Internal Revenue Bulletin 2017-33 (PDF rendition): IRS Notices

us-irs-notices-irb-2017-33-pdfInternal Revenue Bulletin 2017-33 (PDF rendition): IRS NoticesGuidance

Preserve advance releases and the authoritative Internal Revenue Bulletin rendition; directory timestamps are file-publication metadata, not legal effective dates. HTML bulletins begin June 2003; earlier available issues require full PDF parsing. Whole bulletin rendition: numbered items are identified below; other legal material and publisher context remain included. This is not a new standalone advance release.

# INTERNAL REVENUE BULLETIN

IRS

## 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

### Action On Decision 2017-06, page 194.

Nonacquiescence relating to the holding that a taxpayer's sale
and acquisition of business property qualifies as a like-kind
exchange under I.R.C. § 1031 even though 17 months before
the purported exchange, an accommodating party facilitating
the transaction acquired title to the replacement property
and the taxpayer acquired the benefits and burdens of owner-
ship of the property.

### T.D. 9822, page 195.

These final regulations provide relief to victims of domestic
abuse and spousal abandonment from the requirement that
married taxpayers file joint returns to obtain a premium tax
credit (PTC). The regulations also address the allocation of
certain amounts for computing the PTC and reconciling ad-
vance payments of the PTC with the allowable PTC, and rules
for self-employed taxpayers claiming both a PTC and a § 162(l)
deduction for health insurance expenses.

### Notice 2017-36, page 208.

This notice announces that the Department of the Treasury and
the Internal Revenue Service intend to amend Treas. Reg.
§ 1.385-2 (the "Documentation Regulations") to apply only to
interests issued or deemed issued on or after January 1,
2019. This amendment has the effect of delaying the applica-
tion of the Documentation Regulations by 12 months. The
notice also requests comments concerning whether the pro-
posed amendment and delay of the application of the Docu-
mentation Regulations affords adequate time for taxpayers to
develop any necessary systems or processes to comply with
the Documentation Regulations.

Bulletin No. 2017-33
August 14, 2017

## EXCISE TAX

### T.D. 9823, page 206.

These final regulations define the term "controlled group" for
purposes of the Affordable Care Act section 9008 Prescription
Drug Fee.

## ADMINISTRATIVE

### Announcement 2017-10, page 210.

Announcement 2017-10 amends Revenue Procedure 2017-
39, 2017-26 I.R.B. 1286 to make the following corrections.
-Section 4.2.2. The correct title is Composite Substitute State-
ments to Recipients for Forms Specified in Sections 4.1.2 and
4.1.3.

-Section 4.2.2. The first paragraph is replaced with the follow-
ing: A composite recipient statement for the forms specified in
Sections 4.1.2 or 4.1.3 is permitted when one filer is reporting
more than one type of payment during a calendar year to the
same form recipient. A composite statement is not allowed for
a combination of forms listed in Sections 4.1.2 and 4.1.3.

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## The IRS Mission

Provide America's taxpayers top-quality service by helping
them understand and meet their tax responsibilities and en-
force the law with integrity and fairness to all.

## Introduction

The Internal Revenue Bulletin is the authoritative instrument of
the Commissioner of Internal Revenue for announcing official
rulings and procedures of the Internal Revenue Service and for
publishing Treasury Decisions, Executive Orders, Tax Conven-
tions, legislation, court decisions, and other items of general
interest. It is published weekly.

It is the policy of the Service to publish in the Bulletin all
substantive rulings necessary to promote a uniform application
of the tax laws, including all rulings that supersede, revoke,
modify, or amend any of those previously published in the
Bulletin. All published rulings apply retroactively unless other-
wise indicated. Procedures relating solely to matters of internal
management are not published; however, statements of inter-
nal 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, identify-
ing details and information of a confidential nature are deleted
to prevent unwarranted invasions of privacy and to comply with
statutory requirements.

Rulings and procedures reported in the Bulletin do not have the
force and effect of Treasury Department Regulations, but they
may be used as precedents. Unpublished rulings will not be
relied on, used, or cited as precedents by Service personnel in
the disposition of other cases. In applying published rulings and
procedures, the effect of subsequent legislation, regulations,
court decisions, rulings, and procedures must be considered,
and Service personnel and others concerned are cautioned

against reaching the same conclusions in other cases unless
the facts and circumstances are substantially the same.

The Bulletin is divided into four parts as follows:

### Part I .- 1986 Code.

This part includes rulings and decisions based on provisions of
the Internal Revenue Code of 1986.

### Part II .- Treaties and Tax Legislation.

This part is divided into two subparts as follows: Subpart A, Tax
Conventions and Other Related Items, and Subpart B, Legisla-
tion 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 part includes notices of proposed rulemakings, disbar-
ment and suspension lists, and announcements.

The last Bulletin for each month includes a cumulative index for
the matters published during the preceding months. These
monthly indexes are cumulated on a semiannual basis, and are
published in the last Bulletin of each semiannual period.

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

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## Actions Relating to Court Decisions

It is the policy of the Internal Revenue
Service to announce at an early date
whether it will follow the holdings in cer-
tain cases. An Action on Decision is the
document making such an announcement.
An Action on Decision will be issued at
the discretion of the Service only on un-
appealed issues decided adverse to the
government. Generally, an Action on De-
cision is issued where its guidance would
be helpful to Service personnel working
with the same or similar issues. Unlike a
Treasury Regulation or a Revenue Ruling,
an Action on Decision is not an affirma-
tive statement of Service position. It is not
intended to serve as public guidance and
may not be cited as precedent.

Actions on Decisions shall be relied
upon within the Service only as conclu-
sions applying the law to the facts in the
particular case at the time the Action on
Decision was issued. Caution should be
exercised in extending the recommenda-

tion of the Action on Decision to similar
cases where the facts are different. More-
over, the recommendation in the Action
on Decision may be superseded by new
legislation, regulations, rulings, cases, or
Actions on Decisions. Prior to 1991, the
Service published acquiescence or nonac-
quiescence only in certain regular Tax
Court opinions. The Service has expanded
its acquiescence program to include other
civil tax cases where guidance is deter-
mined to be helpful. Accordingly, the Ser-
vice now may acquiesce or nonacquiesce
in the holdings of memorandum Tax
Court opinions, as well as those of the
United States District Courts, Claims
Court, and Circuit Courts of Appeal. Re-
gardless of the court deciding the case, the
recommendation of any Action on Deci-
sion will be published in the Internal
Revenue Bulletin.

The recommendation in every Action
on Decision will be summarized as acqui-
escence, acquiescence in result only, or
nonacquiescence. Both "acquiescence"
and "acquiescence in result only" mean
that the Service accepts the holding of the

court in a case and that the Service will
follow it in disposing of cases with the
same controlling facts. However, "acqui-
escence" indicates neither approval nor
disapproval of the reasons assigned by the
court for its conclusions; whereas, "acqui-
escence in result only" indicates disagree-
ment or concern with some or all of those
reasons. "Nonacquiescence" signifies that,
although no further review was sought,
the Service does not agree with the hold-
ing of the court and, generally, will not
follow the decision in disposing of cases
involving other taxpayers. In reference to
an opinion of a circuit court of appeals, a
"nonacquiescence" indicates that the Ser-
vice will not follow the holding on a na-
tionwide basis. However, the Service will
recognize the precedential impact of the
opinion on cases arising within the venue
of the deciding circuit.

The Commissioner does NOT ACQUI-
ESCE in the following decision:

Estate of George H. Bartell, Jr. v.
Commissioner, 147 T.C. 140 (2016).1

1Nonacquiescence relating to the holding that a taxpayer's sale and acquisition of business property qualifies as a like-kind exchange under I.R.C. § 1031 even though 17 months before
the purported exchange, an accommodating party facilitating the transaction acquired title to the replacement property and the taxpayer acquired the benefits and burdens of ownership of
the property.

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

26 CFR 1.36B-2

T.D. 9822
DEPARTMENT OF THE
TREASURY
Internal Revenue Service
26 CFR Part 1

#### Health Insurance Premium Tax Credit

AGENCY: Internal Revenue Service
(IRS), Treasury.

ACTION: Final regulations and removal
of temporary regulations.

SUMMARY: This document contains final
regulations relating to the health insurance
premium tax credit. These regulations affect
individuals who enroll in qualified health
plans through Affordable Insurance Ex-
changes (Exchanges, also called Market-
places) and claim the premium tax credit
and Exchanges that make qualified health
plans available to individuals.

DATES: Effective Date: These regula-
tions are effective on July 24, 2017.

Applicability Date: For applicability
dates, see §§ 1.36B-2(d), 1.36B-3(m),
1.36B-4(c), and 1.162(1)-1(c).

FOR FURTHER INFORMATION CON-
TACT: Suzanne R. Sinno and Stephen J.
Toomey at (202) 317-4718 and Shareen S.
Pflanz at (202) 317-7006 (not toll-free
numbers).

SUPPLEMENTARY INFORMATION:

##### Background

This document contains final regula-
tions that amend the Income Tax Regula-
tions (26 CFR part 1) under section 36B
of the Internal Revenue Code (Code) re-
lating to the health insurance premium tax
credit and under section 162(l) of the Code
relating to the deduction for health insur-
ance costs for self-employed individuals.
The Treasury Department and the IRS pub-
lished final regulations under section 36B
(TD 9590) on May 23, 2012 (77 FR 30385).
These regulations were amended in 2014 by

TD 9663, published on May 7, 2014 (79 FR
26117); in 2015 by TD 9745, published on
December 18, 2015 (80 FR 78974); and in
2016 by TD 9804, published on December
19, 2016 (81 FR 91755).

On July 24, 2014, the Treasury Depart-
ment and the IRS published final and tem-
porary regulations under section 36B and
section 162(l) (TD 9683) in the Federal
Register (79 FR 43622), providing relief
from the joint filing requirement for married
victims of domestic abuse or spousal aban-
donment, the methodology for indexing cer-
tain percentages used in determining the
amount of and eligibility for the premium
tax credit, certain allocation rules for recon-
ciliation of advance credit payments and the
premium tax credit, and guidance on the
deduction for health insurance costs of self-
employed individuals. On the same date, a
notice of proposed rulemaking (REG-
104579-13) cross-referencing the tempo-
rary regulations was published in the Fed-
eral Register (79 FR 43693). Written
comments responding to the proposed reg-
ulations were received. The comments have
been considered in connection with these
final regulations and are available for public
inspection at www.regulations.gov or on re-
quest. No public hearing was requested or
held. After consideration of all the com-
ments, the proposed regulations are adopted
by this Treasury decision, with one techni-
cal correction that was not identified in the
comments.

#### Summary of Comments and Explanation of Provisions

1\. Relief for Married Victims of
Domestic Abuse or Spousal
Abandonment

Section 36B provides a refundable pre-
mium tax credit to help individuals and
families afford health insurance purchased
through an Exchange. To be eligible for a
premium tax credit under section 36B,
section 36B(a) provides that an individual
must be an applicable taxpayer. Section
36B(c)(1) defines an applicable taxpayer
to mean a taxpayer (1) with household
income for the taxable year that equals or
exceeds 100 percent but does not exceed

400 percent of the federal poverty line for
the taxpayer's family size, (2) who may
not be claimed as a dependent by another
taxpayer, and (3) who files a joint return if
married (within the meaning of section
7703).

Section 1.36B-2T(b)(2)(i) provides
that except as provided in § 1.36B-
2T(b)(2)(ii), a married taxpayer is an ap-
plicable taxpayer allowed a premium tax
credit only if the taxpayer files a joint
return with his or her spouse. Under
§ 1.36B-2T(b)(2)(ii), a married taxpayer
satisfies the joint filing requirement if the
taxpayer files a tax return using a filing
status of married filing separately and the
taxpayer (i) is living apart from his or her
spouse at the time the taxpayer files his or
her tax return, (ii) is unable to file a joint
return because the taxpayer is a victim of
domestic abuse or spousal abandonment,
and (iii) certifies on his or her income tax
return in accordance with the relevant
forms and instructions that the taxpayer
meets these criteria for claiming a pre-
mium tax credit using a filing status of
married filing separately. Taxpayers may
not qualify for relief from the joint filing
requirement for a period that exceeds
three consecutive years. See § 1.36B-
2T(b)(2)(v). The preamble to the tempo-
rary regulations included a specific re-
quest for comments on these rules.

#### A. Eligibility criteria

Comments were generally favorable
with respect to the criteria for eligibility
for relief from the married filing jointly
requirement under the temporary regula-
tions. For example, commenters agreed
with the rule in the temporary regulations
that victims of domestic violence are not
required to contact their spouse as a con-
dition for qualifying for relief from the
married filing jointly requirement. Com-
menters also agreed that relief from the
married filing jointly requirement should
be available even if the abuse or abandon-
ment occurs in a taxable year other than
the taxable year for which a taxpayer
seeks relief. A number of commenters re-
quested clarification regarding when a

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taxpayer is considered a victim of spousal
abandonment. The rule in § 1.36B-
2T(b)(2)(iv) of the temporary regulations
provides that a taxpayer is a victim of
spousal abandonment for a taxable year if,
taking into account all of the facts and
circumstances, the taxpayer is unable to
locate his or her spouse after reasonable
diligence. A number of commenters re-
quested that the final regulations include a
definition for the term "reasonable dili-
gence" for spousal abandonment. Other
commenters suggested that the regulations
broaden the "unable to locate" require-
ment for spousal abandonment to situa-
tions in which the spouse can be located
but is uncooperative, poses a threat to the
filing taxpayer, or refuses to grant a di-
vorce to the filing taxpayer.

The final regulations do not provide a
definition of reasonable diligence. The
IRS will take into account all the facts and
circumstances in determining whether a
taxpayer exercised reasonable diligence in
trying to locate his or spouse. A "one size
fits all" definition is not appropriate for
situations involving spousal abandonment
because the facts of each situation are
unique. Providing a definition for reason-
able diligence could have the unintended
consequence of preventing a taxpayer
who merits relief from the married filing
jointly requirement from meeting the rea-
sonable diligence standard solely because
the definition did not contemplate the tax-
payer's particular circumstances.

In addition, the final regulations do not
broaden the "unable to locate" rule to in-
clude situations in which a spouse poses a
threat to the taxpayer claiming relief
because the definition of domestic abuse
in § 1.36B-2T(a)(2)(iii), which includes
psychological or emotional abuse and ef-
forts to intimidate the victim, already
addresses these circumstances. Finally,
relief from the married filing jointly re-
quirement is not suitable for all situations
in which the spouse can be located but is
uncooperative.

#### B. Additional exceptions

Several commenters requested that the
IRS expand circumstances warranting re-
lief from the married filing jointly require-
ment beyond domestic abuse and spousal
abandonment. For instance, some com-

menters suggested that same-sex spouses
who live in states that do not permit di-
vorce for same-sex marriages, spouses liv-
ing abroad, incarcerated spouses, and in-
dividuals who face challenges in filing a
joint return because of their spouse's im-
migration status should also be eligible for
relief from the married filing jointly re-
quirement. Other commenters suggested
that those eligible for relief because they
are victims of domestic abuse or spousal
abandonment should be able to file as
single or head of household, rather than be
limited to filing as married filing sepa-
rately, citing the rules under section 6015
for innocent spouses as support for this
position. Commenters also requested a
one-year exception from the married filing
jointly requirement for individuals who
are separated but have not initiated a legal
separation or divorce or who are in a
long-term separation even if they are not
victims of domestic abuse or spousal
abandonment.

The final regulations do not expand
relief from the married filing jointly re-
quirement beyond domestic abuse and
spousal abandonment. The relief finalized
in these regulations is specifically tailored
to address the limited and unique situa-
tions when the taxpayer is unable to file a
joint return either because the taxpayer
fears for his or her safety or, through no
fault of the victim, can neither file a joint
return because the non-filing spouse can-
not be located nor obtain a divorce or
legal separation because sufficient time
has not lapsed under state law. In contrast,
the circumstances described by the com-
menters do not warrant relief because the
taxpayer is able to file a joint return.

Moreover, because the purposes of the
innocent spouse rules and the rule in
§ 1.36B-2T(a)(2) for victims of domestic
abuse and spousal abandonment are dif-
ferent, using the innocent spouse rules for
domestic abuse or spousal abandonment
victims is not appropriate. The innocent
spouse rules provide relief from joint and
several liability when a joint return is
filed. In contrast, the relief provided in
§ 1.36B-2T(a)(2) allows a married victim
of domestic abuse or spousal abandon-
ment to claim a premium tax credit with-
out filing a joint return. Therefore, be-
cause relief under § 1.36B-2T(a)(2) is
available only for taxpayers who do not

file a joint return, there is no need for the
relief from joint and several liability pro-
vided by the innocent spouse rules.

Commenters also asked that the final
regulations include a rule that would al-
low individuals who are (1) informally
separated and (2) unable to locate their
spouses, unwilling to contact them, or un-
aware of how filing separately could im-
pact their eligibility for advance credit
payments and the premium tax credit, to
take advantage of the relief from the joint
filing requirement for one year. The final
regulations do not adopt this comment.
First, the regulations already include a
rule for taxpayers who cannot file jointly
because the taxpayer is unable to locate
his or her spouse. Further, regarding the
comment about taxpayers being unaware
of how filing separately could impact their
eligibility for advance credit payments
and the premium tax credit, the IRS has
included information on www.irs.gov and
in instructions and publications to alert
taxpayers of the requirement to file jointly
to claim the premium tax credit and of the
available relief for victims of domestic
abuse and spousal abandonment.

One commenter asked that the final
regulations allow temporary relief from
the joint filing requirement for victims of
domestic violence who, when enrolling
for coverage, plan to leave their spouse
but want to have insurance coverage in
place before they leave. Another com-
menter requested that relief from the joint
filing requirement apply to a victim of
domestic abuse who lives with his or her
spouse and whose spouse could, but re-
fuses to, enroll the victim in the spouse's
employer's health coverage.

The relief in the temporary regulations
applies to victims of spousal abuse who
live with their spouse when enrolling in
Marketplace health insurance, but who
live apart from the spouse at the time of
filing their tax return and cannot file a
joint return because of the abuse. Thus, no
additional relief rules are necessary for
victims of domestic violence who are
planning to leave their spouse but want to
enroll in Marketplace coverage.

In addition, the final regulations do not
adopt the suggestion that the relief from
the joint filing requirement be extended to
victims of domestic abuse who are plan-
ning to leave their spouses but have not

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yet done so at the time of filing their tax
return. Only taxpayers who live apart
from their spouse at the time the taxpayer
files his or her tax return should be eligi-
ble to claim relief from the joint return
filing requirement. The underlying basis
of this relief is that while the taxpayer is
technically married, the taxpayer is not
able to file a joint return because they
either fear contact with the spouse or the
spouse cannot be located. In the case of a
victim who lives with the spouse, filing a
joint return is less challenging than if he
or she lives apart from the spouse.

Finally, if a domestic abuse victim
qualifies to use the married filing jointly
exception, the victim is not precluded
from getting a premium tax credit just
because the victim's spouse could have,
but refused to, enroll the victim in the
spouse's employer's health coverage. See
§ 1.36B-2(c)(4)(i), under which a tax-
payer, including a domestic abuse victim,
who uses the married filing separately fil-
ing status is treated as eligible for his or
her spouse's employer's health coverage
only for months that the taxpayer is en-
rolled in the coverage.

#### C. Advance credit payment reconciliation

Under section 1412 of the Affordable
Care Act, Public Law 111-148, 124 Stat.
119 (2010), eligible taxpayers may re-
ceive the benefit of advance credit pay-
ments. Section 36B(f)(1) requires taxpay-
ers who receive the benefit of advance
credit payments for a taxable year to file a
tax return and reconcile the advance credit
payments with the premium tax credit the
taxpayer is allowed for the taxable year.
Under section 36B(f)(2)(A), the taxpay-
er's income tax liability is increased by
the amount that the advance credit pay-
ments for the taxable year exceed the
premium tax credit allowed for the tax-
able year, subject to the repayment lim-
itations in section 36B(f)(2)(B). Section
1.36B-4(b) provides an alternative rule
for reconciling the advance credit pay-
ments with the premium tax credit for
taxpayers who marry during the taxable
year (the year of marriage rule). Specif-
ically, under § 1.36B-4(b)(2), taxpayers
who marry during a taxable year may
compute their excess advance credit

payments (the excess of their advance
credit payments over the premium tax
credit they are allowed) in a manner that
is different from the computation used
by other taxpayers if, in the taxable year
of the marriage, at least one of the
spouses received the benefit of advance
credit payments for one or more months
in the taxable year. This alternative
computation may reduce the amount of
excess advance credit payments the tax-
payers have to repay for the year of
marriage.

Several commenters asked that the fi-
nal regulations allow victims of domestic
abuse or spousal abandonment who re-
ceive advance credit payments under the
assumption that they will file a separate
return, but who reconcile with their
spouses and file a joint return for the tax-
able year, to use the year of marriage rule
(or a rule similar to the year of marriage
rule) to compute their excess advance
credit payments. In particular, the com-
menters noted that these victims of do-
mestic abuse or spousal abandonment risk
having excess advance credit payments
similar to taxpayers who get married dur-
ing the taxable year.

The final regulations do not expand the
year of marriage rule to cover these tax-
payers, nor do they create a similar rule
for victims of domestic abuse or spousal
abandonment who reconcile, because of
the risk of abuse in adding such a rule.
Unlike the date of a marriage, which can
be substantiated, the date on which a mar-
ital reconciliation occurs is often unclear
and difficult to establish both for taxpay-
ers and the IRS. This situation could lead
to taxpayers not within the parameters of
the rule nevertheless using it either be-
cause they do not understand when it ap-
plies or because they want to lower their
excess advance credit repayment and do
not believe the IRS will challenge their
use of the rule. Moreover, these taxpayers
may attempt to use the rule for multiple
years. Finally, in many cases, section
36B(f)(2)(B) limits the tax liability that a
taxpayer incurs from excess advance
credit payments. Thus, the Treasury De-
partment and the IRS think it is appropri-
ate to limit the year of marriage rule to
taxpayers who marry during the taxable
year.

D. Limiting relief to three consecutive
years

Section 1.36B-2T(a)(2)(v) provides
that relief from the married filing jointly
requirement is not available if the tax-
payer satisfied the eligibility require-
ments of § 1.36B-2T(b)(2)(ii) for each
of the three preceding taxable years.
Commenters recommended that this
limitation be removed from the final
regulations. Alternatively, commenters
recommended that the final regulations
provide a "good cause" exception to the
three-year limitation.

Based on IRS data, most taxpayers
who claim relief from the joint filing re-
quirement need that relief for only one
year. Since 2014, the first tax year that
relief from the joint return filing require-
ment was available to victims of domestic
abuse or spousal abandonment, only 0.2 to
0.3 percent of all taxpayers claiming the
premium tax credit requested relief. Fur-
ther, fewer than 3 percent of the individ-
uals who claimed relief in 2014 also
claimed relief in 2015. Given that current
data indicates that so few taxpayers are
claiming relief, and that few of these tax-
payers are requesting relief for more than
one year, the additional two years pro-
vided by the rule in the temporary regu-
lations appears to be sufficient to provide
relief for the small number of taxpayers
who would benefit from relief for more
than one year.

Accordingly, at this time, there does not
appear to be a need to extend the availability
of this relief beyond three consecutive years.
However, the Treasury Department and the
IRS will continue to monitor the data. In the
meantime, comments are requested regard-
ing how the IRS would administer a process
for taxpayers to request relief beyond the
three consecutive years permitted under the
regulations. Specifically, comments are re-
quested regarding when and how a taxpayer
would request a good cause exception and
what standards should apply to determine
whether a taxpayer has demonstrated good
cause.

#### E. Enforcement issues

Commenters raised concerns related to
IRS examinations of taxpayers who obtain
relief. Several commenters said the IRS

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should ensure that taxpayers who use the
relief for domestic abuse or spousal aban-
donment are not subject to audits or pen-
alties solely due to a conflict between their
marital status on their Marketplace health
insurance application (unmarried) and
their filing status on their tax return (mar-
ried filing separately). Pursuant to the
forms and instructions, taxpayers indicate
to the IRS that they are filing their tax
return married filing separately because
they are a victim of domestic abuse or
spousal abandonment by checking the ap-
propriate box on the Form 8962, Pre-
mium Tax Credit. As noted by the
commenters, some Marketplaces, in-
cluding the Federally-facilitated Mar-
ketplace, instruct victims of domestic
violence or spousal abandonment who
intend to use the married filing sepa-
rately filing status on their tax return, to
indicate on their Marketplace applica-
tion that they are unmarried if they want
to receive the benefit of advance credit
payments or cost-sharing reductions.
Under HHS guidance dated July 27,
2015, these individuals are not subject
to a penalty for reporting their marital
status in this manner. See https://www.
cms.gov/CCIIO/Resources/Regulations-
and-Guidance/Downloads/Updated-
Guidance-on-Victims-of-Domestic-Abuse-
and-Spousal-Abandonment_7.pdf. Similarly,
if these individuals then use the married filing
separately status on their tax return, they have
used a permitted filing status and are not sub-
ject to Internal Revenue Code penalties as a
result of their filing status. Thus, these taxpay-
ers will not be subject to a penalty merely
because the marital status on their Marketplace
application is not consistent with the marital
status on their tax return.

Commenters also recommended that
the final regulations describe the support-
ing documentation of domestic abuse that
a taxpayer will need to establish that he or
she was a victim of domestic abuse in case
of an IRS examination of the taxpayer's
return. Publication 974, Premium Tax
Credit, provides examples of documenta-
tion that victims of domestic abuse may
use to substantiate that they qualify for the
relief. Publication 974 also includes sub-
stantiation information for victims of
spousal abandonment. However, these ex-
amples are merely illustrative. As stated in
the regulations, the IRS will consider all

the facts and circumstances in the case of
an examination. As a result, a description
of specific documentation is not included
in the final regulations.

#### F. Enrollment period

Several commenters urged HHS to
provide an open enrollment period if ex-
panded rules for relief are adopted so tax-
payers that are eligible for relief due to
domestic abuse or spousal abandonment
may enroll in a qualified health plan and
get advance credit payments. Commenters
also recommended that taxpayers be al-
lowed a special enrollment period if the
abuse or abandonment occurs during a
taxable year for which the victim had not
enrolled in a qualified health plan prior to
the abuse or abandonment. Other com-
menters suggested that Marketplaces alert
taxpayers on the health insurance applica-
tion of the availability of relief from the
joint filing requirement for victims of do-
mestic abuse or spousal abandonment.

The rules regarding enrollment and
Marketplace health insurance applications
are administered by HHS, and thus these
comments are outside the scope of these
final regulations. However, the Treasury
Department and the IRS will share these
comments with HHS. In addition, taxpay-
ers should refer to HHS guidance that
provides victims of domestic abuse and
spousal abandonment a special enrollment
period to apply for Marketplace coverage.
See 45 CFR 155.420. See also https://
www.cms.gov/CCIIO/Resources/
Regulations-and-Guidance/Downloads/
Updated-Guidance-on-Victims-of-
Domestic-Abuse-and-Spousal-
Abandonment_7.pdf .; https://
marketplace.cms.gov/technical-
assistance-resources/assisting-victims-
of-domestic-violence.PDF.

Commenters requested that the IRS
alert taxpayers regarding the operational
limitations in the Federally-Facilitated
Marketplace that require victims of do-
mestic abuse or spousal abandonment
who intend to file a return separate from
their spouse and claim a premium tax
credit to indicate that they are unmarried
on their health insurance application.
HHS, and not the IRS, regulates the
Federally-Facilitated Marketplace. There-
fore, HHS, and not the IRS, is in the best

position to provide taxpayers with infor-
mation regarding operation of the Market-
place. Moreover, HHS has made available
instructions for taxpayers who, because
they are victims of domestic abuse or
spousal abandonment, intend to use the
married filing separately status on their
tax returns, but still want to have advance
credit payments made for their Market-
place coverage. Thus, no changes to IRS
instructions or other items available to
taxpayers on www.irs.gov are necessary
to address this comment.

#### G. Forms and instructions

Numerous commenters suggested
changes to IRS forms and instructions and
the manner in which the forms and in-
structions should address the married fil-
ing jointly exception for victims of do-
mestic abuse and spousal abandonment.
Most of these suggestions were incorpo-
rated in the forms and instructions after
the temporary regulations were published
and, consequently, are not specifically dis-
cussed in this preamble.

One commenter suggested that taxpay-
ers who are providing a copy of Form
8962 to parties other than the IRS, such as
states when filing state tax returns, be
allowed to omit or redact the married fil-
ing separately exception checkbox when
sending the form to these non-IRS parties.
IRS rules do not affect whether and in
what format taxpayers share their own
taxpayer information with third parties.
Therefore, no change to the form, instruc-
tions, or proposed and temporary regula-
tions is needed to address this comment.

##### 2. Allocations for Reconciliation of Advance Credit Payments and the Premium Tax Credit

Section 36B(f)(1) requires taxpayers
who receive the benefit of advance credit
payments for a taxable year to file a tax
return and reconcile the advance credit
payments with the premium tax credit the
taxpayer is allowed for the taxable year.
Section 1.36B-4T(a)(1)(ii) provides that
a taxpayer must reconcile the advance
credit payments of all members of the
taxpayer's family for the taxable year with
the premium tax credit the taxpayer is
allowed for the taxable year. A taxpayer's

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family includes the taxpayer, the taxpay-
er's spouse, and the taxpayer's depen-
dents. See section 1.36B-1(d). Under sec-
tion 36B(f)(2)(A), the taxpayer's income
tax liability is increased by the amount
that the advance credit payments for the
taxable year exceed the premium tax
credit allowed for the taxable year, subject
to the repayment limitations in section
36B(f)(2)(B).

In some cases, a qualified health plan
covers members of more than one family.
To compute the premium tax credit and
reconcile the advance credit payments
with the premium tax credit allowed in
these cases, each family needs to know the
enrollment premiums, the premiums for
the applicable benchmark plan, and the
advance credit payments allocable to each
family enrolled in the plan.

Section 1.36B-4T provides allocation
rules for situations in which enrollment
premiums, the premiums for the applica-
ble benchmark plan, and advance credit
payments (policy amounts) for a qualified
health plan must be allocated between two
or more families. The temporary regula-
tions provide specific allocation rules de-
pending on whether the situation involves
married individuals who file separately,
formerly married individuals who di-
vorced or separated during the taxable
year, or individuals such as children who
are enrolled in a qualified health plan with
one parent but are claimed as a dependent
by the other parent who is not enrolled in
the plan (a shifting enrollee). The alloca-
tion rules for divorced or separated tax-
payers and for shifting enrollee situations
allow the affected taxpayers to agree on
an allocation percentage. However, if
there is no agreement, divorced or sepa-
rated taxpayers must allocate 50 percent
of the enrollment premiums, applicable
benchmark plan premiums, and advance
credit payments to each of the former
spouses. A taxpayer's default allocation
percentage for shifting enrollee situations
is equal to the number of shifting enroll-
ees claimed as a personal exemption by
the taxpayer divided by the total number
of individuals enrolled by the enrolling
taxpayer in the same qualified health plan
as the shifting enrollee (per capita alloca-
tion). Married taxpayers who do not file a
joint return must allocate 50 percent of the
enrollment premiums and advance credit

payments to each of the spouses, unless
the payments cover a period during which
a qualified health plan covered only one of
the spouses, only one of the spouses and
his or her dependents, or only dependents
of one of the spouses. Finally, the tempo-
rary regulations provide that the premi-
ums for the applicable benchmark plan
must be allocated in situations involving
divorced and separated taxpayers and
shifting enrollees, but not in situations
involving married filing separately tax-
payers.

A commenter recommended that the
allocation rules should be simplified, and,
in particular, not provide different alloca-
tion rules for the various allocation situa-
tions. In addition, the commenter stated
that the applicable benchmark plan pre-
mium should never be allocated. Instead,
the commenter recommended that taxpay-
ers should determine their monthly appli-
cable benchmark plan premium based on
who in their family was, for that month,
enrolled in Marketplace coverage and not
eligible for other minimum essential cov-
erage. Finally, the commenter recom-
mended that the allocation rules should, in
all cases, allow taxpayers with family
members enrolled in the same qualified
health plan to agree to the allocation per-
centages for the policy amounts. If there is
no agreement, the commenter stated that a
per capita allocation should be required in
all allocation situations, not just those in-
volving shifting enrollees.

Because the allocation rules have been
in effect since 2014, the Treasury Depart-
ment and the IRS have determined that, in
the interest of sound tax administration, it
is not appropriate to change the rules in
these final regulations. Thus, the final reg-
ulations do not change the allocation rules
provided in the temporary regulations.
However, future guidance is being consid-
ered to address allocations of policy
amounts, including requiring a per capita
allocation in all allocation situations as
suggested by the commenter.

Another commenter recommended that
because allocating policy amounts is com-
plex, taxpayers should be alerted to the
importance of notifying Marketplaces of
changes in circumstances, which may re-
duce the number of months for which
allocations are required. Currently, the
Form 8962 instructions and Publication

974 include language highlighting the im-
portance of reporting changes in circum-
stances, as does www.irs.gov. In addition,
in various forms of communication, Mar-
ketplaces emphasize the importance of re-
porting changes in circumstances. The
Treasury Department and the IRS will
continue to look for opportunities to re-
mind taxpayers about the importance of
notifying Marketplaces of changes in cir-
cumstances and to simplify the allocation
rules.

#### 3. Correction of Computation of the Limitation Amount for Self-Employed Individuals

Under section 162(l), a taxpayer who is
an employee within the meaning of sec-
tion 401(c)(1) (generally, a self-employed
individual) is allowed a deduction for all
or a portion of the premiums paid by the
taxpayer during the taxable year for health
insurance for the taxpayer, the taxpayer's
spouse, the taxpayer's dependents, and
any child of the taxpayer under the age of
27. Under section 162(l)(2)(A), the sec-
tion 162(l) deduction is limited to the tax-
payer's earned income from the trade or
business, within the meaning of section
401(c), with respect to which the health
insurance plan is established. In addition,
section 280C(g) provides that no deduc-
tion is allowed under section 162(l) for the
portion of premiums for a qualified health
plan equal to the amount of the premium
tax credit determined under section
36B(a) with respect to those premiums.

Section 1.36B-4T(a)(3)(iii) provides
rules for the limitation on the additional
tax under section 36B(f)(2)(B) (the limi-
tation amount) for taxpayers who claim a
section 162(l) deduction for premiums
paid under a qualified health plan. Under
§ 1.36B-4T(a)(3)(iii)(B), the limitation
amount determined under the rules for
taxpayers claiming a section 162(l) deduc-
tion replaces the limitation amount that
would otherwise be determined under the
general rules of § 1.36B-4(a)(3)(ii). Un-
der § 1.36B-4T(a)(3)(iii)(C), for purposes
of determining the limitation amount in
the case of a taxpayer who claims a sec-
tion 162(1) deduction, a taxpayer's house-
hold income is determined by using a sec-
tion 162(l) deduction equal to the sum of
(1) specified premiums not paid through

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advance credit payments, (2) the limita-
tion amount, and (3) any deduction allow-
able under section 162(l) for premiums
other than specified premiums. Specified
premiums are premiums for which the
taxpayer may otherwise claim a deduction
under section 162(l) for a qualified health
plan covering the taxpayer or another
member of the taxpayer's family (enrolled
family member) for a month that a pre-
mium tax credit is allowed for the enrolled
family member's coverage.

The limitation amount computation in
§ 1.36B-4T(a)(3)(iii)(C), however, inad-
vertently omitted a rule for situations in
which a taxpayer's section 162(1) deduc-
tion must, under section 162(l)(2)(A), be
limited to his or her earned income from
the trade or business with respect to
which the health insurance plan is estab-
lished. The final regulations correct this
oversight and clarify that household in-
come for purposes of computing the lim-
itation amount is determined by using a
section 162(l) deduction equal to the
lesser of (1) the sum of the specified pre-
miums for the plan not paid through ad-
vance credit payments, the limitation
amount, and any deduction allowable un-
der section 162(l) for premiums other than
specified premiums, or (2) the earned in-
come from the trade or business with re-
spect to which the health insurance plan is
established.

### Effective/Applicability Date

For applicability dates, see §§ 1.36B-
2(d), 1.36B-3(m), 1.36B-4(c), and
1.162(1)-1(c).

### Special Analyses

Certain IRS regulations, including this
one, are exempt from the requirements of
Executive Order 12866, as supplemented
and reaffirmed by Executive Order 13563.
Therefore, a regulatory impact assessment
is not required. Because the final regula-
tions do not impose a collection of infor-
mation requirement on small entities, the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Internal Revenue
Code, the notice of proposed rulemaking
that preceded the final regulations was
submitted to the Chief Counsel for Advo-
cacy of the Small Business Administra-

tion for comment on its impact on small
business. No comments were received.

### Drafting Information

The principal authors of these final reg-
ulations are Suzanne R. Sinno, Stephen J.
Toomey, and Shareen S. Pflanz of the
Office of the Associate Chief Counsel (In-
come Tax & Accounting).

* * * * *

### 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 1.36B-0 is amended
by:

1\. Adding entries for § 1.36B-2(b)(2)(i),
(ii), (iii), (iv), and (v).

2\. Adding an entry for § 1.36B-2(d).

3\. Adding an entry for § 1.36B-3(m).

4\. Revising the entry for § 1.36B-4(a)(1)(ii)
and adding entries for § 1.36B-4(a)(1)

(ii)(A) and (B), (a)(1)(ii)(B)(1),(2), (3),
(4), and (5), and (a)(1)(ii)(C).

5\. Adding entries for § 1.36B-4(a)(3)(iii)
and § 1.36B-4(a)(3)(iii)(A), (B), (C),
(D), and (E).

6\. Removing the entry for § 1.36B-
4(b)(4).

7\. Redesignating the entry for § 1.36B-
4(b)(5) as § 1.36B-4(b)(4), revising
the newly redesignated entry for
§ 1.36B-4(b)(4), and adding entries
for § 1.36B-4(b)(4)(i) and (ii).

8\. Redesignating the entry for § 1.36B-
4(b)(6) as § 1.36B-4(b)(5).

9\. Adding an entry for § 1.36B-4(c).
The revisions and additions read as
follows:

§ 1.36B-0 Table of contents.

* * * * *

§ 1.36B-2 Eligibility for premium tax
credit.

* * * * *

(b) * * *

(2) * * *

(i) In general.

(ii) Victims of domestic abuse and aban-
donment.

(iii) Domestic abuse.

(iv) Abandonment.

(v) Three-year rule.

* * * * *

(d) Applicability date.
* * * * *

§ 1.36B-3 Computing the premium
assistance credit amount.

* * * * *

(m) Applicability date.
** * * *

§ 1.36B-4 Reconciling the premium tax
credit with advance credit payments.

(a) * * *

(1) * * *

(ii) Allocation rules and responsibility for
advance credit payments.

(A) In general.

(B) Individuals enrolled by a taxpayer
and claimed as a personal exemption de-
duction by another taxpayer.

(1) In general.

(2) Allocation percentage.

(3) Allocating premiums.

(4) Allocating advance credit payments.

(5) Premiums for the applicable bench-
mark plan.

(C) Responsibility for advance credit pay-
ments for an individual for whom no per-
sonal exemption deduction is claimed.

* * * * *

(3) * * *

(iii) Limitation on additional tax for tax-
payers who claim a section 162(l) deduc-
tion for a qualified health plan.

(A) In general.

(B) Determining the limitation amount.

(C) Requirements.

(D) Specified premiums not paid through
advance credit payments.

(E) Examples.

(4) * * *

(b) * * *

(4) Taxpayers filing returns as married
filing separately or head of household.

(i) Allocation of advance credit payments.
(ii) Allocation of premiums.
* * * * *

(c) Applicability date.
* * * * *

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Par. 3. Section 1.36B-2 is amended by:
1\. Revising paragraphs (b)(2) and
(c)(3)(v)(C).

2\. Adding paragraph (d).

The revisions and additions read as fol-
lows:

§ 1.36B-2 Eligibility for premium tax
credit.

* * * * *

(b) * * *

(2) Married taxpayers must file joint
return-(i) In general. Except as provided
in paragraph (b)(2)(ii) of this section, a
taxpayer who is married (within the mean-
ing of section 7703) at the close of the
taxable year is an applicable taxpayer only
if the taxpayer and the taxpayer's spouse
file a joint return for the taxable year.

(ii) Victims of domestic abuse and
abandonment. Except as provided in para-
graph (b)(2)(v) of this section, a married
taxpayer satisfies the joint filing require-
ment of paragraph (b)(2)(i) of this section
if the taxpayer files a tax return using a
filing status of married filing separately
and the taxpayer-

(A) Is living apart from the taxpayer's
spouse at the time the taxpayer files the
tax return;

(B) Is unable to file a joint return be-
cause the taxpayer is a victim of domestic
abuse, as described in paragraph (b)(2)(iii)
of this section, or spousal abandonment,
as described in paragraph (b)(2)(iv) of this
section; and

(C) Certifies on the return, in accor-
dance with the relevant instructions, that
the taxpayer meets the criteria of this
paragraph (b)(2)(ii).

(iii) Domestic abuse. For purposes of
paragraph (b)(2)(ii) of this section, do-
mestic abuse includes physical, psycho-
logical, sexual, or emotional abuse, in-
cluding efforts to control, isolate,
humiliate, and intimidate, or to undermine
the victim's ability to reason indepen-
dently. All the facts and circumstances are
considered in determining whether an in-
dividual is abused, including the effects of
alcohol or drug abuse by the victim's
spouse. Depending on the facts and cir-
cumstances, abuse of the victim's child or
another family member living in the
household may constitute abuse of the
victim.

(iv) Abandonment. For purposes of
paragraph (b)(2)(ii) of this section, a tax-
payer is a victim of spousal abandonment
for a taxable year if, taking into account
all facts and circumstances, the taxpayer is
unable to locate his or her spouse after
reasonable diligence.

(v) Three-year rule. Paragraph (b)(2)
(ii) of this section does not apply if the
taxpayer met the requirements of para-
graph (b)(2)(ii) of this section for each of
the three preceding taxable years.

* * * * *

(c) * * *

(3) * * *

(v) * * *

(C) Required contribution percentage.
The required contribution percentage is
9.5 percent. For plan years beginning in a
calendar year after 2014, the percentage
will be adjusted by the ratio of premium
growth to income growth for the preced-
ing calendar year and may be further ad-
justed to reflect changes to the data used
to compute the ratio of premium growth to
income growth for the 2014 calendar year
or the data sources used to compute the
ratio of premium growth to income
growth. Premium growth and income
growth will be determined under pub-
lished guidance, see § 601.601(d)(2) of
this chapter. In addition, the percentage
may be adjusted for plan years beginning
in a calendar year after 2018 to reflect
rates of premium growth relative to
growth in the consumer price index.
* * * * *

(d) Applicability date. Paragraphs
(b)(2) and (c)(3)(v)(C) of this section ap-
ply to taxable years beginning after De-
cember 31, 2013.

##### § 1.36B-2T [Removed]

Par. 4. Section 1.36B-2T is removed.

Par. 5. Section 1.36B-3 is amended by
revising paragraphs (g)(1) and (m) to read
as follows:

§ 1.36B-3 Computing the premium
assistance credit amount.

** * * *

(g) * * * (1) In general. The applicable
percentage multiplied by a taxpayer's
household income determines the taxpay-
er's annual required share of premiums

for the benchmark plan. The required
share is divided by 12 and this monthly
amount is subtracted from the adjusted
monthly premium for the applicable
benchmark plan when computing the pre-
mium assistance amount. The applicable
percentage is computed by first determin-
ing the percentage that the taxpayer's
household income bears to the Federal
poverty line for the taxpayer's family size.
The resulting Federal poverty line per-
centage is then compared to the income
categories described in the table in para-
graph (g)(2) of this section. An applicable
percentage within an income category in-
creases on a sliding scale in a linear man-
ner and is rounded to the nearest one-
hundredth of one percent. For taxable
years beginning after December 31, 2014,
the applicable percentages in the table will
be adjusted by the ratio of premium growth
to income growth for the preceding calendar
year and may be further adjusted to reflect
changes to the data used to compute the
ratio of premium growth to income growth
for the 2014 calendar year or the data
sources used to compute the ratio of pre-
mium growth to income growth. Premium
growth and income growth will be deter-
mined in accordance with published guid-
ance, see § 601.601(d)(2) of this chapter. In
addition, the applicable percentages in the
table may be adjusted for taxable years be-
ginning after December 31, 2018, to reflect
rates of premium growth relative to growth
in the consumer price index.

* * * * *

(m) Applicability date. Paragraph
(g)(1) of this section applies to taxable
years beginning after December 31, 2013.

§ 1.36B-3T [Removed]

Par. 6. Section 1.36B-3T is removed.

Par. 7. Section 1.36B-4 is amended
by:

1\. Revising paragraphs (a)(1)(ii) and
(a)(3)(iii).

2\. In paragraph (a)(4), revising Exam-
ples 4, 10, 11, 12, 13, 14, and 15.

3\. Revising paragraphs (b)(3) and (4).

4\. In paragraph (b)(5), revising Exam-
ples 9 and 10.

5\. Revising paragraph (c).

The revisions read as follows:

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§ 1.36B-4 Reconciling the premium tax
credit with advance credit payments.

(a) * * *

(1) * * *

(ii) Allocation rules and responsibility
for advance credit payments-(A) In gen-
eral. A taxpayer must reconcile all ad-
vance credit payments for coverage of any
member of the taxpayer's family.

(B) Individuals enrolled by a taxpayer
and claimed as a personal exemption de-
duction by another taxpayer-(1) In gen-
eral. If a taxpayer (the enrolling taxpayer)
enrolls an individual in a qualified health
plan and another taxpayer (the claiming
taxpayer) claims a personal exemption de-
duction for the individual (the shifting en-
rollee), then for purposes of computing
each taxpayer's premium tax credit and
reconciling any advance credit payments,
the enrollment premiums and advance
credit payments for the plan in which the
shifting enrollee was enrolled are allo-
cated under this paragraph (a)(1)(ii)(B)
according to the allocation percentage de-
scribed in paragraph (a)(1)(ii)(B)(2) of
this section. If advance credit payments
are allocated under paragraph (a)(1)(ii)
(B)(4) of this section, the claiming tax-
payer and enrolling taxpayer must use this
same allocation percentage to calculate
their § 1.36B-3(d)(1)(ii) adjusted monthly
premiums for the applicable benchmark
plan (benchmark plan premiums). This
paragraph (a)(1)(ii)(B) does not apply to
amounts allocated under § 1.36B-3(h)
(qualified health plan covering more than
one family) or if the shifting enrollee or
enrollees are the only individuals enrolled
in the qualified health plan. For purposes
of this paragraph (a)(1)(ii)(B)(1), a tax-
payer who is expected at enrollment in a
qualified health plan to be the taxpayer
filing an income tax return for the year of
coverage with respect to an individual en-
rolling in the plan has enrolled that indi-
vidual.

(2) Allocation percentage. The enroll-
ing taxpayer and claiming taxpayer may
agree on any allocation percentage be-
tween zero and one hundred percent. If the
enrolling taxpayer and claiming taxpayer
do not agree on an allocation percentage,
the percentage is equal to the number of
shifting enrollees claimed as a personal
exemption deduction by the claiming tax-

payer divided by the number of individu-
als enrolled by the enrolling taxpayer in
the same qualified health plan as the shift-
ing enrollee.

(3) Allocating premiums. In computing
the premium tax credit, the claiming tax-
payer is allocated a portion of the enroll-
ment premiums for the plan in which the
shifting enrollee was enrolled equal to the
enrollment premiums times the allocation
percentage. The enrolling taxpayer is al-
located the remainder of the enrollment
premiums not allocated to one or more
claiming taxpayers.

(4) Allocating advance credit pay-
ments. In reconciling any advance credit
payments, the claiming taxpayer is allo-
cated a portion of the advance credit pay-
ments for the plan in which the shifting
enrollee was enrolled equal to the enroll-
ing taxpayer's advance credit payments
for the plan times the allocation percent-
age. The enrolling taxpayer is allocated
the remainder of the advance credit pay-
ments not allocated to one or more claim-
ing taxpayers. This paragraph (a)(1)(ii)(B)
(4) only applies in situations in which
advance credit payments are made for
coverage of a shifting enrollee.

(5) Premiums for the applicable bench-
mark plan. If paragraph (a)(1)(ii)(B)(4) of
this section applies, the claiming taxpay-
er's benchmark plan premium is the sum
of the benchmark plan premium for the
claiming taxpayer's coverage family, ex-
cluding the shifting enrollee or enrollees,
and the allocable portion. The allocable
portion for purposes of this paragraph
(a)(1)(ii)(B)(5) is the product of the
benchmark plan premium for the enrolling
taxpayer's coverage family if the shifting
enrollee was a member of the enrolling
taxpayer's coverage family and the allo-
cation percentage. If the enrolling taxpay-
er's coverage family is enrolled in more
than one qualified health plan, the alloca-
ble portion is determined as if the enroll-
ing taxpayer's coverage family includes
only the coverage family members who
enrolled in the same plan as the shifting
enrollee or enrollees. The enrolling tax-
payer's benchmark plan premium is the
benchmark plan premium for the enrolling
taxpayer's coverage family had the shift-
ing enrollee or enrollees remained a part
of the enrolling taxpayer's coverage fam-
ily, minus the allocable portion.

(C) Responsibility for advance credit
payments for an individual for whom no
personal exemption deduction is claimed.
If advance credit payments are made for
coverage of an individual for whom no
taxpayer claims a personal exemption de-
duction, the taxpayer who attested to the
Exchange to the intention to claim a per-
sonal exemption deduction for the indi-
vidual as part of the advance credit
payment eligibility determination for cov-
erage of the individual must reconcile the
advance credit payments.
* * * * *

(3) * * *

(iii) Limitation on additional tax for
taxpayers who claim a section 162(l) de-
duction for a qualified health plan-(A)
In general. A taxpayer who receives ad-
vance credit payments and deducts premi-
ums for a qualified health plan under sec-
tion 162(l) must use paragraph (a)(3)(iii)
(B), and paragraph (a)(3)(iii)(C) or (D), of
this section to determine the limitation
on additional tax in this paragraph (a)(3)
(limitation amount). Taxpayers must
make this determination before calculat-
ing their section 162(l) deduction and pre-
mium tax credit. For additional rules for
taxpayers who may claim a deduction un-
der section 162(l) for a qualified health
plan for which advance credit payments
are made, see § 1.162(1)-1.

(B) Determining the limitation amount.
A taxpayer described in paragraph (a)(3)
(iii)(A) of this section must use the limi-
tation amount for which the taxpayer
qualifies under paragraph (a)(3)(iii)(C) or
(D) of this section. The limitation amount
determined under this paragraph (a)(3)(iii)
replaces the limitation amount that would
otherwise be determined under the addi-
tional tax limitation table in paragraph
(a)(3)(ii) of this section. In applying para-
graph (a)(3)(iii)(C) of this section, a tax-
payer must first determine whether he or
she qualifies for the limitation amount ap-
plicable to taxpayers with household in-
come of less than 200 percent of the Fed-
eral poverty line for the taxpayer's family
size. If the taxpayer does not qualify to
use the limitation amount applicable to
taxpayers with household income of less
than 200 percent of the Federal poverty
line for the taxpayer's family size, the
taxpayer must next determine whether he
or she qualifies for the limitation applica-

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ble to taxpayers with household income of
less than 300 percent of the Federal pov-
erty line for the taxpayer's family size. If
the taxpayer does not qualify to use the
limitation amount applicable to taxpayers
with household income of less than 300
percent of the Federal poverty line for the
taxpayer's family size, the taxpayer must
next determine whether he or she qualifies
for the limitation applicable to taxpayers
with household income of less than 400
percent of the Federal poverty line for the
taxpayer's family size. If the taxpayer does
not qualify to use the limitation amount ap-
plicable to taxpayers with household in-
come of less than 200 percent, 300 percent,
or 400 percent of the Federal poverty line
for the taxpayer's family size, the limitation
on additional tax under section 36B(f)(2)(B)
does not apply to the taxpayer.

(C) Requirements. A taxpayer meets
the requirements of this paragraph (a)(3)
(iii)(C) for a limitation amount if the tax-
payer's household income as a percentage
of the Federal poverty line is less than or
equal to the maximum household income
as a percentage of the Federal poverty line
for which that limitation is available.
Household income for this purpose is de-
termined by using a section 162(l) deduc-
tion equal to the lesser of-

(1) The sum of the specified premiums
for the plan not paid through advance
credit payments, the limitation amount
(determined without regard to paragraph
(a)(1)(iii)(C)(2) of this section), and any
deduction allowable under section 162(l)
for premiums other than specified premi-
ums, and

(2) The earned income from the trade
or business with respect to which the
health insurance plan is established.

(D) Specified premiums not paid
through advance credit payments. For
purposes of paragraph (a)(3)(iii)(C) of
this section, specified premiums not
paid through advance credit payments
means specified premiums, as defined in
§ 1.162(1)-1(a)(2), minus advance credit
payments made with respect to the spec-
ified premiums.

(E) Examples. For examples illustrat-
ing the rules of this paragraph (a)(3)(iii),
see Examples 13, 14, and 15 of paragraph
(a)(4) of this section.

(4) * * *

Example 4. Family size decreases. (i) Taxpayers
B and C are married and have two children, K and L
(ages 17 and 20), whom they claim as dependents in
2013. The Exchange for their rating area projects
their 2014 household income to be $63,388 (275
percent of the Federal poverty line for a family of
four, applicable percentage 8.78). B and C enroll in
a qualified health plan for 2014 that covers the four
family members. The annual premium for the appli-
cable benchmark plan is $14,100. B's and C's ad-
vance credit payments for 2014 are $8,535, com-
puted as follows: benchmark plan premium of
$14,100 less contribution amount of $5,565 (pro-
jected household income of $63,388 × .0878) =
$8,535.

(ii) In 2014, B and C do not claim L as their
dependent (and no taxpayer claims a personal ex-
emption deduction for L). Consequently, B's and C's
family size for 2014 is three, their household income
of $63,388 is 332 percent of the Federal poverty line
for a family of three (applicable percentage 9.5), and
the annual premium for their applicable benchmark
plan is $12,000. Their premium tax credit for 2014 is
$5,978 ($12,000 benchmark plan premium less
$6,022 contribution amount (household income of
$63,388 x .095)). Because B's and C's advance
credit payments for 2014 are $8,535 and their 2014
credit is $5,978, B and C have excess advance pay-
ments of $2,557. B's and C's additional tax liability
for 2014 under paragraph (a)(1) of this section, how-
ever, is limited to $2,500 under paragraph (a)(3) of
this section.

* * * * *

Example 10. Allocation percentage, agreement
on allocation. (i) Taxpayers G and H are divorced
and have two children, J and K. G enrolls herself and
J and K in a qualified health plan for 2014. The
premium for the plan in which G enrolls is $13,000.
The Exchange in G's rating area approves advance
credit payments for G based on a family size of
three, an annual benchmark plan premium of
$12,000, and projected 2014 household income
of $58,590 (300 percent of the Federal poverty line
for a family of three, applicable percentage 9.5). G's
advance credit payments for 2014 are $6,434
($12,000 benchmark plan premium less $5,566 con-
tribution amount (household income of $58,590 ×
.095)). G's actual household income for 2014 is
$58,900.

(ii) K lives with H for more than half of 2014 and
H claims K as a dependent for 2014. G and H agree
to an allocation percentage, as described in para-
graph (a)(1)(ii)(B)(2) of this section, of 20 percent.
Under the agreement, H is allocated 20 percent of the
items to be allocated, and G is allocated the remain-
der of those items.

(iii) If H is eligible for a premium tax credit, H
takes into account $2,600 of the premiums for the
plan in which K was enrolled ($13,000 × .20) and
$2,400 of G's benchmark plan premium ($12,000 ×
.20). In addition, H is responsible for reconciling
$1,287 ($6,434 × .20) of the advance credit pay-
ments for K's coverage.

(iv) G's family size for 2014 includes only G and
J and G's household income of $58,900 is 380 per-
cent of the Federal poverty line for a family of two
(applicable percentage 9.5). G's benchmark plan
premium for 2014 is $9,600 (the benchmark pre-

mium for the plan covering G, J, and K ($12,000),
minus the amount allocated to H ($2,400). Conse-
quently, G's premium tax credit is $4,004 (G's
benchmark plan premium of $9,600 minus G's con-
tribution amount of $5,596 ($58,900 × .095)). G has
an excess advance payment of $1,143 (the excess of
the advance credit payments of $5,147 ($6,434 -
$1,287 allocated to H) over the premium tax credit of
$4,004).

Example 11. Allocation percentage, no agree-
ment on allocation. (i) The facts are the same as in
Example 10 of paragraph (a)(4) of this section, ex-
cept that G and H do not agree on an allocation
percentage. Under paragraph (a)(1)(ii)(B)(2) of this
section, the allocation percentage is 33 percent, com-
puted as follows: the number of shifting enrollees, 1
(K), divided by the number of individuals enrolled
by the enrolling taxpayer on the same qualified
health plan as the shifting enrollee, 3 (G, J, and K).
Thus, H is allocated 33 percent of the items to be
allocated, and G is allocated the remainder of those
items.

(ii) If H is eligible for a premium tax credit, H
takes into account $4,290 of the premiums for the
plan in which K was enrolled ($13,000 × .33). H, in
computing H's benchmark plan premium, must in-
clude $3,960 of G's benchmark plan premium
($12,000 × .33). In addition, H is responsible for
reconciling $2,123 ($6,434 × .33) of the advance
credit payments for K's coverage.

(iii) G's benchmark plan premium for 2014 is
$8,040 (the benchmark premium for the plan cover-
ing G, J, and K ($12,000), minus the amount allo-
cated to H ($3,960). Consequently, G's premium tax
credit is $2,444 (G's benchmark plan premium of
$8,040 minus G's contribution amount of $5,596
($58,900 × .095)). G has an excess advance credit
payment of $1,867 (the excess of the advance credit
payments of $4,311 ($6,434 - $2,123 allocated to H)
over the premium tax credit of $2,444).

Example 12. Allocations for an emancipated
child. Spouses L and M enroll in a qualified health
plan with their child, N. L and M attest that they will
claim N as a dependent and advance credit payments
are made for the coverage of all three family mem-
bers. However, N files his own return and claims a
personal exemption deduction for himself for the
taxable year. Under paragraph (a)(1)(ii)(B)(1) of this
section, L and M are enrolling taxpayers, N is a
claiming taxpayer, and all are subject to the alloca-
tion rules in paragraph (a)(1)(ii)(B) of this section.

Example 13. Taxpayer with advance credit pay-
ments allowed a section 162(l) deduction but not a
limitation on additional tax. (i) In 2014, B, B's
spouse, and their two dependents enroll in the appli-
cable second lowest cost silver plan with an annual
premium of $14,000. B's advance credit payments
attributable to the premiums are $8,000. B is self-
employed for all of 2014 and derives $75,000 of
earnings from B's trade or business. B's household
income without including a deduction under section
162(l) for specified premiums is $103,700. The Fed-
eral poverty line for a family the size of B's family
is $23,550.

(ii) Because B received the benefit of advance
credit payments and deducts premiums for a quali-
fied health plan under section 162(l), B must deter-
mine whether B is allowed a limitation on additional

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tax under paragraph (a)(3)(iii) of this section. B
begins by testing eligibility for the $600 limitation
amount for taxpayers with household income at less
than 200 percent of the Federal poverty line for the
taxpayer's family size. B determines household in-
come as a percentage of the Federal poverty line by
taking a section 162(l) deduction equal to the lesser
of $6,600 (the sum of the amount of premiums not
paid through advance credit payments, $6,000
($14,000- $8,000), and the limitation amount, $600)
and $75,000 (the earned income from the trade or
business with respect to which the health insurance
plan is established). The result is $97,100
($103,700-$6,600) or 412 percent of the Federal
poverty line for B's family size. Since 412 percent is
not less than 200 percent, B may not use a $600
limitation amount.

(iii) B performs the same calculation for the
$1,500 ($103,700 - $7,500 = $96,200 or 408 per-
cent of the Federal poverty line) and $2,500 limita-
tion amounts ($103,700 - $8,500 = $95,200 or 404
percent of the Federal poverty line), the amounts for
taxpayers with household income of less than 300
percent or 400 percent, respectively, of the Federal
poverty line for the taxpayer's family size, and de-
termines that B may not use either of those limitation
amounts. Because B does not meet the requirements
of paragraph (a)(3)(iii) of this section for any of the
limitation amounts in section 36B(f)(2)(B), B is not
eligible for the limitation on additional tax for excess
advance credit payments.

(iv) Although B may not claim a limitation on
additional tax for excess advance credit payments, B
may still be eligible for a premium tax credit. B
would determine eligibility for the premium tax
credit, the amount of the premium tax credit, and the
section 162(l) deduction using the rules under sec-
tion 36B and section 162(l), applying no limitation
on additional tax.

Example 14. Taxpayer with advance credit pay-
ments allowed a section 162(l) deduction and a
limitation on additional tax. (i) The facts are the
same as in Example 13 of paragraph (a)(4) of this
section, except that B's household income without
including a deduction under section 162(l) for spec-
ified premiums is $78,802.

(ii) Because B received the benefit of advance
credit payments and deducts premiums for a quali-
fied health plan under section 162(l), B must deter-
mine whether B is allowed a limitation on additional
tax under paragraph (a)(3)(iii) of this section. B first
determines that B does not meet the requirements of
paragraph (a)(3)(iii)(C) of this section for using the
$600 or $1,500 limitation amounts, the amounts for
taxpayers with household income of less than 200
percent or 300 percent, respectively, of the Federal
poverty line for the taxpayer's family size. That is
because B's household income as a percentage of the
Federal poverty line, determined by using a section
162(l) deduction for premiums for the qualified
health plan equal to the lesser of the sum of the
premiums for the plan not paid through advance
credit payments and the limitation amount, and the
earned income from the trade or business with re-
spect to which the health insurance plan is estab-
lished, is more than the maximum household income
as a percentage of the Federal poverty line for which
that limitation is available (using the $600 limitation,

B's household income would be $72,202 ($78,802 -
($6,000 + $600)), which is 307 percent of the Fed-
eral poverty line for B's family size; and using the
$1,500 limitation, B's household income would be
$71,302 ($78,802 - ($6,000 + $1,500)), which is
303 percent of the Federal poverty line for B's
family size).

(iii) However, B meets the requirements of para-
graph (a)(3)(iii)(C) of this section using the $2,500
limitation amount for taxpayers with household in-
come of less than 400 percent of the Federal poverty
line for the taxpayer's family size. That is because
B's household income as a percentage of the Federal
poverty line by taking a section 162(l) deduction
equal to the lesser of $8,500 (the sum of the amount
of premiums not paid through advance credit pay-
ments, $6,000, and the limitation amount, $2,500)
and $75,000 (the earned income from the trade or
business with respect to which the health insurance
plan is established), is $70,302 (299 percent of the
Federal poverty line), which is below 400 percent of
the Federal poverty line for B's family size, and is
less than the maximum amount for which that limi-
tation is available. Thus, B uses a limitation amount
of $2,500 in computing B's additional tax on excess
advance credit payments.

(iv) B may determine the amount of the premium
tax credit and the section 162(l) deduction using the
rules under section 36B and section 162(l), applying
the $2,500 limitation amount determined above.

Example 15. Taxpayer with advance credit pay-
ments allowed a section 162(l) deduction and a
limitation on additional tax limited to earned income
from trade or business. (i) In 2017, C, C's spouse,
and their two dependents enroll in the applicable
second lowest cost silver plan with an annual pre-
mium of $14,000. C's advance credit payments at-
tributable to the premiums are $8,000. C is self-
employed for all of 2017 and derives $3,000 of
earnings from C's trade or business. C's household
income, without including a deduction under section
162(l) for specified premiums, is $39,100. The Fed-
eral poverty line for a family the size of C's family
is $24,600.

(ii) Because C received the benefit of advance
credit payments and deducts premiums for a quali-
fied health plan under section 162(l), C must deter-
mine whether C is allowed a limitation on additional
tax under paragraph (a)(3)(iii) of this section. C
begins by testing eligibility for the $600 limitation
amount for taxpayers with household income at less
than 200 percent of the Federal poverty line for the
taxpayer's family size. C determines household in-
come as a percentage of the Federal poverty line by
taking a section 162(l) deduction equal to the lesser
of $6,600 (the sum of the amount of premiums not
paid through advance credit payments, $6,000
($14,000 - $8,000), and the limitation amount,
$600), and $3,000 (C's earned income from the trade
or business with respect to which the health insur-
ance plan is established). The result is $36,100
($39,100 - $3,000) or 147 percent of the Federal
poverty line for C's family size. Because 147 percent
is less than 200 percent, the limitation amount under
paragraph (a)(3)(iii) of this section that C uses in
computing C's additional tax on excess advance
credit payments is $600.

(iii) C may determine the amount of the premium
tax credit and the section 162(l) deduction using the
rules under section 36B and section 162(l), applying
the $600 limitation amount determined above.

(b) * * *

(3) Taxpayers not married to each
other at the end of the taxable year. Tax-
payers who are married (within the mean-
ing of section 7703) to each other during a
taxable year but legally separate under a
decree of divorce or of separate mainte-
nance during the taxable year, and who
are enrolled in the same qualified health
plan at any time during the taxable year
must allocate the benchmark plan premi-
ums, the enrollment premiums, and the
advance credit payments for the period
the taxpayers are married during the tax-
able year. Taxpayers must also allocate
these items if one of the taxpayers has a
dependent enrolled in the same plan as the
taxpayer's former spouse or enrolled in
the same plan as a dependent of the tax-
payer's former spouse. The taxpayers may
allocate these items to each former spouse
in any proportion but must allocate all
items in the same proportion. If the tax-
payers do not agree on an allocation that is
reported to the IRS in accordance with the
relevant forms and instructions, 50 per-
cent of: the benchmark plan premiums;
the enrollment premiums; and the advance
credit payments for the married period, is
allocated to each taxpayer. If for a period
a plan covers only one of the taxpayers
and no dependents, only one of the tax-
payers and one or more dependents of that
same taxpayer, or only one or more de-
pendents of one of the taxpayers, then the
benchmark plan premiums, the enrollment
premiums, and the advance credit pay-
ments for that period are allocated entirely
to that taxpayer.

(4) Taxpayers filing returns as married
filing separately or head of household-
(i) Allocation of advance credit payments.
Except as provided in § 1.36B-2(b)(2)(ii),
the premium tax credit is allowed to mar-
ried (within the meaning of section 7703)
taxpayers only if they file joint returns.
See § 1.36B-2(b)(2)(i). Taxpayers who
receive advance credit payments as mar-
ried taxpayers and who do not file a joint
return must allocate the advance credit
payments for coverage under a qualified
health plan equally to each taxpayer for
any period the plan covers and in which
advance credit payments are made for

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both taxpayers, only one of the taxpayers
and one or more dependents of the other
taxpayer, or one or more dependents of
both taxpayers. If, for a period a plan
covers, advance credit payments are made
for only one of the taxpayers and no de-
pendents, only one of the taxpayers and
one or more dependents of that same tax-
payer, or only one or more dependents of
one of the taxpayers, the advance credit
payments for that period are allocated en-
tirely to that taxpayer. If one or both of the
taxpayers is an applicable taxpayer eligi-
ble for a premium tax credit for the tax-
able year, the premium tax credit is
computed by allocating the enrollment
premiums under paragraph (b)(4)(ii) of
this section. The repayment limitation de-
scribed in paragraph (a)(3) of this section
applies to each taxpayer based on the
household income and family size re-
ported on that taxpayer's return. This
paragraph (b)(4) also applies to taxpayers
who receive advance credit payments as
married taxpayers and file a tax return
using the head of household filing status.

(ii) Allocation of premiums. If taxpay-
ers who are married within the meaning of
section 7703, without regard to section
7703(b), do not file a joint return, 50 per-
cent of the enrollment premiums are allo-
cated to each taxpayer. However, all of
the enrollment premiums are allocated to
only one of the taxpayers for a period in
which a qualified health plan covers only
that taxpayer and no dependents, only that
taxpayer and one or more dependents of
that taxpayer, or only one or more depen-
dents of that taxpayer.

(5) * * *

Example 9. (i) The facts are the same as in
Example 8 of paragraph (b)(5) of this section, except
that X and Y live apart for over 6 months of the year
and X properly files an income tax return as head of
household. Under section 7703(b), X is treated as
unmarried and therefore is not required to file a joint
return. If X otherwise qualifies as an applicable
taxpayer, X may claim the premium tax credit based
on the household income and family size X reports
on the return. Y is not an applicable taxpayer and is
not eligible to claim the premium tax credit.

(ii) X must reconcile the amount of credit with
advance credit payments under paragraph (a) of this
section. The premium for the applicable benchmark
plan covering X and his two dependents is $9,800.
X's premium tax credit is computed as follows:
$9,800 benchmark plan premium minus X's contri-
bution amount of $5,700 ($60,000 × .095) equals
$4,100.

(iii) Under paragraph (b)(4) of this section, half
of the advance payments ($6,880/2 = $3,440) is
allocated to X and half is allocated to Y. Thus, X is
entitled to $660 additional premium tax credit
($4,100 - $3,440). Y has $3,440 excess advance
payments, which is limited to $600 under paragraph
(a)(3) of this section.

Example 10. (i) A is married to B at the close of
2014 and they have no dependents. A and B are
enrolled in a qualified health plan for 2014 with an
annual premium of $10,000 and advance credit pay-
ments of $6,500. A is not eligible for minimum
essential coverage (other than coverage described in
section 5000A(f)(1)(C)) for any month in 2014. A is
a victim of domestic abuse as described in § 1.36B-
2(b)(2)(iii). At the time A files her tax return for
2014, A is unable to file a joint return with B for
2014 because of the domestic abuse. A certifies on
her 2014 return, in accordance with relevant instruc-
tions, that she is living apart from B and is unable to
file a joint return because of domestic abuse. Thus,
under § 1.36B-2(b)(2)(ii), A satisfies the joint return
filing requirement in section 36B(c)(1)(C) for 2014.

(ii) A's family size for 2014 for purposes of
computing the premium tax credit is one, and A is
the only member of her coverage family. Thus, A's
benchmark plan for all months of 2014 is the second
lowest cost silver plan offered by the Exchange for
A's rating area that covers A. A's household income
includes only A's modified adjusted gross income.
Under paragraph (b)(4)(ii) of this section, A takes
into account $5,000 ($10,000 × .50) of the premi-
ums for the plan in which she was enrolled in deter-
mining her premium tax credit. Further, A must
reconcile $3,250 ($6,500 × .50) of the advance
credit payments for her coverage under paragraph
(b)(4)(i) of this section.

(c) Applicability date. Paragraphs
(a)(1)(ii), (a)(3)(iii), (a)(4), Examples 4,
10, 11, 12, 13, 14, and 15, (b)(3), (b)(4),
and (b)(5), Examples 9 and 10 apply to
taxable years beginning after December
31, 2013.

§ 1.36B-4T [Removed]

Par. 8. Section 1.36B-4T is removed.

Par. 9. § 1.162(1)-0 is added to read as
follows:

§ 1.162(l)-0 Table of Contents.

This section lists the table of contents
for § 1.162(1)-1.

§ 1.162(l)-1 Deduction for health
insurance costs of self-employed
individuals.

(a) Coordination of section 162(l) deduc-
tion for taxpayers subject to section 36B.

(1) In general.

(2) Specified premiums.

(3) Specified premiums not paid through
advance credit payments.

(b) Additional guidance.

(c) Applicability date.

Par. 10. Section 1.162(1)-1 is added
to read as follows:

§ 1.162(l)-1 Deduction for health
insurance costs of self-employed
individuals.

(a) Coordination of section 162(l)
deduction for taxpayers subject to section
36B-(1) In general. A taxpayer is al-
lowed a deduction under section 162(l) for
specified premiums, as defined in para-
graph (a)(2) of this section, not to exceed
an amount equal to the lesser of-

(i) The specified premiums less the
premium tax credit attributable to the
specified premiums; and

(ii) The sum of the specified premi-
ums not paid through advance credit pay-
ments, as described in paragraph (a)(3) of
this section, and the additional tax (if any)
imposed under section 36B(f)(2)(A) and
§ 1.36B-4(a)(1) with respect to the spec-
ified premiums after application of the
limitation on additional tax in section
36B(f)(2)(B) and § 1.36B-4(a)(3).

(2) Specified premiums. For pur-
poses of paragraph (a)(1) of this section,
specified premiums means premiums for a
specified qualified health plan or plans for
which the taxpayer may otherwise claim a
deduction under section 162(l). For pur-
poses of this paragraph (a)(2), a specified
qualified health plan is a qualified health
plan, as defined in § 1.36B-1(c), covering
the taxpayer, the taxpayer's spouse, or a
dependent of the taxpayer (enrolled fam-
ily member) for a month that is a coverage
month within the meaning of § 1.36B-
3(c) for the enrolled family member. If a
specified qualified health plan covers in-
dividuals other than enrolled family mem-
bers, the specified premiums include only
the portion of the premiums for the spec-
ified qualified health plan that is allocable
to the enrolled family members under
rules similar to § 1.36B-3(h), which pro-
vides rules for determining the amount
under § 1.36B-3(d)(1) when two families
are enrolled in the same qualified health
plan.

(3) Specified premiums not paid
through advance credit payments. For

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purposes of paragraph (a)(1)(ii) of this
section, specified premiums not paid
through advance credit payments equal
the amount of the specified premiums
minus the advance credit payments at-
tributable to the specified premiums.

(b) Additional guidance. The Secretary
may provide by publication in the Federal
Register or in the Internal Revenue Bul-
letin (see § 601.601(d)(2) of this chapter)
additional guidance on coordinating the
deduction allowed under section 162(l)
and the credit provided under section 36B.

(c) Applicability date. This section ap-
plies for taxable years beginning after De-
cember 31, 2013.

###### § 1.162(1)-1T [Removed]

Par. 11. Section 1.162(1)-1T is re-
moved.

Kirsten B. Wielobob,
Deputy Commissioner for
Services and Enforcement.

Approved: July 14, 2017.

Thomas West,
Tax Legislative Counsel.

(Filed by the Office of the Federal Register on July 24, 2017,
4:15 p.m., and published in the issue of the Federal Register
for July 26, 2017, 82 F.R. 34601)

26 CFR 51.2 and 26 CFR 51.11

DEPARTMENT OF THE
TREASURY
Internal Revenue Service
26 CFR Part 51

T.D. 9823

###### Branded Prescription Drug Fee

AGENCY: Internal Revenue Service
(IRS), Treasury.

ACTION: Final regulations and removal
of temporary regulations.

SUMMARY: This document contains fi-
nal regulations that define the term con-
trolled group for purposes of the branded
prescription drug fee. The final regula-

tions supersede and adopt the text of tem-
porary regulations that define the term
controlled group. The final regulations
affect persons engaged in the business
of manufacturing or importing certain
branded prescription drugs.

DATES: Effective Date: The final regula-
tions are effective July 24, 2017.

Applicability Date: For dates of appli-
cability, see § 51.11(b) of the final regu-
lations.

FOR FURTHER INFORMATION CON-
TACT: Rachel S. Smith at (202) 317-6855
(not a toll-free number).

## SUPPLEMENTARY INFORMATION:

### Background

The branded prescription drug fee was
enacted by section 9008 of the Patient
Protection and Affordable Care Act, Pub.
L. No. 111-148, 124 Stat. 119 (2010), as
amended by section 1404 of the Health
Care and Education Reconciliation Act of
2010, Pub. L. No. 111-152, 124 Stat.
1029 (2010) (collectively the ACA). Sec-
tion 9008 did not amend the Internal Rev-
enue Code (Code) but cross-references
specific Code sections.

On July 28, 2014, temporary regula-
tions (TD 9684) relating to the fee on
branded prescription drugs were pub-
lished in the Federal Register (79 FR
43631) (2014 temporary regulations). A
notice of proposed rulemaking (REG-
123286-14) cross-referencing the tempo-
rary regulations was published in the Fed-
eral Register on the same day (79 FR
43699). The 2014 temporary regulations
provided a definition of the term con-
trolled group that was broader than the
definition of the term controlled group in
§ 51.2T(e)(3) of the temporary regulations
(TD 9544) published in the Federal Reg-
ister (76 FR 51245) on August 18, 2011
(2011 temporary regulations).

Neither the Department of the Treasury
(Treasury Department) nor the Internal
Revenue Service (IRS) received any writ-
ten comments with respect to the notice of
proposed rulemaking and no public hear-
ing was requested or held. The final reg-
ulations adopt the proposed regulations
without change and the 2014 temporary
regulations are removed.

### Explanation of Provisions

The 2011 temporary regulations de-
fined the term controlled group to mean a
group of at least two covered entities that
are treated as a single employer under
section 52(a), 52(b), 414(m), or 414(o) of
the Code. The 2014 temporary regulations
defined the term controlled group more
broadly to mean a group of two or more
persons, including at least one person that
is a covered entity, that is treated as a single
employer under section 52(a), 52(b),
414(m), or 414(o) of the Code. These final
regulations adopt the definition of con-
trolled group contained in the 2014 tempo-
rary regulations without change.

The broader definition of the term con-
trolled group in the 2014 temporary reg-
ulations and these final regulations is sup-
ported by the statutory language and is
consistent with the way in which con-
trolled group rules based on similar stat-
utory language are applied, including how
the term controlled group is defined in
§ 57.2(c)(1) for purposes of the health
insurance providers fee under section
9010 of the ACA. Consistent with the
preamble to the 2014 temporary regula-
tions, the Treasury Department and the
IRS continue to expect that the broader
definition of the term controlled group in
the final regulations will primarily affect
the scope of joint and several liability
for the fee and will not otherwise affect
the administration of the fee.

The 2014 temporary regulations ap-
plied beginning on January 1, 2015 (i.e.,
starting with 2015 sales years), and are
effective until July 24, 2017. These final
regulations apply on and after July 24,
2017. Because both the 2014 temporary
regulations and these final regulations
provide the same definition of controlled
group for purposes of section 9008 of the
ACA, that definition applies continuously
beginning with the 2015 sales year and
2017 fee year.

### Special Analyses

Certain IRS regulations, including
these, are exempt from the requirements
of Executive Order 12866, as supple-
mented and reaffirmed by Executive Or-
der 13563. Therefore, a regulatory impact
assessment is not required. Because the
final regulations do not impose a collec-

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tion of information on small entities, the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to
section 7805(f) of the Code, the notice of
proposed rulemaking that preceded the fi-
nal regulations was submitted to the Chief
Counsel for Advocacy of the Small Busi-
ness Administration for comment on its
impact on small business. No comments
were received on the proposed regula-
tions.

### Drafting Information

The principal author of these final reg-
ulations is Rachel S. Smith, Office of the
Associate Chief Counsel (Passthroughs
and Special Industries). However, other
personnel from the IRS and the Treasury
Department participated in their develop-
ment.

* * * * *

### Adoption of Amendments to the Regulations

Accordingly, 26 CFR part 51 is § 51.2T [Removed]
amended as follows:

## PART 51 - BRANDED PRESCRIPTION DRUG FEE

Paragraph 1. The authority citation for
part 51 is revised to read as follows:

Authority: 26 U.S.C. 7805; sec. 9008,
Pub. L. 111-148, 124 Stat. 119.

Section 51.8 also issued under 26
U.S.C. 6302(a).

Section 51.6302-1 also issued under
26 U.S.C. 6302(a).

Par. 2. Section 51.2 is amended by
revising paragraph (e)(3) to read as fol-
lows:

### § 51.2 Explanation of terms.

* * * * *

(e) * * *

(3) Controlled group. The term con-
trolled group means a group of two or
more persons, including at least one per-
son that is a covered entity, that is treated
as a single employer under section 52(a),
52(b), 414(m), or 414(o).

* * * * *

Par. 3. Section 51.2T is removed.

Par. 4. Section 51.11 is amended by
revising the section heading and para-
graph (b) and removing paragraph (c) to
read as follows:

## § 51.11 Applicability date.

* * * * *

(b) Section 51.2(e)(3) applies on and
after July 24, 2017.

## § 51.11T [Removed]

Par. 5. Section 51.11T is removed.

Kirsten Wielobob,
Deputy Commissioner for
Services and Enforcement.

Approved: July 17, 2017.

Tom West,
Tax Legislative Counsel.

(Filed by the Office of the Federal Register on July 24, 2017,
4:15 p.m., and published in the issue of the Federal Register
for July 24, 2017, 82 F.R. 34611)

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## Part III. Administrative, Procedural, and Miscellaneous

### One-Year Delay in the Application of § 1.385-2

Notice 2017-36
PURPOSE

Final and temporary regulations (T.D.
9790) under section 385 of the Internal
Revenue Code (Code) were published in
the Federal Register (81 FR 72858) on
Friday, October 21, 2016. Notice 2017-
38, 2017-30 IRB 1, issued by the Internal
Revenue Service (IRS) and the Depart-
ment of the Treasury (Treasury Depart-
ment) on July 7, 2017, requested com-
ments on all aspects of the final and
temporary regulations under section 385.
This notice announces and invites com-
ments on a change to be made to the
timing of application of certain portions of
the final regulations under section 385.
The affected regulations are set forth in 26
CFR § 1.385-2 and relate to the documen-
tation necessary to determine whether an
interest in a corporation is treated as stock
or indebtedness for all purposes of the
Code (Documentation Regulations).

Because taxpayers may be expending
resources to develop systems and pro-
cesses to comply with the Documentation
Regulations, there is an urgent need for
taxpayers to be aware of this change to the
timing of application of the Documenta-
tion Regulations in advance of any agency
actions in connection with Notice 2017-
38.

## BACKGROUND

### I. In General

Section 385 authorizes the Secretary of
the Treasury to prescribe rules to deter-
mine whether an interest in a corporation
is treated for purposes of the Code as
stock or indebtedness (or as in part stock
and in part indebtedness) by setting forth
factors to be taken into account with re-
spect to particular factual situations.

On April 8, 2016, the Treasury Depart-
ment and the IRS published proposed reg-
ulations (REG-108060-15) under section
385 of the Code (proposed regulations) in
the Federal Register (81 FR 20912) con-
cerning the treatment of certain interests

in corporations as stock or indebtedness.
A public hearing on the proposed regula-
tions was held on July 14, 2016. The
Treasury Department and the IRS also
received numerous written comments in
response to the proposed regulations, all
of which are available at www.regula-
tions.gov and were carefully considered in
developing the final and temporary regu-
lations.

The comments received on the pro-
posed regulations, decisions reached by
the Treasury Department and the IRS, and
the revisions made to the proposed regu-
lations as a result of the comments are
thoroughly described in the preamble to
T.D. 9790.

Under the proposed regulations, the
Documentation Regulations would apply
to interests issued or deemed issued on or
after the date the proposed regulations
were finalized.

Of particular relevance to this notice is
the comment received from numerous
sources that the applicability date of the
proposed regulations would not give tax-
payers adequate time to develop the nec-
essary systems or processes to comply
with the Documentation Regulations.

### II. Summary of the Documentation Regulations

The Documentation Regulations in
§ 1.385-2 have two principal purposes.
The first is to provide guidance regarding
the documentation and other information
that must be prepared, maintained, and
provided to be used in the determination
of whether an instrument subject to
the Documentation Regulations will be
treated as indebtedness for federal tax pur-
poses. The second is to establish certain
operating rules, presumptions, and factors
to be taken into account in the making of
any such determination. The Documenta-
tion Regulations, once applicable, imple-
ment these purposes by generally requir-
ing taxpayers to prepare and maintain
documentation that evidences specified
"indebtedness factors" with respect to
purported debt instruments subject to the
regulations. Thus, compliance with the
Documentation Regulations does not es-
tablish that an interest is indebtedness; it

serves only to satisfy the minimum docu-
mentation for the determination to be
made under general federal tax principles.

In response to the concern expressed
by taxpayers that the proposed regulations
provided inadequate time to begin com-
plying with the Documentation Regula-
tions, the final Documentation Regula-
tions were made applicable only with
respect to interests issued or deemed is-
sued on or after January 1, 2018. See
§§ 1.385-1(f), 1.385-2(d)(2)(iii), and
1.385-2(i).

Following the issuance of the final
Documentation Regulations, the final and
temporary regulations under section 385
were identified in Notice 2017-38 as sig-
nificant tax regulations requiring addi-
tional review pursuant to Executive Order
13789.

## CHANGE TO DOCUMENTATION REGULATIONS DELAYING THEIR APPLICATION

In response to the concern that taxpay-
ers have continued to raise with the appli-
cation of the Documentation Regulations
to interests issued on or after January 1,
2018, and in light of further actions con-
cerning the final and temporary regula-
tions under section 385 in connection with
the review of those regulations, the Trea-
sury Department and the IRS have deter-
mined that these concerns warrant a delay
in the application of the Documentation
Regulations by 12 months. Accordingly,
the Treasury Department and the IRS in-
tend to amend the Documentation Regu-
lations to apply only to interests issued or
deemed issued on or after January 1,
2019. Pending the issuance of those reg-
ulations, taxpayers may rely on the delay
in application of the Documentation Reg-
ulations set forth in this notice.

## REQUEST FOR COMMENTS

Comments are requested concerning
whether the proposed amendment and de-
lay of the application of the Documenta-
tion Regulations affords adequate time for
taxpayers to develop any necessary sys-
tems or processes to comply with the Doc-
umentation Regulations. Comments, iden-
tified by Notice 2017-36, may be

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submitted using one of the following methods:

Courier's Desk Internal Revenue Service Attn: CC:PA:LPD:PR (Notice 2017-36)

1621, 1111 Constitution Avenue, N.W., Washington, DC, from 9 a.m. to 4 p.m. Comments should be submitted no later than Friday, September 1, 2017.

· By Mail:

Internal Revenue Service

1111 Constitution Avenue, N.W.

Attn: CC:PA:LPD:PR (Notice 2017-36) Room 5203

Washington, D.C. 20224 · Electronic: Alternatively, persons

DRAFTING INFORMATION

P.O. Box 7602 Ben Franklin Station

may submit comments electronically to Notice.Comments@irscounsel.treas.gov. Please include "Notice 2017-36" in the subject line of any electronic communi- cations.

The principal author of this notice is Theresa A. Bell of the Office of Associate

Washington, D.C. 20044

. By Hand or Courier Delivery: Sub- missions may be hand-delivered Monday

Chief Counsel (Corporate). For further in- formation regarding this notice, contact

through Friday between the hours of 8 a.m. and 4 p.m. to:

All submissions will be available for public inspection and copying in Room

Austin Diamond-Jones at (202) 317-5363 (not a toll-free number).

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## Part IV. Items of General Interest

### Announcement 2017-10

Announcement 2017-10 amends Rev-
enue Procedure 2017-39, 2017-26 I.R.B.
1286 to make the following corrections.

-Section 4.2.2. The correct title is

Composite Substitute Statements to

Recipients for Forms Specified in Sec-
tions 4.1.2 and 4.1.3.

-Section 4.2.2. The first paragraph is
replaced with the following: A composite
recipient statement for the forms specified
in Sections 4.1.2 or 4.1.3 is permitted

when one filer is reporting more than one
type of payment during a calendar year to
the same form recipient. A composite
statement is not allowed for a combina-
tion of forms listed in Sections 4.1.2 and
4.1.3.

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# Definition of Terms

Revenue rulings and revenue procedures
(hereinafter referred to as "rulings") that
have an effect on previous rulings use the
following defined terms to describe the
effect:

Amplified describes a situation where
no change is being made in a prior pub-
lished position, but the prior position is
being extended to apply to a variation of
the fact situation set forth therein. Thus, if
an earlier ruling held that a principle ap-
plied to A, and the new ruling holds that
the same principle also applies to B, the
earlier ruling is amplified. (Compare with
modified, below).

Clarified is used in those instances
where the language in a prior ruling is
being made clear because the language
has caused, or may cause, some confu-
sion. It is not used where a position in a
prior ruling is being changed.

Distinguished describes a situation
where a ruling mentions a previously pub-
lished ruling and points out an essential
difference between them.

Modified is used where the substance
of a previously published position is being
changed. Thus, if a prior ruling held that a
principle applied to A but not to B, and the
new ruling holds that it applies to both A

and B, the prior ruling is modified because
it corrects a published position. (Compare
with amplified and clarified, above).

Obsoleted describes a previously 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.

Revoked describes situations where the
position in the previously published ruling
is not correct and the correct position is
being stated in a new ruling.

Superseded describes a situation where
the new ruling does nothing more than
restate the substance and situation of a
previously published ruling (or rulings).
Thus, the term is used to republish under
the 1986 Code and regulations the same
position published under the 1939 Code
and regulations. The term is also used
when it is desired to republish in a single
ruling a series of situations, names, etc.,
that were previously published over a pe-
riod of time in separate rulings. If the new
ruling does more than restate the sub-

stance of a prior ruling, a combination of
terms is used. For example, modified and
superseded describes a situation where the
substance of a previously published ruling
is being changed in part and is continued
without change in part and it is desired to
restate the valid portion of the previously
published ruling in a new ruling that is
self contained. In this case, the previously
published ruling is first modified and then,
as modified, is superseded.

Supplemented is used in situations in
which a list, such as a list of the names of
countries, is published in a ruling and that
list is expanded by adding further names
in subsequent rulings. After the original
ruling has been supplemented several
times, a new ruling may be published that
includes the list in the original ruling and
the additions, and supersedes all prior rul-
ings in the series.

Suspended is used in rare situations to
show that the previous published rulings
will not be applied pending some future
action such as the issuance of new or
amended regulations, the outcome of
cases in litigation, or the outcome of a
Service study.

# Abbreviations

The following abbreviations in current
use and formerly used will appear in ma-
terial published in the Bulletin.

A-Individual.

Acq .- Acquiescence.

B-Individual.

BE-Beneficiary.

F.R .- Federal Register.

FUTA-Federal Unemployment Tax Act.

FX-Foreign corporation.

G.C.M .- Chief Counsel's Memorandum.

GE-Grantee.

GP-General Partner.

TFR-Transferor.

CI-City.

GR-Grantor.

IC-Insurance Company.

I.R.B .- Internal Revenue Bulletin.

TR-Trust.

CY-County.

LE-Lessee.

TT-Trustee.

D-Decedent.

LP-Limited Partner.

U.S.C .- United States Code.

DC-Dummy Corporation.

LR-Lessor.

X-Corporation.

DE-Donee.

Del. Order-Delegation Order.

Nonacq .- Nonacquiescence.

O Organization.

DR-Donor.

P-Parent Corporation.

PHC-Personal Holding Company.

PO-Possession of the U.S.

PR-Partner.

PRS-Partnership.

PTE-Prohibited Transaction Exemption.
Pub. L .- Public Law.

REIT-Real Estate Investment Trust.

Rev. Proc .- Revenue Procedure.

Rev. Rul .- Revenue Ruling.

S-Subsidiary.

S.P.R .- Statement of Procedural Rules.

Stat .- Statutes at Large.

T-Target Corporation.

T.C .- Tax Court.

C-Individual.

T.D .- Treasury Decision.

TFE-Transferee.

T.I.R .- Technical Information Release.

COOP-Cooperative.

TP-Taxpayer.

Ct.D .- Court Decision.

M-Minor.

Y-Corporation.

Z-Corporation.

DISC-Domestic International Sales Corporation.

E-Estate.

EE-Employee.

E.O .- Executive Order.

ER-Employer.

ERISA-Employee Retirement Income Security Act.
EX-Executor.

F-Fiduciary.

FC-Foreign Country.

FICA-Federal Insurance Contributions Act.

FISC-Foreign International Sales Company.

FPH-Foreign Personal Holding Company.

BK-Bank.

B.T.A .- Board of Tax Appeals.

C.B .- Cumulative Bulletin.

CFR-Code of Federal Regulations.

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## Numerical Finding List1

Bulletin 2017-27 through 2017-33

### Action on Decision:

2017-5, 2017-27 I.R.B. 1
2017-6, 2017-33 I.R.B. 194

### Announcements:

2017-05, 2017-27 I.R.B. 5
2017-08, 2017-28 I.R.B. 9
2017-10, 2017-33 I.R.B. 210

### Notices:

2017-36, 2017-33 I.R.B. 208
2017-37, 2017-29 I.R.B. 89

2017-38, 2017-30 I.R.B. 147

2017-39, 2017-31 I.R.B. 150

2017-40, 2017-32 I.R.B. 190

### Proposed Regulations:

REG-139633-08, 2017-31 I.R.B. 175
REG-128483-15, 2017-32 I.R.B. 191

REG-136118-15, 2017-28 I.R.B. 9

### Revenue Procedures:

2017-41, 2017-29 I.R.B. 92

2017-42, 2017-29 I.R.B. 124

2017-43, 2017-31 I.R.B. 153

### Revenue Rulings:

2017-14, 2017-27 I.R.B. 2
2017-15, 2017-32 I.R.B. 176

### Treasury Decisions:

9819, 2017-29 I.R.B. 85

9820, 2017-32 I.R.B. 178

9821, 2017-32 I.R.B. 181

9822, 2017-33 I.R.B. 195

9823, 2017-33 I.R.B. 206

1A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2017-01 through 2017-26 is in Internal Revenue Bulletin
2017-26, dated June 27, 2017.

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### Finding List of Current Actions on Previously Published Items1

Bulletin 2017-27 through 2017-33

Notices:

2015-77
Amplified by
Notice 2017-40, 2017-32 I.R.B. 190

#### Revenue Procedures:

2016-27
Modified by
Rev. Proc. 2017-43, 2017-31 I.R.B. 153

2016-27
Superseded by
Rev. Proc. 2017-43, 2017-31 I.R.B. 153

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# Internal Revenue Service Washington, DC 20224

Official Business
Penalty for Private Use, $300

# INTERNAL REVENUE BULLETIN

The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue
Bulletins are available at www.irs.gov/irb/.

# We Welcome Comments About the Internal Revenue Bulletin

If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we
would be pleased to hear from you. You can email us your suggestions or comments through the IRS Internet Home Page
(www.irs.gov) or write to the Internal Revenue Service, Publishing Division, IRB Publishing Program Desk, 1111 Constitution Ave.
NW, IR-6230 Washington, DC 20224.

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