us-irs-announcements-irb-2006-33-pdf•Internal Revenue Bulletin 2006-33 (PDF rendition): IRS Announcements
Internal Revenue Bulletin 2006-33 (PDF rendition): IRS Announcements
us-irs-announcements-irb-2006-33-pdfInternal Revenue Bulletin 2006-33 (PDF rendition): IRS AnnouncementsGuidance
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Bulletin No. 200 6-33 August 14, 2006 HIGHLIGHTS OF THIS ISSUE These synopses are intended only as aids to the reader in identifying the subject matter covered. They may not be relied upon as authoritative interpretations. INCOME TAX T.D. 9271, page 224. Final regulations under section 338 of the Code provide that the step transaction doctrine will not be applied if a taxpayer makes a valid section 338(h)(10) election with respect to a step in a multi-step transaction, even if the transaction would otherwise qualify as a reorganization if the step standing alone is a qualified stock purchase. T.D. 9277 , page 226. Final regu lations under section 4980G of the Code provide guidance regarding employer comparable contributions to Health Sa vings Accounts (HSAs). The regulations provide that if an employer makes comparable contributions to any employee ’s HSA, the employer must make comparable con- tributio ns for the calendar year to the HSAs of all comparable partici pating employees. In addition, the final regulations set forth th e rules for calculating comparable contributions. Notice 2006–67, page 248. This notice provides guidance with respect to the 50-percent additional first year depreciation deduction provided by section 1400N(d) of the Code for qualified Gulf Opportunity (GO) Zone property. Rev. Proc. 2002–9 modified and amplified. Notice 2006–70, page 252. This notice states that the Treasury Department and IRS intend to amend the effective date provision of regulations section 1.7874–2T (and when it is finalized, 1.7874–2) so that it will not apply to certain acquisitions, otherwise described in sec- tion 7874(a)(2)(b)(i) of the Code which were completed on or after June 6, 2006, provided such acquisitions were entered into pursuant to a binding commitment which was in effect on December 28, 2005. EXEMPT ORGANIZATIONS Announcement 2006–54, page 254. Nationwide Consumer Credit Services of Ft. Lauderdale, FL, no longer qualifies as an organization to which contributions are deductible under section 170 of the Code. EXCISE TAX T.D. 9277, page 226. Final regulations under section 4980G of the Code provide guidance regarding employer comparable contributions to Health Savings Accounts (HSAs). The regulations provide that if an employer makes comparable contributions to any employee’s HSA, the employer must make comparable con- tributions for the calendar year to the HSAs of all comparable participating employees. In addition, the final regulations set forth the rules for calculating comparable contributions. ADMINIS TRATIVE T.D. 927 0, page 237. Final re gulations under section 6045(f) of the Code relate to informa tion reporting for payments of gross proceeds to at- torneys . Regulations under section 6041 are also amended with re spect to information reporting for payments for legal servic es. (Continued on the next page) Fi nding Lists begin on page ii. T.D. 9274, page 244. Final regulations under section 6103 of the Code describe the circumstances under which IRS and the Office of Treasury In- spector General for Tax Administration (TIGTA) employees may disclose return information for investigative purposes. The reg- ulations clarify and elaborate on the types of situations and con- texts in which investigative disclosures may be made. Announcement 2006–52, page 254. Change in accounting methods; revised instructions for Form 3115.The instructions for Form 3115 have been re- vised as of May 2006. The May 2006 version of the instruc- tions for Form 3115 is to be used with the December 2003 version of Form 3115,Application for Change in Accounting Method. Announcement 2006–53, page 254. This document provides a change of location for a public hearing on proposed regulations (REG–111578–06, 2006–24 I.R.B. 1060) under section 199 of the Code. The regulations provide a deduction for incomeattributable to domestic pro- duction activities to certain transactions involving computer software. The public hearing is scheduled for August 29, 2006. August 14, 20062006–33 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. 2006–33 I.R.B.August 14, 2006 August 14, 20062006–33 I.R.B. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 338.—Certain Stock Purchases Treated as Asset Acquisitions 26 CFR 1.338–3: Qualification for the section 338 election. T.D. 9271 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Effect of Elections in Certain Multi-Step Transactions AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains fi- nal regulations that give effect to section 338(h)(10) elections in certain multi-step transactions. These final regulations are necessary in order to provide taxpay- ers with guidance regarding the validity of certain elections made under section 338(h)(10). These final regulations affect corporations and their shareholders. DATES:Effective Date:These regulations are effective July 5, 2006. Applicability Date:For dates of appli- cability, see §1.338(h)(10)–1(h) of these regulations. FOR FURTHER INFORMATION CONTACT: Daniel F. Heins, at (202) 622–7930 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The IRS published temporary regula- tions (T.D. 9071, 2003–2 C.B. 560) in theFederal Registeron July 9, 2003 (68 FR 40766) (the temporary regulations), along with a notice of proposed rulemak- ing by cross-reference to the temporary regulations (REG–143679–02, 2003–2 C.B. 592) (the proposed regulations). These temporary regulations provide, notwithstanding anything to the contrary in §1.338–3(c)(1)(i), a section 338(h)(10) election may be made for T where P’s acquisition of T stock, viewed indepen- dently, constitutes a qualified stock pur- chase and, after the stock acquisition, T merges or liquidates into P (or another member of the affiliated group that in- cludes P), whether or not, under relevant provisions of law, including the step trans- action doctrine, the acquisition of the T stock and the merger or liquidation of T qualify as a reorganization described in section 368(a). If a section 338(h)(10) election is made in a case where the ac- quisition of T stock followed by a merger or liquidation of T into P qualifies as a re- organization described in section 368(a), for all Federal tax purposes, P’s acqui- sition of T stock is treated as a qualified stock purchase and is not treated as part of a reorganization described in section 368(a). For rules about the operation of the step transaction doctrine and the re- lationship between section 338 and the reorganization provisions when a section 338 election is not made, see §1.338–3(d). See also Rev. Rul. 90–95, 1990–2 C.B. 67. See §601.601(d)(2). No public hearing regarding the pro- posed regulations was requested or held. The IRS received written and electronic comments regarding the proposed reg- ulations. After consideration of the comments, the proposed regulations are adopted by this Treasury decision. The most significant comments received with respect to the proposed regulations are discussed in this preamble. Explanation of Provisions A.Section 338(g) Elections Some commentators recommend that the final regulations allow section 338(g) elections, as well as section 338(h)(10) elections, to turn off the step transaction doctrine in a multi-step transaction that constitutes a reorganization under section 368(a). Although a section 338(g) elec- tion is made by the purchasing corporation and the shareholders ofthe target corpora- tion (target) do not consent to the election, one commentator states that the IRS will not be subject to whipsaw if the IRS pro- vides regulations requiring the sharehold- ers of the acquired corporation to treat the transaction consistently with the acquiring corporation’s election, rather than as a re- organization under section 368(a). The final regulations do not adopt the commentators’ recommendation, and con- tinue to turn off the step transaction doc- trine only in the case of section 338(h)(10) elections. Extending the final regulations to section 338(g) elections would allow the acquiring corporation to unilaterally elect to treat the transaction, for all parties, as other than a reorganization under section 368(a). In light of potential whipsaw and other concerns, the final regulations con- tinuetoapplyonlytosection338(h)(10) elections, not section 338(g) elections. B.Corporate Purchaser Requirement One commentator suggests that §1.338–3(b) be amended to clarify un- der what circumstances a corporation will be considered, for tax purposes, to have purchased the stock of target pursuant to section 338(d)(3). Under §1.338–3(b), an individual can- not make a qualified stock purchase of tar- get. If an individual forms a corporation (new P) to acquire target stock, new P can make a qualified stock purchase of target if new P is considered, for tax purposes, to purchase the target stock. Facts that may indicate that new P does not purchase the target stock include new P’s merging downstream into target, liquidating, or oth- erwise disposing of the target stock follow- ing the purported qualified stock purchase. The IRS and Treasury Department are continuing to study whether any amend- ments to the portion of the regulations un- dersection338relatedtothecorporate purchaser requirement are appropriate. Special Analyses It has been determined that this Trea- sury decision is not asignificant regula- tory action as defined in Executive Or- der 12866. Therefore, a regulatory assess- ment is not required. It is hereby certi- fied that these regulations do not have a 2006–33 I.R.B.224August 14, 2006 significant economic impact on a substan- tial amount of small entities. The number of corporations affected is limited because section 338(h)(10) elections are made only in extraordinary circumstances, the sale of a business. Furthermore, these regulations only affect transactions in which the stock of the acquiring corporation is a significant part of the consideration. Accordingly, a regulatory flexibility analysis does not ap- ply. Since these final regulations make no changes to the current effective temporary regulations, a delayed effective date pur- suant to 5 U.S.C. 553(d)(1) and (3) is not necessary. Pursuant to section 7805(f) of the Code, the notice of proposed rulemak- ing preceding these regulations was sub- mitted to the Chief Counsel for Advocacy of the Small BusinessAdministration for comment on its impact on small business. Drafting Information The principal author of these regula- tions is Daniel F. Heins of the Office of the Associate Chief Counsel (Corporate). ***** 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 is amended by adding an entry in numerical order to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Section 1.338(h)(10)–1 also issued un- der 26 U.S.C. 337(d), 338, and 1502. Par. 2. §1.338–3 is amended by revis- ing the last sentence in paragraph (c)(1)(i) to read as follows: §1.338–3 Qualification for the section 338 election. ***** (c) * * * (1) * * * (i)***See§1.338(h)(10)–1(c)(2) for special rules concerning section 338(h)(10) elections in certain multi-step transactions. Par. 3. §1.338(h)(10)–1 is amended as follows: 1. Paragraph (c)(2) is revised. 2. Paragraph (e)Examples 11through 14and paragraph (h) are added. The revision and additions read as fol- lows: §1.338(h)(10)–1 Deemed asset sale and liquidation. ***** (c) * * * (2)Availability of section 338(h)(10) election in certain multi-step transactions. Notwithstanding anything to the contrary in §1.338–3(c)(1)(i), a section 338(h)(10) election may be made for T where P’s acquisition of T stock, viewed indepen- dently, constitutes a qualified stock pur- chase and, after the stock acquisition, T merges or liquidates into P (or another member of the affiliated group that in- cludes P), whether or not, under relevant provisions of law, including the step trans- action doctrine, the acquisition of the T stock and the merger or liquidation of T qualify as a reorganization described in section 368(a). If a section 338(h)(10) election is made in a case where the acqui- sition of T stock followed by a merger or liquidation of T into P qualifies as a reor- ganization described in section 368(a), for all Federal tax purposes, P’s acquisition of T stock is treated as a qualified stock pur- chase and is not treated as part of a reorga- nization described in section 368(a). ***** (e) * * * Example 11.Stock acquisition followed by up- stream merger—without section 338(h)(10) election. (i) P owns all the stock of Y, a newly formed sub- sidiary. S owns all the stock of T. Each of P, S, T and Y is a domestic corporation. P acquires all of the T stock in a statutory merger of Y into T, with T sur- viving. In the merger, S receives consideration con- sisting of 50% P voting stock and 50% cash. Viewed independently of any otherstep, P’s acquisition of T stock constitutes a qualified stock purchase. As part of the plan that includes P’s acquisition of the T stock, T subsequently merges into P. Viewed independently of any other step, T’s merger into P qualifies as a liq- uidation described in section 332. Absent the applica- tion of paragraph (c)(2) of this section, the step trans- action doctrine would apply to treat P’s acquisition of the T stock and T’s merger into P as an acquisition by P of T’s assets in a reorganization described in sec- tion 368(a). P and S do not make a section 338(h)(10) election with respect to P’s purchase of the T stock. (ii) Because P and S do not make an election un- der section 338(h)(10) for T, P’s acquisition of the T stock and T’s merger into P is treated as part of a re- organization described in section 368(a). Example 12.Stock acquisition followed by up- stream merger—with section 338(h)(10) election. (i)ThefactsarethesameasinExample 11except that P and S make a joint election under section 338(h)(10) for T. (ii) Pursuant to paragraph (c)(2) of this section, as a result of the election under section 338(h)(10), for all Federal tax purposes, P’s acquisition of the T stock is treated as a qualified stock purchase and P’s acquisition of the T stock is not treated as part of a reorganization described in section 368(a). Example 13.Stock acquisition followed by brother-sister merger—with section 338(h)(10) elec- tion. (i) The facts are the same as inExample 12, except that, following P’s acquisition of the T stock, T merges into X, a domestic corporation that is a wholly owned subsidiary of P. Viewed independently of any other step, T’s merger into X qualifies as a reorganization described in section 368(a). Absent the application of paragraph (c)(2) of this section, the step transaction doctrine would apply to treat P’s acquisition of the T stock and T’s merger into X as an acquisition by X of T’s assets in a reorganization describedinsection368(a). (ii) Pursuant to paragraph (c)(2) of this section, as a result of the election under section 338(h)(10), for all Federal tax purposes, P’s acquisition of T stock is treated as a qualified stock purchase and P’s acquisi- tion of T stock is not treated as part of a reorganization describedinsection368(a). Example 14.Stock acquisition that does not qual- ify as a qualified stock purchase followed by upstream merger. (i) The facts are the same as inExample 11, except that, in the statutory merger of Y into T, S re- ceives only P voting stock. (ii) Pursuant to §1.338–3(c)(1)(i) and paragraph (c)(2) of this section, no election under section 338(h)(10) can be made with respect to P’s acqui- sition of the T stock because, pursuant to relevant provisions of law, including the step transaction doc- trine, that acquisition followed by T’s merger into P is treated as a reorganization described in section 368(a)(1)(A), and that acquisition, viewed indepen- dently of T’s merger into P, does not constitute a qualified stock purchase under section 338(d)(3). Accordingly, P’s acquisition of the T stock and T’s merger into P is treated as a reorganization described in section 368(a). ***** (h)Effective date. Thissectionisap- plicable to stock acquisitions occurring on or after July 5, 2006. For stock acquisi- tions occurring before July 5, 2006, see §1.338(h)(10)–1T as contained in the edi- tion of 26 CFR part 1, revised as of April 1, 2006. ***** §1.338(h)(10)–1T [Removed] Par. 4. Section 1.338(h)(10)–1T is re- moved. Mark E. Matthews, Deputy Commissioner for Services and Enforcement. August 14, 20062252006–33 I.R.B. Approved June 20, 2006. Eric Solomon, Acting Deputy Assistant Secretary of the Treasury (Tax Policy). (Filed by the Office of the Federal Register on July 3, 2006, 8:45 a.m., and published in the issue of the Federal Register for July 5, 2006, 71 F.R. 38074) Section 4980G.—Failure of Employer to Make Comparable Health Savings Account Contributions 26 CFR 54.4980G–1: Failure of employer to make comparable health savings account contributions T.D. 9277 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 54 Employer Comparable Contributions to Health Savings Accounts Under Section 4980G AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains final regulations that provide guidance regard- ing employer comparable contributions to Health Savings Accounts (HSAs) under section 4980G. In general, these final reg- ulations affect employers that contribute to employees’ HSAs. DATES:Effective Date:These regulations are effective on July 31, 2006. Applicability Date:These regulations apply to employer contributions to HSAs made on or after January 1, 2007. FOR FURTHER INFORMATION CONTACT: Mireille T. Khoury (202) 622–6080 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background This document contains final Pension Excise Tax Regulations (26 CFR part 54) under section 4980G of the Internal Rev- enue Code (Code). Under section 4980G of the Code, an excise tax is imposed on an employer that fails to make comparable contributions to the HSAs of its employ- ees. Section 1201 of the Medicare Prescrip- tion Drug, Improvement, and Modern- ization Act of 2003 (Act), Public Law 108–173, (117 Stat. 2066, 2003) added section 223 to the Code to permit eligible individuals to establish HSAs for taxable years beginning after December 31, 2003. Section 4980G was also added to the Code by the Act. Section 4980G(a) imposes an excise tax on the failure of an employer to make comparable contributions to the HSAs of its employees for a calendar year. Section 4980G(b) provides that rules and requirements similar to section 4980E (the comparability rules for Archer Medical Savings Accounts (Archer MSAs)) apply for purposes of section 4980G. Section 4980E(b) imposes an excise tax equal to 35% of the aggregate amount contributed by the employer to the Archer MSAs of employees during the calendar year if an employer fails to make comparable contributions to the Archer MSAs of its employees in a calendar year. Therefore, if an employer fails to make comparable contributions to the HSAs of its employ- ees during a calendar year, an excise tax equal to 35% of the aggregate amount contributed by the employer to the HSAs of its employees during that calendar year is imposed on the employer. See Sec- tions 4980G(a) and (b) and 4980E(b). See also Notice 2004–2, 2004–1 C.B. 269), Q & A–32. See §601.601(d)(2). On August 26, 2005, proposed regu- lations (REG–138647–04, 2005–2 C.B. 697) were published in theFederal Reg- ister(70 FR 50233). The proposed reg- ulations clarified and expanded upon the guidance regarding the comparability rules published in Notice 2004–2 and in Notice 2004–50, 2004–2 C.B. 196), Q & A–46 through Q & A–54. See §601.601(d)(2) of this chapter. Written public comments on the proposed regulations were received and a public hearing was requested. The hearing was held on February 23, 2006. After consideration of all the comments, these final regulations adopt the provi- sions of the proposed regulations with certain modifications, the most significant of which are highlighted in this preamble. Explanation of Provisions and Summary of Comments Several commentators requested that theeffectivedateshouldbeatleastone year from the date the regulations are fi- nalized to give employers sufficient time to implement changes required to com- ply with the final regulations. The final regulations will apply to employer contri- butions to HSAs made on or after January 1, 2007. An employer is not required to con- tribute to the HSAs of its employees. In general, however, if an employer makes contributions to any employee’s HSA, the employer must make comparable contri- butions to the HSAs of all comparable participating employees. Comparable participating employees are eligible indi- viduals (as defined in section 223(c)(1)) who are in the same category of employ- ees and who have the same category of high deductible health plan (HDHP) cov- erage. Under the proposed regulations, the categories of coverage were self-only HDHP coverage and family HDHP cover- age. Several commentators recommended that the final regulations should recognize additional categories of coverage other than self-only and family HDHP. The final regulations adopt this recommendation and allow family HDHP coverage to be subdivided into the following additional categories of HDHP coverage: self plus one, self plus two and self plus three or more. In addition, the final regulations provide that an employer’s contribution with respect to the self plus two category may not be less than the employer’s con- tribution with respect to the self plus one category and the employer’s contribution with respect to the self plus three or more category may not be less than the em- ployer’s contribution with respect to the self plus two category. In addition, several commentators re- quested separate treatment for groups of collectively bargained employees, such that employers’ HSA contributions to collectively bargained employees would not be subject to the comparability rules. In response to these comments, the final regulations provide that employees who are included in a unit of employees cov- ered by abona fidecollective bargaining agreement between employee representa- tives and one or more employers are not 2006–33 I.R.B.226August 14, 2006 comparable participating employees, if health benefits were the subject of good faith bargaining between such employee representatives and such employer or employers. Collectively bargained em- ployees are, therefore, disregarded for purposes of section 4980G. Numerous commentators requested guidance on the exception to the compa- rability rules for employer contributions made through a section 125 cafeteria plan. In response to these comments, the final regulations provide additional guidance on how employer HSA contributions are made through a cafeteria plan. Specif- ically, the final regulations provide that employer contributions to employees’ HSAs are made through the cafeteria plan if under the written cafeteria plan, the em- ployees have the right to elect to receive cash or other taxable benefits in lieu of all or a portion of an HSA contribution (i.e., all or a portion of the HSA contributions are available as pre-tax salary reduction amounts), regardless of whether an em- ployee actually elects to contribute any amount to the HSA by salary reduction. The final regulations also provide several examples that illustrate the application of the cafeteria plan exception to the compa- rability rules. One commentator requested guidance on what actions an employer must take to locate any missing comparable partic- ipating former employees for purposes of contributions to eligible former em- ployees. The final regulations provide guidance on this issue and explain that an employer making comparable contri- butions to former employees must take reasonable actions to locate any missing comparable participating former employ- ees. In general, such reasonable actions include the use of certified mail, the In- ternal Revenue Service Letter Forwarding Program, see Rev. Proc. 94–22, 1994–1 C.B. 608, or the Social Security Adminis- tration’s Letter Forwarding Service. See §601.601(d)(2). Several commentators requested that testing for comparability purposes be per- mitted on a plan year, rather than calendar year, basis. Section 4980G mandates the use of a calendar year for testing pur- poses. Accordingly, the final regulations do not adopt the suggestion for plan year testing. Also, the final regulations have removed and reserved the provision deal- ing with instances where an employee has not established an HSA by the end of the calendar year. Finally, one commentator requested clarification on what would constitute rea- sonable interest for purposes of section 4980G. In response to this comment, the final regulations provide that the determi- nation of whether a rate of interest used by an employer is reasonable will be based on all of the facts and circumstances. How- ever, if an employer calculates interest using the Federal short-term rate as de- termined by the Secretary in accordance with Code section 1274(d), the employer is deemed to use a reasonable interest rate. Special Analyses It has been determined that these regu- lations are not a significant regulatory ac- tion as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section553(b)oftheAdministrativePro- cedure Act (5 U.S.C. chapter 5) does not apply to these regulations. These regula- tions do not impose a collection of infor- mation on small entities, thus the Regula- tory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the proposed regulations pre- ceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for com- ment on its impact on small business. Drafting Information The principal authors of these regulations are Barbara E. Pie and Mireille T. Khoury, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR part 54 is amended as follows: PART 54—PENSION EXCISE TAXES Paragraph 1. The authority citation for part 54 is amended by adding entries in numerical order to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Section 54.4980G–1 also issued under 26 U.S.C. 4980G. Section 54.4980G–2 also issued under 26 U.S.C. 4980G. Section 54.4980G–3 also issued under 26 U.S.C. 4980G. Section 54.4980G–4 also issued under 26 U.S.C. 4980G. Section 54.4980G–5 also issued under 26 U.S.C. 4980G. * * * Par.2.Sections 54.4980G–0, 54.4980G–1, 54.4980G–2, 54.4980G–3, 54.4980G–4, and 54.4980G–5 are added to read as follows: §54.4980G–0 Table of contents. This section contains the questions for §§ 54.4980G–1, 54.4980G–2, 54.4980G–3,54.4980G–4,and 54.4980G–5. §54.4980G–1 Failure of employer to make comparable health savings account contributions. Q–1: What are the comparability rules that apply to employer contributions to Health Savings Accounts (HSAs)? Q–2: What are the categories of HDHP coverage for purposes of applying the comparability rules? Q–3: What is the testing period for making comparable contributions to em- ployees’ HSAs? Q–4: How is the excise tax computed if employer contributions do not satisfy the comparability rules for a calendar year? §54.4980G–2 Employer contribution defined. Q–1: Do the comparability rules apply to amounts rolled over from an employee’s HSA or Archer Medical Savings Account (Archer MSA)? Q–2: If an employee requests that his or her employer deduct after-tax amounts from the employee’s compensation and forward these amounts as employee con- tributions to the employee’s HSA, do the comparability rules apply to these amounts? §54.4980G–3 Employee for comparability testing. Q–1: Do the comparability rules apply to contributions that an employer makes August 14, 20062272006–33 I.R.B. to the HSAs of independent contractors or self-employed individuals? Q–2: May a sole proprietor who is an eligible individual contribute to his or her own HSA without contributing to the HSAs of his or her employees who are el- igible individuals? Q–3: Do the comparability rules apply to contributions by a partnership to a part- ner’s HSA? Q–4: How are members of controlled groups treated when applying the compa- rability rules? Q–5: What are the categories of em- ployees for comparability testing? Q–6: Are employees who are included in a unit of employees covered by a col- lective bargaining agreement comparable participating employees? Q–7: Is an employer permitted to make comparable contributions only to the HSAs of comparable participating employees who have coverage under the employer’s HDHP? Q–8: If an employee and his or her spouse are eligible individuals who work for the same employer and one employee- spouse has family coverage for both em- ployees under the employer’s HDHP, must the employer make comparable contribu- tions to the HSAs of both employees? Q–9: Does an employer that makes HSA contributions only for one class of non-collectively bargained employees who are eligible individuals, but not for an- other class of non-collectively bargained employees who are eligible individuals (for example, management v. non-man- agement) satisfy the requirement that the employer make comparable contributions? Q–10: If an employer contributes to theHSAsofformeremployeeswhoare eligible individuals, do the comparability rules apply to these contributions? Q–11: Is an employer permitted to make comparable contributions only to the HSAs of comparable participating for- mer employees who have coverage under the employer’s HDHP? Q–12: If an employer contributes only totheHSAsofformeremployeeswho are eligible individuals with coverage un- der the employer’s HDHP, must the em- ployer make comparable contributions to theHSAsofformeremployeeswhoare eligible individuals with coverage under the employer’s HDHP because of an elec- tion under a COBRA continuation provi- sion (as defined in section 9832(d)(1))? Q–13: How do the comparability rules apply if some employees have HSAs and other employees have Archer MSAs? §54.4980G–4 Calculating comparable contributions. Q–1: What are comparable contribu- tions? Q–2: How does an employer comply with the comparability rules when some non-collectively bargained employees who are eligible individuals do not work for the employer duringthe entire calendar year? Q–3: How do the comparability rules apply to employer contributions to em- ployees’ HSAs if some non-collectively bargained employees work full-time dur- ing the entire calendar year, and other non-collectively bargained employees work full-time for less than the entire cal- endar year? Q–4: May an employer make contribu- tions for the entire year to the HSAs of its employees who are eligible individuals at the beginning of the calendar year (i.e.,on a pre-funded basis) instead of contributing on a pay-as-you-go or on a look-back ba- sis? Q–5: Must an employer use the same contribution method as described in Q&A–2andQ&A–4ofthissection for all employees who were comparable participating employees for any month during the calendar year? Q–6: How does an employer comply with the comparability rules if an em- ployee has not established an HSA at the time the employer contributes to its em- ployees’ HSAs? Q–7: If an employer bases its contri- butions on a percentage of the HDHP de- ductible, how is the correct percentage or dollar amount computed? Q–8: Does an employer that con- tributes to the HSA of each comparable participating employee in an amount equal to the employee’s HSA contribution or a percentage of the employee’s HSA con- tribution (matching contributions) satisfy the rule that all comparable participating employees receive comparable contribu- tions? Q–9: If an employer conditions contri- butions by the employer to an employee’s HSA on an employee’s participation in health assessments, disease management programs or wellness programs and makes the same contributions available to all em- ployees who participate in the programs, do the contributions satisfy the compara- bility rules? Q–10: If an employer makes additional contributions to the HSAs of all compara- ble participating employees who have at- tained a specified age or who have worked for the employer for a specified number of years, do the contributions satisfy the com- parability rules? Q–11: If an employer makes additional contributions to the HSAs of all compa- rable participating employees who are eli- gible to make the additional contributions (HSA catch-up contributions) under sec- tion 223(b)(3), do the contributions satisfy the comparability rules? Q–12: If an employer’s contributions to an employee’s HSA result in non-com- parable contributions, may the employer recoup the excess amount from the em- ployee’s HSA? Q–13: What constitutes a reasonable interest rate for purposes of making com- parable contributions? §54.4980G–5 HSA comparability rules and cafeteria plans and waiver of excise tax. Q–1: If an employer makes contribu- tions through a section 125 cafeteria plan to the HSA of each employee who is an eli- gible individual, are the contributions sub- ject to the comparability rules? Q–2: If an employer makes contribu- tions through a cafeteria plan to the HSA of each employee who is an eligible indi- vidual in an amount equal to the amount of the employee’s HSA contribution or a per- centage of the amount of the employee’s HSA contribution (i.e., matching contribu- tions), are the contributions subject to the section 4980G comparability rules? Q–3: If under the employer’s cafete- ria plan, employees who are eligible indi- viduals and who participate in health as- sessments, disease management programs or wellness programs receive an employer contribution to an HSA and the employ- ees have the right to elect to make pre- tax salary reduction contributions to their HSAs, are the contributions subject to the comparability rules? 2006–33 I.R.B.228August 14, 2006 Q–4: May all or part of the excise tax imposed under section 4980G be waived? §54.4980G–1 Failure of employer to make comparable health savings account contributions. Q–1: What are the comparability rules that apply to employer contributions to Health Savings Accounts (HSAs)? A–1: If an employer makes contri- butions to any employee’s HSA, the employer must make comparable con- tributions to the HSAs of all comparable participating employees. See Q & A–1 in §54.4980G–4 for the definition of compa- rable contributions. Comparable partici- pating employees are eligible individuals (as defined in section 223(c)(1)) who are in the same category of employees and who have the same category of high de- ductible health plan (HDHP) coverage. See sections 4980G(b) and 4980E(d)(3). See section 223(c)(2) and (g) for the def- inition of an HDHP. See also Q & A–5 in §54.4980G–3 for the categories of em- ployees and Q & A–2 of this section for the categories of HDHP coverage. But see Q & A–6 in §54.4980G–3 for treatment of collectively bargained employees. Q–2: What are the categories of HDHP coverage for purposes of applying the comparability rules? A–2: (a)In general. Generally, the cat- egories of coverage are self-only HDHP coverage and family HDHP coverage. Family HDHP coverage means any cover- age other than self-only HDHP coverage. The comparability rules apply separately to self-only HDHP coverage and family HDHP coverage. In addition, if an HDHP has family coverage options meeting the descriptions listed in paragraph (b) of this Q & A–2, each such coverage option may be treated as a separate category of coverage and the comparability rules may be applied separately to each category. However, if the HDHP has more than one category that provides coverage for the same number of individuals, all such cat- egories are treated as a single category for purposes of the comparability rules. Thus, the categories of “employee plus spouse” and “employee plus dependent,” each pro- viding coverage for two individuals, are treated as the single category “self plus one” for comparability purposes. See, however, the final sentence of paragraph (a) of Q & A–1 of §54.4980G–4 for a spe- cial rule that applies if different amounts are contributed for different categories of family coverage. (b)HDHP Family coverage categories. The coverage categories are— (1) Self plus one; (2) Self plus two; and (3)Selfplusthreeormore. (c)Examples. The rules of this Q & A–2 are illustrated by the follow- ing examples: Example 1. Employer A maintains an HDHP and contributes to the HSAs of eligible employees who elect coverage under the HDHP. The HDHP has self-only coverage and family coverage. Thus, the categories of coverage are self-only and family cov- erage. Employer A contributes $750 to the HSA of each eligible employee with self-only HDHP cover- age and $1,000 to the HSA of each eligible employee with family HDHP coverage. Employer A’s contri- butions satisfy the comparability rules. Example 2. (i) Employer B maintains an HDHP and contributes to the HSAs of eligible employees who elect coverage under the HDHP. The HDHP has the following coverage options: (A) Self-only; (B)Selfplusspouse; (C) Self plus dependent; (D) Self plus spouse plus one dependent; (E) Self plus two dependents; and (F) Self plus spouse and two or more dependents. (ii) The self plus spouse category and the self plus dependent category constitute the same category of HDHP coverage (self plus one) and Employer B must make the same comparable contributions to the HSAs of all eligible individuals who are in either the self plus spouse category of HDHP coverage or the self plus dependent category of HDHP coverage. Like- wise, the self plus spouse plus one dependent cate- gory and the self plus two dependents category con- stitute the same category of HDHP coverage (self plus two) and Employer B must make the same com- parable contributions to the HSAs of all eligible in- dividuals who are in either the self plus spouse plus one dependent category of HDHP coverage or the self plus two dependents category of HDHP coverage. Example 3. (i) Employer C maintains an HDHP and contributes to the HSAs of eligible employees who elect coverage under the HDHP. The HDHP has the following coverage options: (1) Self-only; (2)Selfplusone; (3)Selfplustwo;and (4) Self plus three or more. (ii) Employer C contributes $500 to the HSA of each eligible employee with self-only HDHP cover- age, $750 to the HSA of each eligible employee with self plus one HDHP coverage, $900 to the HSA of each eligible employee with self plus two HDHP cov- erage and $1,000 to the HSA of each eligible em- ployee with self plus three or more HDHP coverage. Employer C’s contributions satisfy the comparability rules. Q–3: What is the testing period for making comparable contributions to em- ployees’ HSAs? A–3: To satisfy the comparability rules, an employer must make comparable contributions for the calendar year to the HSAs of employees who are compara- ble participating employees. See section 4980G(a). See Q & A–3 and Q & A–4 in §54.4980G–4 for a discussion of HSA contribution methods. Q–4: How is the excise tax computed if employer contributions do not satisfy the comparability rules for a calendar year? A–4: (a)Computation of tax.Ifem- ployer contributions do not satisfy the comparability rules for a calendar year, the employer is subject to an excise tax equal to 35% of the aggregate amount contributed by the employer to HSAs for that period. (b)Example. The following example illustrates the rules in paragraph (a) of this Q & A–4: Example. During the 2007 calendar year, Em- ployer D has 8 employees who are eligible individ- uals with self-only coverage under an HDHP pro- vided by Employer D. The deductible for the HDHP is $2,000. For the 2007 calendar year, Employer D contributes $2,000 each to the HSAs of two employ- eesand$1,000eachtotheHSAsoftheothersixem- ployees, for total HSA contributions of $10,000. Em- ployer D’s contributions do not satisfy the compara- bility rules. Therefore, Employer D is subject to an excise tax of $3,500 (35% of $10,000) for its failure to make comparable contributions to its employees’ HSAs. §54.4980G–2 Employer contribution defined. Q–1: Do the comparability rules apply to amounts rolled over from an employee’s HSA or Archer Medical Savings Account (Archer MSA)? A–1: No. The comparability rules do not apply to amounts rolled over from an employee’s HSA or Archer MSA. Q–2: If an employee requests that his or her employer deduct after-tax amounts from the employee’s compensation and forward these amounts as employee con- tributions to the employee’s HSA, do the comparability rules apply to these amounts? A–2: No. Section 106(d) provides that amountscontributedbyanemployertoan eligible employee’s HSA shall be treated as employer-provided coverage for medi- cal expenses and are excludible from the August 14, 20062292006–33 I.R.B. employee’s gross income up to the limit in section 223(b). After-tax employee con- tributions to an HSA are not subject to the comparability rules because they are not employer contributions under section 106(d). §54.4980G–3 Employee for comparability testing. Q–1: Do the comparability rules apply to contributions thatan employer makes to the HSAs of independent contractors or self-employed individuals? A–1: No. The comparability rules ap- ply only to contributions that an employer makes to the HSAs of employees. Q–2: May a sole proprietor who is an eligible individual contribute to his or her own HSA without contributing to the HSAs of his or her employees who are el- igible individuals? A–2: (a)Sole proprietor not an em- ployee. Yes. The comparability rules ap- ply only to contributions made by an em- ployer to the HSAs of employees. Because a sole proprietor is not an employee, the comparability rules do not apply to contri- butions the sole proprietor makes to his or her own HSA. However, if a sole propri- etor contributes to any employee’s HSA, the sole proprietor must make compara- ble contributions to the HSAs of all com- parable participating employees. In deter- mining whether the comparability rules are satisfied, contributions that a sole propri- etor makes to his or her own HSA are not taken into account. (b)Example. The following example illustrates the rules in paragraph (a) of this Q&A–2: Example. In a calendar year, B, a sole proprietor is an eligible individual and contributes $1,000 to B’s own HSA. B also contributes $500 for the same cal- endar year to the HSA of each employee who is an eligible individual. The comparability rules are not violated by B’s $1,000 contribution to B’s own HSA. Q–3: Do the comparability rules apply to contributions by a partnership to a part- ner’s HSA? A–3: (a)Partner not an employee.No. Contributions by a partnership to abona fidepartner’s HSA are not subject to the comparability rules because the contribu- tions are not contributions by an employer to the HSA of an employee. The contribu- tions are treated as either guaranteed pay- ments under section 707(c) or distributions under section 731. However, if a partner- ship contributes to the HSAs of any em- ployee who is not a partner, the partner- ship must make comparable contributions to the HSAs of all comparable participat- ing employees. (b)Example. The following example illustrates the rules in paragraph (a) of this Q & A–3: Example. (i) Partnership X is a limited partner- ship with three equal individual partners, A (a gen- eral partner), B (a limited partner), and C (a limited partner). C is to be paid $300 annually for services rendered to Partnership X in her capacity as a part- ner without regard to partnership income (a section 707(c) guaranteed payment). D and E are the only employees of Partnership X and are not partners in PartnershipX.A,B,C,D,andEareeligibleindividu- als and each has an HSA. During Partnership X’s Year 1 taxable year, which is also a calendar year, Partner- ship X makes the following contributions— (A) A $300 contribution to each of A’s and B’s HSAs which are treated as section 731 distributions to A and B; (B)A$300contributiontoC’sHSAinlieuof paying C the guaranteed payment directly; and (C) A $200 contribution to each of D’s and E’s HSAs, who are comparable participating employees. (ii) Partnership X’s contributions to A’s and B’s HSAs are section 731 distributions, which are treated as cash distributions. Partnership X’s contribution to C’s HSA is treated as a guaranteed payment un- der section 707(c). The contribution is not excludible from C’s gross income under section 106(d) because the contribution is treated as a distributive share of partnership income for purposes of all Code sections other than sections 61(a) and 162(a), and a guaran- teed payment to a partner is not treated as compensa- tion to an employee. Thus, Partnership X’s contribu- tions to the HSAs of A, B, and C are not subject to the comparability rules. Partnership X’s contributions to D’s and E’s HSAs are subject to the comparability rules because D and E are employees of Partnership X and are not partners in Partnership X. Partnership X’s contributions satisfy the comparability rules. Q–4: How are members of controlled groups treated when applying the compa- rability rules? A–4: All persons or entities treated as a single employer under section 414 (b), (c), (m), or (o) are treated as one employer. See sections 4980G(b) and 4980E(e). Q–5: What are the categories of em- ployees for comparability testing? A–5: (a)Categories. The categories of employees for comparability testing are as follows (but see Q & A–6 of this section for the treatment of collectively bargained employees)— (1) Current full-time employees; (2) Current part-time employees; and (3) Former employees (except for for- mer employees with coverage under the employer’s HDHP because of an election under a COBRA continuation provision (as defined in section 9832(d)(1)). (b)Part-time and full-time employees. For purposes of section 4980G, part-time employees are customarily employed for fewerthan30hoursperweekandfull-time employees are customarily employed for 30 or more hours per week. See sections 4980G(b) and 4980E(d)(4)(A) and (B). (c)In general. Except as provided in Q & A–6 of this section, the categories of employees in paragraph (a) of this Q & A–5 are the exclusive categories of employees for comparability testing. An employer must make comparable contri- butions to the HSAs of all comparable participating employees (eligible individ- uals who are in the same category of em- ployees with the same category of HDHP coverage) during the calendar year with- out regard to any classification other than these categories. For example, full-time eligible employees with self-only HDHP coverage and part-time eligible employees with self-only HDHP coverage are sepa- rate categories of employees and different amounts can be contributed to the HSAs for each of these categories. Q–6: Are employeeswho are included in a unit of employees covered by a col- lective bargaining agreement comparable participating employees? A–6: (a)In general. No. Collec- tively bargained employees who are cov- ered by abona fidecollective bargain- ing agreement between employee repre- sentatives and one or more employers are not comparable participating employees, if health benefits were the subject of good faith bargaining between such employee representatives and such employer or em- ployers. Former employees covered by a collective bargaining agreement also are not comparable participating employees. (b)Examples. The following examples illustrate the rules in paragraph (a) of this Q & A–6. The examples read as follows: Example 1. Employer A offers its employees an HDHP with a $1,500 deductible for self-only cov- erage. Employer A has collectively bargained and non-collectively bargained employees. The collec- tively bargained employees are covered by a collec- tive bargaining agreement under which health bene- fits were bargained in good faith. In the 2007 calendar year, Employer A contributes $500 to the HSAs of all eligible non-collectively bargained employees with self-only coverage under Employer A’s HDHP. Em- ployer A does not contribute to the HSAs of the col- lectively bargained employees. Employer A’s con- tributions to the HSAs of non-collectively bargained 2006–33 I.R.B.230August 14, 2006 employees satisfy the comparability rules. The com- parability rules do not apply to collectively bargained employees. Example 2. Employer B offers its employees an HDHP with a $1,500 deductible for self-only cov- erage. Employer B has collectively bargained and non-collectively bargained employees. The collec- tively bargained employees are covered by a collec- tive bargaining agreement under which health bene- fits were bargained in good faith. In the 2007 calendar year and in accordance withthe terms of the collec- tive bargaining agreement, Employer B contributes to the HSAs of all eligible collectively bargained em- ployees. Employer B does not contribute to the HSAs of the non-collectively bargained employees. Em- ployer B’s contributions to the HSAs of collectively bargained employees are not subject to the compa- rability rules because the comparability rules do not apply to collectively bargained employees. Accord- ingly, Employer B’s failure to contribute to the HSAs of the non-collectively bargained employees does not violate the comparability rules. Example 3. Employer C has two units of collec- tively bargained employees — unit Q and unit R — each covered by a collective bargaining agreement under which health benefits were bargained in good faith. In the 2007 calendar year and in accordance with the terms of the collective bargaining agreement, Employer C contributes to the HSAs of all eligible collectively bargained employees in unit Q. In ac- cordance with the terms of the collective bargaining agreement, Employer C makes no HSA contributions for collectively bargained employees in unit R. Em- ployer C’s contributions to the HSAs of collectively bargained employees are not subject to the compa- rability rules because the comparability rules do not apply to collectively bargained employees. Example 4. Employer D has a unit of collectively bargained employees that are covered by a collec- tive bargaining agreement under which health bene- fits were bargained in good faith. In accordance with the terms of the collective bargaining agreement, Em- ployer D contributes an amount equal to a specified number of cents per hour for each hour worked to the HSAs of all eligible collectively bargained employ- ees. Employer D’s contributions to the HSAs of col- lectively bargained employees are not subject to the comparability rules because the comparability rules do not apply to collectively bargained employees. Q–7: Is an employer permitted to make comparable contributions only to the HSAs of comparable participating employees who have coverage under the employer’s HDHP? A–7: (a)Employer-provided HDHP coverage. If during a calendar year, an employer contributes to the HSA of any employee who is an eligible individual covered under an HDHP provided by the employer, the employer is required to make comparable contributions to the HSAs of all comparable participating em- ployees with coverage under any HDHP provided by the employer. An employer that contributes only to the HSAs of em- ployees who are eligible individuals with coverage under the employer’s HDHP is not required to make comparable contri- butions to HSAs of employees who are eligible individuals but are not covered under the employer’s HDHP. (b)Non-employer provided HDHP coverage. An employer that contributes to the HSA of any employee who is an eligible individual with coverage under any HDHP that is not an HDHP provided by the employer, must make comparable contributions to the HSAs of all compara- ble participating employees whether or not covered under the employer’s HDHP. An employer that makes a reasonable good faith effort to identify all comparable par- ticipating employeeswith non-employer provided HDHP coverage and makes com- parable contributions to the HSAs of such employees satisfies the requirements in paragraph (b) of this Q & A–7. (c)Examples. The following examples illustrate the rules in this Q & A–7. None of the employees in the following exam- ples are covered by a collective bargaining agreement. The examples read as follows: Example 1. In a calendar year, Employer E offers an HDHP to its full-time employees. Most full-time employees are covered under Employer E’s HDHP and Employer E makes comparable contributions only to these employees’ HSAs. Employee W, a full-time employee of Employer E and an eligible individual, is covered under an HDHP provided by the employer of W’s spouse and not under Employer E’s HDHP. Employer E is not required to make comparable contributions to W’s HSA. Example 2. In a calendar year, Employer F does not offer an HDHP. Several full-time employees of Employer F, who are eligible individuals, have HSAs. Employer F contributes to these employees’ HSAs. Employer F must make comparable contributions to the HSAs of all full-time employees who are eligible individuals. Example 3. In a calendar year, Employer G offers an HDHP to its full-time employees. Most full-time employees are covered under Employer G’s HDHP and Employer G makes comparable contributions to these employees’ HSAs and also to the HSAs of full-time employees who are eligible individuals and who are not covered under Employer G’s HDHP. Employee S, a full-time employee of Employer G and a comparable participating employee, is covered under an HDHP provided by the employer of S’s spouse and not under Employer G’s HDHP. Em- ployer G must make comparable contributions to S’s HSA. Q–8: If an employee and his or her spouse are eligible individuals who work for the same employer and one employee- spouse has family coverage for both em- ployees under the employer’s HDHP, must the employer make comparable contribu- tions to the HSAs of both employees? A–8: (a)In general. If the employer makes contributions only to the HSAs of employees who are eligible individ- uals covered under its HDHP where only one employee-spouse has family coverage for both employees under the employer’s HDHP, the employer is not required to contribute to the HSAs of both employee-spouses. The employer is required to contribute to the HSA of the employee-spouse with coverage un- der the employer’s HDHP, but is not required to contribute to the HSA of the employee-spouse covered under the em- ployer’s HDHP by virtue of his or her spouse’s coverage. However, if the em- ployer contributes to the HSA of any employee who is an eligible individual with coverage under an HDHP that is not an HDHP provided by the employer, the employer must make comparable contributions to the HSAs of both em- ployee-spouses if they are both eligible individuals. If an employer is required to contribute to the HSAs of both em- ployee-spouses, the employer is not re- quired to contribute amounts in excess of the annual contribution limits in section 223(b). (b)Examples. The following examples illustrate the rules in paragraph (a) of this Q & A–8. None of the employees in the following examples are covered by a col- lective bargaining agreement. The exam- ples read as follows: Example 1. In a calendar year, Employer H offers an HDHP to its full-time employees. Most full-time employees are covered under Employer H’s HDHP and Employer H makes comparable contributions only to these employees’ HSAs. T and U are a married couple. Employee T, who is a full-time em- ployee of Employer H and an eligible individual, has family coverage under Employer H’s HDHP for T and T’s spouse. Employee U, who is also a full-time employee of Employer H and an eligible individual, does not have coverage under Employer H’s HDHP except as the spouse of Employee T. Employer H is required to make comparable contributions to T’s HSA, but is not required to make comparable contributions to U’s HSA. Example 2. In a calendar year, Employer J offers an HDHP to its full-time employees. Most full-time employees are covered under Employer J’s HDHP and Employer J makes comparable contributions to these employees’ HSAs and to the HSAs of full-time employees who are eligible individuals but are not covered under Employer J’s HDHP. R and S are a married couple. Employee S, who is a full-time em- ployee of Employer J and an eligible individual, has family coverage under Employer J’s HDHP for S and S’s spouse. Employee R, who is also a full-time em- ployee of Employer J and an eligible individual, does August 14, 20062312006–33 I.R.B. not have coverage under Employer J’s HDHP ex- cept as the spouse of Employee S. Employer J must make comparable contributions to S’s HSA and to R’s HSA. Q–9: Does an employer that makes HSA contributions only for one class of non-collectively bargained employees who are eligible individuals, but not for an- other class of non-collectively bargained employees who are eligible individuals (for example, management v. non-man- agement) satisfy the requirement that the employer make comparable contributions? A–9: (a)Different classes of employ- ees. No. If the two classes of employ- ees are comparable participating employ- ees, the comparability rules are not sat- isfied. The only categories of employ- ees for comparability purposes are current full-time employees, current part-time em- ployees, and former employees. Collec- tively bargained employees are not com- parable participating employees. But see Q & A–1 in §54.4980G–5 on contributions made through a cafeteria plan. (b)Examples. The following examples illustrate the rules in paragraph (a) of this Q & A–9. None of the employees in the followingexamplesarecoveredbyacol- lective bargaining agreement. The exam- ples read as follows: Example 1. In a calendar year, Employer K main- tains an HDHP covering all management and non- management employees. Employer K contributes to the HSAs of non-management employees who are el- igible individuals covered under its HDHP. Employer K does not contribute to the HSAs of its management employees who are eligible individuals covered un- der its HDHP. The comparability rules are not satis- fied. Example 2. All of Employer L’s employees are located in city X and city Y. In a calendar year, Em- ployer L maintains an HDHP for all employees work- ing in city X only. Employer L does not maintain an HDHP for its employees working in city Y. Employer L contributes $500 to the HSAs of city X employees who are eligible individuals with coverage under its HDHP. Employer L does not contribute to the HSAs of any of its city Y employees. The comparability rules are satisfied because none of the employees in city Y are covered under an HDHP of Employer L. (However, if any employees in city Y were covered by an HDHP of Employer L, Employer L could not fail to contribute to their HSAs merely because they work in a different city.) Example 3. Employer M has two divisions — di- vision N and division O. In a calendar year, Employer M maintains an HDHP for employees working in di- vision N and division O. Employer M contributes to the HSAs of division N employees who are eligible individuals with coverage under its HDHP. Employer M does not contribute to the HSAs of division O em- ployees who are eligible individuals covered under its HDHP. The comparability rules are not satisfied. Q–10: If an employer contributes to the HSAs of former employees who are eligible individuals, do the comparability rules apply to these contributions? A–10: (a)Former employees.Yes.The comparability rules apply to contributions an employer makes to former employees’ HSAs. Therefore, if an employer con- tributes to any former employee’s HSA, it must make comparable contributions to the HSAs of all comparable participating former employees (former employees who are eligible individuals with the same cat- egory of HDHP coverage). However, an employer is not required to make com- parable contributions to the HSAs of for- mer employees with coverage under the employer’s HDHP because of an election under a COBRA continuation provision (as defined in section 9832(d)(1)). See Q & A–5 and Q & A–12 of this section. The comparability rules apply separately to former employees because they are a separate category of covered employee. See Q & A–5 of this section. Also, for- mer employees who were covered by a col- lective bargaining agreement immediately before termination of employment are not comparable participating employees. See Q & A–6 of this section. (b)Locating former employees.Anem- ployer making comparable contributions to former employees must take reasonable actions to locate any missing comparable participating former employees. In gen- eral, such actions include the use of cer- tified mail, the Internal Revenue Service Letter Forwarding Program or the Social Security Administration’s Letter Forward- ing Service. (c)Examples. The following examples illustrate the rules in paragraph (a) of this Q & A–10. None of the employees in the following examples are covered by a col- lective bargaining agreement. The exam- ples read as follows: Example 1. In a calendar year, Employer N con- tributes $1,000 for the calendar year to the HSA of each current employee who is an eligible individual with coverage under any HDHP. Employer N does not contribute to the HSA of any former employee who is an eligible individual. Employer N’s contributions satisfy the comparability rules. Example 2. In a calendar year, Employer O con- tributes to the HSAs of current employees and former employees who are eligible individuals covered un- der any HDHP. Employer O contributes $750 to the HSA of each current employee with self-only HDHP coverage and $1,000 to the HSA of each current employee with family HDHP coverage. Employer O also contributes $300 to the HSA of each former employee with self-only HDHP coverage and $400 to the HSA of each former employee with family HDHP coverage. Employer O’s contributions satisfy the comparability rules. Q–11: Is an employer permitted to make comparable contributions only to the HSAs of comparable participating for- mer employees who have coverage under the employer’s HDHP? A–11: If during a calendar year, an employer contributes to the HSA of any former employee who is an eligible indi- vidual covered under an HDHP provided by the employer, the employer is required to make comparable contributions to the HSAs of all former employees who are comparable participating former employ- ees with coverage under any HDHP pro- vided by the employer. An employer that contributes only to the HSAs of former employees who are eligible individu- als with coverage under the employer’s HDHP is not required to make compara- ble contributions to the HSAs of former employees who are eligible individuals and who are not covered under the em- ployer’s HDHP. However, an employer that contributes to the HSA of any former employee who is an eligible individual with coverage under an HDHP that is not an HDHP of the employer, must make comparable contributions to the HSAs of all former employees who are eligible in- dividuals whether or not covered under an HDHP of the employer. Q–12: If an employer contributes only totheHSAsofformeremployeeswho are eligible individuals with coverage un- der the employer’s HDHP, must the em- ployer make comparable contributions to the HSAs of former employees who are eligible individuals with coverage under the employer’s HDHP because of an elec- tion under a COBRA continuation provi- sion (as defined in section 9832(d)(1))? A–12: No. An employer that con- tributes only to the HSAs of former em- ployees who are eligible individuals with coverage under the employer’s HDHP is not required to make comparable contri- butions to the HSAs of former employees who are eligible individuals with coverage under the employer’s HDHP because of an election under a COBRA continuation pro- vision (as defined in section 9832(d)(1)). 2006–33 I.R.B.232August 14, 2006 Q–13: How do the comparability rules apply if some employees have HSAs and other employees have Archer MSAs? A–13: (a)HSAs and Archer MSAs.The comparability rules apply separately to employees who have HSAs and employ- ees who have Archer MSAs. However, if an employee has both an HSA and an Archer MSA, the employer may contribute to either the HSA or the Archer MSA, but not to both. (b)Example. The following example illustrates the rules in paragraph (a) of this Q & A–13: Example. In a calendar year, Employer P con- tributes $600 to the Archer MSA of each employee who is an eligible individual and who has an Archer MSA. Employer P contributes $500 for the calendar year to the HSA of each employee who is an eligi- ble individual and who has an HSA. If an employee hasbothanArcherMSAandanHSA,EmployerP contributes to the employee’s Archer MSA and not to the employee’s HSA. Employee X has an Archer MSA and an HSA. Employer P contributes $600 for the calendar year to X’s Archer MSA but does not contribute to X’s HSA. Employer P’s contributions satisfy the comparability rules. §54.4980G–4 Calculating comparable contributions. Q–1: What are comparable contribu- tions? A–1: (a)Definition. Contributions are comparable if, for each month in a cal- endar year, the contributions are either the same amount or the same percentage of the deductible under the HDHP for employees who are eligible individuals with the same category of coverage on the first day of that month. Employees with self-only HDHP coverage are tested separately from employees with family HDHP coverage. Similarly, employees with different categories of family HDHP coverage may be tested separately. See Q & A–2 in §54.4980G–1. An employer is not required to contribute the same amount or the same percentage of the deductible for employees who are eligible individu- als with one category of HDHP coverage that it contributes for employees who are eligible individuals with a different cate- gory of HDHP coverage. For example, an employer that satisfies the comparability rules by contributing the same amount to the HSAs of all employees who are eligible individuals with family HDHP coverage is not required to contribute any amount to the HSAs of employees who are eligible individuals with self-only HDHP coverage, or to contribute the same per- centage of the self-only HDHP deductible as the amount contributed with respect to family HDHP coverage. However, the contribution with respect to the self plus two category may not be less than the con- tribution with respect to the self plus one category and the contribution with respect to the self plus three or more category may not be less than the contribution with respect to the self plus two category. (b)Examples. The following examples illustrate the rules in paragraph (a) of this Q & A–1. None of the employees in the following examples are covered by a col- lective bargaining agreement. The exam- ples read as follows: Example 1. In the 2007 calendar year, Employer A offers its full-time employees three health plans, including an HDHP with self-only coverage and a $2,000 deductible. Employer A contributes $1,000 for the calendar year to the HSA of each employee who is an eligible individual electing the self-only HDHP coverage. Employer A makes no HSA con- tributions for employees with family HDHP cover- age or for employees who do not elect the employer’s self-only HDHP. Employer A’s HSA contributions satisfy the comparability rules. Example 2. In the 2007 calendar year, Employer B offers its employees an HDHP with a $3,000 deductible for self-only coverage and a $4,000 deductible for family coverage. Employer B con- tributes $1,000 for the calendar year to the HSA of each employee who is an eligible individual electing the self-only HDHP coverage. Employer B con- tributes $2,000 for the calendar year to the HSA of each employee who is an eligible individual electing the family HDHP coverage. Employer B’s HSA contributions satisfy the comparability rules. Example 3. In the 2007 calendar year, Employer C offers its employees an HDHP with a $1,500 deductible for self-only coverage and a $3,000 deductible for family coverage. Employer C con- tributes $1,000 for the calendar year to the HSA of each employee who is an eligible individual electing the self-only HDHP coverage. Employer C con- tributes $1,000 for the calendar year to the HSA of each employee who is an eligible individual electing the family HDHP coverage. Employer C’s HSA contributions satisfy the comparability rules. Example 4. In the 2007 calendar year, Employer D offers its employees an HDHP with a $1,500 deductible for self-only coverage and a $3,000 deductible for family coverage. Employer D con- tributes $1,500 for the calendar year to the HSA of each employee who is an eligible individual electing the self-only HDHP coverage. Employer D con- tributes $1,000 for the calendar year to the HSA of each employee who is an eligible individual electing the family HDHP coverage. Employer D’s HSA contributions satisfy the comparability rules. Example 5. (i) In the 2007 calendar year, Em- ployer E maintains two HDHPs. Plan A has a $2,000 deductible for self-only coverage and a $4,000 de- ductible for family coverage. Plan B has a $2,500 deductible for self-only coverage and a $4,500 de- ductible for family coverage. For the calendar year, Employer E makes contributions to the HSA of each full-time employee who is an eligible individual cov- ered under Plan A of $600 for self-only coverage and $1,000 for family coverage. Employer E satisfies the comparability rules, if it makes either of the following contributions for the 2007 calendar year to the HSA of each full-time employee who is an eligible individ- ual covered under Plan B— (A) $600 for each full-time employee with self-only coverage and $1,000 for each full-time employee with family coverage; or (B) $750 for each employee with self-only cover- age and $1,125 for each employee with family cover- age(thesamepercentageofthedeductibleEmployer E contributes for full-time employees covered under Plan A, 30% of the deductible for self-only coverage and 25% of the deductible for family coverage). (ii) Employer E also makes contributions to the HSA of each part-time employee who is an eligible individual covered under Plan A of $300 for self-only coverage and $500 for family coverage. Employer E satisfies the comparability rules, if it makes either of the following contributions for the 2007 calendar year to the HSA of each part-time employee who is an eligible individual covered under Plan B— (A) $300 for each part-time employee with self- only coverage and $500 for each part-time employee with family coverage; or (B) $375 for each part-time employee with self- only coverage and $563 for each part-time employee with family coverage (the same percentage of the de- ductible Employer E contributes for part-time em- ployees covered under Plan A, 15% of the deductible for self-only coverage and 12.5% of the deductible for family coverage). Example 6. (i) In the 2007 calendar year, Em- ployer F maintains an HDHP. The HDHP has the fol- lowing coverage options— (A) A $2,500 deductible for self-only coverage; (B) A $3,500 deductible for self plus one depen- dent (self plus one); (C) A $3,500 deductible for self plus spouse (self plus one); (D) A $3,500 deductible for self plus spouse and one dependent (self plus two); and (E) A $3,500 deductible for self plus spouse and two or more dependents (self plus three or more). (ii) Employer F makes the following contribu- tions for the calendar year to the HSA of each full- time employee who is an eligible individual covered under the HDHP— (A) $750 for self-only coverage; (B) $1,000 for self plus one dependent; (C) $1,000 for self plus spouse; (D) $1,500 for self plus spouse and one depen- dent; and (E) $2,000 for self plus spouse and two or more dependents. (iii) Employer F’s HSA contributions satisfy the comparability rules. Example 7. (i) In a calendar year, Employer G offers its employees an HDHP and a health flexi- ble spending arrangement (health FSA). The health FSA reimburses employees for medical expenses as defined in section 213(d). Some of Employer G’s employees have coverage under the HDHP and the health FSA, some have coverage under the HDHP August 14, 20062332006–33 I.R.B. and their spouse’s FSA, and some have coverage un- der the HDHP and are enrolled in Medicare. For the calendar year, Employer G contributes $500 to the HSA of each employee who is an eligible individual. No contributions are made to the HSAs of employees who have coverage under Employer G’s health FSA or under a spouse’s health FSA or who are enrolled in Medicare. (ii) The employees who have coverage under a health FSA (whether Employer H’s or their spouse’s FSA) or who are covered under Medicare are not eligible individuals. Specifically, the employees who have coverage under the health FSA or under a spouse’s health FSA are not comparable participating employees because they are not eligible individuals under section 223(c)(1). Similarly, the employees who are enrolled in Medicare are not comparable participating employees because they are not eligi- ble individuals under section 223(b)(7) and (c)(1). Therefore, employees who have coverage under the health FSA or under a spouse’s health FSA and em- ployees who are enrolled in Medicare are excluded from comparability testing. See sections 4980G(b) and 4980E. Employer G’s contributions satisfy the comparability rules. Q–2: How does an employer comply with the comparability rules when some non-collectively bargained employees who are eligible individuals do not work for the employer during the entire calendar year? A–2: (a)In general. In determining whether the comparability rules are satis- fied, an employer must take into account all full-time and part-time employees who were employees and eligible individu- als for any month during the calendar year. (Full-time and part-time employees are tested separately. See Q & A–5 in §54.4980G–3.) There are two methods to comply with the comparability rules when some employees who are eligible individ- uals do not work for the employer during the entire calendar year; contributions may be made on a pay-as-you-go basis or on a look-back basis. See Q & A–9 through Q & A–11 in §54.4980G–3 for the rules regarding comparable contributions to the HSAs of former employees. (b)Contributions on a pay-as-you-go basis. An employer may comply with the comparability rules by contributing amounts at one or more dates during the calendar year to the HSAs of employees who are eligible individuals as of the first day of the month, if contributions are the same amount or the same percentage of the HDHP deductible for employees who are eligible individuals as of the first day of the month with the same category of coverage and are made at the same time. Contributions made at the employer’s usual payroll interval for different groups of employees are considered to be made at the same time. For example, if salaried employees are paid monthly and hourly employees are paid bi-weekly, an em- ployer may contribute to the HSAs of hourly employees on a bi-weekly basis and to the HSAs of salaried employees on a monthly basis. An employer may change the amount that it contributes to the HSAs of employees at any point. However, the changed contribution amounts must sat- isfy the comparability rules. (c)Examples. The following examples illustrate the rules in paragraph (b) of this Q & A–2: The examples read as follows: Example 1. (i) Beginning on January 1 st ,Em- ployer H contributes $50 per month on the first day of each month to the HSA of each employee who is an eligible individual on that date. Employer H does not contribute to the HSAs of former employees. In mid-March of the same year, Employee X, an eligible individual, terminates employment after Employer H has contributed $150 to X’s HSA. After X terminates employment, Employer H does not contribute addi- tional amounts to X’s HSA. In mid-April of the same year, Employer H hires Employee Y, an eligible indi- vidual, and contributes $50 to Y’s HSA in May and $50 in June. Effective in July of the same year, Em- ployer H stops contributing to the HSAs of all em- ployees and makes no contributions to the HSA of any employee for the months of July through Decem- ber. In August, Employer H hires Employee Z, an el- igible individual. Employer H does not contribute to Z’s HSA. After Z is hired, Employer H does not hire additional employees. As of the end of the calendar year, Employer H has made the following HSA con- tributions to its employees’ HSAs— (A) Employer H contributed $150 to X’s HSA; (B) Employer H contributed $100 to Y’s HSA; (C) Employer H did not contribute to Z’s HSA; and (D) Employer H contributed $300 to the HSA of each employee who was an eligible individual and employed by Employer J from January through June. (ii) Employer H’s contributions satisfy the com- parability rules. Example 2. In a calendar year, Employer J of- fers its employees an HDHP and contributes on a monthly pay-as-you-go basis to the HSAs of employ- ees who are eligible individuals with coverage un- der Employer J’s HDHP. In the calendar year, Em- ployer J contributes $50 per month to the HSA of each employee with self-only HDHP coverage and $100 per month to the HSA of each employee with family HDHP coverage. From January 1 st through March 31 st of the calendar year, Employee X is an eligible in- dividual with self-only HDHP coverage. From April 1 st through December 31 st of the calendar year, X is an eligible individual with family HDHP coverage. For the months of January, February and March of the calendar year, Employer J contributes $50 per month to X’s HSA. For the remaining months of the calendar year, Employer J contributes $100 per month to X’s HSA. Employer J’s contributions to X’s HSA satisfy the comparability rules. (d)Contributions on a look-back basis. An employer may also satisfy the com- parability rules by determining compara- ble contributions for the calendar year at the end of the calendar year, taking into account all employees who were eligible individuals for any month during the cal- endar year and contributing the same per- centage of the HDHP deductible or the same dollar amount to the HSAs of all em- ployees with the same category of cover- age for that month. (e)Examples. The following examples illustrate the rules in paragraph (d) of this Q & A–2. The examples read as follows: Example 1. In a calendar year, Employer K offers its employees an HDHP and contributes on a look-back basis to the HSAs of employees who are eligible individuals with coverage under Employer K’s HDHP. Employer K contributes $600 ($50 per month) for the calendar year to the HSA of each employee with self-only HDHP coverage and $1,200 ($100 per month) for the calendar year to the HSA of each employee with family HDHP coverage. From January 1 st through June 30 th of the calendar year, Employee Y is an eligible individual with family HDHP coverage. From July 1 st through December 31 st , Y is an eligible individual with self-only HDHP coverage. Employer K contributes $900 on a look- back basis for the calendar year to Y’s HSA ($100 per month for the months of January through June and $50 per month for the months of July through December). Employer K’s contributions to Y’s HSA satisfy the comparability rules. Example 2. On December 31 st , Employer L con- tributes $50 per month on a look-back basis to each employee’s HSA for each month in the calendar year that the employee was an eligible individual. In mid- March of the same year, Employee T, an eligible indi- vidual, terminated employment. In mid-April of the same year, Employer L hired Employee U, who be- comes an eligible individual as of May 1 st and works for Employer L through December 31 st . On Decem- ber 31 st , Employer L contributes $150 to Employee T’s HSA and $400 to Employee U’s HSA. Employer L’s contributions satisfy the comparability rules. (f)Periods and dates for making con- tributions. With both the pay-as-you go method and the look-back method, an em- ployer may establish, on a reasonable and consistent basis, periods for which con- tributions will be made (for example, a quarterly period covering three consecu- tive months in a calendar year) and the dates on which such contributions will be made for that designated period (for ex- ample, the first day of the quarter or the last day of the quarter in the case of an employer who has established a quarterly period for making contributions). An em- ployer that makes contributions on a pay- as-you-go basis for a period covering more than one month will not fail to satisfy the 2006–33 I.R.B.234August 14, 2006 comparabilityrules because an employee who terminates employment prior to the end of the period for which contributions were made has received more contribu- tions on a monthly basis than employees who have worked the entire period. In ad- dition, an employer that makes contribu- tions on a pay-as-you-go basis for a pe- riod covering more than one month must make HSA contributions for any compara- ble participating employees hired after the date of initial funding for that period. (g)Example. The following example illustrates the rules in paragraph (f) of this Q&A–2: Example. Employer M has established, on a rea- sonable and consistent basis, a quarterly period for making contributions to the HSAs of eligible em- ployees on a pay-as-you-go basis. Beginning on Jan- uary 1 st , Employer M contributes $150 for the first three months of the calendar year to the HSA of each employee who is an eligible individual on that date. On January 15 th , Employee V, an eligible individual, terminated employment after Employer M has con- tributed $150 to V’s HSA. On January 15th, Em- ployer M hired Employee W, who becomes an el- igible individual as of February 1 st . On April 1 st , Employer M has contributed $100 to W’s HSA for the two months (February and March) in the quarter period that Employee W was an eligible employee. Employer M’s contributions satisfy the comparabil- ity rules. Q–3: How do the comparability rules apply to employer contributions to em- ployees’ HSAs if some non-collectively bargained employees work full-time dur- ing the entire calendar year, and other non-collectively bargained employees work full-time for less than the entire cal- endar year? A–3: Employer contributions to the HSAs of employees who work full-time for less than twelve months satisfy the comparability rules if the contribution amount is comparable when determined on a month-to-month basis. For exam- ple, if the employer contributes $240 to the HSA of each full-time employee who works the entire calendar year, the em- ployer must contribute $60 to the HSA of each full-time employee who works on the first day of each three months of the calendar year. The rules set forth in this Q & A–2 apply to employer contributions made on a pay-as-you-go basis or on a look-back basis as described in Q & A–3 of this section. See sections 4980G(b) and 4980E(d)(2)(B). Q–4: May an employer make contri- butions for the entire year to the HSAs of its employees who are eligible individuals at the beginning of the calendar year (on a pre-funded basis) instead of contributing on a pay-as-you-go or on a look-back ba- sis? A–4: (a)Contributions on a pre-funded basis. Yes. An employer may make con- tributions for the entire year to the HSAs of its employees who are eligible individuals at the beginning of the calendar year. An employer that pre-funds the HSAs of its employees will not fail to satisfy the com- parability rules because an employee who terminates employment prior to the end of the calendar year has received more con- tributions on a monthly basis than employ- ees who work the entire calendar year. See Q & A–12 of this section. Under section 223(d)(1)(E), an account beneficiary’s in- terest in an HSA is nonforfeitable. An em- ployer must make comparable contribu- tions for all employees who are compara- ble participating employees for any month during the calendar year, including em- ployees who are eligible individuals hired after the date of initial funding. An em- ployer that makes HSA contributions on a pre-funded basis may also contribute on a pre-funded basis to the HSAs of employ- ees who are eligible individuals hired af- ter the date of initial funding. Alterna- tively, an employer that has pre-funded the HSAs of comparable participating em- ployees may contribute to the HSAs of em- ployees who are eligible individuals hired after the date of initial funding on a pay- as-you-go basis or on a look-back basis. An employer that makes HSA contribu- tions on a pre-funded basis must use the same contribution method for all employ- ees who are eligible individuals hired after the date of initial funding. (b)Example. The following example illustrates the rules in paragraph (a) of this Q & A–4: Example. (i) On January 1, Employer N con- tributes $1,200 for the calendar year on a pre-funded basis to the HSA of each employee who is an eligible individual. In mid-May, Employer N hires Employee B, who becomes an eligible individual as of June 1 st . Therefore, Employer N is required to make compara- ble contributions to B’s HSA beginning in June. Em- ployer N satisfies the comparability rules with respect to contributions to B’s HSA if it makes HSA contri- butions in any one of the following ways— (A) Pre-funding B’s HSA by contributing $700 to B’s HSA; (B) Contributing $100 per month on a pay-as- you-go basis to B’s HSA; or (C) Contributing to B’s HSA at the end of the calendar year taking into account each month that B was an eligible individual and employed by Employer M. (ii) If Employer M hires additional employees who are eligible individuals after initial funding, it must use the same contribution method for these em- ployees that it used to contribute to B’s HSA. Q–5: Must an employer use the same contribution method as described in Q&A–2andQ&A–4ofthissection for all employees who were comparable participating employees for any month during the calendar year? A–5: Yes. If an employer makes com- parable HSA contributions on a pay-as- you-go basis, it must do so for each em- ployee who is a comparable participating employee as of the first day of the month. If an employer makes comparable contri- butions on a look-back basis, it must do so for each employee who was a compara- ble participating employee for any month during the calendar year. If an employer makes HSA contributions on a pre-funded basis, it must do so for all employees who are comparable participating employees at the beginning of the calendar year and must make comparable HSA contributions for all employees who are comparable par- ticipating employees for any month dur- ing the calendar year, including employ- ees who are eligible individuals hired after the date of initial funding. See Q & A–4 of this section for rules regarding contribu- tions for employees hired after initial fund- ing. Q–6: How does an employer comply with the comparability rules if an em- ployee has not established an HSA at the time the employer contributes to its em- ployees’ HSAs? A–6: (a)Employee has not established an HSA at the time the employer funds its employees’ HSAs.Ifanemployeehas not established an HSA at the time the employer funds its employees’ HSAs, the employer complies with the comparability rules by contributing comparable amounts plus reasonable interest to the employee’s HSA when the employee establishes the HSA, taking into account each month that theemployeewasacomparableparticipat- ing employee. See Q & A–13 of this sec- tion for rules regarding reasonable interest. (b)Employee has not established an HSA by the end of the calendar year.[Re- served]. (c)Example. The following example illustrates the rules in paragraph (a) of this Q & A–6: August 14, 20062352006–33 I.R.B. Example. Beginning on January 1 st , Employer O contributes $500 per calendar year on a pay-as- you-go basis to the HSA of each employee who is an eligible individual. Employee C is an eligible in- dividual during the entire calendar year but does not establish an HSA until March. Notwithstanding C’s delay in establishing an HSA, Employer O must make up the missed HSA contributions plus reasonable in- terest for January and February by April 15 th of the following calendar year. Q–7: If an employer bases its contri- butions on a percentage of the HDHP de- ductible, how is the correct percentage or dollar amount computed? A–7: (a)Computing HSA contribu- tions. The correct percentage is deter- minedbyroundingtothenearest1/100 th of a percentage point and the dollar amount is determined by rounding to the nearest whole dollar. (b)Example. The following example illustrates the rules in paragraph (a) of this Q&A–7: Example.InthisExample, assume that each HDHP provided by Employer P satisfies the defi- nition of an HDHP for the 2007 calendar year. In the 2007 calendar year, Employer P maintains two HDHPs. Plan A has a deductible of $3,000 for self-only coverage. Employer P contributes $1,000 for the calendar year to the HSA of each employee covered under Plan A. Plan B has a deductible of $3,500 for self-only coverage. Employer P satis- fies the comparability rules if it makes either of the following contributions for the 2007 calendar year to the HSA of each employee who is an eligible individual with self-only coverage under Plan B— (i) $1,000; or (ii) $1,167 (33.33% of the deductible rounded to the nearest whole dollar amount). Q–8: Does an employer that con- tributes to the HSA of each comparable participating employee in an amount equal to the employee’s HSA contribution or a percentage of the employee’s HSA con- tribution (matching contributions) satisfy the rule that all comparable participating employees receive comparable contribu- tions? A–8: No. If all comparable participat- ing employees do not contribute the same amount to their HSAs and, consequently, do not receive comparable contributions to their HSAs, the comparability rules are not satisfied, notwithstanding that the em- ployer offers to make available the same contribution amount to each comparable participating employee. But see Q & A–1 in §54.4980G–5 on contributions to HSAs made through a cafeteria plan. Q–9: If an employer conditions contri- butions by the employer to an employee’s HSA on an employee’s participation in health assessments, disease management programs or wellness programs and makes the same contributions available to all em- ployees who participate in the programs, do the contributions satisfy the compara- bility rules? A–9: No. If all comparable participat- ing employees do not elect to participate in all the programs and consequently, all comparable participating employees do not receive comparable contributions to their HSAs, the employer contributions fail to satisfy the comparability rules. But see Q & A–1 in §54.4980G–5 on contri- butions made to HSAs through a cafeteria plan. Q–10: If an employer makes additional contributions to the HSAs of all compara- ble participating employees who have at- tained a specified age or who have worked for the employer for a specified number of years, do the contributions satisfy the com- parability rules? A–10: No. If all comparable partici- pating employees do not meet the age or length of service requirement, all compara- ble participating employees do not receive comparable contributions to their HSAs and the employer contributions fail to sat- isfy the comparability rules. Q–11: If an employer makes additional contributions to the HSAs of all compa- rable participating employees who are eli- gible to make the additional contributions (HSA catch-up contributions) under sec- tion 223(b)(3), do the contributions satisfy the comparability rules? A–11: No. If all comparable participat- ing employees are not eligible to make the additional HSA contributions under sec- tion 223(b)(3), all comparable participat- ing employees do not receive comparable contributions to their HSAs, and the em- ployer contributions fail to satisfy the com- parability rules. Q–12: If an employer’s contributions to an employee’s HSA result in non-com- parable contributions, may the employer recoup the excess amount from the em- ployee’s HSA? A–12: No. An employer may not recoup from an employee’s HSA any portion of the employer’s contribution to the employee’s HSA. Under section 223(d)(1)(E), an account beneficiary’s in- terest in an HSA is nonforfeitable. How- ever, an employer may make additional HSA contributions to satisfy the compara- bility rules. An employer may contribute up until April 15 th following the calen- dar year in which thenon-comparable contributions were made. An employer that makes additional HSA contributions to correct non-comparable contributions must also contribute reasonable interest. However, an employer is not required to contribute amounts in excess of the annual contribution limits in section 223(b). See Q & A–13 of this section for rules regard- ing reasonable interest. Q–13: What constitutes a reasonable interest rate for purposes of making com- parable contributions? A–13: The determination of whether a rate of interest used by an employer is rea- sonable will be based on all of the facts and circumstances. If an employer calculates interest using the Federal short-term rate as determined by the Secretary in accor- dance with section 1274(d), the employer is deemed to use a reasonable interest rate. §54.4980G–5 HSA comparability rules and cafeteria plans and waiver of excise tax. Q–1: If an employer makes contribu- tions through a section 125 cafeteria plan to the HSA of each employee who is an eli- gible individual, are the contributions sub- ject to the comparability rules? A–1: (a)In general. No. The compa- rability rules do not apply to HSA contri- butions that an employer makes through a section 125 cafeteria plan. However, con- tributions to an HSA made through a cafe- teria plan are subject to the section 125 nondiscrimination rules (eligibility rules, contributions and benefits tests and key employee concentration tests). See sec- tion 125(b), (c) and (g) and the regulations thereunder. (b)Contributions made through a sec- tion 125 cafeteria plan. Employer con- tributions to employees’ HSAs are made through a section 125cafeteria plan and are subject to the section 125 cafeteria plan nondiscrimination rules and not the com- parability rules if under the written cafe- teria plan, the employees have the right to elect to receive cash or other taxable ben- efits in lieu of all or a portion of an HSA contribution (meaning that all or a portion of the HSA contributions are available as pre-tax salary reduction amounts), regard- less of whether an employee actually elects 2006–33 I.R.B.236August 14, 2006 to contribute any amount to the HSA by salary reduction. Q–2: If an employer makes contribu- tions through a cafeteria plan to the HSA of each employee who is an eligible indi- vidual in an amount equal to the amount of the employee’s HSA contribution or a percentage of the amount of the em- ployee’s HSA contribution (matching con- tributions), are the contributions subject to the section 4980G comparability rules? A–2: No. The comparability rules do not apply to HSA contributions that an em- ployer makes through a section 125 cafe- teria plan. Thus, where matching contri- butions are made by an employer through a cafeteria plan, thecontributions are not subject to the comparability rules of sec- tion 4980G. However, contributions, in- cluding matching contributions, to an HSA made under a cafeteria plan are subject to the section 125 nondiscrimination rules (eligibility rules, contributions and bene- fits tests and key employee concentration tests). See Q & A–1 of this section. Q–3: If under the employer’s cafete- ria plan, employees who are eligible indi- viduals and who participate in health as- sessments, disease management programs or wellness programs receive an employer contribution to an HSA and the employ- ees have the right to elect to make pre- tax salary reduction contributions to their HSAs, are the contributions subject to the comparability rules? A–3: (a)In general. No. The compara- bility rules do not apply to employer con- tributions to an HSA made through a cafe- teria plan. See Q & A–1 of this section. (b)Examples. The following examples illustrate the rules in this §54.4980G–5. The examples read as follows: Example 1. Employer A’s written cafeteria plan permits employees to elect to make pre-tax salary reduction contributions to their HSAs. Employees making this election have the right to receive cash or other taxable benefits in lieu of their HSA pre-tax contribution. The section 125 cafeteria plan nondis- crimination rules and not the comparability rules ap- ply because the HSA contributions are made through the cafeteria plan. Example 2. Employer B’s written cafeteria plan permits employees to elect to make pre-tax salary reduction contributions to their HSAs. Employees making this election have the right to receive cash or other taxable benefits in lieu of their HSA pre-tax contribution. Employer B automatically contributes a non-elective matching contribution or seed money to the HSA of each employee who makes a pre-tax HSA contribution. The section 125 cafeteria plan nondis- crimination rules and not the comparability rules ap- ply to Employer B’s HSA contributions because the HSA contributions are made through the cafeteria plan. Example 3. Employer C’s written cafeteria plan permits employees to elect to make pre-tax salary reduction contributions to their HSAs. Employees making this election have the right to receive cash or other taxable benefits in lieu of their HSA pre-tax contribution. Employer C makes a non-elective con- tribution to the HSAs of all employees who complete a health risk assessment and participate in Employer C’s wellness program. Employees do not have the right to receive cash or other taxable benefits in lieu of Employer C’s non-elective contribution. The section 125 cafeteria plan nondiscrimination rules and not the comparability rules apply to Employer C’s HSA con- tributions because the HSA contributions are made through the cafeteria plan. Example 4. Employer D’s written cafeteria plan permits employees to elect to make pre-tax salary reduction contributions to their HSAs. Employees making this election have the right to receive cash or other taxable benefits in lieu of their HSA pre- tax contribution. Employees participating in the plan who are eligible individuals receive automatic em- ployer contributions to their HSAs. Employees make no election with respect to Employer D’s contribu- tion and do not have the right to receive cash or other taxable benefits in lieu of Employer D’s contribution, but are permitted to make their own pre-tax salary re- duction contributions to fund their HSAs. The section 125 cafeteria plan nondiscrimination rules and not the comparability rules apply to Employer D’s HSA con- tributions because the HSA contributions are made through the cafeteria plan. Q–4: May all or part of the excise tax imposed under section 4980G be waived? A–4: In the case of a failure which is due to reasonable cause and not to will- ful neglect, all or a portion of the excise tax imposed under section 4980G may be waived to the extent that the payment of the tax would be excessive relative to the failure involved. See sections 4980G(b) and 4980E(c). Mark E. Matthews, Deputy Commissioner for Services and Enforcement. Approved July 14, 2006. Eric Solomon, Acting Deputy Assistant Secretary of the Treasury (Tax Policy). (Filed by the Office of the Federal Register on July 28, 2006, 8:45 a.m., and published in the issue of the Federal Register for July 31, 2006, 71 F.R. 43056) Section 6041.—Information at Source Regulations under section 6041 are amended with respect to information reporting for payments for le- gal services. See T.D. 9270, page 237. Section 6045.—Returns of Brokers 26 CFR 1.6045–5: Information reporting on pay- ments to attorneys. T.D. 9270 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Reporting of Gross Proceeds Payments to Attorneys AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains fi- nal regulations relating to the reporting of payments of gross proceeds to attorneys. The regulations reflect changes to the law made by the Taxpayer Relief Act of 1997 (1997 Act). The final regulations will af- fect attorneys who receive payments of gross proceeds on behalf of their clients and will affect certain payors (for example, defendants in lawsuits and their insurance companies and agents) that, in the course of their trades or businesses, make pay- ments to these attorneys. DATES:Effective Dates:These regula- tions are effective July 13, 2006. Applicability Dates:For dates of appli- cability, see §1.6045–5(h). FOR FURTHER INFORMATION CONTACT: Nancy Rose (202) 622–4940 (not a toll-free number). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collection of information con- tained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 August 14, 20062372006–33 I.R.B. (44 U.S.C. 3507(d)) under control number 1545–1644. Comments on the collection of infor- mation should be sent to theOffice of Management and Budget, Attn: Desk Officer for the Department of the Trea- sury, Office of Information and Regula- tory Affairs, Washington, D.C. 20503, with copies to theInternal Revenue Ser- vice, Attn: IRS Reports Clearance Offi- cer, SE:W:CAR:MP:T:T:SP, Washington, D.C. 20224. Comments on the collec- tion of information should be received by September 11, 2006. Comments are specifically requested concerning: Whether the collection of information is necessary for the proper performance 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 collection of informa- tion; How the quality, utility, and clarity of the information to be collected may be en- hanced; How the burden of complying with the collection of information may be mini- mized, including through the application 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 collections of information in the final regulations are in §§1.6041–3(p) and 1.6045–5(a). Section 1021(a) of the 1997 Act added section 6045(f) to the Internal Revenue Code (Code) and requires the IRS to implement information reporting of certain payments made to attorneys. Section 1021(b) of the 1997 Act provides that the exception to information reporting in the regulations under section 6041 for payments to corporations does not apply to payments to attorneys and requires the IRS to implement information reporting for payments to attorneys. This informa- tion will be used to verify compliance with sections 6045(f) and 6041 and to deter- mine that the amount of these payments has been reported correctly. The collec- tions of information are mandatory. The likely respondents (payors) are businesses and other for profit institutions. Payors provide the information by com- pleting Form 1099–MISC, “Miscellaneous Income,” for each attorney who has re- ceived one or more payments aggregating $600 or more from the payor during the calendar year. The burden for this require- ment is reflected in the burden estimate for Form 1099–MISC. The estimated bur- den of information collection for the 2005 Form 1099–MISC is 16 minutes per return. 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 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 return in- formation are confidential, as required by 26 U.S.C. 6103. Background This document contains amendments to the 26 CFR Part 1 under sections 6041 and 6045 of the Code. These amendments to the Income Tax Regulations revise ex- isting §§1.6041–1 and 1.6041–3 and add new §1.6045–5. This document finalizes proposed regulations relating to informa- tion reporting under section 6045(f) of the Code for gross proceeds paid to at- torneys. The proposed regulations were contained in a notice of proposed rule- making (REG–126024–01, 2002–2 C.B. 64) published in theFederal Registeron May 17, 2002 (67 FR 35064). Section 6045(f) was added to the Code by the 1997 Act (Public Law 105–34, section 1021 (111 Stat. 788)). Section 6045(f) generally requires information reporting for payments of gross proceeds madeinthecourseofatradeorbusinessto attorneys in connection with legal services (whether or not the services are performed for the payor). No information reporting is required under section 6045(f) for the portion of any payment that is required to be reported under section 6041(a) (relating to payments made in the course of a trade or business) (or that would be required to be reported under section 6041 but for the $600 limitation) or under section 6051 (relating to receipts for employees). The 1997 Act also provides that the general exception in §1.6041–3(p)(1) for report- ing payments made to corporations does not apply to payments of attorneys’ fees. Public Law 105–34, section 1021(b). Proposed regulations under sections 6041 and 6045(f) were first published in theFederal Registeron May 21, 1999 (REG–105312–98, 1999–1 C.B. 1193 [64 FR 27730]) (the 1999 proposed regula- tions). The IRS received written com- ments on the 1999 proposed regulations, and held a public hearing on September 22, 1999. After considering those comments and the testimony at the public hearing, the IRS and the Treasury Department de- cided to amend and repropose regulations under sections 6041 and 6045(f). Those proposed regulations (the reproposed reg- ulations) were published in theFederal Registeron May 17, 2002 (67 FR 35064), and incorporated the guidance in the 1999 proposed regulations with some modifi- cations. A number of written comments were received in connection with the re- proposed regulations. After considering those comments, the IRS is adopting the reproposed regulations with revisions, as discussed below. Summary of Comments Generally, the section 6045(f) infor- mation reporting requirement is intended to be broad, and few exceptions are war- ranted. See H. Conf. Rep. 105–220, at 546 (1997). As suggested by commen- tators, the final regulations adopt certain exceptions to the information reporting requirement, described below. Section 6045–5(c) of the reproposed regulations containsan exception to the information reporting requirement relating to payments made to an attorney who con- ducts settlements for sales or exchanges of real estate. Commentators suggested an expansion of this exception to include payments made in connection with a re- finance of a mortgage and certain other loan closings. After consideration of the comments, and the nature of these trans- actions, these final regulations expand the exception to include payments made to attorneys in connection with the financing of real estate. The exception now covers, for example, payments made to attor- neys in connection with refinancings and mortgages, not limited to purchase-money mortgages. 2006–33 I.R.B.238August 14, 2006 Many commentators on the 1999 pro- posed regulations requested exceptions to the section 6045(f) information reporting requirements for payments to trustees and other fiduciaries such as administrators of estates and settlement funds. Those com- mentators suggested that the definition of legal services should be narrowed to ex- cept payments to those individuals, as the payments to attorneys acting as fiducia- ries have no correlation to their income. The preamble to the reproposed regula- tions stated that this issue was considered, but reiterated that a broad definition of legal services is appropriate and consis- tent with the language and purpose of sec- tion 6045(f). (67 FR 35064) Although the reproposed regulations made an ex- ception for payments toattorneys acting as real estate settlement agents, the repro- posed regulations did not except payments to trustees and administrators. The pre- amble noted that in many situations, pay- ments are or could be made to an estate or fund, rather than to an attorney acting as a trustee or administrator. If an estate or fund were the payee, information report- ing under section 6045(f) would not be re- quired. With respect to payments to bankruptcy trustees in particular,Example 10of the re- proposed regulations describes a situation in which a bankrupt’s employer withholds amounts from the bankrupt’s earnings pur- suant to a wage garnishment order, and forwards that amount to the bankruptcy trustee. Commentators argued that a bank- ruptcy trustee who receives such payments is not practicing law, and is not receiving these amounts in connection with legal ser- vices. They pointed out that many bank- ruptcy trustees are not attorneys. Com- mentators also discussed the unique posi- tion of a bankruptcy trustee, which would make the bankruptcy trustee reluctant to disclose his or her taxpayer identifying number (TIN). They also described nu- merous administrative burdens bankruptcy trustees would face in connection with the receipt of a large number of information re- turns. Further, numerous commentators stated that it is not always possible to avoid in- formation reporting; in many bankruptcy situations, particularly in a Chapter 13 bankruptcy, a payor must write the check to the bankruptcy trustee and not to the bankrupt’s estate. After considering the comments with respect to payments to bankruptcy trustees, and considering the unique position of attorneys acting in their capacity as bankruptcy trustees, it was determined that an exception for payments to bankruptcy trustees was appropriate. Therefore, the final regulations include an exception in §1.6045–5(c)(7) for pay- ments to attorneys acting in the capacity of bankruptcy trustees, and remove the example contained inthe reproposed regu- lations relating to payments to bankruptcy trustees. Another commentator recommended that payments of life insurance made to an attorney on behalf of a client not be con- sidered received in connection with legal services and therefore be excepted from the information reporting requirement. The IRS and the Treasury Department con- tinue to believe that a broad definition of legal services is appropriate, and the final regulations do not adopt this suggestion. As in the fiduciary situation, information reporting under section 6045(f) would not be required if the attorney is not the named payee. Commentators requested additional clarification of the interplay between the information reporting rules in existing §1.6041–1(e) and (f) and the reproposed regulations under section 6045(f). In re- sponse, many of the examples in the final regulations include more cross-references to other information reporting rules, and some examples illustrate the correct re- porting under sections other than section 6045(f). Some commentators asked that the IRS develop a new form for reporting settle- ment payments made to plaintiffs and their attorneys that would show the names and TINs of both plaintiff and attorney, the amounts paid to each, and backup with- holding if applicable. The commentators proposed new Form 1099–SET, “Settle- ment Proceeds,” to satisfy the reporting obligations set forth under both sections 6045 and 6041 with respect to these pay- ments. The IRS already has several dif- ferent forms in the Form 1099 series that allow for reporting of a variety of types of payments, including payments under section 6045(f). Adding another form to the Form 1099 series limited to only one type of payment would not increase effi- ciency for the IRS or taxpayers. Moreover, payors could not use the proposed Form 1099–SET in connection with settlement payments that constitute wages reportable on Form W–2, “Wage and Tax Statement.” For these reasons, the final regulations do not adopt this suggestion. A number of commentators correctly pointed out that under the reproposed regu- lations, information reporting for amounts paid to attorneys may be required even though the payors also must report these amounts to the attorneys’ clients pursuant to section 6041. Commentators stated that duplicate reporting would be a problem under automated systems for generating information returns. In many cases, their systems are designed to generate only one Form 1099 for a payment. Nevertheless, Congress mandated reporting by a payor under both section 6045(f) (to an attor- ney) and 6041 (to the attorney’s client) with respect to the same payment. Sec- tion 6045(f)(2)(B) provides an exception for payments required to be reported un- der section 6041. The IRS and the Trea- sury Department interpret the exception in section 6045(f)(2)(B) as applying only where the section 6045(f) payment other- wise would be required to be reported un- der section 6041 with respect to the same payee (i.e., the attorney), and not where section 6041 imposes a separate reporting requirement with respect to another payee (i.e., the client). See §1.6045–5(c)(4). In cases in which the payment is made to the attorney for the benefit of the client, section 6041 requires reporting with re- spect to the client, and section 6045(f) re- quires reporting with respect to the attor- ney. Each of these statutory reporting re- quirements serves an independent purpose — reporting the amount paid for the ben- efit of the client who has to include that amount in income, and reporting a gross proceeds payment to the attorney. Section 1.6041–1(a)(1) was revised to clarify that there is a requirement to report to both the attorney and client in that situation. Other commentators discussed the requirement to backup withhold on pay- ments to an attorney if the attorney does not provide an accurate TIN to the payor. The commentators suggested that there are both practical and ethical problems with respect to backup withholding on pay- ments to attorneys. They noted that the amounts paid to the attorney generally be- long to the attorney’s client and that there may be difficulty in determining how to August 14, 20062392006–33 I.R.B. claim the withholding on the client’s in- come tax return. The IRS and the Treasury Department believe that payments to attor- neys for legal services are reportable pay- ments under section 3406(b)(3)(C), and are thus subject to backup withholding. The legislative history to section 6045(f) makes clear that Congress intended such payments to be subject to backup with- holding. H. Conf. Rep. 105–220, at 546 (1997). As the commentators point out, backup withholding on a payment to an attorney that constitutes the income of the attorney’s client raises some practical concerns, but it is nonetheless required by the statute. Backup withholding can be avoided as long as the attorney provides an accurate TIN to the payor. Furthermore, there are procedures in place affording an opportunity to correct an inaccurate TIN before backup withholding is required. See §31.3406(d)–5; Rev. Proc. 93–37, 1993–2 C.B. 477. A comment was received with respect to the exception in §1.6045–5(c)(5) of the reproposed regulations for payments to certain non-residents that are not engaged in a trade or business within the United States and that do not perform any labor or personal services within the United States. The commentator stated that, as drafted, the exception is too narrow and will result in unnecessary information reporting. The commentator suggested that the exception should be based solely on whether the pay- ment to the non-resident alien individual, foreign partnership, or foreign corpora- tion is in connection with legal services performed outside the United States. The commentator suggested that a payor be entitledtorelyforpurposesofmakingthis determination on a signed statement by the attorney or law firm to the effect that the services for which payment is made were performed outside the United States, pro- vided that the payor does not know that the statement is inaccurate. The commentator noted that payments of gross proceeds to non-resident alien attorneys may be reportable under this section although at- torneys’ fees paid to such attorneys would not be reportable under section 6041. The gross proceeds reporting require- ment under section 6045(f) is intended to be broad and has a different purpose than information reporting under section 6041 for payments for services. Congress expressed its intent with respect to sec- tion 6045(f) “that the IRS will administer this provision so that it will not apply to foreign attorneys who can clearly demon- strate that they are not subject to U.S. tax.” Joint Committee on Taxation Staff, General Explanation of Tax Legislation Enacted in 1997, 105 th Cong., 1 st Sess. 215 (1997). Foreign persons not engaged in trade or business within the United States are subject to U.S. tax on amounts of certain types of income received from sources within the United States (e.g., under section 871(a)). Foreign persons engaged in trade or business within the United States are subject to U.S. tax on taxable income effectively connected with the conduct of such trade or business within the United States (e.g., under sec- tion 871(b)). Thus, a foreign person can demonstrate clearly that it is not subject to U.S. tax only if it clearly demonstrates both that the income in question would not be subject to U.S. tax if the foreign person were not engaged in trade or business in the United States and that the income in question is not effectively connected with the conduct of a trade or business within the United States. The commentator’s proposed approach would not produce a clear demonstration that both conditions are satisfied and so would be inconsistent with the intent expressed by Congress. Therefore, the final regulations do not adopt the commentator’s suggestion. In addition to written comments, a num- ber of telephone calls were received with questions and comments regarding the re- proposed regulations. Many of the callers raised questions as to whether an attorney is the payee of a check where the check is made out to the attorney’s client, but “in care of” the attorney, or to the attor- ney’s client trust account, or other sce- narios. Since these questions were raised by a number of callers, the final regula- tions address them. Generally, an attor- neyisthepayeeonacheckwrittentothe attorney’s client trust fund, but not on a check which the attorney may not negoti- ate. (§1.6045–5(d)(4)). The reproposed regulations indicated in §1.6045–5(h) that the regulations would become effective with payments made dur- ing the first calendar year that begins at least two months after the publication of the regulations as final regulations. Conse- quently, the final regulations will apply to payments made in or after 2007. This de- layed effective date affords time to imple- ment any changes required in automated information processing systems. Section 6724(a) states that no penalty relative to information reporting shall be imposed with respect to a failure that is due to reasonable cause and not to willful ne- glect. Section 301.6724–1(a) provides in part that a penalty is waived for reason- able cause if the filer establishes that there are significant mitigating factors with re- spect to the failure, or that the failure arose from events beyond the filer’s control, and that the filer acted in a responsible manner. Under §301.6724–1(b)(1), significant mit- igating factors include the fact that prior to the failure the filer was never required to file the particular type of return with re- spect to which the failure occurred. Un- der §301.6724–1(d)(1)(i), acting in a re- sponsible manner means that the filer ex- ercised reasonable care, which is that stan- dard of care that a reasonably prudent per- son would use under the circumstances in the course of its business in determining its filing obligations. Pursuant to these provi- sions, a penalty waiver may apply, for ex- ample, if an information report would have been required under the reproposed regula- tions, but not under the final regulations. 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 has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collec- tion of information in these regulations will not have a significant economic im- pact on a substantial number of small en- tities. Accordingly, a regulatory flexibil- ity analysis under the Regulatory Flexibil- ity Act (5 U.S.C. chapter 6) is not required. This certification is based on the facts that: (1) the time required to prepare and file a 2005 Form 1099–MISC, “Miscellaneous Income,” is minimal (currently estimated at 16 minutes per form); and (2) it is not anticipated that, as a result of these reg- ulations, many small entities will have to prepare and file more than a few forms per year. 2006–33 I.R.B.240August 14, 2006 Pursuant to section 7805(f) of the Code, the Notice of Proposed Rulemaking pre- ceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Drafting Information The principal author of these regula- tionsisNancyL.RoseoftheOfficeof Associate Chief Counsel (Procedure and Administration), Administrative Provi- sions and Judicial Practice Division. ***** Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Par. 2. Section 1.6041–1(a)(1) is amended as follows: 1. In paragraph (a)(1)(ii), the first sen- tence is removed and two sentences are added in its place. 2. Paragraph (a)(1)(iii) is added. The revision and addition read as fol- lows: §1.6041–1 Return of information as to payments of $600 or more. (a) * * * (1) * * * (ii) * * * The payments described in paragraphs (a)(1)(i)(A) and (B) of this section shall not include any payments of amounts with respect to which an in- formation return is required by, or may be required under authority of, section 6042(a) (relating to dividends), section 6043(a)(2) (relating to distributions in liquidation), section6044(a) (relating to patronage dividends), section 6045 (relat- ing to brokers’ transactions with customers and certain other transactions), sections 6049(a)(1) and (2) (relating to interest), section 6050N(a) (relating to royalties), or section 6050P(a) or (b) (relating to cancel- lation of indebtedness). For information returns required under section 6045(f) (relatingtopaymentstoattorneys),see special rules in §§1.6041–1(a)(1)(iii) and 1.6045–5(c)(4). * * * (iii) Information returns required un- der section 6045(f) on or after January 1, 2007. For payments made on or after Jan- uary 1, 2007, to which section 6045(f) (re- lating to payments to attorneys) applies, the following rules apply. Notwithstand- ing the provisions of paragraph (a)(1)(ii) of this section, payments to an attorney that are described inparagraph (a)(1)(i) of this section but which otherwise would be reportable under section 6045(f) are re- ported under section 6041 and this sec- tion and not section 6045(f). This excep- tion applies only if the payments are re- portable with respect to the same payee un- der both sections. Thus, a person who, in the course of a trade or business, pays $600 of taxable damages to a claimant by paying that amount to the claimant’s attor- neyisrequiredtofileaninformationre- turn under section 6041 with respect to the claimant, as well as another information return under section 6045(f) with respect to the claimant’s attorney. For provisions relating to information reporting for pay- ments to attorneys, see §1.6045–5. ***** Par. 3. Section 1.6041–3 is amended as follows: 1. Revising the first sentence in para- graph (p)(1). 2. In paragraph (p)(8), removing the language “(q)” and adding “(p)” in its place. The revision reads as follows: §1.6041–3 Payments for which no return of information is required under section 6041. ***** (p) * * * (1) A corporation described in §1.6049–4(c)(1)(ii)(A), except with re- spect to payments made to a corporation after December 31, 1997 for attorneys’ fees, and except a corporation engaged in providing medical and health care services or engaged in the billing and collecting of payments in respect to the providing of medical and health care services. * * * ***** Par. 4. Section 1.6045–5 is added to read as follows: §1.6045–5 Information reporting on payments to attorneys. (a)Requirement of reporting—(1)In general. Except as provided in paragraph (c) of this section, every payor engaged in a trade or business who, in the course of that trade or business, makes payments aggre- gating $600 or more during a calendar year to an attorney in connection with legal ser- vices (whether or not the services are per- formed for the payor) must file an infor- mation return for such payments. The in- formation return must be filed on the form and in the manner required by the Com- missioner. For the time and place for filing the form, see §1.6041–6. For definitions of the terms under this section, see para- graph (d) of this section. The requirements of this paragraph (a)(1) apply whether or not— (i) A portion of a payment is kept by the attorney as compensation for legal services rendered; or (ii) Other information returns are re- quired with respect to some or all of a pay- ment under other provisions of the Internal Revenue Code and the regulations there- under. (2)Information required. The informa- tion return required under paragraph (a)(1) of this section must include the following information: (i) The name, address, and taxpayer identifying number (TIN) (as defined in section 7701(a)) of the payor; (ii) The name, address, and TIN of the payee attorney; (iii) The amount of the payment or pay- ments (as defined in paragraph (d)(5) of this section); and (iv) Any other information required by the Commissioner in forms, instructions or publications. (3)Requirement to furnish statement. A person required to file an information return under paragraph (a)(1) of this sec- tion must furnish to the attorney a written statement of the information required to be shown on the return. This requirement may be met by furnishing a copy of the re- turn to the attorney. The written statement must be furnished to the attorney on or be- fore January 31 of the year following the calendar year in which the payment was made. (b)Special rules—(1)Joint or multiple payees—(i)Check delivered to one payee August 14, 20062412006–33 I.R.B. attorney. If more than one attorney is listed as a payee on a check, an information re- turn must be filed under paragraph (a)(1) of this section with respect to the payee at- torney to whom the check is delivered. (ii)Check delivered to payee nonattor- ney. If an attorney is listed as a payee on a check but the check is delivered to a nonat- torney who is a payee on the check, an in- formationreturnmustbefiledunderpara- graph (a)(1) of this section with respect to the payee attorney listed on the check. If more than one attorney is listed as a payee on a check but the check is delivered to a nonattorney who is a payee on the check, the information return must be filed with respect to the first-listed payee attorney on the check. (iii)Check delivered to nonpayee.If two or more attorneys are listed as payees on a check, but the check is delivered to a person who is not a payee on the check, an information return must be filed under paragraph (a)(1) of this section with re- spect to the first-listed payee attorney on the check. (2)Attorney required to report pay- ments made to other attorneys.Ifan information return is required to be filed with respect to a payee attorney under paragraph (b)(1) of this section, the attor- ney with respect to whom the information return is required to be filed (tier-one at- torney) must file an information return under this section for any payment that the tier-one attorney makes to other payee attorneys with respect to that check, re- gardless of whether the tier-one attorney is a payor under paragraph (d)(3) of this section. (c)Exceptions. Notwithstanding para- graphs (a) and (b) of this section, a return of information is not required under sec- tion 6045(f) with respect to the following payments: (1) Payments of wages or other com- pensationpaidtoanattorneybytheattor- ney’s employer. (2) Payments of compensation or prof- its paid or distributed to its partners by a partnership engaged in providing legal ser- vices. (3) Payments of dividends or corporate earnings and profits paid to its sharehold- ers by a corporation engaged in providing legal services. (4) Payments made by a person to the extent that the person is required to re- port with respect to the same payee the payments or portions thereof under sec- tion 6041(a) and §1.6041–1(a) (or would be required to so report the payments or portions thereof but for the dollar amount limitation contained in section 6041(a) and §1.6041–1(a)). (5) Payments made to a nonresident alien individual, foreign partnership, or foreign corporation that is not engaged in trade or business within the United States, and does not perform any labor or per- sonal services in the United States, in the taxable year to which the payment relates. For how a payor determines whether a payment is subject to this exception, see §1.6041–4(a)(1). (6) Payments made to an attorney in the attorney’s capacity as the person respon- sible for closing a transaction within the meaning of §1.6045–4(e)(3) for the sale or exchange or financing of any present or fu- ture ownership interest in real estate de- scribed in §1.6045–4(b)(2)(i) through (iv). (7) Payments made to an attorney in the attorney’s capacity as a trustee in bank- ruptcy under Title 11, United States Code. (d)Definitions. The following defini- tions apply for purposes of this section: (1)Attorneymeans a person engaged in the practice of law, whether as a sole proprietorship, partnership, corporation, or joint venture. (2)Legal servicesmeans all services related to, or in support of, the practice of law performed by, or under the supervision of, an attorney. (3)Payormeans a person who makes a payment if that person is an obligor on the payment, or the obligor’s insurer or guar- antor. For example, a payor includes— (i) A person who pays a settlement amount to an attorney of a client who has asserted a tort, contract, violation of law, or workers’ compensation claim against that person; and (ii) The person’s insurer if the insurer pays the settlement amount to the attorney. (4)Payments to an attorneyinclude payments by check or other method such as cash, wire or electronic transfer. Pay- ment by check to an attorney means a check on which the attorney is named as a sole, joint, or alternative payee. The attor- neyisthepayeeonacheckwrittentothe attorney’s client trust fund. However, the attorney is not a payee when the attorney’s name is included on the payee line as “in care of,” such as a check written to “client c/o attorney,” or if the attorney’s name is included on the check in any other manner that does not give theattorney the right to negotiate the check. (5)Amount of the paymentmeans the amount tendered (e.g., the amount of a check) plus the amount required to be withheld from the payment under section 3406(a)(1), because a condition for with- holding exists with respect to the attorney for whom an information return is required to be filed under paragraph (a)(1) of this section. (e)Attorney to furnish TIN. A payor that isrequiredtofileaninformationreturnun- der this section must solicit a TIN from the attorney at or before the time the payor makes a payment to the attorney. The at- torney must furnish the correct TIN to the payor, but is not required to certify the TIN. A payment for which a return of in- formation is required under this section is subject to backup withholding under sec- tion 3406 and the regulations thereunder. (f)Examples. The following exam- ples illustrate the provisions of this sec- tion. The examples assume that P is not a payor with respect to A, the attorney, un- der section 6041. See section 6041 and the regulations thereunder for rules regarding whether P is required under section 6041 to file information returns with respect to C. The examples are as follows: Example 1.One check—joint payees—taxable to claimant. Employee C, who sues employer P for back wages, is represented by attorney A. P settles the suit for $300,000. The $300,000 represents taxable wages to C under existing legal principles. P writes a settle- ment check payable jointly to C and A in the amount of $200,000, net of income and FICA tax withhold- ingwithrespecttoC.PdeliversthechecktoA.A retains $100,000 of the payment as compensation for legal services and disburses the remaining $100,000 to C. P must file an information return with respect to A for $200,000 under paragraph (a)(1) of this section. P also must file an information return with respect to C under sections 6041 and 6051, in the amount of $300,000. See §§1.6041–1(f) and 1.6041–2. Example 2.One check—joint payees—exclud- able to claimant. C, who sues corporation P for dam- ages on account of personal physical injuries, is repre- sented by attorney A. P settles the suit for a $300,000 damage payment that is excludable from C’s gross income under section 104(a)(2). P writes a $300,000 settlement check payable jointly to C and A and deliv- ers the check to A. A retains $120,000 of the payment as compensation for legalservices and remits the re- maining $180,000 to C. P must file an information re- turn with respect to A for $300,000 under paragraph (a)(1) of this section. P does not file an information return with respect to tax-free damages paid to C. 2006–33 I.R.B.242August 14, 2006 Example 3.Separate checks—taxable to claimant. C, an individual plaintiff in a suit for lost profits against corporation P, is represented by attorney A. P settles the suit for $300,000, all of which will be includible in C’s gross income. A requests P to write two checks, one payable to A in the amount of $100,000 as compensation for legal services and the other payable to C in the amount of $200,000. P writes the checks in accordance with A’s instructions and delivers both checks to A. P must file an information return with respect to A for $100,000 under paragraph (a)(1) of this section. Pursuant to §1.6041–1(a) and (f), P must file an information return with respect to C for the $300,000. Example 4.Check made payable to claimant, but delivered to nonpayee attorney. Corporation P is a defendant in a suit for damages in which C, the plain- tiff, has been represented by attorney A throughout the proceeding. P settles the suit for $300,000. Pur- suant to a request by A, P writes the $300,000 set- tlement check payable solely to C and delivers it to A at A’s office. P is not required to file an informa- tion return under paragraph (a)(1) of this section with respect to A, because there is no payment to an at- torney within the meaning of paragraph (d)(4) of this section. Example 5.Multiple attorneys listed as payees. Corporation P, a defendant, settles a lost profits suit brought by C for $300,000 by issuing a check nam- ing C’s attorneys, Y, A, and Z, as payees in that or- der. Y, A, and Z do not belong to the same law firm. P delivers the payment to A’s office. A deposits the check proceeds into a trust account and makes pay- ments by separate checks to Y of $30,000 and to Z of $15,000, as compensation for legal services, pursuant to authorization from C to pay these amounts. A also makes a payment by check of $155,000 to C. A re- tains $100,000 as compensation for legal services. P must file an information return for $300,000 with re- spect to A under paragraphs (a)(1) and (b)(1)(i) of this section. A, in turn, must file information returns with respect to Y of $30,000 and to Z of $15,000 under paragraphs (a)(1) and (b)(2) of this section because A is not required to file information returns under section 6041 with respect to A’s payments to Y and to Z because A’s role in making the payments to Y and to Z is merely ministerial. See §1.6041–1(e)(1), (e)(2) and (e)(5)Example 7for information report- ing requirements with respect to A’s payments to Y and Z. As described inExample 3, P must also file an information return with respect to C, pursuant to §1.6041–1(a) and (f). Example 6.Amount of the payment—attorney does not provide TIN.(i)CorporationP,adefendant, settles a suit brought by C for $300,000 of damages. P will pay the damages by a joint check to C and his attorney, A. A failed to furnish P with A’s TIN. P is required to deduct and withhold 28 percent tax from the $300,000 under section 3406(a)(1)(A) and paragraph (e) of this section. P writes the check to C and A as joint payees, in the amount of $216,000. P also must file an information return with respect to A under paragraph (a)(1) of this section in the amount of $300,000, as prescribed in paragraph (d)(5) of this section. If the damages are reportable under section 6041 because they are not excludable from gross in- come under existing legal principles, and are not sub- ject to any exception under section 6041, P must also file an information return with respect to C pursuant to §1.6041–1(a) and (f) in the amount of $300,000. (ii) Rather than paying by joint check to C and A, P will pay the damages by a joint check to C and F, A’s law firm. F failed to furnish its TIN to P. P is required to deduct and withhold 28 percent tax from the $300,000 under section 3406(a)(1)(A) and para- graph (e) of this section. P writes the check to C and F as joint payees, in the amount of $216,000. P also must file an information return with respect to F un- der paragraph (a)(1) of this section in the amount of $300,000, as prescribed in paragraph (d)(5) of this section. If the damages are reportable under section 6041 because they are not excludable from gross in- come under existing legal principles, and are not sub- ject to any exception under section 6041, P must also file an information return with respect to C pursuant to §1.6041–1(a) and (f) in the amount of $300,000. Example 7.Home mortgage lending transaction. (i) Individual P agrees to purchase a house that P will use solely as a residence. P obtains a loan from lender L to finance a portion of the cost of acquiring the house. L disburses loan proceeds of $300,000 to attorney A, who is the settlement agent, by a check naming A as the sole payee. A, in turn, writes checks from the loan proceeds and from other funds pro- vided by P to the persons involved in the purchase of the house, including a check for $800 to attorney B, whom P hired to provide P with legal services re- lating to the closing. (ii) P, not L, is the payor of the payment to A under paragraph (d)(3) of this section. P, however, is not required to file an information return with respect to A under paragraph (a)(1) of this section because the payment was not made in the course of P’s trade or business. Even if P made the payment in the course of P’s trade or business, P would not be required to file an information return under section 6045(f) with respect to A because P is excepted under paragraph (c)(6) of this section. (iii) A is not required to file an information re- turn under paragraph (a)(1) of this section with re- spect to the payment to B because A is not the payor as that term is defined under paragraph (d)(3) of this section. A is not required to file an information return under paragraph (b)(2) with respect to the payment to B because A was listed as sole payee on the check it received from P. See section 6041 and §1.6041–1(e) for whether A or L must file information returns un- der that section. See section 6045(e) and §1.6045–4 for whether A is required to file an information return under that section. Example 8.Business mortgage lending transac- tion. The facts are the same as inExample 7except that P buys real property that P will use in a trade or business. P, not L, is the payor of the payment to A under paragraph (d)(3) of this section. P, however, is not required to file an information return under sec- tion 6045(f) with respect to A because P is excepted under paragraph (c)(6) of this section. A is not re- quired to file an information return under paragraphs (a) or (b)(2) of this section with respect to the pay- ment to B. See section 6041 and §1.6041–1(e) to de- termine whether P or L must file an information re- turn under that section with respect to the payment to A, and whether P or A must file a return with respect to the payment to B. See section 6045(e) for rules re- garding whether A is required to file information re- turns under that section. Example 9.Qualified settlement fund. Corpora- tion P agrees to settle for $300,000 a class action law- suit brought by attorney A on behalf of a claimant class. Pursuant to the settlement agreement and a preliminary order of approval by a court, A estab- lishes a bank account in the name of Q Settlement Fund, which is a qualified settlement fund (QSF) un- der §1.468B–1. A is also designated by the court as the administrator of the QSF. Corporation P transfers $300,000bywireinYear1toA,whodepositsthe funds into the Q Settlement Fund. In Year 2, the court approves an award of attorney’s fees of $105,000 for A. In Year 2, Q Settlement Fund delivers $105,000 to A. P is required to file an information return un- der paragraph (a) of this section with respect to A for Year 1 for the $300,000 payment it made to A. The Q Settlement Fund is required to file an information re- turn under section 6041(a) and §1.468B–2(l)(2) with respect to A for Year 2 for the $105,000 payment it made to A. (g)Cross reference to penalties.Seethe following sections regarding penalties for failure to comply with the requirements of section 6045(f) and this section: (1) Section 6721 for failure to file a correct information return. (2) Section 6722 for failure to furnish a correct payee statement. (3) Section 6723 for failure to comply with other information reporting require- ments (including the requirement to fur- nish a TIN). (4) Section 7203 for willful failure to supply information (including a TIN). (h)Effective date.Therulesinthissec- tion apply to payments made on or after January 1, 2007. Mark E. Matthews, Deputy Commissioner for Services and Enforcement. Approved June 8, 2006. Eric Solomon, Acting Deputy Assistant Secretary of the Treasury (Tax Policy). (Filed by the Office of the Federal Register on July 12, 2006, 8:45 a.m., and published in the issue of the Federal Register for July 13, 2006, 71 F.R. 39548) August 14, 20062432006–33 I.R.B. Section 6103.—Confi- dentiality and Disclosure of Returns and Return Information 26 CFR 301.6103(k)(6)–1: Disclosure of return in- formation by certain officers and employees for in- vestigative purposes. T.D. 9274 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 301 Disclosure of Return Information by Certain Officers and Employees for Investigative Purposes AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations and removal of temporary regulations. SUMMARY: This document contains fi- nal regulations relating to the disclosure of return information pursuant to section 6103(k)(6) of the Internal Revenue Code (Code). The final regulations describe the circumstances under which internal revenue and Office of Treasury Inspector General for Tax Administration (TIGTA) employees may disclose return informa- tion to the extent necessary to obtain information or to accomplish properly any activity connectedwith certain offi- cial duties. These regulations clarify and elaborate on the facts and circumstances in which disclosure pursuant to section 6103(k)(6) is authorized. DATES:Effective Date:These regulations are effective July 6, 2006. Applicability Date:For dates of appli- cability, see §301.6103(k)(6)–1(e). FOR FURTHER INFORMATION CONTACT: Helene R. Newsome, 202–622–4570 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background Under section 6103(a), returns and re- turn information are confidential unless the Code authorizes disclosure. Section 6103(k)(6) authorizes an internal rev- enue officer or employee and an officer or employee of TIGTA, in connection with official duties relating to any audit, collection activity, civil or criminal tax investigation, or offense under the internal revenue laws, to disclose return informa- tion to a person other than the taxpayer to whom such return information relates (or his or her representative) to the extent that such disclosure is necessary to ob- tain information not otherwise reasonably available with respect to the correct de- termination of tax, liability for tax, or the amount to be collected, or with respect to the enforcement of any other provision of the Code or related statutes. Disclosure depends on situations and conditions pre- scribedbyregulation. On July 10, 2003, temporary regu- lations (T.D. 9073, 2003–2 C.B. 570) under section 6103(k)(6) were pub- lished in theFederal Register(68 FR 41073). A notice of proposed rulemak- ing (REG–140808–02, 2003–2 C.B. 582) cross-referencing the temporary regula- tions was published in theFederal Regis- terfor the same day (68 FR 41089). These regulations reflected a legisla- tive amendment to section 6103(k)(6) clarifying that officers or employees of TIGTA are among those individuals au- thorized to make disclosures under section 6103(k)(6). See Consolidated Appropria- tions Act, 2001, Public Law 106–554 (114 Stat. 2763), section 1 enacting H.R. 5662, Community Renewal Tax Relief Act of 2000, section 313(c). These regulations also clarified the standard for determining whether dis- closures are authorized under section 6103(k)(6). In particular, the regulations addressed the issues surrounding the dis- closures that occur when internal revenue or TIGTA employees introduce them- selves to third party witnesses or com- municate in writing,e.g., using official letterhead that reveals affiliation with the IRS or TIGTA. The regulations also clari- fied that section 6103(k)(6) does not limit internal revenue or TIGTA employees with respect to the initiation or conduct of an investigation. Finally, the regulations clarified that section 6103 does not require internal revenue and TIGTA employees to contact a taxpayer forinformation before contacting thirdparty witnesses. No comments were received from the public in response to the notice of pro- posed rulemaking.No public hearing was requested or held. In this Treasury deci- sion, the proposed regulations are adopted as revised below. Explanation of Revisions The proposed and temporary regula- tions provide that internal revenue and TIGTA employees may identify them- selves, their organizational affiliation, and the nature of their investigation, when making an oral, written, or electronic con- tact with a third party witness through the use and presentation of any identifi- cation media (including, but not limited to, a Federal agency badge, credential, or business card) or through the use of an information document request, summons, or correspondence on Federal agency let- terhead or which bears a return address or signature block that reveals affiliation with the Federal agency. In the final regu- lations, §301.6103(k)(6)–1(a)(3) has been revised to make clear that internal revenue and TIGTA employees may identify them- selves, their organizational affiliation, and the nature of their investigation, when making any oral, written, or electronic contact with a third party witness, not just when making a contact with a third party witness through the use and presentation of identification media, or through the use of an information document request, sum- mons, or correspondence. This revision is intended as a clarification rather than a change in the effect of the regulations. The proposed and temporary reg- ulations define the termdisclosure of return information to the extent necessary.The fourth sentence of §301.6103(k)(6)–1(c)(1) states that sec- tion 6103(k)(6) does not limit or restrict IRS or TIGTA officers and employees with respect to initiating or conducting an investigation. The final regulations revise this sentence to clarify that section 6103(k)(6) applies to all internal revenue officers and employees, not just IRS offi- cers and employees. There are individuals, in addition to IRS officers and employees, who are internal revenue officers and em- ployees because they are responsible for administering and enforcing certain tax administration provisions. This revision 2006–33 I.R.B.244August 14, 2006 is intended as a clarification rather than a change in the effect of the regulations. The proposed and temporary regula- tions define the terminternal revenue employeeas an officer or employee of the IRS or Office of Chief Counsel for the IRS. The final regulations add a phrase to §301.6103(k)(6)–1(c)(4) to encompass individuals responsible for administering and enforcing certaintax administration provisions who are not officers and em- ployees of the IRS or the Office of Chief Counsel for the IRS. Pursuant to the duties and powers established by the Home- land Security Act of 2002, Public Law 107–296, section 1111et seq.,116Stat. 2135 (2002), the Tax and Trade Bureau (TTB) in the Department of the Treasury has the responsibility for administering and enforcing the taxes under Chapters 32 (Part III of Subchapter D), 51, and 52 of the Code, and the Bureau of Alcohol, To- bacco, Firearms, and Explosives (ATF) in the Department of Justice has the respon- sibility for administering and enforcing the taxes under Chapter 53 of the Code. Pursuant to section 412 of the Homeland Security Act, the United States Customs Service continues to have the responsibili- ties it had when it was a bureau within the Department of the Treasury, which include administering and enforcing certain provi- sions of Chapters 51 and 52 of the Code. Pursuant to section 821 of the Homeland Security Act, the United States Secret Ser- vice continues to have the responsibilities it had when it was a bureau within the De- partment of the Treasury, which include investigating tax refund check fraud under 18 U.S.C. 510. Accordingly, paragraph (c)(4) of the final regulations has been revised to state that internal revenue em- ployee means an officer or employee of the IRS or Office of Chief Counsel for the IRS, or an officer or employee of a Federal agency responsible for administering and enforcing taxes under Chapters 32 (Part III of Subchapter D), 51, 52, or 53 of the Code, or investigating tax refund check fraud under 18 U.S.C. 510. This revision is intended as a clarification rather than a change in the effect of the regulations. The proposed and temporary regu- lations address the disclosure of return information in connection with inves- tigations that affect or may affect the personnel or employment status of Trea- sury employees or the status of persons authorized to practice before the Treasury Department. The final regulations revise §301.6103(k)(6)–1(b) to clarify that it ap- plies to employees of ATF, United States Customs Service, and United States Se- cret Service, as well as to employees of the Treasury Department and that Federal officers and employees who are respon- sible for the investigations and who are properly in possession of relevant return information are authorized to disclose such return information for the purpose of obtaining, verifying, or establishing other information which is or may be relevant and material to the investigation. This re- vision is intended as a clarification rather than a change in the effect of the regula- tions. The proposed and temporary regu- lations contain an example involving a private letter ruling request. Section 301.6103(k)(6)–1(d)Example 4. The final regulations revise this example to reflect a more common factual scenario involving a private letter ruling request. This revision is intended as a clarification rather than a change in the effect of the regulations. Special Analyses It has been determined that this Trea- sury decision is not a significant regula- tory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been deter- mined that 5 U.S.C. 553(b), the Admin- istrative Procedure Act, does not apply to these regulations, and because the regula- tions do not impose a collection of infor- mation on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the proposedregulations preced- ing these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business. Drafting Information The principal author of these regula- tions is Helene R. Newsome, Office of the Associate Chief Counsel (Procedure and Administration), Disclosure and Privacy Law Division. ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR part 301 is amended as follows: PART 301— PROCEDURE AND ADMINISTRATION Paragraph 1. The authority citation for part 301 is amended by adding an entry in numerical order to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * Section 301.6103(k)(6)–1 also issued under 26 U.S.C. 6103(k)(6); * * * Par. 2. Section 301.6103(k)(6)–1 is added to read as follows: §301.6103(k)(6)–1 Disclosure of return information by certain officers and employees for investigative purposes. (a)General rule. (1) Pursuant to the provisions of section 6103(k)(6) and sub- ject to the conditions of this section, an internal revenue employee or an Office of Treasury Inspector General for Tax Administration (TIGTA) employee, in connection with official duties relating to any examination, administrative appeal, collection activity, administrative, civil or criminal investigation, enforcement activ- ity, ruling, negotiatedagreement, prefiling activity, or other proceeding or offense under the internal revenue laws or related statutes, or in preparation for any pro- ceeding described in section 6103(h)(2) (or investigation which may result in such a proceeding), may disclose return in- formation, of any taxpayer, to the extent necessary to obtain information relating to such official duties or to accomplish properly any activity connected with such official duties, including, but not limited to— (i) Establishing or verifying the correct- ness or completeness of any return or re- turn information; (ii) Determining the responsibility for filing a return, for making a return if none has been made, or for performing such acts as may be required by law concerning such matters; (iii) Establishing or verifying the liabil- ity (or possible liability) of any person, or the liability (or possible liability) at law or in equity of any transferee or fiduciary of any person, for any tax, penalty, interest, August 14, 20062452006–33 I.R.B. fine, forfeiture, or other imposition or of- fense under the internal revenue laws or re- lated statutes or the amount thereof for col- lection; (iv) Establishing or verifying miscon- duct (or possible misconduct) or other ac- tivity proscribed by the internal revenue laws or related statutes; (v) Obtaining the services of persons having special knowledge or technical skills (such as, but not limited to, knowl- edge of particular facts and circumstances relevant to a correct determination of a li- ability described in paragraph (a)(1)(iii) of this section or skills relating to handwrit- ing analysis, photographic development, sound recording enhancement, or voice identification) or having recognized ex- pertise in matters involving the valuation of property if relevant to proper perfor- mance of official duties described in this paragraph; (vi) Establishing or verifying the fi- nancial status or condition and location of the taxpayer against whom collection activity is or may be directed, to locate assets in which the taxpayer has an inter- est, to ascertain the amount of any liability described in paragraph (a)(1)(iii) of this section for collection, or otherwise to ap- ply the provisions of the Internal Revenue Code relating to establishment of liens against such assets, or levy, seizure, or sale on or of the assets to satisfy any such liability; (vii) Preparing for any proceeding de- scribed in section 6103(h)(2) or conduct- ing an investigation which may result in such a proceeding; or (viii) Obtaining, verifying, or establish- ing information concerned with making determinations regarding a taxpayer’s lia- bility under the Internal Revenue Code, in- cluding, but not limited to, the administra- tive appeals process and any ruling, nego- tiated agreement, or prefiling process. (2) Disclosure of return information for the purpose of obtaining information to carry out properly the official duties de- scribed by this paragraph, or any activity connected with the official duties, is autho- rized only if the internal revenue or TIGTA employee reasonably believes, under the facts and circumstances, at the time of a disclosure, the information is not other- wise reasonably available, or if the activ- ity connected with the official duties can- not occur properly without the disclosure. (3) Internal revenue and TIGTA em- ployees may identify themselves, their or- ganizational affiliation (e.g., Internal Rev- enue Service (IRS), Criminal Investigation (CI) or TIGTA, Office of Investigations (OI)), and the nature of their investigation, when making an oral, written, or electronic contact with a third party witness. Permit- ted disclosures include, but are not limited to, the use and presentation of any identi- fication media (such as a Federal agency badge, credential, or business card) or the use of an information document request, summons, or correspondence on Federal agency letterhead or which bears a return address or signature block that reveals af- filiation with the Federal agency. (4) This section does not address or affect the requirements under section 7602(c) (relating to contact of third par- ties). (b)Disclosure of return information in connection with certain personnel or claimant representative matters.Incon- nection with official duties relating to any investigation concerned with enforcement of any provision of the Internal Revenue Code, including enforcement of any rule or directive prescribed by the Secretary or the Commissioner of Internal Revenue un- der any provision of the Internal Revenue Code, or the enforcement of any provision related to tax administration, that affects or may affect the personnel or employment rights or status, or civil or criminal liabil- ity, of any former, current, or prospective employee of the Treasury Department, Bureau of Alcohol, Tobacco, Firearms, and Explosives, United States Customs Service, United States Secret Service, or any successor agency, or the rights of any person who is, or may be, a party to an ad- ministrative action or proceeding pursuant to 31 U.S.C. 330 (relating to practice be- fore the Treasury Department), an internal revenue, TIGTA, or other Federal officer or employee who is responsible for inves- tigating such employees and persons and is properly in possession of relevant return information is authorized to disclose such return information to the extent necessary for the purpose of obtaining, verifying, or establishing other information which is or may be relevant and material to the investigation. (c)Definitions. The following defini- tions apply to this section— (1)Disclosure of return information to the extent necessarymeans a disclosure of return information which an internal revenue or TIGTA employee, based on the facts and circumstances, at the time of the disclosure, reasonably believes is necessary to obtain information to perform properly the official duties described by this section, or toaccomplish properly the activities connected with carrying out those official duties. The termnecessary in this context does not mean essential or indispensable, but rather appropriate and helpful in obtaining the information sought. Nor doesnecessaryin this context refer to the necessity of conducting an investigation or the appropriateness of the means or methods chosen to conduct the investigation. Section 6103(k)(6) does not limit or restrict internal revenue or TIGTA employees with respect to the decision to initiate or the conduct of an investi- gation. Disclosures under this paragraph (c)(1), however, may not be made indis- criminately or solely for the benefit of the recipient or as part of a negotiatedquid pro quoarrangement. This paragraph (c)(1) is illustrated by the following examples: Example 1. A revenue agent contacts a taxpayer’s customer regarding the customer’s purchases made from the taxpayer during the year under investigation. The revenue agent is able to obtain the purchase in- formation only by disclosing the taxpayer’s identity and the fact of the investigation. Depending on the facts and circumstances known to the revenue agent at the time of the disclosure, such as the way the cus- tomer maintains his records, it also may be necessary for the revenue agent to inform the customer of the date of the purchases and the types of merchandise involved for the customer to find the purchase infor- mation. Example 2. A revenue agent contacts a third party witness to obtain copies of invoices of sales made to a taxpayer under examination. The third party witness provides copies of the sales invoices in question and then asks the revenue agent for the current address of the taxpayer because the taxpayer still owes money to the third party witness.The revenue agent may not disclose that current address because this disclosure would be only for the benefit of the third party wit- ness and not necessary to obtain information for the examination. Example 3. A revenue agent contacts a third party witness to obtain copies of invoices of sales made to a taxpayer under examination. The third party witness agrees to provide copies of the sales invoices in ques- tion only if the revenue agent provides him with the current address of the taxpayer because the taxpayer still owes money to the third party witness. The rev- enue agent may not disclose that current address be- cause this disclosure would be a negotiatedquid pro quoarrangement. 2006–33 I.R.B.246August 14, 2006 (2)Disclosure of return information to accomplish properly an activity connected with official dutiesmeans a disclosure of return information to carry out a function associated with official duties generally consistent with established practices and procedures. This paragraph (c)(2) is illus- trated by the following example: Example. A taxpayer failed to file an income tax return and pay the taxes owed. After the taxes were assessed and the taxpayer was notified of the balance due, a revenue officer filed a notice of federal tax lien and then served a notice of levy on the taxpayer’s bank. The notices of lien and levy contained the tax- payer’s name, social security number, amount of out- standing liability, and the tax period and type of tax involved. The taxpayer’s assets were levied to sat- isfy the tax debt, but it was determined that, prior to the levy, the revenue officer failed to issue the tax- payer a notice of intent to levy, as required by section 6331, and a notice of right to hearing before the levy, as required by section 6330. The disclosure of the taxpayer’s return information in the notice of levy is authorized by section 6103(k)(6) despite the revenue officer’s failure to issue the notice of intent to levy or the notice of right to hearing. The ultimate va- lidity of the underlying levy is irrelevant to the issue of whether the disclosure was authorized by section 6103(k)(6). (3)Information not otherwise reason- ably availablemeans information that an internal revenue or TIGTA employee rea- sonably believes, under the facts and cir- cumstances, at the time of a disclosure, cannot be obtained in asufficiently accu- rate or probative form, or in a timely man- ner, and without impairing the proper per- formance of the official duties described by this section, without making the disclo- sure. This definition does not require or create the presumption or expectation that an internal revenue or TIGTA employee must seek information from a taxpayer or authorized representative prior to contact- ing a third party witness in an investiga- tion. Neither the Internal Revenue Code, IRS procedures, nor these regulations re- quire repeated contacting of an uncooper- ative taxpayer. Moreover, an internal rev- enue or TIGTA employee may make a dis- closure to a third party witness to corrob- orate information provided by a taxpayer. This paragraph (c)(3) is illustrated by the following examples: Example 1. A revenue agent is conducting an examination of a taxpayer. The taxpayer refuses to cooperate or provide any information to the revenue agent. Information relating to the taxpayer’s exam- ination would be information not otherwise reason- ably available because of the taxpayer’s refusal to cooperate and supply any information to the revenue agent. The revenue agent may seek information from a third party witness. Example 2. A special agent is conducting a crim- inal investigation of a taxpayer. The special agent has acquired certain information from the taxpayer. Al- though the special agent has no specific reason to dis- believe the taxpayer’s information, the special agent contacts several third party witnesses to confirm the information. The special agent may contact third party witnesses to verify the correctness of the infor- mation provided by the taxpayer because the IRS is not required to rely solely on information provided by a taxpayer, and a special agent may take appropriate steps, including disclosures to third party witnesses under section 6103(k)(6), to verify independently or corroborate information obtained from a taxpayer. (4)Internal revenue employeemeans, for purposes of this section, an officer or employee of the IRS or Office of Chief Counsel for the IRS, or an officer or em- ployee of a Federal agency responsible for administering and enforcing taxes under Chapters 32 (Part III of Subchapter D), 51, 52, or 53 of the Internal Revenue Code, or investigating tax refund check fraud under 18 U.S.C. 510. (5)TIGTA employeemeans an officer or employee of the Office of Treasury In- spector General for Tax Administration. (d)Examples. The following examples illustrate the application of this section: Example 1. A revenue agent is conducting an examination of a taxpayer. The taxpayer has been very cooperative and has supplied copies of invoices as requested. Some of the taxpayer’s invoices show purchases that seem excessive in comparison to the size of the taxpayer’s business. The revenue agent contacts the taxpayer’s suppliers for the purpose of corroborating the invoices the taxpayer provided. In contacting the suppliers, therevenue agent discloses the taxpayer’s name, the dates of purchase, and the type of merchandise at issue. These disclosures are permissible under section 6103(k)(6) because, under the facts and circumstances known to the revenue agent at the time of the disclosures, the disclosures were necessary to obtain information (corroboration of invoices) not otherwise reasonably available be- cause suppliers would be the only source available for corroboration of this information. Example 2. A revenue agent is conducting an ex- amination of a taxpayer. The revenue agent asks the taxpayer for business records to document the deduc- tion of the cost of goods sold shown on Schedule C of the taxpayer’s return. The taxpayer will not pro- vide the business records to the revenue agent, who contacts a third party witness for verification of the amount on the Schedule C. In the course of the con- tact, the revenue agent shows the Schedule C to the third party witness. This disclosure is not authorized under section 6103(k)(6). Section 6103(k)(6) permits disclosure only of return information, not the return (including schedules and attachments) itself. If nec- essary, a revenue agent may disclose return informa- tion extracted from a return when questioning a third party witness. Thus, the revenue agent could have extracted the amount of cost of goods sold from the Schedule C and disclosed that amount to the third party witness. Example 3. A special agent is conducting a crim- inal investigation of a taxpayer, a doctor, for tax eva- sion. Notwithstanding the records provided by the taxpayer and the taxpayer’s bank, the special agent decided to obtain information from the taxpayer’s pa- tients to verify amounts paid to the taxpayer for his services. Accordingly, the special agent sent letters to the taxpayer’s patients to verify these amounts. In the letters, the agent disclosed that he was a special agent with IRS-CI and that he was conducting a crim- inal investigation of the taxpayer. Section 6103(k)(6) permits these disclosures (including the special agent disclosing his affiliation with CI and the nature of the investigation) to confirm the taxpayer’s income. The decision whether to verify information already ob- tained is a matter of investigative judgment and is not limited by section 6103(k)(6). Example 4. Corporation A requests a private letter ruling (PLR) as to the tax consequences of a planned transaction. Corporation A has represented that it is in compliance with laws administered by Agency B that may relate to the tax consequences of the proposed transaction. Further information is needed from Agency B relatingtopossibletax consequences. Under section 6103(k)(6), the IRS may disclose Corporation A’s return information to Agency B to the extent necessary to obtain infor- mation from Agency B for the purpose of properly considering the tax consequences of the proposed transaction that is the subject of the PLR. (e)Effective date. This section is appli- cable on July 6, 2006. §301.6103(k)(6)–1T [Removed] Par. 3. Section 301.6103(k)(6)–1T is removed. Mark E. Matthews, Deputy Commissioner for Services and Enforcement. Approved July 5, 2006. Eric Solomon, Acting Deputy Assistant Secretary for Tax Policy. (Filed by the Office of the Federal Register on July 6, 2006, 10:02 a.m., and published in the issue of the Federal Register for July 11, 2006, 71 F.R. 38985) August 14, 20062472006–33 I.R.B. Part III. Administrative, Procedural, and Miscellaneous GO Zone Bonus Depreciation Notice 2006–67 SECTION 1. PURPOSE This notice provides guidance with respect to the 50-percent additional first year depreciation deduction provided by § 1400N(d) of the Internal Revenue Code (GO Zone additional first year deprecia- tion deduction) for qualified Gulf Oppor- tunity Zone property (GO Zone property). SECTION 2. BACKGROUND AND GO ZONE PROPERTY .01 Section 1400N(d), added by section 101 of the Gulf Opportunity Zone Act of 2005, Pub. L. No. 109–135, 119 Stat. 2577, generally allows a 50-percent ad- ditional first year depreciation deduction for GO Zone property. The GO Zone ad- ditional first year depreciation deduction is allowable in the taxable year in which the GO Zone property is placed in ser- vice by the taxpayer. The computation of the allowable GO Zone additional first year depreciation deduction and the oth- erwise allowable depreciation deduction for GO Zone property is made in accor- dance with rules similar to the rules for 50-percent bonus depreciation property in § 1.168(k)–1T(d)(1)(i), (1)(iii), and (2) of the Income Tax Regulations. .02 GO Zone property is depreciable property that meets all of the following requirements: (1) Property that is de- scribed in § 168(k)(2)(A)(i) and § 1.168(k)–1T(b)(2)(i), or property that is nonresidential realproperty (as defined in § 168(e)(2)(B)) or residential rental property (as defined in § 168(e)(2)(A)) and depreciated under § 168; (2) Substantially all of the use of the property is in the Gulf Opportunity (GO) Zone (as defined in § 1400M(1)) and in the active conduct of a trade or business by the taxpayer in the GO Zone (for further guidance, see section 3 of this notice); (3) The original use of the property commences with the taxpayer in the GO Zone on or after August 28, 2005. For purposes of this section 2.02(3), rules similar to the original use rules in § 1.168(k)–1T(b)(3)apply. In addition, used property will satisfy the original use requirement so long as the property has not been previously used within the GO Zone; (4) The property is acquired by the tax- payer by purchase (as defined in § 179(d) and § 1.179–4(c)) on or after August 28, 2005, but only if no written binding con- tract for the acquisition of the property was in effect before August 28, 2005. For purposes of this section 2.02(4), the rules in § 1.168(k)–1T(b)(4)(ii) (bind- ing contract), rules similar to the rules in § 168(k)(2)(E)(i) and § 1.168(k)– 1T(b)(4)(iii) (self-constructed prop- erty), and rules similar to the rules in § 168(k)(2)(E)(iv) and § 1.168(k)– 1T(b)(4)(iv) (disqualified transactions) apply; and (5) The property is placed in service by the taxpayer on or before December 31, 2007 (December 31, 2008, in the case of qualified nonresidential real property and residential rental property). .03 Depreciable property is not eligible for the GO Zone additional first year de- preciation deduction if: (1) The property is described in § 168(k)(2)(D)(i) and § 1.168(k)– 1T(b)(2)(ii)(A)(2); (2) The property is described in § 168(f); (3) Any portion of the property is fi- nanced with the proceeds of any obligation the interest on which is tax-exempt under §103; (4) The property is a qualified revital- ization building (as defined in § 1400I(b)) for which the taxpayer has made an elec- tion under § 1400I(a)(1) or (a)(2) in ac- cordance with section 7 of Rev. Proc. 2003–38, 2003–1 C.B. 1017; (5) The property is included in any class of property for which the taxpayer elects not to deduct the GO Zone additional first year depreciation (for further guidance, see section 4 of this notice); (6) The property is described in § 1400N(p)(3) (for further guidance, see section 5 of this notice); (7) The property is placed in service and disposed of during the same taxable year. However, rules similar to the rules in § 1.168(k)–1T(f)(1)(ii) and (iii) (tech- nical termination of a partnership under § 708(b)(1)(B) or transactions described in § 168(i)(7)) apply; or (8) The property is converted from busi- ness or income-producing use to personal use in the same taxable year in which the property is placed in service by a taxpayer. .04 The counties and parishes in Alabama, Louisiana, and Mississippi that comprise the GO Zone are listed on page 2 of IRS Publication 4492,Information for Taxpayers Affected by Hurricanes Katrina, Rita, and Wilma, under Gulf Opportunity (GO) Zone (Core Disaster Area). .05 If depreciable property is not GO Zone property in the taxable year in which the property is placed in service by the tax- payer, the GO Zone additional first year depreciation deduction is not allowable for the property even if a change in use of the property subsequent to the placed-in-ser- vice year of the property results in the property being GO Zone property.See § 1.168(k)–1T(f)(6)(iv)(B). .06 Limitation provisions of the Code (for example, §§ 465, 469, and 704(d)) ap- ply and may limit the amount of the GO Zone additional first year depreciation de- duction that may be claimed by a taxpayer subject to such a provision. SECTION 3. SUBSTANTIALLY ALL AND ACTIVE CONDUCT REQUIREMENTS UNDER § 1400N(d)(2)(A)(ii) .01Substantially All Requirement. Each depreciable property will meet the requirements of § 1400N(d)(2)(A)(ii) if substantially all of the use of the property is in the GO Zone and in the active conduct of a trade of business by the taxpayer in the GO Zone. For this purpose, the term “substantially all” means 80 percent or more during each taxable year. If greater than 20 percent of the use of the property either is outside the counties and parishes designated as being part of the GO Zone or is not in the active conduct of a trade or business by the taxpayer in the GO Zone, then the property is not GO Zone property and is not eligible for the GO Zone addi- tional first year depreciation deduction. The following example illustrates the provisions of this section 3.01 and section 2.05 of this notice. 2006–33 I.R.B.248August 14, 2006 Example.A, a calendar-year taxpayer, owns and operates a furniture store in the GO Zone. In De- cember 2006,Apurchases a new delivery truck and places it in service for use inA’s business. The de- liverytruckisusedlessthan80percentintheGO Zone in 2006 and is used 80 percent or more in the GO Zone in 2007 and 2008. Because the delivery truck does not meet the substantially all requirement described in this section 3.01 in its placed-in-service year (2006), the truck is not GO Zone property. Thus, the truck does not qualify for the GO Zone additional first year depreciation deduction, regardless of the fact that substantially all of the use of the truck is in the GO Zone in 2007 and 2008. .02Active Conduct of a Trade or Busi- ness Requirement. (1)Trade or business definition.For purposes of § 1400N(d)(2)(A)(ii), the term “trade or business” has the same meaning as in § 162 and the regulations thereunder. Thus, property held merely for the produc- tion of income or used in an activity not en- gaged in for profit (as described in § 183) does not qualify for the GO Zone addi- tional first year depreciation deduction. (2)Active conduct. Solely for purposes of § 1400N(d)(2)(A)(ii), the determination of whether a trade or business is actively conducted by the taxpayer is to be made based on all of the facts and circumstances. A taxpayer generally is considered to ac- tively conduct a trade or business if the taxpayer meaningfully participates in the management or operations of the trade or business. Furthermore, for purposes of § 1400N(d)(2)(A)(ii), a partner, member, or shareholder of a partnership, limited li- ability company, or S corporation, respec- tively, is considered to actively conduct a trade or business of the partnership, lim- ited liability company, or S corporation if the partnership, limited liability company, or S corporation meaningfully participates (through the activities performed by itself, or by others on behalf of the partnership, limited liability company, or S corpora- tion, respectively) in the management or operations of the trade or business. Sim- ilar rules apply to other pass-thru entities such as trusts or estates. (3)Examples. The following examples illustrate the provisions of section 3.02 of this notice. (a)Example 1. During 2006,MNO, a limited li- ability company, constructs and places in service a new apartment building in the GO Zone.MNOis treated as a partnership for federal tax purposes.B, amemberinMNO, manages and operates this apart- ment building for MNO. BecauseBmanages and op- erates the apartment building forMNO,MNOmean- ingfully participates inthe management and opera- tions of the apartment building. Consequently, all of the use of the apartment building is in the GO Zone and in the active conduct of a trade or business by MNOin the GO Zone. Accordingly, the unadjusted depreciable basis (as defined in § 1.168(b)–1T(a)(3)) of the apartment building qualifies for the GO Zone additional first year depreciation deduction (assum- ing all other requirements are met). However, lim- itation provisions of the Code (for example, § 469) apply and may limit the amount of the GO Zone ad- ditional first year depreciation deduction that may be claimed by the members ofMNO. (b)Example 2. During 2006,C, an individual, places in service a new restaurant in the GO Zone and employsDto operate it. During 2006, C periodically met withDto review operations relating to the restau- rant.Calso approved the restaurant’s budget for 2006 that was prepared byD.Dperforms all the necessary operating functions, including hiring chefs, acquiring the necessary food and restaurant supplies, and writ- ing the checks to pay all bills and the chefs’ salaries. Based on these facts and circumstances,Cmeaning- fully participates in the management of the restau- rant. Consequently, all of the use of the restaurant is in the GO Zone and in the active conduct of a trade or business byCin the GO Zone. Accordingly, the unadjusted depreciable basis of the restaurant quali- fies for the GO Zone additional first year depreciation deduction (assuming all other requirements are met). However, limitation provisions of the Code (for ex- ample, § 469) apply and may limit the amount of the GO Zone additional first year depreciation deduction that may be claimed byC. (c)Example 3. During 2006,PRS, a partnership, constructs and places in service a new small commer- cial building in the GO Zone and leases it toE,an unrelated party, who uses the building as a fast food restaurant. This building is the only property owned byPRS. The lease agreement betweenPRSandEis a triple net lease under whichEis responsible for all of the costs relating to the building (for example, paying all taxes, insurance, and maintenance expenses) in ad- dition to paying rent. Because of the triple net lease, PRSdoes not meaningfully participate in the manage- ment or operations of the building and the building is not used in the active conduct of a trade or business byPRSin the GO Zone. Accordingly, the building does not qualify for the GO Zone additional first year depreciation deduction. (d)Example 4. Same facts asExample 3,ex- cept thatPRS, during 2006, constructs and places in service two other new commercial buildings in the GO Zone and leases these buildings toF,anunre- lated party, who uses the two other buildings as office space. The lease agreement betweenPRSandFis not a triple net lease.G, a partner inPRS, manages and operates the two office buildings forPRS. Because Gmanages and operates the two office buildings for PRS,PRSmeaningfully participates in the manage- ment and operations of the two office buildings. Con- sequently, these two office buildings are used in the active conduct of a trade or business byPRSin the GO Zone. Accordingly, the total unadjusted depreciable basis of the two office buildings leased toFquali- fies for the GO Zone additional first year deprecia- tion deduction (assuming all other requirements are met). However, limitation provisions of the Code (for example, § 469) apply and may limit the amount of the GO Zone additional first year depreciation deduc- tion that may be claimed by the partners ofPRSwith respect to the two buildings leased toF.Further,be- cause the requirements of § 1400N(d)(2)(A)(ii) apply on a property-by-property basis, the building leased toEdoes not qualify for the GO Zone additional first year depreciation deduction, as provided inExample 3. SECTION 4. ELECTION NOT TO DEDUCT GO ZONE ADDITIONAL FIRST YEAR DEPRECIATION .01In General.Pursuantto § 1400N(d)(2)(B)(iv), a taxpayer may make an election not to deduct the GO Zone additional first year depreciation for any class of property that is GO Zone prop- erty placed in service during the taxable year. If a taxpayer makes this election, then the election applies to all GO Zone property that is in the same class of prop- erty and placed in service in the same taxable year, and no additional first year depreciation deduction is allowable for the class of property. In addition, the depreci- ation adjustments under § 56 apply to that property for purposes of computing the taxpayer’s alternative minimum taxable income. The election not to deduct the GO Zone additional first year depreciation is made by each person owning GO Zone property (for example, for each member of a consolidated group by the common parent of the group, by the partnership, or by the S corporation). .02Definition of Class of Property. For purposes of the election under § 1400N(d)(2)(B)(iv) not to deduct the GO Zone additionalfirst year deprecia- tion, the term “class of property” means: (1) Except for the property described in this section 4.02(2), (3), (4), (5), and (6), each class of property described in § 168(e) (for example, 5-year property); (2) Water utility property as defined in § 168(e)(5) and depreciated under § 168; (3) Computer software as defined in, and depreciated under, § 167(f)(1) and the regulations thereunder; (4) Qualified leasehold improvement property as defined in § 168(k)(3) and § 1.168(k)–1T(c) and depreciated under §168; (5) Nonresidential real property as de- fined in § 168(e)(2)(B) and depreciated un- der § 168; or (6) Residential rental property as de- fined in § 168(e)(2)(A) and depreciated under § 168. August 14, 20062492006–33 I.R.B. .03Time and Manner of Making the Election. (1)In general. An election not to deduct the GO Zone additional first year depreciation for any class of property that is GO Zone property placed in service during the taxable year must be made by the due date (including extensions) of the federal income tax return for the taxable year in which the GO Zone property is placed in service by the taxpayer. The election must be made in the manner pre- scribed on Form 4562,Depreciation and Amortization, and its instructions. If a taxpayer files its 2004 or 2005 fed- eral income tax return on or after Septem- ber 13, 2006, then the taxpayer must fol- low the instructions for the 2005 Form 4562 (Rev. January 2006) for the manner for making the election not to deduct the GO Zone additional first year depreciation for any class of property that is GO Zone property placed in service by the taxpayer on or after August 28, 2005, during the tax- payer’s taxable year beginning in 2004 or 2005 (2004 or 2005 taxable year). If a tax- payer files its 2004 or 2005 federal income tax return before September 13, 2006, then see section 4.03(2) of this notice for the procedures for making the election not to deduct the GO Zone additional first year depreciation for any class of property that is GO Zone property placed in service by the taxpayer on or after August 28, 2005, during the taxpayer’s 2004 or 2005 taxable year. (2)Special rules for 2004 or 2005 fed- eral income tax return filed before Septem- ber 13, 2006. (a)In general. If a taxpayer files its 2004 or 2005 federal income tax return be- fore September 13, 2006, then the taxpayer has made the election not to deduct the GO Zone additional firstyear depreciation for a class of property that is GO Zone prop- erty placed in service by the taxpayer on or after August 28, 2005, during the tax- payer’s 2004 or 2005 taxable year, if the taxpayer: (i) made the election within the time prescribed in section 4.03(1) of this no- tice and in the manner prescribed in the instructions for the 2005 Form 4562 (Rev. January 2006) (that is, attach a statement to the taxpayer’s timely filed return (in- cluding extensions) indicating the class of property for which the taxpayer is making the election and that, for such class of prop- erty, the taxpayer is electing not to claim the GO Zone additional first year depreci- ation deduction); or (ii) made the deemed election provided forinsection4.03(2)(b)ofthisnotice. (b)Deemed election. If section 4.03(2)(a)(i) of this notice does not ap- ply, a taxpayer that files its 2004 or 2005 federal income tax return before Septem- ber 13, 2006, will be treated as having made the election not to deduct the GO Zone additional first year depreciation for a class of property that is GO Zone property placed in service by the taxpayer on or after August 28, 2005, during the taxpayer’s 2004 or 2005 taxable year, if the taxpayer: (i) on that return, did not claim the GO Zone additional first year depreciation de- duction for that class of property but did claim depreciation; and (ii) does not file an amended federal tax return for the taxpayer’s 2004 or 2005 tax- able year on or before February 14, 2007, or a Form 3115,Application for Change in Accounting Method, with the taxpayer’s federal tax return for the taxpayer’s next succeeding taxable year, to claim the GO Zone additional first year depreciation de- duction for that class of property. If a Form 3115 is filed under section 4.03(2)(b)(ii) of this notice, the Form 3115 must be filed in accordance with the au- tomatic change in method of accounting provisions of Rev. Proc. 2002–9, 2002–1 C.B. 327, as modified and clarified by An- nouncement 2002–17, 2002–1 C.B. 561, modified and amplified by Rev. Proc. 2002–19, 2002–1 C.B. 696, and ampli- fied, clarified, and modified by Rev. Proc. 2002–54, 2002–2 C.B. 432, or any suc- cessor. The change in method of account- ing from filing the Form 3115 results in a § 481(a) adjustment. Further, the scope limitations in section 4.02 of Rev. Proc. 2002–9 do not apply. Moreover, for pur- poses of section 6.02(4)(a) of Rev. Proc. 2002–9, the taxpayer should include on line 1a of the Form 3115 the designated au- tomatic accounting method change num- ber “104”. Section 1.446–1(e)(3)(ii) authorizes the Commissioner of Internal Revenue to pre- scribe administrative procedures setting forth the limitations, terms, and conditions deemed necessary to permit a taxpayer to obtain consent to change a method of ac- counting. In addition,section 2.04 of Rev. Proc. 2002–9 provides that unless specif- ically authorized by the Commissioner, a taxpayer may not request, or otherwise make, a retroactive change in method of accounting, regardless of whether the change is from a permissible or an imper- missible method.See generallyRev. Rul. 90–38, 1990–1 C.B. 57. .04Revocation. An election not to deduct the GO Zone additional first year depreciation for a class of property that is GO Zone property is revocable only with the prior written consent of the Com- missioner. To seek the Commissioner’s consent, the taxpayer must submit a re- quest for a letter ruling in accordance with the provisions of Rev. Proc. 2006–1, 2006–1 I.R.B. 1 (or any successor). .05Failure to Make Election Not to Deduct GO Zone Additional First Year De- preciation. If a taxpayer does not make the election described in section 4.01 of this notice within the time and in the manner prescribed in section 4.03 of this notice, the amount of depreciation allowable for that property under § 167(f)(1) or under § 168, as applicable, must be determined for the placed-in-service year and for all subsequent taxable years by taking into ac- count the GO Zone additional first year de- preciation deduction. Thus, the election not to deduct the GO Zone additional first year depreciation cannot be made by the taxpayer in any other manner (for example, through a request under § 446(e) to change the taxpayer’s method of accounting). SECTION 5. CERTAIN PROPERTY NOT ELIGIBLE FOR THE GO ZONE ADDITIONAL FIRST YEAR DEPRECIATION DEDUCTION .01In General. Section 1400N(p)(1) disallows the GO Zone additional first year depreciation deduction for any property described in § 1400N(p)(3). Pursuant to § 1400N(p)(3)(A), such property includes: (1) any property used in connection with any private or commercial golf course, massage parlor, hot tub facility, suntan facility, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises (“prohibited activities”); or (2) any gambling or animal racing prop- erty. .02Prohibited Activities. 2006–33 I.R.B.250August 14, 2006 (1)Real property used for both a pro- hibited activity and a non-prohibited ac- tivity. Solely for purposes of § 1400N(d), the portion of any real property (deter- mined by square footage) that is dedicated to any prohibited activity described in sec- tion 5.01(1) of this notice is not eligible for the GO Zone additional first year depreci- ation deduction. If real property is used for both a prohibited activity and an ac- tivity not described in section 5.01(1) of this notice, the portion of the real property (determined by square footage) that is not dedicated to the prohibited activity is eli- gible for the GO Zone additional first year depreciation deduction (assuming all other requirements under § 1400N(d) are met). For example, the GO Zone additional first year depreciation deduction for a shopping center that has both a suntan salon and businesses not described in section 5.01(1) of this notice (and that otherwise qualifies for the GO Zone additional first year de- preciation deductionunder § 1400N(d)), is determined without regard to the portion of the shopping center’s unadjusted depre- ciable basis that bears the same percentage to the total unadjusteddepreciable basis as the percentage of square footage dedicated to the prohibited activity (that is, the sun- tan salon) bears to the total square footage of the shopping center. (2)Trade or business activity that de- rives a small percentage of gross receipts from certain prohibited activities. (a)De minimis rule. Solely for pur- poses of § 1400N(p)(3)(A)(i), a taxpayer’s trade or business activity that has less than 10 percent of its total gross receipts de- rived from massages, tanning services, or a hot tub facility is not treated as, respec- tively, a massage parlor, a suntan facility, or a hot tub facility. Such trade or business activity may include, for example, a physi- cal therapy office or a beauty/day spa salon if its gross receipts derived from massages, suntanning, and hot tub facilities are less than 10 percent of its total gross receipts. In determining whether this less than 10 percent test is satisfied, only gross receipts from the taxpayer’s trade or business ac- tivity that includes the massages, tanning services, or hot tub facility are taken into account. Further, if a taxpayer is a member of a consolidated group, only the gross re- ceipts of the taxpayer (and not the consoli- dated group) are taken into account. Also, if the taxpayer is a partnership, S corpo- ration, or other pass-thru entity, only the gross receipts of the pass-thru entity (and not the owners of the pass-thru entity) are taken into account. (b)Definition of gross receipts.For purposes of this section 5.02(2), the term “gross receipts” means the taxpayer’s re- ceipts for the taxable year that are rec- ognized under the taxpayer’s methods of accounting used for federal income tax purposes for the taxable year. For this purpose, gross receipts include total sales (net of returns and allowances) and all amounts received for services. In addition, gross receipts includeany income from in- vestments, and from incidental or outside sources. For example, gross receipts in- clude interest (including original issue dis- count and tax-exempt interest within the meaning of § 103), dividends, rents, roy- alties, and annuities, regardless of whether the amounts are derived in the ordinary course of the taxpayer’s trade or business. Gross receipts are not reduced by cost of goods sold or by the cost of property sold if such property is described in § 1221(a)(1), (3), (4), or (5). With respect to sales of capital assets as defined in § 1221, or sales of property described in § 1221(a)(2) (re- latingtopropertyusedinatradeorbusi- ness), gross receipts are reduced by the taxpayer’s adjusted basis in such property. Gross receipts do not include the amounts received in repayment of a loan or simi- lar instrument (for example, a repayment of the principal amount of a loan held by a commercial lender). Finally, gross re- ceipts do not include amounts received by the taxpayer with respect to sales tax or other similar state and local taxes if, un- der the applicable state or local law, the tax is legally imposed on the purchaser of the good or service and the taxpayer merely collects and remits the tax to the taxing au- thority. If, in contrast, the tax is imposed on the taxpayer under the applicable law, then gross receipts include the amounts re- ceived that are allocable to the payment of such tax. .03Gambling or Animal Racing Prop- erty. (1)In general. Section 1400N(p)(3) (B)(i) defines the term “gambling or ani- mal racing property” as meaning: (a) any equipment, furniture, software, or other property used directly in connec- tion with gambling, the racing of animals, or the on-site viewing of such racing; and (b) the portion of any real property (de- termined by square footage) that is dedi- cated to gambling, the racing of animals, or the on-site viewing of such racing. How- ever, pursuant to § 1400N(p)(3)(B)(ii), if the portion of the real property dedicated to gambling, the racing of animals, or the on-site viewing of such racing is less than 100 square feet, then that portion is not gambling or animal racing property. For example, no apportionment is required un- der this 100-square-footde minimisrule in the case of a retail store that sells lottery tickets in a less than 100 square foot area. (2)Real property not dedicated to gam- bling or animal racing. Real property that is not dedicated to gambling, the racing of animals, or the on-site viewing of such rac- ing but is attached to such gaming facilities is eligible for the GO Zone additional first year depreciation deduction (assuming all other requirements under § 1400N(d) are met). Such property may include, for ex- ample, hotels, restaurants, and parking lots of gaming facilities. For example, the GO Zone additional first year depreciation de- duction for a building that is used as both a casino and a hotel (and that otherwise qual- ifies for the GO Zone additional first year depreciation deduction under § 1400N(d)), is determined without regard to the por- tion of the building’s unadjusted deprecia- ble basis that bears the same percentage to the total unadjusted depreciable basis as the percentage of square footage dedicated to gambling (that is, the casino floor) bears to the total square footage of the building. SECTION 6. RECAPTURE RULES UNDER § 1400N(d)(5) .01In General. Section 1400N(d)(5) provides that for purposes of § 1400N(d), rules similar to the recapture rules under § 179(d)(10) and § 1.179–1(e) apply with respect to any GO Zone property that ceases to be GO Zone property. .02Application.IfGOZonepropertyis no longer GO Zone property in the hands of the same taxpayer at any time before the end of the GO Zone property’s recov- ery period as determined under § 167(f)(1) or § 168, as applicable, then the taxpayer must recapture in the taxable year in which the GO Zone property is no longer GO Zone property (the recapture year) the ben- efit derived from claiming the GO Zone additional first year depreciation deduc- August 14, 20062512006–33 I.R.B. tion for such property. The benefit derived from claiming the GO Zone additional first year depreciation deduction for the prop- erty is equal to the excess of the total de- preciation claimed (including the GO Zone additional first year depreciation deduc- tion) for the property for the taxable years before the recapture year over the total de- preciation that would have been allowable for the taxable years before the recapture year as a deduction under § 167(f)(1) or § 168, as applicable, had the GO Zone ad- ditional first year depreciation deduction not been claimed (regardless of whether such excess reduced the taxpayer’s tax li- ability). The amount to be recaptured is treated as ordinary income for the recap- ture year. For the recapture year and sub- sequent taxable years, the taxpayer’s de- ductions under § 167(f)(1) or § 168, as ap- plicable, are determined as if no GO Zone additional first year depreciation deduc- tion was claimed with respect to the prop- erty. If, subsequent to the recapture year, a change in the use of the property results in the property again being GO Zone prop- erty, then the GO Zone additional first year depreciation deduction is not allowable for the property. .03Examples. The following examples illustrate the provisions of this section 6. (a)Example 1.H, a calendar-year taxpayer, owns and operates a furniture store in the GO Zone. In De- cember 2006,Hpurchases a new delivery truck for $50,000 and places it in service for use inH’s busi- ness. For 2006, this delivery truck is GO Zone prop- erty and is 5-year property under § 168(e).Hdepre- ciates its 5-year property placed in service in 2006 using the optional depreciation table that corresponds with the general depreciation system, the 200-percent declining balance method, a5-year recovery period, and the half-year convention. During 2007, the deliv- ery truck is used less than 80 percent in the GO Zone. (i) For 2006,His allowed the GO Zone addi- tional first year depreciation deduction of $25,000 for the delivery truck (unadjusted depreciable basis of $50,000 multiplied by .50). In addition,H’s depreci- ation deduction allowable in 2006 for the remaining adjusted depreciable basis of $25,000 for the delivery truck (the unadjusted depreciable basis of $50,000 re- duced by the GO Zone additional first year depreci- ation deduction of $25,000) is $5,000 (the remaining adjusted depreciable basis of $25,000 multiplied by the annual depreciation rate of .20 for recovery year 1). Thus,H’s depreciation deduction allowable in 2006 for the delivery truck totals $30,000. (ii) For 2007, because the delivery truck does not meet the substantially all requirement described in section 3.01 of this notice, the delivery truck is no longer GO Zone property. Accordingly, for 2007,H must recapture as ordinary income $20,000 ($30,000 depreciation claimed byHfor the truck before 2007 less the $10,000 depreciation that would have been allowable for the truck before 2007 had the GO Zone additional first year depreciation deduction not been claimed (unadjusted depreciable basis of $50,000 multiplied by the cumulative annual depreciation rate of .20 before 2007)). In addition,H’s depreciation deduction allowable in 2007 for the delivery truck is $16,000 (unadjusted depreciable basis of $50,000 multiplied by the annual depreciation rate of .32 for recovery year 2) (determined as if no GO Zone addi- tional first year depreciation deduction was claimed for the truck). (b)Example 2. Same facts as inExample 1,ex- cept that during 2008, the delivery truck is used 80 percent or more in the GO Zone. The GO Zone addi- tional first year depreciation deduction is not allow- able for the delivery truck even though the truck is GO Zone property in the hands ofHin 2008. Thus, for 2008,H’s depreciation deduction allowable in 2008 for the delivery truck is $9,600 (unadjusted de- preciable basis of $50,000 multiplied by the annual depreciation rate of .1920 for recovery year 3) (deter- mined as if no GO Zone additional first year depreci- ation deduction was claimed for the truck). SECTION 7. EFFECT ON OTHER DOCUMENTS Rev. Proc. 2002–9 is modified and am- plified to include the automatic change in method of accounting provided under sec- tion 4.03(2)(b) of this notice in section 2 of the APPENDIX of Rev. Proc. 2002–9. SECTION 8. DRAFTING INFORMATION The principal author of this notice is Douglas H. Kim of the Office of Associate Chief Counsel (Passthroughs & Special In- dustries). For furtherinformation regard- ing this notice, contact Mr. Kim at (202) 622–3110 (not a toll-free call). Regulation Section 1.7874–2T Effective Date for Acquisitions Initiated Prior to December 28, 2005 Notice 2006–70 This notice announces that the Trea- sury Department and the Internal Revenue Service (IRS) will, when finalizing Treas. Reg. § 1.7874–2T, amend the effective date in Treas. Reg. § 1.7874–2T(j), as it applies to certain acquisitions initiated prior to December 28, 2005. BACKGROUND On December 28, 2005, the Treasury Department and the IRS issued T.D. 9238, 2006–6 I.R.B. 408 (Feb. 6, 2006), Guid- ance Under Section 7874 for Determin- ing Ownership by Former Shareholders or Partners of Domestic Entities, which pro- mulgated Treas. Reg. § 1.7874–1T. The preamble to T.D. 9238 states that the IRS and the Treasury Department are consid- ering issuing regulations, which may be retroactive, to address certain structures which have the effect of inversion trans- actions and therefore should be subject to section 7874. Those structures include sit- uations in which the shareholders (or part- ners) of a domestic corporation (or domes- tic partnership) arrange to transfer their shares (or partnership interests) to a newly formed foreign entity for which an entity classification election under Treas. Reg. § 301.7701–3 is made to treat such entity as a foreign partnership for Federal tax pur- poses. The preamble noted that other such structures involve the use of exchangeable shares to avoid the application of section 7874. On June 6, 2006, the Treasury De- partment and the IRS issued T.D. 9265, 2006–27 I.R.B. 1 Guidance Under Sec- tion 7874 Regarding Expatriated Entities and Their Foreign Parents, which promul- gated Treas. Reg. § 1.7874–2T. Treasury Reg. § 1.7874–2T addresses the con- cerns raised in the preamble to Treas. Reg. § 1.7874–1T involving acquisitions by foreign partnerships and exchange- able shares. Accordingly, Treas. Reg. § 1.7874–2T(e) generally provides that any foreign partnership that would be treated as a corporation under section 7704 of the Code (but for the applica- tion of section 7704(c)) will be treated as a foreign corporation for purposes of determining whether the partnership is a surrogate foreign corporation, as the term is defined in section 7874. In addition, Treas. Reg. § 1.7874–2T(f) generally provides that options and similar interests held by a former shareholder or former partner of the expatriated entity by reason of holding stock or a partnership interest in the expatriated entity will be treated, for purposes of the owner continuity test in section 7874, as exercised, to the extent that the effect is to treat the foreign corpo- ration as a surrogate foreign corporation. The effective date provision in Treas. Reg. § 1.7874–2T(j) provides that Treas. Reg. § 1.7874–2T applies to acquisitions completed on or after June 6, 2006. The 2006–33 I.R.B.252August 14, 2006 effective date provision does not, however, address situations in which a binding com- mitment to make an acquisition described in section 7874(a)(2)(B)(i) had been en- tered into prior to June 6, 2006, but such acquisition had not been completed prior to June 6, 2006. DISCUSSION The Treasury Department and the IRS will, when finalizing Treas. Reg. § 1.7874–2T, amend the effective date provision in Treas. Reg. § 1.7874–2T(j) such that Treas. Reg. § 1.7874–2 will not apply to an acquisition otherwise de- scribed in section 7874(a)(2)(B)(i) that was completed on or after June 6, 2006, provided such acquisition was entered into pursuant to a written agreement which was (subject to customary conditions) binding on December 28, 2005, and at all times thereafter (binding commitment). For pur- poses of the preceding sentence, a binding commitment shall include entering into options and similar interests in connec- tion with one or more written agreements described in the preceding sentence. Ac- cordingly, the provisions of Treas. Reg. § 1.7874–2T, when finalized, will not ap- ply to acquisitions that occur, in whole or in part, as a result of the exercise of such options or similar interests. EFFECTIVE DATE Taxpayers may rely on this notice un- til the issuance of regulations described herein. COMMENTS Written comments on the issues ad- dressed in this notice may be sub- mitted to the Office of Associate Chief Counsel International, Attention: Milton M. Cahn (Notice2006–70), room 4555, CC:INTL:BR4, Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC 20224. Alternatively, taxpayers may submit comments electron- ically toNotice.Comments@m1.irscoun- sel.treas.gov. Comments will be available for public inspection and copying. Trea- sury and the IRS request comments by November 30, 2006. DRAFTING INFORMATION The principal author of this notice is Milton M. Cahn of the Office of Associate Chief Counsel (International). For further information regarding this notice, contact Milton M. Cahn at (202) 622–3870 (not a toll-free call). August 14, 20062532006–33 I.R.B. Part IV. Items of General Interest Revision of Instructions for Form 3115 for Use with the December 2003 Version of Form 3115, Application for Change in Accounting Method Announcement 2006–52 The Instructions for Form 3115 have been revised. The May 2006 revision is the current version of the Instructions for Form3115andistobeusedwiththeDe- cember 2003 version of Form 3115,Appli- cation for Change in Accounting Method. In general, a taxpayer requesting a change in accounting method must com- plete and file a current Form 3115. See section 8.06 of Rev. Proc. 97–27, 1997–21 I.R.B. 10 (as modified and amplified by Rev. Proc. 2002–19, 2002–13 I.R.B. 696, as amplified and clarified by Rev. Proc. 2002–54, 2002–35 I.R.B. 432). See also Rev. Proc. 2002–9, 2002–3 I.R.B. 327 (as modified and clarified by Announcement 2002–17, 2002–8 I.R.B. 561, modified and amplified by Rev. Proc. 2002–19, and amplified, clarified, and modified by Rev. Proc. 2002–54). The May 2006 Instructions for Form 3115 incorporate changes made in pub- lished guidance, such as Rev. Proc. 2004–34, 2004–22 I.R.B. 991 (regard- ing reporting advance payments) and Rev. Proc. 2006–1, 2006–1 I.R.B. 1 (regarding letter rulings). It also lists and describes automatic accounting method change numbers 77 through 103, and revises the descriptions of automatic accounting method change numbers 7, 8, and 9, to incorporate guidance published since the December 2003 version. The May 2006 Instructions for Form 3115, as well as the December 2003 Form 3115, may be downloaded from the IRS website,www.irs.gov,ormaybe ordered by calling 1–800–TAX FORM (1–800–829–3676). DRAFTING INFORMATION The principal author of this announce- ment is Brenda D. Wilson of the Office of Associate Chief Counsel (Income Tax and Accounting). For further informa- tion regarding this announcement, contact Ms. Wilson at (202) 622–4800 (not a toll-free call). Computer Software Under Section 199(c)(5)(B); Hearing Announcement 2006–53 AGENCY: Internal Revenue Service, Treasury. ACTION: Change of location for public hearing. SUMMARY: This document provides a change of location for a public hearing on proposed regulations (REG–111578–06, 2006–24 I.R.B. 1060) under section 199 of the Internal Revenue Code. The reg- ulations provide a deduction for income attributable to domestic production ac- tivities to certain transactions involving computer software. DATES: The public hearing is being held on Tuesday, August 29, 2006, at 10 a.m. ADDRESSES: The public hearin gwas originally being held in the IRS Audito- rium, Internal Revenue Buil ding, 1111 Constitution Avenue, NW, Wa shington, DC. The hearing location has changed. The public hearing will be h eldintheIRS Auditorium (New Carrollto n location), 5000 Ellin Road, Lanham, MD 20706. FOR FURTHER INFORMATION CONTACT: Guy R. Traynor, (202) 622–7180 or Richard Hurst at Richard.A.Hurst@irscounsel.treas.gov. SUPPLEMENTARY INFORMATION: The subject of the public hearing is a notice of proposed rulemaking (REG–111578–06) that was published in theFederal Registeron Thursday, June 1, 2006 (71 FR 31128). The rules of 26 CFR 601.601(a)(3) ap- ply to the hearing. Persons who submitted written comments by August 30, 2006, and outlines by August 8, 2006, may present oral comments at the hearing. A period of 10 minutes is allotted to each person for presenting oral comments. The IRS will prepare an agenda contain- ing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing. Guy R. Traynor, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). (Filed by the Office of the Federal Register on July 28, 2006, 8:45 a.m., and published in the issue of the Federal Register for July 31, 2006, 71 F.R. 43085) Deletions From Cumulative List of Organizations Contributions to Which are Deductible Under Section 170 of the Code Announcement 2006–54 The Internal Revenue Service has re- voked its determination that the organiza- tion listed below qualifies as an organi- zation described in sections 501(c)(3) and 170(c)(2) of the Internal Revenue Code of 1986. Generally, the Service will not disallow deductions for contributions made to a listed organization on or before the date of announcement in the Internal Revenue Bulletinthatanorganizationnolonger qualifies. However, the Service is not precluded from disallowing a deduction for any contributions made after an or- ganization ceases to qualify under section 170(c)(2) if the organization has not timely filed a suit for declaratory judgment under section 7428 and if the contributor (1) had knowledge of the revocation of the ruling or determination letter, (2) was aware that such revocation was imminent, or (3) was in part responsible for or was aware of the activities or omissions of the organization that brought about this revocation. If on the other hand a suit for declara- tory judgment has been timely filed, con- tributions from individuals and organiza- tions described in section 170(c)(2) that are otherwise allowable will continue to be deductible. Protection under section 7428(c) would begin on August 14, 2006, 2006–33 I.R.B.254August 14, 2006 and would end on the date the court first determines that the organization is not de- scribed in section 170(c)(2) as more partic- ularly set forth in section 7428(c)(1). For individual contributors, the maximum de- duction protected is $1,000, with a hus- band and wife treated as one contributor. This benefit is not extended to any indi- vidual, in whole or in part, for the acts or omissions of the organization that were the basis for revocation. Nationwide Consumer Credit Services Ft. Lauderdale, FL August 14, 20062552006–33 I.R.B. Definition of Terms Revenue rulings and revenue procedures (hereinafter referred to as “rulings”) that have an effect on previous rulings use the following defined terms to describe the ef- fect: Amplifieddescribes a situation where no change is being made in a prior pub- lished position, but the prior position is be- ingextendedtoapplytoavariationofthe fact situation set forth therein. Thus, if an earlier ruling held that a principle ap- plied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare withmodi- fied,below). Clarifiedis used in those instances where the language in a prior ruling is be- ing made clear because the language has caused, or may cause, some confusion. It is not used where a position in a prior ruling is being changed. Distinguisheddescribes a situation where a ruling mentions a previously pub- lished ruling and points out an essential difference between them. Modifiedis used where the substance of a previously published position is being changed. Thus, if a prior ruling held that a principle applied to A but not to B, and the new ruling holds that it applies to both A and B, the prior ruling is modified because it corrects a published position. (Compare withamplifiedandclarified, above). Obsoleteddescribes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rul- ings that are obsoleted because of changes in laws or regulations. A ruling may also be obsoleted because the substance has been included in regulations subsequently adopted. Revokeddescribes situations where the position in the previously published ruling is not correct and the correct position is beingstatedinanewruling. Supersededdescribes a situation where the new ruling does nothing more than re- state the substance and situation of a previ- ously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same po- sition published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single rul- ing a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new rul- ing does more than restate the substance of a prior ruling, a combination of terms is used. For example,modifiedandsu- persededdescribes a situation where the substance of a previously published ruling is being changed in part and is continued without change in part and it is desired to restate the valid portion of the previously published ruling in a new ruling that is self contained. In this case, the previously pub- lished ruling is first modified and then, as modified, is superseded. Supplementedis used in situations in which a list, such as a list of the names of countries, is published in a ruling and that list is expanded by adding further names in subsequent rulings. After the original rul- ing has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the ad- ditions, and supersedes all prior rulings in the series. Suspendedis used in rare situations to show that the previous published rul- ings will not be applied pending some future action such as the issuance of new or amended regulations, the outcome of cases in litigation, or the outcome of a Service study. Abbreviations The fol lowing abbreviations in current use and for merly used will appear in material publis hedintheBulletin. A—Individual. Acq.—A cquiescence. B—Individual. BE—Beneficiary. BK—Bank . B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cu mulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Coo perative. Ct.D.—Court Decision. CY—County. D—Decede nt. DC—Dummy Corporation. DE—Donee. Del. Order —Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. E.O.—Executive Order. ER—Emp loyer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduc iary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Fo reign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Fed eral Unemployment Tax Act. FX—Foreign corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grante e. GP—General Partner. GR—Grantor. IC—Insura nce Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—No nacquiescence. O—Organization. P—Parent Corporation. PHC—Persona l Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Pa rtnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Re al Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsi diary. S.P.R.—Statement of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Trans feree. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpay er. TR—Trust. TT—Trustee. U.S.C.—Uni ted States Code. X—Corporation. Y—Corporation. Z—Corporat ion. 2006–33 I.R.B.iAugust 14, 2006 Numerical Finding List 1 Bulletins 2006–27 through 2006–33 Announcements: 2006-42, 2006-27 I.R.B.48 2006-43, 2006-27 I.R.B.48 2006-44, 2006-27 I.R.B.49 2006-45, 2006-31 I.R.B.121 2006-46, 2006-28 I.R.B.76 2006-47, 2006-28 I.R.B.78 2006-48, 2006-31 I.R.B.135 2006-49, 2006-29 I.R.B.89 2006-51, 2006-32 I.R.B.222 2006-52, 2006-33 I.R.B.254 2006-53, 2006-33 I.R.B.254 2006-54, 2006-33 I.R.B.254 Notices: 2006-56, 2006-28 I.R.B.58 2006-57, 2006-27 I.R.B.13 2006-58, 2006-28 I.R.B.59 2006-59, 2006-28 I.R.B.60 2006-60, 2006-29 I.R.B.82 2006-61, 2006-29 I.R.B.85 2006-62, 2006-29 I.R.B.86 2006-63, 2006-29 I.R.B.87 2006-64, 2006-29 I.R.B.88 2006-65, 2006-31 I.R.B.102 2006-66, 2006-30 I.R.B.99 2006-67, 2006-33 I.R.B.248 2006-68, 2006-31 I.R.B.105 2006-69, 2006-31 I.R.B.107 2006-70, 2006-33 I.R.B.252 Proposed Regulations: REG-135866-02, 2006-27 I.R.B.34 REG-109512-05, 2006-30 I.R.B.100 REG-112994-06, 2006-27 I.R.B.47 REG-118775-06, 2006-28 I.R.B.73 REG-118897-06, 2006-31 I.R.B.120 Revenue Procedures: 2006-29, 2006-27 I.R.B.13 2006-30, 2006-31 I.R.B.110 2006-31, 2006-27 I.R.B.32 2006-32, 2006-28 I.R.B.61 2006-33, 2006-32 I.R.B.140 Revenue Rulings: 2006-35, 2006-28 I.R.B.50 2006-37, 2006-30 I.R.B.91 2006-38, 2006-29 I.R.B.80 2006-39, 2006-32 I.R.B.137 2006-40, 2006-32 I.R.B.136 Treasury Decisions: 9265, 2006-27 I.R.B.1 9266, 2006-28 I.R.B.52 9268, 2006-30 I.R.B.94 9269, 2006-30 I.R.B.92 9270, 2006-33 I.R.B.237 9271, 2006-33 I.R.B.224 9274, 2006-33 I.R.B.244 9277, 2006-33 I.R.B.226 1 A cumulative list of all revenue rulings, revenueprocedures, Treasury decisions, etc., publishedin Internal Revenue Bulletins 2006–1 through 2006–26 is in Internal Revenue Bulletin 2006–26, dated June 26, 2006. August 14, 2006ii2006–33 I.R.B. Finding List of Current Actions on Previously Published Items 1 Bulletins 2006–27 through 2006–33 Announcements: 2005-59 Updated and superseded by Ann. 2006-45, 2006-31 I.R.B.121 Notices: 2006-20 Supplemented and modified by Notice 2006-56, 2006-28 I.R.B.58 Proposed Regulations: REG-134317-05 Corrected by Ann. 2006-47, 2006-28 I.R.B.78 Revenue Procedures: 2002-9 Modified and amplified by Notice 2006-67, 2006-33 I.R.B.248 2005-41 Superseded by Rev. Proc. 2006-29, 2006-27 I.R.B.13 2005-49 Superseded by Rev. Proc. 2006-33, 2006-32 I.R.B.140 Revenue Rulings: 2003-43 Amplified by Notice 2006-69, 2006-31 I.R.B.107 Treasury Decisions: 9254 Corrected by Ann. 2006-44, 2006-27 I.R.B.49 9258 Corrected by Ann. 2006-46, 2006-28 I.R.B.76 9264 Corrected by Ann. 2006-46, 2006-28 I.R.B.76 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2006–1 through 2006–26 is in Internal Revenue Bulletin 2006–26, dated June 26, 2006. 2006–33 I.R.B.iiiAugust 14, 2006 August 14, 20062006–33 I.R.B. 2006–33 I.R.B.August 14, 2006 August 14, 20062006–33 I.R.B. INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue Bulletin is sold on a yearly subscription basis by the Superintendent of Documents. Current subscribers are notified by the Superin- tendent of Documents when their subscriptions must be renewed. 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