Internal Revenue Bulletin 2004-32 (PDF rendition): IRS Revenue Rulings

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

Bulletin No. 200
4-32
August 9, 2004
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
Rev. Rul. 2004–81, page 161.
LIFO; price indexes; department stores.The May 2004
Bureau of Labor Statistics price indexes are accepted for use
by department stores employing the retail inventory and last-in,
first-out inventory methods for valuing inventories for tax years
ended on, or with reference to, May 31, 2004.
Rev. Rul. 2
004–83, page 157.
Corporate
reorganizations.This ruling provides that if, pur-
suant to an
integrated plan, a parent corporation sells the stock
of a subsi
diary to another subsidiary and the acquired sub-
sidiary l
iquidates into the acquiring subsidiary, the transaction
is a reorg
anization under section 368(a)(1)(D) of the Code.
Rev. Rul. 2004–84, page 163.
Federal rates; adjusted federal rates; adjusted federal
long-term rate and the long-term exempt rate.For pur-
poses of sections 382, 642, 1274, 1288, and other sections
of the Code, tables set forth the rates for August 2004.
Rev. Rul. 2004–87, page 154.
Bankruptcy; golden parachute payments.This ruling pro-
vides rules for the application of section 280G of the Code,
concerning golden parachute payments, in the context of a
bankruptcy. Specifically, this ruling addresses whether the ac-
quisition of stock by the former creditors results in a change
in ownership or control, whether a corporation whose stock
is de-listed is eligible for the exemption for certain corpora-
tions whose stock is not readily tradeable on an established
securities market if the shareholder approval and disclosure re-
quirements described in the final regulations are satisfied, and
whether stock that is de-listed from a securities market is con-
sidered readily tradeable if it is traded on an over-the-counter
market (such as the pink sheets).
T.D. 9138, page 160.
This Treasury decision removes temporary regulation section
1.463–1T, which provides a rule for an election to deduct
vested accrued vacation pay for a taxpayer’s first taxable year
ending after July 18, 1984. The repeal of section 463 of the
Code in 1987 has rendered the temporary regulation obsolete.
T.D. 9140, page 159.
Final regulations under section 461 of the Code clarify that the
transfer of a taxpayer’s note or promise to provide property or
services in the future is not a transfer for the satisfaction of
a contested liability under section 461(f). A transfer of a tax-
payer’s stock or the stock or note of a related party also is
not a transfer for the satisfaction of a contested liability under
section 461(f). The regulations further provide that, in general,
economic performance does not occur when a taxpayer trans-
fers money or other property to a trust, escrow account, or
court to provide for the satisfaction of a contested payment
liability.
REG–150562–03, page 175.
Proposed regulations relate to the application of section 1045
oftheCodetopartnershipsandtheirpartners. Theregula-
tions provide rules regarding the deferral of gain on a partner’s
sale of qualified small business stock and deferral of gain on a
partner’s sale of qualified small business stock distributed by
a partnership. A public hearing is scheduled for November 2,
2004.
Notice 2004–52, page 168.
This notice requests comments regarding the treatment of cer-
tain financial transactions commonly known as credit default
swaps (CDSs).
(Continued on the next page)
Actions Relating to Court Decisions is on the page following the Introduction.
Announcements of Disbarments and Suspensions begin on page 184.
Fi
nding Lists begin on page ii.

Rev. Proc. 2004–48, page 172.
This document provides that certain eligible entities may re-
quest relief for a late S corporation election and a late elec-
tion to be classified as an association taxable as a corporation
within 18 months of the original due date of the S corporation
election (but in no event later than 6 months after the due date
of the tax return, excluding extensions, for the first year the
entity intended to be an S corporation).
ESTATE TAX
Rev. Proc. 2004–47, page 169.
This document provides a simplified alternate procedure (in lieu
of requesting a letter ruling) for certain executors of estates
and trustees of trusts to request relief to make a late reverse
qualified terminable interest property (QTIP) election under sec-
tion 2652 of the Code.
EXCISE TAX
Rev. Rul. 2004–80, page 164.
Retail excise tax; highway tractor; truck.This ruling ap-
plies the primarily designed tests in section 145.4051–1(e)(1)
and (2) of the regulations under the Highway Revenue Act of
1982 (Pub. L. 97–424) for purposes of determining whether
a vehicle is a truck or a highway tractor.
ADMINISTRATIVE
Rev. Rul. 2004–88, page 165.
TEFRA partnership; disregarded entity; pass-thru part-
ner; tax matter partner.This ruling addresses whether a
disregarded entity partner will disqualify a partnership from be-
ing a “small partnership” excluded from the TEFRA partnership
provisions. The ruling also addresses whether a disregarded
entity may be designated as the tax matters partner of a part-
nership.
Rev. Proc. 2004–48, page 172.
This document provides that certain eligible entities may re-
quest relief for a late S corporation election and a late elec-
tion to be classified as an association taxable as a corporation
within 18 months of the original due date of the S corporation
election (but in no event later than 6 months after the due date
of the tax return, excluding extensions, for the first year the
entity intended to be an S corporation).
August 9, 20042004–32 I.R.B.

The IRS Mission
Provide America’s taxpayers top quality service by helping
them understand and meet their tax responsibilities and by
applying the tax law with integrity and fairness to all.
Introduction
The Internal Revenue Bulletin is the authoritative instrument of
the Commissioner of Internal Revenue for announcing official
rulings and procedures of the Internal Revenue Service and for
publishing Treasury Decisions, Executive Orders, Tax Conven-
tions, legislation, court decisions, and other items of general
interest. It is published weekly and may be obtained from the
Superintendent of Documents on a subscription basis. Bulletin
contents are compiled semiannually into Cumulative Bulletins,
which are sold on a single-copy basis.
It is the policy of the Service to publish in the Bulletin all sub-
stantive rulings necessary to promote a uniform application of
the tax laws, including all rulings that supersede, revoke, mod-
ify, or amend any of those previously published in the Bulletin.
All published rulings apply retroactively unless otherwise indi-
cated. Procedures relating solely to matters of internal man-
agement are not published; however, statements of internal
practices and procedures that affect the rights and duties of
taxpayers are published.
Revenue rulings represent the conclusions of the Service on the
application of the law to the pivotal facts stated in the revenue
ruling. In those based on positions taken in rulings to taxpayers
or technical advice to Service field offices, identifying details
and information of a confidential nature are deleted to prevent
unwarranted invasions of privacy and to comply with statutory
requirements.
Rulings and procedures reported in the Bulletin do not have the
force and effect of Treasury Department Regulations, but they
may be used as precedents. Unpublished rulings will not be
relied on, used, or cited as precedents by Service personnel in
the disposition of other cases. In applying published rulings and
procedures, the effect of subsequent legislation, regulations,
court decisions, rulings, and procedures must be considered,
and Service personnel and others concerned are cautioned
against reaching the same conclusions in other cases unless
the facts and circumstances are substantially the same.
The Bulletin is divided into four parts as follows:
Part I.—19
86 Code.
This part i
ncludes rulings and decisions based on provisions of
the Intern
al Revenue Code of 1986.
Part II.—Treaties and Tax Legislation.
This part is divided into two subparts as follows: Subpart A,
Tax Conventions and Other Related Items, and Subpart B, Leg-
islation and Related Committee Reports.
Part III.—Administrative, Procedural, and Miscellaneous.
To the extent practicable, pertinent cross references to these
subjects are contained in the other Parts and Subparts. Also
included in this part are Bank Secrecy Act Administrative Rul-
ings. Bank Secrecy Act Administrative Rulings are issued by
the Department of the Treasury’s Office of the Assistant Sec-
retary (Enforcement).
Part IV
.—Items of General Interest.
This par
t includes notices of proposed rulemakings, disbar-
ment an
d suspension lists, and announcements.
The last Bulletin for each month includes a cumulative index
for the matters published during the preceding months. These
monthly indexes are cumulated on a semiannual basis, and are
published in the last Bulletin of each semiannual period.
The c
ontents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate.
For sale by the Superintendent of Documents, U.S.Government Printing Office, Washington, DC 20402.
2004–32 I.R.B.August 9, 2004

Actions Relating to Decisions of the Tax Court
It is the policy of the Internal Rev-
enue Service to announce at an early date
whether it will follow the holdings in cer-
tain cases. An Action on Decision is the
document making such an announcement.
An Action on Decision will be issued at
the discretion of the Service only on unap-
pealed issues decided adverse to the gov-
ernment. Generally, an Action on Decision
is issued where its guidance would be help-
ful to Service personnel working with the
same or similar issues. Unlike a Treasury
Regulation or a Revenue Ruling, an Action
on Decision is not an affirmative statement
of Service position. It is not intended to
serve as public guidance and may not be
cited as precedent.
Actions on Decisions shall be relied
upon within the Service only as conclu-
sions applying the law to the facts in the
particular case at the time the Action on
Decision was issued. Caution should be
exercised in extending the recommenda-
tion of the Action on Decision to similar
cases where the facts are different. More-
over, the recommendation in the Action on
Decision may be superseded by new legis-
lation, regulations, rulings, cases, or Ac-
tions on Decisions.
Prior to 1991, the Service published
acquiescence or nonacquiescence only in
certain regular Tax Court opinions. The
Service has expanded its acquiescence
program to include other civil tax cases
where guidance is determined to be help-
ful. Accordingly, the Service now may
acquiesce or nonacquiesce in the holdings
of memorandum Tax Court opinions, as
well as those of the United States District
Courts, Claims Court, and Circuit Courts
of Appeal. Regardless of the court decid-
ing the case, the recommendation of any
Action on Decision will be published in
the Internal Revenue Bulletin.
The recommendation in every Action
on Decision will be summarized as ac-
quiescence, acquiescence in result only,
or nonacquiescence. Both “acquiescence”
and “acquiescence in result only” mean
that the Service accepts the holding of
the court in a case and that the Service
will follow it in disposing of cases with
the same controlling facts. However, “ac-
quiescence” indicates neither approval
nor disapproval of the reasons assigned
by the court for its conclusions; whereas,
“acquiescence in result only” indicates
disagreement or concern with some or all
of those reasons. “Nonacquiescence” sig-
nifies that, although no further review was
sought, the Service does not agree with
the holding of the court and, generally,
will not follow the decision in disposing
of cases involving other taxpayers. In
reference to an opinion of a circuit court
of appeals, a “nonacquiescence” indicates
that the Service willnot follow the hold-
ing on a nationwide basis. However, the
Service will recognize the precedential
impact of the opinion on cases arising
within the venue of the deciding circuit.
The Actions on Decisions published in
the weekly Internal Revenue Bulletin are
consolidated semiannually and appear in
the first Bulletin for July and the Cumula-
tive Bulletin for the first half of the year. A
semiannual consolidation also appears in
the first Bulletin for the following January
and in the Cumulative Bulletin for the last
half of the year.
The Commissioner does NOT ACQUI-
ESCE in the following decision:
United States v. Roland Harry
Macher (In re Macher),
1
91 AFTR2d 2003–2654,
2003–2 USTC ¶50,537
(Bankr. W.D. Va.),aff’d303 B.R.
798 (W.D. Va. 2003)
1
Nonacquiescence relating to whether abankruptcy court has the authority to order the United States to process and consider a debtor’s plan of reorganization in accordance with procedures
applicable to offers in compromise submitted by taxpayers who are not currently in bankruptcy.
August 9, 20042004–32 I.R.B.

Part I. Rulings and Decisions Under the Internal Revenue Code
of 1986
Section 42.—Low-Income
Housing Credit
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
Section 280G.—Golden
Parachute Payments
Federal short-term, mid-term, and long-term rates
are set forth for the month of August 2004. See Rev.
Rul. 2004-84, page 163.
26 CFR 601.105: Examination of returns and claims
for refund, credit, or abatement; determination of
correct tax liability.
Bankruptcy; golden parachute pay-
ments.This ruling provides rules for the
application of section 280G of the Code,
concerning golden parachute payments, in
the context of a bankruptcy. Specifically,
this ruling addresses whether the acquisi-
tion of stock by the former creditors re-
sults in a change in ownership or con-
trol, whether a corporation whose stock
is de-listed is eligible for the exemption
for certain corporations whose stock is not
readily tradeable on an established securi-
ties market if the shareholder approval and
disclosure requirements described in the
final regulations are satisfied, and whether
stock that is de-listed from a securities
market is considered readily tradeable if
it is traded on an over-the-counter market
(such as the pink sheets).
Rev. Rul. 2004–87
ISSUE
In the situations described below, has
there been a change in ownership or con-
trol for purposes of §§ 280G and 4999 of
the Internal Revenue Code? If so, are any
contingent payments potentially exempt
under § 280G(b)(5)(A)(ii) (concerning
payments from certain corporations that
are approved by its shareholders)?
FACTS
Situation 1. On March 1, 2005, Cor-
poration A, files a voluntary petition for
relief under Chapter 11 of the Bankruptcy
Code. See 11 U.S.C. § 1101,et seq.Cor-
poration A common stock is widely held
andactivelytradedontheNewYorkStock
Exchange. There are no other shares of
Corporation A outstanding. Committees
of creditors holding unsecured claims and
equity security holders are appointed pur-
suantto11U.S.C.§1102.
After negotiations between the unse-
cured creditors’ committee, the equity
committee, and Corporation A, a plan of
reorganization is presented to the bank-
ruptcy court and approved. Under the
plan of reorganization, all of the existing
shares of Corporation A common stock
are cancelled and new shares of common
stock are authorized. Under the plan of
reorganization, the unsecured creditors of
Corporation A will receive 75% of the new
common stock, distributed in proportion
to their claims. Certain shareholders will
receive 25% of the new common stock,
distributedinproportiontotheirpre-re-
organization stock holdings. No single
unsecured creditor will receive 20% or
more of the outstanding shares of Corpo-
ration A after the reorganization.
Under the plan of reorganization, the
existing Board of Directors is replaced by a
new Board of Directors that is endorsed by
the pre-reorganization Board of Directors.
Situation 2. Assume the same facts as
inSituation 1except that after the reorgani-
zation the largest creditor of Corporation A
will receive 25% of the outstanding shares
of Corporation A.
Situation 3. Common stock of Corpo-
ration B is widely-held and actively traded
on the New York Stock Exchange. No
other shares of Corporation B are outstand-
ing. Since January 2000, Corporation B
has experienced financial difficulties.
On June 15, 2005, Corporation B deter-
mines that it is insolvent and files a vol-
untary petition for relief under Chapter 11
of the Bankruptcy Code. Committees of
creditors holding unsecured claims and eq-
uity security holders are appointed pur-
suantto11U.S.C.§1102.
On January 15, 2006, Corporation B’s
stock is de-listed from the New York Stock
Exchange and is thereafter no longer trade-
able on any established securities market
(as defined in § 1.897–1(m)). No trad-
ing occurred with respect to stock in Cor-
poration B on any other market, includ-
ing any over-the-counter market (e.g.,the
pink sheets, the over-the-counter-bulletin
board (OTCBB), the automated confirma-
tion transaction service (ACT), or any sim-
ilar market).
In March 2006, Corporation C proposes
to purchase more than one-third of the total
gross fair market value of the assets of Cor-
poration B. Corporation B files a motion
in the bankruptcy court for approval of the
sale. Pursuant to an employment contract,
the sale would trigger certain payments to
Executive E, a disqualified individual with
respect to Corporation B. E files a request
in the bankruptcy court to allow Corpora-
tion B to make the payments as administra-
tive expenses of the bankruptcy estate un-
der 11 U.S.C. § 503(a). The request spec-
ifies that the payments will be made be-
cause of the sale of assets to Corporation
C, the total amount of each payment, and
a brief description of each payment. The
request also explains why the payments
are actual, necessary costs and expenses of
preserving the bankruptcy estate.
After notice and hearing, the bank-
ruptcy court approves the sale of assets
and the request for payment of adminis-
trative expense by orders dated September
15, 2006.
On October 1, 2006, Corporation C ac-
quires the assets from Corporation B, and
the payments are made to E.
Situation 4. Assume the same facts
as inSituation 3except that the stock of
Corporation B is tradeable on an over-the-
counter market after de-listing from the
New York Stock Exchange.
LAW
Section 280G of the Code was enacted
to discourage substantial payments to top
executives and other personnel of a target
corporation in connectionwithanacquisi-
tion. In some situations, the existence of
golden parachute arrangements could en-
courage executives and other key person-
nel to favor a proposed takeover that may
not be in the best interests of the sharehold-
ers. To the extent amounts must be paid
2004–32 I.R.B.154August 9, 2004

to executives and other key personnel of
the target corporation because of golden
parachutes or similar arrangements, there
is less for the shareholders of that corpo-
ration. See, S. Prt. No. 98–169, at 195
(1984); JOINT COMMITTEE ON TAXA-
TION, 98
th
CONG., GENERAL EXPLA-
NATION OF THE REVENUE PROVI-
SIONS OF THE DEFICIT REDUCTION
ACT OF 1984, at 199–200 (1984).
Section 280G denies a deduction for
any excess parachute payment. Section
4999 imposes a nondeductible 20-percent
excise tax on the recipient of any excess
parachute payment, within the meaning of
§ 280G(b).
An excess parachute payment is defined
in § 280G(b)(1) as an amount equal to
the excess of any parachute payment over
the portion of the disqualified individual’s
base amount that is allocated to such pay-
ment.
Section 280G(b)(2)(A) defines a
parachute payment as any payment in
the nature of compensation to (or for the
benefit of) a disqualified individual if (i)
such payment is contingent on a change
in the ownership of a corporation, the
effective control of a corporation, or the
ownership of a substantial portion of the
assets of a corporation (a change in own-
ership or control), and (ii) the aggregate
present value of the payments in the nature
of compensation which are contingent on
such change equals or exceeds an amount
equal to 3 times the base amount.
Section 280G(b)(5)(A)(ii) of the Code
provides, in part, that a parachute payment
does not include any payment to a disqual-
ified individual with respect to a corpora-
tion (other than a small business corpora-
tion as defined in § 1361(b) but without re-
gard to paragraph (1)(C) thereof) if (I) im-
mediately before the change described in
§ 280G(b)(2)(A) no stock in such corpo-
ration was readily tradeable on an estab-
lished securities market or otherwise, and
(II) the shareholder approval requirements
of § 280G(b)(5)(B) are met with respect to
such payment.
Section 280G(b)(5)(B)(ii) of the Code
provides that the shareholder approval re-
quirements of § 280G(b)(5) are met with
respect to any payment if (i) such pay-
ment was approved by a vote of the per-
sons who owned, immediately before the
change described in § 280G(b)(2)(A)(i),
more than 75 percent of the voting power
of all outstanding stock of the corporation,
and (ii) there was adequate disclosure to
shareholders of all material facts concern-
ing all payments which (but for this para-
graph) would be parachute payments with
respect to a disqualified individual.
Under §1.280G–1 of the Income Tax
Regulations, Q/A–6(a), a parachute pay-
ment does not include any payment to a
disqualified individual with respect to a
corporation if (1) immediately before the
change in ownership or control, no stock
in such corporation was readily tradeable
on an established securities market or oth-
erwise, and (2) the shareholder approval
requirements of Q/A–7 are met with re-
spect to such payment. Under §1.280G–1,
Q/A–6(e) of the regulations, stock is
treated as readily tradeable if it is regu-
larly quoted by brokers or dealers making
a market in such stock. Section 1.280G–1
of the regulations, Q/A–6(f) provides that
an established securities market means an
established securities market as defined in
§1.897–1(m) of the regulations.
Section 1.280G–1, Q/A–7(a), of the
regulations provides that the shareholder
approval requirements are met with re-
spect to the payment if (1) the payment is
approved by more than 75% of the voting
power of all outstanding stock entitled to
vote (as described in Q/A–7) immediately
before the change in ownership or control,
and (2) before the vote there is adequate
disclosure to all persons entitled to vote
(as described in Q/A–7) of all material
facts concerning all material payments
which (but for Q/A–6) would be parachute
payments with respect to the disqualified
individual.
Section 1.280G–1 of the regulations,
Q/As 27, 28, and 29 provides guidance
concerning when a corporation is consid-
ered to have undergone a change in owner-
ship of a corporation, a change in effective
control of a corporation, or a change in the
ownership of a substantial portion of the
assets of a corporation (a change in own-
ership or control).
Q/A–27(a) provides that a change in the
ownership of a corporation occurs on the
date that any one person, or more than one
person acting as a group, acquires owner-
ship of stock of the corporation that, to-
getherwithstockheldbysuchperson(or
more than one person acting as a group
under Q/A–27(b)) possesses more than 50
percent of the total fair market value or to-
tal voting power of the stock of such cor-
poration. Q/A–27(b) provides that persons
will not be considered to be acting as a
group merely because they happen to pur-
chase or own stock of the same corporation
at the same time, or as a result of the same
public offering.
Q/A–28(a) provides, in part, that a
change in the effective control of a corpo-
rationispresumedtooccuronthedatethat
either (1) any one person, or more than
one person acting as a group (as defined
in Q/A–28(d)), acquires (or has acquired
during the 12-month period ending on the
date of the most recent acquisition by such
person or persons) ownership of stock of
the corporation possessing 20 percent or
more of the total voting power of the stock
of such corporation; or (2) a majority of
the members of the corporation’s board of
directors is replaced during any 12-month
period by directors whose appointment or
election is not endorsed by a majority of
the members of the corporation’s board of
directors prior to the date of the appoint-
ment or election. The presumption may be
rebutted by showing that the acquisition
of stock or replacement of the board does
not transfer the power to control (directly
or indirectly) from any one person (or
more than one person acting as a group)
to another person (or group). Q/A–28(d)
contains the same language as Q/A–27(b)
concerning when more than one person is
considered to be acting as a group.
Q/A–29 provides that a change in the
ownership of a substantial portion of a
corporation’s assets occurs on the date
that any one person, or more than one
person acting as a group (as defined in
Q/A–29(c)) acquires (or has acquired dur-
ing the 12-month period ending on the
date of the most recent acquisition by such
person or persons) assets from the corpo-
ration that have a total gross fair market
value equal to or more than one-third of
the total gross fair market value of all of
the assets of the corporation immediately
prior to such acquisition or acquisitions.
For this purpose, gross fair market value
means the value of the assets of the cor-
poration, or the value of the assets being
disposed of, determined without regard to
any liabilities associated with such assets.
Q/A–29(c) contains the same language as
Q/A–27(b) concerning when person will
be considered to be acting as a group.
August 9, 20041552004–32 I.R.B.

In a bankruptcy case, an entity may file
a request for payment of an administrative
expense of the bankruptcy estate. See 11
U.S.C. § 503(a). Pursuant to 11 U.S.C.
§ 503(b)(1)(A), after notice and hearing,
the bankruptcy court shall allow the pay-
ment of administrative expenses which
were actual, necessary costs and expenses
of preserving the estate, including wages,
salaries, or commissions for services ren-
dered after the commencement of the case.
11 U.S.C. § 503(b)(1)(A).
ANALYSIS — Situation 1
The receipt of stock by a creditor un-
der a bankruptcy plan of reorganization is
often involuntary in that the creditors of a
bankrupt estate typically would prefer that
the debt be paid in cash rather than in stock
of the debtor. The fact that unsecured cred-
itors are represented by a committee and
that the plan of reorganization of the debtor
provides for the creditors to receive stock
instead of cash is ordinarily a function of
the financial resources of the estate and is
not necessarily indicative of any intention
of the creditors to act as a group to ac-
quire control of the debtor. In this situa-
tion, Corporation A filed a voluntary peti-
tion for relief in the bankruptcy court and
the pre-bankruptcy creditors did not act to-
gether to force Corporation A into bank-
ruptcy. The fact that the pre-bankruptcy
creditors were appointed to a committee of
creditors and received stock in proportion
to their pre-bankruptcy debt does not in-
dicate that the creditors acted together to
acquire stock in Corporation A. Thus, the
creditors are not acting as a group, within
the meaning of Q/A–27(b) or Q/A–28(d),
to acquire the stock of Corporation A.
ANALYSIS — Situation 2
Because one creditor acquired 20 per-
cent or more of Corporation A’s stock
within a 12-month period, Corporation A
is presumed, under Q/A–28(a), to have
experienced a change in effective control.
However, this presumption may be rebut-
ted by a showing that the largest creditor
will not act to control the management and
policies of Corporation A.
ANALYSIS — Situation 3
Because Corporation C acquired more
than one third of the total gross fair market
value of all of the assets of Corporation B,
there is a change in ownership of Corpo-
ration B under Q/A–29. However, if Cor-
poration B qualifies as a corporation de-
scribed in § 280G(b)(5)(A)(ii)(I), concern-
ing payments from corporations that meet
certain shareholder approval and disclo-
sure requirements, and the requirements
of § 280G(b)(5)(A)(ii)(II) are satisfied, the
payments are exempt from the definition
of parachute payment.
Under these facts, the stock of Cor-
poration B was de-listed from an es-
tablished securities market and was not
otherwise readily tradeable on the date of
the change in control. Further, no trad-
ing occurred on any market (including
any over-the-countermarket). Thus, Cor-
poration B is a corporation described in
§ 280G(b)(5)(A)(ii)(I) on the date of the
change in control.
In order to satisfy the requirements
of § 280G(b)(5)(A)(ii)(II) outside of the
bankruptcy context, generally, Q/A–7(a)
of the regulations requires that the pay-
ment must be adequately disclosed to
shareholdersandthenapprovedbymore
than 75% of the voting power of all out-
standing stock entitled to vote immedi-
ately before the change in ownership or
control. However, for a corporation in
bankruptcy, the continuing interests of
equity owners can be difficult to deter-
mine or predict. Through the bankruptcy
process, the pre-bankruptcy shareholders
may end up with a continuing equity in-
terest in the company or the equity may
end up partially or fully transferred to
creditors. Correspondingly, the pre-bank-
ruptcy shareholders may lack a material
continuing equity interest in the affairs of
the corporation and therefore also lack the
corresponding motivation to appropriately
evaluate the payments at issue.
In Situation 3, the payments to E were
approved by the bankruptcy court pur-
suant to 11 U.S.C. § 503(b)(1)(A). The
bankruptcy court therefore made a factual
finding that the payments were actual,
necessary costs and expenses of preserv-
ing the bankruptcy estate. The legislative
history of § 280G indicates that the golden
parachute rules were enacted to discour-
age excessive payments to executives
and other key personnel in order to pro-
tect the shareholders. See S. Rpt. No.
98–169 at 195. The bankruptcy court
approval serves to protect the estate and
the ultimate owners from unnecessary or
excessive payments made to executives.
Consequently, for purposes of § 280G,
the shareholder approval and disclosure
requirements of § 280G(b)(5)(A)(i)(II)
and Q/A–7 are deemed satisfied, and the
payments to E are not parachute payments.
ANALYSIS — Situation 4
Similar toSituation 3, there has been
a change in ownership of Corporation
B under Q/A–29. Additionally, if Cor-
poration B qualifies as a corporation
described in § 280G(b)(5)(A)(ii)(I) (con-
cerning payments fromcorporations that
meet certain shareholder approval and dis-
closure requirements) on the date of the
change in control and the requirements of
§ 280G(b)(5)(A)(ii)(II) are satisfied, the
payments are exempt from the definition
of parachute payment.
The trading of stock on an over-the-
counter market (e.g., the pink sheets, the
OTCBB, the ACT, or any similar market)
when the corporation is a debtor in a case
under the Bankruptcy Code is impaired,
and therefore, the stock is not considered
“readily tradeable” for purposes of § 280G.
Accordingly, for the reasons discussed
inSituation 3, the payments to E are not
parachute payments.
HOLDINGS — Situation 1
InSituation 1, because no person (or
persons acting as a group) acquired more
than 50 percent of the total fair market
value or total voting power of Corpora-
tion A (Q/A–27); because no person (or
persons acting as a group) acquired within
a 12-month period 20% or more of the
outstanding stock of Corporation B and
the new Board of Directors is approved
by the pre-reorganization Board of Direc-
tors (Q/A–28); and because there is no ac-
quisition of the assets of Corporation A
(Q/A–29), Corporation A did not undergo
a change in ownership or control under
§ 280G.
HOLDINGS — Situation 2
Corporation A is presumed to have ex-
perienced a change in effective control un-
der § 280G. The presumption may be re-
butted in accordance with Q/A–28(b).
2004–32 I.R.B.156August 9, 2004

HOLDINGS — Situation 3
Because Corporation C acquired more
than one third of the total gross fair mar-
ket value of all of the assets of Corpora-
tion B, there is a change in ownership of
Corporation B under Q/A–29. However,
Corporation B is eligible for the exemp-
tion provided in § 280G(b)(5)(A)(ii). Un-
der these facts, the shareholder approval
and disclosure requirements described in
§ 280G(b)(5)(B) and Q/A–7 are deemed
to be satisfied, and thus, the payments
to E are exempt from the definition of
parachute payment.
HOLDINGS — Situation 4
For purposes of §280G, the trading
of stock on an over-the-counter market
when the corporation is a debtor in a case
under the Bankruptcy Code is impaired,
and therefore, the stock is not considered
“readily tradeable.” Thus, Corporation B
is eligible for the exemption provided in
§ 280G(b)(5)(A)(ii). Under these facts,
the shareholder approval and disclosure re-
quirements described in § 280G(b)(5)(B)
and Q/A–7 are deemed to be satisfied, and
the payments to E are exempt from the
definition of parachute payment.
EFFECTIVE DATE
This revenue ruling applies to any pay-
ment that is contingent on a change in own-
ership or control if the change of own-
ership or control occurs on or after July
19, 2004. Notwithstanding the foregoing,
where a corporation is a debtor in a case
under the Bankruptcy Code, its securities
traded on an over-the-counter market also
are not considered “readily tradeable” for
purposes of § 280G(b)(5)(A)(ii) with re-
spect to a change in ownership or control
that occurred before July 19, 2004.
COMMENTS REQUESTED
Comments are requested concern-
ing whether, or to what extent, the
definition of “readily tradeable” under
§ 280G(b)(5)(A)(ii) should exclude stock
of a corporation that is tradeable on an
over-the-counter market (e.g., the pink
sheets, the OTCBB, the ACT, or any sim-
ilar market).
Comments should be submitted by Oc-
tober 18, 2004, to CC:PA:LPD:PR (Rev-
enue Ruling 2004–87), Room 5203, In-
ternal Revenue Service, POB 7604 Ben
Franklin Station, Washington, D.C. 20044.
Comments may be hand delivered between
the hours of 8 a.m. and 4 p.m., Monday
through Friday to CC:PA:LPD:PR (Rev-
enue Ruling 2004–87), Courier’s Desk,
Internal Revenue Service, 1111 Constitu-
tion Ave., NW, Washington, D.C. Alter-
natively, comments may be submitted via
the Internet atNotice.Comments@irscoun-
sel.treas.gov. All comments will be avail-
able for public inspection.
DRAFTING INFORMATION
The principal author of this revenue rul-
ing is Erinn Madden of the Division Coun-
sel/Associate Chief Counsel (Tax Exempt
and Government Entities). However, other
personnel from the IRS and Treasury De-
partment participated in its development.
For further information regarding this rev-
enue ruling, contact Ms. Madden at (202)
622–6030 (not a toll-free call).
Section 304.—Redemption
Through Use of Related
Corpora
tions
26 CFR 1.
304–2: Acquisition by related corporation
(other t
han subsidiary).
If, purs
uant to an integrated plan, a parent corpo-
ration s
ells the stock of a wholly owned subsidiary
for cas
h to another wholly owned subsidiary and the
acquir
ed subsidiary completely liquidates into the ac-
quirin
g subsidiary, the transaction is treated as a re-
organi
zation under § 368(a)(1)(D). See Rev. Rul.
2004-8
3, page 157.
Section 368.—Definitions
Relating to Corporate
Reorganizations
26 CFR 1.368–1: Purpose and scope of exception of
reorganization exchanges.
Corporate reorganizations.This rul-
ing provides that if, pursuant to an in-
tegrated plan, a parent corporation sells
the stock of a subsidiary to another sub-
sidiary and the acquired subsidiary liq-
uidates into the acquiring subsidiary, the
transaction is a reorganization under sec-
tion 368(a)(1)(D) of the Code.
Rev. Rul. 2004–83
ISSUE
Under the facts described below, what
is the proper tax treatment if, pursuant to an
integrated plan, a parent corporation sells
the stock of a wholly owned subsidiary
for cash to another wholly owned sub-
sidiary and the acquired subsidiary com-
pletely liquidates into the acquiring sub-
sidiary.
FACTS
Situation 1
Corporation P owns all the stock of Cor-
poration S and Corporation T. P, S, and T
are members of a consolidated group. As
part of an integrated plan, S purchases all
the stock of T from P for cash and T com-
pletely liquidates into S. Assume that if T
had sold its assets directly to S and T had
completely liquidated into P, the transac-
tion would have qualified as a reorganiza-
tion under § 368(a)(1)(D) of the Internal
Revenue Code.
Situation 2
ThefactsarethesameasinSituation1
except that P, S, and T are not members of
a consolidated group.
LAW
Section 368(a)(1)(D) provides that a re-
organization includes a transfer by a cor-
poration of all or a part of its assets to an-
other corporation if immediately after the
transfer the transferor, or one or more of its
shareholders (including persons who were
shareholders immediately before the trans-
fer), or any combination thereof, is in con-
trol of the corporation to which the assets
are transferred; but only if, in pursuance
of the plan, stock or securities of the cor-
poration to which the assets are transferred
are distributed in a transaction that quali-
fies under § 354, 355, or 356.
In Rev. Rul. 70–240, 1970–1 C.B. 81,
B owned all the outstanding stock of Cor-
poration X and Corporation Y. X sold its
operating assets to Y for cash equal to their
fair market value and used its remaining
assets to pay its debts. X then liquidated
and B received a liquidating distribution
in exchange for his X stock. The ruling
August 9, 20041572004–32 I.R.B.

concludes that the transfer by X of its op-
erating assets to Y is regarded as the ac-
quisition by Y of substantially all the as-
sets of X and is a reorganization under
§ 368(a)(1)(D).Accord Atlas Tool Co. v.
Commissioner,70T.C.86(1978),aff’d,
614 F.2d 860 (3rd Cir. 1980),cert. denied,
449 U.S. 836 (1980);Armour v. Commis-
sioner, 43 T.C. 295 (1964).
In determining whether a transac-
tion qualifies as a reorganization under
§ 368(a), the transaction must be eval-
uated under relevant provisions of law,
including the step transaction doctrine.
Section 1.368–1(a) of the Income Tax
Regulations. The step transaction doctrine
“treats a series of formally separate ‘steps’
as a single transaction if such steps are
in substance integrated, interdependent,
and focused toward a particular result.”
Penrod v. Commissioner, 88 T.C. 1415,
1428 (1987).
In Rev. Rul. 67–274, 1967–2 C.B. 141,
pursuant to a plan of reorganization, Cor-
poration Y acquired all the stock of Cor-
poration X in exchange for voting stock
of Y. Thereafter, X completely liquidated
into Y. The ruling concludes that the two
steps do not qualify as a reorganization
under § 368(a)(1)(B) followed by a liq-
uidation under § 332, but instead qual-
ify as a single acquisition of X’s assets
in a reorganization under § 368(a)(1)(C).
See alsoRev. Rul. 72–405, 1972–2 C.B.
217 (treating the acquisition of the assets
of a target corporation in a forward trian-
gular merger followed by the liquidation
of the acquiring subsidiary as a reorgani-
zation under § 368(a)(1)(C)); Rev. Rul.
2001–46, 2001–2 C.B. 321 (applying the
approach reflected in Rev. Rul. 67–274 to
a stock acquisition followed by a merger of
the acquired corporation into the acquiring
corporation).
Section 1.1361–4(a)(2) provides that if
an S corporation makes a QSub election
with respect to a subsidiary (an election
to disregard a subsidiary as an entity sep-
arate from its S corporation parent), the
subsidiary is deemed to have liquidated
into the S corporation. In Example 3 of
§ 1.1361–4(a)(2)(ii), pursuant to a plan, In-
dividual A contributes all the outstanding
stock of Y to his wholly owned S corpora-
tion, X, and immediately causes X to make
a QSub election for Y. The example con-
cludes that the transaction is a reorgani-
zation under § 368(a)(1)(D), assuming the
other conditions for reorganization treat-
ment are satisfied.
Section 304(a)(1) provides, in general,
for purposes of §§ 302 and 303, if one
or more persons are in control of each of
two corporations and, in return for prop-
erty, one of the corporations acquires stock
in the other corporation from the person (or
persons) so in control, then such property
shall be treated as a distribution in redemp-
tion of the stock of the corporation acquir-
ingsuchstock.
Section 1.1502–80(b), which relates to
consolidated returns, provides that § 304
does not apply to any acquisition of stock
of a corporation in an intercompany trans-
action.
ANALYSIS
In Situation 1, because P, S, and T
are members of a consolidated group,
and S’s purchase of the T stock from
P is an intercompany transaction under
§ 1.1502–80(b), § 304 cannot apply to P’s
sale of T stock to S. As described above,
if T had transferred its assets directly to
S and T had completely liquidated into
P, the stock sale and liquidation would
have qualified as a reorganization un-
der § 368(a)(1)(D). Consistent with Rev.
Ruls. 67–274 and 72–405 and Example
3 of § 1.1361–4(a)(2)(ii), the step trans-
action doctrine applies to treat the stock
sale and liquidation as a reorganization
under § 368(a)(1)(D). Authorities that
reject the application of the step trans-
action doctrine based on the policy of
§ 338, such as § 1.338–3(d) and Rev.
Rul. 90–95, 1990–2 C.B. 67, are not
relevant in this case because there is no
purchase of T stock within the meaning of
§ 338(h)(3)(A) and § 1.338–3(b).
Situation 2 differs from Situation 1 only
in that P, S, and T are not members of a
consolidated group. As a result, if the step
transaction doctrine does not apply to step
together the stock sale and liquidation, the
stock sale would be treated as a distribu-
tion in redemption of the S stock under
§ 304(a)(1) and the liquidation of T into S
would qualify as a liquidation under § 332.
There is no policy that requires § 304
to be applied when § 368(a)(1)(D) would
otherwise apply.SeeJ. Comm. on Tax’n.,
98th Cong. 2nd Sess.,General Expla-
nation of the Revenue Provisions of the
Deficit Reduction Act of 1984192 (Comm.
Print 1984). Moreover, the legislative his-
tory to the Deficit Reduction Act of 1984,
P.L. 98–369, 1984–3 (Vol. 1) C.B. 1, indi-
cates that § 304 was not intended to over-
ride reorganization treatment.SeeH.R.
Rep. No. 98–432 Pt. 2, 1624 (1984). Ac-
cordingly, in Situation 2, as in Situation
1, the step transaction doctrine applies to
treat the stock sale and liquidation as a re-
organization under § 368(a)(1)(D).
HOLDING
Under the facts presented, if, pursuant
to an integrated plan, a parent corporation
sells the stock of a wholly owned sub-
sidiary for cash to another wholly owned
subsidiary and the acquired subsidiary
completely liquidates into the acquiring
subsidiary, the transaction is treated as a
reorganization under § 368(a)(1)(D).
DRAFTING INFORMATION
The principal author of this revenue
ruling is Lisa S. Dobson of the Office of
Associate Chief Counsel (Corporate). For
further information regarding this rev-
enue ruling, contact Ms. Dobson at (202)
622–7790 (not a toll-free call).
Section 382.—Limitation
on Net Operating Loss
Carryforwards and Certain
Built-In Losses Following
Ownership Change
The adjusted applicable federal long-term rate is
set forth for the month of August 2004. See Rev. Rul.
2004-84, page 163.
Section 412.—Minimum
Funding Standards
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
2004–32 I.R.B.158August 9, 2004

Section 461.—General
Rule for Taxable Year
of Deduction
26 CFR 1.461–2: Contested liabilities.
T.D. 9140
DEPARTMENT OF
THE TREASURY
Internal Revenue Service
26 CFR Part 1
Transfers to Provide for
Satisfaction of Contested
Liabilities
AGENCY: Internal Revenue Service
(IRS), Treasury.
ACTION: Final regulations.
SUMMARY: This document contains final
regulations relating to transfers of money
or other property to provide for the satis-
faction of contested liabilities. The regu-
lations affect taxpayers that are contesting
an asserted liability and that transfer their
own stock or indebtedness, the stock or in-
debtedness of a related party, or a promise
to provide services or property in the fu-
ture, to provide for the satisfaction of the
liability prior to the resolution of the con-
test. The regulations also affect taxpayers
that transfer money or other property to a
trust, an escrow account, or a court to pro-
vide for the satisfaction of a liability for
which payment is economic performance.
DATES:Effective Date:These regulations
are effective July 20, 2004.
Applicability Dates:For dates of appli-
cability, see §1.461–2(g).
FOR FURTHER INFORMATION
CONTACT: Norma Rotunno, (202)
622–7900 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document contains amendments
to 26 CFR Part 1 under section 461(f) of
the Internal Revenue Code (Code). On
November 21, 2003, temporary regula-
tions (T.D. 9095, 2003–49 I.R.B. 1175)
were published in theFederal Register
(68 FR 65634) relating to the transfer of
money or other property to provide for
the satisfaction of an asserted liability
that a taxpayer is contesting. A notice of
proposed rulemaking (REG–136890–02,
2003–49 I.R.B. 1191) cross-referencing
the temporary regulations also was pub-
lished in theFederal Register(68 FR
65645) on November 21, 2003. No pub-
lic hearing was requested or held. One
comment was received responding to the
notice of proposed rulemaking. After con-
sideration of the comment, the proposed
regulations are adopted by this Treasury
decision.
Summary of Comment
The temporary regulations clarify that,
in general, economic performance does
not occur in the taxable year in which a
taxpayer transfers money or other prop-
erty to a trust, escrow account, or court
to provide for the satisfaction of an as-
serted liability under section 461(f) for
which payment constitutes economic per-
formance. Rather, economic performance
occurs in the taxable year in which a
taxpayer transfers money or other prop-
erty to the person asserting the liability
that the taxpayer is contesting, or in the
taxable year in which payment from the
trust, escrow account, or court registry is
made to the person to which the liability is
owed. The temporary regulations also in-
dicate that economic performance may be
satisfied under section 468B and the regu-
lations thereunder (relating to designated
settlement funds and qualified settlement
funds).
A commentator suggested that the reg-
ulations provide an example of a transfer
to a contested liability fund that qualifies
for a deduction in the taxable year of trans-
fer because it also satisfies the require-
ments for a qualified settlement fund under
§1.468B–1. The final regulations do not
adopt this comment because the require-
ments for establishing a qualified settle-
ment fund under §1.468B–1 are complex
and are beyond the scope of these regula-
tions.
Effective Date
In general, these final regulations ap-
ply to transfers made in taxable years
beginning after December 31, 1953, and
ending after August 16, 1954. However,
these regulations apply to transfers of
any stock of the taxpayer or any stock
or indebtedness of a related person on
or after November 19, 2003. Addition-
ally, §1.461–2(e)(2)(i), relating to eco-
nomic performance, applies to transfers
of money or other property after July 18,
1984, the effective date of section 461(h).
Section 1.461–2(e)(2)(ii) applies to (1)
transfers of money or other property after
July 18, 1984, to satisfy workers compen-
sation or tort liabilities, and (2) transfers
of money or other property in taxable
years beginning after December 31, 1991,
the effective date of §1.461–4(g), to sat-
isfy payment liabilities designated under
§1.461–4(g) (other than liabilities for
workers compensation or tort).
Special Analyses
It has been determined that this Trea-
sury decision is not asignificant regula-
tory action as defined in Executive Order
12866. Therefore, a regulatory assessment
is not required. It also has been deter-
mined that section 553(b) of the Admin-
istrative Procedure Act (5 U.S.C. chapter
5) does not apply to these regulations, and
because the regulation does not impose a
collection of information on small entities,
the Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply. Pursuant to sec-
tion 7805(f) of the Code, the proposed reg-
ulations preceding these regulations were
submitted to the Chief Counsel for Advo-
cacy of the Small Business Administration
for comment on their impact on small busi-
ness.
Drafting Information
The principal author of these regula-
tions is Norma Rotunno of the Office of
the Associate Chief Counsel (Income Tax
& Accounting). However, other personnel
from the IRS and Treasury participated in
their development.
*****
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 1 is amended
as follows:
PART 1— INCOME TAXES
Paragraph 1. The authority citation for
part 1 continues to read, in part, as follows:
August 9, 20041592004–32 I.R.B.

Authority: 26 U.S.C. 7805 * * *
Par. 2. In §1.461–2, paragraphs (c)(1),
(e)(2), (e)(3)Example 2, and (g) are re-
vised to read as follows:
§1.461–2 Contested liabilities.
*****
(c)Transfer to provide for the satis-
faction of an asserted liability—(1)In
general. (i) A taxpayer may provide for
the satisfaction of an asserted liability by
transferring money or other property be-
yond his control to—
(A) The person who is asserting the li-
ability;
(B) An escrowee or trustee pursuant to a
written agreement (among the escrowee or
trustee, the taxpayer, and the person who
is asserting the liability) that the money or
other property be delivered in accordance
with the settlement of the contest;
(C)Anescroweeortrusteepursuantto
an order of the United States or of any
State or political subdivision thereof or any
agency or instrumentality of the foregoing,
or of a court, that the money or other prop-
erty be delivered inaccordance with the
settlement of the contest; or
(D) A court with jurisdiction over the
contest.
(ii) In order for money or other property
to be beyond the control of a taxpayer, the
taxpayer must relinquish all authority over
the money or other property.
(iii) The following are not transfers to
provide for the satisfaction of an asserted
liability—
(A) Purchasing a bond to guarantee
payment of the asserted liability;
(B) An entry on the taxpayer’s books of
account;
(C) A transfer to an account that is
within the control of the taxpayer;
(D) A transfer of any indebtedness of
the taxpayer or of any promise by the tax-
payer to provide services or property in the
future; and
(E) A transfer to a person (other than the
person asserting the liability) of any stock
of the taxpayer or of any stock or indebt-
edness of a person related to the taxpayer
(as defined in section 267(b)).
*****
(e) * * *
(2)Application of economic perfor-
mance rules to transfers under section
461(f). (i) A taxpayer using an accrual
method of accounting is not allowed a
deduction under section 461(f) in the tax-
able year of the transfer unless economic
performance has occurred.
(ii) Economic performance occurs for
liabilities requiring payment to another
person arising out of any workers com-
pensation act or any tort, or any other
liability designated in §1.461–4(g), as
payments are made to the person to which
the liability is owed. Except as provided
in section 468B or the regulations thereun-
der, economic performance does not occur
when a taxpayer transfers money or other
property to a trust, an escrow account,
or a court to provide for the satisfaction
of an asserted workers compensation,
tort, or other liability designated under
§1.461–4(g) that the taxpayer is contest-
ing unless the trust, escrow account, or
court is the person to which the liability
is owed or the taxpayer’s payment to the
trust, escrow account, or court discharges
the taxpayer’s liability to the claimant.
Rather, economic performance occurs in
the taxable year the taxpayer transfers
money or other property to the person that
is asserting the workers compensation,
tort, or other liability designated under
§1.461–4(g) that the taxpayer is contest-
ing or in the taxable year that payment is
made from a trust, an escrow account, or
a court registry funded by the taxpayer to
the person to which the liability is owed.
(3) * * *
*****
Example 2. Corporation X is a defendant in a
class action suit for tort liabilities. In 2002, X es-
tablishes a trust for the purpose of satisfying the as-
serted liability and transfers $10,000,000 to the trust.
The trust does not satisfy the requirements of sec-
tion 468B or the regulations thereunder. In 2004, the
trustee pays $10,000,000 to the plaintiffs in settle-
ment of the litigation. Under paragraph (e)(2) of this
section, economic performance with respect to X’s li-
ability to the plaintiffs occurs in 2004. X may deduct
the $10,000,000 payment to the plaintiffs in 2004.
*****
(g)Effective dates. (1) Except as other-
wise provided, this section applies to trans-
fers of money or other property in taxable
years beginning after December 31, 1953,
and ending after August 16, 1954.
(2) Paragraph (c)(1)(iii)(E) of this sec-
tion applies to transfers of any stock of the
taxpayer or any stock or indebtedness of a
person related to the taxpayer on or after
November 19, 2003.
(3) Paragraph (e)(2)(i) of this section
applies to transfers of money or other prop-
erty after July 18, 1984.
(4) Paragraph (e)(2)(ii) and paragraph
(e)(3)Example 2of this section apply to—
(i) Transfers after July 18, 1984, of
money or other property to provide for the
satisfaction of an asserted workers com-
pensation or tort liability; and
(ii) Transfers in taxable years begin-
ning after December 31, 1991, of money
or other property to provide for the sat-
isfaction of asserted liabilities designated
in §1.461–4(g) (other than liabilities for
workers compensation or tort).
Mark E. Matthews,
Deputy Commissioner for
Services and Enforcement.
Approved July 7, 2004.
Gregory F. Jenner,
Acting Assistant Secretary of the Treasury.
(Filed by the Office of the Federal R
egister on July 19, 2004,
8:45 a.m., and published in the issue of the Federal Register
for July 20, 2004, 69 F.R. 43302)
Section 463.—Accrual
of Vacation Pay
26 CFR 1.463–1T: Removed.
T.D. 9138
DEPARTMENT OF
THE TREASURY
Internal Revenue Service
26 CFR Part 1
Transitional Rule for Vested
Accrued Vacation Pay
AGENCY: Internal Revenue Service
(IRS), Treasury.
ACTION: Removal of temporary regula-
tion.
SUMMARY: This document removes a
temporary regulation that provides a rule
for an election to deduct vested accrued va-
cation pay for the first taxable year ending
after July 18, 1984. The repeal of the un-
derlying code section in 1987 has rendered
the temporary regulation obsolete. The re-
moval of this regulation will not affect tax-
payers.
2004–32 I.R.B.160August 9, 2004

DATES: This Treasury decision is effec-
tive on July 15, 2004.
FOR FURTHER INFORMATION
CONTACT: Jamie J. Kim at (202)
622–4950 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
Prior to repeal in 1987, section 463 of
the Internal Revenue Code (Code) permit-
ted taxpayers to elect to deduct reasonable
additions to a reserve account for vacation
pay, including amounts earned by employ-
ees before the close of the taxable year
that, because of contingencies, would not
be deductible under section 162(a) as an
accrued expense. In connection with the
enactment of the economic performance
rules under section 461(h), section 91(i) of
the Tax Reform Act of 1984, Public Law
98–369 (98 Stat. 494, 609), provided a
transitional rule under which certain tax-
payers could make an election under sec-
tion 463 for the first taxable year ending
after July 18, 1984. On February 4, 1986,
the IRS and Treasury published temporary
regulation §1.463–1T (T.D. 8073, 1986–1
C.B. 45) in theFederal Register(51 FR
4312), as amended on April 2, 1986, (51
FR 11302), to provide guidance on mak-
ing the election under section 463 pursuant
to the transitional rule. The repeal of sec-
tion 463 by section 10201(a) of the Rev-
enue Act of 1987, Public Law 100–203
(101 Stat. 1330–382, 1330–387), has ren-
dered temporary regulation §1.463–1T ob-
solete.
Special Analyses
It has been determined that the removal
of this regulation is not a significant regu-
latory action as defined in Executive Order
12866. Therefore, a regulatory assessment
is not required. Because this rule merely
removes regulatory provisions made obso-
lete by statute, prior notice and comment
and a delayed effective date are unneces-
sary and contrary to the public interest. 5
U.S.C 553(b)(B) and (d)(3). Because no
notice of proposed rulemaking is required,
the Regulatory Flexibility Act (5 U.S.C.
chapter 6) does not apply.
Drafting Information
The principal author of this Treasury
decision is Jamie J. Kim of the Office of
Associate Chief Counsel (Income Tax and
Accounting), IRS.
*****
Removal of Temporary Regulation
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 * * *
§1.463–1T [Removed]
Par. 2. Section 1.463–1T is removed.
Mark E. Matthews,
Deputy Commissioner for
Services and Enforcement.
Approved July 7, 2004.
Gregory F. Jenner,
Acting Assistant Secretary of the
Treasury (Tax Policy).
(Filed by the Office of the Federal Register on July 15, 2004,
8:45 a.m., and published in the issue of the Federal Register
for July 16, 2004, 69 F.R. 42559)
Section 467.—Certain
Payments for the Use of
Property or Services
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
Section 468.—Special
Rules for Mining and Solid
Waste Reclamation and
Closing Costs
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
Section 472.—Last-in,
First-out Inventories
26 CFR 1.472–1: Last-in, first-out inventories.
LIFO; price indexes; department
stores.The May 2004 Bureau of Labor
Statistics price indexes are accepted for
use by department stores employing the
retail inventory and last-in, first-out in-
ventory methods for valuing inventories
for tax years ended on, or with reference
to, May 31, 2004.
Rev. Rul. 2004–81
The following Department Store In-
ventory Price Indexes for May 2004 were
issued by the Bureau of Labor Statistics.
The indexes are accepted by the Inter-
nal Revenue Service, under § 1.472–1(k)
of the Income Tax Regulations and Rev.
Proc. 86–46, 1986–2 C.B. 739, for ap-
propriate application to inventories of
department stores employing the retail
inventory and last-in, first-out inventory
methods for tax years ended on, or with
reference to, May 31, 2004.
The Department Store Inventory Price
Indexes are prepared on a national basis
and include (a) 23 major groups of depart-
ments, (b) three special combinations of
the major groups — soft goods, durable
goods, and miscellaneous goods, and (c) a
store total, which covers all departments,
including some not listed separately, ex-
cept for the following: candy, food, liquor,
tobacco, and contract departments.
August 9, 20041612004–32 I.R.B.

BUREAU OF LABOR STATISTICS, DEPARTMENT STORE
INVENTORY PRICE INDEXES BY DEPARTMENT GROUPS
(January 1941 = 100, unless otherwise noted)
GroupsMay 2003May 2004
Percent Change
from May 2003
to May 2004
1
1. PieceGoods .............................................456.3483.56.0
2. DomesticsandDraperies..................................557.6542.2-2.8
3. Women’sandChildren’sShoes ............................637.0645.01.3
4. Men’sShoes.............................................855.8868.41.5
5. Infants’Wear ............................................599.6575.6-4.0
6. Women’sUnderwear......................................519.8512.2-1.5
7. Women’sHosiery ........................................349.5338.2-3.2
8. Women’sandGirls’Accessories ...........................550.2567.53.1
9. Women’sOuterwearandGirls’Wear .......................374.5377.20.7
10. Men’sClothing ..........................................562.3548.4-2.5
11. Men’sFurnishings........................................587.2594.31.2
12. Boys’ClothingandFurnishings............................463.5445.2-3.9
13. Jewelry..................................................877.9905.23.1
14. Notions .................................................789.7797.51.0
15. ToiletArticlesandDrugs..................................979.71001.42.2
16. FurnitureandBedding ....................................620.2613.8-1.0
17. FloorCoverings..........................................578.9587.91.6
18. Housewares..............................................730.9714.8-2.2
19. MajorAppliances.........................................213.7201.6-5.7
20. RadioandTelevision......................................45.942.4-7.6
21. Recreation and Education
2
.................................83.480.8-3.1
22. Home Improvements
2
.....................................126.1129.12.4
23. Automotive Accessories
2
..................................111.6112.10.4
Groups1–15:SoftGoods .......................................568.1570.10.4
Groups16–20:DurableGoods...................................397.1384.2-3.2
Groups 21–23: Misc. Goods
2
....................................94.793.4-1.4
Store Total
3
..............................................506.0503.2-0.6
1
Abs
ence of a minus sign before the percentage change in this column signifies a price increase.
2
Indexes on a January 1986 = 100 base.
3
The store total index covers all departments, including some not listed separately, except for the following: candy, food, liquor,
tobacco and contract departments.
DRAFTING INFORMATION
The principal author of this revenue
ruling is Michael Burkom of the Office
of Associate Chief Counsel (Income Tax
and Accounting). For further informa-
tion regarding this revenue ruling, contact
Mr. Burkom at (202) 622–7924 (not a
toll-free call).
Section 482.—Allocation
of Income and Deductions
Among Taxpayers
Federal short-term, mid-term, and long-term rates
are set forth for the month of August 2004. See Rev.
Rul. 2004-84, page 163.
Section 483.—Interest on
Certain Deferred Payments
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
Section 642.—Special
Rules for Credits and
Deductions
Federal short-term, mid-term, and long-term rates
are set forth for the month of August 2004. See Rev.
Rul. 2004-84, page 163.
Section 807.—Rules for
Certain Reserves
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
2004–32 I.R.B.162August 9, 2004

Section 846.—Discounted
Unpaid Losses Defined
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
Section 1274.—Determi-
nation of Issue Price in the
Case of Certain Debt Instru-
ments Issued for Property
(Also sections 42, 280G, 382, 412, 467, 468, 482,
483, 642, 807, 846, 1288, 7520, 7872.)
Federal rates; adjusted federal rates;
adjusted federal long-term rate and the
long-term exempt rate.For purposes of
sections 382, 642, 1274, 1288, and other
sections of the Code, tables set forth the
rates for August 2004.
Rev. Rul. 2004–84
This revenue ruling provides various
prescribed rates for federal income tax
purposes for August 2004 (the current
month). Table 1 contains the short-term,
mid-term, and long-term applicable fed-
eral rates (AFR) for the current month
for purposes of section 1274(d) of the
Internal Revenue Code. Table 2 contains
the short-term, mid-term, and long-term
adjusted applicable federal rates (adjusted
AFR) for the current month for purposes
of section 1288(b). Table 3 sets forth the
adjusted federal long-term rate and the
long-term tax-exempt rate described in
section 382(f). Table 4 contains the ap-
propriate percentages for determining the
low-income housing credit described in
section 42(b)(2) for buildings placed in
service during the current month. Finally,
Table 5 contains the federal rate for de-
termining the present value of annuity, an
interest for life or for a term of years, or
a remainder or a reversionary interest for
purposes of section 7520.
REV. RUL. 2004–84 TABLE 1
Applicable Federal Rates (AFR) for August 2004
Period for Compounding
AnnualSemiannualQuarterlyMonthly
Short-Term
AFR2.37%2.36%2.35%2.35%
110% AFR2.62%2.60%2.59%2.59%
120% AFR2.85%2.83%2.82%2.81%
130% AFR3.09%3.07%3.06%3.05%
Mid-Term
AFR4.00%3.96%3.94%3.93%
110% AFR4.41%4.36%4.34%4.32%
120% AFR4.81%4.75%4.72%4.70%
130% AFR5.22%5.15%5.12%5.10%
150% AFR6.03%5.94%5.90%5.87%
175% AFR7.05%6.93%6.87%6.83%
Long-Term
AFR5.21%5.14%5.11%5.09%
110% AFR5.73%5.65%5.61%5.58%
120% AFR6.27%6.17%6.12%6.09%
130% AFR6.79%6.68%6.63%6.59%
REV. RUL. 2004–84 TABLE 2
Adjusted AFR for August 2004
Period for Compounding
AnnualSemiannualQuarterlyMonthly
Short-term adjusted
AFR
1.71%1.70%1.70%1.69%
Mid-term adjusted AFR3.30%3.27%3.26%3.25%
Long-term adjusted
AFR
4.64%4.59%4.56%4.55%
August 9, 20041632004–32 I.R.B.

REV. RUL. 2004–84 TABLE 3
Rates Under Section 382 for August 2004
Adjusted federal long-term rate for the current month4.64%
Long-term tax-exempt rate for ownership changes during the current month (the highest of the adjusted
federal long-term rates for the current month and the prior two months.)4.72%
REV. RUL. 2004–84 TABLE 4
Appropriate Percentages Under Section 42(b)(2) for August 2004
Appropriat
e percentage for the 70% present value low-income housing credit
8.07%
Appropriate percentage for the 30% present value low-income housing credit3.46%
REV. RUL. 2004–84 TABLE 5
Rate Under Section 7520 for August 2004
Applicable federal rate for determining the present value of an annuity, an interest for life or a term of years,
or a remainder or reversionary interest4.8%
Section 1288.—Treatment
of Original Issue Discount
on Tax-Exempt Obligations
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
Section 1361.—S Corpo-
ration
Defined
Under w
hat circumstances can an eligible entity
reques
t relief for a late S corporation election when
the en
tity also fails to timely file an election to be
class
ified as an association taxable as a corporation?
See Re
v. Proc. 2004-48, page 172.
Section 1362.—Election;
Revocation; Termination
Under what circumstances can an eligible entity
request relief for a late S corporation election when
the entity also fails to timely file an election to be
classified as an association taxable as a corporation?
See Rev. Proc. 2004-48, page 172.
Section 2056.—Bequests,
etc., to Surviving Spouse
Simplified alternate procedure (in lieu of request-
ing a letter ruling) for certain executors of estates and
trustees of trusts in order to request relief to make
a late reverse qualified terminable interest property
(QTIP) election under section 2652 of the Code. See
Rev. Proc. 2004-47, page 169.
Section 2632.—Special
Rules for Allocation of
GST Exemption
26 CFR 26.2632–1: Allocation of GST exemption.
Simplified alternate procedure (in lieu of request-
ing a letter ruling) for certain executors of estates and
trustees of trusts in order to request relief to make
a late reverse qualified terminable interest property
(QTIP) election under section 2652 of the Code. See
Rev. Proc. 2004-47, page 169.
Section 2652.—Other
Definitions
26 CFR 26.2652–1: Transferor defined; other defini-
tions.
26 CFR 26.2652–2: Special election for qualified ter-
minable interest property.
Simplified alternate procedure (in lieu of request-
ing a letter ruling) for certain executors of estates and
trustees of trusts in order to request relief to make
a late reverse qualified terminable interest property
(QTIP) election under section 2652 of the Code. See
Rev. Proc. 2004-47, page 169.
Section 4051.—Imposition
of Tax on Heavy Trucks and
Trailers Sold at Retail
26 CFR 145.4051–1: Imposition of tax on heavy
trucks and trailers sold at retail.
Retail excise tax; highway tractor;
truck.This ruling applies the primarily
designed tests in section 145.4051–1(e)(1)
and (2) of the regulations under the High-
way Revenue Act of 1982 (Pub. L.
97–424) for purposes of determining
whether a vehicle is a truck or a highway
tractor.
Rev. Rul. 2004–80
ISSUE
Is the vehicle described below a truck
or a tractor for purposes of the retail ex-
cisetaximposedby§4051oftheInternal
Revenue Code?
FACTS
The vehicle tows trailers and semitrail-
ers (trailers); the trailers exceed 35 feet
in length and have a gross vehicle weight
(GVW) rating of 20,000 pounds. The ve-
hicle has a standard chassis cab (4-door
with crew cab), accommodating five pas-
sengers, and is outfitted with certain lux-
ury features. The cab has an electric trailer
2004–32 I.R.B.164August 9, 2004

brake control that connects to the brakes of
a towed trailer and to a hook up for trailer
lights. The vehicle has two storage boxes
behind the cab that can accommodate inci-
dental items such as small tools and vehi-
cle repair equipment.
The chassis cab has a GVW rating of
23,000 pounds and a gross combination
weight (GCW) rating of 43,000 pounds.
The vehicle is equipped with hydraulic
disc brakes with a four wheel automatic
braking system, a 300 horsepower engine,
and a six-speed automatic transmission.
Thefrontaxleofthevehiclehasan8,000
pound rating and the rear axle has a 15,000
pound rating.
The vehicle has three types of hitch-
ing devices: a removable ball gooseneck
hitch, a fifth wheel hitch, and a heavy duty
trailer receiver hitch. The vehicle’s plat-
form, which is approximately 139 inches
long, is designed with a rectangular well
to accommodate the gooseneck and fifth
wheel hitches (bed hitches). This platform
slopes at the rear of the rectangular well
and has tie-down hooks. Optional remov-
able steel stake rails can be placed around
the platform.
LAW AND ANALYSIS
Section 4051(a)(1) imposes an excise
tax on the first retail sale of automobile
truck chassis and bodies, truck trailer and
semitrailer chassis and bodies, and tractors
of the kind chiefly used for highway trans-
portation in combination with a trailer or
semitrailer. The tax is not limited to com-
mercial vehicles. Thus, a vehicle may be
subject to tax even if sold for use or used as
a recreational or private tow vehicle rather
than for commercial purposes.
Section 145.4051–1(e)(1)(i) of the
Temporary Excise Tax Regulations Under
the Highway Revenue Act of 1982 (Pub.
L. 97–424) defines “tractor” as a highway
vehicle primarily designed to tow a ve-
hicle, such as a traileror semitrailer, but
does not carry cargo on the same chassis
as the engine. A vehicle equipped with
air brakes and/or towing package will be
presumed to be primarily designed as a
tractor.
Section 145.4051–1(e)(2) defines
“truck” as a highway vehicle that is pri-
marily designed to transport its load on
the same chassis as the engine even if it is
also equipped to tow a vehicle, such as a
trailer or semitrailer.
“Primarily” means “principally” or “of
first importance.” SeeMalat v. Riddle,
383 U.S. 569 (1966), 1966–1 C.B. 184.
“Primarily” does not mean “exclusive.”
See Rev. Rul. 77–36, 1977–1 C.B.
347. Therefore, in the context of the
primarily designed test, the reference in
§ 145.4051–1(e)(1)(i) to vehicles not car-
rying cargo on the same chassis as the
engine does not require an absolute in-
ability to carry any cargo on the vehicle’s
chassis. This limitation may be satisfied
even if the vehicle can carry incidental
items of cargo when towing a trailer or
semitrailer or is capable of carrying lim-
ited amounts of cargo when not engaged
in its primary function of towing a trailer
or semitrailer.
Under the primarily designed test, a ve-
hicle that can both carry cargo on its chas-
sis and tow a trailer is characterized as ei-
ther a truck or tractor depending on which
function is of greater importance. The
function for which a vehicle is primarily
designed is evidenced by physical char-
acteristics such as the vehicle’s capacity
to tow a vehicle, carry cargo, and oper-
ate (including brake) safely when towing
or carrying a cargo. Cargo carrying capac-
ity depends on the vehicle’s GVW rating
and the configuration of the vehicle’s bed
or platform. Towing capacity depends on
the vehicle’s GVW and GCW ratings and
whether the vehicle is configured to tow a
trailer or semitrailer.
Some characteristics of the vehicle such
as its chassis cab with a GVW rating of
23,000 pounds, a 300 horsepower engine,
a front axle with an 8,000 pound rating,
and a rear axle with a 15,000 pound rating
are consistent with either a cargo carrying
or a towing function. In this case, how-
ever, the vehicle also has a GCW rating
of 43,000 pounds and its engine, brakes,
transmission, axle ratings, electric trailer
brake control, trailer hook up lights, and
hitches enable it to tow a 20,000 pound
trailer that may exceed 35 feet in length.
When the vehicle’s bed hitches are used
to tow, the cargo carrying capacity of the
vehicle is limited to the storage boxes be-
hind the cab and is minimal in comparison
to the GVW of the towed trailer or semi-
trailer. Neither the steel stake bed rails nor
the tie down hooks significantly increase
cargo carrying capacity when either of the
bed hitches is used. Even if neither of the
vehicle’s two bed hitches is used, the de-
sign of the vehicle significantly reduces
its cargo carrying capacity when compared
to the cargo carrying capacity of a pickup
truck body or a flatbed truck body installed
on a comparable chassis. The significant
reduction in cargo carrying capacity result-
ing from the vehicle’s platform with its
rectangular well and sloping platform at
the rear of the rectangular well is evidence
that the vehicle is not primarily designed
to carry cargo. By accommodating the bed
hitches, however, this platform configura-
tion increases the vehicle’s towing capac-
ity and, in conjunction with the other fea-
tures described above, makes it possible to
safely tow a 20,000 pound trailer.
The vehicle’s physical characteristics,
which maximize towing capacity at the ex-
pense of carrying capacity, establish that
the vehicle is primarily designed to tow
a vehicle, such as a trailer or semitrailer,
rather than to carry cargo on its chassis.
HOLDING
The vehicle is a tractor for purposes of
§ 4051.
DRAFTING INFORMATION
The principal author of this revenue rul-
ing is Celia Gabrysh of the Office of As-
sociate Chief Counsel (Passthroughs and
Special Industries). For further informa-
tion regarding this revenue ruling, contact
Celia Gabrysh at (202) 622–3130 (not a
toll-free call).
Section 6321.—Definitions
and Special Rules
26 CFR 301.6231(a)–1(a)(2): Pass-thru partner
disqualifies a partnership from the “small partner-
ship” exception to the unified audit and litigation
procedures of I.R.C. §§ 6221 through 6234.
Also, § 301.6231(a)(7)–1(b); 301.7701–1;
301.7701–3.
TEFRA partnership; disregarded
entity; pass-thru partner; tax matter
partner.This ruling addresses whether
a disregarded entity partner will disqual-
ify a partnership from being a “small
partnership” excluded from the TEFRA
partnership provisions. The ruling also ad-
dresses whether a disregarded entity may
be designated as the tax matters partner of
a partnership.
August 9, 20041652004–32 I.R.B.

Rev. Rul. 2004–88
ISSUE
1. Is a partnership that has a disregarded
entity as a partner considered a “small part-
nership” that is excluded from the unified
partnership audit and litigation procedures
set forth in I.R.C. §§ 6221 through 6234
(the TEFRA partnership provisions)?
2. May a disregarded entity be desig-
nated the tax matters partner (TMP) of a
partnership subject to the TEFRA partner-
ship provisions?
FACTS
P is a limited partnership with one
general partner and four limited partners.
The sole general partner is a Limited Li-
ability Company (LLC) that is treated
as a disregarded entity under section
301.7701–3(b)(1)(ii). LLC is owned by
A, an individual who is not a nonresident
alien. The four limited partners in P are
individuals who are not nonresident aliens.
On its partnership return for the 2002 tax-
able year, P designates LLC as its TMP.
LAW AND ANALYSIS
Issue 1
Section 6231(a)(3) defines a partner-
ship item as any item required to be taken
into account for the partnership’s tax-
able year under subtitle A, to the extent
regulations provide that the item is more
appropriately determined at the partner-
ship level than at the partner level. Under
section 6221, the tax treatment of any
partnership item shall be determined at
the partnership level under the TEFRA
partnership provisions. As a general rule,
the TEFRA partnership provisions apply
to any partnership required to file a re-
turn of partnership income under section
6031. Section 6231(a)(1)(A). The TEFRA
partnership provisions do not apply to
a partnership that qualifies as a small
partnership under section 6231(a)(1)(B)
unless the partnership elects to apply
those provisions. For partnership taxable
years ending after August 5, 1997, section
6231(a)(1)(B) defines a small partnership
as a partnership in which there are ten or
fewer partners, each of whom is an indi-
vidual (other than a nonresident alien), an
estate of a deceased partner, or a C corpo-
ration.
Section 6231(a)(2) defines a “partner”
as including both a partner in the partner-
ship and any other person whose income
tax liability under subtitle A is determined
in whole or in part by taking into account
directly or indirectly partnership items of
the partnership.
Section 301.6231(a)(1)–1(a)(2) pro-
vides that the small partnership exception
does not apply if any partner during the
taxable year is a “pass-thru partner” as de-
fined in section 6231(a)(9). A “pass-thru
partner” is defined in section 6231(a)(9)
as “a partnership, estate, trust, S corpo-
ration,nominee or other similar person
through whom other persons hold an in-
terest in the partnership....”(Emphasis
added). If legal title to a partnership inter-
est is held in the name of a person other
than the ultimate owner, the holder of le-
gal title is considered a pass-thru partner
within the meaning of section 6231(a)(9).
Compare White v. Commissioner,T.C.
Memo. 1991–552 (custodian for minor
children was not a pass-thru partner be-
cause, under state Gift to Minors Act,
the children held legal title to partner-
ship interests rather than custodian; small
partnership exception applicable)with
Primco Management Co. v. Commis-
sioner,T.C. Memo. 1997–332(grantor
trust holding legal title to an interest in
an S corporation was a “pass-thru share-
holder”; small S corporation exception
under the parallel provisions of section
301.6241–1T(c)(2)(iii) inapplicable).
Section 6231(a)(10) defines an indirect
partner as a person holding an interest in a
partnership through one or more pass-thru
partners.
Section 301.7701–3(a) provides rules
for the classification of certain business
entities for federal tax purposes. A busi-
ness entity that is not classified as a corpo-
ration is a “domestic eligible entity” and,
in the absence of an election, the domestic
eligible entity is “[d]isregarded as an en-
tity separate from its owner if it has a sin-
gle owner.” Section 301.7701–3(b)(1)(ii).
If the entity is disregarded, its activities are
treated in the same manner as a sole propri-
etorship, branch, or division of the owner.
Section 301.7701–2(a).
Under the facts of this ruling, although
LLC is a disregarded entity for federal
tax purposes, LLC is a partner of P un-
der the law of the state in which P is or-
ganized. Similarly, although A, LLC’s
owner, is a partner of P for purposes of
the TEFRA partnership provisions under
section 6231(a)(2)(B) because A’s income
tax liability is determined by taking into
account indirectly the partnership items of
P, A is not a partner of P under state law.
Because A holds an interest in P through
LLC, A is an indirect partner and LLC,
the disregarded entity, is a pass-thru part-
ner under the TEFRA partnership provi-
sions. Consequently, the small partnership
exception does not apply to P because P
has a partner that is a pass-thru partner.
Issue 2
Section 6231(a)(7) provides that the
TMP of any partnership is (A) the general
partner designated as the tax matters part-
ner, or (B) if there is no general partner
who has been so designated, the general
partner having the largest profits interest
in the partnership. If no general partner
has been designated as the TMP and the
Secretary determines that it is impracti-
cable to apply the largest profits interest
rule, the partner selected by the Secretary
shall be treated as the tax matters partner.
Section 301.6231(a)(7)–1(b) provides
that the partnership may designate a per-
son as the TMP of a partnership if that
person (i) was a general partner in the
partnership at some time during the tax-
able year for which the designation is
made, or (ii) is a general partner in the
partnership at the time the designation is
made. A partnership may designate only a
general partner as the TMP because only
a general partner is authorized to bind the
partnership. A partner’s status as a general
partner is determined under state law for
this purpose.Transpac Drilling Venture,
1983–63 v. United States, 26 Cl. Ct. 1245,
1247 (1992).
Although the regulations under sections
301.7701–1 through 301.7701–3 provide
that a disregarded entity is disregarded for
all federal tax purposes, these regulations
do not alter state law, which determines a
partner’sstatusasageneralpartner.
Under the facts of this ruling, A, LLC’s
owner, does not become a general partner
under state law by operation of sections
301.7701–1 through 301.7701–3. Al-
though LLC is a disregarded entity for
federal tax purposes, LLC remains a part-
2004–32 I.R.B.166August 9, 2004

ner in P and is the sole general partner
authorized to bind the partnership under
state law. A has no power to bind other
partners as a general partner under state
law. Accordingly, A cannot step into the
shoes of LLC, the disregarded entity, as
the TMP.See Transpac Drilling Venture,
1983–63, 26 Cl. Ct. at 1248 (limited part-
ner could not be the TMP because limited
partner was not a general partner under
Delaware law).See also Montana Sap-
phire Associates, Ltd. v. Commissioner,
95 T.C. 477, 481 (1990) (partnership
could not designate a person who was not
a member of the partnership as the TMP).
Thus, only LLC, the disregarded entity, is
eligible to be designated by P as its TMP
or to become the TMP under the largest
profits interest rule.
HOLDINGS
1. LLC, a disregarded entity for fed-
eral tax purposes, is a pass-thru partner un-
der section 6231(a)(9). Consequently, be-
cause P has a pass-thru partner, LLC, as
a partner, the small partnership exception
to the TEFRA partnership provisions does
not apply to the partnership.
2. LLC, a disregarded entity for federal
tax purposes, but a general partner of P un-
der state law, may be designated the TMP
of P, a partnership subject to the TEFRA
partnership provisions.
DRAFTING INFORMATION
The principal author of this revenue
ruling is William Heard of the Office of
Associate Chief Counsel (Procedure and
Administration), Administrative Provi-
sions and Judicial Practice Division. For
further information regarding this rev-
enue ruling, contact Mr. Heard at (202)
622–7950 (not a toll-free call).
Section 7520.—Valuation
Tables
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
Section 7701.—Definitions
26 CFR 301.7701–1: Classification of organizations
for federal tax purposes.
26 CFR 301.7701–2: Business entities; definitions.
26 CFR 301.7701–3: Classification of business enti-
ties.
Under what circumstances can an eligible entity
request relief for a late S corporation election when
the entity also fails to timely file an election to be
classified as an association taxable as a corporation?
See Rev. Proc. 2004-48, page 172.
Section 7872.—Treatment
of Loans With Below-Market
Interest Rates
The adjusted applicable federal short-term, mid-
term, and long-term rates are set forth for the month
of August 2004. See Rev. Rul. 2004-84, page 163.
August 9, 20041672004–32 I.R.B.

Part III. Administrative, Procedural, and Miscellaneous
Request for Information About
Credit Default Swaps
Notice 2004–52
I. PURPOSE
This notice requests further information
regarding certain financial transactions
commonly known as credit default swaps
in connection with the consideration by
Treasury and the IRS of taxpayer requests
for specific guidance on the tax treatment
of credit default swaps.
II. BACKGROUND
A credit default swap (CDS) gener-
ally refers to a contractual arrangement
inwhichoneparty(theprotectionbuyer)
buys from a counterparty (the protection
seller) protection against default by a par-
ticular obligor (the reference entity) with
respect to a particular obligation (the refer-
ence obligation). Typically the protection
buyer either pays a single lump sum, or it
pays periodical regular fees either until a
defined credit event occurs or until the ma-
turity of the CDS if no credit event occurs.
Following the occurrence of a credit event,
the protection seller typically either pays
the protection buyer an amount reflecting
the reference obligation’s loss in value
from the date the CDS was established
or purchases from the protection buyer at
a pre-determined price an obligation (the
deliverable obligation) that is expected to
approximate the post-credit-event value of
the reference obligation. Although certain
standard contractual terms and conditions
may be used, the reference obligation, the
deliverable obligation, the credit events
covered, and the protection seller’s obliga-
tion upon the occurrence of a credit event
are all matters of negotiation between the
parties.
A large international market for CDSs
has developed. Market participants in-
clude commercial banks, broker-dealers,
insurance companies, hedge funds, and
special-purpose securitization vehicles
such as synthetic collateralized debt obli-
gations. Commercial banks may buy
protection in order tomanage credit risk
associated with a particular loan and may
sell protection in order to acquire synthetic
exposure to other loans. Broker-dealers
may buy and sell protection in the course
of providing market liquidity. Insurance
companies may buy and sell protection
both in the conduct of their investment
activities and in the conduct of their in-
surance activities. Hedge funds may buy
and sell protection in order to manage risk,
speculate, or acquire synthetic exposure.
Securitization vehicles may sell protection
in order to acquire synthetic exposure.
Recent news reportssuggest that mar-
ket participants areconsidering the cre-
ation of CDS indexes through which par-
ticipants could buy and sell protection on a
defined basket of credit exposures on stan-
dardized terms.
Several market participants have re-
quested specific guidance regarding the
tax treatment of CDSs. Treasury and the
IRS recognize the significance of the CDS
market and are aware that the market is
rapidly evolving. Treasury and the IRS
believe that CDSs deserve careful study so
that appropriate guidance can be issued.
III. TAXPAYER REQUESTS FOR
GUIDANCE
Several taxpayers and industry groups
have requested guidance on the tax treat-
ment of CDSs and the taxpayers that enter
into them. Among the questions they have
raised are:
•whether amounts paid by a U.S. pro-
tection buyer to a foreign protection
seller constitute income that is subject
neither to withholding nor to the insur-
ance-premium excise tax;
•whether a protection seller could be
considered to be engaged in a trade
or business within the United States
by virtue of entering into CDS agree-
ments;
•whether a CDS gives rise to:
•passive income for purposes of the
passive foreign investment com-
pany rules;
•qualifying income for purposes
of the publicly traded partnership
rules; or
•unrelated business taxable income;
and
•the timing of recognition of income for
the protection seller and expense for
the protection buyer.
The concerns raised relate particu-
larly, although not exclusively, to the
treatment of payments from a protection
buyer within the United States to a pro-
tection seller outside the United States. In
response to these taxpayer requests, Trea-
sury and the IRS are thoroughly analyzing
all of the tax issues raised by CDSs and
expect to issue guidance.
Submissions generally have argued that
the legal rights and obligations under a
CDS are sufficiently analogous to those
in other types of existing financial trans-
action that the tax treatment of the anal-
ogous transactions should govern the tax
treatment of a CDS for all purposes of the
Code. See,e.g.,Bank of America v. United
States, 680 F.2d 142, 149–50 (Ct. Cl.
1982) (commissions for bankers’ accep-
tances sourced for foreign tax credit pur-
poses in same manner as interest because
predominant feature of acceptance is sub-
stitution of credit and because interest is
closest analogy in source rules).
Some possible analogies for a CDS
include a derivative financial instrument
such as a contingent option or notional
principal contract, a financial guarantee or
standby letter of credit, and an insurance
contract. A variety of theories have been
advanced in the existing literature both for
and against these analogies. Other com-
mentary recommends an alternative to the
analogue approach. Following is a brief
survey of some of the theories that have
been advanced.
A CDS has been analogized to a con-
tingent put option that the option buyer is
entitled to settle either for cash value or by
physical exercise with respect to the de-
liverable obligation following the occur-
rence of a credit event. Option premium
generally is not subject to withholding.
Trading in such options may not give rise
to a “trade or business within the United
States” pursuant to the securities-trading
safe harbor under section 864(b).
A CDS has been analogized to certain
notional principal contracts providing for
2004–32 I.R.B.168August 9, 2004

contingent nonperiodic payments. Some
commentators have argued that CDSs with
periodic payments, among other features,
meet the definition of a notional princi-
pal contract; however, commentators dis-
agree about the scope of CDSs that may
fall within the definition of notional prin-
cipal contract. Payments with respect to
a notional principal contract generally are
not subject to withholding. Trading in such
notional principal contracts may not give
rise to a trade or business within the United
States. Special timing rules may apply to
notional principal contracts.
A CDS has been analogized to a guaran-
tee. Guarantee fees have been analogized
to commissions for letters of credit, which
are sourced in the same manner as interest.
SeeCentel Communications Co. v. Com-
missioner, 920 F.2d 1335, 1343–1344 (7th
Cir. 1990) (citingBank of America). In
addition, guaranteeing obligations and is-
suing standby letters of credit from within
the United States could constitute engag-
ing in a trade or business within the United
States. Some commentators have distin-
guished CDSs from guarantees on the ba-
sis that a credit event under a CDS requires
performance by the protection seller with-
out regard to whether the protection buyer
sustains an actual loss. A relevant factor in
this regard may be how much of the CDS
protection-buying market consists of per-
sons who do not have or expect to be ex-
posedtocreditrisk.
A CDS has been analogized to a form
of insurance. Insurance premiums paid to
a foreign person with respect to a U.S. risk
are subject to excise tax. Moreover, in-
suring risks from within the United States
couldconstituteengaginginatradeor
business within the United States. Some
commentators have distinguished CDSs
from insurance on the basis, as described
above, that no actual loss need be sustained
in order to give rise to an obligation under
a CDS. Some commentators have noted
the Supreme Court’s opinion inHelvering
v. LeGierse, 312 U.S. 531 (1941), that the
essence of insurance activity is the shifting
and distribution of insurance risk. These
commentators have suggested that many
protection sellers do not shift or distribute
risk with respect to CDSs in this way, and
that it is not clear how a protection buyer
could know how its counterparty manages
risk with respect to a particular CDS.
Some commentators have suggested
consideration of an approach to deter-
mine the tax treatment of CDSs other than
classification by analogy to other types
of financial transaction. Instead, they
have proposed that the tax treatment of
payments with respect to a CDS could
be determined by analyzing various ele-
ments of the CDS transaction, including
thenatureofthereferenceobligationand
whether a party to the CDS provides fi-
nancial services to customers.
IV. REQUEST FOR COMMENTS
The foregoing brief overview indicates
that the economic similarity of a CDS to
various financial transactions tends to blur
the distinctions between possible analo-
gies and that the various analogies corre-
spond to significantly different tax treat-
ment.
Treasury and the IRS believe that ad-
ditional information is needed in order to
respond to taxpayer requests for specific
guidance regarding the appropriate tax
treatment of amounts paid and received
with respect to a CDS. Treasury and the
IRS are particularly interested in informa-
tion regarding:
•CDS contractual terms, both standard
and negotiated, particularly with re-
spect to credit events, subrogation
rights, security interests in collateral,
and collateralization requirements in
general;
•CDS pricing, particularly with respect
to guarantees, contingent options, and
insurance;
•operation of the CDS market, partic-
ularly with respect to price quotation
and dissemination;
•market practice regarding hedging, the
management of basis risk, and the tim-
ing of CDS transactions relative to the
assumption and disposition of analo-
gous risks; and
•the regulatory capital, GAAP, and in-
ternal booking treatment of CDSs by
various market participants.
Treasury and the IRS also welcome any
other information that market participants
believe may be relevant.
V. SUBMISSION OF COMMENTS
Taxpayers may submit written com-
ments to: CC:PA:LPD:PR (Notice
2004–52), Room 5203, Internal Rev-
enue Service, POB 7604, Ben Franklin
Station, Washington, DC 20044. Sub-
missions may be hand delivered be-
tween the hours of 8 a.m. and 4 p.m.
to CC:PA:LPD:PR (Notice 2004–52),
Courier’s Desk, Internal Revenue Service,
1111 Constitution Avenue, NW, Wash-
ington, DC. Alternatively, taxpayers may
submit comments electronically via the In-
ternet by submitting comments electron-
ically via the following e-mail address:
Notice.Comments@irscounsel.treas.gov.
Please include: Notice 2004–52 in the
subject line of any electronic communica-
tions.
DRAFTING INFORMATION
The principal authors of this notice
are Paul Epstein, Theodore Setzer, and
Steven Jensen of the Office of Associate
Chief Counsel (International). For further
information regarding this notice, contact
Mr. Epstein, Mr. Setzer, or Mr. Jensen at
(202) 622–3870 (not a toll-free call).
26 CFR 601.201: Rulings and determination letters.
(Also, Part I, §§ 2056, 2652; 26.2632–1, 26.2652–1,
26.2652–2, 301.9100–3.)
Rev. Proc. 2004–47
SECTION 1. PURPOSE
This revenue procedure provides a sim-
plified alternate method for certain execu-
tors of estates and trustees of trusts to re-
quest relief to make a late reverse qualified
terminable interest property (QTIP) elec-
tion under § 2652 of the Internal Revenue
Code. This alternate method may be used
in lieu of the normal letter ruling process.
No user fee is charged for requests filed un-
der this revenue procedure.
SECTION 2. BACKGROUND
.01 Under § 2001(a), the estate tax is
imposed on the transfer of the taxable
estate of every decedent who is a citizen
or resident of the United States. Sec-
tion 2056(a) provides that for purposes
of § 2001, the value of the taxable estate
August 9, 20041692004–32 I.R.B.

shall, except as limited by § 2056(b), be
determined by deducting from the value
of the gross estate the value of any interest
in property that passes or has passed from
the decedent to the decedent’s surviving
spouse. Section 2056(b) generally pro-
vides that no deduction is allowed for an
interest passing to the surviving spouse
if, on the lapse of time, on the occurrence
of an event or contingency, or on the fail-
ure of an event or contingency to occur,
the interest will terminate or fail. Sec-
tion 2056(b)(7) provides an exception for
property meeting the QTIP requirements
in § 2056(b)(7)(B).
.02 Section 2056(b)(7)(B)(i) defines
“qualified terminable interest property” as
property: (1) that passes from the dece-
dent; (2) in which the surviving spouse has
a qualifying income interest for life; and
(3) to which an election under § 2056(b)(7)
applies. Property for which a QTIP elec-
tion is made is treated as passing to the
surviving spouse for purposes of deter-
mining the decedent’s taxable estate. The
value of any property that was deducted
under § 2056(b)(7)from the decedent’s
gross estate and that remains on the sur-
viving spouse’s death will be included in
the surviving spouse’s gross estate under
§ 2044. If the surviving spouse makes a
lifetime disposition of all or a portion of
the qualifying income interest, § 2519 pro-
vides that the surviving spouse is treated
for estate and gift tax purposes as trans-
ferring all interests in the property other
than the qualifying income interest. Fur-
thermore, the transfer of the qualifying
income interest is subject to the gift tax
under § 2511 and § 25.2511–2.
.03 Chapter 13 imposes a generation-
skipping transfer (GST) tax on all trans-
fers, whether made directly or indirectly,
to skip persons. Under § 2613(a), a skip
person is a person who is two or more gen-
erations younger than the transferor or is a
trust if all of the interests are held by skip
persons. Under § 2652, the transferor gen-
erally is the individual who transfers prop-
erty in a transaction subject to the federal
gift or estate tax. Under § 2611(a), trans-
fers that are subject to the GST tax include
direct skips, taxable distributions, and tax-
able terminations.
.04 Section 2631 allows every trans-
feror a GST tax exemption of $1,000,000
that may be allocated by the individual (or
the individual’s executor) to any property
with respect to which the individual is the
transferor. For calendar years after 1998,
this exemption amount has been indexed
for inflation. For transfers made between
January 1, 2004, and December 31, 2009
(inclusive), the GST exemption will equal
the amount that is exempted from trans-
fer tax by the applicable credit amount de-
scribed in § 2010. With respect to trans-
fers made at death, the allocation of a dece-
dent’s GST tax exemption is made on the
decedent’s Form 706,United States Es-
tate (and Generation-Skipping Transfer)
Tax Return. A decedent’s unused GST
tax exemption is automatically allocated
on the due date for filing the decedent’s
Form 706 to the extent not otherwise al-
located by the decedent’s executor on or
before that date.
.05 Section 2632(e) and § 26.2632–
1(d)(2) of the Generation-Skipping Trans-
fer Tax Regulations supply the method
for the automatic allocation of any unused
GST tax exemption. The exemption is first
allocatedpro ratato direct skips treated
as occurring on death on the basis of the
value of property as finally determined for
federal estate tax purposes. The balance,
if any, is then allocatedpro rata,onthe
basis of estate tax value, to trusts with re-
spect to which a taxable termination may
occur or from which a taxable distribution
may be made. In the case of trusts that are
not included in the gross estate, the GST
tax exemption is allocated on the basis of
the date of death value of the trust. No
automatic allocation is made to a trust that
will have a new transferor with respect to
the entire trust prior to the occurrence of
any GST with respect to the trust. The au-
tomatic allocation of GST tax exemption
is irrevocable.
.06 With respect to QTIP, the dece-
dent’s surviving spouse will become the
new transferor with respect to the entire
trust before the occurrence of any GST
from the trust. Accordingly, a decedent’s
GST tax exemption is not automatically
allocated to property for which a QTIP
election was made. Section 2652(a)(3)
provides, however, that if an election is
made to treat property as QTIP under
§ 2056(b)(7), the person making the elec-
tion may, for purposes of chapter 13, elect
to treat the property as if the QTIP elec-
tion had not been made (reverse QTIP
election). As a resultof the reverse QTIP
election, the decedent remains, for GST
tax purposes, the transferor of the QTIP
trust or property. The decedent’s GST tax
exemption, accordingly, may be allocated
to the QTIP trust or property, either by an
affirmative allocation or by the automatic
allocation of the decedent’s remaining
GST tax exemption. The reverse QTIP
election is made on the same return on
which the QTIP election is made.
.07 To date, the Internal Revenue Ser-
vice has issued several private letter rul-
ings providing relief to taxpayers who
failed to make a reverse QTIP election
on a timely filed Form 706 and who have
satisfied the requirements of § 301.9100–3
of the Procedure and Administration Reg-
ulations. Section 301.9100–3(a) gener-
ally provides that requests for extensions
of time for regulatory elections will be
granted when the taxpayer provides ev-
idence to establish to the satisfaction of
the Commissioner that the taxpayer acted
reasonably and in good faith, and that the
grant of relief will not prejudice the inter-
ests of the Government.
SECTION 3. SCOPE
.01In General. Except as otherwise
provided in sections 3.02 and 3.03 of this
revenue procedure, the alternate simplified
procedure authorized in this revenue pro-
cedure for obtaining permission to file a
late reverse QTIP election is available if
the requirements of sections 4.02 and 4.03
of this revenue procedure are met.
.02Certain Late Reverse QTIP Elec-
tions. This revenue procedure does not ap-
ply to intervivos transfers to or for the ben-
efit of a spouse, or to transfers to or for the
benefit of a non-citizen spouse in the form
of a qualified domestic trust. Relief under
this revenue procedure does not include or
grant permission to make a late severance
of a trust included in the gross estate or
to allocate GST exemption. Accordingly,
permission to file a late reverse QTIP elec-
tion in conjunction with a late severance or
an allocation of GST exemption must be
requested through the letter ruling process
as described in section 3.03 of this revenue
procedure.
.03Failure to Qualify for Relief Un-
der This Revenue Procedure. An executor
who is denied relief or is otherwise out-
side the scope of this revenue procedure
may request relief under § 301.9100–3 by
requesting a letter ruling. The procedural
2004–32 I.R.B.170August 9, 2004

requirements for requesting a letter rul-
ing are described in Rev. Proc. 2004–1,
2004–1 I.R.B. 1 (or its successor). If a let-
ter ruling is requested after relief has been
denied under this revenue procedure, the
letter ruling request must indicate that re-
lief was requested and denied under this
revenue procedure. Rev. Proc. 2004–1,
Appendix C, 2004–1 I.R.B. 1, 70.
SECTION 4. RELIEF FOR UNTIMELY
REVERSE QTIP ELECTIONS
.01Definitions.
(1)Executor. Solely for purposes of
this revenue procedure, the term execu-
tor includes: an executor of an estate as
defined in § 2203 and §§ 20.2203–1 and
§ 20.2056(b)–7(b)(3) of the Estate Tax
Regulations; the trustee of the QTIP trust;
or any other person in actual or construc-
tive possession of the property, for which
the reverse QTIP election will be made.
(2)Decedent. For purposes of this rev-
enue procedure, the term decedent refers to
the individual for whose estate the reverse
QTIP election was not timely made.
(3)Reverse QTIP Election. For pur-
poses of this revenueprocedure, a reverse
QTIP election refers to the affirmative in-
dicationonScheduleRofForm706bythe
executor to treat the decedent as the trans-
feror for GST purposes of the QTIP trust
or property to which the election pertains.
As a result of this election, the decedent’s
GST tax exemption may be allocated to
the QTIP trust or property. This is the
case even though the surviving spouse or
the surviving spouse’s estate will be sub-
ject to the gift or estate tax with respect to
the property before the property passes to
a skip person.
(4)DueDateoftheReverseQTIP
Election. Section 26.2652–2(b) provides
that the reverse QTIP election is made
on the return on which the QTIP election
is made. Section 20.2056(b)–7(b)(4)(i)
provides that the QTIP election under
§ 2056(b)(7) must be made on the last es-
tate tax return filed by the executor on or
before the due date of the return, including
extensions (if any). If a timely return is
not filed, the election must be made on the
first estate tax return filed by the executor
after the due date. Estate tax returns must
be filed within 9 months after the date of
the decedent’s death, not including exten-
sions.
.02Eligibility for Relief. Relief is avail-
able under section 4.02 of this revenue pro-
cedure if, on the date of the filing of the
request described in 4.03 of this revenue
procedure, the following requirements are
met:
(1) A valid QTIP election under
§ 2056(b)(7) was made for the property or
trust on the federal estate tax return filed
for the decedent’s estate;
(2) The reverse QTIP election was not
made on the estate tax return as filed be-
cause the taxpayer relied on the advice and
counsel of a qualified tax professional and
that qualified tax professional failed to ad-
vise the taxpayer of the need, advisability,
or proper method to make a reverse QTIP
election;
(3) The decedent has a sufficient
amount of unused GST exemption,
after the automatic allocation of the
GST exemption under § 2632(e) and
§ 26.2632–1(d)(2), to result in a zero-in-
clusion ratio for the reverse QTIP trust or
property;
(4) The estate is not eligible under
§ 301.9100–2(b) for an automatic 6-month
extension;
(5) The surviving spouse has not made
a lifetime disposition of all or any part of
the qualifying income interest for life in
the QTIP trust or property;
(6) The surviving spouse is alive or no
more than 6 months have passed since the
death of the surviving spouse; and
(7) Relief is requested by the executor
in accordance with section 4.03 of this rev-
enue procedure.
.03Procedural Requirements for Relief.
(1) The estate must file with the In-
ternal Revenue Service a request for an
extension of time to make a reverse QTIP
election. The request should have a cover
sheet requesting relief that states at the top
of the document “REQUEST FOR EX-
TENSION FILED PURSUANT TO REV.
PROC. 2004–47.” The following items
must be attached to the request for relief:
(a) Copies of Parts 1 through 5
and Schedule M of the original estate tax
return filed with the Service;
(b) A properly completed Sched-
ule R as required to make the reverse QTIP
election;
(c) A statement describing why
the reverse QTIP election was not made
on the estate tax return as filed;
(d) A statement affirming that all
of the requirements in section 4.02 of this
revenue procedure have been met;
(e) A dated declaration, signed
by the executor of the estate (as defined
above), that states: “Under penalties of
perjury, I declare that, to the best of my
knowledge and belief, the facts presented
in support of this election are true, correct,
and complete. In addition, all attachments
provided in support of this request for
relief are true and correct copies of the
original documents.”; and
(f) A signed statement from the
qualified tax professional on whom the
taxpayer relied when preparing the origi-
nal estate tax return. The statement should
establish the tax professional’s qualifi-
cations as a qualified tax professional
and must include a dated declaration that
states: “Under penalties of perjury, I de-
clare that, to the best of my knowledge
and belief, the facts presented in support
of this request for relief are true, correct,
and complete.”
(2) Subject to any contrary instruc-
tions in future forms, instructions, or
guidance published by the Service, the
request should be sent to the Cincinnati
Service Center for processing.
(a) If a private delivery service is
used, the request should be sent to:
Internal Revenue Service Center
201 W. Rivercenter Blvd.
Covington, KY 41012;
(b) If a private delivery service is
not used, the request should be sent to:
Internal Revenue Service Center
Cincinnati, OH 45999.
.04Relief for Late Reverse QTIP Elec-
tion. Upon receipt of a request for re-
lief under section 4.03 of this revenue pro-
cedure, the Service Center will determine
whether the requirements for granting ad-
ditional time to file the reverse QTIP elec-
tion under this revenue procedure have
been satisfied and will notify the executor
of the result of this determination.
.05Effect of Relief. An extension of
time to make the reverse QTIP election un-
der § 2652(a)(3) does not extend the time
to make an allocation of any remaining
GST exemption. However, once the elec-
tion is made, the decedent remains, for
GST tax purposes, the transferor of the
August 9, 20041712004–32 I.R.B.

QTIP trust or property. As a result, the
decedent’s remaining GST tax exemption
will be automatically allocated pursuant to
§ 2632(e) and § 26.2632–1(d)(2) to the
QTIP trust or property for which the re-
verse QTIP election was made, based on
the value of the trust or property as finally
determined for federal estate tax purposes.
The relief provided by this revenue proce-
dure does not include or grant permission
to allocate retroactively the decedent’s re-
maining GST exemption or to make a late
severance of a trust included in the gross
estate.
SECTION 5. EFFECTIVE DATE
.01In General. This revenue procedure
is effective August 9, 2004.
.02Transition Rule for Pending Letter
Ruling Requests. If an executor has filed
a request for a letter ruling seeking re-
lief to file a reverse QTIP election under
§ 301.9100–3 and that letter ruling request
is pending in the national office on Au-
gust 9, 2004, the executor may withdraw
the letter ruling request and receive a re-
fund of its user fee if prior to September
23, 2004, the executor notifies the national
office that it will withdraw the letter ruling
request. If the executor does not so notify
the national office by September 23, 2004,
the national office will process letter rul-
ing requests pending on August 9, 2004,
and will retain the user fee paid.
SECTION 6. PAPERWORK
REDUCTION ACT
The collection of information con-
tained in this revenue procedure has been
reviewed and approved by the Office
of Management and Budget in accor-
dance with the Paperwork Reduction Act
(44 U.S.C. 3507) under control number
1545–1898.
An agency may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless the
collection of information displays a valid
OMB control number.
The collection of information in this
revenue procedure is in section 4. This
informationisrequiredtobesubmittedto
the applicable service center in order to ob-
tain an extension of time to make a late re-
verse QTIP election. This information will
be used to determine whether the eligibil-
ity requirements for obtaining relief have
been met. The collection of information is
required to obtain a benefit. The likely re-
spondents are estates and trusts.
The estimated total annual reporting
burden is 54 hours.
The estimated average annual burden
per respondent is 9 hours to complete the
statements requiredunder this revenue
procedure. The estimated number of re-
spondentsis6.
There is no estimated annual frequency
of responses as the reverse QTIP election
is a one-time election.
Books or records relating to a collection
of information must be retained as long
as their contents may become material in
the administration of any internal revenue
law. Generally tax returns and tax return
information are confidential, as required
by 26 U.S.C. 6103.
DRAFTING INFORMATION
The principal author of this revenue
procedure is DeAnn K. Malone of the
Office of the Associate Chief Counsel
(Passthroughs and Special Industries). For
further information regarding this revenue
procedure, contact DeAnn K. Malone at
(202) 622–7830 (not a toll-free call).
26 CFR 601.105: Examination of returns and claims
for refund, credit, or abatement.
(Also §§ 1361, 1362; 301.7701–1, 301.7701–2,
301.7701–3, 301.9100–1, 301.9100–3.)
Rev. Proc. 2004–48
SECTION 1. PURPOSE
This revenue procedure provides a sim-
plified method for taxpayers to request re-
lief for a late S corporation election and a
late corporate classification election which
was intended to be effective on the same
date that the S corporation election was in-
tended to be effective. Generally, this rev-
enue procedure provides that certain eligi-
ble entities may be granted relief if the en-
tity satisfies the requirements of section 4
of this revenue procedure.
SECTION 2. BACKGROUND
.01S Corporation Elections.
(1)In general. Section 1361(a)(1) of
the Internal Revenue Code provides that
the term “S corporation” means, with re-
spect to any taxable year, a small busi-
ness corporation for which an election un-
der § 1362(a) is in effect for that year.
Section 1362(b)(1) provides that a
corporation may make an election to be
treated as an S corporation for any taxable
year (A) at any time during the preceding
taxable year, or (B) at any time during the
taxable year and on or before the 15th day
of the 3rd month of the taxable year.
Section 1362(b)(3) provides that if (A)
a small business corporation makes an
election under § 1362(a) for any taxable
year, and (B) the election is made after the
15th day of the 3rd month of the taxable
year and on or before the 15th day of the
3rd month of the following taxable year,
then the election shall be treated as made
for the following taxable year.
(2)Late S corporation elections. Sec-
tion 1362(b)(5) provides that if (A) an
election under § 1362(a) is made for any
taxable year (determined without regard
to § 1362(b)(3)) after the date prescribed
by § 1362(b) for making the election for
the taxable year or no election is made for
any taxable year, and (B) the Secretary de-
termines that there was reasonable cause
for the failure to timely make the elec-
tion, the Secretary may treat the election
as timely made for the taxable year (and
§ 1362(b)(3) shall not apply).
.02Entity Classification Elections.
(1)In general. Section 301.7701–2(a)
of the Procedure and Administration Reg-
ulations defines a “business entity” as any
entity recognized for federal tax purposes
that is not properly classified as a trust un-
der § 301.7701–4 or otherwise subject to
special treatment under the Code.
Section 301.7701–3(a) provides that a
business entity that is not classified as a
corporation under § 301.7701–2(b)(1), (3),
(4), (5), (6), (7), or (8) (an “eligible entity”)
can elect its classification for federal tax
purposes as provided in this section.
Section 301.7701–3(b)(1) provides
that, except as otherwise provided in para-
graph (b)(3) of that section, unless the
entity elects otherwise, a domestic eligible
entity is (i) a partnership if it has two or
more members; or (ii) disregarded as an
entity separate from its owner if it has a
single owner.
Section 301.7701–3(c)(1) provides that
an eligible entity may elect to be classified
other than as provided in § 301.7701–3(b)
2004–32 I.R.B.172August 9, 2004

by filing Form 8832,Entity Classification
Election, with the service center desig-
nated on Form 8832.
Section 301.7701–3(c)(iii) provides
that the entity classification election will
be effective on the date specified by the
entity on the Form 8832 or on the date
filed if no date is specified on the elec-
tion form. The effective date specified on
Form 8832 cannot be more than 75 days
before or more than 12 months after the
date the election is filed. If an election
specifies a date more than 75 days prior to
the date it was filed, the election will be
effective 75 days prior to the date it was
filed. If an election specifies a date more
than 12 months after the date it was filed,
the election will be effective 12 months
after it is filed.
(2)Late Entity Classification Elections.
Under § 301.9100–1(c) the Commissioner
may grant a reasonable extension of time
under the rules set forth in § 301.9100–2
and 301.9100–3 to make a regulatory elec-
tion, or a statutory election (but no more
than six months except in the case of a tax-
payer who is abroad), under all subtitles of
the Code, except subtitles E, G, H, and I.
Section 301.9100–1(b) defines the term
“regulatory election” as an election whose
due date is prescribed by a regulation pub-
lished in the Federal Register, or a revenue
ruling, revenue procedure, notice, or an-
nouncement publishedin the Internal Rev-
enue Bulletin.
Section 301.9100–3 provides that re-
quests for relief under that section will be
granted when the taxpayer provides evi-
dence to establish to the satisfaction of the
Commissioner that the taxpayer acted rea-
sonably and in good faith, and that grant-
ing relief will not prejudice the interests of
the Government.
Rev. Proc. 2002–59, 2002–2 C.B. 615,
provides relief for an entity newly formed
under local law that requests relief for a
late initial classification election filed by
the due date of the entity’s first federal
income tax return (excluding extensions).
Rev. Proc. 2003–43, 2003–1 C.B. 998
provides a simplified method for taxpay-
ers to request relief for late S corporation
elections where the entity fails to qualify as
an S corporation solely because of the fail-
ure to file the election timely with the ap-
plicable service center. Under the revenue
procedure, certain eligible entities may be
granted relief for failing to file these elec-
tions in a timely manner if the request for
relief is filed within 24 months of the due
date of the election.
Under § 301.7701–3T(c)(1)(v)(C), an
eligible entity that timely elects to be an
S corporation under section 1362(a)(1)
is treated as also having made an elec-
tion to be classified as an association,
provided that (as of the effective date
of the election under section 1362(a)(1))
the entity meets all other requirements
to qualify as a small business corpo-
ration under section 1361(b). Section
301.7701–3T(c)(1)(v)(C) further provides
that the deemed election to be classified
as an association generally is effective as
of the effective date of the S corporation
election and will remain in effect until the
entity makes another entity classification
election under § 301.7701–3(c)(1)(i).
SECTION 3. SCOPE
.01In General. An eligible entity that
seeks to be classified as a subchapter S cor-
poration must elect to be classified as an
association under § 301.7701–3(c)(1)(i)
by filing Form 8832 and must elect to
be an S corporation under § 1362(a) by
filing Form 2553,Election by a Small
Business Corporation. In many situa-
tions, an entity may timely file Form
2553 but fail to file the Form 8832. Sec-
tion 301.7701–3T(c)(1)(v)(C) applies to
these situations and deems an eligible
entity that timely files a Form 2553 to
also have filed a Form 8832. In other
situations, an eligible entity fails to file
a timely Form 2553. In these situations,
§ 301.7701–3T(c)(1)(v)(C) does not apply
andtheentitywouldberequiredtoob-
tain relief in a letter ruling. This revenue
procedure provides a simplified method
for requesting relief for those situations
not covered by § 301.7701–3T, provided
that the requirements of sections 4.01 and
4.02 of this revenue procedure are satis-
fied. The method provided in this revenue
procedure is in lieu of the letter ruling
process ordinarily used to obtain relief
for late elections under §§ 1362(b)(5),
301.9100–1, and 301.9100–3. Accord-
ingly, user fees do not apply to corrective
action under this revenue procedure.
.02Relief if this Revenue Procedure is
not Applicable. Anentitythatdoesnot
meet the requirements for relief or is de-
nied relief under this revenue procedure
may seek relief by requesting a letter rul-
ing. The procedural requirements for re-
questing a letter ruling are described in
Rev. Proc. 2004–1, 2004–1 I.R.B. 1, or
its successors.
SECTION 4. RELIEF FOR LATE S
CORPORATION ELECTION AND
LATE CORPORATE CLASSIFICATION
ELECTION
.01Eligibility for Relief.Anentitymay
request relief under this revenue procedure
if the following requirements are met:
(1) The entity is an eligible entity as
defined in § 301.7701–3(a);
(2) The entity intended to be classified
as a corporation as of the intended effective
date of the S corporation status;
(3) The entity fails to qualify as
a corporation solely because Form
8832 was not timely filed under
§ 301.7701–3(c)(1)(i), or Form 8832
was not deemed to have been filed under
§ 301.7701–3T(c)(1)(v)(C);
(4) In addition to section 4.01(3) of
this section, the entity fails to qualify as
an S corporation on the intended effective
date of the S corporation status solely be-
cause the S corporation election was not
filed timely pursuant to § 1362(b); and
(5) The entity has reasonable cause for
its failure to file timely the S corporation
election and the entity classification elec-
tion.
.02Procedural Requirements for Relief.
Within 6 months after the due date for the
tax return, excluding extensions, for the
firstyeartheentityintendedtobeanScor-
poration), the corporation must file a prop-
erly completed Form 2553 with the appli-
cable service center. The Form 2553 must
state at the top of the document “FILED
PURSUANT TO REV. PROC. 2004–48.”
Attached to the Form 2553 must be a state-
ment explaining the reason for the failure
to file timely the S corporation election and
a statement explaining the reason for the
failure to file timely the entity classifica-
tion election.
.03Relief for Late S Corporation Elec-
tion and Relief for a Late Corporate
Classification Election. Upon receipt of
a completed application requesting relief
under section 4 of this revenue procedure,
the Service will determine whether the
requirements for granting additional time
to file the elections have been satisfied and
August 9, 20041732004–32 I.R.B.

will notify the entity of the result of this
determination. An entity receiving relief
under this revenue procedure is treated as
having made an election to be classified
as an association taxable as a corporation
under § 301.7701–3(c) as of the effective
date of the S corporation election.
SECTION 5. EFFECTIVE DATE
This revenue procedure is effective July
20, 2004. Any entity that meets the re-
quirements of this revenue procedure as of
July 20, 2004, may seek relief under this
revenue procedure. This revenue proce-
dure applies to requests pending with the
Service on July 20, 2004.
SECTION 6. PAPERWORK
REDUCTION ACT
The collection of information con-
tained in this revenue procedure has been
reviewed and approved by the Office
of Management and Budget in accor-
dance with the Paperwork Reduction Act
(44 U.S.C. 3507) under control number
1545–1548.
An agency may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless the
collection of information displays a valid
OMB control number.
The collections of information in this
revenue procedure are in section 4.02.
This information is required to be sub-
mitted to the applicable service center in
order to obtain relief for a late Election
Under Subchapter S. This information will
be used to determine whether the eligibil-
ity requirements for obtaining relief have
been met. The collection of information is
required to obtain a benefit. The likely re-
spondents are business or other for-profit
institutions.
The estimated total annual reporting
burden is 25,000 hours.
The estimated annual burden per re-
spondent varies from .5 hours to 1 hour, de-
pending on individual circumstances, with
an estimated average burden of 1 hour to
complete the statement. The estimated
number of respondents is 25,000.
The estimated annual frequency of re-
sponses is on occasion.
Books or records relating to a collection
of information must be retained as long
as their contents may become material in
the administration of any internal revenue
law. Generally tax returns and tax return
information are confidential, as required
by 26 U.S.C. 6103.
DRAFTING INFORMATION
The principal author of this rev-
enue procedure is Rebekah A. Myers
of the Office of Associate Chief Counsel
(Passthroughs and Special Industries). For
further information regarding this revenue
procedure, contact Ms. Myers at (202)
622–3050 (not a toll-free call).
2004–32 I.R.B.174August 9, 2004

Part IV. Items of General Interest
Notice of Proposed
Rulemaking and Notice of
Public Hearing
Section 1045 Application to
Partnerships
REG–150562–03
AGENCY: Internal Revenue Service
(IRS), Treasury.
ACTION: Notice of proposed rulemaking
and notice of public hearing.
SUMMARY: This document contains pro-
posed regulations relating to the applica-
tion of section 1045 of the Internal Rev-
enue Code (Code) to partnerships and their
partners. These regulations provide rules
regarding the deferral of gain on a part-
nership’s sale of qualified small business
stock and deferral of gain on a partner’s
sale of qualified small business stock dis-
tributed by a partnership. The proposed
regulations affect partnerships that invest
in qualified small business stock and their
partners. This document also provides no-
tice of a public hearing on the proposed
regulations.
DATES: Written or electronic comments
and requests to speak and outlines of top-
ics to be discussed at the public hearing
scheduled for Tuesday, November 2, 2004,
at 10 a.m. must be received by October 11,
2004.
ADDRESSES: Send submissions to:
CC:PA:LPD:PR(REG–150562–03),
Room 5203, Internal Revenue Service,
P.O. Box 7604, Ben Franklin Station,
Washington, 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–150562–03),
Courier’s Desk, Internal Revenue Service,
1111 Constitution Avenue, NW, Wash-
ington DC, or sent electronically, via the
IRS Internet site at:www.irs.gov/regs
or via the Federal eRulemaking Por-
tal atwww.regulations.gov(IRS and
REG–150562–03). The public hearing
will be held in the IRS Auditorium, Inter-
nal Revenue Building, 1111 Constitution
Avenue, NW, Washington, DC.
FOR FURTHER INFORMATION
CONTACT: Concerning the proposed reg-
ulations, Charlotte Chyr, (202) 622–3070,
or Jian H. Grant, (202) 622–3050; con-
cerning submissions, the hearing, and/or
placement on the building access list to
attend the hearing, Sonya Cruse, (202)
622–4693 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained
in this notice of proposed rulemaking has
been submitted to the Office of Manage-
ment and Budget for review in accordance
with the Paperwork Reduction Act of 1995
(44 U.S.C. 3507(d)). Comments on the
collection of information should be sent to
theOffice of Management and Budget,
Attn: Desk Officer for the Department
of the Treasury, Office of Information
and Regulatory Affairs, Washington, DC
20503, with copies to theInternal Rev-
enue Service, Attn: IRS Reports Clear-
ance Officer, SE:W:CAR:MP:T:T:SP
Washington, DC 20224. Comments on
the collection of information should be re-
ceived no later than September 13, 2004.
Comments are specifically requested con-
cerning:
Whether the proposed collection of in-
formation is necessary for the proper per-
formance of the functions of the Internal
Revenue Service, including whether the
information will have practical utility;
The accuracy of the estimated burden
associated with the proposed collection of
information (see below);
How the quality, utility, and clarity of
the information to be collected may be en-
hanced;
How the burden of complying with the
proposed collection of information can be
minimized, including through the appli-
cation of automated collection techniques
or other forms of information technology;
and
Estimates of capital or start-up costs
and costs of operation, maintenance, and
purchase of services to provide informa-
tion.
The collection of information
in this proposed regulation is in
§1.1045–1(b)(4)(ii). This information
is required to inform the IRS of partner-
ships and partners making the section 1045
election. The collection of information is
required to obtain a benefit, that is, to elect
to apply section 1045 treatment for qual-
ified small business stock that is sold by
the partnership. This information will be
used by the partner to permit the partner
to defer its allocable share of gain on the
partnership’s sale of qualified small busi-
ness stock and by partnerships to make
necessary adjustments to the basis of re-
placement qualified small business stock.
The likely respondents are individuals,
businesses or other for-profit institutions,
and small businesses or organizations.
The estimated burden for the collection
of information in §1.1045–1(b)(4)(ii) is as
follows:
Estimated total annual reporting bur-
den: 1,000 hours.
The estimated annual burden per re-
spondent varies from 45 to 75 minutes, de-
pending on individual circumstances, with
an estimated average of 1 hour.
Estimated number of respondents:
1000
Estimated annual frequency of re-
sponses: On occasion
An agency may not conduct or sponsor,
and a person is not required to respond to, a
collection of information unless the collec-
tion of information displays a valid OMB
control number assigned by the Office of
Management and Budget.
Books or records relating to a collection
of information must be retained as long
as their contents may become material in
the administration of any internal revenue
law. Generally, tax returns and tax return
information are confidential, as required
by 26 U.S.C. 6103.
Background
Section 1045 and section 1202 both
provide for special treatment of gain on
the sale of QSB stock held by non-corpo-
rate taxpayers. Under section 1202 of the
Internal Revenue Code (Code), a taxpayer
other than a corporation (a non-corporate
taxpayer) excludes 50 percent of gain on
the sale of qualified small business (QSB)
stock(asdefinedinsection1202(c))from
gross income if the taxpayer holds the
stock for more than five years. Section
August 9, 20041752004–32 I.R.B.

1045 permits a non-corporate taxpayer
that holds QSB stock (relinquished QSB
stock) for more than six months and sells
it after August 5, 1997, to elect to defer
recognizinggainonthesale. Toqualify
for such deferral, the taxpayer must pur-
chase QSB stock (replacement QSB stock)
within a 60-day period beginning on the
date of the sale of the relinquished QSB
stock. Any gain not recognized reduces
the cost basis of the replacement QSB
stock. Section 1045(b)(3). The taxpayer
recognizes gain to the extent the amount
realized on the sale of the relinquished
QSB stock exceeds the cost basis of the
replacement QSB stock. Section 1045(a).
Section 1045 does not apply to any gain
treated as ordinary income.Id.
Section 6005(f)(2) of the Internal Rev-
enue Service Restructuring and Reform
Act of 1998, Public Law 105–206 (112
Stat. 6005(f)(2)), July 22, 1998, (the 1998
Act) added section 1045(b)(5). That sec-
tion provides that rules similar to the rules
in section 1202(f), (g), (h), (i), (j), and
(k)applyforpurposesofsection1045.
The legislative history accompanying the
1998 Act provides that the benefit of de-
ferred recognition of gain with respect
to the sale of QSB stock by a partner-
ship will flow through to a partner who is
not a corporation if the partner held the
partnership interest at all times the partner-
ship held the QSB stock. See H.R. Conf.
Rep. 105–599, 105
th
Cong., 2d Sess. 339
(1998). The legislative history further pro-
vides that there are no limitations on the
types of partners that a partnership may
have in order for the benefits of section
1045 to apply.Id.at340.
Under section 1202(g), a non-corpo-
rate taxpayer applies section 1202 to the
taxpayer’s share of a passthrough entity’s
gain from the sale of QSB stock if two re-
quirements are met. First, the passthrough
entity must have held the QSB stock
for more than five years. Second, the
taxpayer must have held an interest in
the passthrough entity on the date the
passthrough entity acquired the QSB stock
and at all times thereafter before the dis-
position of the stock. For purposes of
section 1202, passthrough entities include
partnerships, S corporations, regulated in-
vestment companies (RICs), and common
trust funds. Section 1202(g)(4).
QSB stock must generally be acquired
by the taxpayer at its original issue. How-
ever, section 1202(h) provides that, in the
case of certain transfers of QSB stock,
the transferee is treated as having acquired
such stock in the same manner as the trans-
feror and as having held such stock during
any continuous period immediately pre-
ceding the transferduring which it was
held by the transferor. Section 1202(h) ap-
plies to transfers from a partnership to a
partner of stock with respect to which re-
quirements similar to the requirements of
section 1202(g) are met at the time of the
transfer (without regard to the 5-year hold-
ing period requirement) as well as to trans-
fers by gift or at death.
The committee reports underlying the
enactment of section 1202 explain that, un-
der section 1202(h),
[q]ualified small business stock ... may
be distributed by a partnership to one or
more of its partners, as long as (1) all
eligibility requirements with respect to
qualified small business stock are met,
and (2) the partner held its interest in
the partnership on the date the partner-
ship acquired the stock and at all times
thereafter and before the disposition of
the stock. In addition, a partner can-
not treat stock distributed by a partner-
ship as qualified small business stock to
the extent that the partner’s share of the
stock distributed by the partnership ex-
ceeded the partner’s interest in the part-
nership at the time the partnership ac-
quired the stock.
H. R. Rep. No. 103–111, 103d Cong., lst
Sess. 602 (1993).
The committee report goes on to ex-
plain that transferees in cases not de-
scribed in section 1202(h) are not eligible
for partial exclusion of gain under section
1202(a). Thus, for example, if qualified
small business stock is transferred to a
partnership and the partnership disposes
of the stock, any gain from the disposition
will not be eligible for the exclusion.Id.
Rev. Proc. 98–48, 1998–2 C.B. 367,
generally provides procedures for tax-
payers (including passthrough entities
and individuals holding interests in a
passthrough entity) to elect to apply sec-
tion 1045. The background section of the
revenue procedure explains that, under
section 1045(b)(5), a passthrough entity
that sells QSB stock held for more than 6
months may make a section 1045 election
if the entity purchases replacement QSB
stock during the 60-day period beginning
on the date of the sale. Section 2.03, Rev.
Proc. 98–48. The benefit of the section
1045 election flows through to a non-cor-
porate taxpayer that held an interest in the
passthrough entity for as long as the en-
tity held the QSB stock. The background
section of the revenue procedure also ex-
plains that, under section 1045(b)(5), if a
passthrough entity sells QSB stock held
for more than six months, a non-corporate
taxpayer who has held an interest in the
entity during the period in which the entity
held the QSB stock and who purchases
replacement QSB stock during the 60-day
statutory period may elect to apply sec-
tion 1045 to the non-corporate taxpayer’s
shareofanygainonthesalethattheentity
does not defer under section 1045. Section
2.03, Rev. Proc. 98–48.
Since Rev. Proc. 98–48 was published,
the IRS and Treasury Department have re-
ceived inquiries regarding the application
of section 1045 to partnerships and their
partners. In response to these inquiries,
the proposed regulations provide rules re-
lating to sales and purchases of interests in
a partnership that owns QSB stock, part-
nership dispositions of QSB stock, partner-
ship distributions of QSB stock, and con-
tributions of QSB stock to a partnership.
Partners and partnerships wishing to elect
section 1045 must continue to follow the
procedures of Rev. Proc. 98–48 for rules
regarding the time and manner for making
the election, the scope of the election, and
revocation of the election.
Explanation of Provisions
A.General Rules and Definitions
1.QSB stock
Section 1045(b)(1) provides that the
termQSB stockhas the same meaning
given such term by section 1202(c). Sec-
tion 1202(c) provides that the termQSB
stockis any stock in a C corporation that
is originally issued after the date of the
enactment of the Revenue Reconciliation
Act of 1993, if (A) as of the date of is-
suance, the corporation is a qualified small
business, and (B) except as provided in
section 1202(f) and (h), the stock is ac-
quired by the taxpayer at its original issue
in exchange for money or other property
2004–32 I.R.B.176August 9, 2004

(not including stock), or as compensation
for services provided to the corporation.
Some taxpayers have asked if a part-
ner may treat a sale of a partnership inter-
est as a sale of QSB stock or an acquisi-
tion of a partnership interest as an acqui-
sition of QSB stock. Sections 1045 and
1202 do not adopt a look-though approach
to the sale and acquisition of partnership
interests. Under the plain language of sec-
tion 1202(c), an investment in a partner-
ship that holds or purchases QSB stock is
not treated as an investment in QSB stock.
This plain language interpretation is fur-
ther supported by the structure of sections
1045 and 1202. Congress clearly contem-
plated partnership transactions when en-
acting section 1202, as several of its pro-
visions address such transactions. In light
of this, Congress’s failure to provide for
section 1202(a) treatment for acquisitions
and dispositions of partnership interests
appears to have been intentional. Such
a decision by Congress would be consis-
tent with the approach taken by section
1202(g). That section allows partners to
qualify for section 1202(a) treatment with
respect to gain recognized by reason of
holding a partnership interest only if the
partner held the interest in the partnership
on the date of the partnership’s acquisition
of QSB stock and at all times thereafter be-
fore the disposition of the stock by the part-
nership. If a partner were to sell its part-
nership interest while the partnership still
held QSB stock, then the partner would
not have held the partnership interest from
the date of the acquisition of that stock un-
til the date of the disposition of the stock
by the partnership. For these reasons, the
proposed regulations provide that the term
QSB stockdoes not include an interest in
a partnership that holds or purchases QSB
stock.
2.Eligible partner
Under the proposed regulations, only
an eligible partner may defer gain recog-
nized by a partnership on the sale of QSB
stock. Consistent with section 1202(g) and
(h), the proposed regulations define an el-
igible partner as a non-corporate partner
who held an interest in the partnership at
all times that the partnership held the QSB
stock or a non-corporate partner who ac-
quired an interest in a partnership from an
existing eligible partner by gift or death.
The proposed regulations provide spe-
cial rules for determining eligible part-
ners if a partnership (upper-tier partner-
ship) holds an interest in a partnership
(lower-tier partnership) that holds QSB
stock. The proposed rules disregard the
upper-tier partnership’s ownership of the
lower-tier partnership and treat each part-
ner of the upper-tier partnership as owning
the interest in the lower-tier partnership
directly. A partner of the upper-tier part-
nership is treated as owning an interest
in the lower-tier partnership during the
period in which both the partner of the
upper-tier partnership held an interest
in the upper-tier partnership and the up-
per-tier partnership held an interest in the
lower-tier partnership.
The IRS and the Treasury Department
are concerned that, although the current
look-through treatment for tiered partner-
ships may be the simplest approach, the
application of the proposed rules presents
the following potential problems: (1) the
proposed rules prohibit an upper-tier part-
nership from making a section 1045 elec-
tion at the partnership level; (2) the eligible
partners of the upper-tier partnership may
not have the necessary information to ben-
efit from the proposed rules; and (3) noti-
fication from the lower-tier partnership to
the upper-tier partnerships and their part-
ners and vice versa may be difficult if mul-
tiple tiers of partnerships are involved. Ac-
cordingly, the IRS and Treasury Depart-
ment request comments specifically on the
application of the proposed rules with re-
spect to tiered partnerships.
3.Nonrecognition limitation
Under the proposed regulations, the
amount of gain that an eligible partner
may defer under section 1045 (whether
the election to apply section 1045 is made
at the partnership or the partner level) may
not exceed: (A) the partner’s smallest
percentage interest in the partnership’s
income, gain, or loss with respect to the
relinquished QSB stock, multiplied by (B)
the partnership’s realized gain from the
sale of such stock. For this purpose, the
partnership’s realized gain from the sale
of the QSB stock is determined without
regard to any basis adjustment under sec-
tion 734(b) or 743(b). This rule follows
section 1202(g)(2) and (3) by ensuring
that the partner can defer recognition of
only the gain that relates to the partner’s
continuous economic interest in the relin-
quished QSB stock.
B.Partnership Election Under Section
1045
1.General rule
Consistent with Rev. Proc. 98–48, the
proposed regulations allow a partnership
to elect to apply section 1045 if the part-
nership held QSB stock for more than six
months, sold such QSB stock, and pur-
chased other QSB stock (replacement QSB
stock) within 60 days of the sale. If the
partnership makes an election under sec-
tion 1045, all eligible partners of the part-
nership must defer their distributive shares
of the partnership section 1045 gain from
the partnership’s sale of the QSB stock.
No separate election is required of the part-
ners. Partnership section 1045 gain equals
the partnership’s gain from the sale of the
QSB stock reduced by the greater of: (A)
the gain from the sale of the QSB stock
that is treated as ordinary income, or (B)
the excess of the amount realized by the
partnership on the sale over the cost of any
replacement QSB stock purchased by the
partnership during the 60-day period be-
ginning on the date of the sale.
2.Election procedures and notification
The proposed regulations require the
partnershiptomakethesection1045elec-
tion on the partnership’s timely filed re-
turn (including extensions) for the taxable
year during which the partnership sells the
QSB stock. In addition, the partnership
must follow the procedures of Rev. Proc.
98–48.
When a partnership makes the elec-
tion, the proposed regulations require the
partnership to notify all partners that it
has made the election, and separately state
each partner’s distributive share of the
partnership section 1045 gain under sec-
tion 702. Each partner must determine if
it is an eligible partner and report the part-
ner’s distributive share of gain, including
gain not recognized, on Schedule D of the
partner’s federal income tax return.
August 9, 20041772004–32 I.R.B.

C.Partner Election Under Section 1045
1.General rule
Also consistent with Rev. Proc. 98–48,
the proposed regulations allow an eligi-
ble partner to make a section 1045 elec-
tion with respect to the partner’s share of
gain from the partnership’s sale of QSB
stock if the partnership does not make a
section 1045 election or purchase replace-
ment QSB stock within the statutory time
period. The election may be made if the
partnership either replaces none of the re-
linquished QSB stock or replaces some but
not all of the relinquished QSB stock. For
example, relinquished QSB stock can be
partially replaced by the partnership and
partially replaced by the partner if section
1045 elections are made by both the part-
nership and the partner. If a partner makes
a section 1045 election, the partner recog-
nizes its distributive share of the gain from
the sale of the relinquished QSB stock only
to the extent of the greater of: (1) the gain
that is treated as ordinary income, or (2) the
excess of the partner’s share of the amount
realized by the partnership on the sale of
the QSB stock over the cost of any replace-
ment QSB stock purchased by the partner
during the 60-day statutory period.
A partnership that has sold QSB stock
should promptly notify its partners when
it does not intend to make a section 1045
election with respect to the sale. Prompt
notification will allow partners who in-
tend to make separate section 1045 elec-
tions time to purchase replacement QSB
stockwithin60daysofthesaleofthere-
linquished QSB stockand to make timely
section 1045 elections. However, the pro-
posed regulations do not impose a require-
ment on partnerships to provide such no-
tification. The IRS and Treasury Depart-
ment believe that it is more appropriate
for the partners to decide (for example, in
the partnership agreement) whether, and to
what extent, the partnership must provide
such notification.
2.Election procedures
The proposed regulations provide that
a partner making an election under section
1045 with respect to its distributive share
of gain on the partnership’s sale of QSB
stockmustdosoonthepartner’stimely
filed federal income tax return (including
extensions) for the taxable year in which
such gain is taken into account. In ad-
dition, the partner must follow the proce-
dures of Rev. Proc. 98–48.
D.Basis Adjustments
The proposed regulations provide rules
regarding adjustments to the eligible part-
ner’s basis in the partnership interest and
the partnership’s basis in the replacement
QSB stock. Under these rules, if the part-
nership makes a section 1045 election,
then the eligible partner may not increase
its outside basis by the amount of gain
that is not recognized under section 1045.
In addition, the partnership is required to
reduce its basis in the replacement QSB
stock by the amount of gain that is not
recognized by its partners. The adjust-
ment to the partnership’s inside basis in
the replacement QSB stock is similar to
a basis adjustment under section 743(b).
These rules are necessary to preserve (in
the replacement QSB stock and the part-
nership interest) the deferred gain on the
sale of the relinquished QSB stock.
As explained above, a partner’s basis in
a partnership interest is not increased by
any gain that is deferred by reason of a
partnershipsection 1045 election. In con-
trast, a partner’s basis in a partnership in-
terest is increased by any gain that is de-
ferred by reason of apartnersection 1045
election. A partner must reduce the basis
of any replacement QSB stock the partner
purchases by the amount of gain that is not
recognized by reason of apartnersection
1045 election.
To allow the partnership to make the ap-
propriate adjustments to the basis of the re-
placement QSB stock, the proposed reg-
ulations require any partner who recog-
nizes all or part of the partner’s distribu-
tive share of partnership section 1045 gain
to notify the partnership of the amount of
the partnership section 1045 gain that was
recognized. In the absence of notifica-
tion, the partnership must presume that the
partner deferred recognition of the partner-
ship section 1045 gain and decrease its ba-
sis in the replacement QSB stock by the
partner’s distributive share of partnership
section 1045 gain until such time as the
partner provides notification of the amount
recognized by the partner. However, if the
partnership knows that one of its partners
was, during any period in which the part-
nership held the QSB stock, classified as a
corporation for federal tax purposes, then
the partnership may presume that the part-
ner did not defer recognition of the partner-
ship section 1045 gain even in the absence
of a notification by the partner.
E.Distribution of QSB Stock
Consistent with section 1202(h) and the
legislative history underlying that section,
the proposed regulations provide that, if
a partnership distributes QSB stock to an
eligible partner, then the eligible partner
is treated as having acquired such stock
in the same manner as the partnership and
having held such stock during any con-
tinuous period immediately preceding the
distribution during which it was held by
the partnership. However, the amount of
gain on the sale of such distributed QSB
stock that the partner can defer cannot
exceed the distribution nonrecognition
limitation. For thispurpose, the distribu-
tion nonrecognition limitation is equal to
the partner’s section 1045 amount real-
ized, reduced by the partner’s section 1045
adjusted basis. The proposed regulations
provide rules for determining the part-
ner’s section 1045 amount realized and
the partner’s section 1045 adjusted basis
in the case of a liquidating distribution,
a nonliquidating distribution of all of the
QSB stock (of the same type), and other
nonliquidating distributions.
These rules follow the legislative his-
tory’s directive that apartner may not treat
stock distributed by a partnership as QSB
stock to the extent that the partner’s share
of the distributed stock exceeds the part-
ner’s interest in the partnership at the time
the partnership acquired the stock. Un-
der the proposed regulations, the amount
of gain that a distributee partner may defer
on the sale of distributed QSB stock will be
no more than (but in the case of QSB stock
received in certain nonliquidating distribu-
tions may be less than) the amount of gain
that the partner would have been able to
defer in the absence of the distribution.
The IRS and Treasury Department
considered an alternative approach for
determining the distribution nonrecog-
nition limitation for sales of QSB stock
following a nonliquidating distribution to
a partner. Under this alternative approach,
the distribution nonrecognition limitation
would be determined by reference to the
2004–32 I.R.B.178August 9, 2004

maximum amount of gain that the part-
ner would have been able to defer if the
partnership had not distributed any QSB
stock of the type sold, but instead had sold
all of that QSB stock for a per share price
equal to the per share price received on the
actual sale of the distributed QSB stock by
the partner. Due to the complexity of this
alternative approach, it was rejected and is
not included in the proposed regulations.
The IRS and Treasury Department request
comments on the extent to which refine-
ments of the distribution nonrecognition
limitation applicable to sales of distributed
QSB stock are appropriate.
F.Contribution of QSB Stock
The proposed regulations provide that a
contribution of QSB stock to a partnership
in a transaction to which section 721(a) ap-
plies does not cause the contributing part-
ner to recognize any gain that was previ-
ously deferred under section 1045. How-
ever, the QSB stock, once contributed, is
no longer QSB stock in the hands of the
partnership because the partnership has not
acquired the stock at original issue within
the meaning of section 1202(c)(1)(B). See
also H.R. Rep. No. 103–111, 103d Cong.,
1st Sess. 602 (1993).
G.Proposed Effective Date
The regulations are proposed to apply to
sales of QSB stock on or after the date final
regulations are published in theFederal
Register.
Effect on Other Documents
The following publication will be am-
plified for partners and partnerships begin-
ning on or after the date these regulations
are published as final regulations in the
Federal Register:
Rev. Proc. 98–48, 1998–2 C.B. 367.
Special Analyses
It has been determined that this notice
of proposed rulemaking is not a signifi-
cant regulatory action as defined in Exec-
utive Order 12866. Therefore, a regula-
tory assessment is not required. It also has
been determined thatsection 553(b) of the
Administrative Procedure Act (5 U.S.C.
chapter 5) does not apply to these regu-
lations. It is hereby certified that the col-
lection of information in these regulations
will not have a significant economic im-
pact on a substantial number of small en-
tities. This certification is based upon the
fact that QSB stock is not held by a sub-
stantial number of small entities and that
the time required to make the election is
estimated to average 1 hour. Therefore, a
Regulatory Flexibility Analysis under the
Regulatory Flexibility Act (5 U.S.C. chap-
ter 6) is not required. Pursuant to section
7805(f) of the 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 Treasury Department request
comments on the clarity of the proposed
rules and how they can be made easier to
understand. All comments will be avail-
able for public inspection and copying.
A public hearing has been scheduled for
Tuesday, November 2, 2004, at 10 a.m.
in the IRS Auditorium, Internal Revenue
Building, 1111 Constitution Avenue, NW,
Washington, D.C. Due to building security
procedures, visitors must enter at the Con-
stitution Avenue entrance. In addition, all
visitors must presentphoto identification
to enter the building. Because of access
restrictions, visitors will not be admitted
beyond the immediate entrance area more
than 15 minutes before the hearing starts.
For information about having your name
placed on the building access list to attend
the hearing, see the “FOR FURTHER IN-
FORMATION CONTACT” section of this
preamble.
The rules of 26 CFR 601.601(a)(3) ap-
ply to the hearing. Persons who wish to
present oral comments at the hearing must
submit written or electronic comments and
an outline of the topics to be discussed and
the time to be devoted to each topic (signed
original and eight (8) copies) by October
11, 2004. A period of 10 minutes will be
allotted to each person for making com-
ments. An agenda showing the scheduling
of the speakers will be prepared after the
deadline for receiving outlines has passed.
Copies of the agenda will be available free
of charge at the hearing.
Drafting Information
The principal authors of these regula-
tions are Charlotte Chyr and Jian H. Grant,
Office of the Associate Chief Counsel
(Passthroughs and Special Industries).
However, other personnel from the IRS
and Treasury Department participated in
their development.
*****
Proposed Amendments to the
Regulations
Accordingly, 26 CFR part 1 is proposed
to be amended as follows:
PART 1—INCOME TAXES
Paragraph 1. The authority citation for
part 1 continues to read, in part, as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.1045–1 is added to
read as follows:
§1.1045–1 Application to partnerships.
(a)General rules—(1)Definition of
QSB stock—In general. For purposes of
section 1045 and this section,qualified
small business stock(QSB stock) has the
meaning provided in section 1202(c). For
purposes of section 1045 and this section,
the termQSB stockdoes not include an
interest in a partnership that purchases or
holds QSB stock. (For further guidance,
seeExample 1andExample 2of paragraph
(g)ofthissection.)
(2)Eligible partner—(i)In general.
For purposes of this section, an eligible
partner with respect to QSB stock is a tax-
payer other than a corporation who holds
an interest in a partnership on the date the
partnership acquires the QSB stock and at
all times thereafter before the partnership
sells or distributes the QSB stock.
(ii)Acquisition by gift or at death.For
purposes of this section, a taxpayer who
acquires from an eligible partner by gift
or at death an interest in a partnership that
holds QSB stock is treated as having held
the acquired interest in the partnership dur-
ing the period the eligible partner held the
interest in the partnership. (For further
guidance, seeExample 6of paragraph (g)
of this section.)
August 9, 20041792004–32 I.R.B.

(iii)Tiered partnership—(A)Gener-
ally. If a partnership (upper-tier partner-
ship), holds an interest in another part-
nership (lower-tier partnership) that holds
QSB stock, then, for purposes of this para-
graph (a)(2), the upper-tier partnership’s
ownership of the lower-tier partnership is
ignored and each partner of the upper-tier
partnership is treated as owning the inter-
est in the lower-tier partnership directly.
The partner of the upper-tier partnership
is treated as owning the interest in the
lower-tier partnership during the period in
which both—
(1) The partner of the upper-tier part-
nership held an interest in the upper-tier
partnership; and
(2) The upper-tier partnership held an
interest in the lower-tier partnership. (For
further guidance, seeExample 3of para-
graph (g) of this section.)
(B)Multiple tiers of partnership.Prin-
ciples similar to those described in para-
graph (a)(2)(iii)(A) of this section apply
where a taxpayer holds the interest in the
lower-tier partnership through multiple
tiers of partnerships.
(3)Nonrecognition limitation—(i)In
general. For purposes of this section,
the amount of gain that an eligible part-
ner does not recognize under paragraphs
(b)(1) and (c)(1) of this section cannot
exceed the nonrecognition limitation. For
this purpose, the nonrecognition limitation
is equal to the product of—
(A) The partnership’s realized gain
from the sale of the QSB stock, determined
without regard to any basis adjustment un-
der section 734(b) or 743(b) (other than
basis adjustments described in paragraph
(b)(3)(ii) of this section); and
(B) The eligible partner’s smallest per-
centage interest in the partnership’s in-
come, gain, or loss with respect to the QSB
stock that was sold. (For further guidance,
seeExample 4of paragraph (g) of this sec-
tion.)
(ii)Eligible partner’s smallest percent-
age interest. In determining an eligible
partner’s smallest percentage interest in
the partnership’s income, gain, or loss with
respect to QSB stock, reductions in the
partner’s interest that occur solely as a re-
sult of a distribution of QSB stock to the
partner are not taken into account.
(b)Partnership election—(1)General
rule. A partnership that holds QSB stock
for more than six months, sells such QSB
stock, and purchases other QSB stock (re-
placement QSB stock), within 60 days be-
ginning on the date of the sale may elect to
apply section 1045. For purposes of this
paragraph (b)(1), a purchase of replace-
ment QSB stock by a partner is not treated
as a purchase of replacement QSB stock
by the partnership. If the partnership elects
to apply section 1045, then, subject to the
provisions of paragraph (a)(3) of this sec-
tion, each eligible partner does not rec-
ognize the partner’s distributive share of
any partnership section 1045 gain. For
this purpose, partnership section 1045 gain
equals the partnership’s gain from the sale
of the QSB stock reduced by the greater
of—
(i) The amount of the gain from the sale
of the QSB stock that is treated as ordinary
income; or
(ii) The excess of the amount realized
by the partnership on the sale over the cost
of any replacement QSB stock purchased
by the partnership during the 60-day pe-
riod beginning on the date of the sale (ex-
cluding the cost of any replacement QSB
stock that is otherwise taken into account
under section 1045).
(2)Partner’s share of partnership sec-
tion 1045 gain. A partnership must allo-
cate partnership section 1045 gain to the
partners in the same proportion as the part-
nership’s entire gain from the sale of the
QSB stock is allocated to the partners. For
this purpose, the partnership’s gain from
the sale of QSB stock and the partner’s dis-
tributive share of that gain are determined
without regard to basis adjustments under
section 743(b) and paragraph (b)(3)(ii) of
this section.
(3)Basis adjustments—(i)Partner’s in-
terest in a partnership. Notwithstanding
section 705(a)(1), the adjusted basis of a
partner’s interest in a partnership is not in-
creased by gain from a partnership’s sale
of QSB stock that is not recognized by the
partner under paragraph (b)(1) of this sec-
tion.
(ii)Partnership’s replacement QSB
stock. The basis of a partnership’s re-
placement QSB stock is reduced (in the
order acquired) by the amount of gain
from the partnership’s sale of QSB stock
that is not recognized by an eligible part-
ner. The basis adjustment with respect to
any amount described in this paragraph
(b)(3)(ii) constitutes an adjustment to the
basis of the partnership’s replacement
QSB stock with respect to that partner
only. The effect of such a basis adjust-
ment is determined under the principles of
§1.743–1(g), (h), and (j). For purposes of
this paragraph (b)(3)(ii), the partnership
must presume that a partner did not rec-
ognize that partner’s distributive share of
QSB gain until such time as the partner
provides to the partnership the notifica-
tion described in paragraph (b)(4)(ii) of
this section. However, if the partner-
ship knows that a particular partner is
classified, for Federal tax purposes, as a
corporation during any period in which the
partnership held the QSB stock, then the
partnership may presume that the partner
did not defer recognition of the partnership
section 1045 gain, even in the absence of
a notification by the partner.
(4)Notice requirements—(i)Partner-
ship notification to partners. A partner-
ship that makes the election described in
paragraph (b)(1) of this section must no-
tify all of its partners of the election in ac-
cordance with the applicable forms and in-
structions and separately state each part-
ner’s distributive share of gain from the
sale of QSB stock under section 702. Each
partner shall determine whether the partner
is an eligible partner within the meaning
of paragraph (b)(1) of this section and re-
port the partner’s distributive share of gain
from the partnership’s sale of QSB stock,
including gain not recognized, on Sched-
ule D of the partner’s federal income tax
return.
(ii)Partner notification to partnership.
Any partner that mustrecognize all or part
of the partner’s distributive share of part-
nership section 1045 gain must notify the
partnership, in writing, of the amount of
partnership section 1045 gain that is rec-
ognized by the partner. (For further guid-
ance concerning paragraph (b) of this sec-
tion, seeExample 4throughExample 7of
paragraph (g) of this section.)
(c)Partner election—(1)In general.
If an eligible partner of a partnership that
sells QSB stock purchases replacement
QSB stock during the 60-day period be-
ginning on the date of the partnership’s
sale of the QSB stock, then the partner
may elect to apply section 1045. For
purposes of this paragraph (c)(1), a pur-
chase of replacement QSB stock by the
partnership is not treated as a purchase of
replacement QSB stock by a partner. An
eligible partner that elects to apply section
2004–32 I.R.B.180August 9, 2004

1045 must recognize its distributive share
of gain from the partnership’s sale of QSB
stock only to the extent of the greater of—
(i) The amount of the partner’s distribu-
tive share of the gain from the sale of the
QSB stock that is treated as ordinary in-
come; or
(ii) The excess of the partner’s share
of the amount realizedby the partnership
on the sale of the QSB stock (excluding
any QSB stock that was replaced by the
partnership) over the cost of any replace-
ment QSB stock purchased by the partner
during the 60-day period beginning on the
date of the partnership’s sale of the QSB
stock (excluding the cost of any replace-
ment QSB stock that is otherwise taken
into account under section 1045).
(2)Partner’s share of amount realized
by partnership. The partner’s share of the
amount realized by the partnership shall
bear the same proportion to the amount
realized by the partnership on the sale of
the QSB stock (excluding the cost of any
replacement QSB stock) as the partner’s
distributive share of the partnership’s re-
alized gain from the sale of the QSB stock
bears to the partnership’s realized gain on
the sale of the QSB stock. For this pur-
pose, the partnership’s realized gain from
the sale of QSB stock and the partner’s dis-
tributive share of that gain are determined
without regard to basis adjustments under
section 743(b) and paragraph (b)(3)(ii) of
this section.
(3)Basis adjustments—(i)Partner’s
interest in a partnership. Under section
705(a)(1), the adjusted basis of a partner’s
interest in a partnership is increased by the
amount of gain that is not recognized by
an eligible partner pursuant to paragraph
(c)(1) of this section.
(ii)Partner’s replacement QSB stock.
A partner’s basis in any replacement QSB
stock that is purchased by the partner dur-
ing the 60-day period described in para-
graph (c)(1) of this section must be re-
duced (in the order acquired) by the part-
ner’s distributive share of the gain on the
sale of the partnership’s QSB stock that is
not recognized by the partner pursuant to
paragraph (c)(1) of this section. (For fur-
ther guidance concerning this paragraph
(c), seeExample 8throughExample 10of
paragraph (g) of this section.)
(d)Partnership distribution of QSB
stock to an eligible partner—(1)In gen-
eral. Subject to paragraphs (d)(2) and (3)
of this section, in the case of a partnership
distributionofQSBstocktoaneligible
partner within the meaning of paragraph
(a)(2) of this section, the eligible partner
shall be treated as—
(i) Having acquired such stock in the
same manner as the partnership; and
(ii) Having held such stock during any
continuous period immediately preceding
the distribution during which it was held
by the partnership. (For further guidance
concerning this paragraph (d), seeExam-
ple 11andExample 12of paragraph (g) of
this section.)
(2)Eligibility under section 1202(c).
Paragraph (d)(1) of this section does not
apply unless all eligibility requirements
with respect to the QSB stock as defined in
section 1202(c) are met by the distributing
partnership with respect to its investment
in the QSB stock.
(3)Distribution nonrecognition limita-
tion—(i)Generally. The amount of gain
that an eligible partner does not recognize
on the sale of QSB stock (the relinquished
QSB stock) that was distributed by the
partnership to the partner cannot exceed
the distribution nonrecognition limitation.
For this purpose, the nonrecognition limi-
tation is—
(A) The partner’s section 1045 amount
realized; reduced by
(B) The partner’s section 1045 adjusted
basis.
(ii)Section 1045 amount realized—(A)
QSB stock received in liquidation of part-
ner’s interest and in certain nonliquidat-
ing distributions. If a partner receives re-
linquished QSB stock from the partnership
in a distribution in liquidation of the part-
ner’s interest in the partnership or as part
of a series of related distributions by the
partnership in which the partnership dis-
tributes all of the partnership’s QSB stock
of a particular type, then the partner’s sec-
tion 1045 amount realized is the partner’s
amount realized from the sale of the relin-
quished QSB stock, multiplied by a frac-
tion—
(1)Thenumeratorofwhichisthepart-
ner’s smallest percentage interest (prior to
the distribution) in the partnership’s in-
come, gain, or loss with respect to the type
of QSB stock sold by the partner; and
(2) The denominator of which is the
partner’s percentage interest in that type of
partnership QSB stock immediately after
the distribution (determined under para-
graph (d)(3)(iv) of this section).
(B)QSB stock received in other distri-
butions. If a partner receives relinquished
QSB stock in a distribution from the part-
nership that is not described in paragraph
(d)(3)(ii)(A) of this section, the partner’s
section 1045 amount realized is the part-
ner’s amount realized from the sale of
the relinquished QSB stock multiplied by
the partner’s smallest interest (prior to the
distribution) in the partnership’s income,
gain, or loss with respect to such stock.
(iii)Section 1045 adjusted basis—(A)
QSB stock received in liquidation of part-
ner’s interest and in certain nonliquidating
distributions. If a partner receives relin-
quished QSB stock from the partnership in
a distribution in liquidation of the partner’s
interest in the partnership or as part of a se-
ries of related distributions by the partner-
ship in which the partnership distributes all
of the partnership’s QSB stock of a partic-
ular type, then the partner’s section 1045
adjusted basis is the product of—
(1) The partnership’s basis in all of the
QSB stock of the type distributed (without
regard to basis adjustments under section
734(b) or 743(b), other than basis adjust-
ments described in paragraph (b)(3)(ii) of
this section);
(2) The partner’s smallest interest (prior
to the distribution) in the partnership’s in-
come, gain, or loss with respect to such
stock; and
(3) The proportion of the distributed
QSB stock that was sold by the partner.
(B)QSB stock received in other distri-
butions. If a partner receives relinquished
QSB stock in a distribution from the part-
nership that is not described in paragraph
(d)(3)(iii)(A) of this section, the partner’s
section 1045 adjusted basis is the product
of—
(1) The partnership’s basis in the QSB
stock sold by the partner (without regard
to basis adjustments under section 734(b)
or 743(b), other than basis adjustments de-
scribed in paragraph (b)(3)(ii) of this sec-
tion); and
(2) The partner’s smallest interest (prior
to the distribution) in the partnership’s in-
come, gain, or loss with respect to such
stock.
(iv)Partner’s percentage interest in dis-
tributed QSB stock. For purposes of this
paragraph (d)(3), a partner’s percentage
interest in a type of QSB stock immedi-
August 9, 20041812004–32 I.R.B.

ately after a partnership distribution is the
value (as of the date of the distribution) of
the QSB stock distributed to the partner di-
vided by the value (as of the date of the dis-
tribution) of all of that type of QSB stock
that was acquired by the partnership.
(v)QSBstockofthesametype. For pur-
poses of this paragraph (d)(3), QSB stock
will be of the same type as the distributed
QSB stock if it has the same issuer and
the same rights and preferences as the dis-
tributed QSB stock and was acquired by
the partnership at its original issue.
(e)Contribution of QSB stock or re-
placement QSB stock to a partnership.
Section 721 applies to a contribution of
QSB stock to a partnership by a taxpayer
other than a corporation. Except as pro-
vided in section 721(b), any gain that
was not recognized by the taxpayer un-
der section 1045 is not recognized when
the taxpayer contributes QSB stock to a
partnership in exchange for a partnership
interest in the hands of the taxpayer. Stock
that is contributed to a partnership is not
QSB stock in the hands of the partnership
because the partnership did not acquire
the stock at original issue. (For further
guidance, seeExample 13of paragraph
(g)ofthissection.)
(f)Time and manner of making elec-
tion. A partnership making an election un-
der section 1045 (as described under para-
graph (b)(1) of this section) must do so
on the partnership’s timely filed (including
extensions) return for the taxable year dur-
ing which the sale of QSB stock occurs. A
partner making an election under section
1045 (as described under paragraph (c)(1)
of this section) must do so on the part-
ner’s timely filed (including extensions)
federal income tax return for the taxable
year during which the partner’s distribu-
tive share of the partnership’s gain from
the sale of the QSB stock is taken into ac-
count under section 706. In addition, a
partnership or partner making an election
under section 1045 must follow the ad-
ministrative procedures issued for making
such elections. (For further guidance, see
Rev. Proc. 98–48, 1998–2 C.B. 367, and
§601.601(d)(2)(ii)(b) of this chapter.)
(g)Examples. The provisions of this
section are illustrated by the following ex-
amples:
Example 1.Acquisition of a partnership inter-
est as replacement property. On January 1, 2006,
A, an individual, X, a corporation, and Y, a corpo-
ration, form PRS, a partnership. A, X, and Y each
contribute $25 to PRS and agree to share all partner-
ship items equally. PRS purchases QSB stock on Feb-
ruary 1, 2006, and subsequently sells the QSB stock
on November 4, 2006, for $150. PRS realizes $75 of
gain from the sale of the QSB stock (none of which is
treated as ordinary income) and allocates $25 of gain
to each of A, X, and Y. On November 30, 2006, A
contributes $50 to ABC, a partnership, in exchange
for an interest in ABC (instead of purchasing QSB
stock). ABC then purchases QSB stock for $50 on
December 1, 2006. A’s acquisition of the additional
partnership interest is not treated as a purchase of re-
placement QSB stock for purposes of section 1045.
Example 2.Sale of a partnership interest.The
facts are the same as inExample 1,exceptthatPRS
does not sell its QSB stock. Instead, on November 4,
2006, A sells the PRS interest for $50x, realizing $25
of capital gain. On November 30, 2006, A purchases
$50 of new QSB stock. Under paragraph (a)(1) of
this section, the sale of an interest in a partnership
that holds QSB stock is not treated as a sale of QSB
stock. Therefore, A may not elect to apply section
1045 with respect to A’s $25 of gain from the sale of
the PRS interest.
Example 3.Eligible and non-eligible partners of
tiered partnership. On January 1, 2006, A, an indi-
vidual, and B, an individual, contribute cash to UTP,
(upper-tier partnership) for equal partnership inter-
ests. OnFebruary1,2006,UTPandC,anindivid-
ual, contribute cash to LTP, (lower-tier partnership)
for equal partnership interests. On March 1, 2006,
LTP purchases QSB stock. On April 1, 2006, D, an
individual, joins UTP by contributing cash to UTP
for a 1/3 interest in UTP. On December 1, 2006, LTP
sells the QSB stock. Under paragraph (a)(2)(iii) of
this section, A, B, and D are treated as owning an in-
terest in LTP during the period in which each of the
partners held an interest in UTP and UTP held an in-
terest in LTP. Therefore, under paragraph (a)(2)(i) of
this section, A and B are eligible partners, and D is
not an eligible partner.
Example 4.Partnership sale of QSB stock and
purchase and sale of replacement QSB stock.(i)As-
sume the same facts as inExample 1, except that PRS
purchases replacement QSB stock for $135 on De-
cember 15, 2006. On its timely filed return for the
taxable year during which the sale of the relinquished
QSB stock occurs, PRS makes an election to apply
section 1045. PRS knows that X and Y are corpora-
tions. On March 30, 2007, PRS sells the replacement
QSB stock for $165. PRS realizes $30 of capital gain
from the sale of the replacement QSB stock and allo-
cates $10 of gain to each of A, X, and Y.
(ii) Under paragraph (b)(1) of this section, the
partnership section 1045 gain is $60 ($75 gain less
$15 ($150 amount realized on the sale of the relin-
quished QSB stock less $135 cost of the replacement
QSB stock)). This amount must be allocated among
the partners in the same proportions as the entire gain
from the sale of the QSB stock is allocated to the part-
ners, 1/3 ($20) to A, 1/3 ($20) to X, and 1/3 ($20) to
Y.
(iii) Because neither X nor Y are eligible partners
under paragraph (a)(2) of this section, X and Y must
each recognize its $25 distributive share of partner-
ship gain from the sale of the QSB stock. Because
A is an eligible partner under paragraph (a)(2) of this
section, and because A is bound by the election by
PRS to apply section 1045, A defers recognition of
A’s $20 distributive share of partnership section 1045
gain. A is not required to separately elect to apply
section 1045. A must recognize A’s remaining $5 dis-
tributive share of the partnership’s gain from the sale
of the QSB stock.
(iv) Under section 705(a)(1)(A), the adjusted
bases of X’s and Y’s interests in PRS are each in-
creased by $25. Under section 705(a)(1)(A) and
paragraph (b)(3)(i) of this section, the adjusted basis
of A’s interest in PRS is not increased by the $20
of partnership section 1045 gain that was not rec-
ognized by A, but is increased by A’s remaining $5
distributive share of gain.
(v) PRS must decrease its basis in the replacement
QSB stock by the $20 of partnership section 1045
gain that was allocated to A. This basis reduction is
a reduction with respect to A only. PRS then adjusts
A’s distributive share of gain from the sale of the re-
placement QSB stock to reflect the effect of A’s basis
adjustment under paragraph (b)(3)(ii) of this section.
In accordance with the principles of §1.743–1(j)(3),
the amount of A’s gain from the sale of the replace-
ment QSB stock in which A has a $20 negative ba-
sis adjustment equals $30 (A’s share of PRS’s gain
from the sale of the replacement QSB stock ($10),
increased by the amount of A’s negative basis adjust-
ment for the replacement stock ($20)). Accordingly,
upon the sale of the replacement QSB stock, A rec-
ognizes $30 of gain, and X and Y each recognize $10
of gain.
Example 5.Sale of partnership interest while
partnership holds QSB stock. Assume the same facts
as inExample 4, except that A sells A’s interest in
PRS to B, an individual, on March 1, 2006. B is not
an eligible partner under paragraph (a)(2)(i) of this
section, because B did not hold an interest in PRS
on the date PRS originally acquired the QSB stock.
Therefore, B must recognize B’s distributive share of
partnership section 1045 gain.
Example 6.Death of partner while partnership
holds QSB stock. Assume the same facts as inExam-
ple 4, except that A dies on March 1, 2006, and B in-
herits A’s interest in PRS. Under paragraph (a)(2)(ii)
of this section, B is treated as holding the interest in
PRS during the period that A held the interest in PRS.
Therefore, B is an eligible partner under paragraph
(a)(2)(i) of this section. Accordingly, B defers recog-
nition of B’s distributive share of the partnership sec-
tion 1045 gain on the sale of the QSB stock.
Example 7.Partnership sale of QSB stock and
partner purchase of replacement QSB stock.(i)As-
sume the same facts as inExample 4, except that PRS
does not make an election under section 1045 with re-
spect to the sale of the QSB stock. On November 30,
2006, A, an eligible partner under paragraph (a)(2)
of this section, purchases replacement QSB stock for
$50. A elects to apply section 1045 on A’s timely
filed return for the taxableyear that A is required to
include A’s distributive share of PRS’s gain from the
sale of the relinquished QSB stock.
(ii) Under paragraph (c)(2) of this section, A’s
share of the amount realized from PRS’s sale of the
QSB stock is $50 (the amount which bears the same
proportion to the total amount realized by the partner-
ship on the sale of the QSB stock ($150) as A’s share
of the gain from the sale of the QSB stock ($25) bears
to the total gain realized by the partnership on the
sale of the QSB stock ($75)). Because A purchased,
2004–32 I.R.B.182August 9, 2004

within 60 days of PRS’s sale of the QSB stock, re-
placement QSB stock for a cost equal to A’s share
of the partnership’s amount realized on the sale of
the QSB stock, and because A made a valid election
to apply section 1045, A defers recognition of A’s
$25 distributive share of gain from PRS’s sale of the
QSB stock. Under section 705(a)(1) and paragraph
(c)(3)(i) of this section, the adjusted basis of A’s in-
terest in PRS is increased by $25. Under paragraph
(c)(3)(ii) of this section, A’s basis in the replacement
QSB stock is $25 ($50 cost minus $25 nonrecogni-
tion amount).
Example 8.Election by partner; replacement by
partnership. Assume the same facts as inExample
7, except that PRS purchases replacement QSB stock
on December 31, 2006, but does not make an election
to apply section 1045. A makes an election to apply
section 1045, but does not purchase any replacement
QSB stock during the 60-day period beginning on the
date of PRS’s sale of the QSB stock. Because the re-
quirements of neither paragraph (b)(1) nor paragraph
(c)(1) of this section has been satisfied, A must rec-
ognize all of A’s distributive share of the gain from
PRS’s sale of the QSB stock.
Example 9.Partial replacement by partnership;
partial replacement by partner. (i) On January 1,
2006, A, an individual, and X, a corporation, form
PRS, a partnership. A and X each contribute $50 to
PRS and agree to share all partnership items equally.
PRS purchases QSB stock on February 1, 2006, for
$100 and subsequently sells the QSB stock on Jan-
uary 31, 2008, for $300. PRS realizes $200 of gain
from the sale of the QSB stock (none of which is
treated as ordinary income) and allocates $100 of gain
to each of A and X. On February 10, 2008, PRS pur-
chases replacement QSB stock for $220. On March
20, 2008, A purchases replacement QSB stock for
$40. Both A and PRS make valid elections to apply
section 1045.
(ii) Under paragraph (b)(1) of this section, part-
nership section 1045 gain is $120 ($200 less $80
($300 amount realized on the sale of the relinquished
QSB stock minus $220 cost of the replacement QSB
stock)). This amount is allocated among the partners
in the same proportions as the entire gain from the
sale of the QSB stock is allocated to the partners,
1
/2to A ($60), and
1
/2to X ($60). Because A is an
eligible partner, A defers recognition of A’s $60
distributive share of partnership section 1045 gain.
(iii) A also made a valid section 1045 election
and purchased, within 60 days of PRS’s sale of the
QSB stock, replacement QSB stock. Therefore, un-
der paragraph (c)(1) of this section, A may defer a
portion of A’s distributive share of the remaining gain
from the partnership’s sale of the QSB stock. A must
recognize that remaining gain, however, to the ex-
tent that A’s share of the amount realized by PRS on
the sale of the QSB stock (excluding the QSB stock
that was replaced by PRS)exceeds the cost of the
replacement QSB stock purchased by A during the
60-day period following the sale of the QSB stock.
The amount realized by PRS on the sale of the QSB
stock (excluding the QSB stock that was replaced by
PRS) is $80 ($300 minus $220). Under paragraph
(c)(2) of this section, A’s share of that amount real-
ized is $40 (50/100 (A’s share of the gain from the
sale of the QSB stock) multiplied by $80). Because
the replacement QSB stock purchased by A cost $40,
A defers recognition of all of the remaining gain from
thesaleoftheQSBstock.
(iv) The adjusted basis of A’s interest in PRS is
not increased by the gain that was not recognized pur-
suant to paragraph (b)(1) of this section, $60, but is
increased by the gain that was not recognized pur-
suant to paragraph (c)(1)of this section, $40. See
paragraphs (b)(3)(i) and (c)(3)(i) of this section. PRS
must decrease its basis in the replacement QSB stock
by the $60 of partnership section 1045 gain that was
allocated to A. See paragraph (b)(3)(ii) of this sec-
tion. A must decrease A’s basis in the replacement
QSB stock purchased by A by the $40 not recognized
pursuant to paragraph (c)(1)of this section. See para-
graph (c)(3)(ii) of this section.
Example 10.Change in partner’s interest in part-
nership while partnership holds QSB stock.(i)As-
sume the same facts as inExample 9, except that, on
August 2, 2006, A sells a 25 percent interest in PRS
to Z. On July 10, 2007, A repurchases the 25 percent
interest from Z for $50. Assume that PRS makes a
timely election under section 754 for the taxable year
during which A purchases Z’s PRS interest and that,
under section 743(b), A has a positive basis adjust-
ment of $25.
(ii) PRS allocates the $200 of realized gain from
the sale of the QSB stock $100 to A and $100 to X.
However, A has a positive basis adjustment of $25;
therefore, A’s share of the gain is reduced to $75. Be-
cause A is an eligible partner under paragraph (a)(2)
of this section, A may defer recognition of A’s dis-
tributive share of gain from the sale of the QSB stock
subject to the nonrecognition limitation described in
paragraph (a)(3) of this section. The smallest inter-
est that A held in PRS during the time that PRS held
the QSB stock is 25 percent. Under the nonrecogni-
tion limitation, A may not defer more than 25 per-
cent of the partnership gain realized from the sale of
the QSB stock (determined without regard to any ba-
sis adjustment under section 734(b) or section 743(b),
other than a basis adjustment described in paragraph
(b)(3)(ii) of this section). Because the partnership’s
realized gain determined without regard to A’s basis
adjustment under section 743(b) is $200, A may de-
fer recognition of $50 (25% of $200) of the gain from
the sale of the QSB stock. A must recognize the re-
maining $25 of that gain.
Example 11.Sale by partner of QSB stock re-
ceived in a liquidating distribution. (i) On January
1, 2006, A, an individual, and X, a corporation, form
PRS, a partnership. A and X each contribute $150 to
PRS and agree to share all partnership items equally.
PRS purchases QSB stock on February 1, 2006, for
$300. On May 1, 2006, when the QSB stock has
appreciated in value to $400, A contributes $100 to
PRS, increasing A’s interest in PRS’s income, gains,
losses, deductions, and credits to 60 percent. On June
1, 2009, when the QSB stock is still worth $400,
PRS makes a liquidating distribution of $300 worth
of QSB stock to A. Under section 732, A’s basis in
the distributed QSB stock is $250. A sells the QSB
stock on August 4, 2009, for $600, realizing a gain of
$350 (none of which is treated as ordinary income).
A purchases replacement QSB stock on August 30,
2009, for $550, and makes a valid election under sec-
tion 1045 with respect to the QSB stock.
(ii) A is an eligible partner under paragraph
(a)(2)(i) of this section. Therefore, under paragraph
(d)(1) of this section, A is treated as having acquired
the distributed QSB stock in the same manner as
PRS and as having held the QSB stock since Feb-
ruary 1, 2006, its original issue date. Because A
purchased, within 60 days of A’s sale of the QSB
stock, replacement QSB stock, A is eligible to defer
a portion of A’s gain from the sale of the QSB stock.
A must recognize gain, however, to the extent that
A’s amount realized on the sale of the QSB stock,
$600, exceeds the cost of the replacement QSB stock
purchased by A during the 60-day period beginning
on the date of the sale of the relinquished QSB stock,
$550. Accordingly, A must recognize $50 of the gain
from the sale of the QSB stock. A defers recognition
of the remaining $300 of gain to the extent that such
gain does not exceed the distribution nonrecognition
limitation.
(iii) Under paragraph (d)(3)(ii) of this section, A’s
nonrecognition limitation with respect to the sale of
the QSB stock is A’s section 1045 amount realized
with respect to the stock, reduced by A’s section 1045
adjusted basis with respect to the stock. A’s amount
realized from the sale is the product of A’s amount
realized from the sale, $600; and a fraction:
(1) the numerator of which is A’s smallest per-
centage interest in PRS’s income, gain, or loss with
respecttosuchstock,50%;and
(2) the denominator of which is A’s percentage
interest in that type of partnership QSB stock imme-
diately after the distribution, 75% (the value of the
stock distributed to A, $300, divided by the value of
all QSB stock of that type acquired by PRS, $400).
Therefore, A’s section 1045 amount realized is
$400 ($600 multiplied by 50/75). Because PRS dis-
tributed the QSB stock to A in liquidation of A’s in-
terest in PRS, A’s section 1045 adjusted basis is the
product of PRS’s basis in all of the QSB stock of the
type distributed, $300; A’s smallest interest (prior to
the distribution) in PRS’s income, gain, or loss with
respect to QSB stock of the type distributed, 50%; and
the percentage of the distributed QSB stock that was
sold by A, 100%. Therefore, A’s section 1045 ad-
justed basis is $150 (the product of $300, 50%, and
100%)) and A’s nonrecognition limitation amount on
the sale of the QSB stock is $250 ($400 section 1045
amount realized minus $150 section 1045 adjusted
basis). Accordingly, A defers recognition of $250
of the remaining $300 gain from the sale of the QSB
stock.
(iv) A’s basis in the replacement QSB stock is
$300 (cost of the replacement stock, $550, reduced
by the gain not recognized under section 1045, $250).
Example 12.Sale by partner of QSB stock re-
ceived in a nonliquidating distribution. (i) The facts
are the same as inExample 11, except that, on June
1, 2009, PRS distributes only $200 of the QSB stock
to A, reducing A’s interest in PRS from 60% to 33%.
PRS’s basis in the distributed QSB stock is $150. On
November 1, 2009, A sells for $250 the QSB stock
distributed by PRS to A and purchases, within 60
days of the date of sale of the relinquished QSB stock,
replacement QSB stock for $250. On December 1,
2009, PRS sells all of its QSB stock for $250 and
purchases, within 60 days of the date of the sale of
the relinquished QSB stock, replacement QSB stock
for $250. A makes a timely election to apply section
1045 with respect to its sale of the distributed QSB
stock and PRS makes a timely election to apply sec-
tion 1045 with respect to its sale of the QSB stock.
August 9, 20041832004–32 I.R.B.

(ii) Under section 732, A’s basis in the distributed
QSB stock is $150. Therefore, A realizes a gain on
the sale of the distributed QSB stock of $100. Be-
cause A made a valid election to apply section 1045
to the sale, and because A purchased, within 60 days
of A’s sale of the QSB stock, replacement QSB stock
at a cost equal to the amount realized on the sale of
the distributed QSB stock, A defers recognition of the
gain from the sale of the QSB stock to the extent that
such gain does not exceed the distribution nonrecog-
nition limitation.
(iii) Under paragraph (d)(3) of this section, the
nonrecognition limitation with respect to A’s sale of
the QSB stock is A’s section 1045 amount realized
reduced by A’s section 1045 adjusted basis. Because
PRS did not distribute all of a particular type of QSB
stock and the distribution of the QSB stock to A was
not in liquidation of A’s interest in PRS, A’s section
1045 amount realized is $125 (A’s amount realized
from the sale of the distributed QSB stock, $250, mul-
tiplied by A’s smallest percentage interest (prior to the
distribution) in PRS’s income, gain, or loss with re-
spect to such stock, 50%). A’s section 1045 adjusted
basis is the product of the partnership’s basis in the
QSB stock sold by the partner, $150, and A’s small-
est percentage interest (prior to the distribution) in
the partnership’s income, gain, or loss with respect
to such stock, 50%. Therefore, A’s section 1045 ad-
justed basis is $75 (50% of $150), and A’s nonrecog-
nition limitation amount on the sale of the QSB stock
is $50 ($125 section 1045 amount realized minus $75
section 1045 adjusted basis). As this amount is less
than the amount of gain that A is eligible to defer un-
der section 1045, $100, A defers recognition of only
$50 of the gain from the sale of the QSB stock. A
must recognize the remaining $50 of that gain.
(iv) The partnership realizes gain of $100 ($250
amount realized minus $150 remaining basis in QSB
stock) on the sale of its QSB stock. Because the part-
nership reinvested its entire amount realized in new
QSB stock and because the partnership made a timely
election to apply section 1045, the partnership may
treat all of this gain as section 1045 gain. A’s share
of the partnership section 1045 gain is $50 (50% of
$100). Because A is an eligible partner under para-
graph (a)(2) of this section, A can defer recognition of
this gain subject to the nonrecognition limitation de-
scribed in paragraph (a)(3) of this section. The small-
est percentage interest that A held in PRS during the
time that PRS held the QSB stock (determined with-
out regard to the reduction that occurred as a result of
PRS’s distribution of QSB stock to A) is 50%. See
paragraph (a)(3)(ii) of thissection. Therefore, under
the nonrecognition limitation, A can defer recogni-
tion of all $50 (50% of $100) of the gain allocated to
A.
Example 13.Contribution of replacement QSB
stock to a partnership. (i) On January 1, 2006, A,
an individual, B, an individual, and X, a corporation,
form PRS, a partnership. A, B, and X each contribute
$25 to PRS and agree to share all partnership items
equally. On February 1, 2006, PRS purchases Stock
1, which is QSB stock in the hands of the partnership.
PRS sells Stock 1 on November 4, 2006, for $150.
PRS realizes $75 of gain from the sale of Stock 1
(none of which is treated as ordinary income) and
allocates $25 of gain to each of its partners. PRS
informs the partners that it does not intend to make an
election under section 1045 with respect to the sale of
Stock 1. Each partner’s share of the amount realized
from the sale of Stock 1 is $50. On November 30,
2006, A, an eligible partner within the meaning of
paragraph (a)(2) of this section, purchases Stock 2,
which is also QSB stock, for $50 and makes a valid
section 1045 election under paragraph (c)(1) of this
section. Subsequently, A transfers Stock 2 to ABC, a
partnership.
(ii) Because A purchased, within 60 days of
PRS’s sale of Stock 1, replacement QSB stock for a
cost equal to A’s share of the partnership’s amount
realized on the sale of Stock 1, and because A made
a valid election to apply section 1045 with respect
to A’s share of the gain from PRS’s sale of Stock
1, A does not recognize A’s $25 distributive share
of the gain from PRS’s sale of Stock 1. Before the
contribution of Stock 2 to ABC, A’s adjusted basis in
Stock 2 is $25 ($50 cost minus $25 nonrecognition
amount). Upon the contribution of Stock 2 to ABC,
A’s basis in the ABC partnership interest is $25, and
ABC’s basis in Stock 2 is $25. However, Stock 2
does not qualify as QSB stock in ABC’s hands be-
cause it was not acquired at original issue. Neither A
nor ABC will be eligible for section 1045 treatment
on a subsequent sale of Stock 2.
(h)Effective date. This section applies
to sales of QSB stock on or after the date
final regulations are published in theFed-
eral Register.
Mark E. Matthews,
Deputy Commissioner for
Services and Enforcement.
(Filed by the Office of the Federal Register on July 14, 2004,
8:45 a.m., and published in the issue of the Federal Register
for July 15, 2004, 69 F.R. 42370)
Announcement of Disciplinary Actions Involving
Attorneys, Certified Public Accountants, Enrolled Agents,
and Enrolled Actuaries — Suspensions, Censures,
Disbarments, and Resignations
Announcement 2004-63
Under Title 31, Code of Federal Regu-
lations, Part 10, attorneys, certified public
accountants, enrolled agents, and enrolled
actuaries may not accept assistance from,
or assist, any person who is under disbar-
ment or suspension from practice before
the Internal Revenue Service if the assis-
tance relates to a matter constituting prac-
tice before the Internal Revenue Service
and may not knowingly aid or abet another
person to practice before the Internal Rev-
enue Service during a period of suspen-
sion, disbarment, or ineligibility of such
other person.
To enable attorneys, certified public
accountants, enrolled agents, and enrolled
actuaries to identify persons to whom
these restrictions apply, the Director, Of-
fice of Professional Responsibility, will
announce in the Internal Revenue Bulletin
their names, their city and state, their pro-
fessional designation, the effective date
of disciplinary action, and the period of
suspension. This announcement will ap-
pear in the weekly Bulletin at the earliest
practicable date after such action and will
continue to appear in the weekly Bulletins
for five successive weeks.
2004–32 I.R.B.184August 9, 2004

Disbarments From Practice Before the Internal Revenue
Service After Notice and an Opportunity for a Proceeding
Under Title 31, Code of Federal Regu-
lations, Part 10, after notice and an oppor-
tunity for a proceeding before an adminis-
trative law judge, the following individu-
als have been disbarred from practice be-
fore the Internal Revenue Service:
NameAddressDesignationEffective Date
Banister, Joseph R.San Jose, CACPAJune 25, 2004
Suspensions From Practice Before the Internal Revenue
Service After Notice and an Opportunity for a Proceeding
Under Title 31, Code of Federal Reg-
ulations, Part 10, after notice and an op-
portunity for a proceeding before an ad-
ministrative law judge, the following indi-
viduals have been placed under suspension
from practice before the Internal Revenue
Service:
NameAddressDesignationEffective Date
Stukes, Donald A.Pound Ridge, NYCPAMay 13, 2004
to
May 11, 2005
Moore, EarlRiverview, FLCPAMarch 26, 2004
to
March 24, 2006
Consent Suspensions From Practice Before the Internal
Revenue Service
Under Title 31, Code of Federal Regu-
lations, Part 10, an attorney, certified pub-
lic accountant, enrolled agent, or enrolled
actuary, in order to avoid institution or con-
clusion of a proceeding for his or her dis-
barment or suspension from practice be-
fore the Internal Revenue Service, may of-
fer his or her consent to suspension from
such practice. The Director, Office of Pro-
fessional Responsibility, in his discretion,
may suspend an attorney, certified public
accountant, enrolled agent, or enrolled ac-
tuary in accordance with the consent of-
fered.
The following individuals have been
placed under consent suspension from
practice before the Internal Revenue Ser-
vice:
NameAddressDesignationDate of Suspension
Bell, Don W.Grand Junction, COEnrolled AgentIndefinite
from
April 1, 2004
Lentz, Carole A.Mastic, NYEnrolled AgentIndefinite
from
April 23, 2004
Cummiskey Jr., Edward R. Warwick, NYEnrolled AgentIndefinite
from
April 23, 2004
August 9, 20041852004–32 I.R.B.

NameAddressDesignationDate of Suspension
Goble, Dennis R.Valparaiso, INCPAIndefinite
from
April 26, 2004
Grant, Elaine C.Woodway, WAEnrolled AgentMay 1, 2004
to
October 31, 2004
Rivera, Eduardo M.Torrence, CAAttorneyMay 1, 2004
to
October 29, 2006
Masengale, Thomas J.Indianapolis, INEnrolled AgentIndefinite
from
May 1, 2004
Cohick, Jeffrey S.Newville, PAEnrolled AgentMay 1, 2004
to
October 30, 2004
Bach, Royce E.Deer Park, TXEnrolled AgentIndefinite
from
May 27, 2004
McMillin, JuanellAustin, TXEnrolled AgentIndefinite
from
May 28, 2004
Silva, Hesmeregildo V.Livermore, CAEnrolled AgentIndefinite
from
May 28, 2004
Grossman, RichardDurham, NCAttorneyIndefinite
from
June 1, 2004
Schnieders, Joseph A.St. Louis, MOEnrolled AgentIndefinite
from
June 1, 2004
Rahn, Miriam C.Hutchinson, MNEnrolled AgentIndefinite
from
June 8, 2004
Tarantur, Dale B.Glenview, ILCPAIndefinite
from
June 15, 2004
Derby, MarkWest Newton, MACPAIndefinite
from
June 15, 2004
Miller, Winfred J.Harrisonburg, VACPAIndefinite
from
June 30, 2004
Croom, John A.Austin, TXCPAIndefinite
from
July 1, 2004
2004–32 I.R.B.186August 9, 2004

NameAddressDesignationDate of Suspension
Dion, PaulMiddletown, RICPAIndefinite
from
July 8, 2004
Todd, Debra R.Leander, TXEnrolled AgentIndefinite
from
August 30, 2004
Expedited Suspensions From Practice Before the Internal
Revenue Service
Under Title 31, Code of Federal Regu-
lations, Part 10, the Director, Office of Pro-
fessional Responsibility, is authorized to
immediately suspend from practice before
the Internal RevenueService any practi-
tioner who, within five years from the date
the expedited proceeding is instituted (1)
has had a license to practice as an attor-
ney, certified public accountant, or actuary
suspended or revoked for cause or (2) has
been convicted of certain crimes.
The following individuals have been
placed under suspension from practice be-
fore the Internal Revenue Service by virtue
of the expedited proceeding provisions:
NameAddressDesignationDate of Suspension
Somerville, Sally L.Havre de Grace, MDAttorneyIndefinite
from
May 3, 2004
Simon, Laurence M.Englishtown, NJCPAIndefinite
from
May 10, 2004
Taylor, Joelle T.Carolina Beach, NCCPAIndefinite
from
May 10, 2004
Becker, Joseph C.Austin, TXCPAIndefinite
from
May 10, 2004
Maffongelli Jr., JosephMontclair, NJAttorneyIndefinite
from
May 10, 2004
Lence, John A.Kalispell, MTCPAIndefinite
from
May 21, 2004
McWade, Kenneth W.Kaliua, HIAttorneyIndefinite
from
June 9, 2004
Sims, William A.Sausalito, CAAttorneyIndefinite
from
June 9, 2004
Sommer, Peter J.Baltimore, MDAttorneyIndefinite
from
June 21, 2004
August 9, 20041872004–32 I.R.B.

NameAddressDesignationDate of Suspension
Eisenberg, Alan D.Whitefish Bay, WIAttorneyIndefinite
from
June 21, 2004
Litwin, Martin E.Highland Park, ILAttorneyIndefinite
from
June 21, 2004
Kiernat, Bruce E.St. Paul, MNAttorneyIndefinite
from
July 1, 2004
Resignations of Enrolled Agents
Under Title 31, Code of Federal Regu-
lations, Part 10, an enrolled agent, in or-
der to avoid the institution or conclusion
of a proceeding for his or her disbarment
or suspension from practice before the In-
ternal Revenue Service, may offer his or
her resignation as an enrolled agent. The
Director, Office of Professional Responsi-
bility, in his discretion, may accept the of-
fered resignation.
The Director, Office of Professional
Responsibility, has accepted offers of res-
ignation as an enrolled agent from the
following individuals:
NameAddressDate of Resignation
Murphy, Claire A.Viera, FLMay 10, 2004
Murphy, John W.Viera, FLMay 10, 2004
Censure Issued by Consent
Under Title 31, Code of Federal Reg-
ulations, Part 10, in lieu of a proceeding
being instituted or continued, an attorney,
certified public accountant, enrolled agent,
or enrolled actuary, may offer his or her
consent to the issuance of a censure. Cen-
sure is a public reprimand.
The following individuals have con-
sented to the issuance of a Censure:
NameAddressDesignationDate of Censure
Clifton, Michael J.Augusta, KSCPAMay 12, 2004
Flaherty, Patrick J.Traverse City, MICPAMay 19, 2004
Monroy, FrancesPetaluma, CAEnrolled AgentMay 27, 2004
Pearson, Michael N.Houston, TXEnrolled AgentJune 7, 2004
2004–32 I.R.B.188August 9, 2004

Definition of Terms
Revenue rulings and revenue procedures
(hereinafter referred to as “rulings”) that
have an effect on previous rulings use the
following defined terms to describe the ef-
fect:
Amplifieddescribes a situation where
no change is being made in a prior pub-
lished position, but the prior position is be-
ingextendedtoapplytoavariationofthe
fact situation set forth therein. Thus, if
an earlier ruling held that a principle ap-
plied to A, and the new ruling holds that the
same principle also applies to B, the earlier
ruling is amplified. (Compare withmodi-
fied,below).
Clarifiedis used in those instances
where the language in a prior ruling is be-
ing made clear because the language has
caused, or may cause, some confusion.
It is not used where a position in a prior
ruling is being changed.
Distinguisheddescribes a situation
where a ruling mentions a previously pub-
lished ruling and points out an essential
difference between them.
Modifiedis used where the substance
of a previously published position is being
changed. Thus, if a prior ruling held that a
principle applied to A but not to B, and the
new ruling holds that it applies to both A
and B, the prior ruling is modified because
it corrects a published position. (Compare
withamplifiedandclarified, above).
Obsoleteddescribes a previously pub-
lished ruling that is not considered deter-
minative with respect to future transac-
tions. This term is most commonly used in
a ruling that lists previously published rul-
ings that are obsoleted because of changes
in laws or regulations. A ruling may also
be obsoleted because the substance has
been included in regulations subsequently
adopted.
Revokeddescribes situations where the
position in the previously published ruling
is not correct and the correct position is
beingstatedinanewruling.
Supersededdescribes a situation where
the new ruling does nothing more than re-
state the substance and situation of a previ-
ously published ruling (or rulings). Thus,
the term is used to republish under the
1986 Code and regulations the same po-
sition published under the 1939 Code and
regulations. The term is also used when
it is desired to republish in a single rul-
ing a series of situations, names, etc., that
were previously published over a period of
time in separate rulings. If the new rul-
ing does more than restate the substance
of a prior ruling, a combination of terms
is used. For example,modifiedandsu-
persededdescribes a situation where the
substance of a previously published ruling
is being changed in part and is continued
without change in part and it is desired to
restate the valid portion of the previously
published ruling in a new ruling that is self
contained. In this case, the previously pub-
lished ruling is first modified and then, as
modified, is superseded.
Supplementedis used in situations in
which a list, such as a list of the names of
countries, is published in a ruling and that
list is expanded by adding further names in
subsequent rulings. After the original rul-
ing has been supplemented several times, a
new ruling may be published that includes
the list in the original ruling and the ad-
ditions, and supersedes all prior rulings in
the series.
Suspendedis used in rare situations
to show that the previous published rul-
ings will not be applied pending some
future action such as the issuance of new
or amended regulations, the outcome of
cases in litigation, or the outcome of a
Service study.
Abbreviations
The fol
lowing abbreviations in current use
and for
merly used will appear in material
publis
hedintheBulletin.
A—Individual.
Acq.—A
cquiescence.
B—Individual.
BE—Beneficiary.
BK—Bank
.
B.T.A.—Board of Tax Appeals.
C—Individual.
C.B.—Cu
mulative Bulletin.
CFR—Code of Federal Regulations.
CI—City.
COOP—Coo
perative.
Ct.D.—Court Decision.
CY—County.
D—Decede
nt.
DC—Dummy Corporation.
DE—Donee.
Del. Order
—Delegation Order.
DISC—Domestic International Sales Corporation.
DR—Donor.
E—Estate.
EE—Employee.
E.O.—Executive Order.
ER—Emp
loyer.
ERISA—Employee Retirement Income Security Act.
EX—Executor.
F—Fiduc
iary.
FC—Foreign Country.
FICA—Federal Insurance Contributions Act.
FISC—Fo
reign International Sales Company.
FPH—Foreign Personal Holding Company.
F.R.—Federal Register.
FUTA—Fed
eral Unemployment Tax Act.
FX—Foreign corporation.
G.C.M.—Chief Counsel’s Memorandum.
GE—Grante
e.
GP—General Partner.
GR—Grantor.
IC—Insura
nce Company.
I.R.B.—Internal Revenue Bulletin.
LE—Lessee.
LP—Limited
Partner.
LR—Lessor.
M—Minor.
Nonacq.—No
nacquiescence.
O—Organization.
P—Parent Corporation.
PHC—Persona
l Holding Company.
PO—Possession of the U.S.
PR—Partner.
PRS—Pa
rtnership.
PTE—Prohibited Transaction Exemption.
Pub. L.—Public Law.
REIT—Re
al Estate Investment Trust.
Rev. Proc.—Revenue Procedure.
Rev. Rul.—Revenue Ruling.
S—Subsi
diary.
S.P.R.—Statement of Procedural Rules.
Stat.—Statutes at Large.
T—Target
Corporation.
T.C.—Tax Court.
T.D.—Treasury Decision.
TFE—Trans
feree.
TFR—Transferor.
T.I.R.—Technical Information Release.
TP—Taxpay
er.
TR—Trust.
TT—Trustee.
U.S.C.—Uni
ted States Code.
X—Corporation.
Y—Corporation.
Z—Corporat
ion.
August 9, 2004i2004–32 I.R.B.

Numerical Finding List
1
Bulletins 2004–27 through 2004–32
Announcements:
2004-55, 2004-27 I.R.B.15
2004-56, 2004-28 I.R.B.41
2004-57, 2004-27 I.R.B.15
2004-58, 2004-29 I.R.B.66
2004-59, 2004-30 I.R.B.94
2004-60, 2004-29 I.R.B.43
2004-61, 2004-29 I.R.B.67
2004-62, 2004-30 I.R.B.103
2004-63, 2004-31 I.R.B.184
Notices:
2004-41, 2004-28 I.R.B.31
2004-43, 2004-27 I.R.B.10
2004-44, 2004-28 I.R.B.32
2004-45, 2004-28 I.R.B.33
2004-46, 2004-29 I.R.B.46
2004-47, 2004-29 I.R.B.48
2004-48, 2004-30 I.R.B.88
2004-49, 2004-30 I.R.B.88
2004-51, 2004-30 I.R.B.89
2004-52, 2004-32 I.R.B.168
Proposed Regulations:
REG-153841-02, 2004-31 I.R.B.145
REG-131486-03, 2004-28 I.R.B.36
REG-150562-03, 2004-32 I.R.B.175
REG-117307-04, 2004-28 I.R.B.39
Revenue Procedures:
2004-38, 2004-27 I.R.B.10
2004-39, 2004-29 I.R.B.49
2004-40, 2004-29 I.R.B.50
2004-41, 2004-30 I.R.B.90
2004-42, 2004-31 I.R.B.121
2004-43, 2004-31 I.R.B.124
2004-44, 2004-31 I.R.B.134
2004-45, 2004-31 I.R.B.140
2004-46, 2004-31 I.R.B.142
2004-47, 2004-32 I.R.B.169
2004-48, 2004-32 I.R.B.172
Revenue Rulings:
2004-63, 2004-27 I.R.B.6
2004-64, 2004-27 I.R.B.7
2004-65, 2004-27 I.R.B.1
2004-66, 2004-27 I.R.B.4
2004-67, 2004-28 I.R.B.28
2004-68, 2004-31 I.R.B.118
2004-71, 2004-30 I.R.B.74
2004-72, 2004-30 I.R.B.77
2004-73, 2004-30 I.R.B.80
Revenue Rulings— Continued:
2004-74, 2004-30 I.R.B.84
2004-75, 2004-31 I.R.B.109
2004-76, 2004-31 I.R.B.111
2004-77, 2004-31 I.R.B.119
2004-78, 2004-31 I.R.B.108
2004-79, 2004-31 I.R.B.106
2004-80, 2004-32 I.R.B.164
2004-81, 2004-32 I.R.B.161
2004-83, 2004-32 I.R.B.157
2004-84, 2004-32 I.R.B.163
2004-87, 2004-32 I.R.B.154
2004-88, 2004-32 I.R.B.165
Tax Conventions:
2004-60, 2004-29 I.R.B.43
Treasury Decisions:
9131, 2004-27 I.R.B.2
9132, 2004-28 I.R.B.16
9133, 2004-28 I.R.B.25
9134, 2004-30 I.R.B.70
9135, 2004-30 I.R.B.69
9136, 2004-31 I.R.B.112
9138, 2004-32 I.R.B.160
9140, 2004-32 I.R.B.159
1
A cumulative list of all revenue rulings, revenueprocedures, Treasury decisions, etc., publishedin Internal Revenue Bulletins 2004–1 through 2004–26 is in Internal Revenue Bulletin
2004–26, dated June 28, 2004.
2004–32 I.R.B.iiAugust 9, 2004

Findings List of Current Actions on
Previously Published Items
1
Bulletins 2004–27 through 2004–32
Notices:
98-65
Superseded by
Rev. Proc. 2004-40, 2004-29 I.R.B.50
2001-50
Modified by
Rev. Proc. 2004-46, 2004-31 I.R.B.142
Revenue Procedures:
79-61
Superseded by
Rev. Proc. 2004-44, 2004-31 I.R.B.134
94-64
Superseded by
Rev. Proc. 2004-38, 2004-27 I.R.B.10
96-53
Superseded by
Rev. Proc. 2004-40, 2004-29 I.R.B.50
2002-9
Modified and amplified by
Rev. Proc. 2004-41, 2004-30 I.R.B.90
2004-4
Modified by
Rev. Proc. 2004-44, 2004-31 I.R.B.134
Revenue Rulings:
54-379
Superseded by
Rev. Rul. 2004-68, 2004-31 I.R.B.118
73-354
Obsoleted by
Rev. Rul. 2004-76, 2004-31 I.R.B.111
80-7
Amplified and clarified by
Rev. Rul. 2004-71, 2004-30 I.R.B.74
Rev. Rul. 2004-72, 2004-30 I.R.B.77
Rev. Rul. 2004-73, 2004-30 I.R.B.80
Rev. Rul. 2004-74, 2004-30 I.R.B.84
81-100
Clarified and modified by
Rev. Rul. 2004-67, 2004-28 I.R.B.28
85-70
Amplified and clarified by
Rev. Rul. 2004-71, 2004-30 I.R.B.74
Rev. Rul. 2004-72, 2004-30 I.R.B.77
Rev. Rul. 2004-73, 2004-30 I.R.B.80
Rev. Rul. 2004-74, 2004-30 I.R.B.84
1
A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2004–1 through 2004–26 is in Internal Revenue Bulletin 2004–26, dated June 28, 2004.
August 9, 2004iii2004–32 I.R.B.
*U.S.Government Printing Office: 2004—304–778/60147