[Federal Register Volume 75, Number 156 (Friday, August 13, 2010)]
[Rules and Regulations]
[Pages 49380-49394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20058]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[TD 9498]
RIN 1545-BJ00
Application of Section 108(i) to Partnerships and S Corporations
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Temporary regulations.
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SUMMARY: This document contains temporary regulations relating to the
application of section 108(i) of the Internal Revenue Code (Code) to
partnerships and S corporations and provides rules regarding the
deferral of discharge of indebtedness income and original issue
discount deductions by a partnership or an S corporation with respect
to reacquisitions of applicable debt instruments after December 31,
2008, and before January 1, 2011. The regulations affect partnerships
and S corporations with respect to reacquisitions of applicable debt
instruments and their partners and shareholders. The text of these
temporary regulations also serves as the text of the proposed
regulations set forth in the Notice of Proposed Rulemaking on this
subject in the Proposed Rules section of this issue of the Federal
Register.
DATES: Effective Date: These regulations are effective on August 13,
2010.
Applicability Date: For dates of applicability, see Sec. 1.108(i)-
0T(b).
FOR FURTHER INFORMATION CONTACT: Megan A. Stoner or Joseph R. Worst,
Office of Associate Chief Counsel (Passthroughs and Special
Industries), (202) 622-3070 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in these temporary
regulations has been reviewed and approved by the Office of Management
and Budget in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507) under control number 1545-2147. The collection of
information in these temporary regulations is in Sec. 1.108(i)-
2T(b)(3)(iv). Under Sec. 1.108(i)-2T(b)(3)(iv), a partner in a
partnership that makes an election under section 108(i) is required to
provide certain information to the partnership so that the partnership
can correctly determine the partner's deferred section 752 amount with
[[Page 49381]]
respect to an applicable debt instrument.
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 information are confidential, as required by 26 U.S.C. 6103.
Background
Section 1231 of the American Recovery and Reinvestment Tax Act of
2009, Public Law 111-5 (123 Stat. 338 (2009)), added section 108(i) to
the Code. Section 108(i) generally provides for an elective deferral of
discharge of indebtedness income (COD income) realized by a taxpayer
from a reacquisition of an applicable debt instrument that occurs after
December 31, 2008, and before January 1, 2011. COD income deferred
under section 108(i) is included in gross income ratably over a five
taxable-year period (inclusion period) beginning with the taxpayer's
fourth or fifth taxable year following the taxable year of the
reacquisition. In circumstances where a debt instrument is issued (or
treated as issued) as part of the reacquisition, some or all of any
original issue discount (OID) expense accruing from the debt instrument
in a taxable year prior to the first taxable year of the inclusion
period may also be required to be deferred (deferred OID deduction).
The aggregate amount of deferred OID deductions is limited to the
amount of COD income deferred with respect to the applicable debt
instrument for which the section 108(i) election is made and the
aggregate amount of deferred OID deductions is taken into account
ratably over the inclusion period. In general, COD income deferred
under section 108(i) and related deferred OID deductions with respect
to an applicable debt instrument that have not been previously taken
into account (deferred items) are accelerated and taken into account in
the taxable year in which an acceleration event occurs. A section
108(i) election is irrevocable and, if a section 108(i) election is
made, sections 108(a)(1)(A), (B), (C), and (D) do not apply to the COD
income that is deferred under section 108(i). Section 108(i)(7)
authorizes the Secretary to prescribe regulations as may be necessary
or appropriate for purposes of applying section 108(i).
After section 108(i) was enacted, the IRS and the Treasury
Department received a number of comments regarding the application of
section 108(i) to partnerships and S corporations. In August 2009, the
IRS and the Treasury Department issued Rev. Proc. 2009-37 (2009-36 IRB
309), which provides election procedures for taxpayers (including
partnerships and S corporations) and other guidance under section
108(i). With respect to COD income realized by a partnership or S
corporation, the election is made at the entity level. Partnerships and
S corporations that make an election under section 108(i) (electing
partnership or electing S corporation) must follow the election
procedures and reporting requirements of Rev. Proc. 2009-37.
These temporary regulations address issues relating to partnerships
and S corporations with respect to section 108(i), including issues
raised by commenters.
Explanation of Provisions
A. Applicable Debt Instrument
Section 108(i)(3) defines an ``applicable debt instrument'' as any
debt instrument issued by a C corporation or by any other person in
connection with the conduct of a trade or business by that person. The
determination of whether a debt instrument is an applicable debt
instrument within the meaning of section 108(i)(3) is based on all the
facts and circumstances.
Section 1.108(i)-2T(d)(1) provides five safe harbors under which a
debt instrument issued by a partnership or an S corporation is deemed
to be issued in connection with the partnership's or S corporation's
trade or business for purposes of section 108(i). Thus, a debt
instrument issued by a partnership or an S corporation qualifies as an
applicable debt instrument for purposes of section 108(i) if the
electing partnership or electing S corporation can establish that it
meets the requirements of one of the safe harbors.
Some commenters asked whether a debt instrument issued by a non-C
corporation taxpayer to acquire an interest in a partnership or S
corporation that is conducting a trade or business qualifies as an
applicable debt instrument, where the issuing taxpayer does not conduct
a trade or business. While a debt instrument generally does not qualify
as an applicable debt instrument unless the issuing taxpayer conducts a
trade or business, one of the safe harbors under Sec. 1.108(i)-
2T(d)(1) provides that if an electing partnership or an electing S
corporation can establish that at least 95 percent of the interest paid
or accrued on a debt instrument issued by a partnership or S
corporation was allocated to a trade or business expenditure under
Sec. 1.163-8T for the taxable year of issuance, then the debt
instrument qualifies as an applicable debt instrument for purposes of
section 108(i).
Commenters also asked how a debt instrument issued by a disregarded
entity should be treated under section 108(i). Generally, under Sec.
301.7701-2 of the Procedure and Administration Regulations, if an
entity is disregarded, its activities are treated in the same manner as
a sole proprietorship, branch, or division of the owner. Thus, for
purposes of determining whether a debt instrument qualifies as an
applicable debt instrument under section 108(i), a debt instrument
issued by a disregarded entity is treated as a debt instrument issued
by the person treated as owning the assets of the disregarded entity
for federal income tax purposes.
B. Allocation of COD Income
Section 108(i)(6) requires that a partnership allocate the COD
income that is deferred under section 108(i) to the partners that were
partners immediately prior to the transaction giving rise to the COD
income in the same manner the income would be allocated without regard
to section 108(i). In addition, section 108(i)(5)(B)(iii) provides that
the section 108(i) election is to be made by the partnership and not
its partners separately. The IRS and the Treasury Department recognize
that there are instances in which the inclusion of COD income would be
beneficial to some partners, but not to others. As a result, the
temporary regulations, while not changing the general rules under
section 704, permit a partnership to determine the portion of each
partner's allocable share of COD income resulting from a reacquisition
of an applicable debt instrument that is deferred under section 108(i)
(deferred amount) and the portion that is not deferred (included
amount). The temporary regulations therefore require that the electing
partnership first allocate all of the COD income with respect to an
applicable debt instrument to its partners that are partners in the
partnership immediately before the reacquisition in the manner in which
the income would be included in the distributive shares of the partners
under section 704 and the regulations under section 704, including
Sec. 1.704-1(b)(2)(iii), without regard to section 108(i). The
partnership must then
[[Page 49382]]
determine the portion of each such partner's allocable share of the COD
income from the applicable debt instrument that is the deferred amount,
and the portion that is the included amount and therefore included in
the partner's distributive share of partnership income for the taxable
year of the partnership in which the reacquisition occurs.
With respect to S corporations, section 108(i) requires that the
election to defer COD income be made at the corporate level. Section
108(i) does not, however, impose a specific allocation rule with
respect to the COD income realized by an electing S corporation from
the reacquisition of an applicable debt instrument as it does for
electing partnerships. The IRS and the Treasury Department believe that
a rule similar to the partnership allocation rule under section
108(i)(6) should apply to electing S corporations. Therefore, Sec.
1.108(i)-2T(c)(1) requires that the deferred COD income of an electing
S corporation be shared pro rata, on the basis of stock ownership,
among those shareholders that hold stock in the electing S corporation
immediately prior to the transaction giving rise to the COD income.
C. Basis Adjustments
Commenters asked whether a partner is required to adjust the basis
in its partnership interest under section 705 in the year of the
reacquisition to account for the partner's share of deferred COD
income, or whether such adjustments occur when the deferred items are
recognized. In general, a partner's basis in its partnership interest
is increased under section 705(a) to account for the partner's share of
partnership COD income in the taxable year that the COD income is
realized by the partnership. If a partnership elects to defer its COD
income under section 108(i), however, a partner's basis in its
partnership interest is not increased under section 705(a) to account
for the partner's deferred amount in the taxable year that the COD
income is realized, but rather is adjusted in the taxable year that the
partner recognizes the deferred amount. Because a partner does not
adjust its basis for deferred COD income in the taxable year of a
reacquisition, a partner could recognize gain under section 731(a) in
that taxable year if the decrease in the partner's share of partnership
liabilities exceeds the partner's basis in its partnership interest.
Congress anticipated this result and created a special deferral rule in
section 108(i)(6).
Section 108(i)(6) provides that any decrease in a partner's share
of partnership liabilities as a result of the discharge shall not be
taken into account for purposes of section 752 at the time of the
discharge to the extent it would cause the partner to recognize gain
under section 731. If a partner were to increase the basis in its
partnership interest to account for the deferred COD income at the time
of the reacquisition, the special deferral rule in section 108(i)(6)
would not be needed. Therefore, consistent with the rule in section
108(i)(6), Sec. 1.108(i)-2T(b)(2) provides that a partner's basis in
its partnership interest is not adjusted under section 705(a) to
account for the partner's share of the partnership's deferred items at
the time of the reacquisition, but is adjusted when the deferred items
are recognized, either during the recognition period or as a result of
an acceleration event. When the partner's share of the partnership's
deferred items is recognized due to an acceleration event, the partner
must adjust the basis in its partnership interest under section 705
immediately prior to the acceleration event to account for the deferred
items that are recognized.
Like the basis adjustment rules for partners, an S corporation
shareholder's stock basis is not adjusted under section 1367 to account
for the shareholder's share of the S corporation's deferred items at
the time of the reacquisition, but is adjusted when the deferred items
are recognized. Moreover, an S corporation's accumulated adjustments
account (AAA) is not adjusted to account for the deferred items at the
time of the reacquisition, but is adjusted in the taxable year in which
the deferred items are recognized.
D. Deferred Section 752 Amount Rules
Section 2.09 of Rev. Proc. 2009-37 provides general guidelines for
a partnership to use in determining a partner's deferred section 752
amount (that is, a decrease in a partner's share of a partnership
liability under section 752(b) resulting from the reacquisition of an
applicable debt instrument that is not treated as a current
distribution of money to the partner under section 752(b) by reason of
section 108(i)(6)). The temporary regulations include the same general
rules that are set forth in Rev. Proc. 2009-37 and provide additional
computational rules for determining a partner's deferred section 752
amount.
In computing a partner's deferred section 752 amount, under Sec.
1.108(i)-2T(b)(3)(ii), the electing partnership must determine the
amount of gain the partner would recognize in a taxable year of a
reacquisition under section 731 as a result of the reacquisition absent
the deferral provided in the second sentence of section 108(i)(6). In
making this determination, the basis ordering rules in section 705(a)
apply and the amount of any deemed distribution of money under section
752(b), resulting from the reacquisition of an applicable debt
instrument, that is treated as an advance or drawing under Sec. 1.731-
1(a)(1)(ii) is determined as if no COD income resulting from the
reacquisition is deferred under section 108(i). See Rev. Rul. 94-4,
1994-1 C.B. 195, and Rev. Rul. 92-97, 1992-2 C.B. 124, for rules
regarding when a deemed distribution of money under section 752(b)
resulting from a cancellation of debt is treated as an advance or
drawing under Sec. 1.731-1(a)(1)(ii).
If the electing partnership determines that a partner would
recognize gain under section 731 absent the deferral provided in the
second sentence of section 108(i)(6) and the partnership makes a
section 108(i) election to defer COD income from only one applicable
debt instrument during the taxable year, then any deferred section 752
amount of the partner relates to that applicable debt instrument. If
the partnership makes a section 108(i) election to defer COD income
from more than one applicable debt instrument during the taxable year,
Sec. 1.108(i)-2T(b)(3)(iii) provides a rule for determining the
portion of the partner's deferred section 752 amount that relates to
each such applicable debt instrument.
Section 4.12(4) of Rev. Proc. 2009-37 provides that the deferred
section 752 amount for partners in a partnership making a section
108(i) election is calculated for the electing partnership's direct
partners. In circumstances where a partnership (upper-tier partnership)
that is a direct or indirect partner of an electing partnership has a
deferred section 752 amount with respect to an applicable debt
instrument of the electing partnership, the upper-tier partnership does
not need to calculate the deferred section 752 amount of its direct
partners in the same manner that the electing partnership does.
Instead, the upper-tier partnership that has a deferred section 752
amount shall allocate such amount among its direct partners that have a
deferred amount with respect to the applicable debt instrument in
proportion to the partners' respective shares of the upper-tier
partnership's deferred amount. Section 1.108(i)-2T(b)(4)(ii) provides
that a partner's share of an upper-tier partnership's deferred section
752 amount may not exceed the partner's deferred amount with respect to
the
[[Page 49383]]
applicable debt instrument to which the deferred section 752 amount
relates.
The temporary regulations contain examples to illustrate how a
partner's deferred section 752 amount should be computed. One example
illustrates ordering rules in computing a partner's deferred section
752 amount if the partnership has both gross income and separately
stated losses in the year of a reacquisition. Section 1.704-1(d)(2)
provides rules for computing the adjusted basis of a partner's interest
for purposes of determining the extent to which a partner's
distributive share of partnership loss is allowed as a deduction. The
example illustrates how the deferred section 752 computational rule
interacts with the rules under section 705(a) and Sec. 1.704-1(d)(2).
E. Capital Accounts
Commenters requested that guidance address how a partnership's
capital account should be adjusted under Sec. 1.704-1(b)(2)(iv) to
account for a partner's share of the partnership's deferred items. The
IRS and the Treasury Department believe that, for capital account
maintenance purposes, a partnership should treat deferred items as if
no election under section 108(i) has been made. Accordingly, Sec.
1.108(i)-2T(b)(2)(ii) provides that a partner's capital account is
adjusted under Sec. 1.704-1(b)(2)(iv) for the partner's share of the
partnership's deferred items as if no election under section 108(i)
were made.
F. Section 465(e) Recapture
Commenters requested that guidance be provided under section 465 to
prevent an election under section 108(i) from triggering recapture of
losses under section 465(e). Under section 465(e)(1)(A), if at the
close of any taxable year a taxpayer's amount at risk in an activity is
below zero, the taxpayer generally is required to include the amount of
the excess in gross income. The amount required to be included in gross
income, however, is limited to losses allowed in previous years that
have not already been recaptured. Section 465(e)(1)(B) treats the
recaptured amount as a deduction attributable to the activity in the
following taxable year.
Although the second sentence of section 108(i)(6) provides for
deferral of a deemed distribution under section 752 to the extent that
it triggers gain to a partner under section 731, the statute does not
provide a similar rule that defers any amount at risk in an activity
required to be recaptured under section 465(e). Thus, if the discharged
debt for which a section 108(i) election is made has been included in a
partner's amount at risk in an activity and a portion of that debt is
discharged, there could be recapture under section 465(e) if the amount
discharged exceeds the partner's amount at risk in the activity. The
same issue may arise with respect to shareholders of an S corporation.
The IRS and the Treasury Department believe that the decrease in a
partner's or shareholder's amount at risk in an activity that results
from the discharge of a debt for which a section 108(i) election is
made by the partnership or S corporation, as the case may be, should
also be deferred to prevent the partner or shareholder from recognizing
more recapture income under section 465(e) than the partner or
shareholder would recognize if the section 108(i) election had not been
made. Accordingly, Sec. 1.108(i)-2T(d)(3) provides that a decrease in
a partner's or shareholder's amount at risk in an activity that results
from a discharge of a debt for which a section 108(i) election is made
is not taken into account in determining the partner's or shareholder's
amount at risk in that activity under section 465 in the taxable year
of the reacquisition. The decrease is taken into account at the same
time and to the extent remaining in the same amount as the partner or
shareholder recognizes the deferred COD income.
G. Deferral of Original Issue Discount
Under section 108(i)(2), if a debt instrument is issued (or treated
as issued under section 108(e)(4)) in a debt-for-debt exchange
described in section 108(i)(2)(A) or a deemed debt-for-debt exchange
described in Sec. 1.108(i)-3T(a) and there is any OID on the debt
instrument, the issuer of the new debt instrument must defer some or
all of the deductions for such OID under section 108(i). The temporary
regulations provide that the aggregate amount of deferred OID is
allowable as a deduction to the issuer of the debt instrument ratably
over the inclusion period, or earlier upon the occurrence of an
acceleration event.
The OID deferral rule in section 108(i)(2) applies to an issuing
entity. An issuing entity includes an electing partnership or an
electing S corporation that issues a debt instrument in a debt-for-debt
exchange or a deemed debt-for-debt exchange and a partnership or an S
corporation that is related (within the meaning of section
108(i)(5)(A)) to an electing entity (an entity that is a taxpayer that
makes an election under section 108(i)) and that issues a debt
instrument in a debt-for-debt exchange or a deemed debt-for-debt
exchange.
The issuing entity determines whether any OID that accrues on a
debt instrument in a taxable year during the deferral period is
required to be deferred. For example, an electing partnership that
issues a debt instrument with OID in a debt-for-debt exchange described
in section 108(i)(2)(A) in which the partnership elects to defer $100
of COD income must defer the first $100 of OID that accrues on such
debt instrument during the deferral period, even if a partner's share
of the partnership's deferred OID exceeds the partner's deferred amount
with respect to the applicable debt instrument.
The temporary regulations provide rules relating to basis
adjustments and adjustments to AAA for deferred OID deductions that
apply to the issuing entity.
H. Acceleration Events
Section 108(i)(5)(D)(i) provides that deferred items must be taken
into account upon the occurrence of certain enumerated events
(acceleration events) with respect to the electing partnership or
electing S corporation. These events include the liquidation or sale of
substantially all of the assets of the electing partnership or electing
S corporation (including in a Title 11 or similar case), the cessation
of business, or similar circumstances. If any of these events occurs,
all of the deferred items of the electing partnership or electing S
corporation are accelerated and must be taken into account by the
partners and/or shareholders, as the case may be, in the taxable year
of the electing partnership or electing S corporation in which such
event occurs.
Section 108(i)(5)(D)(ii) contains additional acceleration events
that apply to the partners and/or shareholders of an electing
partnership or an electing S corporation, as the case may be, and
includes the sale, exchange, or redemption of an interest in the
electing partnership or electing S corporation by the holder of such
interest. If any of these events occurs, the deferred items allocated
to the partner or S corporation shareholder that sells, exchanges, or
redeems its interest in the electing partnership or S corporation, as
the case may be, are accelerated and must be taken into account by such
partner or shareholder in the taxable year in which the event occurs.
When an acceleration event occurs under section 108(i)(5)(D)(ii) with
respect to a particular partner or an S corporation shareholder, it
does not affect the continued deferral of another partner's or S
corporation shareholder's
[[Page 49384]]
share of the partnership's or S corporation's deferred items.
Section 108(i)(7) authorizes the Secretary to prescribe such
regulations as may be necessary or appropriate for purposes of applying
section 108(i), including rules extending the acceleration provisions
to other circumstances where appropriate. Therefore, the temporary
regulations provide additional rules (and exceptions) that apply to the
acceleration of deferred items under section 108(i)(5)(D).
The temporary regulations provide that the deferred items allocated
to the direct and indirect partners of the electing partnership, which
includes a shareholder of an S corporation that is a direct/indirect
partner of an electing partnership (S corporation partner), and to the
shareholder of an electing S corporation are accelerated if the
electing partnership or the electing S corporation (i) liquidates, (ii)
sells, exchanges, transfers (including contributions and
distributions), or gifts substantially all of its assets, (iii) ceases
doing business, or (iv) files a petition in a Title 11 or similar case.
In addition, the deferred items of the shareholders of an electing S
corporation or an S corporation partner are accelerated in the taxable
year in which the S corporation's or S corporation partner's election
under section 1362(a) is terminated. Moreover, the acceleration rules
and exceptions that apply to an electing corporation under Sec.
1.108(i)-1T(b) also apply to a C corporation partner in the same manner
as if the C corporation partner were an electing corporation.
The temporary regulations specify that substantially all of the
partnership's or S corporation's assets means assets representing at
least 90 percent of the fair market value of the partnership's or S
corporation's net assets and at least 70 percent of the fair market
value of the partnership's or S corporation's gross assets, as measured
immediately prior to the sale, exchange, transfer, or gift in question.
If an electing partnership holds only an interest in another
partnership (lower-tier partnership) and the lower-tier partnership
sells its assets, the sale by the lower-tier partnership would not
constitute a sale, exchange, transfer, or gift of the electing
partnership's assets for purposes of applying the acceleration rules.
However, the IRS and the Treasury Department believe that if an
electing partnership, for example, transfers property to a partnership
(transferee partnership) in a transaction governed all or in part by
section 721 and the transferee partnership subsequently sells
substantially all of its assets, it is appropriate to treat the
electing partnership as having sold, exchanged, transferred, or gifted
its entire interest in that transferee partnership for purposes of
applying the acceleration rules. If, in that situation, the electing
partnership's only asset is its interest in the transferee partnership,
the electing partnership will be treated as selling substantially all
of its assets and therefore, its deferred items would be accelerated.
The principles of the substantially all rules apply to lower-tier
partnerships of the electing partnership that receive assets of the
electing partnership from a transferee partnership or another lower-
tier partnership of the electing partnership in a transaction governed
all or in part by section 721.
In addition to the electing partnership-level or electing S
corporation-level events that trigger acceleration under section
108(i), certain events that occur at the partner or shareholder level
also trigger acceleration of that partner's or shareholder's share of
the electing partnership's or electing S corporation's deferred items.
For instance, the deferred items allocated to a direct or indirect
partner of an electing partnership are accelerated if: (1) The partner
dies or liquidates, (2) the partner sells, exchanges (including
redemptions treated as exchanges under section 302), transfers
(including contributions and distributions), or gifts (including
transfers treated as gifts under section 1041) all or a portion of a
separate interest, (3) the partner's separate interest is redeemed, or
(4) the partner abandons its separate interest. For this purpose, a
distribution by a partnership to a partner of property other than a
separate interest, in a transaction that does not constitute a complete
redemption of the partner's interest, does not constitute an
acceleration event, even if, for example, the distribution causes gain
to be recognized to the partner under section 731(a). Moreover, a
shareholder's share of an electing S corporation's deferred items is
accelerated if the shareholder: (1) Dies, (2) sells, exchanges
(including redemptions treated as exchanges under section 302),
transfers (including contributions and distributions), or gifts
(including transfers treated as gifts under section 1041) all or a
portion of its interest in the electing S corporation, or (3) abandons
its interest in the electing S corporation. For purposes of the
temporary regulations, a ``separate interest'' is defined as any direct
interest in an electing partnership or in a partnership or S
corporation that is a direct or indirect partner of an electing
partnership.
If a partner or shareholder sells, exchanges, transfers, or gifts
only a portion of its interest in a partnership or an S corporation,
only a proportionate amount of the partner's or shareholder's share of
the partnership's or S corporation's deferred items is accelerated. For
example, if a partner of an electing partnership with a $100 deferred
amount from the electing partnership sells half of its interest in the
electing partnership, $50 of the partner's $100 share of the
partnership's deferred amount is accelerated.
The temporary regulations address when a partner's separate
interest is redeemed for purposes of section 108(i). Commenters
suggested that a non-liquidating distribution of cash or other property
by a partnership to a partner should not be treated as a redemption
under section 108(i). The IRS and the Treasury Department agree with
the commenters. Difficulties in defining a redemption of a partnership
interest for purposes of section 108(i) arise if non-liquidating
distributions are treated as redemptions under section 108(i). The IRS
and the Treasury Department believe that, for purposes of section
108(i), redemptions should be limited to cases where a partner's
interest in the partnership is completely liquidated. Therefore, the
temporary regulations provide that a redemption of a partner's separate
interest occurs when a partner receives a distribution of cash and/or
property in complete liquidation of such partner's separate interest.
The IRS and the Treasury Department believe that certain events
should not cause a partner's or shareholder's share of the
partnership's or S corporation's deferred items to be accelerated. For
instance, if an electing partnership contributes its assets to another
partnership (transferee partnership) in a transaction governed by
section 721 (generally a non-recognition event to the electing
partnership and the transferee partnership), the deferred items of an
electing partnership can continue to be allocated to its partners under
principles similar to section 704(c). Therefore, transactions wholly
governed by section 721 in which a partner's or shareholder's share of
the partnership's or S corporation's deferred items can continue to be
allocated to that partner or shareholder are generally not acceleration
events for purposes of section 108(i). These section 721 non-
acceleration events include contributions by an electing partnership or
an electing S corporation, contributions of an entire separate interest
by direct or indirect partners of
[[Page 49385]]
an electing partnership, and section 708(b)(2)(A) mergers or
consolidations of an electing partnership or a partnership that is a
direct or indirect partner of an electing partnership.
In any of the events listed above, the general acceleration rules
apply to any part of the transaction to which section 721(a) does not
apply. For example, if an electing partnership merges with another
partnership and one of the partners of the electing partnership elects
to apply the partner buy-out rule of Sec. 1.708-1(c)(4), such
partner's share of the electing partnership's deferred items is
accelerated because such partner is treated as selling its interest in
the electing partnership immediately before the merger. The other
partners' shares of deferred items of the electing partnership are not
accelerated as a result of the merger.
In addition to the section 721 non-acceleration events, like-kind
exchanges of property by an electing partnership or an electing S
corporation pursuant to section 1031(a) are generally not acceleration
events. As in a transaction governed by section 721, a transaction
governed by section 1031(a) is generally a non-recognition event. The
electing partnership or electing S corporation that transfers property
in the like-kind exchange can continue to allocate the partners' or
shareholders' shares of the partnership's or S corporation's deferred
items as if no exchange occurred. To the extent money or property which
does not meet the requirements of section 1031(a) (boot) is received in
the exchange, however, a portion of the transferred property will be
treated as sold. Under Sec. 1.108(i)-2T(b)(6)(iii)(B) and Sec.
1.108(i)-2T(c)(3)(iii)(B), the portion of the transferred property that
is treated as sold is based on the ratio of the boot to the total
consideration received in the exchange. For example, if an electing
partnership exchanges property with a value of $100 and a basis of $30
for $80 of like-kind property and $20 of non-like kind property, the
electing partnership is treated as if it sold 20 percent of the
property transferred in the exchange. In such a case, if the portion
sold constitutes substantially all of the electing partnership's
assets, the electing partnership's deferred items would be accelerated
under Sec. 1.108(i)-2T(b)(6)(i)(A)(2).
In addition to the section 721 and section 1031 non-acceleration
events, a technical termination of an electing partnership or a
partnership that is a direct or indirect partner of an electing
partnership under section 708(b)(1)(B) is not an acceleration event for
purposes of section 108(i). Section 708(b)(1)(B) provides that a
partnership is considered as terminated if within a twelve-month period
there is a sale or exchange of 50 percent or more of the total interest
in partnership capital and profits. Under Sec. 1.708-1(b)(4), the
terminated partnership is deemed to contribute its assets and
liabilities to a new partnership in exchange for an interest in the new
partnership and, immediately thereafter, the terminated partnership is
deemed to distribute interests in the new partnership to its partners
in liquidation of their interests. As in a transaction governed by
section 721, the deferred items of the terminated partnership's
partners can continue to be allocated to those partners by the new
partnership. The terminated partnership's business continues in the new
partnership and the non-selling partners of the terminated partnership
remain partners in the new partnership. The terminated partnership's
section 108(i) election remains in effect for the new partnership.
Therefore, a technical termination of a partnership under section
708(b)(1)(B) is not an acceleration event for purposes of section
108(i). The transfer that causes a technical termination, however, may
be an acceleration event for the transferring partner.
In addition to the section 721, section 1031, and section
708(b)(1)(B) non-acceleration events, certain distributions of separate
interests by a partnership (upper-tier partnership) that is a direct or
indirect partner of an electing partnership are not acceleration events
for purposes of section 108(i). If an upper-tier partnership
distributes its entire separate interest (distributed separate
interest) to one or more of its partners (distributee partners) that
have a share of the electing partnership's deferred items from upper-
tier partnership's distributed separate interest, the partnership, the
interest in which was distributed, can continue to allocate the
deferred items of any distributee partner with respect to the
distributed separate interest. As a result, the distributee partner's
share of the electing partnership's deferred items associated with the
distributed separate interest are not accelerated, even if such
distribution is in complete liquidation of that partner's interest in
the upper-tier partnership. However, because the upper-tier partnership
no longer holds the separate interest, the upper-tier partnership's
share of the electing partnership's deferred items associated with that
separate interest will be accelerated for the non-distributee partners.
Further, if the distributee's partnership interest is redeemed by the
upper-tier partnership, any other share of an electing partnership's
deferred items associated with the redeemed separate interest in the
upper-tier partnership will be accelerated and must be taken into
account by the distributee partner.
Certain non-acceleration events that apply to an electing
corporation also apply to C corporation partners. The exception in
Sec. 1.108(i)-1T(b)(2)(ii)(B) relating to transactions governed by
section 381 applies to C corporation partners. Section 1.108(i)-
2T(b)(6)(iii)(G) contains special rules for certain intercompany
transfers made by C corporation partners.
The above acceleration events only apply to deferred items
allocated to direct or indirect partners of an electing partnership or
to the shareholders of an electing S corporation. A direct or indirect
partner's share of a related partnership's deferred OID deduction or a
shareholder's share of a related S corporation's deferred OID deduction
is only accelerated to the extent the deferred COD income attributable
to the related partnership's or related S corporation's deferred OID
deduction is taken into account by the electing entity or its owners.
I. Foreign Partners of Electing Partnership
Section 1446 and the regulations thereunder provide, in general,
that if a domestic or foreign partnership has effectively connected
taxable income allocable under section 704 to a foreign partner, then
the partnership must withhold tax under section 1446 (section 1446 tax)
at the time and in the manner prescribed in Sec. Sec. 1.1446-1 through
1.1446-6. Section 1.1446-5 provides rules under section 1446 for
tiered-partnership structures. These regulations provide a cross
reference to the regulations under section 1446 to signal to
partnerships, including tiered partnerships, that they may have an
obligation to pay a section 1446 tax when income deferred under section
108(i) is recognized (either ratably over the inclusion period or as a
result of an acceleration event).
J. Effective Date
These regulations apply to reacquisitions of applicable debt
instruments in taxable years ending after December 31, 2008.
Availability of IRS Documents
The IRS revenue procedure cited in this preamble is published in
the Internal Revenue Bulletin and is available at: http://www.IRS.gov.
[[Page 49386]]
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866.
Therefore, a regulatory assessment is not required. For applicability
of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the
Special Analyses section of the preamble to the cross-reference notice
of proposed rulemaking published in the Proposed Rules section in this
issue of the Federal Register. Pursuant to section 7805(f) of the Code,
these regulations have been submitted to the Chief Counsel for Advocacy
of the Small Business Administration for comment on its impact on small
business.
Section 108(i) applies to the reacquisition of an applicable debt
instrument during the brief election period, January 1, 2009 through
December 31, 2010. These temporary regulations provide necessary
guidance regarding the application of this new section 108(i) in order
for partnerships and S corporations to timely file their tax returns.
For this reason, it has been determined pursuant to 5 U.S.C.
553(b)(3)(B), that prior notice and public procedure are impracticable
and contrary to the public interest. For the same reason, it has been
determined pursuant to 5 U.S.C. 553(d)(3) that good cause exists for
not delaying the effective date of these temporary regulations.
Drafting Information
The principal authors of these regulations are Megan A. Stoner and
Joseph R. Worst of the Office of the Associate Chief Counsel
(Passthroughs and Special Industries). However, other personnel from
the IRS and the Treasury Department participated in their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
26 CFR Part 602
Reporting and recordkeeping requirements.
Amendments to the Regulations
0
Accordingly, 26 CFR parts 1 and 602 are amended as follows:
PART 1--INCOME TAXES
0
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 1.108(i)-2T also issued under 26 U.S.C. 108(i)(7). * * *
0
Par. 2. Section 1.108(i)-2T is added to read as follows:
Sec. 1.108(i)-2T Application of section 108(i) to partnerships and S
corporations (temporary).
(a) Overview. Under section 108(i), a partnership or an S
corporation may elect to defer COD income arising in connection with a
reacquisition of an applicable debt instrument for the deferral period.
COD income deferred under section 108(i) is included in gross income
ratably over the inclusion period, or earlier upon the occurrence of
any acceleration event described in paragraph (b)(6) or (c)(3) of this
section. If a debt instrument is issued (or treated as issued under
section 108(e)(4)) in a debt-for-debt exchange described in section
108(i)(2)(A) or a deemed debt-for-debt exchange described in Sec.
1.108(i)-3T(a), some or all of the deductions for OID with respect to
such debt instrument must be deferred during the deferral period. The
aggregate amount of OID deductions deferred during the deferral period
is generally allowed as a deduction ratably over the inclusion period,
or earlier upon the occurrence of any acceleration event described in
paragraph (b)(6) or (c)(3) of this section. Paragraph (b) of this
section provides rules that apply to partnerships. Paragraph (c) of
this section provides rules that apply to S corporations. Paragraph (d)
of this section provides general rules that apply to partnerships and S
corporations. Paragraph (e) of this section provides election
procedures and reporting requirements. Paragraph (f) of this section
contains the effective/applicability date. See Sec. 1.108(i)-0T(a) for
definitions that apply to this section.
(b) Specific rules applicable to partnerships--(1) Allocation of
COD income and partner's deferred amounts. An electing partnership that
defers any portion of COD income realized from a reacquisition of an
applicable debt instrument under section 108(i) must allocate all of
the COD income with respect to the applicable debt instrument to its
direct partners that are partners in the electing partnership
immediately before the reacquisition in the manner in which the income
would be included in the distributive shares of the partners under
section 704 and the regulations under section 704, including Sec.
1.704-1(b)(2)(iii), without regard to section 108(i). The electing
partnership may determine, in any manner, the portion, if any, of a
partner's COD income amount with respect to an applicable debt
instrument that is the deferred amount, and the portion, if any, that
is the included amount. However, no partner's deferred amount with
respect to an applicable debt instrument may exceed that partner's COD
income amount with respect to such applicable debt instrument, and the
aggregate amount of the partners' COD income amounts and deferred
amounts with respect to each applicable debt instrument must equal the
electing partnership's COD income amount and deferred amount,
respectively, with respect to each such applicable debt instrument.
(2) Basis adjustments and capital account maintenance--(i) Basis
adjustments. The adjusted basis of a partner's interest in a
partnership is not increased under section 705(a)(1) by the partner's
deferred amount in the taxable year of the reacquisition. The adjusted
basis of a partner's interest in a partnership is not decreased under
section 705(a)(2) by the partner's share of any deferred OID deduction
in the taxable year in which the deferred OID accrues. The adjusted
basis of a partner's interest in a partnership is adjusted under
section 705(a) by the partner's share of the electing partnership's
deferred items for the taxable year in which the partner takes into
account such deferred items under this section.
(ii) Capital account maintenance. For purposes of maintaining a
partner's capital account under Sec. 1.704-1(b)(2)(iv) and
notwithstanding Sec. 1.704-1(b)(2)(iv)(n), the capital account of a
partner of a partnership is adjusted under Sec. 1.704-1(b)(2)(iv) for
a partner's share of an electing partnership's deferred items as if no
election under section 108(i) were made.
(3) Deferred section 752 amount--(i) In general. An electing
partnership shall determine, for each of its direct partners with a
deferred amount, the partner's deferred section 752 amount, if any,
with respect to an applicable debt instrument. A partner's deferred
section 752 amount with respect to an applicable debt instrument equals
the decrease in the partner's share of a partnership liability under
section 752(b) resulting from the reacquisition of the applicable debt
instrument that is not treated as a current distribution of money under
section 752(b) by reason of section 108(i)(6) (deferred section 752
amount). A partner's deferred section 752 amount is treated as a
distribution of money by the partnership to the partner under section
752(b), at the same time and to the extent remaining in the same
amount, as the partner recognizes the deferred amount with
[[Page 49387]]
respect to the applicable debt instrument.
(ii) Electing partnership's computation of a partner's deferred
section 752 amount. To compute a partner's deferred section 752 amount,
the electing partnership must first determine the amount of gain that
its direct partner would recognize in the taxable year of a
reacquisition under section 731 as a result of the reacquisition of one
or more applicable debt instruments during the taxable year absent the
deferral provided in the second sentence of section 108(i)(6) (the
section 108(i)(6) deferral). If a direct partner of an electing
partnership would not recognize any gain under section 731 as a result
of the reacquisition of one or more applicable debt instruments during
the taxable year absent the section 108(i)(6) deferral, the partner
will not have a deferred section 752 amount with respect to any
applicable debt instrument that is reacquired during the taxable year.
If a direct partner of an electing partnership would recognize gain
under section 731 as a result of the reacquisition of one or more
applicable debt instruments during the taxable year absent the section
108(i)(6) deferral, the partner's deferred section 752 amount for all
applicable debt instruments that are reacquired during the taxable year
is equal to the lesser of the partner's aggregate deferred amounts from
the electing partnership for all applicable debt instruments reacquired
during the taxable year, or the gain that the partner would recognize
in the taxable year of the reacquisitions under section 731 as a result
of the reacquisitions absent the section 108(i)(6) deferral. In
determining the amount of gain that the direct partner would recognize
in the taxable year of a reacquisition under section 731 as a result of
the reacquisition of one or more applicable debt instruments during the
taxable year absent the section 108(i)(6) deferral, the rule under
Sec. 1.731-1(a)(1)(ii) applies to any deemed distribution of money
under section 752(b) resulting from a decrease in the partner's share
of a reacquired applicable debt instrument that is treated as an
advance or drawing of money. The amount of any deemed distribution of
money under section 752(b) resulting from a decrease in the partner's
share of a reacquired applicable debt instrument that is treated as an
advance or drawing of money under Sec. 1.731-1(a)(1)(ii) is determined
as if no COD income resulting from the reacquisition of the applicable
debt instrument is deferred under section 108(i).
(iii) Multiple section 108(i) elections. If a direct partner of an
electing partnership has a deferred section 752 amount under paragraph
(b)(3)(ii) of this section for the taxable year of a reacquisition and
the partner has a deferred amount with respect to more than one
applicable debt instrument from the electing partnership for which a
section 108(i) election is made in that taxable year, the partner's
deferred section 752 amount with respect to each such applicable debt
instrument equals the partner's deferred section 752 amount as
determined under paragraph (b)(3)(ii) of this section, multiplied by a
ratio, the numerator of which is the partner's deferred amount with
respect to such applicable debt instrument, and the denominator of
which is the partner's aggregate deferred amounts from the electing
partnership for all applicable debt instruments reacquired during the
taxable year.
(iv) Electing partnership's request for information. At the request
of an electing partnership, each direct partner of the electing
partnership that has a deferred amount with respect to such partnership
must provide to the electing partnership a written statement containing
information requested by the partnership that is necessary to determine
the partner's deferred section 752 amount (such as the partner's
adjusted basis in the partner's interest in the electing partnership).
The written statement must be signed under penalties of perjury and
provided to the requesting partnership within 30 days of the date of
the request by the electing partnership.
(v) Examples. The following examples illustrate the rules under
paragraph (b)(3) of this section:
Example 1. (i) A and B each hold a 50 percent interest in
Partnership, a calendar-year partnership. As of January 1, 2009, A
and B each have an adjusted basis of $50 in their partnership
interests. Partnership has two applicable debt instruments
outstanding, debt one of $300 and debt two of $200. On March 1,
2009, debt one is cancelled and Partnership realizes $300 of COD
income. On December 1, 2009, debt two is cancelled and Partnership
realizes $200 of COD income. The Partnership has no other income or
loss items for 2009. A and B are each allocated $150 of COD income
from debt one and $100 of COD income from debt two. Partnership
makes an election under section 108(i) to defer $225 of the $300 of
COD income realized from the reacquisition of debt one, $150 of
which is A's deferred amount, and $75 of which is B's deferred
amount. Partnership also makes an election under section 108(i) to
defer $125 of the $200 of COD income realized from the reacquisition
of debt two, $100 of which is A's deferred amount, and $25 of which
is B's deferred amount. A has no included amount for either debt. B
has an included amount of $75 with respect to debt one and an
included amount of $75 with respect to debt two for 2009.
(ii) Under paragraph (b)(3)(ii) of this section, the amount of
gain that A would recognize under section 731 as a result of the
reacquisitions absent the section 108(i)(6) deferral is $200. Thus,
A's deferred section 752 amount with respect to debt one and debt
two equals $200 (the lesser of A's aggregate deferred amounts with
respect to debt one and debt two of $250, or gain that A would
recognize under section 731 in 2009, as a result of the
reacquisitions absent the section 108(i)(6) deferral, of $200).
Under paragraph (b)(3)(iii) of this section, $120 of A's $200
deferred section 752 amount relates to debt one ($200 x $150/$250)
and $80 relates to debt two ($200 x $100/$250).
(iii) Under paragraph (b)(3)(ii) of this section, the amount of
gain that B would recognize under section 731 as a result of the
reacquisitions absent the section 108(i)(6) deferral is $50. Thus,
B's deferred section 752 amount with respect to debt one and debt
two equals $50 (the lesser of B's aggregate deferred amounts with
respect to debt one and debt two of $100, or gain that B would
recognize under section 731 in 2009, as a result of the
reacquisitions absent the section 108(i)(6) deferral, of $50). Under
paragraph (b)(3)(iii) of this section, $37.50 of B's $50 deferred
section 752 amount relates to debt one ($50 x $75/$100) and $12.50
relates to debt two ($50 x $25/$100).
Example 2. (i) The facts are the same as in Example 1, except
that Partnership has gross income for the year (including the $500
of COD income) of $700 and other separately stated losses of $500.
A's and B's distributive share of each item is 50 percent.
(ii) In determining the amount of gain that A would recognize
under section 731 as a result of the reacquisitions absent the
section 108(i)(6) deferral, Partnership first increases A's $50
adjusted basis in his interest in Partnership by A's distributive
share of Partnership income (other than the deferred amounts
relating to debt one and debt two) of $100, and then decreases A's
adjusted basis in Partnership by deemed distributions under section
752(b) of $250 and, thereafter, by A's distributive share of
Partnership losses of $250, but only to the extent that A's basis is
not reduced below zero. Under paragraph (b)(3)(ii) of this section,
the amount of gain that A would recognize under section 731 as a
result of the reacquisitions absent section 108(i)(6) deferral is
$100. Thus, A's deferred section 752 amount with respect to debt one
and debt two equals $100 (the lesser of A's aggregate deferred
amounts with respect to debt one and debt two of $250, or gain that
A would recognize under section 731 as a result of the
reacquisitions absent the deferral section 108(i)(6) deferral of
$100). Under paragraph (b)(3)(iii) of this section, A's deferred
section 752 amount with respect to debt one is $60 ($100 x $150/
$250), and A's deferred section 752 amount with respect to debt two
is $40 ($100 x $100/$250). A's $250 of Partnership losses are
suspended under section 704(d).
(iii) In determining the amount of gain that B would recognize
under section 731 as a result of the reacquisitions absent the
section
[[Page 49388]]
108(i)(6) deferral, Partnership first increases B's $50 adjusted
basis in his interest in Partnership by B's distributive share of
Partnership income (other than the deferred amounts relating to debt
one and debt two) of $250 ($100 other income plus $150 included
amount with respect to debt one and debt two), and then decreases
B's adjusted basis in Partnership by deemed distributions under
section 752(b) of $250 and, thereafter, by B's distributive share of
Partnership losses of $250, but only to the extent that B's basis is
not reduced below zero. Under paragraph (b)(3)(ii) of this section,
B would not recognize any gain under section 731 as a result of the
reacquisitions absent the section 108(i)(6) deferral. Thus, B has no
deferred section 752 amount with respect to either debt one or debt
two. B may deduct his distributive share of Partnership losses to
the extent of $50, with the remaining $200 suspended under section
704(d).
(4) Tiered partnerships--(i) In general. If a partnership (upper-
tier partnership) is a direct or indirect partner of an electing
partnership and directly or indirectly receives an allocation of a COD
income amount from the electing partnership, all or a portion of which
is deferred under section 108(i), the upper-tier partnership must
allocate its COD income amount to its partners that are partners in the
upper-tier partnership immediately before the reacquisition in the
manner in which the income would be included in the distributive shares
of the partners under section 704 and the regulations under section
704, including Sec. 1.704-1(b)(2)(iii), without regard to section
108(i). The upper-tier partnership may determine, in any manner, the
portion, if any, of a partner's COD income amount with respect to an
applicable debt instrument that is the deferred amount, and the
portion, if any, that is the included amount. However, no partner's
deferred amount with respect to an applicable debt instrument may
exceed that partner's COD income amount with respect to such applicable
debt instrument, and the aggregate amount of the partners' COD income
amounts and deferred amounts with respect to each applicable debt
instrument must equal the upper-tier partnership's COD income amount
and deferred amount, respectively, with respect to each such applicable
debt instrument.
(ii) Deferred section 752 amount. The computation of a partner's
deferred section 752 amount, as described in paragraph (b)(3)(ii) of
this section, is calculated only for direct partners of the electing
partnership. An upper-tier partnership's deferred section 752 amount
with respect to an applicable debt instrument of the electing
partnership is allocated only to those partners of the upper-tier
partnership that have a deferred amount with respect to that applicable
debt instrument, and in proportion to such partners' share of the
upper-tier partnership's deferred amount with respect to that
applicable debt instrument. A partner's share of the upper-tier
partnership's deferred section 752 amount with respect to an applicable
debt instrument must not exceed that partner's share of the upper-tier
partnership's deferred amount with respect to the applicable debt
instrument to which the deferred section 752 amount relates. The
deferred section 752 amount of a partner of an upper-tier partnership
is treated as a distribution of money by the upper-tier partnership to
the partner under section 752(b), at the same time and to the extent
remaining in the same amount, as the partner recognizes the deferred
amount with respect to the applicable debt instrument.
(iii) Examples. The following examples illustrate the rules under
paragraph (b)(4) of this section:
Example 1. (i) PRS, a calendar-year partnership, has two equal
partners, A, an individual, and XYZ, a partnership. As of January 1,
2009, A and XYZ each have an adjusted basis of $50 in their
partnership interests. PRS has a $500 applicable debt instrument
outstanding. On June 1, 2009, the creditor agrees to cancel the $500
indebtedness. PRS realizes $500 of COD income as a result of the
reacquisition. PRS has no other income or loss items for 2009. PRS
makes an election under section 108(i) to defer $200 of the $500 of
COD income. PRS allocates the $500 of COD income equally between its
partners ($250 each). PRS determines that, for each partner, $100 of
the COD income amount is the deferred amount, and $150 is the
included amount. For 2009, each of A's and XYZ's share of the
decrease in PRS's reacquired applicable debt instrument is $250.
(ii) XYZ has two equal partners, individuals X and Y. X and Y
share equally in XYZ's liabilities. XYZ allocates the $250 COD
income amount from PRS equally between X and Y ($125 each). XYZ
determines that X has a deferred amount of $100 and an included
amount of $25. All $125 of Y's COD income amount is Y's included
amount. For 2009, each of X's and Y's share of XYZ's $250 decrease
in liability with respect to the reacquired applicable debt
instrument of PRS is $125.
(iii) Under paragraph (b)(3)(ii) of this section, PRS determines
that XYZ has a deferred section 752 amount of $50. Therefore, for
2009, of XYZ's $250 share of the decrease in PRS's reacquired
applicable debt instrument, $200 is treated as a deemed distribution
under section 752(b) and $50 is the deferred section 752 amount.
(iv) Under paragraph (b)(4)(ii) of this section, none of XYZ's
$50 deferred section 752 amount is allocated to Y because Y does not
have a deferred amount with respect to the reacquired applicable
debt interest. XYZ's entire $50 of deferred section 752 amount is
allocated to X. Therefore, of X's $125 share of the XYZ's decrease
in liability with respect to the reacquired applicable debt
instrument of PRS, $75 is treated as a deemed distribution under
section 752(b) and $50 is X's deferred section 752 amount. Y's $125
share of XYZ's decrease in liability with respect to the reacquired
applicable debt instrument of PRS is treated as a deemed
distribution under section 752(b) and none is a deferred section 752
amount.
Example 2. (i) The facts are the same as in Example 1, except
for the following: XYZ has three partners, X, Y, and Z. The profits
and losses of XYZ are shared 25 percent by X, 25 percent by Y, and
50 percent by Z. XYZ allocates its $250 COD income amount from PRS
$62.50 to each of X and Y, and $125 to Z. XYZ determines that X has
a deferred amount of $50 and an included amount of $12.50, Y has a
deferred amount of $0 and an included amount of $62.50, and Z has a
deferred amount of $50 and an included amount of $75 with respect to
the applicable debt instrument. X's, Y's, and Z's share of XYZ's
decrease in liability with respect to the reacquired applicable debt
instrument of PRS is $62.50, $62.50 and $125, respectively.
(ii) Under paragraph (b)(4)(ii) of this section, none of XYZ's
$50 deferred section 752 amount is allocated to Y because Y does not
have a deferred amount with respect to the reacquired applicable
debt instrument. XYZ's $50 deferred section 752 amount is allocated
to X and Z in proportion to X's and Z's share of XYZ's deferred
amount, or $25 each ($50 x ($50/$100)). Therefore, of X's $62.50
share of XYZ's decrease in liability with respect to the reacquired
applicable debt instrument, $37.50 is treated as a deemed
distribution under section 752(b) and $25 is X's deferred section
752 amount. All of Y's $62.50 share of XYZ's decrease in liability
with respect to the reacquired applicable debt instrument is treated
as a deemed distribution under section 752(b). Of Z's $125 share of
XYZ's decrease in liability with respect to the reacquired
applicable debt instrument, $100 is treated as a deemed distribution
under section 752(b) and $25 is Z's deferred section 752 amount.
(5) S corporation partner--(i) In general. If an S corporation
partner has a deferred amount with respect to an applicable debt
instrument of an electing partnership, such deferred amount is shared
pro rata only among those shareholders that are shareholders of the S
corporation partner immediately before the reacquisition of the
applicable debt instrument.
(ii) Basis adjustments. The adjusted basis of a shareholder's stock
in an S corporation partner is not increased under section 1367(a)(1)
by the shareholder's share of the S corporation partner's deferred
amount in the taxable year of the reacquisition. The adjusted basis of
a shareholder's stock in an S corporation partner is not decreased
under section 1367(a)(2) by the shareholder's share of the S
corporation
[[Page 49389]]
partner's deferred OID deduction in the taxable year in which the
deferred OID accrues. The adjusted basis of a shareholder's stock in an
S corporation partner is adjusted under section 1367(a) by the
shareholder's share of the S corporation partner's share of the
electing partnership's deferred items for the taxable year in which the
shareholder takes into account its share of such deferred items under
this section.
(iii) Accumulated adjustments account. The accumulated adjustments
account (AAA), as defined in section 1368(e)(1), of an S corporation
partner that has a deferred amount with respect to an applicable debt
instrument of an electing partnership is not increased by its deferred
amount in the taxable year of the reacquisition. The AAA of an S
corporation partner is not decreased by its share of any deferred OID
deduction in the taxable year in which the deferred OID accrues. The
AAA of an S corporation partner is adjusted under section 1368(e) by a
shareholder's share of the S corporation partner's share of the
electing partnership's deferred items for the S period (as defined in
section 1368(e)(2)) in which the shareholder of the S corporation
partner takes into account its share of the deferred items under this
section.
(6) Acceleration of deferred items--(i) Electing partnership-level
events--(A) General rules. Except as provided in paragraph (b)(6)(iii)
of this section, a direct or indirect partner's share of an electing
partnership's deferred items is accelerated and must be taken into
account by such partner--
(1) In the taxable year in which the electing partnership
liquidates;
(2) In the taxable year in which the electing partnership sells,
exchanges, transfers (including contributions and distributions), or
gifts substantially all of its assets;
(3) In the taxable year in which the electing partnership ceases
doing business; or
(4) In the taxable year that includes the day before the day on
which the electing partnership files a petition in a Title 11 or
similar case.
(B) Substantially all requirement. For purposes of this paragraph
(b)(6), substantially all of a partnership's assets means assets
representing at least 90 percent of the fair market value of the net
assets, and at least 70 percent of the fair market value of the gross
assets, held by the partnership immediately prior to the sale,
exchange, transfer, or gift. For purposes of applying the rule in
paragraph (b)(6)(i)(A)(2) of this section, a sale, exchange, transfer,
or gift by any direct or indirect lower-tier partnership of the
electing partnership (lower-tier partnership) of all or part of its
assets is not treated as a sale, exchange, transfer, or gift of the
assets of any partnership that holds, directly or indirectly, an
interest in such lower-tier partnership. However, for purposes of
applying the rule in paragraph (b)(6)(i)(A)(2) of this section, a sale,
exchange, transfer, or gift of substantially all of the assets of a
transferee partnership (as described in paragraph (b)(6)(iii)(A)(1) of
this section), or of a lower-tier partnership that received assets of
the electing partnership from a transferee partnership or another
lower-tier partnership in a transaction governed all or in part by
section 721, is treated as a sale, exchange, transfer, or gift by the
holder of an interest in such transferee partnership or lower-tier
partnership of its entire interest in that transferee partnership or
lower-tier partnership.
(ii) Direct or indirect partner-level events--(A) General rules.
Except as provided in paragraph (b)(6)(iii) of this section, a direct
or indirect partner's share of an electing partnership's deferred items
with respect to a separate interest is accelerated and must be taken
into account by such partner in the taxable year in which--
(1) The partner dies or liquidates;
(2) The partner sells, exchanges (including redemptions treated as
exchanges under section 302), transfers (including contributions and
distributions), or gifts (including transfers treated as gifts under
section 1041) all or a portion of its separate interest;
(3) The partner's separate interest is redeemed within the meaning
of paragraph (b)(6)(ii)(B)(2) of this section; or
(4) The partner abandons its separate interest.
(B) Meaning of terms; special rules--(1) Partial transfers. For
purposes of paragraph (b)(6)(ii)(A)(2) of this section, if a partner
sells, exchanges (including redemptions treated as exchanges under
section 302), transfers (including contributions and distributions), or
gifts (including transfers treated as gifts under section 1041) a
portion of its separate interest, such partner's share of the electing
partnership's deferred items with respect to the separate interest
proportionate to the separate interest sold, exchanged, transferred, or
gifted is accelerated and must be taken into account by such partner.
(2) Redemptions. For purposes of paragraph (b)(6)(ii)(A)(3) of this
section, a partner's separate interest is redeemed if the partner
receives a distribution of cash and/or property in complete liquidation
of such separate interest.
(3) S corporation partners. In addition to the rules in paragraphs
(b)(6)(i) and (ii) of this section, an S corporation partner's share of
the electing partnership's deferred items is accelerated and the
shareholders of the S corporation partner must take into account their
respective shares of the S corporation partner's share of the electing
partnership's deferred items in the taxable year in which the S
corporation partner's election under section 1362(a) terminates.
(4) C corporation partners. In addition to the rules in paragraphs
(b)(6)(i), (ii), and (iii) of this section, the acceleration rules in
Sec. 1.108(i)-1T(b) and the earnings and profits rules in Sec.
1.108(i)-1T(d) apply to partners that are electing corporations.
(iii) Events not constituting acceleration. Notwithstanding the
rules in paragraphs (b)(6)(i) and (ii) of this section, a direct or
indirect partner's share of an electing partnership's deferred items
with respect to a separate interest is not accelerated by any of the
events described in this paragraph (b)(6)(iii).
(A) Section 721 contributions--(1) Electing partnership
contributions. A direct or indirect partner's share of an electing
partnership's deferred items is not accelerated if the electing
partnership contributes all or a portion of its assets in a transaction
governed all or in part by section 721(a) to another partnership
(transferee partnership) in exchange for an interest in the transferee
partnership provided that the electing partnership does not terminate
under section 708(b)(1)(A) or transfer its assets and liabilities in a
transaction described in section 708(b)(2)(A) or section 708(b)(2)(B).
See paragraph (b)(6)(iii)(D) of this section for transactions governed
by section 708(b)(2)(A). Notwithstanding the rules in this paragraph
(b)(6)(iii)(A)(1), the rules in paragraphs (b)(6)(i)(A) and
(b)(6)(ii)(A) of this section apply to any part of the transaction to
which section 721(a) does not apply.
(2) Partner contributions. A direct or indirect partner's share of
an electing partnership's deferred items with respect to a separate
interest is not accelerated if the holder of such interest
(contributing partner) contributes its entire separate interest
(contributed separate interest) in a transaction governed all or in
part by section 721(a) to another partnership (transferee partnership)
in exchange for an interest in the transferee partnership provided that
the partnership in which the separate interest is held does not
[[Page 49390]]
terminate under section 708(b)(1)(A) or transfer its assets and
liabilities in a transaction described in section 708(b)(2)(A) or
section 708(b)(2)(B). See paragraph (b)(6)(iii)(D) of this section for
transactions governed by section 708(b)(2)(A). The transferee
partnership becomes subject to section 108(i), including all reporting
requirements under this section, with respect to the contributing
partner's share of the electing partnership's deferred items associated
with the contributed separate interest. The transferee partnership must
allocate and report the share of the electing partnership's deferred
items that is associated with the contributed separate interest to the
contributing partner to the same extent that such share of the electing
partnership's deferred items would have been allocated and reported to
the contributing partner in the absence of such contribution.
Notwithstanding the rules in this paragraph (b)(6)(iii)(A)(2), the
rules in paragraph (b)(6)(ii)(A) of this section apply to any part of
the transaction to which section 721(a) does not apply.
(B) Section 1031 exchanges. A direct or indirect partner's share of
the electing partnership's deferred items is not accelerated if the
electing partnership transfers property held for productive use in a
trade or business or for investment in exchange for property of like
kind which is to be held either for productive use in a trade or
business or for investment in a transaction to which section 1031(a)(1)
applies. Notwithstanding the rules in this paragraph (b)(6)(iii)(B), to
the extent the electing partnership receives money or other property
which does not meet the requirements of section 1031(a) (boot) in the
exchange, a proportionate amount of the property transferred by the
electing partnership equal to the proportion of the boot to the total
consideration received in the exchange shall be treated as sold for
purposes of paragraph (b)(6)(i)(A)(2) of this section.
(C) Section 708(b)(1)(B) terminations. A direct or indirect
partner's share of the deferred items of an electing partnership with
respect to a separate interest is not accelerated if the electing
partnership or a partnership that is a direct or indirect partner of
the electing partnership terminates under section 708(b)(1)(B).
Notwithstanding the rules in this paragraph (b)(6)(iii)(C), the rules
in paragraph (b)(6)(ii)(A) of this section apply to the event that
causes the termination under section 708(b)(1)(B) to the extent not
otherwise excepted under paragraph (b)(6)(iii) of this section.
(D) Section 708(b)(2)(A) mergers or consolidations. A direct or
indirect partner's share of the deferred items of an electing
partnership with respect to a separate interest is not accelerated if
the partnership in which the separate interest is held (the merger
transaction partnership) merges into or consolidates with another
partnership in a transaction to which section 708(b)(2)(A) applies. The
resulting partnership or new partnership, as determined under Sec.
1.708-1(c)(1), becomes subject to section 108(i), including all
reporting requirements under this section, to the same extent that the
merger transaction partnership was so subject prior to the transaction,
and must allocate and report any merger transaction partnership's
deferred items to the same extent and to the same partners that the
merger transaction partnership allocated and reported such items prior
to such transaction. Notwithstanding the rules in this paragraph
(b)(6)(iii)(D), the rules in paragraphs (b)(6)(i)(A)(2) and
(b)(6)(ii)(A)(2) of this section apply to that portion of the
transaction that is treated as a sale, and the rules of
(b)(6)(ii)(A)(3) apply if, as part of the transaction, the partner's
separate interest is redeemed and the partner does not receive an
interest in the resulting partnership with respect to such separate
interest.
(E) Certain distributions of separate interests. If a partnership
(upper-tier partnership) that is a direct or indirect partner of an
electing partnership distributes its entire separate interest
(distributed separate interest) to one or more of its partners
(distributee partners) that have a share of the electing partnership's
deferred items from upper-tier partnership with respect to the
distributed separate interest, the distributee partners' shares of the
electing partnership's deferred items with respect to such distributed
separate interest are not accelerated. The partnership, the interest in
which was distributed, must allocate and report the share of the
electing partnership's deferred items associated with the distributed
separate interest only to such distributee partners that had a share of
the electing partnership's deferred items from the upper-tier
partnership with respect to the distributed separate interest prior to
the distribution.
(F) Section 381 transactions. A C corporation partner's share of an
electing partnership's deferred items is not accelerated if, as part of
a transaction described in paragraph (b)(6)(ii)(A) of this section, the
assets of the C corporation partner are acquired by another C
corporation (acquiring C corporation) in a transaction that is treated,
under Sec. 1.108(i)-1T(b)(2)(ii)(B), as a transaction to which section
381(a) applies. An S corporation partner's share of an electing
partnership's deferred items is not accelerated if, as part of a
transaction described in paragraph (b)(6)(ii)(A) of this section, the
assets of the S corporation partner are acquired by another S
corporation (acquiring S corporation) in a transaction to which section
381(a) applies. In such cases, the acquiring C corporation or acquiring
S corporation, as the case may be, succeeds to the C corporation
partner's or the S corporation partner's remaining share of the
electing partnership's deferred items and becomes subject to section
108(i), including all reporting requirements under this section, as if
the acquiring C corporation or acquiring S corporation were the C
corporation partner or the S corporation partner, respectively. The
acquiring S corporation must allocate and report the S corporation
partner's deferred items to the same extent and only to those
shareholders of the S corporation partner who had a share of the S
corporation partner's deferred items from the electing partnership
prior to the transaction.
(G) Intercompany transfers. A C corporation partner's share of an
electing partnership's deferred items is not accelerated if, as part of
a transaction described in paragraph (b)(6)(ii)(A) of this section, the
C corporation partner transfers its entire separate interest in an
intercompany transaction, as described in Sec. 1.1502-13(b)(1)(i), and
the electing partnership does not terminate under section 708(b)(1)(A)
as a result of the intercompany transaction.
(H) Retirement of a debt instrument. See Sec. 1.108(i)-3T(c)(1)
for rules regarding the retirement of a debt instrument that is subject
to section 108(i).
(I) Other non-acceleration events. A direct or indirect partner's
share of an electing partnership's deferred items is not accelerated
with respect to any transaction if the Commissioner makes a
determination by published guidance that such transaction is not an
acceleration event under the rules of this paragraph (b)(6).
(iv) Related partnerships. A direct or indirect partner's share of
a related partnership's deferred OID deduction (as determined in
paragraph (d)(2) of this section) that has not previously been taken
into account is accelerated and taken into account by the direct or
indirect partner in the taxable year in which, and to the extent that,
deferred
[[Page 49391]]
COD income attributable to the related partnership's deferred OID
deduction is taken into account by the electing entity or its owners.
(v) Examples. The following examples illustrate the rules under
this paragraph (b)(6):
Example 1. Meaning of ``separate interest.'' (i) Electing
partnership (EP) has three partners, MT1, MT2, and UT, each of which
is a partnership. The partners of MT1 are X and UT. The partners of
MT2 are Y, UT, and B. The partners of UT are A, B, and C. In
addition to their interests in the partnerships noted, MT1, MT2, and
UT own other assets.
(ii) Within the meaning of paragraph (a)(29) of Sec. 1.108(i)-
0T, A and C each hold one separate interest (their interests in UT),
B holds two separate interests (its interests in UT and MT2), UT
holds three separate interests (its interests in MT1, MT2, and EP),
MT1 and MT2 each hold one separate interest (their interests in EP),
and X and Y each hold one separate interest (their interests in MT1
and MT2, respectively) with respect to EP.
Example 2. Distributions of separate interests in an electing
partnership. (i) The facts are the same as in Example 1, except that
A, as a direct partner of UT, has a share of EP's deferred items
with respect to UT's interests in MT1 and EP. A does not have a
share of EP's deferred items with respect to UT's interest in MT2.
B, as a direct partner of UT, has a share of EP's deferred items
with respect to UT's interest in MT1 and MT2, but not with respect
to UT's interest in EP. B also has a share of EP's deferred items
with respect to its separate interest in MT2. C does not have any
share of EP's deferred items with respect to UT's interest in MT1,
MT2, or EP.
(ii) UT distributes 40 percent of its separate interest in MT1
to A in redemption of A's interest in UT. Under paragraphs
(b)(6)(ii)(A)(2) and (b)(6)(ii)(B)(1) of this section, a portion of
UT's interest in MT1 has been transferred and a corresponding
portion (40 percent) of UT's share of EP's deferred items from MT1
is accelerated. Thus, 40 percent of A's and B's share of EP's
deferred items from UT with respect to UT's interest in MT1 is
accelerated. Further, because A's interest in UT is redeemed within
the meaning of paragraph (b)(6)(ii)(B)(2) of this section, all of
A's shares of EP's deferred items from UT are accelerated under
paragraph (b)(6)(ii)(A)(3) of this section. UT continues to allocate
and report to B its remaining share of EP's deferred items from its
separate interest in MT1 that was not distributed to A.
(iii) UT distributes its entire separate interest in MT1 to B
(other than in redemption of B's interest in UT). Under paragraph
(b)(6)(ii)(A)(2) of this section, UT's share of EP's deferred items
from MT1 would be accelerated. However, because UT distributes its
entire separate interest in MT1 to B, B's share of EP's deferred
items from UT with respect to UT's separate interest in MT1 is not
accelerated under paragraph (b)(6)(iii)(E) of this section. MT1
allocates and reports to B B's share of EP's deferred items from
UT's separate interest in MT1 that was distributed to B.
(iv) UT distributes its entire separate interest in MT1 to A and
B (other than in redemption of their interests in UT). Under
paragraph (b)(6)(iii)(E) of this section, none of A's or B's shares
of EP's deferred items from UT with respect to UT's separate
interest in MT1 is accelerated, and MT1 allocates and reports to A
and B their respective share of EP's deferred items from UT's
separate interest in MT1 that was distributed to A and B.
Example 3. Partial sale of interest by an indirect partner. (i)
Individual A holds a 50 percent partnership interest in UTP, a
partnership that holds a 50 percent interest in EP, a partnership
that makes an election to defer COD income under section 108(i). A's
share of UTP's deferred amount with respect to EP's election under
section 108(i) is $100. During a taxable year within the deferral
period, A sells 25 percent of his partnership interest in UTP to an
unrelated third party.
(ii) Under paragraphs (b)(6)(ii)(A)(2) and (b)(6)(ii)(B)(1) of
this section, 25 percent of A's $100 deferred amount is accelerated
as a result of A's partial sale of his interest in UTP. Thus, A must
recognize $25 of his deferred amount in the taxable year of the
sale. A's remaining deferred amount is $75.
Example 4. Section 708(b)(1)(B) termination of electing
partnership. (i) A and B are equal partners in partnership AB. On
January 1, 2009, AB reacquires an applicable debt instrument and
makes an election under section 108(i) to defer $400 of COD income.
A and B each have a deferred amount with respect to the applicable
debt instrument of $200. On January 1, 2010, A sells its entire 50
percent interest in AB to C in a transfer that terminates the
partnership under section 708(b)(1)(B).
(ii) Under paragraph (b)(6)(iii)(C) of this section, the
technical termination of AB under section 708(b)(1)(B) does not
cause A's or B's shares of AB's deferred items to be accelerated.
However, A's $200 deferred amount is accelerated under paragraph
(b)(6)(ii)(A)(2) of this section as a result of the sale.
Example 5. Section 708(b)(2)(A) mergers. (i) A, B, and C are
equal partners in partnership X, which has made an election under
section 108(i) to defer $150 of COD income. The fair market value of
each interest in partnership X is $100. A, B, and C each has a
deferred amount of $50 with respect to partnership X's election
under section 108(i). E, F, and G are partners in partnership Y.
Partnership X and partnership Y merge in a taxable year during the
deferral period of partnership X's election under section 108(i).
Under section 708(b)(2)(A), the resulting partnership is considered
a continuation of partnership Y and partnership X is considered
terminated. Under state law, partnerships X and Y undertake the
assets-over form of Sec. 1.708-1(c)(3)(i) to accomplish the merger.
C does not want to become a partner in partnership Y, and
partnership X does not have the resources to redeem C's interest
before the merger. C, partnership X, and partnership Y enter into a
merger agreement that satisfies the requirements of Sec. 1.708-
1(c)(4) and specifies that partnership Y will purchase C's interest
in partnership X for $100 before the merger, and as part of the
agreement, C consents to treat the transaction in a manner that is
consistent with the agreement. As part of the merger, partnership X
receives from partnership Y $100 (which will be distributed to C
immediately before the merger), $100 (which will be distributed
equally to A and B ($50 each)), and interests in partnership Y with
a value of $100 (which will be distributed equally to A and B) in
exchange for partnership X's assets and liabilities.
(ii) Under the general rule of paragraph (b)(6)(iii)(D) of this
section, and except as provided below, the deferred items of
partnership X are not accelerated as a result of the merger with
partnership Y. Partnership Y, the resulting partnership that is
considered the continuation of partnership X, becomes subject to
section 108(i), including all reporting requirements under section
108(i), to the same extent that partnership X was subject to such
rules. Under paragraph (b)(6)(iii)(D) of this section, partnership Y
must allocate and report partnership X's deferred items to A and B
in the same manner as partnership X had prior to the merger
transaction.
(iii) Under Sec. 1.708-1(c)(4), C is treated as selling its
interest in partnership X immediately before the merger. As a
result, C's $50 deferred amount is accelerated under paragraph
(b)(6)(ii)(A)(2) of this section.
(iv) Under section 707(a)(2)(B), partnership X is deemed to have
sold a portion of its assets to partnership Y. Because partnership X
is not treated as selling substantially all of its assets under
paragraph (b)(6)(i)(B) of this section, A's and B's deferred amounts
are not accelerated under paragraph (b)(6)(i)(A)(2) of this section.
(v) Because A's and B's interests in partnership X are redeemed
within the meaning of paragraph (b)(6)(ii)(B)(2) of this section,
all of their shares of partnership X's deferred items would be
accelerated under paragraph (b)(6)(ii)(A)(3). However, because they
receive an interest in partnership Y in the merger, none of A's and
B's share of partnership X's deferred items is accelerated.
(7) Withholding under section 1446. See section 1446 regarding
withholding by a partnership on a foreign partner's share of income
effectively connected with a U.S. trade or business.
(c) Specific rules applicable to S corporations--(1) Deferred COD
income. An electing S corporation's COD income deferred under section
108(i) (an S corporation's deferred COD income) is shared pro rata
among those shareholders that are shareholders of the electing S
corporation immediately before the reacquisition of the applicable debt
instrument. Any COD income deferred under section 108(i) is taken into
account under section 1366(a) by those shareholders in the inclusion
period, or earlier upon the occurrence of an acceleration event
described in paragraph (c)(3) of this section.
[[Page 49392]]
(2) Basis adjustments and accumulated adjustments account--(i)
Basis adjustments. The adjusted basis of a shareholder's stock in an
electing S corporation is not increased under section 1367(a)(1) by the
shareholder's share of the S corporation's deferred COD income in the
taxable year of the reacquisition. The adjusted basis of a
shareholder's stock in an electing S corporation or a related S
corporation is not decreased under section 1367(a)(2) by the
shareholder's share of the S corporation's deferred OID deduction in
the taxable year in which the deferred OID accrues. The adjusted basis
of a shareholder's stock in an electing S corporation or a related S
corporation is adjusted under section 1367(a) by the shareholder's
share of the S corporation's deferred items for the taxable year in
which the shareholder takes into account its share of the deferred
items under this section.
(ii) Accumulated adjustments account. The AAA of an electing S
corporation is not increased by the S corporation's deferred COD income
in the taxable year of a reacquisition. The AAA of an electing S
corporation or a related S corporation is not decreased by the S
corporation's deferred OID deduction in the taxable year in which the
deferred OID accrues. The AAA of an electing S corporation or a related
S corporation is adjusted under section 1368(e) by a shareholder's
share of the S corporation's deferred items for the S period (as
defined in section 1368(e)(2)) in which a shareholder of the S
corporation takes into account its share of the deferred items under
this section.
(3) Acceleration of deferred items--(i) Electing S corporation-
level events--(A) General rules. Except as provided in paragraph
(c)(3)(iii) of this section, a shareholder's share of an electing S
corporation's deferred items is accelerated and must be taken into
account by such shareholder--
(1) In the taxable year in which the electing S corporation
liquidates;
(2) In the taxable year in which the electing S corporation sells,
exchanges, transfers (including contributions and distributions), or
gifts substantially all of its assets;
(3) In the taxable year in which the electing S corporation ceases
doing business;
(4) In the taxable year in which the electing S corporation's
election under section 1362(a) terminates; or
(5) In the taxable year that includes the day before the day on
which the electing S corporation files a petition in a Title 11 or
similar case.
(B) Substantially all requirement. For purposes of this paragraph
(c)(3), substantially all of an electing S corporation's or
partnership's assets means assets representing at least 90 percent of
the fair market value of the net assets, and at least 70 percent of the
fair market value of the gross assets, held by the S corporation or
partnership immediately prior to the sale, exchange, transfer, or gift.
For purposes of applying the rule in paragraph (c)(3)(i)(A)(2) of this
section, a sale, exchange, transfer, or gift by any direct or indirect
lower-tier partnership of the electing S corporation (lower-tier
partnership) of all or part of its assets is not treated as a sale,
exchange, transfer, or gift of the assets of any person that holds,
directly or indirectly, an interest in such lower-tier partnership.
However, for purposes of applying the rule in paragraph (c)(3)(i)(A)(2)
of this section, a sale, exchange, transfer, or gift of substantially
all of the assets of a transferee partnership (as described in
paragraph (c)(3)(iii)(A) of this section), or of a lower-tier
partnership that received assets of the electing S corporation from a
transferee partnership of the electing S corporation or another lower-
tier partnership in a transaction governed all or in part by section
721, is treated as a sale, exchange, transfer, or gift by the holder of
an interest in such transferee partnership or lower-tier partnership of
its entire interest in that transferee partnership or lower-tier
partnership.
(ii) Shareholder events--(A) General rules. Except as provided in
paragraph (c)(3)(iii) of this section, a shareholder's share of an
electing S corporation's deferred items is accelerated and must be
taken into account by such shareholder in the taxable year in which--
(1) The shareholder dies;
(2) The shareholder sells, exchanges (including redemptions treated
as exchanges under section 302), transfers (including contributions and
distributions), or gifts (including transfers treated as gifts under
section 1041) all or a portion of its interest in the electing S
corporation; or
(3) The shareholder abandons its interest in the electing S
corporation.
(B) Partial transfers. For purposes of paragraph (c)(3)(ii)(A)(2)
of this section, if a shareholder of an electing S corporation sells,
exchanges (including redemptions treated as exchanges under section
302), transfers, or gifts (including transfers treated as gifts under
section 1041) a portion of its interest in the electing S corporation,
such shareholder's share of the electing S corporation's deferred items
proportionate to the interest that was sold, exchanged, transferred, or
gifted is accelerated and must be taken into account by such
shareholder.
(iii) Events not constituting acceleration. Notwithstanding the
rules in paragraphs (c)(3)(i) and (ii) of this section, a shareholder's
share of an electing S corporation's deferred items is not accelerated
by any of the events described in this paragraph (c)(3)(iii).
(A) Electing S corporation's contributions. A shareholder's share
of an electing S corporation's deferred items is not accelerated if the
electing S corporation contributes all or a portion of its assets in a
transaction governed all or in part by section 721(a) to a partnership
(transferee partnership) in exchange for an interest in the transferee
partnership. Notwithstanding the rules in this paragraph
(c)(3)(iii)(A), the rules in paragraph (c)(3)(i)(A) of this section
apply to any part of the transaction to which section 721(a) does not
apply.
(B) Section 1031 exchanges. A shareholder's share of an electing S
corporation's deferred items is not accelerated if the electing S
corporation transfers property held for productive use in a trade or
business or for investment in exchange for property of like kind which
is to be held either for productive use in a trade or business or for
investment in a transaction to which section 1031(a)(1) applies.
Notwithstanding the rules in this paragraph (c)(3)(iii)(B), to the
extent the electing S corporation receives money or other property
which does not meet the requirements of section 1031(a) (boot) in the
exchange, a proportionate amount of the property transferred by the
electing S corporation equal to the proportion of the boot to the total
consideration received in the exchange shall be treated as sold for
purposes of paragraph (c)(3)(i)(A)(2) of this section.
(C) Section 381 transactions. A shareholder's share of an electing
S corporation's deferred items is not accelerated if, as part of a
transaction described in paragraph (c)(3)(i)(A) of this section, the
electing S corporation's assets are acquired by another S corporation
(acquiring S corporation) in a transaction to which section 381(a)
applies. In such a case, the acquiring S corporation succeeds to the
electing S corporation's remaining deferred items and becomes subject
to section 108(i), including all reporting requirements under this
section, as if the acquiring S corporation were the electing S
corporation. The acquiring S corporation must allocate and report the
electing S corporation's deferred items to the same extent and only to
those shareholders who had a share of the electing S corporation's
deferred items prior to the transaction.
[[Page 49393]]
(D) Retirement of a debt instrument. See Sec. 1.108(i)-3T(c)(1)
for rules regarding the retirement of a debt instrument that is subject
to section 108(i).
(E) Other non-acceleration events. A shareholder's share of an
electing S corporation's deferred items is not accelerated with respect
to any transaction if the Commissioner makes a determination by
published guidance that such transaction is not an acceleration event
under the rules of this paragraph (c)(3).
(iv) Related S corporations. A shareholder's share of a related S
corporation's deferred OID deduction (as determined in paragraph (d)(2)
of this section) that has not previously been taken into account is
accelerated and taken into account by the shareholder in the taxable
year in which, and to the extent that, deferred COD income attributable
to the related S corporation's deferred OID deduction is taken into
account by the electing entity or its owners.
(d) General rules applicable to partnerships and S corporations--
(1) Applicable debt instrument (trade or business requirement). The
determination of whether a debt instrument issued by a partnership or
an S corporation is treated as a debt instrument issued in connection
with the conduct of a trade or business by the partnership or S
corporation for purposes of this section is based on all the facts and
circumstances. However, a debt instrument issued by a partnership or an
S corporation shall be treated as an applicable debt instrument for
purposes of this section if the electing partnership or electing S
corporation can establish that--
(i) The gross fair market value of the trade or business assets of
the partnership or S corporation that issued the debt instrument
represented at least 80 percent of the gross fair market value of that
partnership's or S corporation's total assets on the date of issuance;
(ii) The trade or business expenditures of the partnership or S
corporation that issued the debt instrument represented at least 80
percent of the partnership's or S corporation's total expenditures for
the taxable year of issuance;
(iii) At least 95 percent of interest paid or accrued on the debt
instrument issued by the partnership or S corporation was allocated to
one or more trade or business expenditures under Sec. 1.163-8T for the
taxable year of issuance;
(iv) At least 95 percent of the proceeds from the debt instrument
issued by the partnership or S corporation were used by the partnership
or S corporation to acquire one or more trades or businesses within six
months from the date of issuance; or
(v) The partnership or S corporation issued the debt instrument to
a seller of a trade or business to acquire the trade or business.
(2) Deferral of OID at entity level--(i) In general. For each
taxable year during the deferral period, an issuing entity determines
the amount of its deferred OID deduction with respect to a debt
instrument, if any. An issuing entity's deferred OID deduction for a
taxable year is the lesser of:
(A) The OID that accrues in a current taxable year during the
deferral period with respect to the debt instrument (less any of such
OID that is allowed as a deduction in the current taxable year as a
result of an acceleration event), or
(B) The excess, if any, of the electing entity's deferred COD
income (less the aggregate amount of such deferred COD income that has
been included in income in the current taxable year and any previous
taxable year during the deferral period) over the aggregate amount of
OID that accrued in previous taxable years during the deferral period
with respect to the debt instrument (less the aggregate amount of such
OID that has been allowed as a deduction in the current taxable year
and any previous taxable year during the deferral period).
(ii) Excess deferred OID deduction. If, as a result of an
acceleration event during a taxable year in the deferral period, an
issuing entity's aggregate deferred OID deduction for previous taxable
years with respect to a debt instrument (less the aggregate amount of
such deferred OID deduction that has been allowed as a deduction in a
previous taxable year during the deferral period) exceeds the amount of
the electing entity's deferred COD income (less the aggregate amount of
such deferred COD income that has been included in income in the
current taxable year and any previous taxable year during the deferral
period), the excess deferred OID deduction shall be allowed as a
deduction in the taxable year in which the acceleration event occurs.
(iii) Examples. The following examples illustrate the rules under
paragraph (d)(2) of this section:
Example 1. Partner joins partnership during deferral period. (i)
A and B each hold a 50 percent interest in AB partnership, a
calendar-year partnership. On January 1, 2009, AB partnership issues
a new debt instrument with OID and uses all of the proceeds to
reacquire an outstanding applicable debt instrument of AB
partnership, realizing $100 of COD income, and makes an election
under section 108(i) to defer $50 of the COD income. During the
deferral period, a total of $150 of OID accrues on the new debt
instrument issued as part of the reacquisition. A and B each have a
deferred amount of $25 with respect to the applicable debt
instrument reacquired by AB partnership. For 2009, $28 of OID
accrues on the new debt instrument and A and B are each allocated
$14 of accrued OID with respect to the new debt instrument. On
January 1, 2010, C contributes cash to AB partnership in exchange
for a \1/3\ partnership interest. For 2010, $29 of OID accrues on
the new debt instrument, and A, B, and C are each allocated $9.67 of
accrued OID.
(ii) Under paragraph (d)(2) of this section, AB partnership's
deferred OID deduction for 2009 is the lesser of: $28 of OID that
accrues on the new debt instrument in 2009, or the excess of AB
partnership's deferred COD income of $50 over the aggregate amount
of OID that accrued on the debt instrument in previous taxable years
during the deferral period of $0, or $50. Thus, all $28 of the OID
that accrues on the debt instrument in 2009 is deferred under
section 108(i).
(iii) Under paragraph (d)(2) of this section, AB partnership's
deferred OID deduction for 2010 is the lesser of: $29 of OID that
accrues on the new debt instrument in 2010, or the excess of AB
partnership's deferred COD income of $50 over the aggregate amount
of OID that accrued on the debt instrument in previous taxable years
during the deferral period of $28, or $22. Thus, $22 of the $29 of
OID that accrues in 2010 is deferred under section 108(i). A, B, and
C will each defer $7.33 of the $9.67 of accrued OID that was
allocated to each of them.
Example 2. Acceleration of deferred items during deferral
period. (i) On January 1, 2009, ABC partnership, a calendar-year
partnership with three partners, issues a new debt instrument with
OID and uses all of the proceeds to reacquire an outstanding
applicable debt instrument of ABC partnership. ABC partnership
realizes $150 of COD income and makes an election under section
108(i) to defer the $150 of COD income. A's deferred amount with
respect to the applicable debt instrument is $75, while B and C each
have a deferred amount of $37.50. In 2009, $28 of OID accrues on the
new debt instrument and is allocated $7.00 to A and $10.50 to each
of B and C. In 2010, $29 of OID accrues on the new debt instrument
and is allocated $7.25 to A and $10.87 to each of B and C. In 2011,
$30 of OID accrues on the new debt instrument and is allocated $7.50
to A and $11.25 to each of B and C. In 2012, $31 of OID accrues on
the new debt instrument and is allocated $7.75 to A and $11.62 to
each of B and C. On December 31, 2012, A's entire share of ABC
partnership's deferred items is accelerated under paragraph (b)(6)
of this section. For 2012, A includes $75 of COD income in income
and is allowed a deduction of $21.75 for A's share of ABC
partnership's deferred OID deduction for taxable years 2009 through
2011, and a deduction of $7.75 for A's share of ABC partnership's
OID that accrues on the debt instrument in 2012.
(ii) Under paragraph (d)(2) of this section, ABC partnership's
deferred OID deduction
[[Page 49394]]
for 2012 is the lesser of: $23.35 ($31 of OID that accrues on the
new debt instrument in 2012 less $7.75 of this OID that is allowed
as a deduction to A in 2012) or $9.75 (the excess of $75 (ABC
partnership's deferred COD income of $150 less A's share of ABC
partnership's deferred COD income that is included in A's income for
2012 of $75) over $65.25 (the aggregate amount of OID that accrued
in previous taxable years of $87 less the aggregate amount of such
OID that has been allowed as a deduction by A in 2012 of $21.75)).
Thus, of the $31 of OID that accrues in 2012, $9.75 is deferred
under section 108(i).
(3) Effect of an election under section 108(i) on recapture amounts
under section 465(e)--(i) In general. To the extent that a decrease in
a partner's or shareholder's amount at risk (as defined in section 465)
in an activity as a result of a reacquisition of an applicable debt
instrument would cause a partner with a deferred amount or a
shareholder with a share of the S corporation's deferred COD income to
have income under section 465(e) in the taxable year of the
reacquisition, such decrease (not to exceed the partner's deferred
amount or the shareholder's share of the S corporation's deferred COD
income with respect to that applicable debt instrument) (deferred
section 465 amount) shall not be taken into account for purposes of
determining the partner's or shareholder's amount at risk in an
activity under section 465 as of the close of the taxable year of the
reacquisition. A partner's or shareholder's deferred section 465 amount
is treated as a decrease in the partner's or shareholder's amount at
risk in an activity at the same time, and to the extent remaining in
same amount, as the partner recognizes its deferred amount or the S
corporation shareholder recognizes its share of the S corporation's
deferred COD income.
(ii) Example. The following example illustrates the rules in
paragraph (d)(3) of this section:
Example. (i) PRS is a calendar-year partnership with two equal
partners, individuals A and B. PRS is engaged in an activity
described in section 465(c) (Activity). PRS has a $500 recourse
applicable debt instrument outstanding. Each partner's amount at
risk on January 1, 2009 is $50. On June 1, 2009, the creditor agrees
to cancel the $500 indebtedness. PRS realizes $500 of COD income as
a result of the reacquisition. The partners' share of the
liabilities of PRS decreases by $500 under section 752(b), and each
partner's amount at risk is decreased by $250. Other than the $500
of COD income, PRS's income and expenses for 2009 are equal. PRS
makes an election under section 108(i) to defer $200 of the $500 COD
income realized in connection with the reacquisition. PRS allocates
the $500 of COD income equally between its partners, A and B. A and
B each have a COD income amount of $250 with respect to the
applicable debt instrument. PRS determines that, for both partners A
and B, $100 of the $250 COD income amount is the deferred amount,
and $150 is the included amount. Beginning in each taxable year 2014
through 2018, A and B each include $20 of the deferred amount in
gross income.
(ii) Under paragraph (d)(3)(i) of this section, $50 of the $250
decrease in A's and B's amount at risk in Activity is the deferred
section 465 amount for each of A and B and is not taken into account
for purposes of determining A's and B's amount at risk in Activity
at the close of 2009. In taxable year 2014, A's and B's amount at
risk in Activity is decreased by $20 (deferred section 465 amount
that equals the deferred amount included in A's and B's gross income
in 2014). In taxable year 2015, A's and B's amount at risk in
Activity is decreased by $20 for the deferred section 465 amount
that equals the deferred amount included in A's and B's gross income
in 2015. In taxable year 2016, A's and B's amount at risk in
Activity is decreased by $10 (the remaining amount of the deferred
section 465 amount).
(e) Election procedures and reporting requirements--(1)
Partnerships--(i) In general. A partnership makes an election under
section 108(i) by following procedures outlined in guidance and
applicable forms and instructions issued by the Commissioner. An
electing partnership (or its successor) must provide to its partners
certain information as required by guidance and applicable forms and
instructions issued by the Commissioner.
(ii) Tiered pass-through entities. A partnership that is a direct
or indirect partner of an electing partnership (or its successor) or a
related partnership or an S corporation partner must provide to its
partners or shareholders, as the case may be, certain information as
required by guidance and applicable forms and instructions issued by
the Commissioner.
(iii) Related partnerships. A related partnership must provide to
its partners certain information as required by guidance and applicable
forms and instructions issued by the Commissioner.
(2) S corporations--(i) In general. An S corporation makes an
election under section 108(i) by following procedures outlined in
guidance and applicable forms and instructions issued by the
Commissioner. An electing S corporation (or its successor) must provide
to its shareholders certain information as required by guidance and
applicable forms and instructions issued by the Commissioner.
(ii) Related S corporations. A related S corporation must provide
to its shareholders certain information as required by guidance and
applicable forms and instructions issued by the Commissioner.
(f) Effective/applicability date. For the applicability dates of
this section, see Sec. 1.108(i)-0T(b).
(g) Expiration date. This section expires on August 9, 2013.
PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
0
Par. 3. The authority citation for part 602 continues to read as
follows:
Authority: 26 U.S.C. 7805.
0
Par. 4. In Sec. 602.101, paragraph (b) is amended by adding the
following entry in numerical order to the table to read as follows:
Sec. 602.101 OMB Control numbers.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
CFR part or section where identified and described control No.
------------------------------------------------------------------------
* * * * *
1.108(i)-2T............................................. 1545-2147
* * * * *
------------------------------------------------------------------------
Steven T. Miller,
Deputy Commissioner for Services and Enforcement.
Approved: August 6, 2010.
Michael F. Mundaca,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2010-20058 Filed 8-11-10; 11:15 am]
BILLING CODE 4830-01-P