us-irs-announcements-irb-2012-38-pdf•Internal Revenue Bulletin 2012-38 (PDF rendition): IRS Announcements
Internal Revenue Bulletin 2012-38 (PDF rendition): IRS Announcements
us-irs-announcements-irb-2012-38-pdfInternal Revenue Bulletin 2012-38 (PDF rendition): IRS AnnouncementsGuidance
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Bulletin No. 201 2-38 September 17, 20 12 HIGHLIGHTS OF THIS ISSUE These synopses are intended only as aids to the reader in identifying the subject matter covered. They may not be relied upon as authoritative interpretations. INCOME TAX T.D. 9598, page 343. REG–138489–09, page 355. Final, temporary, and proposed regulations under section 988 of the Code address certain integrated transactions that in- volve a foreign currency denominated debt instrument and mul- tiple associated hedging transactions. The regulations provide that if a taxpayer has identified multiple hedgers as being part of a qualified hedging transaction, and the taxpayer has termi- nated at least one but less than all of the hedges (including a portion of one or more of the hedges), the taxpayer must treat the remaining hedges as having been sold for fair market value on the date of disposition of the terminated hedge. REG–126770–06, page 347. Proposed regulations under section 263A of the Code provide that, in general, taxpayers may not use negative amounts to allocate additional section 263A costs under the simplified pro- duction method. The proposed regulations provide a new mod- ified simplified production method under which producers may include negative amounts in allocating additional section 263A costs by using a preproduction cost absorption ratio and a pro- duction cost absorption ratio. ADMINISTRATIVE Announcement 2012–35, page 356. This document contains corrections to temporary regulations (T.D. 9572, 2012–11 I.R.B. 471) that extend the definition of a specified NPC with respect to payments made before January 1, 1014. Finding Lists begin on page ii. The IRS Mission Provide Americ a’s taxpayers top-quality service by helping them understa nd and meet their tax responsibilities and en- force the law wi th integrity and fairness to all. Introduction The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conven- tions, legislation, court decisions, and other items of general interest. It is published weekly and may be obtained from the Superintendent of Documents on a subscription basis. Bulletin contents are compiled semiannually into Cumulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all sub- stantive rulings necessary to promote a uniform application of the tax laws, including all rulings that supersede, revoke, mod- ify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless otherwise indi- cated. Procedures relating solely to matters of internal man- agement are not published; however, statements of internal practices and procedures that affect the rights and duties of taxpayers are published. Revenue rulings represent the conclusions of the Service on the application of the law to the pivotal facts stated in the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices, identifying details and information of a confidential nature are deleted to prevent unwarranted invasions of privacy and to comply with statutory requirements. Rulings and procedures reported in the Bulletin do not have the force and effect of Treasury Department Regulations, but they may be used as precedents. Unpublished rulings will not be relied on, used, or cited as precedents by Service personnel in the disposition of other cases. In applying published rulings and procedures, the effect of subsequent legislation, regulations, court decisions, rulings, and procedures must be considered, and Service personnel and others concerned are cautioned against reaching the same conclusions in other cases unless the facts and circumstances are substantially the same. The Bulletin is divided into four parts as follows: Part I.—19 86 Code. This part i ncludes rulings and decisions based on provisions of the Intern al Revenue Code of 1986. Part II.—Treaties and Tax Legislation. This part is divided into two subparts as follows: Subpart A, Tax Conventions and Other Related Items, and Subpart B, Leg- islation and Related Committee Reports. Part III.—Administrative, Procedural, and Miscellaneous. To the extent practicable, pertinent cross references to these subjects are contained in the other Parts and Subparts. Also included in this part are Bank Secrecy Act Administrative Rul- ings. Bank Secrecy Act Administrative Rulings are issued by the Department of the Treasury’s Office of the Assistant Secre- tary (Enforcement). Part IV .—Items of General Interest. This par t includes notices of proposed rulemakings, disbar- ment an d suspension lists, and announcements. The last Bulletin for each month includes a cumulative index for the matters published during the preceding months. These monthly indexes are cumulated on a semiannual basis, and are published in the last Bulletin of each semiannual period. The c ontents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. For sale by the Superintendent of Documents, U.S.Government Printing Office, Washington, DC 20402. September 17, 20122012–38 I.R.B. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 988.— Treatment of Certain Forei gn Currency Transactions 26 CFR 1.988–5: Section 988(d) hedging transac- tions. T.D. 9598 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Integrated Hedging Transactions of Qualifying Debt AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Temporary and final regula- tions. SUMMARY: This document contains tem- porary regulations thataddress certain in- tegrated transactions that involve a foreign currency denominated debt instrument and multiple associated hedging transactions. The regulations provide that if a taxpayer has identified multiple hedges as being part of a qualified hedging transaction, and the taxpayer has terminated at least one but less than all of the hedges (including a por- tion of one or more of the hedges), the tax- payer must treat the remaining hedges as having been sold for fair market value on the date of disposition of the terminated hedge. The text of the temporary regula- tions also serves as the text of the proposed regulations (REG–138489–09) set forth in the notice of proposed rulemaking on this subject in this issue of the Bulletin. DATES:Effective Date:These regulations are effective on September 6, 2012. Applicability Date:These regulations apply to leg-outs within the meaning of §1.988–5(a)(6)(ii) which occur on or after September 6, 2012. FOR FURTHER INFORMATION CON TACT: Sheila Ramaswamy, at (202) 622 –3870 (not a toll-free number). SUPPLEMENTAR Y INFORMATION: Background Section 1.988 –5 provides detailed rules that permit th e integration of a qualifying debt instrum ent with a §1.988–5(a) hedge. The effect of integration under the regu- lations is to create a synthetic debt instru- ment. Genera lly, if a taxpayer enters into a qualified h edging transaction and meets the require ments of the regulations, no exchange ga in or loss is recognized on the debt instru ment or the hedge for the period that it is pa rt of a qualified hedging trans- action (pr ovided that the synthetic debt instrumen t is not denominated in a non- functiona l currency). See §1.988–5(a)(9). A qualifie d hedging transaction is an in- tegrated economic transaction consisting of a quali fying debt instrument and a §1.988–5 (a) hedge. See §1.988–5(a)(1). A qualify ing debt instrument is any debt instrume nt described in §1.988–1(a)(2)(i) regardle ss of its denominated currency. See §1.9 88–5(a)(3). A §1.988–5(a) hedge is a spot contract, futurescontract, for- ward con tract, option contract, notional princip al contract, currency swap contract, or simi lar financial instrument, or series or comb inations of such instruments, that when in tegrated with a qualifying debt in- strume nt permits the calculation of a yield to matu rity in the currency in which the synth etic debt instrument is denominated. See §1 .988–5(a)(4). Under §1.988–5(a)(6)(ii), a taxpayer that d isposes of all or a part of the qualify- ing de bt instrument or hedge prior to the matur ity of the qualified hedging trans- actio n, or that changes a material term of the q ualifying debt instrument or hedge, is vi ewed as “legging out” of integrated trea tment. One of the consequences of legg ing out is that if the hedge is dis- pose d of, the qualifying debt instrument is tr eated as sold for its fair market value on t he date of disposition of the hedge (le g-out date). See §1.988–5(a)(6)(ii)(B). Any gain or loss on the qualifying debt ins trument from the date of identification to t he leg-out date is recognized on the le g-out date. The intended result of this de emed disposition rule is that the gain or loss on the qua lifying debt instrument will generally be o ffset by the gain or loss on the hedge. The Internal R evenue Service (IRS) and the Depart ment of the Treasury (Trea- sury Departm ent) have become aware that some taxpaye rs who are in a loss position with respect to a qualifying debt instru- ment that is p art of a qualified hedging transactio n are interpreting the legging-out rules of §1. 988–5(a)(6)(ii)(B) to permit the recogni tion of the loss on the debt instrument without recognition of all of the corres ponding gain on the hedging component of the transaction. Taxpayers claim to ac hieve this result by hedging nonfuncti onal currency debt instruments with multi ple financial instruments and se- lectivel y disposing of less than all of these position s. Taxpayers take the position that §1.988–5 (a)(6)(ii)(B) triggers the entire loss in th e qualifying debt instrument but not the ga in in the remaining components of the he dging side of the integrated trans- action. For exam ple, a taxpayer may fully hedgeaf ixed rate nonfunctional currency denomin ated debt instrument that it has issued w ith two swaps—a nonfunctional curren cy/dollar currency swap and a fixed for flo ating dollar interest rate swap. The effect of matching the currency swap with the for eign currency denominated debt is to cr eate synthetic fixed rate U.S. dol- lar de bt while the effect of the interest rate s wap is to simultaneously transform the sy nthetic fixed rate U.S. dollar debt into s ynthetic floating rate U.S. dollar debt. Thus, assuming that the rules of §1.9 88–5(a) are otherwise satisfied, the taxp ayer will have effectively converted the f ixed rate foreign currency denom- inat ed debt instrument into a synthetic floa ting rate U.S. dollar denominated debt inst rument. As th e U.S. dollar declines in value rel- ativ etotheforeigncurrencyinwhichthe deb t instrument is denominated, the tax- pay er disposes of the interest rate swap whi le keeping the currency swap in exis- ten ce. The taxpayer takes the position that the disposition of the interest rate swap al- lo ws it to treat the debt instrument as hav- in g been terminated on the date of dispo- 2012–38 I.R.B.343September 17, 2012 sition and claims a loss on the debt instru- ment without taking into account the off- setting gain on the remaining component of the hedge. Thus, the taxpayer claims the transaction generates a net loss. The IRS and the Treasury Department believe that these results are inappropriate under the legging-out rules since the claimed loss is largely offset by unrealized gain on the re- maining component of the hedging trans- action. Therefore, the IRS and the Trea- sury Department are issuing these regu- lations to clarify the rules regarding the consequences of legging-out of qualified hedging transactions that consist of multi- ple components. No inference is intended regarding the merits of the position taken by the taxpayer with respect to the trans- action described above (or comparable po- sitions taken by taxpayers with respect to similar transactions) in the case of trans- actions occurring prior to the applicabil- ity date of these regulations, and in ap- propriate cases the IRS may challenge the claimed results. Explanation of Provisions Section 1.988–5(a) is amended to pro- vide that if a hedge with more than one component has been properly identified as being part of a qualified hedging transac- tion, and at least one but not all of the com- ponents of the hedge that is a part of the qualified hedging transaction has been ter- minated or disposed of, all of the remain- ing components of the hedge (as well as the qualifying debt) shallbe treated as sold for their fair market value on the leg-out date of the terminated hedge. Similarly, if a part of any component of a hedge (whether a hedge consists of a single or multiple com- ponents) has been disposed of, the remain- ing part of that component (as well as other components in the case of a hedge with multiple components) that is still in exis- tence (as well as the qualifying debt instru- ment) shall be treated as sold for its fair market value on the leg-out date of the ter- minated hedge. Effective/Applicability Date The regulation applies to leg-outs within the meaning of §1.988–5(a)(6)(ii) which occur on or after September 6, 2012. Special Analyses It has been determined that these regu- lations are not a significant regulatory ac- tion as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section553(b)oftheAdministrativePro- cedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collec- tion of information on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations will be submitted to the Chief Counsel for Advo- cacy of the Small Business Administration for comment on their impact on small business. Drafting Information The principal author of these regu- lations is Sheila Ramaswamy, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development. ***** Amendment to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. Section 1.988–5 is amended by: 1. Revising paragraph (a)(6)(ii). 2. AddingExample 11in paragraph (a)(9)(iv). The revision and addition read as fol- lows: §1.988–5 Section 988(d) hedging transactions. (a) * * * (6) * * * (ii) [Reserved]. For further guidance, see §1.988–5T(a)(6)(ii). ***** (9) * * * (iv)*** Example 11. [Reserved]. For further guidance, see §1.988–5T(a)(9)(iv). Example 11. ***** Par. 3. Section 1.988–5T is added to read as follows: §1.988–5T Section 988(d) hedging transactions (temporary). (a) through (a)(6)(i) [Reserved]. For further guidance, see §1.988–5(a) through (a)(6)(i). (ii)Legging out.With respect to a qual- ifying debt instrument and hedge that are properly identified as a qualified hedg- ing transaction, “legging out” of integrated treatment under this paragraph (a) means that the taxpayer disposes of or otherwise terminates all or any portion of the qual- ifying debt instrument or the hedge prior to maturity of the qualified hedging trans- action, or the taxpayer changes a material term of the qualifying debt instrument (for example,exercises an option to change the interest rate or index, or the maturity date) or the hedge (for example,changes the interest or exchange rates underlying the hedge, or the expiration date) prior to ma- turity of the qualified hedging transaction. A taxpayer that disposes of or terminates a qualified hedging transaction (that is, dis- poses of or terminates both the qualifying debt instrument and the hedge in their en- tirety on the same day) shall be considered to have disposed of or otherwise termi- nated the synthetic debt instrument rather than legging out. If a taxpayer legs out of integrated treatment, the following rules shall apply: (A) The transaction will be treated as a qualified hedging transaction during the time the requirements of this paragraph (a) were satisfied. (B)Ifalloftheinstrumentscomprising the hedge (each such instrument, a compo- nent) are disposed of or otherwise termi- nated, the qualifying debt instrument shall be treated as sold for its fair market value on the date the hedge is disposed of or oth- erwise terminated (the leg-out date), and any gain or loss (including gain or loss re- sulting from factors other than movements in exchange rates) from the identification date to the leg-out date is realized and rec- ognized on the leg-out date. The spot rate September 17, 20123442012–38 I.R.B. on the leg-out date shall be used to deter- mine exchange gain or loss on the debt in- strument for the period beginning on the leg-out date and ending on the date such instrument matures or is disposed of or otherwise terminated. Proper adjustment must be made to reflect any gain or loss taken into account. The netting rule of §1.988–2(b)(8) shall apply. (C) If a hedge has more than one com- ponent (and such components have been properly identified as being part of the qualified hedging transaction) and at least one but not all of the components that comprise the hedge has been disposed of or otherwise terminated, or if part of any component of the hedge has been termi- nated (whether a hedge consists of a sin- gle or multiple components), the date such component (or part thereof) is disposed of or terminated shall be considered the leg-out date and the qualifying debt instru- ment shall be treated as sold for its fair market value in accordance with the rules of paragraph (a)(6)(ii)(B) of this section on such leg-out date. In addition, all of the remaining components (or parts thereof) that have not been disposed of or other- wise terminated shall be treated as sold for their fair market value on the leg-out date, and any gain or loss from the identifica- tion date to the leg-out date is realized and recognized on the leg-out date. To the ex- tent relevant, the spot rate on the leg-out date shall be used to determine exchange gain or loss on the remaining components (or parts thereof) for the period beginning on the leg-out date and ending on the date such components (or parts thereof) are dis- posed of or otherwise terminated. (D) If the qualifying debt instrument is disposed of or otherwise terminated in wholeorinpart,thedateofsuchdis- position or termination shall be consid- ered the leg-out date. Accordingly, the hedge (including all components making up the hedge in their entirety) that is part of the qualified hedging transaction shall be treated as sold for its fair market value on the leg-out date, and any gain or loss from the identification date to the leg-out date is realized and recognized on the leg-out date. To the extent relevant, the spot rate on the leg-out date shall be used to deter- mine exchange gain or loss on the hedge (including all components thereof) for the period beginning on the leg-out date and ending on the date such hedge is disposed of or otherwise terminated. (E) Except as provided in paragraph (a)(8)(iii) of this section (regarding identi- fication by the Commissioner), the part of the qualified hedging transaction that has not been terminated (that is, the remain- ing debt instrument in its entirety even if partially hedged, or the remaining com- ponents of the hedge) cannot be part of a qualified hedging transaction for any pe- riod subsequent to the leg-out date. (F) If a taxpayer legs out of a quali- fied hedging transaction and realizes a gain with respect to the disposed of or termi- nated debt instrument or hedge, then para- graph (a)(6)(ii)(B), (C), and (D) of this sec- tion, as appropriate, will not apply if dur- ing the period beginning 30 days before the leg-out date and ending 30 days after that date the taxpayer enters into another trans- action that, taken together with any re- maining components of the hedge, hedges at least 50 percent of the remaining cur- rency flow with respect to the qualifying debt instrument that was part of the quali- fied hedging transaction or, if appropriate, an equivalent amount under the hedge (or any remaining components thereof) that was part of the qualified hedging trans- action. Similarly, in a case in which a hedge has multiple components that are part of a qualified hedging transaction, if the taxpayer legs out of a qualified hedg- ingtransactionbyterminatingonesuch component or a part of one or more such components and realizes a gain with re- spect to the terminated component, com- ponents, or portions thereof, then para- graphs (a)(6)(ii)(B), (C), and (D) of this section, as appropriate, will not apply if the remaining components of the hedge (in- cluding parts thereof) by themselves hedge at least 50 percent of the remaining cur- rency flow with respect to the qualifying debt instrument that was part of the quali- fied hedging transaction. (a)(7) through (a)(9)(iv)Examples 10 [Reserved]. For further guidance, see §1.988–5(a)(7) through (a)(9)(iv)Exam- ple 10. Example 11. (i) K is a U.S. corporation with the U.S. dollar as its functional currency. On January 1, 2013, K borrows 100 British pounds (£) for two years at a 10% rate of interest payable on December 31 of each year with no principal payment due until ma- turity on December 31, 2014. Assume that the spot rate on January 1, 2013, is £1=$1. On the same date, K enters into two swap contracts with an unrelated counterparty that economically results in the transfor- mation of the fixed rate £100 borrowing to a floating rate dollar borrowing. The terms of the swaps are as follows: (A)Swap #1, Currency swap. On January 1, 2013, K will exchange £100 for $100. (1) On December 31 of both 2013 and 2014, K will exchange $8 for £10; (2) On December 31, 2014, K will exchange $100 for £100. (B)Swap #2, Interest rate swap. On December 31 of both 2013 and 2014, K will pay LIBOR times a notional principal amount of $100 and will receive 8% times the same $100 notional principal amount. (ii) Assume that K properly identifies the pound borrowing and the swap contracts as a qualified hedg- ing transaction as provided in paragraph (a)(8) of this section and that the other relevant requirements of paragraph (a) of this section are satisfied. (iii) Assume also that on January 1, 2014, the spot exchange rate is £1:$2; the U.S. dollar LIBOR rate of interest is 9%; and the market value of K’s note in pounds has not changed. K terminates swap #2. K will incur a loss of ($.91) (the present value of $1) with respect to the termination of such swap on January 1, 2014. Pursuant to paragraph (a)(6)(ii)(C) of this section, K must treat swap #1 as having been sold for its fair market value on the leg-out date, which is the date swap #2 is terminated. K must real- ize and recognize gain of $100.92 [the present value of £110 discounted in pounds to equal £100 x $2 ($200) less the present value of $108 ($99.08)]. The loss inherent in the pound borrowing from January 1, 2013 to January 1, 2014 is realized and recognized on January 1, 2014. Such loss is exchange loss in the amount of $100 [the present value of £110 that was to be paid at the end of the year discounted at pound interest rates to equal £100 times the change in exchange rates: (£100 x $1, the spot rate on January 1, 2013) - (£100 x $2, the spot rate on January 1, 2014)]. Except as provided in paragraph (a)(8)(iii) of this section (regarding identification by the Commissioner), the pound borrowing and currency swap cannot be part of a qualified hedging transaction for any period subsequent to the leg-out date. (iv) Assume the facts are the same as in paragraph (iii) of this section except that on January 1, 2014, the U.S. dollar LIBOR rate of interest is 7% rather than 9%. When K terminates swap #2, K will realize gain of $0.93 (the present value of $1) received with re- spect to the termination on January 1, 2014. Fifty percent or more of the remaining pound cash flow of the pound borrowing remains hedged after the ter- mination of swap #2. Accordingly, under paragraph (a)(6)(ii)(F) of this section, paragraphs (a)(6)(ii)(B) and(C)ofthissectiondonotapplyandthegainon swap #1 and the loss on the qualifying debt instru- ment is not taken into account. Thus, K will include in income $0.93 realized from termination of swap #2. (a)(10) through (g) [Reserved]. For further guidance, see §1.988–5(a)(10) through (g). (h)Effective/applicability date.This section applies to leg-outs that occur on or after September 6, 2012. 2012–38 I.R.B.345September 17, 2012 (i)Expiration date. This section expires on September 4, 2015. Steven T. Miller, Deputy Commissioner for Services and Enforcement. Approved August 17, 2012. Mark J. Mazur, Assistant Secretary oftheTreasury(TaxPolicy). (Filed by the Office of the Federal Register on September 5, 2012, 8:45 a.m., and published in the issue of the Federal Register for September 6, 2012, F.R. 54808) September 17, 20123462012–38 I.R.B. Part IV. Items o fGeneralInterest Notice of Prop osed Rulemaking Allocation of Costs Under the Simplified Me thods REG–126770– 06 AGENCY: Inte rnal Revenue Service (IRS), Treas ury. ACTION: Noti ce of proposed rulemaking. SUMMARY: Thi s document contains pro- posed regula tions on allocating costs to certain prop erty produced by the taxpayer or acquired by the taxpayer for resale. The proposed re gulations affect taxpayers that are produce rs or resellers of property that are require d to capitalize certain costs to the proper ty and that allocate costs under the simpli fied production method or the simplifie d resale method. The proposed regulatio ns provide rules for the treatment of negativ e additional costs. DATES: Wri tten (including electronic) comments and requests for a public hear- ing must b e received by December 4, 2012. ADDRESSE S: Send submissions to: CC:PA:LP D:PR(REG–126770–06), room 5205 , Internal Revenue Service, PO Box 76 04, Ben Franklin Station, Washing ton, DC 20044.Submis- sions ma y be hand delivered between the hour s of 8 a.m. and 4 p.m. to CC:PA:L PD:PR(REG–126770–06), Courie r’s Desk, Internal Revenue Servic e, 1111 Constitution Avenue, N.W., W ashington, DC. Taxpayers also may sub mit comments electronically viathe FederaleRulemaking Porta latwww.regulations.gov(IRS REG–1 26770–06). FOR FU RTHER INFORMATION CONTA CT: Concerning the proposed regul ations, Christopher Call, (202) 622–4 970; concerning submissions of comme nts or to request a public hearing, Oluw afunmilayo Taylor, (202) 622–7180 (not toll-free numbers). SUPPLEMENTAR Y INFORMATION: Background This document contains proposed amendments to the Income Tax Regu- lations, 26 CF R part 1, relating to the allocation of costs under the simplified methods of ac counting under section 263A of the Intern al Revenue Code (Code). Section 263A requires taxpayers to capitalize t he direct costs and indirect costs that ar e properly allocable to: (1) real or tangi ble personal property the tax- payer produ ces, and (2) real property and personal pr operty described in section 1221(a)(1) that the taxpayer acquires for resale. Sec tion 1.263A–1(e)(2)(i) of the Income Tax R egulations provides that direct cos ts for producers are direct mate- rial costs and direct labor costs. Section 1.263A–1( e)(2)(ii) provides that resellers must capit alize the acquisition cost of property acquired for resale. Section 1.263A–1 (e)(3)(i) defines indirect costs as all costs other than direct material costs and direc t labor costs (in the case of prop- erty prod uced) or acquisition costs (in the case of property acquired for resale). Indirec t costs are properly allocable to propert y produced or acquired for resale when the costs directly benefit or are in- curred b y reason of the performance of produc tion or resale activities. Section 263A generally requires tax- payers to allocate capitalizable section 263A co sts to specific items in inventory. The leg islative history of section 263A indica tes that Congress intended that tax- payers would allocate additional section 263A c osts (costs, other than interest, that were n ot capitalized under the taxpayer’s metho d of accounting immediately prior to the ef fective date of section 263A, but that are re quired to be capitalized under section 263A ) with the same degree of specificity that was required of inventoriable costs prio r to the enactment of section 263A. Cong ress contemplated that taxpayers woul d continue to use the same methods of allo cating costs to items in their inventory tha t were available under prior law.See S. R ep. No. 313, 99 th Cong. 2d Sess. 142 (19 86). Consistent with these principles, the regulations under §1.263A–1(f)(2) and (f)(3) provide that taxpayers may elect to use a “ facts-and-circumstances” allocation me thod, such as the specific identificati on method, burden rate, standard cost method, or any other method to allocate di rect and indirect costs to units of prop erty produced or acquired for resale, if th e method is reasonable within the meaning o f §1.263A–1(f)(4). Section 1.26 3A–1(f)(1) authorizes taxpayers to use the simplified methods provided in § 1.263A–2(b) (the simpli- fied produc tion method) or §1.263A–3(d) (the simpli fied resale method) to allocate costs to eli gible property produced or el- igible prop erty acquired for resale in lieu of a facts- and-circumstances allocation method. Th e simplified methods differ from facts -and-circumstances methods in that, as applied to inventories, they allocate a pool of capitalizable costs (addi- tional se ction 263A costs) between ending inventor y and cost of goods sold using a defined r atio and are an exception to the general r ule that additional section 263A costs mu st be allocated to specific items of inven tory. Thus, the simplified meth- ods are i ntended to reduce the complexity and admi nistrative burdens of having to develop detailed cost accounting systems for the additional costs required to be cap- italiz ed under section 263A. Under t he simplified production method , a taxpayer must allocate addi- tional section 263A costs to produced proper ty on hand at the end of the taxable year ba sed on the ratio of these costs in- curre d during the year to the taxpayer’s total section 471 costs incurred during the year ( the absorption ratio). The current regul ations define additional section 263A costs as the costs, other than interest, that were not capitalized under the taxpayer’s meth od of accounting immediately prior to the e ffective date of section 263A, but that are r equired to be capitalized under section 263A . See §1.263A–1(d)(3). The current reg ulations define section 471 costs as cos ts, other than interest, capitalized un- der the taxpayer’s method of accounting imm ediately prior to the effective date of sec tion 263A. If a taxpayer was not in exi stence before the effective date of sec- ti on 263A, section 471 costs are generally th ose costs that would have been required to be capitalized under §1.471–11. See 2012–38 I.R.B.347September 17, 2012 §1.263A–1(d)(2). The absorption ratio is multiplied by the section 471 costs in- curred during the taxable year that remain in ending inventory or are otherwise on hand at year end to determine the ad- ditional section 263A costs allocable to produced property on hand at the end of the taxable year. Under the simplified resale method, an eligible taxpayer computes a com- bined absorption ratio and multiplies it by the section 471 costs incurred during the taxable year that remain in its end- ing inventory or are otherwise on hand at year end to determine the additional section 263A costs allocable to eligible property on hand at year end. Section 1.263A–3(d)(3)(i)(C)(1) defines the com- bined absorption ratio as the sum of the storage and handling costs absorption ratio as defined by §1.263A–3(d)(3)(i)(D) and the purchasing costs absorption ratio as defined by §1.263A–3(d)(3)(i)(E). Notice 2007–29, 2007–1 C.B. 881, re- quests comments on the treatment of neg- ative amounts under the simplified meth- ods. A negative amount generally oc- curs when a taxpayer capitalizes a cost as a section 471 cost in an amount that is greater than the amountrequired to be cap- italized for tax purposes. For example, if a taxpayer included book depreciation in section 471 costs in accordance with §1.471–11(c)(2)(iii)(b) and the book de- preciation is greater than tax depreciation for the year, the taxpayer would have cap- italized more depreciation than is required to be capitalized under section 263A for that year. A negative amount may result if the taxpayer does not remove this excess depreciation amount by adjusting section 471 costs but instead makes an adjustment to its additional section 263A costs. See §601.601(d)(2)(ii)(b). In some situations, including negative amounts in the numerator of the simpli- fied production method formula may result in significant distortions of the amount of additional section 263A costs that is allo- cated to ending inventory. Distortions may also occur when the method used to cap- italize a cost under section 471 is differ- ent than the method used under the sim- plified production method to remove the cost from ending inventory. The extent of the distortion, and whether it is favor- able or unfavorable to the taxpayer, gen- erally depends on when the cost is in- curred in the production process and how the cost was allocated to raw materials, work-in-process, or finished goods inven- tories for purposes of section 471. Notice 2007–29 provides that, pending the issuance of additional published guid- ance, the IRS will not challenge the inclu- sion of negative amounts in computing ad- ditional costs under section 263A or the permissibility of aggregate negative addi- tional section 263A costs. The notice so- licits public comments regarding possible changes to the simplified methods involv- ing negative additional section 263A costs. Comments were received and considered in developing these proposed regulations. Explanation of Provisions 1.Prohibition on Negative Amounts To reduce the distortions that occur by including negative amounts under the simplified methods,the proposed reg- ulations provide that, subject to certain exceptions described later in this pream- ble, taxpayers may not include negative amounts in additional section 263A costs. Specific comments are requested on tran- sition rules for taxpayers currently using the simplified production method with the historic absorption ratio election (see section 1.263A–2(b)(4)), including com- ments on how the regulations should apply to taxpayers that are part way through the qualifying period as described in section 1.263A–2(b)(4)(ii)(C). To reduce the administrative burden for smaller taxpayers using the simpli- fied production method for which the costs and burdens of excluding negative amounts from additional section 263A costs may otherwise outweigh the benefits, the proposed regulations allow produc- ers with average annual gross receipts of $10,000,000 or less to include negative amounts in additional section 263A costs under the simplified production method. Additionally, because negative ad- ditional section 263A costs cause less distortion under the simplified resale method than under the simplified pro- duction method, the proposed regulations allow taxpayers using the simplified resale method to remove section 471 costs that are not required to be capitalized for tax purposes from ending inventory by treat- ing them as negative additional section 263A costs. The proposed regulations generally prohibit treating cash or trade discounts described in §1.471–3(b) as negative amounts under any of the simplified meth- ods. Comments are requested on reason- able methods of allocating between ending inventory and cost of goods sold cash or trade discounts that taxpayers do not capi- talize for book purposes (and therefore are not section 471 costs within the meaning of §1.263A–1(d)(2)). 2.New Modified Simplified Production Method In response to Notice 2007–29, a com- mentator suggested an alternative to the simplified production method that would reduce overcapitalization and distortion, including distortions resulting from in- cluding negative amounts in additional section 263A costs. The commentator suggested that the simplified production method may allocate an excessive amount of section 263A costs to raw materials inventories because the formula does not take into account the fact that taxpayers incur fewer indirect costs for raw mate- rials and because different inventoriable costs turn over at different rates. The com- mentator’s alternative simplified method would allocate additional section 263A costs related to raw materials using a for- mula that is different from the formula used to allocate additional section 263A costs related to work-in-process and fin- ished goods. As suggested by this comment, the proposed regulations allow producers to use a new modified simplified produc- tion method that reduces the distortions that exist under the traditional simpli- fied methods by more precisely allocating additional section 263A costs, including negative amounts, among raw materials, work-in-process, and finished goods in- ventories. Under the modified simplified production method, producers determine the allocable portion of preproduction re- lated additional section 263A costs (such as storage and handling for raw materi- als) using a preproduction cost absorption ratio. The preproduction cost absorption ratio is applied to raw material section 471 costs incurred during the taxable year and remaining on hand at year end. For September 17, 20123482012–38 I.R.B. purposes of computing the allocable por- tion of preproduction related additional section 263A costs, raw material costs on hand at year end include unprocessed raw materials and raw materials that are inte- grated into work-in-progress and finished goods. Under the modified simplified production method, producers determine the allocable portion of all other additional section 263A costs using a production cost absorption ratio. In addition to reducing distortions that exist under the simplified produc- tion method by more precisely allocating additional section 263A costs to raw ma- terials, the modified simplified production method provides producers with a method to remove section 471 costs that are not required to be capitalized for tax purposes from ending inventory by treating them as negative additional section 263A costs. Both resellers and producers, thereby, are allowed to use methods that more pre- cisely allocate additional section 263A costs while alleviating administrative bur- den, consistent with the purpose of the simplified methods. As with other simplified methods, a taxpayer must maintain adequate records substantiating proper use of the modified simplified production method (see section 6001). Comments are requested on the modi- fied simplified production method, includ- ing: (1) whether distortions will occur if preproduction relatedadditional section 263A costs are not directly traced from raw materials through work-in-process and finished goods inventories from year to year; (2) how mixed service costs should be allocated between raw materi- als, work-in-process, and finished goods inventories under the new formula; and (3) how the new formula should apply to a taxpayer using the last-in, first-out method of accounting. 3.Simplified Definition of Section 471 Costs and Elimination of Separate Provisions for New Taxpayers For most taxpayers, section 471 costs generally are the acquisition or production costs, other than interest, that the taxpayer capitalized under its method of accounting immediately before the effective date of section 263A. See §1.263A–1(d)(2)(i). If a taxpayer was not in existence at that time, section 471 costs generally are the acquisition or production costs, other than interest, that the taxpayer would have been required to capitalize if the taxpayer had been in existence immediately before the effective date of section 263A. See §1.263A–1(d)(2)(ii). To provide greater simplicity and con- sistency among taxpayers, the proposed regulations adopt a single definition of sec- tion 471 costs that applies to taxpayers that were in existence before the effective date of section 263A and to newer taxpay- ers, whether using the simplified produc- tion method, the modified simplified pro- duction method, or the simplified resale method. The proposed regulations pro- vide that, for purposes of the simplified methods, a taxpayer’s section 471 costs, in general, are the costs, other than inter- est, that a taxpayer capitalizes to its inven- tory in its financial statements. However, a taxpayer must include all direct costs in its section 471 costs regardless of the tax- payer’s treatment of the costs in its finan- cial statements. The proposed regulations require a taxpayer that is not permitted to remove section 471 costs as negative ad- ditional section 263A costs to reduce its section 471 costs. The proposed regula- tions provide that a taxpayer that reduces its section 471 costs must use a reasonable method that approximates the manner in which the taxpayer originally capitalized the costs. Effective/Applicability Date The regulations are proposed to apply to taxable years ending on or after the date the regulations are published as final regu- lations in theFederal Register. Effect on Other Documents Notice 2007–29 would be superseded as of the date these regulations are pub- lished as final regulations in theFederal Register. Special Analyses This notice of proposed rulemaking is not a significant regulatory action as de- fined in Executive Order 12866, as supple- mented by Executive Order 13563. There- fore, a regulatory assessment is not re- quired. Section 553(b) of the Adminis- trative Procedure Act(5 U.S.C. chapter 5) does not apply to these regulations. Be- cause the regulations do not impose a col- lection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chap- ter 6) does not apply. Pursuant to sec- tion 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for com- ment on its impact on small business. Comments and Requests for Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are sub- mitted timely to the IRS as prescribed in this preamble under the “Addresses” head- ing. The IRS and the Treasury Depart- ment request comments on all aspects of the proposed rules. All comments will be available atwww.regulations.govor upon request. A public hearing will be scheduled if requested in writing by any person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in theFederal Register. Drafting Information The principal author of these proposed regulations is W. Thomas McElroy, Jr. of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in their development. ***** Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART I — INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section1.263A–1alsoissuedunder 26 U.S.C. 263A. * * * Section1.263A–2alsoissuedunder 26 U.S.C. 263A. * * * Par. 2. Section 1.263A–0 is amended as follows: 2012–38 I.R.B.349September 17, 2012 1. Revising the entries in §1.263A–1 for paragraphs (d)(2) and (d)(3). 2. Revising the entries in §1.263A–2 for paragraphs (c) and (d). 3. Adding new entries to §1.263A–2 for paragraphs (e), (f) and (g). The revisions and addition read as fol- lows: §1.263A–0 Outline of regulations under section 263A. ***** §1.263A–1 Uniform capitalization of costs. ***** (d) * * * (2) Section 471 costs. (i) In general. (ii) Removal of costs from inventory. (iii) Method changes. (3) Additional section 263A costs. (i) In general. (ii) Negative amounts. (A) In general. (B) Exception for small taxpayers using the simplified production method. (C) Exception for modified simplified production method and simplified resale method. ***** §1.263A–2 Rules relating to property produced by the taxpayer. ***** (c) Modified simplified production method. (1) In general. (2) Eligible property. (3) Modified simplified production method without historic absorption ratio election. (i) General allocation formula. (A) In general. (B) Allocable preproduction additional section 263A costs. (C) Allocable production additional section 263A costs. (D) Effect of allocation. (E) Treatment of mixed service costs. (ii) Definitions (A) Preproduction absorption ratio. (1) In general. (2) Preproduction additional section 263A costs. (3) Raw material costs. (B) Production absorption ratio. (1) In general. (2) Production additional section 263A costs. (3) Production section 471 costs. (iii) LIFO taxpayers electing the modi- fied simplified production method. (A) In general. (B) LIFO increment. (1) In general. (2) Combined absorption ratio defined. (C) LIFO decrement. (iv)De minimisrule for producers with total indirect costs of $200,000 or less. (v) Examples. (4) Modified simplified production method with historic absorption ratio elec- tion. (i) In general. (ii) General allocation formula. (A) In general. (B) Preproduction historic absorption ratio. (C) Production historic absorption ra- tio. (iii) LIFO taxpayers making the historic absorption ratio election. (A) In general. (B) Combined historic absorption ratio. (C) Total allocable additional section 263A costs incurred during the test period. (D) Total section 471 costs remaining on hand at year end during the test period. (iv) Extension of qualifying period. (v) Transition rule. (vi) Examples. (d) Additional simplified methods for producers. (e) Cross reference. (f) Change in method of accounting. (1) In general. (2) Scope limitations. (3) Audit protection. (4) Section 481(a) adjustment. (5) Time for requesting change. (g) Effective/applicability date. Par. 3. Section 1.263A–1 is amended by: 1. Revising paragraphs (d)(2) and (d)(3). 2. Adding a sentence to the end of para- graph (m). The addition and revisions read as fol- lows: §1.263A–1 Uniform capitalization of costs. ***** (d) * * * (2)Section 471 costs—(i)In general. Except as otherwise provided in paragraph (d)(2)(ii) of this section, for purposes of section 263A, a taxpayer’s section 471 costs are the costs, other than interest, that a taxpayer capitalizes to its inventory (or other eligible property) in its financial statements. Thus, although section 471 ap- plies only to inventories, section 471 costs include any non-inventory costs, other than interest, that a taxpayer capitalizes or includes in acquisition or production costs in its financial statements. How- ever, notwithstanding the last sentence of paragraph (g)(2) of this section, section 471 costs must include all direct costs of producing property and of acquiring property held for resale, whether or not a taxpayer capitalizes these costs to in- ventory or to other eligible property in its financial statements. See paragraph (e)(2) of this section for a description of direct production costs and direct costs of acquiring property held for resale. (ii)Removal of costs from inventory. A taxpayer must reduce its section 471 costs by those costs that the taxpayer capitalizes to its inventory (or other eli- gible property) in its financial statements that may not be capitalized under either §1.263A–1(c)(2) or §1.263A–1(j)(2)(ii), and those period costs that the taxpayer capitalizes to its inventory (or other eli- gible property) in its financial statements that, under §1.263A–1(j)(2), the tax- payer chooses not to capitalize under section 263A (for example, section 179 costs). A taxpayer described in paragraph (d)(3)(ii)(B) or (d)(3)(ii)(C) of this sec- tion that may remove these costs from inventory by including them as negative amounts in additional section 263A costs instead may reduce its section 471 costs for these costs. A taxpayer that reduces its section 471 costs must use a reasonable method that approximates the manner in which the taxpayer originally capitalized the costs to its inventory (or other eligible property) in its financial statements. (iii)Method changes. A taxpayer may change its method of accounting for de- termining section 471 costs only with the consent of the Commissioner as required September 17, 20123502012–38 I.R.B. under section 446(e) and the correspond- ing regulations. If a taxpayer is using the simplified production method de- scribed in §1.263A–2(b), the modified simplified production method described in §1.263A–2(c), or the simplified resale method described in §1.263A–3(d), and changes its financial reporting practices regarding the costs capitalized to its in- ventory (or other eligible property) in a manner that would change its section 471 costs under the general provisions of para- graph (d)(2)(i) of this section, then the taxpayer must secure the Commissioner’s consent prior to computing its taxable in- come under the new method of accounting for section 471 costs. (3)Additional section 263A costs—(i) In general.Additional section 263A costs are defined as the costs, other than interest, that are not included in a taxpayer’s sec- tion 471 costs, but that are required to be capitalized under section 263A. Additional section 263A costs do not include the di- rectcoststhatarerequiredtobeincludedin a taxpayer’s section 471 costs under para- graph (d)(2)(i) of this section. (ii)Negative amounts—(A)In gen- eral. Except as otherwise provided by regulations or other published guidance, see §601.601(d)(2), a taxpayer may not include negative amounts in additional section 263A costs. (B)Exception for small taxpayers using the simplified production method. Para- graph (d)(3)(ii)(A) of this section does not apply to a taxpayer using the simplified production method under §1.263A–2(b) if the taxpayer’s (or its predecessors’) av- erage annual gross receipts for the three previous taxable years (test period) do not exceed $10,000,000. The rules of §1.263A–3(b) apply for purposes of deter- mining the amount of a taxpayer’s gross receipts and the test period. (C)Exception for modified simplified production method and simplified resale method. In general, a taxpayer using the modified simplified production method under §1.263A–2(c) or the simplified re- sale method under §1.263A–3(d) may (but is not required to) remove as negative amounts under section 263A indirect costs that are included in the taxpayer’s section 471 costs but that are not required to be, or may not be, capitalized into inventory (or other eligible property) for federal in- come tax purposes. However, a taxpayer using the modified simplified production method or the simplified resale method may not use negative amounts to adjust additional section 263A costs for cash or trade discounts described in §1.471–3(b). ***** (m) * * * Paragraphs (d)(2) and (d)(3) of this section apply for taxable years ending on or after the date these regulations are published as final regulations in theFed- eral Register. Par. 4. Section 1.263A–2 is amended by: 1. Redesignating paragraphs (c), (d), (e), and (f) as paragraphs (d), (e), (f), and (g). 2. Adding a new paragraph (c). 3. Revising newly designated para- graph (g). The addition and revisions read as fol- lows: §1.263A–2 Rules relating to property produced by the taxpayer. ***** (c)Modified simplified production method—(1)In general. This paragraph (c) provides a modified simplified method for determining the additional section 263A costs properly allocable to ending inventories of property produced and other eligible property on hand at the end of the taxable year. (2)Eligible property. For purposes of this paragraph (c),eligible propertyhas the same meaning as in paragraph (b)(2) of this section. (3)Modified simplified production method without historic absorption ra- tio election—(i)General allocation for- mula—(A)In general. Except as other- wise provided in paragraph (c)(3)(iv) of this section, a taxpayer may compute the total additional section 263A costs alloca- ble to eligible property remaining on hand at the close of the taxable year under the modified simplified production method as follows: Allocable preproduction additional section 263A costs + Allocable production additional section 263A costs. (B)Allocable preproduction additional section 263A costs. The amount of prepro- duction additional section 263A costs allo- cable to ending inventory or to other eligi- ble property on hand at the end of the tax- able year is computed as follows: Preproduction absorption ratio x raw material section 471 costs incurred during the taxable year and remaining on hand at year end. (C)Allocable production additional section 263A costs. The amount of pro- duction additional section 263A costs allocable to ending inventory or to other eligible property on hand at the end of the taxable year is computed as follows: Production absorption ratio x produc- tion section 471 costs incurred during the taxable year and remaining on hand at year end. (D)Effect of allocation. The alloca- ble preproduction additional section 263A costs and the allocable production addi- tional section 263A costs are totaled to compute the additional section 263A costs, which are added to the taxpayer’s end- ing section 471 costs to determine the to- tal section 263A costs that are capitalized. See, however, paragraph (c)(3)(iii) of this section for special rules for LIFO taxpay- ers. Except as otherwise provided in this section or in §1.263A–1 or §1.263A–3, ad- ditional section 263A costs that are allo- cated to inventories on hand at the close of the taxable year underthe modified simpli- fied production method are treated as in- ventory costs for all purposes of the Inter- nal Revenue Code. (E)Treatment of mixed service costs. A taxpayer must apportion capitalizable mixed service costs (the aggregate portion of mixed service costs that are properly allocable to the taxpayer’s production or resale activities as additional section 263A costs) between preproduction additional section 263A costs described in para- graph (c)(3)(ii)(A)(2) of this section and production additional section 263A costs described in paragraph (c)(3)(ii)(B)(2)of this section. Under the modified simpli- fied production method, a taxpayer must allocate capitalizablemixed service costs to preproduction additional section 263A costsinproportiontotherawmaterial costs in total section 471 costs. The tax- payer must include the capitalizable mixed service costs that are not allocated to pre- production additional section 263A costs in production additional section 263A costs. (ii)Definitions—(A)Preproduction ab- sorption ratio—(1)In general.Underthe modified simplified production method, 2012–38 I.R.B.351September 17, 2012 the preproduction absorption ratio is de- termined as follows: P reproductionadditionalsection263Acosts Raw material costs (2)Preproduction additional section 263A costs. Preproduction additional section 263A costs are the sum of the additional section 263A costs (as defined in §1.263A–1(d)(3)) incurred during the current taxable year that are described in paragraph (a)(3)(ii) of this section to the extent the costs are not treated as section 471 costs and the allocable portion of cap- italizable mixed service costs as described in paragraph (c)(3)(i)(E) of this section. (3)Raw material costs. Raw material costs are defined as the direct costs of ac- quiring raw materials that a taxpayer pur- chases during its current taxable year. Raw material section 471 costs incurred during the taxable year and remaining on hand at year end include the raw material costs in work-in-process and finished goods as well as unprocessed raw materials. (B)Production absorption ratio—(1) In general. Under the modified simplified production method, the production absorp- tion ratio is determined as follows: P roductionadditionalsection263Acosts Production section 471 costs (2)Production additional section 263A costs. Production additional sec- tion 263A costs are the sum of all ad- ditional section 263A costs (as defined in §1.263A–1(d)(3)) incurred during the current taxable yearthat are not prepro- duction additional section 263A costs as described in this section and the alloca- ble portion of capitalizable mixed service costs as described in paragraph (c)(3)(i)(E) of this section. For example, production additional section 263A costs include the additional section 263A costs that consti- tute post-production costs as defined in paragraph (a)(3)(iii) of this section. (3)Production section 471 costs.Pro- duction section 471 costs are defined as the total section 471 costs that a taxpayer in- curs during its current taxable year less the taxpayer’s raw material costs. (iii)LIFO taxpayers electing the mod- ified simplified production method—(A) In general. Under the modified simpli- fied production method, a taxpayer using a LIFO method must calculate a partic- ular year’s index (for example, under §1.472–8(e)) without regard to its addi- tional section 263A costs. Similarly, a taxpayer that adjusts current-year costs by applicable indexes to determine whether there has been an inventory increment or decrement in the current year for a particular LIFO pool must disregard the additional section 263A costs in making that determination. (B)LIFO increment—(1)In general.If a taxpayer determines there has been an in- ventory increment, the taxpayer must state the amount of the increment in current- year dollars (stated in terms of section 471 costs). The taxpayer then multiplies this amount by the combined absorption ratio, as defined in paragraph (c)(3)(iii)(B)(2)of this section. The resulting product is the additional section 263A costs that must be added to the taxpayer’s increment for the year stated in terms of section 471 costs. (2)Combined absorption ratio defined. For purposes of this paragraph (c)(3)(iii), the numerator of the combined absorption ratio is the total additional section 263A costs allocable to eligible property remain- ing on hand at the close of the taxable year, as described in paragraph (c)(3)(i)(A) of this section. The denominator of the com- bined absorption ratio is the total section 471costsremainingonhandatyearend, as described in paragraph (b)(3)(ii)(B) of this section. (C)LIFO decrement. If a taxpayer determines there has been an inventory decrement, the taxpayer must state the amount of the decrement in dollars for the particular year for which the LIFO decre- ment has occurred. The additional section 263A costs incurred in prior years that ap- ply to the decrement are included in cost of goods sold. The taxpayer determines the additional section 263A costs that apply to the decrement by multiplying the addi- tional section 263A costs allocated to the layer of the pool in which the decrement occurred by the ratio of the decrement (excluding additional section 263A costs) to the section 471 costs in the layer of that pool. (iv)De minimis rule for producers with total indirect costs of $200,000 or less. Paragraph (b)(3)(iv) of this section, which provides that the additional section 263A costs allocable to eligible property remain- ing on hand at the close of the taxable year are deemed to be zero for producers with total indirect costs of $200,000 or less, ap- plies to the modified simplified production method. (v)Examples. The rules of this para- graph (c)(3) are illustrated by the follow- ing examples: Example 1.FIFO inventory method. (i) Taxpayer Pu ses the first-in, first-out (FIFO) method of ac- counting for inventories and a calendar taxable year. P’s beginning inventory for 2010 is $2,500,000, in- cl uding $2,000,000 of section 471 costs and $500,000 of additional section 263A costs. (ii) During 2010, P incurs $10,000,000 of section 47 1 costs, including $4,000,000 of raw material costs (as defined in paragraph (c)(3)(ii)(A)(3)ofthissec- tion) and $6,000,000 of production section 471 costs ( as defined in paragraph (c)(3)(ii)(B)(3)ofthissec- tion). P also incurs $1,060,000 of additional section 263A costs, including $340,000 of preproduction ad- d itional section 263A costs (as defined in paragraph (c)(3)(ii)(A)(2) of this section) and $720,000 of pro- duction additional section 263A costs (as defined in p aragraph (c)(3)(ii)(B)(2) of this section). (iii) At the end of 2010, P’s section 471 costs in- curred during the taxable year remaining in ending in- ventory are $3,500,000, including $2,000,000 of raw materials section 471 costs and $1,500,000 of produc- tion section 471 costs. (iv) P computes its preproduction absorption ratio for 2010 under paragraph (c)(3)(ii)(A) of this section as follows: September 17, 20123522012–38 I.R.B. Preproduction additional section 263A costs = $ 340,000 = 8.5 percent Raw material costs $4,000,000 (v) P computes its production absorption ratio for 2010 under paragraph (c)(3)(ii)(B)(1)ofthissection as follows: Production additional section 263A costs = $ 720,000 = 12 percent Production section 471 costs $6,000,000 (vi) Under paragraph (c)(3)(i)(B) of this section, P computes its allocable preproduction additional sec- tion 263A costs by multiplying the preproduction ab- sorption ratio by raw materials section 471 costs in- curred during the taxable year and remaining in end- ing inventory (8.5 percent * $2,000,000 = $170,000). (vii) Under paragraph (c)(3)(i)(C) of this sec- tion, P computes its allocable production additional section 263A costs by multiplying the production absorption ratio by production section 471 costs incurred during the taxable year and remaining in ending inventory at year end (12 percent * $1,500,000 = $180,000). (viii) Under paragraph (c)(3)(i)(A) of this section, P computes its total additional section 263A costs allocable to ending inventory by adding its alloca- ble preproduction additional section 263A costs to its allocable production additional section 263A costs ($170,000 + $180,000 = $350,000). (ix) P adds the $350,000 additional section 263A costs to the $3,500,000 of section 471 costs remaining in its ending inventory to calculate its total ending in- ventory of $3,850,000. P includes the balance of P’s additional section 263A costs incurred during 2010, $710,000 ($1,060,000 less $350,000), in P’s cost of goods sold. Example 2.LIFO inventory method. (i) The facts are the same as inExample 1, except that P uses the LIFO inventory method rather than the FIFO method. P’s 2010 LIFO increment is $1,500,000. (ii) Under paragraph (c)(3)(iii)(B)(1) of this sec- tion, P determines the additional section 263A costs allocable to its 2010 LIFO increment by multiplying the increment by a combined absorption ratio. Under paragraph (c)(3)(iii)(B)(2) of this section, P computes the combined absorption ratio as follows: Additional section 263A costs allocable to eligible property remaining in ending inventory at the close of 2010 =$ 350,000=10 percent Section 471 costs remaining in ending inventory at the end of 2010 $3,500,000 (iii) P’s additional section 263A costs allocable to its 2010 increment are $150,000 (10 percent * $1,500,000). Under paragraph (c)(3)(iii)(B)(1)of this section, P adds the $150,000 additional section 263A costs to its $1,500,000 LIFO increment to deter- mine a total 2010 LIFO increment of $1,650,000. P’s ending inventory is $4,150,000 (its beginning inven- tory of $2,500,000 plus the $1,650,000 increment). P includes the remaining $910,000 ($1,060,000 less $150,000) of additional section 263A costs incurred during 2010 in P’s cost of goods sold. Example 3.Mixed service costs.(i)During 2010, Taxpayer R incurs $200,000 of capitalizable mixed service costs (within the meaning of paragraph (c)(3)(i)(E) of this section). R incurs $8,000,000 of section 471 costs, including $2,000,000 of raw ma- terial costs (as defined in paragraph (c)(3)(ii)(A)(3) of this section). (ii) Under paragraph (c)(3)(i)(E) of this section, R allocates its mixed service costs to preproduc- tion additional section 263A costs by computing the proportion of raw material costs in its sec- tion 471 costs and multiplying its mixed service costs by this percentage. The proportion of raw material costs in R’s section 471 costs is 25 per- cent ($2,000,000/$8,000,000). R allocates $50,000 (25 percent * $200,000) of mixed service costs to preproduction additional section 263A costs. R includes the remaining $150,000 ($200,000 less $50,000) of capitalizable mixed service costs as production additional section 263A costs. (4)Modified simplified production method with historic absorption ratio elec- tion—(i)In general. Except as otherwise provided in this paragraph (c)(4), para- graph (b)(4) of this section applies to the historic absorption ratio election under the modified simplified production method. (ii)General allocation formula—(A)In general. Except as provided in paragraph (c)(4)(iii) of this section (relating to LIFO taxpayers), a taxpayer making the historic absorption ratio election under the modi- fied simplified production method uses a preproduction historic absorption ratio and a production historic absorption ratio in place of the actual preproduction absorp- tion ratio and production absorption ratio under paragraph (c)(3)(ii) of this section. The preproduction and production historic absorption ratios are based on costs a tax- payer capitalizes during its test period. (B)Preproduction historic absorption ratio. The preproduction historic absorp- tion ratio is computed as follows: P reproductionadditionalsection263Acostsincurredduringthetestperiod Raw material costs incurred during the test period (C)Production historic absorption ratio. The production historic absorption ratio is computed as follows: P roductionadditionalsection263Acostsincurredduringthetestperiod Production section 471 costs incurred during the test period (iii)LIFO taxpayers making the his- toric absorption ratio election—(A)In general. Instead of the combined absorp- tion ratio under paragraph (c)(3)(iii)(B)(2) of this section, a LIFO taxpayer making the historic absorption ratio election un- 2012–38 I.R.B.353September 17, 2012 der the modified simplified production method calculates a combined historic absorption ratio based on costs a taxpayer capitalizes during its test period. (B)Combined historic absorption ra- tio. The combined historic absorption ratio is computed as follows: T otalallocableadditionalsection263Acostsincurredduringthetestperiod Total section 471 costs remaining on hand at each year end of the test period (C)Total allocable additional section 263A costs incurred during the test pe- riod. Total allocable additional section 263A costs incurred during the test period are the sum of the total additional section 263A costs allocable to eligible property on hand at year end as described in para- graph (c)(3)(i)(A) ofthissection,forall years in the test period. (D)Total section 471 costs remaining on hand at each year end of the test pe- riod. Total section 471 costs remaining on hand at each year end of the test period are the sum of the total section 471 costs re- maining on hand at year end described in paragraph (b)(3)(ii)(B) of this section, for all taxable years in the test period. (iv)Extension of qualifying period.In the first taxable year following the close of each qualifying period (for example, the sixth taxable year following the test pe- riod), a taxpayer must compute the actual absorption ratios under paragraph (c)(3) of this section (preproduction and production absorption ratios or, for LIFO taxpayers, the combined absorption ratio). If the ac- tual combined absorption ratio or both the actual preproduction and production ab- sorption ratios, as applicable, computed for this taxable year (the recomputation year) is within one-half of one percentage point (plus or minus) of the correspond- ing historic absorption ratio or ratios used in determining capitalizable costs for the qualifying period (the previous five tax- able years), the qualifying period is ex- tended to include the recomputation year and the following five taxable years, and the taxpayer must continue to use the his- toric absorption ratio or ratios throughout the extended qualifying period. If, how- ever, the actual combined historic absorp- tion ratio or either the actual preproduction absorption ratio or production absorption ratio, as applicable, is not within one-half of one percentage point (plus or minus) of the corresponding historic absorption ra- tio, the taxpayer must use the actual ab- sorption ratio or ratios beginning with the recomputation year and throughout the up- dated test period. The taxpayer must re- sume using the historic absorption ratio or ratios based on the updated test period in the third taxable year following the recom- putation year. (v)Transition rule. [Reserved]. (vi)Examples. The provisions of this paragraph (c)(4) are illustrated by the fol- lowing examples: Example 1.FIFO inventory method. (i) Taxpayer S uses the FIFO method of accounting for invento- ries and a calendar taxable year, and in 2010 elects to use the modified simplified production method. In 2013, S makes the historic absorption ratio election. S identifies the following costs incurred during the test period: 201020112012 Preproduction additional section 263A costs $100$200$300 Production additional section 263A costs200 350450 Raw material costs2,000 2,500 3,000 Production section 471 costs 2,5003,500 4,000 In 2013, S incurs $10,000 of section 471 costs of which $1,000 raw material costs and $2,000 produc- tion 471 costs remain in ending inventory. (ii) Under paragraph (c)(4)(ii)(B) of this section, in 2013 S computes the preproduction historic ab- sorption ratio as follows: Preproduction additional section 263A costs =$100 + 200 + 300=600=8 percent Raw material costs $2,000 + 2,500 + 3,000 7,500 (iii) Under paragraph (c)(4)(ii)(C) of this section, S computes the production historic absorption ratio as follows: Production additional section 263A costs =$200 + 350 + 450=1,000=10 percent Production 471 costs $2,500 + 3,500 + 4,000 10,000 (iv) Under paragraph (c)(4)(ii)(A) of this section, S determines the preproduction additional section 263A costs allocable to its ending inventory for 2013 by multiplying its raw materials section 471 costs incurred during the 2013 taxable year and remaining in its ending inventory by its preproduction historic absorption ratio. S allocates $80 preproduction ad- ditional section 263A costs to its ending inventory ($1,000*8percent). (v) S determines the production additional sec- tion 263A costs allocable to its ending inventory for September 17, 20123542012–38 I.R.B. 2013 by multiplying its production section 471 costs incurred during the 2013 taxable year and remaining in its ending inventory by its production historic ab- sorption ratio. S allocates $200 production additional section 263A costs to its ending inventory ($2,000 * 10 percent). (vi) Under paragraph (c)(4)(ii) of this section, S’s total additional section 263A costs allocable to end- ing inventory in 2013 are $280, which is the sum of the allocable preproduction additional section 263A costs ($80) and the allocable production additional section 263A costs ($200). S’s ending inventory in 2013 is $3,280, which is the sum of S’s additional section 263A costs allocable to ending inventory and S’s section 471 costs remaining in ending inventory ($280 + $3,000). S includes the balance of S’s addi- tional section 263A costs incurred during 2013 in S’s cost of goods sold. Example 2.LIFO inventory method. (i) The facts are the same as inExample 1, except that S uses the LIFO inventory method rather than the FIFO method. S calculates additional section 263A costs incurred during the taxable year and allocable to ending in- ventory under paragraph (c)(3)(iii) of this section and identifies the following costs incurred during the test period: 201020112012 Additional section 263A costs incurred during the taxable year allocable to ending inventory $100$150$200 Section 471 costs incurred during the taxable year that remain in ending inventory1,0001,4002,100 In 2013, the LIFO value of S’s increment is $1,500. (ii) Under paragraph (c)(4)(iii) of this section, S computes a combined historic absorption ratio as fol- lows: Additional section 263A costs incurred during each taxable year in the test period allocable to ending inventory =$100 + 150 + 200=$ 450=10 percent Section 471 costs incurred during each taxable year in the test period that remain in ending inventory $1,000 + 1,400 + 2,100$4,500 (iii) S’s additional section 263A costs allocable to its 2013 LIFO increment is $150 ($1,500 beginning LIFO increment * 10 percent combined historic ab- sorption ratio). S adds the $150 to the $1,500 LIFO increment to determine a total 2013 LIFO increment of $1,650. ***** (g)Effective/applicability date. Para- graphs (b)(2)(i)(D), and (f) of this section apply for taxable years ending on or af- ter August 2, 2005. Paragraph (c) of this section applies for taxable years ending on or after the date these regulations are pub- lished as final regulations in theFederal Register. Steven T. Miller, Deputy Commissioner for Services and Enforcement. (Filed by the Office of the Federal Register on September 4, 2012, 8:45 a.m., and published in the issue of the Federal Register for September 5, 2012, 77 F.R. 54482) Notice of Proposed Rulemaking by Cross-Reference to Temporary Regulations Integrated Hedging Transactions of Qualifying Debt REG–138489–09 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking by cross-reference to temporary regula- tions. SUMMARY: In this issue of the Bulletin, the IRS and the Treasury Department are issuing temporary regulations (T.D. 9598) under section 988(d) of the Internal Rev- enue Code. These regulations address certain integrated transactions that involve a foreign currency denominated debt in- strument and multiple associated hedging transactions. The text of the temporary regulations also serves as the text of these proposed regulations. DATES: Written or electronic comments and requests for a public hearing must be received by December 6, 2012. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG–138489–09), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washing- ton, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–138489–09), Courier’s Desk, Internal Revenue Ser- vice, 1111 Constitution Avenue, NW, Washington, DC, or sent electroni- cally, via the Federal eRulemaking Por- tal atwww.regulations.gov(IRS and REG–138489–09). FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Sheila Ramaswamy, at (202) 622–3870; concerning submissions and delivery of comments, Oluwafunmilayo Taylor, 202–622–7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background The temporary regulations published in this issue of the Bulletin provide guidance regarding certain integrated transactions 2012–38 I.R.B.355September 17, 2012 that involve a foreigncurrency denomi- nated debt instrument and multiple asso- ciated hedging transactions. The text of those temporary regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory as- sessment is not required. It has also been determined that section 553(b) of the Ad- ministrative Procedure Act (5 U.S.C. chap- ter 5) does not apply to these regulations, and because these regulations do not im- pose a collection of information on small entities, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of pro- posed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed origi- nal and eight (8) copies) or electronic com- ments that are submitted timely to the IRS. The IRS and the Treasury Department re- quest comments on the clarity of the pro- posed rules and how they can be made eas- ier to understand. All comments will be available for public inspection and copy- ing. A public hearing may be scheduled ifrequestedinwritingbyanypersonthat timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for a public hearing will be published in theFederal Register. Drafting Information The principal author of these pro- posed regulations is Sheila Ramaswamy, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development. ***** Proposed Amendment to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. Section 1.988–5 is amended by revising paragraph (a)(6)(ii) and adding paragraph (a)(9)(iv)Example 11and para- graph (h) to read as follows: §1.988–5 Section 988(d) hedging transactions. (a) * * * (6) * * * (ii) [The text of these proposed amend- ments to §1.988–5(a)(6)(ii) is the same as the text of §1.988–5T(a)(6)(ii) published elsewhere in this issue of the Bulletin.] ***** (9) * * * (iv) * * * ***** Example 11[The text of these pro- posed amendments to §1.988–5(a)(9)(iv) Example 11is the same as the text of §1.988–5T(a)(9)(iv)Example 11pub- lished elsewhere in this issue of the Bul- letin.] ***** (h) [The text of these proposed amend- ments to §1.988–5(h) is the same as the text of §1.988–5T(h) published elsewhere in this issue of the Bulletin.] Steven T. Miller, Deputy Commissioner for Services and Enforcement. (Filed by the Office of the Federal Register on September 5, 2012, 8:45 a.m., and published in the issue of the Federal Register for September 6, 2012, 77 F.R. 54862) Dividend Equivalents from Sources Within the United States; Correction Announcement 2012–35 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Temporary regulations; correct- ing amendment. SUMMARY: This document amends tem- porary regulations (T.D. 9572, 2012–11 I.R.B. 471) relating to dividend equiva- lents for purposes of section 871(m) of the Internal Revenue Code (Code). The regulations affect nonresident aliens and foreign corporations that hold notional principal contracts (NPCs) providing for payments determined by reference to pay- ments of dividends from sources within the United States. DATES:Effective Date: These regulations are effective August 31, 2012. Applicability Date: For dates of appli- cability, see § 1.871–16T(g). FOR FURTHER INFORMATION CONTACT: Mark E. Erwin or D. Peter Merkel at (202) 622–3870 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background On January 23, 2012, the Department of the Treasury (Treasury) and the In- ternal Revenue Service (IRS) published in theFederal Registeratemporary regulation and a notice of proposed rule- making relating to dividend equivalents from sources within the United States. SeeT.D. 9572, 77 FR 3108 (Temporary Regulations); REG–120282–10, 2012–11 I.R.B. 487 [77 FR 3202] (Proposed Regulations). Section 871(m)(2) defines the term “dividend equivalent” to include, in part, any payment made pursuant to a specified notional principal contract (specified NPC) that is contingent upon or determined by reference to a U.S. source dividend. Section 871(m)(3)(A) provides a definition for the term specified NPC that is applicable to payments made through March 18, 2012. Section 1.871–16T(b) of the Temporary Regulations provides that the definition of specified NPC contained in paragraphs (i) through (iv) of section 871(m)(3)(A) will apply to payments made after March 18, 2012, and before January 1, 2013. The Proposed Regulations provide a different definition of specified NPC that would apply to payments made on or after January 1, 2013. September 17, 20123562012–38 I.R.B. Explanation of Provisions Treasury and the IRS received numer- ous comments on the Proposed Regula- tions, stating that the proposed effective date of January 1, 2013, would not al- low taxpayers sufficient time to build and test the systems required to implement the withholding rules for specified NPCs and equity-linked instruments. In response to these comments, this document amends § 1.871–16T(b) of the Temporary Regula- tions so that the definition of a specified NPC contained in paragraphs (i) through (iv) of section 871(m)(3)(A) will apply to payments made after March 18, 2012, and before January 1, 2014. When final reg- ulations are issued adopting the Proposed Regulations, Treasury and the IRS intend that the rules contained in the final regu- lations will apply to payments made on or after January 1, 2014. Treasury and the IRS continue to con- sider the other public comments made on the Temporary Regulations and the Pro- posed Regulations. Drafting Information The principal author of these regula- tions is D. Peter Merkel, the Office of Associate Chief Counsel (International). Other personnel from Treasury and the IRS participated in their development. ***** Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1— INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.871–16T also issued under 26 U.S.C. 871(m). § 1.871–16T(b) [Amended] Par. 2. Section 1.871–16T(b) is amended by removing the language “2013” and adding the language “2014” in its place wherever it appears. Steven T. Miller, Deputy Commissioner for Services and Enforcement. Approved August 16, 2012. Mark J. Mazur, Assistant Secretary oftheTreasury(TaxPolicy). (Filed by the Office of the Federal Register on August 30, 2012, 8:45 a.m., and published in the issue of the Federal Register for August 31, 2012, F.R. 53141) 2012–38 I.R.B.357September 17, 2012 Definition of Terms Revenue rulings and revenue procedures (hereinafter referred to as “rulings”) that have an effect on previous rulings use the following defined terms to describe the ef- fect: Amplifieddescribes a situation where no change is being made in a prior pub- lished position, but the prior position is be- ingextendedtoapplytoavariationofthe fact situation set forth therein. Thus, if an earlier ruling held that a principle ap- plied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare withmodi- fied,below). Clarifiedis used in those instances where the language in a prior ruling is be- ing made clear because the language has caused, or may cause, some confusion. It is not used where a position in a prior ruling is being changed. Distinguisheddescribes a situation where a ruling mentions a previously pub- lished ruling and points out an essential difference between them. Modifiedis used where the substance of a previously published position is being changed. Thus, if a prior ruling held that a principle applied to A but not to B, and the new ruling holds that it applies to both A and B, the prior ruling is modified because it corrects a published position. (Compare withamplifiedandclarified, above). Obsoleteddescribes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rul- ings that are obsoleted because of changes in laws or regulations. A ruling may also be obsoleted because the substance has been included in regulations subsequently adopted. Revokeddescribes situations where the position in the previously published ruling is not correct and the correct position is beingstatedinanewruling. Supersededdescribes a situation where the new ruling does nothing more than re- state the substance and situation of a previ- ously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same po- sition published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single rul- ing a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new rul- ing does more than restate the substance of a prior ruling, a combination of terms is used. For example,modifiedandsu- persededdescribes a situation where the substance of a previously published ruling is being changed in part and is continued without change in part and it is desired to restate the valid portion of the previously published ruling in a new ruling that is self contained. In this case, the previously pub- lished ruling is first modified and then, as modified, is superseded. Supplementedis used in situations in which a list, such as a list of the names of countries, is published in a ruling and that list is expanded by adding further names in subsequent rulings. After the original rul- ing has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the ad- ditions, and supersedes all prior rulings in the series. Suspendedis used in rare situations to show that the previous published 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 fol lowing abbreviations in current use and for merly used will appear in material publis hedintheBulletin. A—Individual. Acq.—A cquiescence. B—Individual. BE—Beneficiary. BK—Bank . B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cu mulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Coo perative. Ct.D.—Court Decision. CY—County. D—Decede nt. DC—Dummy Corporation. DE—Donee. Del. Order —Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. E.O.—Executive Order. ER—Emp loyer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduc iary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Fo reign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Fed eral Unemployment Tax Act. FX—Foreign corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grante e. GP—General Partner. GR—Grantor. IC—Insura nce Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—No nacquiescence. O—Organization. P—Parent Corporation. PHC—Persona l Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Pa rtnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Re al Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsi diary. S.P.R.—Statement of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Trans feree. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpay er. TR—Trust. TT—Trustee. U.S.C.—Uni ted States Code. X—Corporation. Y—Corporation. Z—Corporat ion. September 17, 2012i2012–38 I.R.B. Numerical Finding List 1 Bulletins 2012–27 through 2012–38 Announcements: 2012-26, 2012-27 I.R.B.8 2012-27, 2012-27 I.R.B.10 2012-28, 2012-27 I.R.B.10 2012-30, 2012-34 I.R.B.314 2012-31, 2012-34 I.R.B.315 2012-32, 2012-35 I.R.B.325 2012-33, 2012-35 I.R.B.325 2012-34, 2012-36 I.R.B.334 2012-35, 2012-38 I.R.B.356 Notices: 2012-39, 2012-31 I.R.B.95 2012-44, 2012-28 I.R.B.45 2012-45, 2012-29 I.R.B.59 2012-46, 2012-30 I.R.B.86 2012-47, 2012-31 I.R.B.98 2012-48, 2012-31 I.R.B.102 2012-49, 2012-31 I.R.B.119 2012-50, 2012-31 I.R.B.121 2012-51, 2012-33 I.R.B.150 2012-52, 2012-35 I.R.B.317 2012-53, 2012-35 I.R.B.317 2012-55, 2012-36 I.R.B.332 Proposed Regulations: REG-126770-06, 2012-38 I.R.B.347 REG-101812-07, 2012-34 I.R.B.311 REG-134042-07, 2012-27 I.R.B.5 REG-153627-08, 2012-29 I.R.B.60 REG-136491-09, 2012-35 I.R.B.321 REG-138489-09, 2012-38 I.R.B.355 REG-125570-11, 2012-30 I.R.B.93 REG-130266-11, 2012-32 I.R.B.126 REG-134935-11, 2012-29 I.R.B.64 REG-141832-11, 2012-28 I.R.B.54 REG-107889-12, 2012-28 I.R.B.53 REG-113738-12, 2012-29 I.R.B.66 Revenue Procedures: 2012-28, 2012-27 I.R.B.4 2012-29, 2012-28 I.R.B.49 2012-30, 2012-33 I.R.B.165 2012-31, 2012-33 I.R.B.256 2012-32, 2012-34 I.R.B.267 2012-33, 2012-34 I.R.B.272 2012-34, 2012-34 I.R.B.280 2012-35, 2012-37 I.R.B.341 Revenue Rulings: 2012-19, 2012-28 I.R.B.16 2012-20, 2012-27 I.R.B.1 Revenue Rulings— Continued: 2012-21, 2012-32 I.R.B.123 2012-24, 2012-36 I.R.B.329 2012-25, 2012-37 I.R.B.337 Treasury Decisions: 9591, 2012-28 I.R.B.32 9592, 2012-28 I.R.B.41 9593, 2012-28 I.R.B.17 9594, 2012-29 I.R.B.57 9595, 2012-30 I.R.B.71 9596, 2012-30 I.R.B.84 9597, 2012-34 I.R.B.258 9598, 2012-38 I.R.B.343 1 A cumulative list of all revenue rulings, revenueprocedures, Treasury decisions, etc., publishedin Internal Revenue Bulletins 2012–1 through 2012–26 is in Internal Revenue Bulletin 2012–26, dated June 25, 2012. 2012–38 I.R.B.iiSeptember 17, 2012 Finding List of Current Actions on Previously Published Items 1 Bulletins 2012–27 through 2012–38 Announcements: 83-196 Superseded by Rev. Proc. 2012-31, 2012-33 I.R.B.256 85-141 Superseded by Rev. Proc. 2012-31, 2012-33 I.R.B.256 2008-105 Modified and superseded by Ann. 2012-34, 2012-36 I.R.B.334 Notices: 2009-24 Amplified by Notice 2012-51, 2012-33 I.R.B.150 2012-51 Amplified by Notice 2012-51, 2012-33 I.R.B.150 Proposed Regulations: REG-100276-97 Withdrawn by Ann. 2012-27, 2012-27 I.R.B.10 Revenue Procedures: 94-22 Modified and superseded by Rev. Proc. 2012-35, 2012-37 I.R.B.341 95-15 Superseded by Rev. Proc. 2012-31, 2012-33 I.R.B.256 98-32 Modified and superseded by Rev. Proc. 2012-33, 2012-34 I.R.B.272 2007-38 Modified and superseded by Rev. Proc. 2012-32, 2012-34 I.R.B.267 2011-40 Superseded by Rev. Proc. 2012-30, 2012-33 I.R.B.165 Treasury Decisions: 9752 Corrected by Ann. 2012-35, 2012-38 I.R.B.356 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2012–1 through 2012–26 is in Internal Revenue Bulletin 2012–26, dated June 25, 2012. September 17, 2012iii2012–38 I.R.B. Internal Revenue Service W ashington,DC20224 Official Business Penalty for Private Use, $300 INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue Bulletin is sold on a yearly subscription basis by the Superintendent of Documents. Current subscribers are notified by the Superin- tendent of Documents when their subscriptions must be renewed. CUMULATIVE BULLETINS The contents of this weekly Bulletin are consolidated semiannually into a permanent, indexed, Cumulative Bulletin. These are sold on a single copy basis andare notincluded as part of the subscription to the Internal Revenue Bulletin. For the foreseeable future, the IRS will not create Cumulative Bulletins after the 2008–2 edition. Subscribers to the weekly Bulletin are notified when copies of the Cumulative Bulletin are available. Certain issues of Cumulative Bulletins are out of print and are not available. Persons desiring available Cumulative Bulletins, which are listed on the reverse, may purchase them from the Superintendent of Documents. ACCESS THE INTERNAL REVENUE BULLETIN ON THE INTERNET You may view the Internal Revenue Bulletin on the Internet at www.irs.gov. Select Businesses. Under Businesses Topics, select More Topics. Then select Internal Revenue Bulletins. INTERNAL REVENUE BULLETINS ON CD-ROM Internal Revenue Bulletins are available annually as part ofPublication 1796 (Tax Products CD-ROM). The CD-ROM can be purchased from National Technical Information Service (NTIS) on the Internet at www.irs.gov/cdorders (discount for online orders) or by calling 1-877-233-6767. The first release is available in mid-December and the final release is available in late January. HOW TO ORDER Check the publications and/or subscription(s) desired on the reverse, complete the order blank, enclose the proper remittance, detach entire page, and mail to the Superintendent of Documents, P.O. Box 979050, St. Louis, MO 63197–9000. Please allow two to six weeks, plus mailing time, for delivery. WE WELCOME COMMENTS ABOUT THE INTERNAL REVENUE BU LLETIN If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we would be p leased to hear from you. You can email us your suggestions or comments through the IRS Internet Home Page (www.irs.gov) or write t o the IRS Bulletin Unit, SE:W:CAR:MP:T:M:S, Washington, DC 20224.
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