80_FR_10626 80 FR 10587 - Alternative Simplified Credit Election

80 FR 10587 - Alternative Simplified Credit Election

DEPARTMENT OF THE TREASURY
Internal Revenue Service

Federal Register Volume 80, Issue 39 (February 27, 2015)

Page Range10587-10590
FR Document2015-04111

This document contains final regulations relating to the election of the alternative simplified credit under section 41(c)(5) of the Internal Revenue Code (Code). The final regulations affect certain taxpayers claiming the credit under section 41.

Federal Register, Volume 80 Issue 39 (Friday, February 27, 2015)
[Federal Register Volume 80, Number 39 (Friday, February 27, 2015)]
[Rules and Regulations]
[Pages 10587-10590]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-04111]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 9712]
RIN 1545-BL78


Alternative Simplified Credit Election

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations and removal of temporary regulations.

-----------------------------------------------------------------------

SUMMARY: This document contains final regulations relating to the 
election of the alternative simplified credit under section 41(c)(5) of 
the Internal Revenue Code (Code). The final regulations affect certain 
taxpayers claiming the credit under section 41.

DATES: Effective Date: These regulations are effective on February 27, 
2015.
    Applicability Date: For dates of applicability, see Sec.  1.41-
9(d).

[[Page 10588]]


FOR FURTHER INFORMATION CONTACT: David Selig (202) 317-4137 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    This document amends 26 CFR part 1 to provide rules relating to the 
time and manner of electing the alternative simplified credit (ASC) 
under section 41(c)(5) of the Internal Revenue Code (Code).
    Section 41(a) provides an incremental tax credit for increasing 
research activities (research credit) based on a percentage of a 
taxpayer's qualified research expenses above a base amount. A taxpayer 
can apply the rules and credit rate percentages under section 41(a)(1) 
to calculate the credit (commonly referred to as the regular credit) or 
a taxpayer can make an election to apply the ASC rules and credit rate 
percentages under section 41(c)(5) to calculate the credit. Section 
41(c)(5)(C) provides that an ASC election under section 41(c)(5) 
applies to the taxable year for which it is made and all succeeding 
taxable years unless revoked with the consent of the Secretary.
    On June 10, 2011, the Treasury Department and the IRS published 
final regulations (TD 9528) (2011 Final Regulations) in the Federal 
Register (76 FR 33994) relating to the election and calculation of the 
ASC. Section 1.41-9(b)(2) provides that a taxpayer makes an election 
under section 41(c)(5) by completing the portion of Form 6765, ``Credit 
for Increasing Research Activities,'' (or successor form) relating to 
the ASC election, and attaching the completed form to the taxpayer's 
timely filed (including extensions) original return for the taxable 
year to which the election applies. Section 1.41-9(b)(2) also provides 
that a taxpayer may not make an election under section 41(c)(5) on an 
amended return and that an extension of time to make an election under 
section 41(c)(5) will not be granted under Sec.  301.9100-3.
    Following the publication of the 2011 Final Regulations, the 
Treasury Department and the IRS received requests to amend the 
regulations to allow taxpayers to make an ASC election on an amended 
return. The requests explained that the burden of substantiating 
expenditures and costs for the base period under the regular credit can 
be costly, time-consuming, and difficult, and suggested that taxpayers 
often need additional time to determine whether to claim the regular 
credit or the ASC.
    On June 3, 2014, the Treasury Department and the IRS published a 
notice of proposed rulemaking by cross-reference to temporary 
regulations (REG-133495-13) in the Federal Register (79 FR 31892), and 
final and temporary regulations (TD 9666) (the Temporary Regulations) 
in the Federal Register (79 FR 31863). The final regulations removed 
the rule in Sec.  1.41-9(b)(2) that prohibited a taxpayer from making 
an ASC election for a tax year on an amended return. In its place, the 
Temporary Regulations provided a rule allowing a taxpayer to make an 
ASC election for a tax year on an amended return if the taxpayer had 
not previously claimed a section 41 credit for that tax year on an 
original or amended return. In addition, the Temporary Regulations 
provided that a taxpayer that is a member of a controlled group in a 
tax year may not make an election under section 41(c)(5) for that tax 
year on an amended return if any member of the controlled group for 
that year claimed the research credit using a method other than the ASC 
on an original or amended return.
    Written and electronic comments responding to the proposed 
regulations were received. No requests for a public hearing were made 
and no public hearing was held. After consideration of all the 
comments, the proposed regulations are adopted as revised by this 
Treasury decision.

Summary of Comments and Explanation of Provisions

Interaction With Section 280C Elections

    A commenter requested clarification regarding whether a section 
280C(c)(3) election made for a taxable year on line 17 of Form 6765, 
Credit For Increasing Research Activities, where no amount of regular 
credit is claimed, will be viewed by the IRS as a claim of the section 
41(a)(1) credit and preclude an ASC election from being made on an 
amended return for that taxable year. Section 280(c)(3) allows a 
taxpayer to make an annual irrevocable election to claim a reduced 
research credit rather than reducing the section 174 deduction, as 
required by section 280(c)(1). A section 280C(c)(3) election must be 
made on an original return. If a taxpayer is undecided whether to claim 
the regular credit for a taxable year but wants to preserve the 
operative effect of the section 280C(c)(3) election for that taxable 
year, then the taxpayer will make the section 280C(c)(3) election on 
line 17 of Form 6765, but leave the remaining section of the form 
blank. A section 280C(c)(3) election on line 17 of Form 6765 made in a 
taxable year does not, in and of itself, constitute a credit claim 
under section 41(a)(1), and accordingly does not preclude a taxpayer 
from making an ASC election on an amended return for that taxable year.

Section 9100 Relief

    One commenter requested that the final regulations allow an 
extension of time to make an election under section 41(c)(5) under 
Sec.  301.9100-3. Under Sec.  301.9100-3(c), the Commissioner will 
grant a reasonable extension of time to make a regulatory election only 
when the interests of the Government will not be prejudiced by the 
granting of relief. Under Sec.  301.9100-3(c)(1)(ii), the interests of 
the Government are ordinarily prejudiced if the taxable year in which 
the regulatory election should have been made or any taxable years that 
would have been affected by the election had it been timely made are 
closed by the period of limitations on assessment under section 6501(a) 
before the taxpayer's receipt of a ruling granting relief under this 
section. Because the final regulations allow a taxpayer to amend its 
return to make the ASC election in a taxable year that is not closed by 
the period of limitations for assessment under section 6501(a) if no 
credit under section 41(a)(1) was claimed in the prior taxable year on 
an original or amended return, an extension of time under Sec.  
301.9100-3 to make the ASC election is not necessary during this 
period. An extension of time to make an ASC election in a taxable year 
closed by the period of limitations on assessment under section 6501(a) 
ordinarily prejudices the interests of the government. See section 
301.9100-3(c)(1)(ii). Accordingly, the final regulations retain the 
rule that an extension of time to make an election under section 
41(c)(5) will not be granted under Sec.  301.9100-3.

Period for Making an ASC Election

    One commenter requested that the final regulations provide that a 
taxpayer may make an ASC election for an earlier, closed tax year on a 
later year's return in which a research credit from that closed year is 
reported on a carryforward schedule, or actually used as a credit 
against tax, so long as no intervening amended return claiming a 
research credit for that tax year using a different method has been 
claimed. The Temporary Regulations only permitted a taxpayer to elect 
the ASC on an amended return for taxable years ending before June 3, 
2014, (the effective/applicability date of those regulations) if the 
taxpayer makes the election before the period of limitations for 
assessment of tax has expired for that year. The rule in the Temporary 
Regulations provided

[[Page 10589]]

a reasonable time period for taxpayers to determine whether or not to 
make an ASC election with respect to a prior, open tax year. To permit 
a taxpayer to make an ASC election for a tax year in which the period 
of limitations for assessment of tax has expired has the practical 
effect of permitting the taxpayer to make an ASC election on a return 
that cannot be amended. Therefore, these final regulations do not adopt 
this suggested modification.
    One commenter requested that these final regulations provide that 
an ASC election can be made on an amended return for a tax year so long 
as the period for making a refund claim under section 6511 has not 
expired for that tax year, even in cases where the statute of 
limitations on assessment under section 6501 is closed. These final 
regulations retain the rule of the Temporary Regulations that a 
taxpayer must make an ASC election on an amended return before the 
statute of limitations on assessment under section 6501(a) is closed. 
The general period under the statute of limitations on assessment under 
section 6501(a), which is three years after the tax return is filed, 
provides a reasonable time for taxpayers to file an ASC election on an 
amended return, and a reasonable time for the IRS to examine the 
amended return. This rule also preserves the integrity the of the rule 
in the final regulations providing that an extension of time to make an 
election under section 41(c)(5) will not be granted under Sec.  
301.9100-3. Under Sec.  301.9100-3, the interests of the government are 
ordinarily prejudiced if the taxable year in which a regulatory 
election should have been made or any taxable years that would have 
been affected by the election had it been timely made are closed by the 
period of limitations on assessment under section 6501(a) before the 
taxpayer's receipt of a ruling granting relief under Sec.  301.9100. 
This requirement is mitigated by the fact that the period of 
limitations on assessment may be extended by agreement of the IRS and 
the taxpayer. For clarity, the language found in the effective date of 
the Temporary Regulations referencing the period of limitations for 
assessment of tax is added to the text of the final regulations under 
Sec.  1.41-9(b)(2) relating to the time and manner of making the ASC 
election.

Controlled Group ASC Elections

    One commenter requested that the final regulations modify the rules 
for controlled group ASC elections under Sec.  1.41-9(b)(4), under 
which only the designated member of a controlled group may make or 
revoke an ASC election. Revising those rules is beyond the scope of 
these regulations. Therefore, the final regulations do not amend Sec.  
1.41-9(b)(4).

Modification of the Election Rule

    One commenter requested that these final regulations amend the rule 
in the Temporary Regulations that allows a taxpayer to make an ASC 
election for a tax year on an amended return only if the taxpayer has 
not previously claimed the section 41 credit on its original return or 
an amended return for that tax year to clarify that the previously 
claimed section 41 credit is determined under section 41(a)(1), and not 
under sections 41(a)(2) or (3). The commenter stated that the ASC is an 
alternative method to the regular credit under section 41(a)(1), and 
whether a taxpayer elects the ASC or claims the regular credit does not 
impact the determination of the credits allowable under sections 
41(a)(2) and 41(a)(3). This approach is consistent with the language of 
section 41(c)(5)(A) and Sec.  1.41-9(a), which specifically reference 
section 41(a)(1). Accordingly, the final regulations provide that a 
taxpayer may make an ASC election for a tax year on an amended return 
only if the taxpayer has not previously claimed the section 41(a)(1) 
credit on its original return or an amended return for that tax year.

Effect on Other Documents

    The Temporary Regulations are obsolete for taxable years beginning 
on or after February 27, 2015.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in Executive Order 12866, as 
supplemented by Executive Order 13563. Therefore, a regulatory 
assessment is not required. It also has been determined that section 
553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does 
not apply to these regulations. It is hereby certified that the 
collection of information in these regulations will not have a 
significant economic impact on a substantial number of small entities. 
Although a substantial number of small entities may make an ASC 
election on an amended return pursuant to these regulations, the 
economic impact of any collection burden on these entities relating to 
this election is minimal because the regulations will result in a 
benefit to taxpayers by providing additional time for taxpayer to 
calculate and elect the ASC. Accordingly, a regulatory flexibility 
analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is 
not required. 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 their impact on small 
business.

Drafting Information

    The principal author of these regulations is David Selig, 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 in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority: 26 U.S.C. 7805 * * *

    Section 1.41-9 also issued under 26 U.S.C. 41(c)(5)(C). * * *


0
Par. 2. Section 1.41-9 is amended by:
0
1. Revising paragraph (b)(2).
0
2. Adding a third and fourth sentence to paragraph (d).
    The revision and addition read as follows:


Sec.  1.41-9  Alternative simplified credit.

* * * * *
    (b) * * *
    (2) Time and manner of election. A taxpayer makes an election under 
section 41(c)(5) by completing the portion of Form 6765, ``Credit for 
Increasing Research Activities,'' (or successor form) relating to the 
election of the ASC, and attaching the completed form to the taxpayer's 
timely filed (including extensions) original return for the taxable 
year to which the election applies. A taxpayer may make an election 
under section 41(c)(5) for a tax year on an amended return, but only if 
the taxpayer has not previously claimed a section 41(a)(1) credit on 
its original return or an amended return for that tax year, and only if 
that tax year is not closed by the period of limitations on assessment 
under section 6501(a). An extension of time to make an election under 
section 41(c)(5) will not be granted under Sec.  301.9100-3 of this 
chapter. A taxpayer that is a member of a controlled group in a tax 
year may not make an election under section 41(c)(5) for that tax year 
on an amended return

[[Page 10590]]

if any member of the controlled group for that tax year previously 
claimed the research credit under section 41(a)(1) using a method other 
than the ASC on an original or amended return for that tax year. See 
paragraph (b)(4) of this section for additional rules concerning 
controlled groups. See also Sec.  1.41-6(b)(1) requiring that all 
members of the controlled group use the same method of computation.
* * * * *
    (d) Effective/applicability date. * * * Paragraph (b)(2) of this 
section applies to elections with respect to taxable years ending on or 
after February 27, 2015. For taxable years ending before February 27, 
2015, see Sec.  1.41-9T as contained in 26 CFR part 1, revised April 1, 
2015.


Sec.  1.41-9T  [Removed]

0
Par. 3. Section 1.41-9T is removed.

John Dalrymple,
Deputy Commissioner for Services and Enforcement.
    Approved: February 3, 2015.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2015-04111 Filed 2-26-15; 8:45 am]
BILLING CODE 4830-01-P



                                                              Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations                                              10587

                                            control number 0910–0437. The                             (i) The lot or batch within which a                 identifier (UDI) that appears on the
                                            collections of information in the UDI                   device was manufactured;                              device label or on the device package;
                                            rule have been approved under OMB                         (ii) The serial number of a specific                *     *     *     *    *
                                            control number 0910–0720.                               device;                                               ■ 6. Amend § 803.42 by revising
                                               The information collection provisions                  (iii) The expiration date of a specific             paragraph (c)(4) to read as follows:
                                            in the eMDR rule have been submitted                    device;
                                            to OMB for review as required by                          (iv) The date a specific device was                 § 803.42 If I am an importer, what
                                            section 3507(d) of the PRA (44 U.S.C.                   manufactured.                                         information must I submit in my individual
                                            3507(d)). Before the effective date of the                                                                    adverse event reports?
                                                                                                      (v) For an HCT/P regulated as a
                                            final rule, FDA will publish a notice in                                                                      *     *    *     *     *
                                                                                                    device, the distinct identification code
                                            the Federal Register announcing OMB’s                                                                           (c) * * *
                                                                                                    required by § 1271.290(c) of this
                                            decision to approve, modify, or                                                                                 (4) Model number, catalog number,
                                                                                                    chapter.
                                            disapprove the information collection                                                                         serial number, lot number, or other
                                            provisions in the final rule. An Agency                 *      *    *     *    *
                                                                                                                                                          identifying number; expiration date; and
                                            may not conduct or sponsor, and a                       ■ 3. Amend § 803.11 by revising                       unique device identifier (UDI) that
                                            person is not required to respond to, a                 paragraph (d) to read as follows:                     appears on the device label or on the
                                            collection of information unless it                                                                           device package;
                                            displays a currently valid OMB control                  § 803.11 What form should I use to submit
                                                                                                    reports of individual adverse events and              *     *    *     *     *
                                            number.                                                 where do I obtain these forms?                        ■ 7. Amend § 803.52 by revising
                                            List of Subjects in 21 CFR Part 803                     *      *   *      *     *                             paragraph (c)(4) to read as follows:
                                              Imports, Medical devices, Reporting                      (d) Form FDA 3500A is available on
                                                                                                                                                          § 803.52 If I am a manufacturer, what
                                            and recordkeeping requirements.                         the Internet at http://www.fda.gov/                   information must I submit in my individual
                                              Therefore under the Federal Food,                     medwatch/getforms.htm or from                         adverse event reports?
                                            Drug, and Cosmetic Act and under                        Division of International and Consumer
                                                                                                                                                          *     *    *     *    *
                                            authority delegated to the Commissioner                 Education, Center for Devices and
                                                                                                                                                            (c) * * *
                                            of Food and Drugs, 21 CFR part 803 as                   Radiological Health, Food and Drug
                                                                                                                                                            (4) Model number, catalog number,
                                            amended by the Medical Device                           Administration, 10903 New Hampshire
                                                                                                                                                          serial number, lot number, or other
                                            Reporting: Electronic Submission                        Ave., Bldg. 66, Rm. 4621, Silver Spring,
                                                                                                                                                          identifying number; expiration date; and
                                            Requirements final rule of February 14,                 MD 20993–0002, by email: DICE@
                                                                                                                                                          unique device identifier (UDI) that
                                            2014, 79 FR 8832, is further amended as                 fda.hhs.gov, FAX: 301–847–8149, or
                                                                                                                                                          appears on the device label or on the
                                            follows:                                                telephone: 800–638–2041.
                                                                                                                                                          device package;
                                                                                                    ■ 4. Amend § 803.32 by revising
                                            PART 803—MEDICAL DEVICE                                                                                       *     *    *     *    *
                                                                                                    paragraph (c)(4) to read as follows:
                                            REPORTING                                                                                                       Dated: February 20, 2015.
                                                                                                    § 803.32 If I am a user facility, what                Leslie Kux,
                                            ■ 1. The authority citation for 21 CFR                  information must I submit in my individual
                                                                                                                                                          Associate Commissioner for Policy.
                                            part 803 continues to read as follows:                  adverse event reports?
                                                                                                                                                          [FR Doc. 2015–03943 Filed 2–26–15; 8:45 am]
                                              Authority: 21 U.S.C. 352, 360, 360i, 360j,            *     *    *     *    *
                                                                                                                                                          BILLING CODE 4164–01–P
                                            371, 374.                                                 (c) * * *
                                            ■ 2. Amend § 803.3 by adding                              (4) Model number, catalog number,
                                            paragraphs (aa) and (bb) to read as                     serial number, lot number, or other
                                                                                                    identifying number; expiration date; and              DEPARTMENT OF THE TREASURY
                                            follows:
                                                                                                    unique device identifier (UDI) that
                                            § 803.3 How does FDA define the terms                   appears on the device label or on the                 Internal Revenue Service
                                            used in this part?                                      device package;
                                            *      *     *    *     *                                                                                     26 CFR Part 1
                                                                                                    *     *    *     *    *
                                               (aa) Human cell, tissue, or cellular or
                                                                                                    ■ 5. Amend § 803.33 by revising                       [TD 9712]
                                            tissue-based product (HCT/P) regulated
                                                                                                    paragraphs (a)(2) and (b)(7)(iv) to read as
                                            as a device means an HCT/P as defined                                                                         RIN 1545–BL78
                                                                                                    follows:
                                            in § 1271.3(d) of this chapter that does
                                            not meet the criteria in § 1271.10(a) and               § 803.33 If I am a user facility, what must           Alternative Simplified Credit Election
                                            that is also regulated as a device.                     I include when I submit an annual report?
                                               (bb) Unique device identifier (UDI)                                                                        AGENCY:  Internal Revenue Service (IRS),
                                                                                                    *      *     *    *     *                             Treasury.
                                            means an identifier that adequately                        (a) * * *
                                            identifies a device through its                                                                               ACTION: Final regulations and removal of
                                                                                                       (2) Division of International and
                                            distribution and use by meeting the                                                                           temporary regulations.
                                                                                                    Consumer Education, Center for Devices
                                            requirements of § 830.20 of this chapter.               and Radiological Health, Food and Drug
                                            A unique device identifier is composed                                                                        SUMMARY:   This document contains final
                                                                                                    Administration, 10903 New Hampshire                   regulations relating to the election of the
                                            of:                                                     Ave., Bldg. 66, Rm. 4621, Silver Spring,
                                               (1) A device identifier—a mandatory,                                                                       alternative simplified credit under
                                                                                                    MD 20993–0002, by email: DICE@                        section 41(c)(5) of the Internal Revenue
                                            fixed portion of a UDI that identifies the
                                                                                                    fda.hhs.gov, FAX: 301–847–8149, or                    Code (Code). The final regulations affect
                                            specific version or model of a device
tkelley on DSK3SPTVN1PROD with RULES




                                                                                                    telephone: 800–638–2041.                              certain taxpayers claiming the credit
                                            and the labeler of that device; and
                                               (2) A production identifier—a                        *      *     *    *     *                             under section 41.
                                            conditional, variable portion of a UDI                     (b) * * *                                          DATES: Effective Date: These regulations
                                            that identifies one or more of the                         (7) * * *                                          are effective on February 27, 2015.
                                            following when included on the label of                    (iv) Product model, catalog, serial,                 Applicability Date: For dates of
                                            the device:                                             and lot number and unique device                      applicability, see § 1.41–9(d).


                                       VerDate Sep<11>2014   16:12 Feb 26, 2015   Jkt 235001   PO 00000   Frm 00019   Fmt 4700   Sfmt 4700   E:\FR\FM\27FER1.SGM   27FER1


                                            10588             Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations

                                            FOR FURTHER INFORMATION CONTACT:                        notice of proposed rulemaking by cross-               and accordingly does not preclude a
                                            David Selig (202) 317–4137 (not a toll-                 reference to temporary regulations                    taxpayer from making an ASC election
                                            free number).                                           (REG–133495–13) in the Federal                        on an amended return for that taxable
                                            SUPPLEMENTARY INFORMATION:                              Register (79 FR 31892), and final and                 year.
                                                                                                    temporary regulations (TD 9666) (the                  Section 9100 Relief
                                            Background                                              Temporary Regulations) in the Federal
                                               This document amends 26 CFR part 1                   Register (79 FR 31863). The final                        One commenter requested that the
                                            to provide rules relating to the time and               regulations removed the rule in § 1.41–               final regulations allow an extension of
                                            manner of electing the alternative                      9(b)(2) that prohibited a taxpayer from               time to make an election under section
                                            simplified credit (ASC) under section                   making an ASC election for a tax year                 41(c)(5) under § 301.9100–3. Under
                                            41(c)(5) of the Internal Revenue Code                   on an amended return. In its place, the               § 301.9100–3(c), the Commissioner will
                                            (Code).                                                 Temporary Regulations provided a rule                 grant a reasonable extension of time to
                                               Section 41(a) provides an incremental                allowing a taxpayer to make an ASC                    make a regulatory election only when
                                            tax credit for increasing research                      election for a tax year on an amended                 the interests of the Government will not
                                            activities (research credit) based on a                 return if the taxpayer had not previously             be prejudiced by the granting of relief.
                                            percentage of a taxpayer’s qualified                    claimed a section 41 credit for that tax              Under § 301.9100–3(c)(1)(ii), the
                                            research expenses above a base amount.                  year on an original or amended return.                interests of the Government are
                                            A taxpayer can apply the rules and                      In addition, the Temporary Regulations                ordinarily prejudiced if the taxable year
                                            credit rate percentages under section                   provided that a taxpayer that is a                    in which the regulatory election should
                                            41(a)(1) to calculate the credit                        member of a controlled group in a tax                 have been made or any taxable years
                                            (commonly referred to as the regular                    year may not make an election under                   that would have been affected by the
                                            credit) or a taxpayer can make an                       section 41(c)(5) for that tax year on an              election had it been timely made are
                                            election to apply the ASC rules and                     amended return if any member of the                   closed by the period of limitations on
                                            credit rate percentages under section                   controlled group for that year claimed                assessment under section 6501(a) before
                                            41(c)(5) to calculate the credit. Section               the research credit using a method other              the taxpayer’s receipt of a ruling
                                            41(c)(5)(C) provides that an ASC                        than the ASC on an original or amended                granting relief under this section.
                                            election under section 41(c)(5) applies                 return.                                               Because the final regulations allow a
                                            to the taxable year for which it is made                   Written and electronic comments                    taxpayer to amend its return to make the
                                            and all succeeding taxable years unless                 responding to the proposed regulations                ASC election in a taxable year that is not
                                            revoked with the consent of the                         were received. No requests for a public               closed by the period of limitations for
                                            Secretary.                                              hearing were made and no public                       assessment under section 6501(a) if no
                                               On June 10, 2011, the Treasury                       hearing was held. After consideration of              credit under section 41(a)(1) was
                                            Department and the IRS published final                  all the comments, the proposed                        claimed in the prior taxable year on an
                                            regulations (TD 9528) (2011 Final                       regulations are adopted as revised by                 original or amended return, an
                                            Regulations) in the Federal Register (76                this Treasury decision.                               extension of time under § 301.9100–3 to
                                            FR 33994) relating to the election and                                                                        make the ASC election is not necessary
                                            calculation of the ASC. Section 1.41–                   Summary of Comments and                               during this period. An extension of time
                                            9(b)(2) provides that a taxpayer makes                  Explanation of Provisions                             to make an ASC election in a taxable
                                            an election under section 41(c)(5) by                   Interaction With Section 280C Elections               year closed by the period of limitations
                                            completing the portion of Form 6765,                                                                          on assessment under section 6501(a)
                                            ‘‘Credit for Increasing Research                           A commenter requested clarification                ordinarily prejudices the interests of the
                                            Activities,’’ (or successor form) relating              regarding whether a section 280C(c)(3)                government. See section 301.9100–
                                            to the ASC election, and attaching the                  election made for a taxable year on line              3(c)(1)(ii). Accordingly, the final
                                            completed form to the taxpayer’s timely                 17 of Form 6765, Credit For Increasing                regulations retain the rule that an
                                            filed (including extensions) original                   Research Activities, where no amount of               extension of time to make an election
                                            return for the taxable year to which the                regular credit is claimed, will be viewed             under section 41(c)(5) will not be
                                            election applies. Section 1.41–9(b)(2)                  by the IRS as a claim of the section                  granted under § 301.9100–3.
                                            also provides that a taxpayer may not                   41(a)(1) credit and preclude an ASC
                                                                                                    election from being made on an                        Period for Making an ASC Election
                                            make an election under section 41(c)(5)
                                            on an amended return and that an                        amended return for that taxable year.                    One commenter requested that the
                                            extension of time to make an election                   Section 280(c)(3) allows a taxpayer to                final regulations provide that a taxpayer
                                            under section 41(c)(5) will not be                      make an annual irrevocable election to                may make an ASC election for an
                                            granted under § 301.9100–3.                             claim a reduced research credit rather                earlier, closed tax year on a later year’s
                                               Following the publication of the 2011                than reducing the section 174                         return in which a research credit from
                                            Final Regulations, the Treasury                         deduction, as required by section                     that closed year is reported on a
                                            Department and the IRS received                         280(c)(1). A section 280C(c)(3) election              carryforward schedule, or actually used
                                            requests to amend the regulations to                    must be made on an original return. If                as a credit against tax, so long as no
                                            allow taxpayers to make an ASC                          a taxpayer is undecided whether to                    intervening amended return claiming a
                                            election on an amended return. The                      claim the regular credit for a taxable                research credit for that tax year using a
                                            requests explained that the burden of                   year but wants to preserve the operative              different method has been claimed. The
                                            substantiating expenditures and costs                   effect of the section 280C(c)(3) election             Temporary Regulations only permitted a
                                            for the base period under the regular                   for that taxable year, then the taxpayer              taxpayer to elect the ASC on an
                                            credit can be costly, time-consuming,                   will make the section 280C(c)(3)                      amended return for taxable years ending
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                                            and difficult, and suggested that                       election on line 17 of Form 6765, but                 before June 3, 2014, (the effective/
                                            taxpayers often need additional time to                 leave the remaining section of the form               applicability date of those regulations) if
                                            determine whether to claim the regular                  blank. A section 280C(c)(3) election on               the taxpayer makes the election before
                                            credit or the ASC.                                      line 17 of Form 6765 made in a taxable                the period of limitations for assessment
                                               On June 3, 2014, the Treasury                        year does not, in and of itself, constitute           of tax has expired for that year. The rule
                                            Department and the IRS published a                      a credit claim under section 41(a)(1),                in the Temporary Regulations provided


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                                                              Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations                                            10589

                                            a reasonable time period for taxpayers to               election. Revising those rules is beyond              not required. Pursuant to section 7805(f)
                                            determine whether or not to make an                     the scope of these regulations.                       of the Code, these regulations have been
                                            ASC election with respect to a prior,                   Therefore, the final regulations do not               submitted to the Chief Counsel for
                                            open tax year. To permit a taxpayer to                  amend § 1.41–9(b)(4).                                 Advocacy of the Small Business
                                            make an ASC election for a tax year in                                                                        Administration for comment on their
                                                                                                    Modification of the Election Rule
                                            which the period of limitations for                                                                           impact on small business.
                                            assessment of tax has expired has the                      One commenter requested that these
                                            practical effect of permitting the                      final regulations amend the rule in the               Drafting Information
                                            taxpayer to make an ASC election on a                   Temporary Regulations that allows a                     The principal author of these
                                            return that cannot be amended.                          taxpayer to make an ASC election for a                regulations is David Selig, Office of the
                                            Therefore, these final regulations do not               tax year on an amended return only if                 Associate Chief Counsel (Passthroughs
                                            adopt this suggested modification.                      the taxpayer has not previously claimed               and Special Industries). However, other
                                               One commenter requested that these                   the section 41 credit on its original                 personnel from the IRS and the Treasury
                                            final regulations provide that an ASC                   return or an amended return for that tax              Department participated in their
                                            election can be made on an amended                      year to clarify that the previously                   development.
                                            return for a tax year so long as the                    claimed section 41 credit is determined
                                                                                                    under section 41(a)(1), and not under                 List of Subjects in 26 CFR Part 1
                                            period for making a refund claim under
                                            section 6511 has not expired for that tax               sections 41(a)(2) or (3). The commenter                 Income taxes, Reporting and
                                            year, even in cases where the statute of                stated that the ASC is an alternative                 recordkeeping requirements.
                                            limitations on assessment under section                 method to the regular credit under
                                                                                                                                                          Adoption of Amendments to the
                                            6501 is closed. These final regulations                 section 41(a)(1), and whether a taxpayer
                                                                                                                                                          Regulations
                                            retain the rule of the Temporary                        elects the ASC or claims the regular
                                            Regulations that a taxpayer must make                   credit does not impact the                              Accordingly, 26 CFR part 1 is
                                            an ASC election on an amended return                    determination of the credits allowable                amended as follows:
                                            before the statute of limitations on                    under sections 41(a)(2) and 41(a)(3).
                                            assessment under section 6501(a) is                     This approach is consistent with the                  PART 1—INCOME TAXES
                                            closed. The general period under the                    language of section 41(c)(5)(A) and                   ■ Paragraph 1. The authority citation
                                            statute of limitations on assessment                    § 1.41–9(a), which specifically reference             for part 1 continues to read in part as
                                            under section 6501(a), which is three                   section 41(a)(1). Accordingly, the final              follows:
                                            years after the tax return is filed,                    regulations provide that a taxpayer may
                                            provides a reasonable time for taxpayers                make an ASC election for a tax year on                    Authority: 26 U.S.C. 7805 * * *
                                            to file an ASC election on an amended                   an amended return only if the taxpayer                  Section 1.41–9 also issued under 26
                                            return, and a reasonable time for the IRS               has not previously claimed the section                U.S.C. 41(c)(5)(C). * * *
                                            to examine the amended return. This                     41(a)(1) credit on its original return or             ■ Par. 2. Section 1.41–9 is amended by:
                                            rule also preserves the integrity the of                an amended return for that tax year.                  ■ 1. Revising paragraph (b)(2).
                                            the rule in the final regulations                                                                             ■ 2. Adding a third and fourth sentence
                                                                                                    Effect on Other Documents
                                            providing that an extension of time to                                                                        to paragraph (d).
                                            make an election under section 41(c)(5)                   The Temporary Regulations are                         The revision and addition read as
                                            will not be granted under § 301.9100–3.                 obsolete for taxable years beginning on               follows:
                                            Under § 301.9100–3, the interests of the                or after February 27, 2015.
                                            government are ordinarily prejudiced if                                                                       § 1.41–9   Alternative simplified credit.
                                                                                                    Special Analyses
                                            the taxable year in which a regulatory                                                                        *      *    *     *     *
                                            election should have been made or any                      It has been determined that this                      (b) * * *
                                            taxable years that would have been                      Treasury decision is not a significant                   (2) Time and manner of election. A
                                            affected by the election had it been                    regulatory action as defined in                       taxpayer makes an election under
                                            timely made are closed by the period of                 Executive Order 12866, as                             section 41(c)(5) by completing the
                                            limitations on assessment under section                 supplemented by Executive Order                       portion of Form 6765, ‘‘Credit for
                                            6501(a) before the taxpayer’s receipt of                13563. Therefore, a regulatory                        Increasing Research Activities,’’ (or
                                            a ruling granting relief under                          assessment is not required. It also has               successor form) relating to the election
                                            § 301.9100. This requirement is                         been determined that section 553(b) of                of the ASC, and attaching the completed
                                            mitigated by the fact that the period of                the Administrative Procedure Act (5                   form to the taxpayer’s timely filed
                                            limitations on assessment may be                        U.S.C. chapter 5) does not apply to these             (including extensions) original return
                                            extended by agreement of the IRS and                    regulations. It is hereby certified that the          for the taxable year to which the
                                            the taxpayer. For clarity, the language                 collection of information in these                    election applies. A taxpayer may make
                                            found in the effective date of the                      regulations will not have a significant               an election under section 41(c)(5) for a
                                            Temporary Regulations referencing the                   economic impact on a substantial                      tax year on an amended return, but only
                                            period of limitations for assessment of                 number of small entities. Although a                  if the taxpayer has not previously
                                            tax is added to the text of the final                   substantial number of small entities may              claimed a section 41(a)(1) credit on its
                                            regulations under § 1.41–9(b)(2) relating               make an ASC election on an amended                    original return or an amended return for
                                            to the time and manner of making the                    return pursuant to these regulations, the             that tax year, and only if that tax year
                                            ASC election.                                           economic impact of any collection                     is not closed by the period of limitations
                                                                                                    burden on these entities relating to this             on assessment under section 6501(a).
                                            Controlled Group ASC Elections                          election is minimal because the                       An extension of time to make an
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                                               One commenter requested that the                     regulations will result in a benefit to               election under section 41(c)(5) will not
                                            final regulations modify the rules for                  taxpayers by providing additional time                be granted under § 301.9100–3 of this
                                            controlled group ASC elections under                    for taxpayer to calculate and elect the               chapter. A taxpayer that is a member of
                                            § 1.41–9(b)(4), under which only the                    ASC. Accordingly, a regulatory                        a controlled group in a tax year may not
                                            designated member of a controlled                       flexibility analysis under the Regulatory             make an election under section 41(c)(5)
                                            group may make or revoke an ASC                         Flexibility Act (5 U.S.C. chapter 6) is               for that tax year on an amended return


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                                            10590             Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations

                                            if any member of the controlled group                   Room W12–140 on the ground floor of                   CFR 117.739(n), pertaining to the former
                                            for that tax year previously claimed the                the Department of Transportation West                 drawbridge.
                                            research credit under section 41(a)(1)                  Building, 1200 New Jersey Avenue SE.,                   The purpose of this rule is to remove
                                            using a method other than the ASC on                    Washington, DC 20590, between 9 a.m.                  paragraph 33 CFR 117.739(n), that refers
                                            an original or amended return for that                  and 5 p.m., Monday through Friday,                    to the Route 3 Bridge at mile 11.8, from
                                            tax year. See paragraph (b)(4) of this                  except Federal holidays.                              the Code of Federal Regulations since it
                                            section for additional rules concerning                 FOR FURTHER INFORMATION CONTACT: If                   governs a bridge that is no longer able
                                            controlled groups. See also § 1.41–                     you have questions on this rule, call or              to be opened.
                                            6(b)(1) requiring that all members of the               email Mr. Joe Arca, Project Officer, First            C. Discussion of Rule
                                            controlled group use the same method                    Coast Guard District Bridge Program,
                                            of computation.                                         telephone 212–514–4336, email                            The Coast Guard is changing the
                                            *      *     *    *     *                               joe.m.arca@uscg.mil. If you have                      regulation in 33 CFR 117.739 by
                                               (d) Effective/applicability date. * * *              questions on viewing the docket, call                 removing restrictions and the regulatory
                                            Paragraph (b)(2) of this section applies                Cheryl Collins, Program Manager,                      burden related to the draw operations
                                            to elections with respect to taxable years              Docket Operations, telephone 202–366–                 for this bridge that is no longer a
                                            ending on or after February 27, 2015.                   9826.                                                 drawbridge. The change removes
                                            For taxable years ending before                                                                               paragraph 117.739(n) of the regulation
                                                                                                    SUPPLEMENTARY INFORMATION:                            which governs the Route 3 Bridge and
                                            February 27, 2015, see § 1.41–9T as
                                            contained in 26 CFR part 1, revised                     A. Regulatory History and Information                 redesignates (o) through (t) as (n)
                                            April 1, 2015.                                                                                                through (s). This Final Rule seeks to
                                                                                                       The Coast Guard is issuing this final
                                                                                                                                                          update the Code of Federal Regulations
                                                                                                    rule without prior notice and
                                            § 1.41–9T    [Removed]                                                                                        by removing language that governs the
                                                                                                    opportunity to comment pursuant to
                                            ■   Par. 3. Section 1.41–9T is removed.                                                                       operation of the Route 3 Bridge, which
                                                                                                    authority under section 4(a) of the
                                                                                                                                                          in fact no longer is a drawbridge. This
                                            John Dalrymple,                                         Administrative Procedure Act (APA) (5
                                                                                                                                                          change does not affect waterway or land
                                            Deputy Commissioner for Services and                    U.S.C. 553(b)). This provision
                                                                                                                                                          traffic. This change does not affect nor
                                            Enforcement.                                            authorizes an agency to issue a rule
                                                                                                                                                          does it alter the operating schedules in
                                              Approved: February 3, 2015.                           without prior notice and opportunity to
                                                                                                                                                          33 CFR 117.739 that govern the
                                            Mark J. Mazur,                                          comment when the agency for good
                                                                                                                                                          remaining active drawbridges on the
                                                                                                    cause finds that those procedures are
                                            Assistant Secretary of the Treasury (Tax                                                                      Passaic River except to redesignate these
                                            Policy).                                                ‘‘impracticable, unnecessary, or contrary
                                                                                                                                                          bridges.
                                            [FR Doc. 2015–04111 Filed 2–26–15; 8:45 am]
                                                                                                    to the public interest.’’ Under 5 U.S.C.
                                                                                                    553(b), the Coast Guard finds that good               D. Regulatory Analyses
                                            BILLING CODE 4830–01–P
                                                                                                    cause exists for not publishing a notice                We developed this rule after
                                                                                                    of proposed rulemaking (NPRM) with                    considering numerous statutes and
                                                                                                    respect to this rule because the Route 3              executive orders related to rulemaking.
                                            DEPARTMENT OF HOMELAND                                  Bridge, that once required draw
                                            SECURITY                                                                                                      Below we summarize our analyses
                                                                                                    operations in 33 CFR 117.739(n), was                  based on these statutes or executive
                                            Coast Guard                                             converted to a fixed bridge in October                orders.
                                                                                                    2010. Therefore, the regulation is no
                                                                                                    longer applicable and shall be removed                1. Regulatory Planning and Review
                                            33 CFR Part 117
                                                                                                    from publication. It is unnecessary to                   This rule is not a significant
                                            [Docket No. USCG–2014–1070]                             publish an NPRM because this                          regulatory action under section 3(f) of
                                            RIN 1625–AA09                                           regulatory action does not purport to                 Executive Order 12866, Regulatory
                                                                                                    place any restrictions on mariners but                Planning and Review, as supplemented
                                            Drawbridge Operation Regulation;                        rather removes a restriction that has no              by Executive Order 13563, Improving
                                            Passaic River, Rutherford, NJ                           further use or value.                                 Regulation and Regulatory Review, and
                                                                                                       Under 5 U.S.C. 553(d)(3), the Coast                does not require an assessment of
                                            AGENCY:    Coast Guard, DHS.                            Guard finds that good cause exists for                potential costs and benefits under
                                            ACTION:   Final rule.                                   making this rule effective in less than 30            section 6(a)(3) of Order 12866 or under
                                                                                                    days after publication in the Federal                 section 1 of Executive Order 13563. The
                                            SUMMARY:   The Coast Guard is removing                  Register. The bridge has been a fixed
                                            the existing drawbridge operation                                                                             Office of Management and Budget has
                                                                                                    bridge for 4 years and this rule merely               not reviewed it under those Orders.
                                            regulation for the drawbridge across the                requires an administrative change to the                 The Coast Guard does not consider
                                            Passaic River, mile 11.8, at Rutherford,                Federal Register, in order to omit a                  this rule to be ‘‘significant’’ under that
                                            New Jersey. The drawbridge was                          regulatory requirement that is no longer              Order because it is an administrative
                                            converted to a fixed bridge in October                  applicable or necessary.                              change and does not affect the way
                                            2010, and the operating regulation is no
                                                                                                    B. Basis and Purpose                                  vessels operate on the waterway.
                                            longer applicable or necessary.
                                            DATES: This rule is effective February                     The Route 3 Bridge across the Passaic              2. Impact on Small Entities
                                            27, 2015.                                               River, mile 11.8, was converted to a                     The Regulatory Flexibility Act of 1980
                                            ADDRESSES: The docket for this final                    fixed bridge in 2010. It has come to the              (RFA), 5 U.S.C. 601–612, as amended,
                                            rule, [USCG–2014–1070] is available at                  attention of the Coast Guard that the                 requires federal agencies to consider the
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                                            http://www.regulations.gov. Type the                    governing regulation for this drawbridge              potential impact of regulations on small
                                            docket number in the ‘‘SEARCH’’ box                     was never removed subsequent to the                   entities during rulemaking. The term
                                            and click ‘‘SEARCH.’’ Click on Open                     conversion to a fixed bridge. The                     ‘‘small entities’’ comprises small
                                            Docket Folder on the line associated                    conversion of this drawbridge                         businesses, not-for-profit organizations
                                            with this final rule. You may also visit                necessitates the removal of the                       that are independently owned and
                                            the Docket Management Facility in                       drawbridge operation regulation, 33                   operated and are not dominant in their


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Document Created: 2015-12-18 13:14:53
Document Modified: 2015-12-18 13:14:53
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal regulations and removal of temporary regulations.
ContactDavid Selig (202) 317-4137 (not a toll-free number).
FR Citation80 FR 10587 
RIN Number1545-BL78
CFR AssociatedIncome Taxes and Reporting and Recordkeeping Requirements

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