporat ion. 2005–47 I.R.B.iNovember 21, 2005 Numerical Finding List 1 Bulletins 2005–27 through 2005–47 Announcements: 2005-46, 2005-27 I.R.B.63 2005-47, 2005-28 I.R.B.71 2005-48, 2005-29 I.R.B.111 2005-49, 2005-29 I.R.B.119 2005-50, 2005-30 I.R.B.152 2005-51, 2005-32 I.R.B.283 2005-52, 2005-31 I.R.B.257 2005-53, 2005-31 I.R.B.258 2005-54, 2005-32 I.R.B.283 2005-55, 2005-33 I.R.B.317 2005-56, 2005-33 I.R.B.318 2005-57, 2005-33 I.R.B.318 2005-58, 2005-33 I.R.B.319 2005-59, 2005-37 I.R.B.524 2005-60, 2005-35 I.R.B.455 2005-61, 2005-36 I.R.B.495 2005-62, 2005-36 I.R.B.495 2005-63, 2005-36 I.R.B.496 2005-64, 2005-37 I.R.B.537 2005-65, 2005-38 I.R.B.587 2005-66, 2005-39 I.R.B.613 2005-67, 2005-40 I.R.B.678 2005-68, 2005-39 I.R.B.613 2005-69, 2005-40 I.R.B.681 2005-70, 2005-40 I.R.B.682 2005-71, 2005-41 I.R.B.714 2005-72, 2005-41 I.R.B.692 2005-73, 2005-41 I.R.B.715 2005-74, 2005-42 I.R.B.764 2005-75, 2005-42 I.R.B.764 2005-76, 2005-42 I.R.B.765 2005-77, 2005-44 I.R.B.855 2005-78, 2005-44 I.R.B.918 2005-79, 2005-45 I.R.B.941 2005-80, 2005-46 I.R.B.967 2005-81, 2005-45 I.R.B.941 2005-82, 2005-45 I.R.B.941 2005-83, 2005-45 I.R.B.941 Notices: 2005-48, 2005-27 I.R.B.9 2005-49, 2005-27 I.R.B.14 2005-50, 2005-27 I.R.B.14 2005-51, 2005-28 I.R.B.74 2005-52, 2005-28 I.R.B.75 2005-53, 2005-32 I.R.B.263 2005-54, 2005-30 I.R.B.127 2005-55, 2005-32 I.R.B.265 2005-56, 2005-32 I.R.B.266 2005-57, 2005-32 I.R.B.267 2005-58, 2005-33 I.R.B.295 Notices— Continued: 2005-59, 2005-35 I.R.B.443 2005-60, 2005-39 I.R.B.606 2005-61, 2005-39 I.R.B.607 2005-62, 2005-35 I.R.B.443 2005-63, 2005-35 I.R.B.448 2005-64, 2005-36 I.R.B.471 2005-65, 2005-39 I.R.B.607 2005-66, 2005-40 I.R.B.620 2005-67, 2005-40 I.R.B.621 2005-68, 2005-40 I.R.B.622 2005-69, 2005-40 I.R.B.622 2005-70, 2005-41 I.R.B.694 2005-71, 2005-44 I.R.B.863 2005-72, 2005-47 I.R.B.976 2005-73, 2005-42 I.R.B.723 2005-74, 2005-42 I.R.B.726 2005-75, 2005-45 I.R.B.929 2005-76, 2005-46 I.R.B.947 2005-77, 2005-46 I.R.B.951 2005-78, 2005-46 I.R.B.952 2005-79, 2005-46 I.R.B.952 2005-80, 2005-46 I.R.B.953 2005-81, 2005-47 I.R.B.977 2005-82, 2005-47 I.R.B.978 2005-84, 2005-46 I.R.B.959 2005-85, 2005-46 I.R.B.961 Proposed Regulations: REG-106030-98, 2005-42 I.R.B.739 REG-144615-02, 2005-40 I.R.B.625 REG-150088-02, 2005-43 I.R.B.774 REG-150091-02, 2005-43 I.R.B.780 REG-131739-03, 2005-36 I.R.B.494 REG-130241-04, 2005-27 I.R.B.18 REG-138362-04, 2005-33 I.R.B.299 REG-138647-04, 2005-41 I.R.B.697 REG-149436-04, 2005-35 I.R.B.454 REG-156518-04, 2005-38 I.R.B.582 REG-158080-04, 2005-43 I.R.B.786 REG-104143-05, 2005-41 I.R.B.708 REG-105847-05, 2005-47 I.R.B.987 REG-111257-05, 2005-42 I.R.B.759 REG-114371-05, 2005-45 I.R.B.930 REG-114444-05, 2005-45 I.R.B.934 REG-121584-05, 2005-37 I.R.B.523 REG-122857-05, 2005-39 I.R.B.609 REG-129782-05, 2005-40 I.R.B.675 REG-133578-05, 2005-39 I.R.B.610 Revenue Procedures: 2005-35, 2005-28 I.R.B.76 2005-36, 2005-28 I.R.B.78 2005-37, 2005-28 I.R.B.79 2005-38, 2005-28 I.R.B.81 2005-39, 2005-28 I.R.B.82 Revenue Procedures— Continued: 2005-40, 2005-28 I.R.B.83 2005-41, 2005-29 I.R.B.90 2005-42, 2005-30 I.R.B.128 2005-43, 2005-29 I.R.B.107 2005-44, 2005-29 I.R.B.110 2005-45, 2005-30 I.R.B.141 2005-46, 2005-30 I.R.B.142 2005-47, 2005-32 I.R.B.269 2005-48, 2005-32 I.R.B.271 2005-49, 2005-31 I.R.B.165 2005-50, 2005-32 I.R.B.272 2005-51, 2005-33 I.R.B.296 2005-52, 2005-34 I.R.B.326 2005-53, 2005-34 I.R.B.339 2005-54, 2005-34 I.R.B.353 2005-55, 2005-34 I.R.B.367 2005-56, 2005-34 I.R.B.383 2005-57, 2005-34 I.R.B.392 2005-58, 2005-34 I.R.B.402 2005-59, 2005-34 I.R.B.412 2005-60, 2005-35 I.R.B.449 2005-61, 2005-37 I.R.B.507 2005-62, 2005-37 I.R.B.507 2005-63, 2005-36 I.R.B.491 2005-64, 2005-36 I.R.B.492 2005-65, 2005-38 I.R.B.564 2005-66, 2005-37 I.R.B.509 2005-67, 2005-42 I.R.B.729 2005-68, 2005-41 I.R.B.694 2005-69, 2005-44 I.R.B.864 2005-70, 2005-47 I.R.B.979 2005-71, 2005-47 I.R.B.985 Revenue Rulings: 2005-38, 2005-27 I.R.B.6 2005-39, 2005-27 I.R.B.1 2005-40, 2005-27 I.R.B.4 2005-41, 2005-28 I.R.B.69 2005-42, 2005-28 I.R.B.67 2005-43, 2005-29 I.R.B.88 2005-44, 2005-29 I.R.B.87 2005-45, 2005-30 I.R.B.123 2005-46, 2005-30 I.R.B.120 2005-47, 2005-32 I.R.B.261 2005-48, 2005-32 I.R.B.259 2005-49, 2005-30 I.R.B.125 2005-50, 2005-30 I.R.B.124 2005-51, 2005-31 I.R.B.163 2005-52, 2005-35 I.R.B.423 2005-53, 2005-35 I.R.B.425 2005-54, 2005-33 I.R.B.289 2005-55, 2005-33 I.R.B.284 2005-56, 2005-35 I.R.B.427 2005-57, 2005-36 I.R.B.466 2005-58, 2005-36 I.R.B.465 1 A cumulative list of all revenue rulings, revenueprocedures, Treasury decisions, etc., publishedin Internal Revenue Bulletins 2005–1 through 2005–26 is in Internal Revenue Bulletin 2005–26, dated June 27, 2005. November 21, 2005ii2005–47 I.R.B. Revenue Rulings— Continued: 2005-59, 2005-37 I.R.B.505 2005-60, 2005-37 I.R.B.502 2005-61, 2005-38 I.R.B.538 2005-62, 2005-38 I.R.B.557 2005-63, 2005-39 I.R.B.603 2005-64, 2005-39 I.R.B.600 2005-65, 2005-41 I.R.B.684 2005-66, 2005-41 I.R.B.686 2005-67, 2005-43 I.R.B.771 2005-68, 2005-44 I.R.B.853 2005-69, 2005-44 I.R.B.852 2005-70, 2005-45 I.R.B.919 2005-71, 2005-45 I.R.B.923 2005-72, 2005-46 I.R.B.944 Social Security Contribution and Benefit Base; Domestic Employee Coverage Threshold: 2005-85, 2005-46 I.R.B.961 Tax Conventions: 2005-47, 2005-28 I.R.B.71 2005-72, 2005-41 I.R.B.692 2005-77, 2005-44 I.R.B.855 Treasury Decisions: 9208, 2005-31 I.R.B.157 9209, 2005-31 I.R.B.153 9210, 2005-33 I.R.B.290 9211, 2005-33 I.R.B.287 9212, 2005-35 I.R.B.429 9213, 2005-35 I.R.B.440 9214, 2005-35 I.R.B.435 9215, 2005-36 I.R.B.468 9216, 2005-36 I.R.B.461 9217, 2005-37 I.R.B.498 9218, 2005-37 I.R.B.503 9219, 2005-38 I.R.B.538 9220, 2005-39 I.R.B.596 9221, 2005-39 I.R.B.604 9222, 2005-40 I.R.B.614 9223, 2005-39 I.R.B.591 9224, 2005-41 I.R.B.688 9225, 2005-42 I.R.B.716 9226, 2005-43 I.R.B.772 9227, 2005-45 I.R.B.924 9228, 2005-47 I.R.B.972 2005–47 I.R.B.iiiNovember 21, 2005 Finding List of Current Actions on Previously Published Items 1 Bulletins 2005–27 through 2005–47 Announcements: 84-26 Obsoleted by REG-149436-04, 2005-35 I.R.B.454 2004-72 Updated and superseded by Ann. 2005-59, 2005-37 I.R.B.524 2005-36 Modified by Rev. Proc. 2005-66, 2005-37 I.R.B.509 2005-53 Corrected by Ann. 2005-61, 2005-36 I.R.B.495 Notices: 89-111 Amplified by Notice 2005-61, 2005-39 I.R.B.607 2001-42 Modified by Rev. Proc. 2005-66, 2005-37 I.R.B.509 2004-57 Superseded by Notice 2005-79, 2005-46 I.R.B.952 2005-4 Modified by Notice 2005-62, 2005-35 I.R.B.443 Notice 2005-80, 2005-46 I.R.B.953 2005-10 Clarified by Notice 2005-64, 2005-36 I.R.B.471 2005-38 Modified by Notice 2005-64, 2005-36 I.R.B.471 2005-51 Modified and superseded by Notice 2005-57, 2005-32 I.R.B.267 2005-60 Superseded by Notice 2005-84, 2005-46 I.R.B.959 2005-66 Supplemented by Notice 2005-81, 2005-47 I.R.B.977 Proposed Regulations: REG-108524-00 Corrected by Ann. 2005-68, 2005-39 I.R.B.613 Proposed Regulations— Continued: REG-142686-01 Withdrawn by Ann. 2005-55, 2005-33 I.R.B.317 REG-100420-03 Corrected by Ann. 2005-57, 2005-33 I.R.B.318 REG-102144-04 Corrected by Ann. 2005-56, 2005-33 I.R.B.318 Revenue Procedures: 64-54 Obsoleted by Rev. Rul. 2005-43, 2005-29 I.R.B.88 66-33 Obsoleted by Rev. Rul. 2005-43, 2005-29 I.R.B.88 69-13 Obsoleted by Rev. Rul. 2005-43, 2005-29 I.R.B.88 70-8 Modified by Rev. Proc. 2005-46, 2005-30 I.R.B.142 71-1 Obsoleted by Rev. Rul. 2005-43, 2005-29 I.R.B.88 72-22 Obsoleted by Rev. Rul. 2005-43, 2005-29 I.R.B.88 83-77 Superseded by Rev. Proc. 2005-63, 2005-36 I.R.B.491 87-8 Obsoleted by Rev. Proc. 2005-44, 2005-29 I.R.B.110 87-9 Obsoleted by Rev. Proc. 2005-44, 2005-29 I.R.B.110 89-20 Superseded by Rev. Proc. 2005-52, 2005-34 I.R.B.326 90–11 Modified by Rev. Proc. 2005-40, 2005-28 I.R.B.83 90-30 Section4supersededby Rev. Proc. 2005-54, 2005-34 I.R.B.353 Section5supersededby Rev. Proc. 2005-55, 2005-34 I.R.B.367 Section6supersededby Rev. Proc. 2005-56, 2005-34 I.R.B.383 Revenue Procedures— Continued: Section7supersededby Rev. Proc. 2005-58, 2005-34 I.R.B.402 Section8supersededby Rev. Proc. 2005-59, 2005-34 I.R.B.412 90-31 Section4supersededby Rev. Proc. 2005-52, 2005-34 I.R.B.326 Section5supersededby Rev. Proc. 2005-54, 2005-34 I.R.B.353 Section6supersededby Rev. Proc. 2005-55, 2005-34 I.R.B.367 Section7supersededby Rev. Proc. 2005-56, 2005-34 I.R.B.383 Section8supersededby Rev. Proc. 2005-58, 2005-34 I.R.B.402 Section9supersededby Rev. Proc. 2005-59, 2005-34 I.R.B.412 93-22 Obsoleted by Rev. Proc. 2005-44, 2005-29 I.R.B.110 98-18 Obsoleted by Rev. Proc. 2005-45, 2005-30 I.R.B.141 99-39 Superseded by Rev. Proc. 2005-60, 2005-35 I.R.B.449 2000-27 Modified and superseded by Rev. Proc. 2005-66, 2005-37 I.R.B.509 2000-31 Superseded by Rev. Proc. 2005-60, 2005-35 I.R.B.449 2000-49 Superseded by Rev. Proc. 2005-41, 2005-29 I.R.B.90 2001-9 Superseded by Rev. Proc. 2005-60, 2005-35 I.R.B.449 2001-16 Superseded by Rev. Proc. 2005-42, 2005-30 I.R.B.128 2002-9 Modified and amplified by Rev. Rul. 2005-42, 2005-28 I.R.B.67 Rev. Proc. 2005-35, 2005-28 I.R.B.76 Rev. Proc. 2005-43, 2005-29 I.R.B.107 Rev. Proc. 2005-47, 2005-32 I.R.B.269 2002-49 Modified, amplified, and superseded by Rev. Proc. 2005-62, 2005-37 I.R.B.507 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2005–1 through 2005–26 is in Internal Revenue Bulletin 2005–26, dated June 27, 2005. November 21, 2005iv2005–47 I.R.B. Revenue Procedures— Continued: 2004-50 Superseded by Rev. Proc. 2005-49, 2005-31 I.R.B.165 2004-54 Superseded by Rev. Proc. 2005-65, 2005-38 I.R.B.564 2004-58 Superseded by Rev. Proc. 2005-69, 2005-44 I.R.B.864 2004-59 Modified by Rev. Proc. 2005-71, 2005-47 I.R.B.985 2004-64 Modified by Ann. 2005-71, 2005-41 I.R.B.714 2005-1 Amplified by Rev. Proc. 2005-68, 2005-41 I.R.B.694 2005-3 Amplified by Rev. Proc. 2005-61, 2005-37 I.R.B.507 Rev. Proc. 2005-68, 2005-41 I.R.B.694 2005-6 Modified by Rev. Proc. 2005-66, 2005-37 I.R.B.509 2005-10 Superseded by Rev. Proc. 2005-67, 2005-42 I.R.B.729 2005-16 Modified by Rev. Proc. 2005-66, 2005-37 I.R.B.509 2005-65 Corrected by Ann. 2005-78, 2005-44 I.R.B.918 Revenue Rulings: 65-109 Obsoleted by Rev. Rul. 2005-43, 2005-29 I.R.B.88 68-549 Obsoleted by Rev. Rul. 2005-43, 2005-29 I.R.B.88 74-203 Revoked by Rev. Rul. 2005-59, 2005-37 I.R.B.505 82-29 Modified and clarified by Rev. Proc. 2005-39, 2005-28 I.R.B.82 2005-41 Corrected by Ann. 2005-50, 2005-30 I.R.B.152 Treasury Decisions: 9149 Removed by T.D. 9221, 2005-39 I.R.B.604 9186 Corrected by Ann. 2005-53, 2005-31 I.R.B.258 9193 Corrected by Ann. 2005-62, 2005-36 I.R.B.495 9205 Corrected by Ann. 2005-63, 2005-36 I.R.B.496 9206 Corrected by Ann. 2005-49, 2005-29 I.R.B.119 9207 Corrected by Ann. 2005-52, 2005-31 I.R.B.257 9210 Corrected by Ann. 2005-64, 2005-37 I.R.B.537 2005–47 I.R.B.vNovember 21, 2005 U.S. GPO: 2005—320–797/20032
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