us-irs-announcements-irb-2002-38-pdf•Internal Revenue Bulletin 2002-38 (PDF rendition): IRS Announcements
Internal Revenue Bulletin 2002-38 (PDF rendition): IRS Announcements
us-irs-announcements-irb-2002-38-pdfInternal Revenue Bulletin 2002-38 (PDF rendition): IRS AnnouncementsGuidance
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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 Court Decision 2075, page 548. Tax Liens. The Supreme Court has concluded that under sec- tion 6321 of the Code the husband’s interests in the entireties property constitute “property” or “rights to property” to which a federal tax lien may attach. United States v. Craft. Rev. Rul. 2002–58, page 541. This ruling clarifies that amounts reimbursed under a self-insured medical expense reimbursement plan for medical expenses in- curred by an employee prior to the adoption of the plan are not excludable from the gross income of the employee under sec- tion 105(b) of the Code. Rev. Rul. 2002–59, page 557. Interest rates; underpayments and overpayments. The rate of in- terest determined under section 6621 of the Code for the cal- endar quarter beginning October 1, 2002, will be 6 percent for overpayments (5 percent in the case of a corporation), 6 per- cent for underpayments, and 8 percent for large corporate un- derpayments. The rate of interest paid on the portion of a corporate overpayment exceeding $10,000 will be 3.5 per- cent. T.D. 9013, page 542. Final regulations under section 469 of the Code recharacterize a percentage of certain portfolio income and expense as pas- sive income and expense when a taxpayer engages in a lend- ing transaction with a partnership or S corporation in which the taxpaer owns a direct or indirect interest and the loan proceeds are used in a passive activity. Announcement 2002–83, page 564. This document contains corrections to final regulations (T.D. 9003, 2002–32 I.R.B. 294) providing guidance to married indi- viduals filing joint returns who seek relief from joint and several liability. EMPLOYEE PLANS Rev. Rul. 2002–58, page 541. This ruling clarifies that amounts reimbursed under a self-insured medical expense reimbursement plan for medical expenses in- curred by an employee prior to the adoption of the plan are not excludable from the gross income of the employee under sec- tion 105(b) of the Code. Notice 2002–61, page 563. Weighed average interest rate update. The weighted average in- terest rate for September 2002 and the resulting permissible range of interest rates used to calculate current liability for pur- poses of the full funding limitation of section 412(c)(7) of the Code are set forth. EXEMPT ORGANIZATIONS Announcement 2002–88, page 564. A list is provided of organizations now classified as private foun- dations. Bulletin No. 2002–38 September 23, 2002 Announcements of Disbarments and Suspensions begin on page 564. Finding Lists begin on page ii. The IRS Mission Provide America’s taxpayers top quality service by helping them understand and meet their tax responsibilities and by applying the tax law with integrity and fairness to all. Introduction The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing official rul- ings and procedures of the Internal Revenue Service and for pub- lishing Treasury Decisions, Executive Orders, Tax Conventions, legislation, court decisions, and other items of general inter- est. It is published weekly and may be obtained from the Super- intendent of Documents on a subscription basis. Bulletin contents are consolidated semiannually into Cumulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all sub- stantive 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 pub- lished rulings apply retroactively unless otherwise indicated. Pro- cedures relating solely to matters of internal management are not published; however, statements of internal practices and pro- cedures that affect the rights and duties of taxpayers are pub- lished. 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 taxpay- ers or technical advice to Service field offices, identifying de- tails and information of a confidential nature are deleted to prevent unwarranted invasions of privacy and to comply with statutory requirements. Rulings and procedures reported to 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 re- lied on, used, or cited as precedents by Service personnel in the disposition of other cases. In applying published rulings and pro- cedures, the effect of subsequent legislation, regulations, court decisions, rulings, and procedures must be considered, and Ser- vice personnel and others concerned are cautioned against reach- ing 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 deci- sions 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, Legislation and Related Commit- tee Reports. Part III.—Administrative, Procedural, and Miscellaneous. To the extent practicable, pertinent cross references to these sub- jects are contained in the other Parts and Subparts. Also in- cluded in this part are Bank Secrecy Act Administrative Rulings. Bank Secrecy Act Administrative Rulings are issued by the De- partment of the Treasury’s Office of the Assistant Secretary (En- forcement). Part IV.—Terms of General Interest.This part includes no- tices of proposed rulemakings, disbarment and suspension lists, and announcements. The first 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 first Bulletin of the succeeding semiannual pe- riod, respectively. The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. September 23, 20022002–38 I.R.B. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 105.—Amounts Received Under Accident and Health Plans Accident and health plans.This ruling clari- fies that amounts reimbursed under a self-insured medi- cal expense reimbursement plan for medical expenses incurred by an employee prior to the adoption of the plan are not excludable from the gross income of the employee under section 105(b) of the Code. Rev. Rul. 2002–58 ISSUE Whether amounts reimbursed under a self-insured medical expense reimburse- ment plan for medical expenses incurred by an employee prior to the establishment of the plan are excludable from the gross in- come of the employee under section 105(b) of the Internal Revenue Code. FACTS Employer M establishes a self-insured medical expense reimbursement plan on De- cember 1 of a year. The plan provides that it is effective as of January 1 of that year. Under the plan, a participating employee is eligible for reimbursement of medical ex- penses incurred by the employee, the em- ployee’s spouse, and dependents (as defined in section 152) during the plan year (Janu- ary 1 through December 31). Employee A becomes a participant in the plan upon its establishment on December 1. Prior to the establishment of the plan, Employee A had incurred medical expenses that qualify for reimbursement under the plan and submits those claims for reim- bursement to the employer in December. M reimburses A for the medical expenses in- curred prior to the establishment of the plan in accordance with the terms of the plan. LAW AND ANALYSIS Section 61(a) provides that, except as otherwise provided by law, gross income means all income from whatever source de- rived. Section 105(a) provides that, gener- ally, amounts received by an employee through accident or health insurance for per- sonal injuries or sickness shall be included in gross income to the extent such amounts (1) are attributable to contributions by the employer which were not includible in the gross income of the employee or (2) are paid by the employer. However, section 105(b) provides an ex- ception to the general rule of inclusion un- der section 105(a). Section 105(b) provides that gross income does not include amounts paid, directly or indirectly, to the taxpayer to reimburse the taxpayer for expenses in- curred by him for the medical care (as de- fined in section 213(d)) of the taxpayer, his spouse, and his dependents (as defined in section 152). Section 105(e) provides that amounts re- ceived under an accident or health plan for employees will be treated as amounts re- ceived through accident or health insur- ance for purposes of sections 105(a) and (b). Section 1.105–5(a) of the Income Tax Regu- lations provides that an accident or health plan is an arrangement for the payment of amounts to employees in the event of per- sonal injuries or sickness. In Rev. Rul. 71–403, 1971–2 C.B. 91, an employer established a plan for its em- ployees that qualified as an accident and health plan. All of the employees were cov- ered under the plan and had an enforce- able right to be reimbursed for medical expenses from and after the inception of the plan, but not before the inception of the plan. A number of the employees were ab- sent from work on account of personal in- jury or sickness when the plan went into effect. The ruling held that reimbursements to employees for medical expenses in- curred after the inception of the employ- er’s accident and health plan were excludable from gross income even though the employees were unable to work be- cause of injury or sickness when the plan went into effect. InAmerican Family Mutual Insurance Co. v. U.S., 815 F. Supp. 1206 (W.D. Wis. 1992), the employer established a medi- cal expense reimbursement plan to which section 105 applied. The plan was estab- lished in November and made retroactive to January 1 of that same year. Employ- ees were reimbursed for medical expenses incurred before the plan was established. The court concluded that the retroactive ac- cident and health plan was invalid. Thus, reimbursements of medical expenses in- curred prior to the establishment of the plan were includible in the employee’s gross in- come and not excludable under section 105(b). InWollenberg v. U.S., 75 F. Supp. 2d 1032 (D. Neb. 1999), a calendar year ac- cident and health plan was established in December of the calendar plan year. The plan was effective from January of the plan year. The court held that reimbursements for medical expenses incurred prior to the es- tablishment of the medical expense reim- bursement plan were not excludable under section 105(b). A self-insured medical expense reim- bursement plan is treated as accident and health insurance under section 105(e). Thus, medical expense reimbursements that are paid under a plan are excludable from the employee’s gross income under section 105(b). However, reimbursements of medi- cal expenses incurred prior to the estab- lishment of a plan are not paid or received under an accident or health plan. There- fore, those amounts are not excludable from an employee’s gross income under sec- tion 105(b). HOLDING Amounts reimbursed under a self-insured medical expense reimbursement plan for medical expenses incurred by an employee prior to the establishment of the plan are not excludable from the gross income of the employee under section 105(b). EFFECT ON OTHER REVENUE RULINGS None DRAFTING INFORMATION The principal author of this revenue rul- ing is Shoshanna Chaiton of the office of Division Counsel/Associate Chief Coun- sel (Tax Exempt and Government Enti- ties). For further information regarding this revenue ruling, contact her at (202) 622– 6080 (not a toll-free call). 2002–38 I.R.B.541September 23, 2002 Section 469.—Passive Activity Losses and Credits Limited 26 CFR 1.469–7: Treatment of self-charged items of interest income and deduction. T.D. 9013 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 Limitations on Passive Activity Losses and Credits— Treatment of Self-charged Items of Income and Expense AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: These regulations provide guidance on the treatment of self-charged items of income and expense under sec- tion 469. The regulations recharacterize a percentage of certain portfolio income and expense as passive income and expense (self-charged items) when a taxpayer en- gages in a lending transaction with a part- nership or an S corporation (passthrough entity) in which the taxpayer owns a di- rect or indirect interest and the loan pro- ceeds are used in a passive activity. Similar rules apply to lending transactions between two identically owned passthrough enti- ties. These final regulations affect taxpay- ers subject to the limitations on passive activity losses and credits. DATES:Effective Date:These regulations are effective August 21, 2002. Applicability Date:For dates of appli- cability of these regulations, see§1.469–11 of these regulations. FORFURTHERINFORMATION CONTACT: Danielle M. Grimm at (202) 622–3070 (not a toll-free number). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collection of information contained in these final regulations has been reviewed and approved by the Office of Manage- ment and Budget in accordance with the Pa- perwork Reduction Act (44 U.S.C. 3507) under control number 1545–1244. Re- sponses to this collection of information are required to obtain the benefit of self-charged treatment of income and expense under sec- tion 469. An agency may not conduct or spon- sor, and a person is not required to re- spond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget. The estimated annual burden per re- spondent varies from 5 minutes to 15 min- utes, depending on individual circumstances, with an estimated average of 6 minutes. Comments concerning the accuracy of this burden estimate and suggestions for re- ducing this burden should be sent to theIn- ternal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:FP:S Wash- ington, DC 20224, and to theOffice of Management and Budget, Attn: Desk Of- ficer for the Department of the Treasury, Of- fice of Information and Regulatory Affairs, Washington, DC 20503. Books or records relating to this collec- tion of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. Background Section 469(a)(1)(A) of the Internal Rev- enue Code (Code) provides that if aggre- gate losses from passive activities exceed aggregate income from passive activities for the taxable year, the excess losses are not allowable for that taxable year. Under sec- tion 469(e)(1), passive activity income does not include income from interest, divi- dends, annuities, and royalties not derived in the ordinary course of a trade or busi- ness. However, under the rules of§1.163– 8T, if borrowed funds are used in a passive activity, the interest expense is treated as a passive activity deduction. Consequently, in certain lending transactions, a taxpayer may have interest income that is charac- terized as portfolio income under section 469(e)(1) and interest expense that is char- acterized as a passive activity deduction un- der§1.163–8T. The legislative history of section 469 indicates that this result is in- appropriate because the items of interest in- come and expense are essentially“self- charged”and thus lack economic significance. On April 5, 1991, the IRS published in theFederal Registera notice of proposed rulemaking (PS–39–89, 1991–1 C.B. 983 [56 FR 14034]) proposing amendments to 26 CFR part 1 under section 469 of the Code relating to the treatment of self- charged items of income and expense for purposes of applying the limitations on pas- sive activity losses and passive activity cred- its. A number of public comments were re- ceived and a public hearing was held on September 6, 1991. Given the significant period of time that had elapsed since the former comment period, additional com- ments were solicited in Notice 2001–47 (2001–36 I.R.B. 212). After consideration of all of the comments received, the pro- posed regulations are adopted, as revised by this Treasury decision. Explanation of Revisions and Summary of Comments The proposed regulations provide self- charged treatment for items of interest in- come and interest expense in lending transactions between a taxpayer and a passthrough entity in which the taxpayer holds a direct or qualifying indirect inter- est. Several commentators suggested that the regulations should also apply to lending transactions between related passthrough en- tities such as brother-sister entities in which the taxpayer owns interests because such transactions also may result in mismatched income and expense for purposes of sec- tion 469. In response to the suggestions, the self-charged rules are extended to identi- cally owned passthrough entities. This ex- tension is limited to identically owned entities because of concerns regarding the difficulty of identifying self-charged items in transactions between less closely re- lated or unrelated entities. Certain commentators requested the re- moval of the qualifying indirect interest rule in the proposed regulations. The qualify- ing indirect interest rule provides that a tax- payer must have at least a 10-percent indirect interest in a passthrough entity to qualify for self-charged treatment. Com- mentators noted that a taxpayer that owns less than a 10 percent interest neverthe- less may receive large amounts of self- September 23, 20025422002–38 I.R.B. charged income and expense. This suggestion has been adopted. Accordingly, the regulations no longer contain the quali- fying indirect interest rule. Noting that Congress authorized the Sec- retary to identify other situations in which self-charged treatment is appropriate, sev- eral commentators suggested that self- charged treatment be extended to other transactions involving rental real estate ac- tivities, such as the payment of manage- ment fees and salaries. After publication of the proposed regulations, Congress con- sidered the impact of section 469 on rental real estate transactions and enacted spe- cific relief in section 469(c)(7) for certain real estate professionals for taxable years beginning after 1993. There was no indi- cation in the legislative history of section 469(c)(7) that Congress considered addi- tional relief for real estate transactions nec- essary or desirable. Moreover, there is less justification for the complexity of a self- charged rule in this area after the enact- ment of section 469(c)(7) because that change substantially reduced the number of real estate transactions that would benefit from a self-charged rule. Accordingly, the regulations do not extend the self-charged treatment to other transactions involving rental real estate. A number of comments suggested that the regulations clarify whether the self-charged rules apply to guar- anteed payments to a partner for the use of capital. Section 1.469–2(e)(2)(ii) of the regu- lations treats these payments as interest in- come. Accordingly, the regulations clarify that lending transactions include guaran- teed payments for the use of capital un- der section 707(c). Some comments requested clarifica- tion on the types of interest eligible for self- charged treatment. The comments noted that the examples in the regulations may be in- terpreted as precluding certain types of in- terest because the introductory language states that the lending transactions described in the examples do not result in foregone interest (within the meaning of section 7872(e)(2)), original issue discount (within the meaning of section 1273), or total un- stated interest (within the meaning of sec- tion 483(b)). Accordingly, the regulations clarify that the examples assume, solely for purposes of simplifying the presentation, that the lending transactions do not in- volve foregone interest, original issue dis- count, or total unstated interest. A few comments responded to the no- tice of proposed rulemaking’s solicitation for suggestions on the proper treatment of items recognized in different taxable years. One comment suggested the use of a sus- pense account. Under this suggestion, in the year in which the taxpayer identifies the corresponding item of self-charged income or expense, that item would be netted against the self-charged item in the sus- pense account. Another comment suggested that where the recognition of passive in- terest expense precedes the recognition of passive income, the taxpayer could elect to treat the income as passive when ultimately recognized. Another suggestion was to al- low the taxpayer to recharacterize inter- est income or expense equal to the amount calculated on a cumulative basis. The com- mentators recognize that to implement the above methods would require more com- plex regulations. After consideration of these comments, the final regulations adopt the rule of the proposed regulations that the self-charged rules apply only to self-charged items rec- ognized in the same taxable year. This rule is consistent with the legislative history and avoids the complexity of the other sug- gested methods. For similar reasons, com- ments suggesting special rules for capitalized expenses are not adopted. Certain commentators requested that the regulations be extended to apply to trans- actions between taxpayers and their trusts, estates, REMICs and housing coopera- tives. The regulations address the transac- tions identified by Congress involving S corporations and partnerships (including en- tities classified as partnerships for federal tax purposes). Application of the self- charged rules to other types of entities would require a significant expansion of the scope of these regulations to address broader issues concerning the manner in which sec- tion 469 applies to those entities. The applicability date of the final regu- lations is consistent with the applicability date as proposed. However, certain clari- fications have been made to the transition rule. In the transition period, a taxpayer may use any reasonable method to offset items of interest income and interest expense from lending transactions. Effective Date These regulations are applicable for tax- able years beginning after December 31, 1986. However, for taxable years begin- ning before June 4, 1991, a taxpayer that owns an interest in a passthrough entity is not required to apply these provisions and may use any reasonable method to offset items of interest income and interest ex- pense from lending transactions between the passthrough entity and its owners or be- tween certain passthrough entities. Items from nonlending transactions cannot be off- set under the self-charged rules. Special Analyses It has been determined that this Trea- sury decision is not a significant regula- tory action as defined in Executive Order 12886. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chap- ter 6) do not apply to these regulations, and, therefore, a Regulatory Flexibility Analy- sis is not required. Pursuant to section 7805(f) of the Code, the notice of pro- posed rulemaking preceding these regula- tions was submitted to the Small Business Administration for comment on its im- pact on small business. Drafting Information The principal author of these regula- tions is Danielle M. Grimm, Office of the Associate Chief Counsel (Passthroughs and Special Industries), Internal Revenue Ser- vice. However, personnel from other of- fices of the Internal Revenue Service and Treasury Department participated in their development. ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR parts 1 and 602 are amended as follows: PA RT 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding an entry in nu- merical order to read in part as follows: Authority: 26 U.S.C. 7805*** Section 1.469–7 also issued under 26 U.S.C. 469(l).*** Par. 2. Section 1.469–0 is amended by: 1. Revising the entry for§1.469–7. 2002–38 I.R.B.543September 23, 2002 2. Adding entries for§1.469–7(a) through (h). 3. Revising the entries for§1.469– 11(c)(1) and (c)(1)(i). 4. Adding an entry for§1.469–11, para- graph (c)(1)(iii). The additions and revisions read as follows: §1.469–0 Table of contents. ***** §1.469–7 Treatment of self-charged items of interest income and deduction. (a) In general. (1) Applicability and effect of rules. (2) Priority of rules in this section. (b) Definitions. (1) Passthrough entity. (2) Taxpayer’s share. (3) Taxpayer’s indirect interest. (4) Entity taxable year. (5) Deductions for a taxable year. (c) Taxpayer loans to passthrough entity. (1) Applicability. (2) General rule. (3) Applicable percentage. (d) Passthrough entity loans to taxpayer. (1) Applicability. (2) General rule. (3) Applicable percentage. (e) Identically-owned passthrough enti- ties. (1) Applicability. (2) General rule. (3) Example. (f) Identification of properly allocable de- ductions. (g) Election to avoid application of the rules of this section. (1) In general. (2) Form of election. (3) Period for which election applies. (4) Revocation. (h) Examples. §1.469–11 Effective date and transition rules. ***** (c)*** (1) Application of certain income rechar- acterization rules and self-charged rules. (i) Certain recharacterization rules inappli- cable in 1987. ***** (iii) Self-charged rules. ***** Par. 3. Section 1.469–7 is amended by: (3) Revising the section heading. (4) Adding paragraphs (a) through (h). The revision and additions read as follows: §1.469–7 Treatment of self-charged items of interest income and deduction. (a)In general—(1)Applicability and ef- fect of rules. This section sets forth rules that apply, for purposes of section 469 and the regulations thereunder, in the case of a lending transaction (including guaranteed payments for the use of capital under sec- tion 707(c)) between a taxpayer and a passthrough entity in which the taxpayer owns a direct or indirect interest, or be- tween certain passthrough entities. The rules apply only to items of interest income and interest expense that are recognized in the same taxable year. The rules— (i) Treat certain interest income result- ing from these lending transactions as pas- sive activity gross income; (ii) Treat certain deductions for inter- est expense that is properly allocable to the interest income as passive activity deduc- tions; and (iii) Allocate the passive activity gross income and passive activity deductions re- sulting from this treatment among the tax- payer’s activities. (2)Priority of rules in this section. The character of amounts treated under the rules of this section as passive ac- tivity gross income and passive activity de- ductions and the activities to which these amounts are allocated are determined un- der the rules of this section and not under the rules of§§1.163–8T, 1.469–2(c) and (d), and 1.469–2T(c) and (d). (b)Definitions. The following defini- tions set forth the meaning of certain terms for purposes of this section: (1)Passthrough entity. The term passthrough entitymeans a partnership or an S corporation. (2)Taxpayer’s share.Ataxpayer’s share of an item of income or deduction of a passthrough entity is the amount treated as an item of income or deduction of the tax- payer for the taxable year under section 702 (relating to the treatment of distributive shares of partnership items as items of part- ners) or section 1366 (relating to the treat- ment of pro rata shares of S corporation items as items of shareholders). (3)Taxpayer’s indirect interest.The tax- payer has an indirect interest in an entity if the interest is held through one or more passthrough entities. (4)Entity taxable year.In applying this section for a taxable year of a taxpayer, the termentity taxable yearmeans the tax- able year of the passthrough entity for which the entity reports items that are taken into account under section 702 or section 1366 for the taxpayer’s taxable year. (5)Deductions for a taxable year.The termdeductions for a taxable yearmeans deductions that would be allowable for the taxable year if the taxpayer’s taxable in- come for all taxable years were determined without regard to sections 163(d), 170(b), 469, 613A(d), and 1211. (c)Taxpayer loans to passthrough entity—(1)Applicability.Except as pro- vided in paragraph (g) of this section, this paragraph (c) applies with respect to a tax- payer’s interest in a passthrough entity (bor- rowing entity) for a taxable year if— (i) The borrowing entity has deduc- tions for the entity taxable year for inter- est charged to the borrowing entity by persons that own direct or indirect inter- ests in the borrowing entity at any time dur- ing the entity taxable year (the borrowing entity’s self-charged interest deductions); (ii) The taxpayer owns a direct or an in- direct interest in the borrowing entity at any time during the entity taxable year and has gross income for the taxable year from in- terest charged to the borrowing entity by the taxpayer or a passthrough entity through which the taxpayer holds an interest in the borrowing entity (the taxpayer’s income from interest charged to the borrowing en- tity); and (iii) The taxpayer’s share of the bor- rowing entity’s self-charged interest de- ductionsincludespassiveactivity deductions. (2)General rule.If any of the borrow- ing entity’s self-charged interest deduc- tions are allocable to an activity for a taxable year in which this paragraph (c) ap- plies, the passive activity gross income and passive activity deductions from that ac- tivity are determined under the following rules— (i) The applicable percentage of each item of the taxpayer’s income for the tax- able year from interest charged to the bor- rowing entity is treated as passive activity gross income from the activity; and September 23, 20025442002–38 I.R.B. (ii) The applicable percentage of each deduction for the taxable year for interest expense that is properly allocable (within the meaning of paragraph (f) of this sec- tion) to the taxpayer’s income from the in- terest charged to the borrowing entity is treated as a passive activity deduction from the activity. (3)Applicable percentage.In applying this paragraph (c) with respect to a tax- payer’s interest in a borrowing entity, the applicable percentage is separately deter- mined for each of the taxpayer’s activi- ties. The percentage applicable to an activity for a taxable year is obtained by dividing— (i) The taxpayer’s share for the tax- able year of the borrowing entity’s self- charged interest deductions that are treated as passive activity deductions from the ac- tivity by (ii) The greater of— (A) The taxpayer’s share for the tax- able year of the borrowing entity’s aggre- gate self-charged interest deductions for all activities (regardless of whether these de- ductions are treated as passive activity de- ductions); or (B) The taxpayer’s aggregate income for the taxable year from interest charged to the borrowing entity for all activities of the bor- rowing entity. (d)Passthrough entity loans to taxpayer—(1)Applicability.Except as pro- vided in paragraph (g) of this section, this paragraph (d) applies with respect to a tax- payer’s interest in a passthrough entity (lending entity) for a taxable year if— (i) The lending entity has gross income for the entity taxable year from interest charged by the lending entity to persons that own direct or indirect interests in the lend- ing entity at any time during the entity tax- able year (the lending entity’s self-charged interest income); (ii) The taxpayer owns a direct or an in- direct interest in the lending entity at any time during the entity taxable year and has deductions for the taxable year for inter- est charged by the lending entity to the tax- payer or a passthrough entity through which the taxpayer holds an interest in the lend- ing entity (the taxpayer’s deductions for in- terest charged by the lending entity); and(iii) The taxpayer’s deductions for interest charged by the lending entity include pas- sive activity deductions. (2)General rule.If any of the taxpay- er’s deductions for interest charged by the lending entity are allocable to an activity for a taxable year in which this paragraph (d) applies, the passive activity gross in- come and passive activity deductions from that activity are determined under the fol- lowing rules— (i) The applicable percentage of the tax- payer’s share for the taxable year of each item of the lending entity’s self-charged in- terest income is treated as passive activ- ity gross income from the activity. (ii) The applicable percentage of the tax- payer’s share for the taxable year of each deduction for interest expense that is prop- erly allocable (within the meaning of para- graph (f) of this section) to the lending entity’s self-charged interest income is treated as a passive activity deduction from the activity. (3)Applicable percentage.In applying this paragraph (d) with respect to a tax- payer’s interest in a lending entity, the ap- plicable percentage is separately determined for each of the taxpayer’s activities. The percentage applicable to an activity for a taxable year is obtained by dividing— (i) The taxpayer’s deductions for the tax- able year for interest charged by the lend- ing entity, to the extent treated as passive activity deductions from the activity; by (ii) The greater of— (A) The taxpayer’s aggregate deduc- tions for all activities for the taxable year for interest charged by the lending entity (regardless of whether these deductions are treated as passive activity deductions); or (B) The taxpayer’s aggregate share for the taxable year of the lending entity’s self- charged interest income for all activities of the lending entity. (e)Identically-owned passthrough entities—(1)Applicability.Except as pro- vided in paragraph (g) of this section, this paragraph (e) applies with respect to lend- ing transactions between passthrough en- tities if each owner of the borrowing entity has the same proportionate ownership in- terest in the lending entity. (2)General rule.To the extent an owner shares in interest income from a loan be- tween passthrough entities described in paragraph (e)(1) of this section, the owner is treated as having made the loan to the borrowing passthrough entity and para- graph (c) of this section applies to deter- mine the applicable percentage of portfolio income or properly allocable interest ex- pense that is recharacterized as passive. (3)Example.The following example il- lustrates the application of this paragraph (e): Example.(i) A and B, both calendar year taxpay- ers, each own a 50-percent interest in the capital and profits of partnerships RS and XY, both calendar year partnerships. Under the partnership agreements of RS and XY, A and B are each entitled to a 50-percent dis- tributive share of each partnership’s income, gain, loss, deduction, or credit. RS makes a $20,000 loan to XY and XY pays RS $2,000 of interest for the taxable year. A’s distributive share of interest income attributable to this loan is $1,000 (50 percent x $2,000). XY uses all of the proceeds received from RS in a passive ac- tivity. A’s distributive share of interest expense at- tributable to the loan is $1,000 (50 percent x $2,000). (ii) This paragraph (e) applies in determining A’s passive activity gross income because RS and XY are identically-owned passthrough entities as described in paragraph (e)(1) of this section. Under paragraph (e)(2) of this section, the RS-to-XY loan is treated as if A made the loan to XY. Therefore, A must apply para- graph (c) of this section to determine the applicable percentage of portfolio income that is recharacter- ized as passive income. (iii) Paragraph (c) of this section applies in de- termining A’s passive activity gross income because: XY has deductions for interest charged to XY by RS for the taxable year (XY’s self-charged interest de- ductions); A owns an interest in XY during XY’s tax- able year and has gross income for the taxable year from interest charged to XY by RS; and A’s share of XY’s self-charged interest deductions includes pas- sive activity deductions. See paragraph (c)(1) of this section. (iv) Under paragraph (c)(2)(i) of this section, the applicable percentage of A’s interest income is re- characterized as passive activity gross income from the activity. Paragraph (c)(3) of this section pro- vides that the applicable percentage is obtained by di- viding A’s share for the taxable year of XY’s self- charged interest deductions that are treated as passive activity deductions from the activity ($1,000) by the greater of A’s share for the taxable year of XY’s self- charged interest deductions ($1,000), or A’s income for the year from interest charged to XY ($1,000). Thus, A’s applicable percentage is 100 percent ($1,000/ $1,000), and $1,000 (100 percent x $1,000) of A’s in- come from interest charged to XY is treated as passive activity gross income from the passive activity. (f)Identification of properly allocable deductions.For purposes of this section, in- terest expense is properly allocable to an item of interest income if the interest ex- pense is allocated under§1.163–8T to an expenditure that— (1) Is properly chargeable to capital ac- count with respect to the investment pro- ducing the item of interest income; or (2) May reasonably be taken into ac- count as a cost of producing the item of in- terest income. (g)Election to avoid application of the rules of this section—(1)In general.Para- graphs (c),(d) and (e) of this section shall not apply with respect to any taxpayer’s in- 2002–38 I.R.B.545September 23, 2002 terest in a passthrough entity for a tax- able year if the passthrough entity has made, under this paragraph (g), an election that ap- plies to the entity’s taxable year. (2)Form of election.A passthrough en- tity makes an election under this para- graph (g) by attaching to its return (or amended return) a written statement that in- cludes the name, address, and taxpayer iden- tification number of the passthrough entity and a declaration that an election is being made under this paragraph (g). (3)Period for which election applies.An election under this paragraph (g) made with a return (or amended return) for a taxable year applies to that taxable year and all sub- sequent taxable years that end before the date on which the election is revoked. (4)Revocation.An election under this paragraph (g) may be revoked only with the consent of the Commissioner. (h)Examples.The following examples illustrate the principles of this section. The examples assume for purposes of simpli- fying the presentation, that the lending trans- actions described do not result in foregone interest (within the meaning of section 7872(e)(2)), original issue discount (within the meaning of section 1273), or total un- stated interest (within the meaning of sec- tion 483(b)). Example 1.(i) A and B, two calendar year indi- viduals, each own 50-percent interests in the capi- tal, profits and losses of AB, a calendar year partnership. AB is engaged in a single rental activ- ity within the meaning of§1.469–1T(e)(3). AB bor- rows $50,000 from A and uses the loan proceeds in the rental activity. AB pays $5,000 of interest to A for the taxable year. A and B each incur $2,500 of inter- est expense as their distributive share of AB’s inter- est expense. (ii) AB has self-charged interest deductions for the taxable year (i.e., the deductions for interest charged to AB by A); A owns a direct interest in AB during AB’s taxable year and has income for A’s taxable year from interest charged to AB; and A’s share of AB’s self-charged interest deductions includes passive ac- tivity deductions. Accordingly, paragraph (c) of this section applies in determining A’s passive activity gross income. See paragraph (c)(1) of this section. (iii) Under paragraph (c)(2)(i) of this section, the applicable percentage of A’s interest income is re- characterized as passive activity gross income from AB’s rental activity. Paragraph (c)(3) of this section provides that the applicable percentage is obtained by dividing A’s share for the taxable year of AB’s self- charged interest deductions that are treated as pas- sive activity deductions from the activity ($2,500) by the greater of A’s share for the taxable year of AB’s self-charged interest deductions ($2,500), or A’s in- come for the taxable year from interest charged to AB ($5,000). Thus, A’s applicable percentage is 50 per- cent ($2,500/$5,000), and $2,500 (50 percent x $5,000) of A’s income from interest charged to AB is treated as passive activity gross income from the passive ac- tivity A conducts through AB. (iv) Because B does not have any gross income for the year from interest charged to AB, this sec- tion does not apply to B. See paragraph (c)(1)(ii) of this section. Example 2.(i) C and D, two calendar year tax- payers, each own 50-percent interests in the capital and profits of CD, a calendar year partnership. CD is engaged in a single rental activity, within the mean- ing of§1.469–1T(e)(3). C obtains a $10,000 loan from a third-party lender, and pays the lender $900 in in- terest for the taxable year. C lends the $10,000 to CD, and receives $1,000 of interest income from CD for the taxable year. D lends $20,000 to CD and re- ceives $2,000 of interest income from CD for the tax- able year. CD uses all of the proceeds in the rental activity. C and D are each allocated $1,500 (50 per- cent x $3,000) of interest expense as their distribu- tive share of CD’s interest expense for the taxable year. (ii) CD has self-charged interest deductions for the taxable year (i.e., deductions for interest charged to CD by C and D); C and D each own direct interests in CD during CD’s taxable year and have gross in- come for the taxable year from interest charged to CD; and both C’s and D’s shares of CD’s self-charged in- terest deductions include passive activity deduc- tions. Accordingly, paragraph (c) of this section applies in determining C’s and D’s passive activity gross in- come. See paragraph (c)(1) of this section. (iii) Under paragraph (c)(2)(i) of this section, the applicable percentage of each partner’s interest in- come is recharacterized as passive activity gross in- come from CD’s rental activity. Paragraph (c)(3) of this section provides that C’s applicable percentage is obtained by dividing C’s share for the taxable year of CD’s self-charged interest deductions that are treated as passive activity deductions from the activity ($1,500) by the greater of C’s share for the taxable year of CD’s self-charged interest deductions ($1,500), or C’s in- come for the taxable year from interest charged to CD ($1,000). Thus, C’s applicable percentage is 100 per- cent ($1,500/$1,500), and all of C’s income from in- terest charged to CD ($1,000) is treated as passive activity gross income from the passive activity C con- ducts through CD. Similarly, D’s applicable percent- age is obtained by dividing D’s share for the taxable year of CD’s self-charged interest deductions that are treated as passive activity deductions from the activ- ity ($1,500) by the greater of D’s share for the tax- able year of CD’s self-charged interest deductions ($1,500), or D’s income for the taxable year from in- terest charged to CD ($2,000). Thus, D’s applicable percentage is 75 percent ($1,500/$2,000), and $1,500 (75 percent x $2,000) of D’s income from interest charged to CD is treated as passive activity gross in- come from the rental activity. (iv) The $900 of interest expense that C pays to the third-party lender is allocated under§1.163– 8T(c)(1) to an expenditure that is properly charge- able to capital account with respect to the loan to CD. Thus, the expense is properly allocable to the inter- est income C receives from CD (see paragraph (f) of this section). Under paragraph (c)(2)(ii) of this sec- tion, the applicable percentage of C’s deductions for the taxable year for interest expense that is properly allocable to C’s income from interest charged to CD is recharacterized as a passive activity deduction from CD’s rental activity. Accordingly, all of C’s $900 in- terest deduction is treated as a passive activity de- duction from the rental activity. Example 3.(i) E and F, calendar year taxpayers, each own 50 percent of the stock of X, a calendar year S corporation. E borrows $30,000 from X, and pays X $3,000 of interest for the taxable year. E uses $15,000 of the loan proceeds to make a personal ex- penditure (as defined in§1.163–8T(b)(5)), and uses $15,000 of loan proceeds to purchase a trade or busi- ness activity in which E does not materially partici- pate (within the meaning of§1.469–5T) for the taxable year. E and F each receive $1,500 as theirpro rata share of X’s interest income from the loan for the tax- able year. (ii) X has gross income for X’s taxable year from interest charged to E (X’s self-charged interest in- come); E owns a direct interest in X during X’s tax- able year and has deductions for the taxable year for interest charged by X; and E’s deductions for inter- est charged by X include passive activity deduc- tions. Accordingly, paragraph (d) of this section applies in determining E’s passive activity gross income. See paragraph (d)(1) of this section. (iii) Under the rules in paragraph (d)(2)(i) of this section, the applicable percentage of E’s share of X’s self-charged interest income is recharacterized as pas- sive activity gross income from the activity. Para- graph (d)(3) of this section provides that the applicable percentage is obtained by dividing E’s deductions for the taxable year for interest charged by X, to the ex- tent treated as passive activity deductions from the ac- tivity ($1,500), by the greater of E’s deductions for the taxable year for interest charged by X, regard- less of whether those deductions are treated as pas- sive activity deductions ($3,000), or E’s share for the taxable year of X’s self-charged interest income ($1,500). Thus, E’s applicable percentage is 50 per- cent ($1,500/$3,000), and $750 (50 percent x $1,500) of E’s share of X’s self-charged interest income is treated as passive activity gross income. (iv) Because F does not have any deductions for the taxable year for interest charged by X, this sec- tion does not apply to F. See paragraph (d)(1)(ii) of this section. Example 4.(i) ThisExample 4illustrates the ap- plication of this section to a partner that has a dif- ferent taxable year from the partnership. The facts are the same as inExample 1except as follows: Partner- ship AB has properly adopted a fiscal year ending June 30 for federal tax purposes; AB borrows the $50,000 from A on October 1, 1990; and under the terms of the loan, AB must pay A $5,000 in interest annu- ally, in quarterly installments, for a term of 2 years. (ii) For A’s taxable years from 1990 through 1993 and AB’s corresponding entity taxable years (as de- fined in paragraph (b)(4) of this section) A’s interest income and AB’s interest deductions from the loan are as follows: A’s Interest Income AB’s Interest Deductions 1990$1,2500 1991$5,000$3,750 1992$3,750$5,000 19930$1,250 (iii) For A’s taxable year ending December 31, 1990, the corresponding entity taxable year is AB’s taxable year ending June 30, 1990. Because AB does not have any deductions for the entity taxable year for September 23, 20025462002–38 I.R.B. interest charged to AB by A, paragraph (c) of this sec- tion does not apply in determining A’s passive activ- ity gross income for 1990 (see paragraph (c)(1)(i) of this section). Accordingly, A reports $1,250 of port- folio income on A’s 1990 income tax return. (iv) For A’s taxable year ending December 31, 1991, the corresponding entity taxable year ends on June 30, 1991. AB has $3,750 of deductions for the entity taxable year for interest charged to AB by A (AB’s self-charged interest deductions); A owns a di- rect interest in AB during the entity taxable year and has $5,000 of interest income for A’s taxable year from interest charged to AB; and A’s share of AB’s self- charged interest deductions includes passive activity deductions. Accordingly, paragraph (c) of this sec- tion applies in determining A’s passive activity gross income. (v) Under paragraph (c)(2)(i) of this section, the applicable percentage of A’s 1991 interest income is recharacterized as passive activity gross income from the activity. Paragraph (c)(3) of this section pro- vides that the applicable percentage is obtained by di- viding A’s share for A’s 1991 taxable year of AB’s self- charged interest deductions that are treated as passive activity deductions from the activity (50 percent x $3,750 = $1,875) by the greater of A’s share for A’s taxable year of AB’s self-charged interest deduc- tions ($1,875), or A’s income for A’s taxable year from interest charged to AB ($5,000). Thus, A’s appli- cable percentage is 37.5 percent ($1,875/$5,000), and $1,875 (37.5 percent x $5,000) of A’s income from interest charged to AB is treated as passive activity gross income from the passive activity A conducts through AB. (vi) For A’s taxable year ending December 31, 1992, the corresponding entity taxable year ends on June 30, 1992. AB has $5,000 of deductions for the entity taxable year for interest charged to AB by A (AB’s self-charged interest deductions); A owns a di- rect interest in AB during the entity taxable year and has $3,750 of gross income for A’s taxable year from interest charged to AB; and A’s share of AB’s self- charged interest deductions includes passive activity deductions. Accordingly, paragraph (c) of this sec- tion applies in determining A’s passive activity gross income. (vii) The applicable percentage for 1992 is ob- tained by dividing A’s share for A’s 1992 taxable year of AB’s self-charged interest deductions that are treated as passive activity deductions from the activity ($2,500) by the greater of A’s share for A’s taxable year of AB’s self-charged interest deductions ($2,500), or A’s in- come for A’s taxable year from interest charged to AB ($3,750). Thus, A’s applicable percentage is 66 2/3 per- cent ($2,500/$3,750), and $2,500 (66 2/3 percent x $3,750) of A’s income from interest charged to AB is treated as passive activity gross income from the pas- sive activity A conducts through AB. (viii) Paragraph (c) of this section does not ap- ply in determining A’s passive activity gross income for the taxable year ending December 31, 1993, be- cause A has no gross income for the taxable year from interest charged to AB (see paragraph (c)(1)(ii) of this section). A’s share of AB’s self-charged interest de- ductions for the entity taxable year ending June 30, 1993 ($625) is taken into account as a passive activ- ity deduction on A’s 1993 income tax return. (ix) Because B does not have any gross income from interest charged to AB for any of the taxable years, this section does not apply to B. See para- graph (c)(1)(ii) of this section. Example 5.(i) ThisExample 5illustrates the ap- plication of the rules of this section in the case of a taxpayer who has an indirect interest in a partner- ship. G, a calendar year taxpayer, is an 80-percent part- ner in partnership UTP. UTP owns a 25-percent interest in the capital and profits of partnership LTP. UTP and LTP are both calendar year partnerships. The part- ners of LTP conduct a single passive activity through LTP. UTP obtains a $10,000 loan from a bank, and pays the bank $1,000 of interest per year. G’s dis- tributive share of the interest paid to the bank is $800 (80 percent x $1,000). UTP uses the $10,000 debt pro- ceeds and another $10,000 of cash to make a loan to LTP, and LTP pays UTP $2,000 of interest for the tax- able year. G’s distributive share of interest income at- tributable to the UTP-to-LTP loan is $1,600 (80 percent x $2,000). LTP uses all of the proceeds received from UTP in the passive activity. UTP’s distributive share of interest expense attributable to the UTP-to-LTP loan is $500 (25 percent x $2,000). G’s distributive share of interest expense attributable to the UTP-to-LTP loan is $400 (80 percent x $500). (ii) LTP has deductions for interest charged to LTP by UTP for the taxable year (LTP’s self-charged in- terest deductions); G owns an indirect interest in LTP during LTP’s taxable year and has gross income for the taxable year from interest charged to LTP by a passthrough entity (UTP) through which G owns an interest in LTP; and G’s share of LTP’s self-charged interest deductions includes passive activity deduc- tions. Accordingly, paragraph (c) of this section ap- plies in determining G’s passive activity gross income. See paragraph (c)(1) of this section. (iii) Under paragraph (c)(2)(i) of this section, the applicable percentage of G’s interest income is re- characterized as passive activity gross income from the activity. Paragraph (c)(3) of this section pro- vides that the applicable percentage is obtained by di- viding G’s share for the taxable year of LTP’s self- charged interest deductions that are treated as passive activity deductions from the activity ($400) by the greater of G’s share for the taxable year of LTP’s self- charged interest deductions ($400), or G’s income for the year from interest charged to LTP ($1,600). Thus, G’s applicable percentage is 25 percent ($400/$1,600), and $400 (25 percent x $1,600) of G’s income from interest charged to LTP is treated as passive activity gross income from the passive activity that G con- ducts through UTP and LTP. (iv) G’s $800 distributive share of the interest ex- pense that UTP pays to the third-party lender is al- located under§1.163–8T(c)(1) to an expenditure that is properly chargeable to capital account with re- spect to the loan to LTP. Thus, the expense is a de- duction properly allocable to the interest income that G receives as a result of the UTP-to-LTP loan (see paragraph (f) of this section). Under paragraph (c)(2)(ii) of this section, the applicable percentage of G’s de- ductions for the taxable year for interest expense that is properly allocable to G’s income from interest charged by UTP to LTP is recharacterized as a pas- sive activity deduction from LTP’s passive activity. Ac- cordingly, $200 (25 percent x $800) of G’s interest deduction is treated as a passive activity deduction from LTP’s activity. Example 6.(i) ThisExample 6illustrates the ap- plication of the rules of this section in the case of a taxpayer who conducts two passive activities through a passthrough entity. J, a calendar year taxpayer, is the 100-percent shareholder of Y, a calendar year S cor- poration. J conducts two passive activities through Y: a rental activity and a trade or business activity in which J does not materially participate. Y borrows $80,000 from J, and uses $60,000 of the loan pro- ceeds in the rental activity and $20,000 of the loan proceeds in the passive trade or business activity. Y pays $8,000 of interest to J for the taxable year, and J incurs $8,000 of interest expense as J’s distribu- tive share of Y’s interest expense. (ii) Y has self-charged interest deductions for the taxable year (i.e., the deductions for interest charged to Y by J); J owns a direct interest in Y during Y’s taxable year and has gross income for J’s taxable year from interest charged to Y; and J’s share of Y’s self- charged interest deductions includes passive activity deductions. Accordingly, paragraph (c) of this sec- tion applies in determining J’s passive activity gross income. See paragraph (c)(1) of this section. (iii) Under paragraph (c)(2)(i) of this section, the applicable percentage of J’s interest income is rechar- acterized as passive activity gross income attribut- able to the rental activity. Paragraph (c)(3) of this section provides that the applicable percentage is ob- tained by dividing J’s share for the taxable year of Y’s self-charged interest deductions that are treated as pas- sive activity deductions from the rental activity ($6,000) by the greater of J’s share for the taxable year of Y’s self-charged interest deductions ($8,000), or J’s income for the taxable year from interest charged to Y ($8,000). Thus, J’s applicable percentage is 75 per- cent ($6,000/$8,000), and $6,000 (75 percent x $8,000) of J’s income from interest charged to Y is treated as passive activity gross income from the rental activ- ity J conducts through Y. (iv) Under paragraph (c)(2)(i) of this section, the applicable percentage of J’s interest income is rechar- acterized as passive activity gross income attribut- able to the passive trade or business activity. Paragraph (c)(3) of this section provides that the applicable per- centage is obtained by dividing J’s share for the tax- able year of Y’s self-charged interest deductions that are treated as passive activity deductions from the pas- sive trade or business activity ($2,000) by the greater of J’s share for the taxable year of Y’s self-charged interest deductions ($8,000), or J’s income for the tax- able year from interest charged to Y ($8,000). Thus, J’s applicable percentage is 25 percent ($2,000/$8,000), and $2,000 of J’s income from interest charged to Y is treated as passive activity gross income from the passive trade or business activity J conducts through Y. Par. 4. Section 1.469–11 is amended as follows: 1. Paragraph (a)(3) is amended by re- moving the language“and”at the end of the paragraph. 2. Paragraph (a)(4) is redesignated as paragraph (a)(5) and a new paragraph (a)(4) is added. 3. The paragraph headings for (c)(1) and (c)(1)(i) are revised. 4. Paragraph (c)(1)(iii) is added. 5. The added and revised provisions read as follows: 2002–38 I.R.B.547September 23, 2002 §1.469–11 Effective date and transition rules. (a)*** (4) The rules contained in§1.469–7 ap- ply for taxable years ending after Decem- ber 31, 1986; and ***** (c)*** (1)Application of certain income re- characterization rules and self-charged rules—(i)Certain recharacterization rules inapplicable in 1987.* * * ***** (iii)Self-charged rules. For taxable years beginning before June 4, 1991— (1) A taxpayer is not required to apply the rules in§1.469–7 in computing the tax- payer’s passive activity loss and passive ac- tivity credit; and (2) A taxpayer that owns an interest in a passthrough entity may use any reason- able method of offsetting items of inter- est income and interest expense from lendingtransactionsbetweenthe passthrough entity and its owners or be- tween identically-owned passthrough en- tities (as defined in§1.469–7(e)) to compute the taxpayer’s passive activity loss and passive activity credit. Items from non- lending transactions cannot be offset un- der the self-charged rules. ***** PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT Par. 5. The authority citation for the part 602 continues to read: Authority: 26 U.S.C. 7805. Par.6.In§602.101, paragraph (b) is amended by adding the following entry in numerical order to the table to read as follows: §602.101 OMB Control Numbers. ***** (b)*** CFR part or section where identified and described Current OMB control number ***** 1.469–7 ................................................................................................................................................................1545–1244 ***** Robert E Wenzel, Deputy Commissioner of Internal Revenue. Approved July 31, 2002. Pamela F. Olson, Acting Assistant Secretary of the Treasury. (Filed by the Office of the Federal Register on August 20, 2002, 8:45 a.m., and published in the issue of the Federal Reg- ister for August 21, 2002, 67 F.R. 54087) Section 6321.—Lien for Taxes Ct. D. 2075 SUPREME COURT OF THE UNITED STATES No. 00–1831 UNITED STATESv.CRAFT CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT April 17, 2002 Syllabus When respondent’s husband failed to pay federal income tax liabilities assessed against him, a federal tax lien attached to “all [of his] property and rights to prop- erty.”26 U.S.C. Sec. 6321. After the no- tice of the lien was filed, respondent and her husband jointly executed a quitclaim deed purporting to transfer to her his in- terest in a piece of real property in Michi- gan that they owned as tenants by the entirety. Subsequently the Internal Rev- enue Service (IRS) agreed to release the lien and allow respondent to sell the property with half the net proceeds to be held in es- crow pending determination of the Gov- ernment’s interest in the property. She brought this action to quiet title to the es- crowed proceeds. The Government claimed, among other things, that its lien had at- tached to the husband’s interest in the ten- ancy by the entirety. The District Court granted the Government summary judg- ment, but the Sixth Circuit held that no lien attached because the husband had no sepa- rate interest in the entireties property un- der Michigan law, and remanded the case for consideration of an alternative claim not at issue here. In affirming the District Court’s decision on remand, the Sixth Cir- cuit held that its prior opinion on the is- sue whether the lien attached to the husband’s entireties property was the law of the case. Held:the husband’s interests in the en- tireties property constitute“property”or “rights to property”to which a federal tax lien may attach. Pp. 3–15. (a) Because the federal tax lien stat- ute itself creates no property rights,Unit- edStates v. Bess, 357 U.S. 51, 55, this Court looks initially to state law to determine what September 23, 20025482002–38 I.R.B. rights the taxpayer has in the property the Government seeks to reach and then to fed- eral law to determine whether such state- delineated rights qualify as property or rights to property under Sec. 6321,Drye v. United States, 528 U.S. 49, 58. A com- mon idiom describes property as a“bundle of sticks”—a collection of individual rights which, in certain combinations, constitute property. State law determines which sticks are in a person’s bundle, but federal law de- termines whether those sticks constitute property for federal tax lien purposes. In looking to state law, this Court must con- sider the substance of the state law rights, not the labels the State gives them or the conclusions it draws from them. Pp. 3–4. (b) Michigan law gave respondent’s hus- band, among other rights, the right to use the entireties property, the right to exclude others from it, the right of survivorship, the right to become a tenant in common with equal shares upon divorce, the right to sell the property with respondent’s consent and to receive half the proceeds from such a sale, the right to encumber the property with respondent’s consent, and the right to block respondent from selling or encumbering the property unilaterally. Pp. 4–8. (c) The rights Michigan law granted re- spondent’s husband qualify as“property” or“rights to property”under Sec. 6321. The broad statutory language authorizing the tax lien reveals that Congress meant to reach every property interest that a taxpayer might have.United States v. National Bank of Commerce, 472 U.S. 713, 719–720. The husband’s rights of use, exclusion, and in- come alone may be sufficient to subject his entireties interest to the lien, for they gave him a substantial degree of control over the property. SeeDrye, supra, at 61. He also had the right to alienate the property with respondent’s consent. The unilateral alien- ation stick is not essential to“property.” Federal tax liens may attach to property that cannot be unilaterally alienated,United States v. Rodgers, 461 U.S. 677, and ex- cluding such property would exempt a rather large amount of what is commonly thought of as property. A number of the sticks in respondent’s husband’s bundle were presently existing, so it is not neces- sary to consider whether his survivorship right alone, which respondent claims is an expectancy, would qualify as property or rights to property. Were this Court to reach a contrary conclusion, the entireties prop- erty would belong to no one for Sec. 6321 purposes, because respondent had no more interest in the property than her husband. Such a result seems absurd, and would al- low spouses to shield their property from federal taxation by classifying it as entire- ties property, facilitating abuse of the fed- eral tax system. Legislative history does not support respondent’s position that Con- gress did not intend that a federal tax lien attach to an entireties property interest. And the common law background of the tax lien statute’s enactment is not enough to over- come the broad language Congress actu- ally used. Pp. 8–14. (d) That Michigan makes a different choice with respect to state law creditors does not dictate the choice here. Because Sec. 6321’s interpretation is a federal ques- tion, this Court is in no way bound by state courts’answers to similar questions involv- ing state law. P. 14. 233 F.3d 358 reversed and remanded. O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissent- ing opinion, in which STEVENS and SCA- LIA, JJ., joined. SUPREME COURT OF THE UNITED STATES No. 00–1831 UNITED STATESv. SANDRA L. CRAFT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT April 17, 2002 JUSTICE O’CONNOR delivered the opinion of the Court. This case raises the question whether a tenant by the entirety possesses“prop- erty”or“rights to property”to which a fed- eral tax lien may attach. 26 U.S.C. Sec. 6321. Relying on the state law fiction that a tenant by the entirety has no separate in- terest in entireties property, the United States Court of Appeals for the Sixth Circuit held that such property is exempt from the tax lien. We conclude that, despite the fic- tion, each tenant possesses individual rights in the estate sufficient to constitute“prop- erty”or“rights to property”for the pur- poses of the lien, and reverse the judgment of the Court of Appeals. I In 1988, the Internal Revenue Service (IRS) assessed $482,446 in unpaid income tax liabilities against Don Craft, the hus- band of respondent Sandra L. Craft, for fail- ure to file federal income tax returns for the years 1979 through 1986. App. to Pet. for Cert. 45a, 72a. When he failed to pay, a fed- eral tax lien attached to“all property and rights to property, whether real or per- sonal, belonging to”him. 26 U.S.C. Sec. 6321. At the time the lien attached, respon- dent and her husband owned a piece of real property in Grand Rapids, Michigan, as ten- ants by the entirety. App. to Pet. for Cert. 45a. After notice of the lien was filed, they jointly executed a quitclaim deed purport- ing to transfer the husband’s interest in the property to respondent for one dollar.Ibid. When respondent attempted to sell the prop- erty a few years later, a title search re- vealed the lien. The IRS agreed to release the lien and allow the sale with the stipu- lation that half of the net proceeds be held in escrow pending determination of the Government’s interest in the property.Ibid. Respondent brought this action to quiet title to the escrowed proceeds. The Gov- ernment claimed that its lien had attached to the husband’s interest in the tenancy by the entirety. It further asserted that the trans- fer of the property to respondent was in- valid as a fraud on creditors.Id.,at46a– 47a. The District Court granted the Government’s motion for summary judg- ment, holding that the federal tax lien at- tached at the moment of the transfer to respondent, which terminated the tenancy by the entirety and entitled the Govern- ment to one-half of the value of the prop- erty. No. 1:93–CV–306, 1994 WL 669680, *3 (WD Mich., Sept. 12, 1994). Both parties appealed. The Sixth Cir- cuit held that the tax lien did not attach to the property because, under Michigan state law, the husband had no separate interest in property held as a tenant by the en- tirety. 140 F.3d 638, 643 (1998). It re- manded to the District Court to consider the Government’s alternative claim that the con- veyance should be set aside as fraudu- lent.Id., at 644. 2002–38 I.R.B.549September 23, 2002 On remand, the District Court concluded that where, as here, state law makes prop- erty exempt from the claims of creditors, no fraudulent conveyance can occur. 65 F.Supp.2d 651, 657–658 (WD Mich. 1999). It found, however, that respondent’s hus- band’s use of nonexempt funds to pay the mortgage on the entireties property, which placed them beyond the reach of credi- tors, constituted a fraudulent act under state law, and the court awarded the IRS a share of the proceeds of the sale of the prop- erty equal to that amount.Id., at 659. Both parties appealed the District Court’s decision, the Government again claiming that its lien attached to the husband’s in- terest in the entireties property. The Court of Appeals held that the prior panel’s opin- ion was law of the case on that issue. 233 F.3d 358, 363–369 (CA6 2000). It also af- firmed the District Court’s determination that the husband’s mortgage payments were fraudulent.Id.,at369–375. We granted certiorari to consider the Government’s claim that respondent’s hus- band had a separate interest in the entire- ties property to which the federal tax lien attached. 533 U.S. 976 (2001). II Whether the interests of respondent’s husband in the property he held as a ten- ant by the entirety constitutes“property and rights to property”for the purposes of the federal tax lien statute, 26 U.S.C. Sec. 6321 is ultimately a question of federal law. The answer to this federal question, however, largely depends upon state law. The fed- eral tax lien statute itself“creates no prop- ertyrights,butmerelyattaches consequences, federally defined, to rights created under state law.”United States v. Bess, 357 U.S. 51, 55 (1958); see also United States v. National Bank of Com- merce, 472 U.S. 713, 722 (1985). Accord- ingly, “[w]e look initially to state law to de- termine what rights the taxpayer has in the property the Government seeks to reach, then to federal law to determine whether the taxpayer’s state—delineated rights qualify as“property”or“rights to property”within the compass of the federal tax lien legis- lation.Drye v. United States, 528 U.S. 49, 58 (1999). A common idiom describes property as a“bundle of sticks”—a collection of in- dividual rights which, in certain combina- tions, constitute property. See B. Cardozo, Paradoxes of Legal Science 129 (1928) (re- print 2000); see alsoDickman v. Commis- sioner, 465 U.S. 330, 336 (1984). State law determines only which sticks are in a per- son’s bundle. Whether those sticks qualify as“property”for purposes of the federal tax lien statute is a question of federal law. In looking to state law, we must be care- ful to consider the substance of the rights state law provides, not merely the labels the State gives these rights or the conclusions it draws from them. Such state law labels are irrelevant to the federal question of which bundles of rights constitute prop- erty that may be attached by a federal tax lien. InDrye v. United States,supra,we considered a situation where state law al- lowed an heir subject to a federal tax lien to disclaim his interest in the estate. The state law also provided that such a dis- claimer would“creat[e] the legal fiction” that the heir had predeceased the dece- dent and would correspondingly be deemed to have had no property interest in the es- tate.Id., at 53. We unanimously held that this state law fiction did not control the fed- eral question and looked instead to the re- alities of the heir’s interest. We concluded that, despite the State’s characterization, the heir possessed a“right to property”in the estate—the right to accept the inherit- ance or pass it along to another—to which the federal lien could attach.Id., at 59– 61. III We turn first to the question of what rights respondent’s husband had in the en- tireties property by virtue of state law. In order to understand these rights, the ten- ancy, by the entirety must first be placed in some context. English common law provided three le- gal structures for the concurrent owner- ship of property that have survived into modern times: tenancy in common, joint tenancy, and tenancy by the entirety. 1 G. Thompson, Real Property Sec. 4.06(g) (D. Thomas ed. 1994) (hereinafter Thomp- son). The tenancy in common is now the most common form of concurrent owner- ship. 7 R. Powell & P. Rohan, Real Prop- erty Sec. 51.01[3] (M. Wolf ed. 2001) (hereinafter Powell). The common law char- acterized tenants in common as each own- ing a separate fractional share in undivided property.Id., Sec. 50.01[1]. Tenants in common may each unilaterally alienate their shares through sale or gift or place encum- brances upon these shares. They also have the power to pass these shares to their heirs upon death. Tenants in common have many other rights in the property, including the right to use the property, to exclude from third parties from it, and to receive a por- tion of any income produced from it. Id., Secs. 50.03–50.06. Joint tenancies were the predominant form of concurrent ownership at common law, and still persist in some States today. 4 Thompson Sec. 31.05. The common law characterized each joint tenant as possess- ing the entire estate, rather than a frac- tional share:“[J]oint tenants have one and the same interest...held by one and the same undivided possession.”2 W. Black- stone, Commentaries on the Laws of En- gland 180 (1766). Joint tenants possess many of the rights enjoyed by tenants in common: the right to use, to exclude, and to enjoy a share of the property’s income. The main difference between a joint ten- ancy and a tenancy in common is that a joint tenant also has a right of automatic in- heritance known as“survivorship.”Upon the death of one joint tenant, that tenant’s share in the property does not pass through will or the rules of intestate succession; rather, the remaining tenant or tenants au- tomatically inherit it.Id., at 183; 7 Pow- ell Sec. 51.01[3]. Joint tenants’right to alienate their individual shares is also some- what different. In order for one tenant to alienate his or her individual interest in the tenancy, the estate must first be severed— that is, converted to a tenancy in com- mon with each tenant possessing an equal fractional share.Id., Sec. 51.04[1]. Most States allowing joint tenancies facilitate alienation, however, by allowing sever- ance to automatically accompany a con- veyance of that interest or any other overt act indicating an intent to sever.Ibid. A tenancy by the entirety is a unique sort of concurrent ownership that can only ex- ist between married persons. 4 Thompson Sec. 33.02. Because of the common law fic- tion that the husband and wife were one person at law (that person, practically speak- ing, was the husband, see J. Cribbet et al., Cases and Materials on Property 329 (6th ed. 1990)), Blackstone did not character- ize the tenancy by the entirety as a form of concurrent ownership at all. Instead, he thought that entireties property was a form of single ownership by the marital unity. September 23, 20025502002–38 I.R.B. Orth, Tenancy by the Entirety: The Strange Career of the Common law Marital Es- tate, 1997 B.Y.U.L.Rev. 35, 38–39. Nei- ther spouse was considered to own any individual interest in the estate; rather, it be- longed to the couple. Like joint tenants, tenants by the en- tirety enjoy the right of survivorship. Also like a joint tenancy, unilateral alienation of a spouse’s interest in entireties property is typically not possible without severance. Unlike joint tenancies, however, tenan- cies by the entirety cannot easily be sev- ered unilaterally. 4 Thompson Sec. 33.08(b). Typically, severance requires the consent of both spouses,id., Sec. 33.08(a), or the end- ing of the marriage in divorce,id., Sec. 33.08(d). At common law, all of the other rights associated with the entireties prop- erty belonged to the husband: as the head of the household, he could control the use of the property and the exclusion of oth- ers from it and enjoy all of the income pro- duced from it. Id., Sec. 33.05. The husband’s control of the property was so ex- tensive that, despite the rules on alien- ation, the common law eventually provided that he could unilaterally alienate entire- ties property without severance subject only to the wife’s survivorship interest.Orth, su- pra,at40–41. With the passage of the Married Wom- en’s Property Acts in the late 19th cen- tury granting women distinct rights with respect to marital property, most States ei- ther abolished the tenancy by the entirety or altered it significantly. 7 Powell Sec. 52.01[2]. Michigan’s version of the estate is typical of the modern tenancy by the en- tirety. Following Blackstone, Michigan char- acterizes its tenancy by the entirety as creating no individual rights whatsoever:“It is well settled under the law of this state that one tenant by the entirety has no in- terest separable from that of the other. . .. Each is vested with an entire title.Long v. Earle, 277 Mich. 505, 517, 269 N.W. 577, 581 (1936). And yet, in Michigan, each ten- ant by the entirety possesses the right of sur- vivorship. Mich. Comp. Laws Ann. Sec. 554.872(g) (West Supp. 1997), recodified at Sec. 700.2901(2)(g) (West Supp. Pam- phlet 2001). Each spouse—the wife as well as the husband—may also use the property, exclude third parties from it, and receive an equal share of the income pro- duced by it. See Sec. 557.71 (West 1988). Neither spouse may unilaterally alienate or encumber the property,Long v. Earle, su- pra, at 517, 269 N.W. at 581;Rogers v. Rogers, 136 Mich. App. 125, 134, 356 N.W. 2d 288, 292 (1984), although this may be accomplished with mutual consent,Eadus v. Hunter, 249 Mich. 190, 228 N.W. 782 (1930). Divorce ends the tenancy by the en- tirety, generally giving each spouse an equal interest in the property as a tenant in com- mon unless the divorce decree specifies oth- erwise. Mich. Comp. Laws Ann. Sec. 552.102 (West 1988). In determining whether respondent’s hus- band possessed“property”or“rights to property”within the meaning of 26 U.S.C. Sec. 6321, we look to the individual rights created by these state law rules. Accord- ing to Michigan law, respondent’s hus- band had, among other rights, the following rights with respect to the entireties property: the right to use the property, the right to ex- clude third parties from it, the right to a share of income produced from it, the right of survivorship, the right to become a ten- ant in common with equal shares upon di- vorce, the right to sell the property with the respondent’s consent and to receive half the proceeds from such a sale, the right to place an encumbrance on the property with the respondent’s consent, and the right to block respondent from selling or encumbering the property unilaterally. IV We turn now to the federal question of whether the rights Michigan law granted to respondent’s husband as a tenant by the en- tirety qualify as“property”or“rights to property”under Sec. 6321. The statutory language authorizing the tax lien“is broad and reveals on its face that Congress meant to reach every interest in property that a tax- payer might have.”United States v. Na- tional Bank of Commerce, 472 U.S. at 719– 720.“Stronger language could hardly have been selected to reveal a purpose to as- sure the collection of taxes.”Glass City Bank v. United States, 326 U.S. 265, 267 (1945). We conclude that the husband’s rights in the entireties property fall within this broad statutory language. Michigan law grants a tenant by the en- tirety some of the most essential property rights: the right to use the property, to re- ceive income produced by it, and to ex- clude others from it. SeeDolan v. City of Tigard, 512 U.S. 374, 384 (1994) (“[T]he right to exclude others”is“one of the most essential sticks in the bundle of rights that are commonly characterized as property”) (quotingKaiser Aetna v. United States, 444 U.S. 164, 176 (1979));Loretto v. Tele- prompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (including“use”as one of the“[p]roperty rights in a physical thing”). These rights alone may be sufficient to sub- ject the husband’s interest in the entire- ties property to the federal tax lien. They gave him a substantial degree of control over the entireties property, and, as we noted inDrye,“in determining whether a fed- eral taxpayer’s state law rights constitute “property”or“rights to property,”[t]he im- portant consideration is the breadth of the control the [taxpayer] could exercise over the property. 528 U.S. at 61 (internal quo- tation marks omitted). The husband’s rights in the estate, how- ever, went beyond use, exclusion, and in- come. He also possessed the right to alienate (or otherwise encumber) the property with the consent of respondent, his wife.Lor- etto, supra, at 435 (the right to“dispose” of an item is a property right). It is true, as respondent notes, that he lacked the right to unilaterally alienate the property, a right that is often in the bundle of property rights. See alsopostat 7. There is no reason to be- lieve, however, that this one stick—the right of unilateral alienation—is essen- tial to the category of“property.” This Court has already stated that fed- eral tax liens may attach to property that cannot be unilaterally alienated. InUnited States v. Rodgers, 461 U.S. 677 (1983), we considered the Federal Government’s power to foreclose homestead property attached by a federal tax lien. Texas law provided that “‘the owner or claimant of the property claimed as homestead [may not], if mar- ried, sell or abandon the homestead with- out the consent of the other spouse.’”Id., at 684–685 (quoting Tex. Const., Art. 16, Sec. 50). We nonetheless stated that“[i]n the homestead context...,there is no doubt...that not only dobothspouses (rather than neither) have an independent interest in the homestead property, but that a federal tax lien can at leastattachto each of those interests. 461 U.S. at 703, n. 31; cf.Drye, supra, at 60, n. 7 (noting that“an interest in a spendthrift trust has been held to constitute‘property for purposes of Sec. 6321’even though the beneficiary may not transfer that interest to third parties”). 2002–38 I.R.B.551September 23, 2002 Excluding property from a federal tax lien simply because the taxpayer does not have the power to unilaterally alienate it would, moreover, exempt a rather large amount of what is commonly thought of as property. It would exempt not only the type of property discussed inRodgers, but also some community property. Community property states often provide that real com- munity property cannot be alienated with- out the consent of both spouses. See,e.g., Ariz. Rev. Stat. Ann. Sec. 25–214(C) (2000); Cal. Fam. Code Ann. Sec. 1102 (West 1994); Idaho Code Sec. 32–912 (1996); La. Civ. Code Ann., Art. 2347 (West Supp. 2002); Nev. Rev. Stat. Sec. 123.230(3) (1995); N.M. Stat. Ann. Sec. 40– 3–13 (1999); Wash. Rev. Code Sec. 26.16.030(3) (1994). Accordingly, the fact that respondent’s husband could not uni- laterally alienate the property does not pre- clude him from possessing“property and rights to property”for the purposes of Sec. 6321. Respondent’s husband also possessed the right of survivorship—the right to auto- matically inherit the whole of the estate should his wife predecease him. Respon- dent argues that this interest was merely an expectancy, which we suggested inDrye would not constitute“property”for the pur- poses of a federal tax lien. 528 U.S. at 60, n.7(“[We do not mean to suggest] that an expectancy that has pecuniary value... would fall within Sec. 6321 prior to the time it ripens into a present estate”).Drye did not decide this question, however, nor do we need to do so here. As we have dis- cussed above, a number of the sticks in re- spondent’s husband’s bundle were presently existing. It is therefore not necessary to de- cide whether the right to survivorship alone would qualify as“property”or“rights to property”under Sec. 6321. That the rights of respondent’s hus- band in the entireties property constitute “property”or“rights to property”“belong- ing to”him is further underscored by the fact that if the conclusion were otherwise, the entireties property would belong to no one for the purposes of Sec. 6321. Respon- dent had no more interest in the property than her husband; if neither of them had a property interest in the entireties prop- erty, who did? This result not only seems absurd, but would also allow spouses to shield their property from federal taxa- tion by classifying it as entireties prop- erty, facilitating abuse of the federal tax system. Johnson, AfterDrye: The Likely At- tachment of the Federal Tax Lien to Ten- ancy by the Entireties Interests, 75 Ind.L.J. 1163, 1171 (2000). JUSTICE SCALIA’s and JUSTICE THOMAS’dissents claim that the conclu- sion that the husband possessed an inter- est in the entireties property to which the federal tax lien could attach is in conflict with the rules for tax liens relating to part- nership property. Seepostat 1; see alsopost at 6, n. 4. This is not so. As the authori- ties cited by JUSTICE THOMAS reflect, the federal tax lien does attach to an indi- vidual partner’s interest in the partner- ship, that is, to the fair market value of his or her share in the partnership assets.Ibid. (citing B. Bittker & M. McMahon, Fed- eral Income Taxation of Individuals ¶44.5[4][a] (2d ed. 1995 and 2000 Cum- .Supp.)); see also A. Bromberg & L. Rib- stein, Partnership Sec. 3.05(d) (2002–1 Supp.) (hereinafter Bromberg & Ribstein) (citing Uniform Partnership Act Sec. 28, 6 U.L.A. 744 (1995)). As a holder of this lien, the Federal Government is entitled to“re- ceive...theprofits to which the assign- ing partner would otherwise be entitled,” including predissolution distributions and the proceeds from dissolution. Uniform Partnership Act Sec. 27(1),id., at 736. There is, however, a difference between the treatment of entireties property and part- nership assets. The Federal Government may not compel the sale of partnership as- sets (although it may foreclose on the part- ner’s interest, Bromberg & Ribstein Sec. 3.05(d)(3)(iv)). It is this difference that is reflected in JUSTICE SCALIA’s asser- tion that partnership property cannot be en- cumbered by individual partner’s debts. See postat 1. This disparity in treatment be- tween the two forms of ownership, how- ever, arises from our decision inUnited States v. Rodgers, 461 U.S. 677 (1983) (holding that the Government may fore- close on property even where the co-owners lack the right of unilateral alienation), and not our holding today. In this case, it is in- stead the dissenters’theory that departs from partnership law, as it would hold that the Federal Government’s lien does not at- tach to the husband’s interest in the entire- ties property at all, whereas the lien may attach to an individual’s interest in part- nership property. Respondent argues that whether or not we would conclude that respondent’s hus- band had an interest in the entireties prop- erty, legislative history indicates that Congress did not intend that a federal tax lien should attach to such an interest. In 1954, the Senate rejected a proposed amendment to the tax lien statute that would have provided that the lien attach to“prop- erty or rights to property (including the in- terest of such person as tenant by the entirety).”S.Rep. No. 1622, 83d Cong., 2d Sess., p. 575 (1954). We have elsewhere held, however, that failed legislative pro- posals are“a particularly dangerous ground on which to rest an interpretation of a prior statute,”Pension Benefit Guaranty Corpo- ration v. LTV Corp., 496 U.S. 633, 650 (1990), reasoning that“‘[c]ongressional in- action lacks persuasive significance be- cause several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation al- ready incorporated the offered change,’” Central Bank of Denver, N.A. v. First In- terstate Bank of Denver,N.A., 511 U.S. 164, 187 (1994). This case exemplifies the risk of relying on such legislative history. As we noted inUnited States v. Rodgers, 461 U.S. at 704, n. 31, some legislative history sur- rounding the 1954 amendment indicates that the House intended the amendment to be nothing more than a“clarification”of ex- isting law, and that the Senate rejected the amendment only because it found it“su- perfluous.”See H.R. Rep. No. 1337, 83d Cong., 2d Sess., A406 (1954) (noting that the amendment would“clarif[y] the term ‘property and rights to property’by ex- pressly including therein the interest of the delinquent taxpayer in an estate by the en- tirety”); S. Rep. No. 1622, 83d Cong., 2d Sess., 575 (1954) (“It is not clear what change in existing law would be made by the parenthetical phrase. The deletion of the phrase is intended to continue the exist- ing law”). The same ambiguity that plagues the leg- islative history accompanies the common law background of Congress’enactment of the tax lien statute. Respondent argues that Congress could not have intended the pas- sage of the federal tax lien statute to alter the generally accepted rule that liens could not attach to entireties property. SeeAsto- ria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991) (“[W]here a com- mon law principle is well established... September 23, 20025522002–38 I.R.B. the courts may take it as given that Con- gress has legislated with an expectation that the principle will apply except‘when a statutory purpose to the contrary is evi- dent’”). The common law rule was not so well established with respect to the appli- cation of a federal tax lien that we must as- sume that Congress considered the impact of its enactment on the question now be- fore us. There was not much of a com- mon law background on the question of the application of federal tax liens, as the first court of appeals cases dealing with the ap- plication of such a lien did not arise until the 1950’s.United States v. Hutcherson, 188 F.2d 326 (CA8 1951);Raffaele v. Granger, 196 F.2d 620 (CA3 1952). This background is not sufficient to overcome the broad statutory language Congress did enact, au- thorizing the lien to attach to“all prop- erty and rights to property”a taxpayer might have. We therefore conclude that respondent’s husband’s interest in the entireties prop- erty constituted“property”or“rights to property”for the purposes of the federal tax lien statute. We recognize that Michigan makes a different choice with respect to state law creditors:“[L]and held by hus- band and wife as tenants by entirety is not subject to levy under execution on judg- ment rendered against either husband or wife alone.”Sanford v. Bertrau, 204 Mich. 244, 247, 169 N.W. 880, 881 (1918). But that by no means dictates our choice. The interpretation of 26 U.S.C. Sec. 6321 is a federal question, and in answering that ques- tion we are in no way bound by state courts’answers to similar questions involv- ing state law. As we elsewhere have held, “‘exempt status under state law does not bind the federal collector.’”Drye v. United States, 528 U.S. at 51. See alsoRodgers, supra, at 701 (clarifying that the Supremacy Clause“provides the underpinning for the Federal Government’s right to sweep aside state-created exemptions”). V We express no view as to the proper valuation of respondent’s husband’s inter- est in the entireties property, leaving this for the Sixth Circuit to determine on remand. We note, however, that insofar as the amount is dependent upon whether the 1989 conveyance was fraudulent, seepostat 1, n. 1 (THOMAS, J., dissenting), this case is somewhat anomalous. The Sixth Circuit af- firmed the District Court’s judgment that this conveyance was not fraudulent, and the Government has not sought certiorari re- view of that determination. Since the Dis- trict Court’s judgment was based on the notion that because the federal tax lien could not attach to the property, transferring it could not constitute an attempt to evade the Government creditor, 65 F.Supp.2d at 657– 659, in future cases, the fraudulent con- veyance question will no doubt be answered differently. The judgment of the United States Court of Appeals for the Sixth Circuit is accord- ingly reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. SUPREME COURT OF THE UNITED STATES No. 00–1831 UNITED STATES PETITIONERv. SANDRA L.CRAFT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT April 17, 2002 JUSTICE SCALIA, with whom JUS- TICE THOMAS joins, dissenting. I join JUSTICE THOMAS’dissent, which points out (to no relevant response from the Court) that a State’s decision to treat the marital partnership as a separate legal entity, whose property cannot be en- cumbered by the debts of its individual members, is no more novel and no more “artificial”than a State’s decision to treat the commercial partnership as a separate le- gal entity, whose property cannot be en- cumbered by the debts of its individual members. I write separately to observe that the Court nullifies (insofar as federal taxes are concerned, at least) a form of property own- ership that was of particular benefit to the stay-at- home spouse or mother. She is over- whelmingly likely to be the survivor that obtains title to the unencumbered prop- erty, and she (as opposed to her business- world husband) is overwhelmingly unlikely to be the source of the individual indebt- edness against which a tenancy by the en- tirety protects. It is regrettable that the Court has eliminated a large part of this tradi- tional protection retained by many States. SUPREME COURT OF THE UNITED STATES No. 00–1831 UNITED STATES PETITIONERv. SANDRA L. CRAFT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT April 17, 2002 JUSTICE THOMAS, with whom JUS- TICE STEVENS and JUSTICE SCALIA join, dissenting. The Court today allows the Internal Rev- enue Service (IRS) to reach proceeds from the sale of real property that did not be- long to the taxpayer, respondent’s hus- band, Don Craft, 1 because, in the Court’s view, he“possesse[d] individual rights in the [tenancy by the entirety] estate suffi- cient to constitute‘property and rights to property’for the purposes of the lien”cre- ated by 26 U.S.C. Sec. 6321.Ante,at1.The Court does not contest that the tax liabil- ity the IRS seeks to satisfy is Mr. Craft’s alone, and does not claim that, under Michi- gan law, real property held as a tenancy by the entirety belongs to either spouse indi- vidually. Nor does the Court suggest that the federal tax lien attaches to particular “rights to property”held individually by Mr. Craft. Rather, borrowing the metaphor of “property as a‘bundle of sticks’—a col- lection of individual rights which, in cer- tain combinations constitute property,”ante, at 4, the Court proposes that so long as suf- 1 The Grand Rapids property was tenancy by the entirety property owned by Mr. and Mrs. Craft when the tax lien attached, but was conveyed by the Crafts to Mrs. Craft by quitclaim deed in 1989. That conveyance terminated the entirety estate. Mich. Comp. Laws Ann. Sec. 557.101 (West 1988); see alsoUnited States v. Certain Real Property Located at 2525 Leroy Lane, 910 F.2d 343, 351 (CA6 1990). The District Court and Court of Appeals both held that the transfer did not constitute a fraudulent conveyance, a ruling the Government has not appealed. The IRS is undoubtedly entitled to any proceeds that Mr. Craft received or to which he was entitled fromthe 1989 conveyanceof the tenancy by the entirety property for $1.00; at that point, the tenancy by the entirety estate was destroyed and at least half of the proceeds, or 50cents, was“property”or “rights to property”“belonging to”Mr. Craft. By contrast, the proceeds that the IRS claims here are fromMrs. Craft’s 1992 saleof the property to a third party. At the time of the sale, she owned the property in fee simple, and accordingly Mr. Craft neither received nor was entitled to these funds. 2002–38 I.R.B.553September 23, 2002 ficient“sticks”in the bundle of“rights to property”“belong to”a delinquent tax- payer, the lien can attach as if the prop- erty itself belonged to the taxpayer.Ante, at 11. This amorphous construct ignores the primacy of state law in defining property interests, eviscerates the statutory distinc- tion between“property”and“rights to prop- erty”drawn by Sec. 6321, and conflicts with an unbroken line of authority from this Court, the lower courts, and the IRS. Its ap- plication is all the more unsupportable in this case because, in my view, it is highly unlikely that the limited individual“rights to property”recognized in a tenancy by the entirety under Michigan law are them- selves subject to lien. I would affirm the Court of Appeals and hold that Mr. Craft did not have“property”or“rights to prop- erty”to which the federal tax lien could at- tach. I Title 26 U.S.C. Sec. 6321 provides that a federal tax lien attaches to“all property and rights to property, whether real or per- sonal, belonging to”a delinquent taxpayer. It is uncontested that a federal tax lien it- self“creates no property rights but merely attaches consequences, federally defined, to rights created under state law.”United States v. Bess, 357 U.S. 51, 55 (1958) (constru- ing the 1939 version of the federal tax lien statute). Consequently the Government’s lien under Sec. 6321“cannot extend beyond the property interests held by the delinquent tax- payer,”United States v. Rodgers, 461 U.S. 677, 690–691 (1983), under state law. Be- fore today, no one disputed that the IRS, by operation of Sec. 6321,“steps into the tax- payer’s shoes,”and has the same rights as the taxpayer in property or rights to prop- erty subject to the lien. B. Bittker & M. Mc- Mahon, Federal Income Taxation of Individuals¶44.5[4][a] (2d ed. 1995 and 2000 Cum. Supp.) (hereinafter Bittker). I would not expand“‘the nature of the le- gal interest’”the taxpayer has in the prop- erty beyond those interests recognized under state law.Aquilino v. United States, 363 U.S. 509, 513 (1960) (citingMorgan v. Com- missioner, 309 U.S. 78, 82 (1940)). A If the Grand Rapids property“belong[ed] to”Mr. Craft under state law prior to the termination of the tenancy by the entirety, the federal tax lien would have attached to the Grand Rapids property. But that is not this case. As the Court recognizes, pursu- ant to Michigan law, as under English com- mon law, property held as a tenancy by the entirety does not belong to either spouse, but to a single entity composed of the mar- ried persons. Seeante,at6–7. Neither spouse has“any separate interest in such an estate.”Sanford v. Bertrau, 204 Mich. 244, 249, 169 N.W. 880, 882 (1918); see alsoLong v. Earle, 277 Mich. 505, 517, 269 N.W. 577, 581 (1936) (“Each [spouse] is vested with an entire title and, as against the one who attempts alone to convey or encumber such real estate, the other has an absolute title”). An entireties estate consti- tutes an indivisible“sole tenancy.”SeeBud- wit v. Herr, 339 Mich. 265, 272, 63 N.W.2d 841, 844 (1954); see alsoTyler v. United States, 281 U.S. 497, 501 (1930) (“[T]he tenants constitute a unit; neither can dis- pose of any part of the estate without the consent of the other, and the whole con- tinues in the survivor”). Because Michi- gan does not recognize a separate spousal interest in the Grand Rapids property, it did not“belong”to either respondent or her husband individually when the IRS as- serted its lien for Mr. Craft’s individual tax liability. Thus, the property was not prop- erty to which the federal tax lien could at- tach for Mr. Craft’s tax liability. The Court does not dispute this char- acterization of Michigan’s law with re- spect to the essential attributes of the tenancy by the entirety estate. However, re- lying onDrye v. United States, 528 U.S. 49, 59 (1999), which in turn relied uponUnited States v. Irvine, 511 U.S. 224 (1994), and United States v. Mitchell, 403 U.S. 190 (1971), the Court suggests that Michigan’s definition of the tenancy by the entirety es- tate should be overlooked because fed- eral tax law is not controlled by state legal fictions concerning property ownership. Ante, at 4. But the Court misapprehends the application ofDryeto this case. Drye, likeIrvineandMitchellbefore it, was concerned not with whether state law recognized“property”as belonging to the taxpayer in the first place, but rather with whether state laws could disclaim or ex- empt such property from federal tax liabil- ity after the property interest was created. Dryeheld only that a state law disclaimer could not retroactively undo a vested right in an estate that the taxpayer already held, and that a federal lien therefore attached to the taxpayer’s interest in the estate. 528 U.S. at 61 (recognizing that a disclaimer does not restore thestatus quo antebecause the heir “determines who will receive the property— himself if he does not disclaim, a known other if he does”). Similarly, inIrvine, the Court held that a state law allowing an in- dividual to disclaim a gift could not force the Court to be“struck blind”to the fact that the transfer of“property”or“prop- erty rights”for which the gift tax was due had already occurred;“state property trans- fer rulesdo not transfer into federal taxa- tion rules.”511 U.S. at 239–240 (emphasis added). See alsoMitchell,supra,at204 (holding that right to renounce a marital in- terest under state law does not indicate that the taxpayer had no right to property be- fore the renunciation). Extending this Court’s“state law fic- tion”jurisprudence to determine whether property or rights to propertyexistunder state law in the first place works a sea change in the role States have tradition- ally played in“creating and defining”prop- erty interests. By erasing the careful line between state laws that purport to dis- claim or exempt property interests after the fact, which the federal tax lien does not re- spect, and state laws’definition of prop- erty and property rights, which the federal tax lien does respect, the Court does not fol- lowDrye, but rather creates a new fed- eral common law of property. This contravenes the previously settled rule that the definition and scope of property is left to the States. SeeAquilino, supra, at 513, n. 3 (recognizing unsoundness of leaving the definition of property interests to a nebu- lous body of federal law,“because it ig- nores the long-established role that the States have played in creating property in- terests and places upon the courts the task of attempting to ascertain a taxpayer’s prop- erty rights under an undefined rule of fed- eral law”). B That the Grand Rapids property does not belong to Mr. Craft under Michigan law does not end the inquiry, however, since the federal tax lien attaches not only to“prop- erty,”but also to any“rights to property” belonging to the taxpayer. While the Court concludes that a laundry list of“rights to property”belonged to Mr. Craft as a ten- September 23, 20025542002–38 I.R.B. ant by the entirety, 2 it does not suggest that the tax lien attached to any of these par- ticular rights. 3 Instead, the Court gathers these rights together and opines that there were sufficient sticks to form a bundle, so that“respondent’s husband’s interest in the entireties property constituted‘property’or ‘rights to property’for the purposes of the federal tax lien statute.”Anteat 11,13. But the Court’s“sticks in a bundle” metaphor collapses precisely because of the distinction expressly drawn by the stat- ute, which distinguishes between“prop- erty”and“rights to property.”The Court refrains from ever stating whether this case involves“property”or“rights to prop- erty”even though Sec. 6321 specifically provides that the federal tax lien attaches to“property”and“rights to property”“be- longing to”the delinquent taxpayer, and not to an imprecise construct of“individual rights in the estate sufficient to constitute ‘property and rights to property’for the pur- poses of the lien.”Ante,at1. 4 Rather than adopt the majority’s ap- proach, I would ask specifically, as the stat- ute does, whether Mr. Craft had any particular“rights to property”to which the federal tax lien could attach. He did not. 5 Such“rights to property”that have been subject to the Sec. 6321 lien are valuable and“pecuniary,”i.e., they can be attached, and levied upon or sold by the Govern- ment. 6 Drye, 528 U.S. at 58—60, and n. 7. With such rights subject to lien, the tax- payer’s interest has“ripen[ed] into a present estate”of some form and is more than a mere expectancy,id., at 60, n. 7, and thus the taxpayer has an apparent right“to chan- nel that value to [another],”id.,at61. In contrast, a tenant in a tenancy by the entirety not only lacks a present divisible vested interest in the property and control with respect to the sale, encumbrance, and transfer of the property, but also does not possess the ability to devise any portion of the property because it is subject to the oth- er’s indestructible right of survivorship. Rogers v. Rogers, 136 Mich. App. 125, 135–137, 356 N.W.2d 288, 293–294 (1984). This latter fact makes the property signifi- cantly different from community prop- erty, where each spouse has a present one- half vested interest in the whole, which may be devised by will or otherwise to a per- son other than the spouse. See 4 G. Th- ompson, Real Property Sec. 37.14(a) (D. Thomas ed. 1994) (noting that a married person’s power to devise one-half of the community property is“consistent with the fundamental characteristic of community property”:“community ownership means that each spouse owns 50% of each com- munity asset”). 7 See alsoDrye, 528 U.S. at 61 (“[I]n determining whether a federal tax- payer’s state law rights constitute‘prop- erty’or‘rights to property,’theimportant consideration is the breadth of the con- trol the taxpayer could exercise over the property”(emphasis added, citation and brackets omitted). It is clear that some of the individual rights of a tenant in entireties property are primarily personal, dependent upon the tax- payer’s status as a spouse, and similarly not susceptible to a tax lien. For example, the right to use the property in conjunction with one’s spouse and to exclude all others ap- pears particularly ill suited to being trans- ferred to another, seeibid., and to lack “exchangeable value,”id.,at56. Nor do other identified rights rise to the level of“rights to property”to which a Sec. 6321 lien can attach, because they repre- sent, at most, a contingent future interest, or an“expectancy”that has not“ripen[ed] into a present estate.”Id. at 60, n. 7 (“Nor do we mean to suggest that an expect- ancy that has pecuniary value and is trans- ferable under state law would fall within Sec. 6321 prior to the time it ripens into a present estate”). Cf.Bess, 357 U.S. at 55—56 (holding that no federal tax lien could attach to proceeds of the taxpayer’s life insurance policy because“[i]t would be anomalous to view as‘property’subject to lien proceeds never within the insured’s reach to enjoy”). By way of example, the survivorship right wholly depends upon one spouse outliving the other at which time the survivor gains“substantial rights, in re- spect of the property, theretofore never en- joyed by [the] survivor.”Tyler, 281 U.S. at 503. While the Court explains that it is“not necessary to decide whether the right to sur- vivorship alone would qualify as‘prop- erty’or‘rights to property’”under Sec. 6321,ante, at 11, the facts of this case dem- onstrate that it would not. Even assuming both that the right of survivability contin- ued after the demise of the tenancy estate and that the tax lien could attach to such a contingent future right, creating a lien- able interest upon the death of the nonli- able spouse, it would not help the IRS here; respondent’s husband predeceased her in 1998, and there is no right of survivor- ship at issue in this case. 2 The parties disagree as to whether Michigan law recognizes the“rights to property”identified by the Court asindividualrights“belonging to”each tenant in entireties property. Without deciding a question better resolved by the Michigan courts, for the purposes of this case, I will assume,arguendo, that Michigan law recognizes separate interests in these“rights to property.” 3 Nor does the Court explain how such“rights to property”survived the destruction of the tenancy by the entirety, although, for all intents and purposes, it acknowledges that such rights as it identifies exist by virtue of the tenancy by the entirety estate. Even Judge Ryan’s concurrence in the Sixth Circuit’s first ruling in this matter is best read as making the Federal Government’s right to execute its lien dependent upon the factual finding that the conveyance was a fraudulent transaction. See 140 F.3d 638, 648–649 (1998). 4 The Court’s reasoning that because a taxpayer has rights to property a federal tax lien can attach not only to those rights but also to the property itself could have far-reaching consequences. As illustration, in the partnership setting as elsewhere, the Government’s lien under Sec. 6321 places the Government in no better position than the taxpayer to whom the property belonged:“[F]or example, the lien for a partner’s unpaid income taxes attaches to his interest in the firm, not to the firm’s assets.′′Bittker¶44.5[4][a]. Though partnership property currently is“not subject to attachment or execution, except on a claim against the partnership,” Rev.Rul. 73–24, 1973–1 Cum. Bull. 602; cf.United States v. Kaufman, 267 U.S. 408 (1925), under the logic of the Court’s opinion partnership property could be attached for the tax liability of an individual partner. Like a tenant in a tenancy by the entirety, the partner has significant rights to use, enjoy, and control the partnership property in conjunction with his partners. I see no principled way to distinguish between the propri- ety of attaching the federal tax lien to partnership property to satisfy the tax liability of a partner, in contravention of current practice, and the propriety of attaching the federal tax lien to tenancy by the entirety prop- erty in order to satisfy the tax liability of one spouse, also in contravention of current practice. I do not doubt that a tax lien may attach to a partner’s partnership interest to satisfy his individual tax liability, but it is well settled that the lien does not thereby attach to property belonging to the partnership. The problem for the IRS in this case is that, unlike a partnership interest, such limited rights that Mr. Craft had in the Grand Rapids property are not the kind of rights to property to which a lien can attach, and the Grand Rapids property itself never“belong[ed] to”him under Michigan law. 5 Even such rights as Mr. Craft arguably had in the Grand Rapids property bear no resemblance to those to which a federal tax lien has ever attached. See W. Elliott, Federal Tax Collections, Liens, and Levies¶¶9.09[3][a]– [f] (1995 and 2000 Cum. Supp.) (hereinafter Elliott) (listing examples of rights to property to which a federal tax lien attaches, such as the right to compel payment; the right to withdraw money from a bank account, or to receive money from accounts receivable; wages earned but not paid; installment payments under a contract of sale of real estate; annuity payments; a beneficiary’s rights to payment under a spendthrift trust; a liquor license; an asement; the taxpayer’s interest in a timeshare; options; the taxpayer’s interest in an employee benefit plan or individual retirement account). 6 See 26 U.S.C. Sections 6331 6335–6336. 7 And it is similarly different from the situation inUnited States v. Rodgers, 461 U.S. 677 (1983), where the question was not whether a vested property interest in the family home to which the federal tax lien could attach“belong[ed] to”the taxpayer. Rather, inRodgers, the only question was whether the federal tax lien for the husband’s tax liability could beforeclosedagainst the property under 26 U.S.C. Sec. 7403 despite his wife’s homestead right under state law. See 461 U.S. at 701–703, and n. 31. 2002–38 I.R.B.555September 23, 2002 Similarly, while one spouse might es- cape the absolute limitations on individual action with respect to tenancy by the en- tirety property by obtaining the right to one- half of the property upon divorce, or by agreeing with the other spouse to sever the tenancy by the entirety, neither instance is an event of sufficient certainty to consti- tute a“right to property”for purposes of Sec. 6321. Finally, while the federal tax lien could arguably have attached to a tenant’s right to any“rents, products, income, or profits”of real property held as tenants by the entirety, Mich. Comp. Laws Ann. Sec. 557.71 (West 1988), the Grand Rapids prop- erty created no rents, products, income, or profits for the tax lien to attach to. In any event, all such rights to prop- erty, dependent as they are upon the exist- ence of the tenancy by the entirety estate, were likely destroyed by the quitclaim deed that severed the tenancy. See n. 1,supra. Unlike a lien attached to the property it- self, which would survive a conveyance, a lien attached to a“right to property”falls squarely within the maxim that“the tax col- lector not only steps into the taxpayer’s shoes, but must go barefoot if the shoes wear out.”Bittker¶44.5[4][a] (noting that “a state judgment terminating the taxpay- er’s rights to an asset also extinguishes the federal tax lien attached thereto”). See also Elliott¶9.09[3][d][i] (explaining that while a tax lien may attach to a taxpayer’s op- tion on property, if the option terminates, the Government’s lien rights would termi- nate as well). Accordingly, I conclude that Mr. Craft had neither“property”nor“rights to prop- erty”to which the federal tax lien could at- tach. II That the federal tax lien did not attach to the Grand Rapids property is further sup- ported by the consensus among the lower courts. For more than 50 years, every fed- eral court reviewing tenancies by the en- tirety in States with a similar understanding of tenancy by the entirety as Michigan has concluded that a federal tax lien cannot at- tach to such property to satisfy an indi- vidual spouse’s tax liability. 8 This consensus is supported by the IRS’consistent recog- nition, arguably against its own interest, that a federal tax lien against one spouse can- not attach to property or rights to prop- erty held as a tenancy by the entirety. 9 That the Court fails to so much as men- tion this consensus, let alone address it or give any reason for overruling it, is puz- zling. While the positions of the lower courts and the IRS do not bind this Court, one would be hard pressed to explain why the combined weight of these judicial and administrative sources—including the IRS’ instructions to its own employees—do not constitute relevant authority. III Finally, while the majority character- izes Michigan’s view that the tenancy by the entirety property does not belong to the individual spouses as a“state law fiction,” ante, at 1, our precedents, includingDrye, 528 U.S. at 58–60, hold that state, not fed- eral, law defines property interests. Own- ership by“the marriage”is admittedly a fiction of sorts, but so is a partnership or corporation. There is no basis for ignor- ing this fiction so long as federal law does not define property, particularly since the tenancy by the entirety property remains subject to lien for the tax liability ofboth tenants. Nor do I accept the Court’s unsupported assumption that its holding today is nec- essary because a contrary result would“fa- cilitat[e] abuse of the federal tax system.” Ante, at 11. The Government created this straw man, Brief for United States 30– 32, suggesting that the property transfer from the tenancy by the entirety to respon- dent was somehow improper, seeid., at 30– 31, n. 20 (characterizing scope of“[t]he tax avoidance scheme sanctioned by the court of appeals in this case”), even though it chosenotto appeal the lower court’s con- trary assessment. But the longstanding con- sensus in the lower courts that tenancy by the entirety property isnotsubject to lien for the tax liability of one spouse, com- bined with the Government’s failure to ad- duce any evidence that this has led to wholesale tax fraud by married individu- als, suggests that the Court’s policy ratio- nale for its holding is simply unsound. Just as I am unwilling to overturn this Court’s longstanding precedent that States define and create property rights and forms of ownership,Aquilino, 363 U.S. at 513, n. 3, I am equally unwilling to redefine or dis- miss as fictional forms of property own- ership that the State has recognized in favor of an amorphous federal common law defi- nition of property. I respectfully dissent. 8 SeeIRS v. Gaster, 42 F.3d 787, 791 (CA3 1994) (concluding that the IRS is not entitled to a lien on property owned as a tenancy by the entirety to satisfy the tax obligations of one spouse);Pitts v. United States, 946 F.2d 1569, 1571–1572 (CA4 1991) (same);United States v. American Nat. Bank of Jacksonville, 255 F.2d 504, 507 (CA5), cert. denied, 358 U.S. 835 (1958) (same);Raffaele v. Granger, 196 F.2d 620, 622–623 (CA3 1952) (same);United States v. Hutcherson, 188 F.2d 326, 331 (CA8 1951) (explaining that the interest of one spouse in tenancy by the entirety property“is not a right to property or property in any sense”);United States v. Nathanson, 60 F. Supp. 193, 194 (ED Mich. 1945) (finding no designation in the Federal Revenue Act for imposing tax upon property held by the entirety for taxes duefrom one person alone);Shaw v. United States, 94 F. Supp. 245, 246 (WD Mich. 1939) (recognizing that the nature of the estate under Michigan law precludes the tax lien from attaching to tenancy by the entirety property for the tax liability of one spouse). See alsoBenson v. United States, 442 F.2d 1221, 1223 (CADC 1971) (recognizing the Government’s concession that property owned by the parties as tenants by the entirety cannot be subjected to a tax lien for the debt of one tenant);Cole v. Cardoza, 441 F.2d 1337, 1343 (CA6 1971) (noting Government concession that, under Michigan law, it had no valid claim against real property held by tenancy by the entirety). 9 See,e.g., Internal Revenue Manual Sec. 5.8.4.2.3 (RIA 2002), available at WESTLAW, RIA–IRM database (Mar. 29, 2002) (listing“property owned as tenants by the entirety′′as among the assets beyond the reach of the Government’s tax lien);id., Sec. 5.6.1.2.3 (recognizing that aconsensuallien may be appropriate“when the federal tax lien does not attach to the property in question. For example, an assessment exists against only one spouse and the federal tax lien does not attach to real property held as tenants by the entirety.′′); IRS Chief Counsel Advisory (Aug. 17, 2001) (noting that consensual iens, or mortgages, are to be used“as a means of securing the Government’s right to collect from property the assessment lien does not attach to, such asreal property held as a tenancy by the entirety”(emphasis added)); IRS Litigation Bulletin No. 407 (Aug. 1994) (“Traditionally, the government has taken the view that a federal tax lien against a single debtor-spouse does not attach to property or rights to property held by both spouses as tenants by the entirety.”); IRS Litigation Bulletin No. 388 (Jan. 1993) (explaining that neither the Department of Justice nor IRS chief counsel interpretedUnited States v. Rodgers, 461 U.S. 677 (1983), to mean that a federal tax lien against one spouse encumbers his or her interest in entireties property, and noting that it“do[es] not believe the Department will again argue the broader interpretation ofRodgers,”which would extend the reach of the federal tax lien to property held by the entireties);Benson, supra, at 1223;Cardoza, supra, at 1343. September 23, 20025562002–38 I.R.B. Section 6621.— Determination of Interest Rates 26 CFR 301.6621–1: Interest rate. Interest rates; underpayments and overpay- ments.The rate of interest determined under sec- tion 6621 of the Code for the calendar quarter beginning October 1, 2002, will be 6 percent for over- payments (5 percent in the case of a corporation), 6 percent for underpayments, and 8 percent for large cor- porate underpayments. The rate of interest paid on the portion of a corporate overpayment exceeding $10,000 will be 3.5 percent. Rev. Rul. 2002–59 Section 6621 of the Internal Revenue Code establishes the rates for interest on tax overpayments and tax underpayments. Un- der§6621(a)(1), the overpayment rate be- ginning October 1, 2002, is the sum of the federal short-term rate plus 3 percentage points (2 percentage points in the case of a corporation), except the rate for the por- tion of a corporate overpayment of tax ex- ceeding $10,000 for a taxable period is the sum of the federal short-term rate plus 0.5 of a percentage point for interest compu- tations made after December 31, 1994. Un- der§6621(a)(2), the underpayment rate is the sum of the federal short-term rate plus 3 percentage points. Section 6621(c) provides that for pur- poses of interest payable under§6601 on any large corporate underpayment, the un- derpayment rate under§6621(a)(2) is de- termined by substituting“5 percentage points”for“3 percentage points.”See §6621(c) and§301.6621–3 of the Regu- lations on Procedure and Administration for the definition of a large corporate under- payment and for the rules for determin- ing the applicable date. Section 6621(c) and §301.6621–3 are generally effective for pe- riods after December 31, 1990. Section 6621(b)(1) provides that the Sec- retary will determine the federal short- term rate for the first month in each calendar quarter. Section 6621(b)(2)(A) provides that the federal short-term rate determined under §6621(b)(1) for any month applies dur- ing the first calendar quarter beginning af- ter such month. Section 6621(b)(3) provides that the fed- eral short-term rate for any month is the federal short-term rate determined during such month by the Secretary in accordance with§1274(d), rounded to the nearest full percent (or, if a multiple of 1/2 of 1 per- cent, the rate is increased to the next high- est full percent). Notice 88–59, 1988–1 C.B. 546, an- nounced that, in determining the quarterly interest rates to be used for overpayments and underpayments of tax under§6621, the Internal Revenue Service will use the fed- eral short-term rate based on daily com- pounding because that rate is most consistent with§6621 which, pursuant to §6622, is subject to daily compounding. Rounded to the nearest full percent, the federal short-term rate based on daily com- pounding determined during the month of July 2002 is 3 percent. Accordingly, an overpayment rate of 6 percent (5 percent in the case of a corporation) and an under- payment rate of 6 percent are established for the calendar quarter beginning Octo- ber 1, 2002. The overpayment rate for the portion of a corporate overpayment ex- ceeding $10,000 for the calendar quarter be- ginning October 1, 2002, is 3.5 percent. The underpayment rate for large corporate un- derpayments for the calendar quarter be- ginning October 1, 2002, is 8 percent. These rates apply to amounts bearing interest dur- ing that calendar quarter. Interest factors for daily compound in- terest for annual rates of 3.5 percent, 5 per- cent, 6 percent, and 8 percent are published in Tables 12, 15, 17, and 21 of Rev. Proc. 95–17, 1995–1 C.B. 556, 566, 569, 571, and 575. Annual interest rates to be compounded daily pursuant to§6622 that apply for prior periods are set forth in the tables accom- panying this revenue ruling. DRAFTING INFORMATION The principal author of this revenue rul- ing is Raymond Bailey of the Office of As- sociate Chief Counsel (Procedure & Administration), Administrative Provi- sions & Judicial Practice Division. For fur- ther information regarding this revenue ruling, contact Mr. Bailey at (202) 622– 6226 (not a toll-free call). TABLE OF INTEREST RATES PERIODS BEFORE JUL. 1, 1975–PERIODS ENDING DEC. 31, 1986 OVERPAYMENTS AND UNDERPAYMENTS PERIODRATE In 1995–1 C.B. DAILY RATE TABLE Before Jul. 1, 19756%Table 2, pg. 557 Jul. 1, 1975—Jan. 31, 19769%Table 4, pg. 559 Feb. 1, 1976—Jan. 31, 19787%Table 3, pg. 558 Feb. 1, 1978—Jan. 31, 19806%Table 2, pg. 557 Feb. 1, 1980—Jan. 31, 198212%Table 5, pg. 560 Feb. 1, 1982—Dec. 31, 198220%Table 6, pg. 560 Jan. 1, 1983—Jun. 30, 198316%Table 37, pg. 591 Jul. 1, 1983—Dec. 31, 198311%Table 27, pg. 581 Jan. 1, 1984—Jun. 30, 198411%Table 75, pg. 629 Jul. 1, 1984—Dec. 31, 198411%Table 75, pg. 629 2002–38 I.R.B.557September 23, 2002 TABLE OF INTEREST RATES PERIODS BEFORE JUL. 1, 1975–PERIODS ENDING DEC. 31, 1986 OVERPAYMENTS AND UNDERPAYMENTS—CONTINUED PERIODRATE In 1995–1 C.B. DAILY RATE TABLE Jan. 1, 1985—Jun. 30, 198513%Table 31, pg. 585 Jul. 1, 1986—Dec. 31, 19869%Table 23, pg. 577 TABLE OF INTEREST RATES FROM JAN. 1, 1987–Dec. 31, 1998 OVERPAYMENTSUNDERPAYMENTS 1995–1 C.B.1995–1 C.B. RATETABLEPGRATETABLEPG Jan. 1, 1987—Mar. 31, 19878%215759%23577 Apr. 1, 1987—Jun. 30, 19878%215759%23577 Jul. 1, 1987—Sep. 30, 19878%215759%23577 Oct. 1, 1987—Dec. 31, 19879%2357710%25579 Jan. 1, 1988—Mar. 31, 198810%7362711%75629 Apr. 1, 1988—Jun. 30, 19889%7162510%73627 Jul. 1, 1988—Sep. 30, 19889%7162510%73627 Oct. 1, 1988—Dec. 31, 198810%7362711%75629 Jan. 1, 1989—Mar. 31, 198910%2557911%27581 Apr. 1, 1989—Jun. 30, 198911%2758112%29583 Jul. 1, 1989—Sep. 30, 198911%2758112%29583 Oct. 1, 1989—Dec. 31, 198910%2557911%27581 Jan. 1, 1990—Mar. 31, 199010%2557911%27581 Apr. 1, 1990—Jun. 30, 199010%2557911%27581 Jul. 1, 1990—Sep. 30, 199010%2557911%27581 Oct. 1, 1990—Dec. 31, 199010%2557911%27581 Jan. 1, 1991—Mar. 31, 199110%2557911%27581 Apr. 1, 1991—Jun. 30, 19919%2357710%25579 Jul. 1, 1991—Sep. 30, 19919%2357710%25579 Oct. 1, 1991—Dec. 31, 19919%2357710%25579 Jan. 1, 1992—Mar. 31, 19928%696239%71625 Apr. 1, 1992—Jun. 30, 19927%676218%69623 Jul. 1, 1992—Sep. 30, 19927%676218%69623 Oct. 1, 1992—Dec. 31, 19926%656197%67621 Jan. 1, 1993—Mar. 31, 19936%175717%19573 Apr. 1, 1993—Jun. 30, 19936%175717%19573 Jul. 1, 1993—Sep. 30, 19936%175717%19573 Oct. 1, 1993—Dec. 31, 19936%175717%19573 Jan. 1, 1994—Mar. 31, 19946%175717%19573 Apr. 1, 1994—Jun. 30, 19946%175717%19573 Jul. 1, 1994—Sep. 30, 19947%195738%21575 Oct. 1, 1994—Dec. 31, 19948%215759%23577 Jan. 1, 1995—Mar. 31, 19958%215759%23577 Apr. 1, 1995—Jun. 30, 19959%2357710%25579 September 23, 20025582002–38 I.R.B. TABLE OF INTEREST RATES FROM JAN. 1, 1987–Dec. 31, 1998—CONTINUED OVERPAYMENTSUNDERPAYMENTS 1995–1 C.B.1995–1 C.B. RATETABLEPGRATETABLEPG Jul. 1, 1995—Sep. 30, 19958%215759%23577 Oct. 1, 1995—Dec. 31, 19958%215759%23577 Jan. 1, 1996—Mar. 31, 19968%696239%71625 Apr. 1, 1996—Jun. 30, 19967%676218%69623 Jul. 1, 1996—Sep. 30, 19968%696239%71625 Oct. 1, 1996—Dec. 31, 19968%696239%71625 Jan. 1, 1997—Mar. 31, 19978%215759%23577 Apr. 1, 1997—Jun. 30, 19978%215759%23577 Jul. 1, 1997—Sep. 30, 19978%215759%23577 Oct. 1, 1997—Dec. 31, 19978%215759%23577 Jan. 1, 1998—Mar. 31, 19988%215759%23577 Apr. 1, 1998—Jun. 30, 19987%195738%21575 Jul. 1, 1998—Sep. 30, 19987%195738%21575 Oct. 1, 1998—Dec. 31, 19987%195738%21575 TABLE OF INTEREST RATES FROM JANUARY 1, 1999–PRESENT NONCORPORATE OVERPAYMENTS AND UNDERPAYMENTS 1995–1 C.B. RATETABLEPAGE Jan. 1, 1999—Mar. 31, 19997%19573 Apr. 1, 1999—Jun. 30, 19998%21575 Jul. 1, 1999—Sep. 30, 19998%21575 Oct. 1, 1999—Dec. 31, 19998%21575 Jan. 1, 2000—Mar. 31, 20008%69623 Apr. 1, 2000—Jun. 30, 20009%71625 Jul. 1, 2000—Sep. 30, 20009%71625 Oct. 1, 2000—Dec. 31, 20009%71625 Jan. 1, 2001—Mar. 31, 20019%23577 Apr. 1, 2001—Jun. 30, 20018%21575 Jul. 1, 2001—Sep. 30, 20017%19573 Oct. 1, 2001—Dec. 31, 20017%19573 Jan. 1, 2002—Mar. 31, 20026%17571 Apr. 1, 2002—Jun. 30, 20026%17571 Jul. 1, 2002—Sep. 30, 20026%17571 Oct. 1, 2002—Dec. 31, 20026%17571 2002–38 I.R.B.559September 23, 2002 TABLE OF INTEREST RATES FROM JAN. 1, 1999–PRESENT CORPORATE OVERPAYMENTS AND UNDERPAYMENTS OVERPAYMENTSUNDERPAYMENTS 1995–1 C.B.*1995–1 C.B. RATETABLEPGRATETABLEPG Jan. 1, 1999—Mar. 31, 19996%175717%19573 Apr. 1, 1999—Jun. 30, 19997%195738%21575 Jul. 1, 1999—Sep. 30, 19997%195738%21575 Oct. 1, 1999—Dec. 31, 19997%195738%21575 Jan. 1, 2000—Mar. 31, 20007%676218%69623 Apr. 1, 2000—Jun. 30, 20008%696239%71625 Jul. 1, 2000—Sep. 30, 20008%696239%71625 Oct. 1, 2000—Dec. 31, 20008%696239%71625 Jan. 1, 2001—Mar. 31, 20018%215759%23577 Apr. 1, 2001—Jun. 30, 20017%195738%21575 Jul. 1, 2001—Sep. 30, 20016%175717%19573 Oct. 1, 2001—Dec. 31, 20016%175717%19573 Jan. 1, 2002—Mar. 31, 20025%155696%17571 Apr. 1, 2002—Jun. 30, 20025%155696%17571 Jul. 1, 2002—Sep. 30, 20025%155696%17571 Oct. 1, 2002—Dec. 31, 20025%155696%17571 TABLE OF INTEREST RATES FOR LARGE CORPORATE UNDERPAYMENTS FROM JANUARY 1, 1991–PRESENT 1995–1 C.B. RATETABLEPAGE Jan. 1, 1991—Mar. 31, 199113%31585 Apr. 1, 1991—Jun. 30, 199112%29583 Jul. 1, 1991—Sep. 30, 199112%29583 Oct. 1, 1991—Dec. 31, 199112%29583 Jan. 1, 1992—Mar. 31, 199211%75629 Apr. 1, 1992—Jun. 30, 199210%73627 Jul. 1, 1992—Sep. 30, 199210%73627 Oct. 1, 1992—Dec. 31, 19929%71625 Jan. 1, 1993—Mar. 31, 19939%23577 Apr. 1, 1993—Jun. 30, 19939%23577 Jul. 1, 1993—Sep. 30, 19939%23577 Oct. 1, 1993—Dec. 31, 19939%23577 Jan. 1, 1994—Mar. 31, 19949%23577 Apr. 1, 1994—Jun. 30, 19949%23577 Jul. 1, 1994—Sep. 30, 199410%25579 Oct. 1, 1994—Dec. 31, 199411%27581 Jan. 1, 1995—Mar. 31, 199511%27581 Apr. 1, 1995—Jun. 30, 199512%29583 Jul. 1, 1995—Sep. 30, 199511%27581 Oct. 1, 1995—Dec. 31, 199511%27581 September 23, 20025602002–38 I.R.B. TABLE OF INTEREST RATES FOR LARGE CORPORATE UNDERPAYMENTS FROM JANUARY 1, 1991–PRESENT—CONTINUED 1995–1 C.B. RATETABLEPAGE Jan. 1, 1996—Mar. 31, 199611%75629 Apr. 1, 1996—Jun. 30, 199610%73627 Jul. 1, 1996—Sep. 30, 199611%75629 Oct. 1, 1996—Dec. 31, 199611%75629 Jan 1, 1997—Mar. 31, 199711%27581 Apr. 1, 1997—Jun. 30, 199711%27581 Jul. 1, 1997—Sep. 30, 199711%27581 Oct. 1, 1997—Dec. 31, 199711%27581 Jan. 1, 1998—Mar. 31, 199811%27581 Apr. 1, 1998—Jun. 30, 199810%25579 Jul. 1, 1998—Sep. 30, 199810%25579 Oct. 1, 1998—Dec. 31, 199810%25579 Jan. 1, 1999—Mar. 31, 19999%23577 Apr. 1, 1999—Jun. 30, 199910%25579 Jul. 1, 1999—Sep. 30, 199910%25579 Oct. 1, 1999—Dec. 31, 199910%25579 Jan. 1, 2000—Mar. 31, 200010%73627 Apr. 1, 2000—Jun. 30, 200011%75629 Jul. 1, 2000—Sep. 30, 200011%75629 Oct. 1, 2000—Dec. 31, 200011%75629 Jan. 1, 2001—Mar. 31, 200111%27581 Apr. 1, 2001—Jun. 30, 200110%25579 Jul. 1, 2001—Sep. 30, 20019%23577 Oct. 1, 2001—Dec. 31, 20019%23577 Jan. 1, 2002—Mar. 31, 20028%21575 Apr. 1, 2002—Jun. 30, 20028%21575 Jul. 1, 2002—Sep. 30, 20028%21575 Oct. 1, 2002—Dec. 30, 20028%21575 TABLE OF INTEREST RATES FOR CORPORATE OVERPAYMENTS EXCEEDING $10,000 FROM JANUARY 1, 1995–PRESENT 1995–1 C.B. RATETABLEPAGE Jan. 1, 1995—Mar. 31, 19956.5%18572 Apr. 1, 1995—Jun. 30, 19957.5%20574 Jul. 1, 1995—Sep. 30, 19956.5%18572 Oct. 1, 1995—Dec. 31, 19956.5%18572 Jan. 1, 1996—Mar. 31, 19966.5%66620 Apr. 1, 1996—Jun. 30, 19965.5%64618 Jul. 1, 1996—Sep. 30, 19966.5%66620 Oct. 1, 1996—Dec. 31, 19966.5%66620 Jan. 1, 1997—Mar. 31, 19976.5%18572 Apr. 1, 1997—Jun. 30, 19976.5%18572 2002–38 I.R.B.561September 23, 2002 TABLE OF INTEREST RATES FOR CORPORATE OVERPAYMENTS EXCEEDING $10,000 FROM JANUARY 1, 1995–PRESENT—CONTINUED 1995–1 C.B. RATETABLEPAGE Jul. 1, 1997—Sep. 30, 19976.5%18572 Oct. 1, 1997—Dec. 31, 19976.5%18572 Jan. 1, 1998—Mar. 31, 19986.5%18572 Apr. 1, 1998—Jun. 30, 19985.5%16570 Jul. 1, 1998—Sep. 30, 19985.5%16570 Oct. 1, 1998—Dec. 31, 19985.5%16570 Jan. 1, 1999—Mar. 31, 19994.5%14568 Apr. 1, 1999—Jun. 30, 19995.5%16570 Jul. 1, 1999—Sep. 30, 19995.5%16570 Oct. 1, 1999—Dec. 31, 19995.5%16570 Jan. 1, 2000—Mar. 31, 20005.5%64618 Apr. 1, 2000—Jun. 30, 20006.5%66620 Jul. 1, 2000—Sep. 30, 20006.5%66620 Oct. 1, 2000—Dec. 31, 20006.5%66620 Jan. 1, 2001—Mar. 31, 20016.5%18572 Apr. 1, 2001—Jun. 30, 20015.5%16570 Jul. 1, 2001—Sep. 30, 20014.5%14568 Oct. 1, 2001—Dec. 31, 20014.5%14568 Jan. 1, 2002—Mar. 31, 20023.5%12566 Apr. 1, 2002—Jun. 30, 20023.5%12566 Jul. 1, 2002—Sep. 30, 20023.5%12566 Oct. 1, 2002—Dec. 31, 20023.5%12566 September 23, 20025622002–38 I.R.B. Part III. Administrative, Procedural, and Miscellaneous Weighted Average Interest Rate Update Notice 2002–61 Sections 412(b)(5)(B) and 412(l)(7)(C)(i) of the Internal Revenue Code provide that the interest rates used to calculate current liability for purposes of determining the full funding limitation under§412(c)(7) and the required contribution under§412(l) must be within a permissible range around the weighted average of the rates of interest on 30-year Treasury securities during the four- year period ending on the last day before the beginning of the plan year. Notice 88–73, 1988–2 C.B. 383, pro- vides guidelines for determining the weighted average interest rate and the re- sulting permissible range of interest rates used to calculate current liability for the pur- pose of the full funding limitation of §412(c)(7) of the Code. Section 417(e)(3)(A)(ii)(II) of the Code defines the applicable interest rate, which must be used for purposes of determining the minimum present value of a partici- pant’s benefit under§417(e)(1) and (2), as the annual rate of interest on 30-year Trea- sury securities for the month before the date of distribution or such other time as the Sec- retary may by regulations prescribe. Sec- tion 1.417(e)-1(d)(3) of the Income Tax Regulations provides that the applicable in- terest rate for a month is the annual inter- est rate on 30-year Treasury securities as specified by the Commissioner for that month in revenue rulings, notices or other guidance published in the Internal Rev- enue Bulletin. The rate of interest on 30-year Trea- sury Securities for August 2002 is 5.08 per- cent. Pursuant to Notice 2002–26, 2002–15 I.R.B. 743, the Service has determined this rate as the monthly average of the daily de- termination of yield on the 30-year Trea- sury bond maturing in February 2031. Section 405 of the Job Creation and Worker Assistance Act of 2002 amended §412(l)(7)(C) of the Code to provide that for plan years beginning in 2002 and 2003 the permissible range is extended to 120 percent. The following rates were determined for the plan years beginning in the month shown below. MonthYearWeighted Average 90% to 110% Permissible Range 90% to 120% Permissible Range September20025.635.07 to 6.205.07 to 6.76 Drafting Information The principal author of this notice is Todd Newman of the Employee Plans, Tax Exempt and Government Entities Divi- sion. For further information regarding this notice, please contact the Employee Plans’ taxpayer assistance telephone service at 1–877–829–5500 (a toll-free number), be- tween the hours of 8:00 a.m. and 6:30 p.m. Eastern time, Monday through Friday. Mr. Newman may be reached at 1–202–283– 9888 (not a toll-free number). 2002–38 I.R.B.563September 23, 2002 Part IV. Items of General Interest Releif From Joint and Several Liability; Correction Announcement 2002–83 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to final regulations. SUMMARY: This document contains a correction to final regulations (T.D. 9003, 2002–32 I.R.B. 294) that were published in theFederal Registeron Thursday, July 18, 2002 (67 FR 47278), relating to relief from joint and several liability. DATES: This correction is effective July 18, 2002. FORFURTHERINFORMATION CONTACT: Charles A. Hall (202) 622- 4940 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The final regulations that are the sub- ject of this correction is under section 6015 of the Internal Revenue Code. Need for Correction As published, the final regulations con- tains an error that my prove to be mislead- ing and is in need of clarification. Correction of Publication Accordingly, the publication of the fi- nal regulations (T.D. 9003), that were the subject of FR Doc. 02–17866, is corrected as follows: On page 47294, column 3,§1.6015– 5(b)(3), line 10, the language“CDP hear- ing procedures under sections”is corrected to read“CDP hearing procedures under sec- tion”. Cynthia E.Grigsby, Chief, Regulations Unit, Associate Chief Counsel (Income Tax & Accounting). (Filed by the Office of the Federal Register on August 23, 2002, 8:45 a.m., and published in the issue of the Federal Reg- ister for August 26, 2002, 67 F.R. 54735) Foundations Status of Certain Organizations Announcement 2002–88 The following organizations have failed to establish or have been unable to main- tain their status as public charities or as op- erating foundations. Accordingly, grantors and contributors may not, after this date, rely on previous rulings or designations in the Cumulative List of Organizations (Pub- lication 78), or on the presumption aris- ing from the filing of notices under section 508(b) of the Code. This listing doesnot indicate that the organizations have lost their status as organizations described in sec- tion 501(c)(3), eligible to receive deduct- ible contributions. Former Public Charities.The follow- ing organizations (which have been treated as organizations that are not private foun- dations described in section 509(a) of the Code) are now classified as private foundations: Adoption Assistance Foundation, Inc., Methuen, MA Affordable Neighborhood Economic Development, Inc., Jacksonville, FL American Education Institute, Big Fork, MT Aquarius International Village Water Project, Davis, CA Arab American Community Center, Coldwater, MI Arc of the Keys, Inc., Tavernier, FL Artists Direct Chicago, Chicago, IL Artists Theatre Project, Inc., New Smyrna Beach, FL Associate, Inc., Cordova, TN Bartlesville High School Auditorium Complex Foundation, Inc., Bartlesville, OK Belize Foundation, Golden, CO Berlin Airlift Foundation, Inc., Ennis, TX Beverly Hills Charitable Foundation, Beverly Hills, CA Black Ebony Loquat, Inc., Princeton, NJ Camp Bluebird of West Michigan, Inc., Grand Haven, MI BMKB Memorial Scholarship Fund, Virginia Beach, VA Brighthope Alliance, Asheville, NC Castmaster Ministries, Allen, TX Center for American Studies and Culture, Santa Monica, CA Charles W. Dunn Jr., Inc., Altadena, CA Classic Yacht Preservation, Inc., Eureka, CA Coalition of Progressive Professionals, Cincinnati, OH Compassion Ministries, Beaverton, OR Congressional Legacies Project, Inc., Falls Church, VA Cornerstone Charities Community Tr., Salinas, CA Count Me In Foundation, Brooklyn, NY Creative Decisions Foundation, Pittsburgh, PA Credit Bureau of San Joaquin County Charitable Foundation, Stockton, CA Dean Sueltenfuss Journalism Scholarship Trust, Boerne, TX Digital Preserve, Silver Spring, MD Dog’s Best Friend, Inc., Santa Barbara, CA Double Portion Development, Houston, TX Dr. O. H. Damron Charitable Trust, Clinton, MO Dutta Foundation, Santa Fe, NM East Side Community Development Corporation, Bridgeport, CT El Fortress, Long Beach, CA Encouragement Ministries, Inc., Norcross, GA EOC Housing Development, Blytheville, AR Fancap U S, Inc., Guatemala, Ciudad Focus Foundation, Inc., Leonard, MI For the Children International, Inc., Laredo, TX Frank Morrison Family Educational Foundation, Lincoln, NE Free Enterprise Foundation, Inc., Princeton, NJ Friends of Lankershim Center for the Arts, North Hollywood, CA Fulfilling the Lives of Children, Inc., San Antonio, TX Gates Avenue Youth Program Inc., for Sports and Cultural Events, Hillcreast Heights, MD Gateway Charities an Arizona Non-profit Corporation, Tempe, AZ Gethsemane Economic & Educational Ministry, Inc., Eustis, FL Great Resolutions, Inc., Atlanta, GA Green Nicaragua, Inc., Austin, TX Green Research, Inc., Nevada City, CA Grundy County Christian Daycare Center, Coalmont, TN Help Handicapped Veterans, Inc., St. Louis, MO House of Win, Inc., Longview, TX Housing America, Mercer Island, WA September 23, 20025642002–38 I.R.B. Indoor Air Matters, Inc., West Hartford, VT International Buddhist Culture Television Foundation, Bellevue, WA International Community Awareness Redevelopment Exchange (ICARE), Jackson, MS Ivers Foundation, Westport, CT Jazz as a Motivational Tool, Inc., Medford, MA Kentucky Youth Academy, Inc., Ashcamp, KY King Solomon Community Development and Youth Programs, Inc., Ft. Wayne, IN Kountze Educational Foundation, Inc., Kountze, TX Life Changing Centers, Inc., Detroit, MI Lithonia Cadets Parents Organization, Inc., Lithonia, GA Little House, Inc., Tucson, AZ Martin L. King Jr. Annual Womens Basketball Tournament, Inc., Washington, DC MASRAD Research and Development, Inc., Las Vegas, NV McGrane Self-Esteem Center, Inc., Villa Hills, KY Michigan Chiropractic Foundation, Lansing, MI Michigan Citizens for Animal Welfare, Dimondale, MI Micki Rainey Scholarship Fund, Inc., Martinez, CA Midland ISD Educational Foundation, Midland, TX Missouri River Frontier Museum, Parkville, MO Monroe City Missouri Community Foundation, Monroe City, MO National Childrens Foundation, Center, CO National Viet Nam War Museum, Inc., Mineral Wells, TX New Coalition of Africans From South of the Sahara, New York, NY New Jersey Council For Recovering Pharmacists, Inc., Mahwah, NJ Newton County Trail-Path Foundation, Inc., Covington, GA Northern Housing Associates, Inc., North Providence, RI Noxid, Inc., Hollywood, CA OFC of Ortonville, Inc., Ortonville, MN Onaway House, Inc., Sallisaw, OK One B L O O D Black Latino Oasis of Donors Foundation, Inc., Cambria Heights, NY Peggy Thorns Ministries, Inc., Charlotte, NC Pennsylvania Association for Continuing Education, Pittsburgh, PA P H D Center, Inc., Parents Home of Diversity, Jonesboro, GA Phoenix Housing and Development Services, Inc., Queensbury, NY Positive Images Southwest Mississippi Community Outreach, Inc., Tylertown, MS Project Education International USA/South Africa, Fullerton, CA Purrfect Haven, Inc., Greenville, OH Raymond W. Farkas Foundation, Inc., Douglaston, NY Reachout Organization, Los Angeles, CA Reilly Family Foundation, Arlington, TX Renaissance Drug & Alcohol Recovery House, Inc., Matteson, IL RMDC Assisted Living, Inc., Helena, MT Save Our Coast-Malibu Dolphin Watch Foundation, Malibu, CA Sing for Joy Music Ministries, Hayes, VA Singout, Woodinville, WA Sonic Children Fund, San Pedro, CA South Carolina Heart Center Foundation, Inc., Columbia, SC Southeastern Colorado Institute of Natural History, La Junta, CO Southern Sports Commission, Danville, VA Stark County Urban Minority Alcoholism and Drug Outreach Project, Canton, OH Step by Step Home Care Services, Inc., Brooklyn, NY Strickland Ministries, Inc., Tallahassee, FL Sussex Court Residential Services, Inc., Atlanta, GA Tattnall County Family Connection, Inc., Reidville, GA Tenderheart Family Child Care, Inc., Amery, WI Texas Sex Institute Sex Information Education Council of Texas, The Woodlands, TX Theresa and Sabrina, Inc., New York, NY Top Prospects, Inc., Los Angeles, CA Tucson Velodrome Association, Tucson, AZ Utah Theatre For Youth, Salt Lake City, UT Video Gaming Certification, Charlotte, NC Volunteer Services to Animals, Encino, CA W. Seavey Joyce S J Award, Hull MA Whitney National Trust for Historical Preservation, Los Angeles, CA Whiz Kidz Learning Center, Inc., Chicago, IL Wholistic Research and Development, Inc., Rutherfordton, NC Wonderful Days, Fort Worth, TX Zee Rides, Incorporated, Zuni, NM If an organization listed above submits information that warrants the renewal of its classification as a public charity or as a pri- vate operating foundation, the Internal Rev- enue Service will issue a ruling or determination letter with the revised clas- sification as to foundation status. Grant- ors and contributors may thereafter rely upon such ruling or determination letter as provided in section 1.509(a)–7 of the In- come tax Regulations. It is not the prac- tice of the Service to announce such revised classification of foundation status in the In- ternal Revenue Bulletin. 2002–38 I.R.B.565September 23, 2002 Announcement of Disciplinary Actions Involving Attorneys, Certified Public Accountants, Enrolled Agents, and Enrolled Actuaries—Suspensions, Disbarments, and Resignations Under Title 31, Code of Federal Regu- lations, Part 10, attorneys, certified pub- lic accountants, enrolled agents, and enrolled actuaries may not accept assistance from, or assist, any person who is under disbar- ment or suspension from practice before the Internal Revenue Service if the assistance relates to a matter constituting practice be- fore the Internal Revenue Service and may not knowingly aid or abet another person to practice before the Internal Revenue Ser- vice during a period of suspension, disbar- ment, or ineligibility of such other person. To enable attorneys, certified public ac- countants, enrolled agents, and enrolled ac- tuaries to identify persons to whom these restrictions apply, the Director of Practice will announce in the Internal Revenue Bul- letin their names, their city and state, their professional designation, the effective date of disciplinary action, and the period of sus- pension. This announcement will appear in the weekly Bulletin at the earliest practi- cable date after such action and will con- tinue to appear in the weekly Bulletins for five successive weeks. Suspensions From Practice Before the Internal Revenue Service After Notice and an Opportunity for a Proceeding Under Title 31, Code of Federal Regu- lations, Part 10, after notice and an oppor- tunity for a proceeding before an administrative law judge, the following in- dividuals have been placed under suspen- sion from practice before the Internal Revenue Service: NameAddressDesignationEffective Date McKnight, James A.Tequesta, FLEnrolled AgentApril 12, 2001 to October 11, 2002 Donnelly, EdwardMelville, NYCPAApril 17, 2002 to July 16, 2003 Disbarments From Practice Before the Internal Revenue Service After Notice and an Opportunity for a Proceeding Under Title 31, Code of Federal Regu- lations, Part 10, after notice and an oppor- tunity for a proceeding before an administrative law judge, the following in- dividuals have been disbarred from prac- tice before the Internal Revenue Service: NameAddressDesignationEffective Date Schmeiser, Larry W.Limon, COAttorneySeptember 1, 2000 Sayre, Charles L.Ann Arbor, MIAttorneyJanuary 2, 2001 Young, DennisLewiston, IDCPAJanuary 2, 2001 Buckley, Francis M.Marlborough, CTAttorneyJanuary 18, 2001 Dugovich, Frank A.Middleburg Heights, OHCPAJanuary 29, 2001 Kiss, Philip M.Liberyville, ILEnrolled AgentMarch 1, 2001 Mellner, MichaelScranton, PACPAJune 11, 2001 Davis, Jerry A.Leonard, TXCPAJune 13, 2001 Thornton, John L.Fayetteville, ARCPAJune 21, 2001 Campbell, David G.Reading, PAAttorneyJuly 10, 2001 Schlabach, John J.Colbert, WACPAJuly 16, 2001 September 23, 20025662002–38 I.R.B. NameAddressDesignationEffective Date Belin, LeonSouthfield, MICPAAugust 7, 2001 Simpson, JamesElmhurst, ILAttorneySeptember 24, 2001 Berg, Richard L.Vadnais Heights, MNCPAOctober 3, 2001 Riesenmy, DavidJoplin, MOAttorneyOctober 15, 2001 Andrade, RodrigoEl Paso, TXEnrolled AgentNovember 20, 2001 Miller, Larry CharlesPhiladelphia, PAAttorneyJanuary 10, 2002 Melton, Andrew I.Detroit, MICPAFebruary 13, 2002 Daily, J. MichaelClearwater, FLCPAMarch 29, 2002 Klimkowski, Joseph R.Florham, NJCPAMarch 29, 2002 Greene, William M.Center Sandwich, NHAttorneyMarch 29, 2002 Bart, AdrianTulsa, OKCPAApril 17, 2002 Consent Suspensions From Practice Before the Internal Revenue Service Under Title 31, Code of Federal Regu- lations, Part 10, an attorney, certified pub- lic accountant, enrolled agent, or enrolled actuary, in order to avoid the institution or conclusion of a proceeding for his or her disbarment or suspension from practice be- fore the Internal Revenue Service, may of- fer his or her consent to suspension from such practice. The Director of Practice, in his discretion, may suspend an attorney, cer- tified public accountant, enrolled agent or enrolled actuary in accordance with the con- sent offered. The following individuals have been placed under consent suspension from prac- tice before the Internal Revenue Service: NameAddressDesignationDate of Suspension McDaniel III, Troy J.Atlanta, GACPAIndefinite from June 6, 2000 Levine, PaulLos Angeles, CACPAFebruary 1, 2001 to January 31, 2003 Hammons, Patrick B.Mesa, AZEnrolled Agent February 1, 2001 to January 31, 2004 Price, Russell S.Washington, DCCPAFebruary 17, 2001 to August 16, 2003 Donohue, Robert M.Ellicott City, MDCPAMay 15, 2001 to May 14, 2005 Havranek, Ronald J.Deerfield, ILCPAJuly 30, 2001 to July 29, 2003 Harding III, Leon H.Roanoke, VACPAIndefinite from August 7, 2001 2002–38 I.R.B.567September 23, 2002 NameAddressDesignationDate of Suspension Noone, PatrickOrland Park, ILCPAAugust 23, 2001 to February 22, 2004 Sefton, David L.Austin, TXCPAAugust 31, 2001 to February 27, 2003 Zuccarelli, SilvioCoconut Creek, FLEnrolled AgentSeptember 18, 2001 to December 17, 2004 DeFazio, James P.Sacramento, CACPAOctober 1, 2001 to March 31, 2003 Levenson, Martin J.New York, NYCPAOctober 15, 2001 to April 14, 2004 Donchatz, CharlesColumbia, SCCPAOctober 25, 2001 to October 24, 2004 Smith, Virga A.Rochester, INCPANovember 1, 2001 to October 31, 2003 Fuller, Don B.Minneapolis, MNAttorneyNovember 15, 2001 to November 14, 2004 Retzlaff, Gene A.Hortonville, WIEnrolled AgentIndefinite from December 27, 2001 Kime, Robert L.Collinsville, ILCPADecember 6, 2001 to December 5, 2003 King, John C.Wichita, KSAttorneyJanuary 1, 2002 to June 30, 2003 Carter, Lloyd C.St. George, UTCPAJanuary 15, 2002 to October 14, 2002 Dennis, Paul J.Milwaukee, WIEnrolled AgentJanuary 28, 2002 to January 27, 2005 Jones, Ricky A.Greenfield, OHCPAMarch 15, 2002 to March 14, 2003 Price, Richard A.Novato, CACPAMay 1, 2002 to April 30, 2005 Burnett, Bradley P.Wheat Ridge, COAttorneyMay 1, 2002 to April 30, 2004 September 23, 20025682002–38 I.R.B. NameAddressDesignationDate of Suspension Leone, AnthonyDes Plaines, ILCPAApril 1, 2002 to September 30, 2003 Groskin, Lawrence J.Tuxedo Park, NYAttorneyMay 1, 2002 to April 30, 2003 Homnick, CorySan Diego, CACPAJune 1, 2002 to May 31, 2003 Herring, Chester L.University Park, ILCPAJune 1, 2002 to November 30, 2003 Cutcher, Edward W.Clinton, OHCPAJune 1, 2002 to February 28, 2003 Gisser, Arthur S.Glenwood Landing, NYCPAJuly 1, 2002 to December 31, 2002 Garlikov, Mark B.Dayton, OHAttorneyJuly 1, 2002 to October 30, 2005 Foust, John FranklinDes Moines, IACPAJuly 1, 2002 to June 30, 2003 Byock, Matthew I.Red Bank, NJCPAAugust 1, 2002 to March 31, 2003 Expedited Suspensions From Practice Before the Internal Revenue Service Under Title 31, Code of Federal Regu- lations, Part 10, the Director of Practice is authorized to immediately suspend from practice before the Internal Revenue Ser- vice any practitioner who, within five years from the date the expedited proceeding is instituted (1) has had a license to practice as an attorney, certified public accoun- tant, or actuary suspended for revoked for cause or (2) has been convicted of cer- tain crimes. The following individuals have been placed under suspension from practice be- fore the Internal Revenue Service by vir- tue of the expedited proceeding provisions: NameAddressDesignationDate of Suspension Brenner, William A.Grahamsville, NYAttorneyIndefinite from February 2, 2001 Pope, Ray P.Pensacola, FLAttorneyIndefinite from February 23, 2001 Dudnick, Howard A.Princeton, NYCPAIndefinite from June 25, 2001 2002–38 I.R.B.569September 23, 2002 NameAddressDesignationDate of Suspension Griffiths, Brian D.North Andover, MACPAIndefinite from June 25, 2001 Yerardi, Michael J.East Walpole, MAAttorneyIndefinite from June 25, 2001 Cheesman, Michael S.Mill Creek, WACPAIndefinite from July 20, 2001 Devereaux, RossJackson, MICPAIndefinite from July 20, 2001 Gaskill, ToddLompoc, CAAttorneyIndefinite from July 20, 2001 Gross, Peter SamKerrville, TXAttorneyIndefinite from July 20, 2001 Hausman, StanleyLivingston, NJAttorneyIndefinite from July 20, 2001 Jones, Peter C.Seattle, WACPAIndefinite from July 20, 2001 Koss, Lewis M.Calabasas, CAAttorneyIndefinite from July 20, 2001 Maxey, MichaelMishawaka, INCPAIndefinite from July 20, 2001 Meaney, Richard A.Harwich Port, MAAttorneyIndefinite from July 20, 2001 Shaver, Howard D.Leawood, KSAttorneyIndefinite from July 20, 2001 Sims, ThomasTonka Bay, MNCPAIndefinite from July 20, 2001 Wallin, HansArthur, NDAttorneyIndefinite from July 20, 2001 Freeman, Dale L.North Royalton, OHCPAIndefinite from August 6, 2001 Huffman, Richard E.Riverside, CACPAIndefinite from August 6, 2001 September 23, 20025702002–38 I.R.B. NameAddressDesignationDate of Suspension Lawrence, William E.Salinas, CACPAIndefinite from August 6, 2001 Marks, William J.New York, NYCPAIndefinite from August 6, 2001 Parker, GeorgeHonolulu, HIAttorneyIndefinite from August 6, 2001 Pham, Van LuongHouston, TXEnrolled AgentIndefinite from August 6, 2001 Pirro, Jr., Albert J.Rye, NYAttorneyIndefinite from August 6, 2001 Pollacheck, Mark E.Califon, NJEnrolled AgentIndefinite from August 6, 2001 Price, Padget C.Corona, CAAttorneyIndefinite from August 6, 2001 Ragusa, SebastianHicksville, NYAttorneyIndefinite from August 6, 2001 Ranum, Karl M.Stillwater, MNAttorneyIndefinite from August 6, 2001 Ross, Daniel P.Ashtabula, OHCPAIndefinite from August 6, 2001 Shea, Michael P.Myrtle Beach, SCCPAIndefinite from August 6, 2001 Tatman, Elizabeth A.Mission Viejo, CACPAIndefinite from August 6, 2001 Taylor, Murray E.Houston, TXCPAIndefinite from August 6, 2001 Truex, Anthony J.Port Hueneme, CACPAIndefinite from August 6, 2001 Utterback, Thomas M.Gerald, MOAttorneyIndefinite from August 6, 2001 Zauft, Steven J.San Antonio, TXAttorneyIndefinite from August 6, 2001 2002–38 I.R.B.571September 23, 2002 NameAddressDesignationDate of Suspension Hancock, George B.New Bern, NCCPAIndefinite from June 24, 2002 Nadale, Richard D.Petaluma, CACPAIndefinite from June 24, 2002 Resignations of Enrolled Agents Under Title 31, Code of Federal Regu- lations, Part 10, an enrolled agent, in or- der to avoid the institution or conclusion of a proceeding for his or her disbarment or suspension from practice before the Inter- nal Revenue Service, may offer his or her resignation as an enrolled agent. The Di- rector of Practice, in his discretion, may ac- cept the offered resignation. The Director of Practice has accepted of- fers of resignation as an enrolled agent from the following individuals: NameAddressDate of Resignation Fuener, Donald CSpringfield, ILEffective December 31, 2001 Clark, Robert A.Chico, CAEffective January 1, 2002 Sarmiento, Romulo B.San Francisco, CAEffective March 31, 2002 Goetz, Roger H.Waseca, MNEffective June 24, 2002 September 23, 20025722002–38 I.R.B. Definition of Terms Revenue rulings and revenue procedures (hereinafter referred to as“rulings”) that have an effect on previous rulings use the following defined terms to describe the effect: Amplifieddescribes 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 applied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare withmodified, below). Clarifiedis 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. Distinguisheddescribes a situation where a ruling mentions a previously published ruling and points out an essen- tial difference between them. Modifiedis used where the substance of a previously published position is being changed. Thus, if a prior ruling held that a principle applied to A but not to B, and the new ruling holds that it applies to both A and B, the prior ruling is modified because it corrects a pub- lished position. (Compare withamplified andclarified, above). Obsoleteddescribes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rulings that are obsoleted because of changes in law or regulations. A ruling may also be obsoleted because the sub- stance has been included in regulations subsequently adopted. Revokeddescribes situations where the position in the previously published rul- ing is not correct and the correct position is being stated in the new ruling. Supersededdescribes a situation where the new ruling does nothing more than restate the substance and situation of a previously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same position published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single ruling a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new ruling does more than restate the substance of a prior ruling, a combination of terms is used. For example,modified andsupersededdescribes a situation where the substance of a previously pub- lished 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 super- seded. Supplementedis used in situations in which a list, such as a list of the names of countries, is published in a ruling and that list is expanded by adding further names in subsequent rulings. After the original 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. Suspendedis 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 material published in the Bulletin. A—Individual. Acq.—Acquiescence. B—Individual. BE—Beneficiary. BK—Bank. B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cumulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Cooperative. Ct.D.—Court Decision. CY—County. D—Decedent. DC—Dummy Corporation. DE—Donee. Del. Order—Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. 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. F.R.—Federal Register. FUTA—Federal Unemployment Tax Act. FX—Foreign Corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grantee. GP—General Partner. GR—Grantor. IC—Insurance Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—Nonacquiescence. O—Organization. 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.—Statements of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Transferee. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpayer. TR—Trust. TT—Trustee. U.S.C.—United States Code. X—Corporation. Y—Corporation. Z—Corporation. 2002–38 I.R.B.iSeptember 23, 2002 Numerical Finding List 1 Bulletin 2002–26 through 2002–37 Announcements: 2002–59, 2002–26 I.R.B.28 2002–60, 2002–26 I.R.B.28 2002–61, 2002–27 I.R.B.72 2002–62, 2002–27 I.R.B.72 2002–63, 2002–27 I.R.B.72 2002–64, 2002–27 I.R.B.72 2002–65, 2002–29 I.R.B.182 2002–66, 2002–29 I.R.B.183 2002–67, 2002–30 I.R.B.237 2002–68, 2002–31 I.R.B.283 2002–69, 2002–31 I.R.B.283 2002–70, 2002–31 I.R.B.284 2002–71, 2002–32 I.R.B.323 2002–72, 2002–32 I.R.B.323 2002–73, 2002–33 I.R.B.387 2002–74, 2000–33 I.R.B.387 2002–75, 2002–34 I.R.B.416 2002–76, 2002–35 I.R.B.471 2002–77, 2002–35 I.R.B.471 2002–78, 2002–36 I.R.B.514 2002–79, 2002–36 I.R.B.515 2002–80, 2002–36 I.R.B.515 2002–81, 2002–37 I.R.B.533 2002–82, 2002–37 I.R.B.533 2002–84, 2002–37 I.R.B.533 Notices: 2002–42, 2002–27 I.R.B.36 2002–43, 2002–27 I.R.B.38 2002–44, 2002–27 I.R.B.39 2002–45, 2002–28, I.R.B.93 2002–46, 2002–28 I.R.B.96 2002–47, 2002–28 I.R.B.97 2002–48, 2002–29 I.R.B.130 2002–49, 2002–29 I.R.B.130 2002–50, 2002–28 I.R.B.98 2002–51, 2002–29 I.R.B.131 2002–52, 2002–30 I.R.B.187 2002–53, 2002–30 I.R.B.187 2002–54, 2002–30 I.R.B.189 2002–55, 2002–36 I.R.B.481 2002–56, 2002–32 I.R.B.319 2002–57, 2002–33 I.R.B.379 2002–58, 2002–35 I.R.B.432 2002–59, 2002–36 I.R.B.481 2002–60, 2002–36 I.R.B.482 Proposed Regulations: REG–248110–96, 2002–26 I.R.B.19 REG–110311–98, 2002–28 I.R.B.109 REG–103823–99, 2002–27 I.R.B.44 REG–103829–99, 2002–27 I.R.B.59 REG–103735–00, 2002–28 I.R.B.109 REG–106457–00, 2002–26 I.R.B.23 REG–106871–00, 2002–30 I.R.B.190 Proposed Regulations:—Continued REG–106876–00, 2002–34 I.R.B.392 REG–106879–00, 2002–34 I.R.B.402 REG–107524–00, 2002–28 I.R.B.110 REG–115285–01, 2002–27 I.R.B.62 REG–115781–01, 2002–33 I.R.B.380 REG–116644–01, 2002–31 I.R.B.268 REG–123345–01, 2002–32 I.R.B.321 REG–126024–01, 2002–27 I.R.B.64 REG–136311–01, 2002–36 I.R.B.485 REG–164754–01, 2002–30 I.R.B.212 REG–165868–01, 2002–31 I.R.B.270 REG–106359–02, 2002–34 I.R.B.405 REG–122564–02, 2002–26 I.R.B.25 REG–123305–02, 2002–26 I.R.B.26 REG–124256–02, 2002–33 I.R.B.383 REG–133254–02, 2002–34 I.R.B.412 Revenue Procedures: 2002–43, 2002–28 I.R.B.99 2002–44, 2002–26 I.R.B.10 2002–45, 2002–27 I.R.B.40 2002–46, 2002–28 I.R.B.105 2002–47, 2002–29 I.R.B.133 2002–48, 2002–37 I.R.B.531 2002–49, 2002–29 I.R.B.172 2002–50, 2002–29 I.R.B.173 2002–51, 2002–29 I.R.B.175 2002–52, 2002–31 I.R.B.242 2002–53, 2002–31 I.R.B.253 2002–54, 2002–35 I.R.B.432 2002–55, 2002–35 I.R.B.435 2002–56, 2002–36 I.R.B.483 Revenue Rulings: 2002–38, 2002–26 I.R.B.4 2002–39, 2002–27 I.R.B.33 2002–40, 2002–27 I.R.B.30 2002–41, 2002–28 I.R.B.75 2002–42, 2002–28 I.R.B.76 2002–43, 2002–28 I.R.B.85 2002–44, 2002–28 I.R.B.84 2002–45, 2002–29 I.R.B.116 2002–46, 2002–29 I.R.B.117 2002–47, 2002–29 I.R.B.119 2002–48, 2002–31 I.R.B.239 2002–49, 2002–32 I.R.B.288 2002–50, 2002–32 I.R.B.292 2002–51, 2002–33 I.R.B.327 2002–52, 2002–34 I.R.B.388 2002–53, 2002–35 I.R.B.427 2002–54, 2002–37 I.R.B.527 2002–55, 2002–37 I.R.B.529 2002–56, 2002–37 I.R.B.526 2002–57, 2002–37 I.R.B.526 Treasury Decisions: 8997, 2002–26 I.R.B.6 8998, 2002–26 I.R.B.1 Treasury Decisions:—Continued 8999, 2002–28 I.R.B.78 9000, 2002–28 I.R.B.87 9001, 2002–29 I.R.B.128 9002, 2002–29 I.R.B.120 9003, 2002–32 I.R.B.294 9004, 2002–33 I.R.B.331 9005, 2002–32 I.R.B.290 9006, 2002–32 I.R.B.315 9007, 2002–33 I.R.B.349 9008, 2002–33 I.R.B.335 9009, 2002–33 I.R.B.328 9010, 2002–33 I.R.B.341 9011, 2002–33 I.R.B.356 9012, 2002–34 I.R.B.389 9014, 2002–35 I.R.B.429 1 A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2002–1 through 2002–25 is in Internal Revenue Bulletin 2002–26, dated July 1, 2002. September 23, 2002ii2002–38 I.R.B. Finding List of Current Actions on Previously Published Items 1 Bulletin 2002–26 through 2002–37 Announcements: REG–208280–86 Withdrawn by REG–136311–01, 2002–36 I.R.B.485 98–99 Superseded by Rev. Proc. 2002–44, 2002–26 I.R.B.10 2000–4 Modified by Ann. 2002–60, 2002–26 I.R.B.28 2001–9 Superseded by Rev. Proc. 2002–44, 2002–26 I.R.B.10 Proposed Regulations: REG–209114–90 Corrected by Ann. 2002–65, 2002–29 I.R.B.182 REG–209813–96 Withdrawn by REG–106871–00, 2002–30 I.R.B.190 REG–103823–99 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 Ann. 2002–79, 2002–36 I.R.B.515 REG–103829–99 Corrected by Ann. 2002–82, 2002–37 I.R.B.533 REG–105885–99 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 REG–105369–00 Clarified by Notice 2002–52, 2002–30 I.R.B.187 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 REG–118861–00 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 REG–126100–00 Withdrawn by REG–133254–02, 2002–34 I.R.B.412 REG–136193–01 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 REG–161424–01 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 Proposed Regulations—Continued: REG–165706–01 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 REG–102740–02 Corrected by Ann. 2002–67, 2002–30 I.R.B.237 REG–106359–02 Corrected by Ann. 2002–81, 2002–37 I.R.B.533 REG–108697–02 Corrected by Ann. 2002–84, 2002–37 I.R.B.533 REG–123305–02 Corrected by Ann. 2002–69, 2002–31 I.R.B.283 Revenue Procedures: 88–10 Superseded by Rev. Proc. 2002–48, 2002–37 I.R.B.531 91–23 Modified and superseded by Rev. Proc. 2002–52, 2002–31 I.R.B.242 91–26 Modified and superseded by Rev. Proc. 2002–52, 2002–31 I.R.B.242 95–18 Superseded by Rev. Proc. 2002–51, 2002–29 I.R.B.175 96–13 Modified and superseded by Rev. Proc. 2002–52, 2002–31 I.R.B.242 96–14 Modified and superseded by Rev. Proc. 2002–52, 2002–31 I.R.B.242 96–53 Amplified by Rev. Proc. 2002–52, 2002–31 I.R.B.242 2001–12 Obsoleted by T.D. 9004, 2002–33 I.R.B.331 2001–17 Modified and superseded by Rev. Proc. 2002–47, 2002–29 I.R.B.133 2001–26 Superseded by Rev. Proc. 2002–53, 2002–31 I.R.B.253 2002–9 Modified and amplified by Rev. Proc. 2002–46, 2002–28 I.R.B.105 Amplified, clarified, and modified by Rev. Proc. 2002–54, 2002–35 I.R.B.432 Revenue Procedures—Continued: 2002–13 Modified by Rev. Proc. 2002–45, 2002–27 I.R.B.40 2002–19 Amplified and clarified by Rev. Proc. 2002–54, 2002–35 I.R.B.432 Revenue Rulings: 54–571 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 55–606 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 59–328 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 64–36 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 65–129 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 67–197 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 69–259 Modified and superseded by Rev. Rul. 2002–50, 2002–32 I.R.B.292 69–595 Obsoleted in part by T.D. 9010, 2002–33 I.R.B.341 70–608 Obsoleted in part by T.D. 9010, 2002–33 I.R.B.341 73–232 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 76–225 Revoked by REG–115781–01, 2002–33 I.R.B.380 77–53 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 85–50 Obsoleted by T.D. 2002–33 I.R.B.341 92–17 Amplified by Rev. Rul. 2002–49, 2002–32 I.R.B.288 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2002–1 through 2002–25 is in Internal Revenue Bulletin 2002–26, dated July 1, 2002. 2002–38 I.R.B.iiiSeptember 23, 2002 Revenue Rulings—Continued: 92–75 Clarified by Rev. Proc. 2002–52, 2002–31 I.R.B.242 93–70 Obsoleted by T.D. 9010, 2002–33 I.R.B.341 94–76 Amplified by Rev. Rul. 2002–42, 2002–28 I.R.B.76 Treasury Decisions: 8997 Corrected by Ann. 2002–68, 2002–31 I.R.B.283 8999 Corrected by Ann. 2002–71, 2002–32 I.R.B.323 September 23, 2002iv2002–38 I.R.B.
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