80 FR 51939 - Allocation of W-2 Wages in a Short Taxable Year and in an Acquisition or Disposition
DEPARTMENT OF THE TREASURY
Internal Revenue Service Federal Register Volume 80, Issue 166 (August 27, 2015)
Internal Revenue Service
Federal Register Volume 80, Issue 166 (August 27, 2015)
| Page Range | 51939-51941 | |
| FR Document | 2015-20770 |
[Federal Register Volume 80, Number 166 (Thursday, August 27, 2015)] [Rules and Regulations] [Pages 51939-51941] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-20770] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9731] RIN 1545-BM11 Allocation of W-2 Wages in a Short Taxable Year and in an Acquisition or Disposition AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final and temporary regulations. ----------------------------------------------------------------------- SUMMARY: This document contains final and temporary regulations relating to the allocation of W-2 wages for purposes of the W-2 wage limitation on the amount of a taxpayer's deduction related to domestic production activities. Specifically, the temporary regulations provide guidance on: the allocation of W-2 wages paid by two or more taxpayers that are employers of the same employees during a calendar year; and the determination of W-2 wages if the taxpayer has a short taxable year. The text of the temporary regulations [[Page 51940]] also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking (REG-136459-09) on this subject in the Proposed Rules section in this issue of the Federal Register. DATES: Effective Date: These regulations are effective on August 27, 2015. Applicability Date: For dates of applicability, see Sec. 1.199- 8T(i)(10). FOR FURTHER INFORMATION CONTACT: James A. Holmes 202-317-4137 (not a toll free call). SUPPLEMENTARY INFORMATION: Background This document contains amendments to the Income Tax Regulations (26 CFR part 1) under section 199(b) of the Internal Revenue Code (Code). Section 199(b) was enacted by the American Jobs Creation Act of 2004 (Pub. L. 108-357, 118 Stat. 1418 (2004)). Subsequent amendments to section 199(b) were made by the Gulf Opportunity Zone Act of 2005 (Pub. L. 109-135, 119 Stat. 25 (2005)), the Tax Increase Prevention and Reconciliation Act of 2005 (Pub. L. 109-222, 120 Stat. 345 (2005)), the Tax Extenders and Alternative Minimum Tax Relief Act of 2008 (Pub. L. 110-343, 122 Stat 3765 (2008)), and the Tax Increase Prevention Act of 2014 (Pub. L. 113-295, 128 Stat. 4010 (2014)). Under section 199(b)(1), the amount of the deduction allowable under section 199(a) for any taxable year shall not exceed 50 percent of the W-2 wages of the taxpayer for the taxable year. Section 199(b)(2)(A) generally defines W-2 wages, with respect to any person for any taxable year of such person, as the sum of amounts described in section 6051(a)(3) and (8) paid by such person with respect to employment of employees by such person during the calendar year ending during such taxable year. Section 199(b)(3), after its amendment by section 219(b) of the Tax Increase Prevention Act of 2014, provides that the Secretary shall provide for the application of section 199(b) in cases of a short taxable year or where the taxpayer acquires, or disposes of, the major portion of a trade or business, or the major portion of a separate unit of a trade or business during the taxable year. Section 219(d) of the Tax Increase Prevention Act of 2014 provides that the amendments made by section 219 shall take effect as if included in the provision of the American Jobs Creation Act of 2004 to which they relate. Section 1.199-2(c) provides the current rule for acquisitions and dispositions. Section 1.199-2(c) currently provides that if a taxpayer (a successor) acquires a trade or business, the major portion of a trade or business, or the major portion of a separate unit of a trade or business from another taxpayer (a predecessor), then, for purposes of computing the respective section 199 deduction of the successor and of the predecessor, the W-2 wages paid for that calendar year shall be allocated between the successor and the predecessor based on whether the wages are for employment by the successor or for employment by the predecessor. Thus, the W-2 wages are allocated based on whether the wages are for employment for a period during which the employee was employed by the predecessor or for employment for a period during which the employee was employed by the successor. The W-2 wage allocation under the current regulations is made regardless of which permissible method is used by a predecessor or a successor for reporting wages on Form W-2, as provided in Rev. Proc. 2004-53 (2004-2 CB 320) (see Sec. 601.601(d)(2) of this chapter). Section 1.199-2(e)(1) provides that under section 199(b)(2), the term W-2 wages means, with respect to any person for any taxable year of such person, the sum of the amounts described in section 6051(a)(3) and (8) paid by such person with respect to employment of employees by such person during the calendar year ending during such taxable year. Rev. Proc. 2006-47 (2006-2 CB 869) (see Sec. 601.601(d)(2)) is the currently effective guidance providing methods of calculating W-2 wages and related rules for purposes of section 199(b). Section 6.02(A) of Rev. Proc. 2006-47 provides that the amount of W-2 wages for a taxpayer with a short taxable year includes only those wages subject to Federal income tax withholding that are reported on Form W-2, ``Wage and Tax Statement,'' for the calendar year ending with or within that short taxable year. In certain situations, a short taxable year may not include a calendar year ending within such short taxable year. Section 1.199-2(c) of the current regulations does not address these situations and does not reflect the amendment made by the Tax Increase Prevention Act of 2014. In order to provide guidance on the application of section 199(b)(3) to a short taxable year that does not include a calendar year ending within the short taxable year, the IRS and the Treasury Department are revising the regulations to address these situations. To provide immediate effect, the IRS and the Treasury Department are issuing these regulations as temporary regulations. These temporary regulations apply solely for purposes of section 199. Explanation of Provisions The final regulations issued in connection with these temporary regulations remove the current language of Sec. 1.199-2(c) and replace it with a cross reference to these temporary regulations. In the place of the current language, these temporary regulations provide rules for calculating W-2 wages for purposes of the W-2 wage limitation in the case of an acquisition or disposition of a trade or business, the major portion of a trade or business, the major portion of a separate unit of a trade or business during the taxable year, or a short taxable year. Specifically, these temporary regulations provide a rule for acquisitions and dispositions if one or more taxpayers may be considered the employer of the employees of the acquired or disposed of trade or business during that calendar year. In that case, the temporary regulations provide that the W-2 wages paid during the calendar year to employees of the acquired or disposed of trade or business are allocated between each taxpayer based on the period during which the employees of the acquired or disposed of trade or business were employed by the taxpayer. These temporary regulations also provide a rule to apply in the case of a short taxable year in which there is no calendar year ending within such short taxable year (short-taxable-year rule). Wages paid by a taxpayer during the short taxable year to employees for employment by such taxpayer are treated as W-2 wages for such short taxable year for purposes of section 199(b)(1). These temporary regulations also describe types of transactions that are considered either an acquisition or disposition for purposes of section 199(b)(3). Specifically, these temporary regulations provide that an acquisition or disposition includes an incorporation, a formation, a liquidation, a reorganization, or a purchase or sale of assets. These regulations also contain cross references to Sec. 1.199- 2(a), (b), (d), and (e). The IRS and the Treasury Department observe that these rules continue to apply to taxpayers that use these temporary regulations. For example, the non-duplication rule of Sec. 1.199-2(d) applies such that a taxpayer that includes wages as W-2 wages based on these temporary regulations, including by filing an amended return for a short taxable year, may not treat those wages as W-2 wages for any other taxable year. Also, wages qualifying as W-2 wages of one taxpayer [[Page 51941]] based on these temporary regulations cannot be treated as W-2 wages of another taxpayer. The temporary regulations are applicable for taxable years beginning on or after August 27, 2015 and expire on August 24, 2018. A taxpayer may apply Sec. 1.199-2T(c) to taxable years for which the limitations for assessment of tax has not expired beginning before August 27, 2015. Special Analyses Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866 of, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 533(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the 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 their impact on small business. Drafting Information The principal author of these regulations is James A. Holmes, Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Adoption of Amendment to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1--INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding entries in numerical order to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.199-2T also issued under 26 U.S.C. 199(b)(3). * * * * * Par. 2. Section 1.199-0 is amended by revising the entry for Sec. 1.199-2(c) and adding entries for Sec. Sec. 1.199-2(c)(1), (c)(2), and (c)(3), and 1.199-8(i)(10) to read as follows: Sec. 1.199-0 Table of contents. * * * * * Sec. 1.199-2 Wage limitation. * * * * * (c) Acquisitions, dispositions, and short taxable years. (1) Allocation of wages between more than one taxpayer. (2) Short taxable years. (3) Operating rules. (i) Acquisition or disposition. (ii) Trade or business. * * * * * Sec. 1.199-8 Other rules. * * * * * (i) * * * (10) Acquisitions, dispositions, and short taxable years. * * * * * Par. 3. Section 1.199-2 is amended by revising paragraph (c) to read as follows: Sec. 1.199-2 Wage limitation. * * * * * (c) [Reserved]. For further guidance see Sec. 1.199-2T(c). * * * * * Par. 4. Section 1.199-2T is added to read as follows: Sec. 1.199-2T Wage limitation (temporary). (a) through (b) [Reserved]. For further guidance, see Sec. 1.199- 2(a) through (b). (c) Acquisitions, dispositions, and short taxable years--(1) Allocation of wages between more than one taxpayer. For purposes of computing the section 199 deduction of a taxpayer, in the case of an acquisition or disposition (as defined in paragraph (c)(3)(i) of this section) of a trade or business (as defined in paragraph (c)(3)(ii) of this section) that causes more than one taxpayer to be an employer of the employees of the acquired or disposed of trade or business during the calendar year, the W-2 wages of the taxpayer for the calendar year of the acquisition or disposition are allocated between each taxpayer based on the period during which the employees of the acquired or disposed of trade or business were employed by the taxpayer, regardless of which permissible method is used for reporting W-2 wages on Form W- 2, ``Wage and Tax Statement.'' For this purpose, the period of employment is determined consistently with the principles for determining whether an individual is an employee described in Sec. 1.199-2(a)(1). (2) Short taxable years. If a taxpayer has a short taxable year that does not contain a calendar year ending during such short taxable year, wages paid to employees for employment by such taxpayer during the short taxable year are treated as W-2 wages for such short taxable year for purposes of Sec. 1.199-2(a)(1) (if the wages would otherwise meet the requirements to be W-2 wages under Sec. 1.199-2 but for the requirement that a calendar year must end during the short taxable year). (3) Operating rules--(i) Acquisition or disposition. For purposes of this paragraph (c), the term acquisition or disposition includes an incorporation, a formation, a liquidation, a reorganization, or a purchase or sale of assets. (ii) Trade or business. For purposes of this paragraph (c), the term trade or business includes a trade or business, the major portion of a trade or business, or the major portion of a separate unit of a trade or business. (iii) Application to section 199 only. The provisions of this section apply solely for purposes of section 199 of the Internal Revenue Code. (d) through (e) [Reserved]. For further guidance, see Sec. 1.199- 2(d) through (e). Par. 5. Section 1.199-8 is amended by adding paragraph (i)(10) to read as follows: Sec. 1.199-8 Other rules. * * * * * (i) * * * (10) Acquisitions, dispositions, and short taxable years. [Reserved]. For further guidance, see Sec. 1.199-8T(i)(10). Par. 6. Section 1.199-8T is added to read as follows: Sec. 1.199-8T Other rules (temporary). (a) through (h) [Reserved]. For further guidance, see Sec. 1.199- 8(a) through (h). (i) Effective/applicability dates. (1) through (9) [Reserved]. For further guidance, see Sec. 1.199-8(i)(1) through (9). (10) Acquisitions, dispositions, and short taxable years. Section 1.199-2T(c) is applicable for taxable years beginning on or after August 27, 2015. A taxpayer may apply Sec. 1.199-2T(c) to taxable years for which the limitations for assessment of tax has not expired beginning before August 27, 2015. (11) Expiration date. The applicability of Sec. 1.199-2T(c) expires on August 24, 2018. John M. Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: May 29, 2015. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. 2015-20770 Filed 8-26-15; 8:45 am] BILLING CODE 4830-01-P
![Federal Register / Vol. 80, No. 166 / Thursday, August 27, 2015 / Rules and Regulations 51939
TABLE 1—IDENTIFIED RISKS AND REQUIRED MITIGATIONS—Continued
Identified risks Required mitigations
Labeling.
A false negative test result for an individual may lead to a potential The FDA document entitled ‘‘Class II Special Controls Guideline: Toxin
delay in treatment. Gene Amplification Assays for the Detection of Clostridium difficile,’’
which addresses this risk through:
Specific Device Description Requirements.
Performance Studies.
Labeling.
Failure of the test to be used or perform properly ................................... The FDA document entitled ‘‘Class II Special Controls Guideline: Toxin
Gene Amplification Assays for the Detection of Clostridium difficile,’’
which addresses this risk through:
Labeling.
Failure to properly interpret the test results ............................................. The FDA document entitled ‘‘Class II Special Controls Guideline: Toxin
Gene Amplification Assays for the Detection of Clostridium difficile,’’
which addresses this risk through:
Labeling.
FDA believes that the measures set Office of Management and Budget (b) Classification. Class II (special
forth in the special controls guideline (OMB) under the Paperwork Reduction controls). The special controls are set
entitled ‘‘Class II Special Controls Act of 1995 (44 U.S.C. 3501–3520). The forth in FDA’s guideline document
Guideline: Toxin Gene Amplification collections of information in part 807, entitled: ‘‘Class II Special Controls
Assays for the Detection of Clostridium subpart E, regarding premarket Guideline: Toxin Gene Amplification
difficile’’ are necessary, in addition to notification submissions have been Assays for the Detection of Clostridium
general controls, to mitigate the risks to approved under OMB control number difficile; Guideline for Industry and
health described in table 1. 0910–0120; the collections of Food and Drug Administration Staff.’’
A C. difficile toxin gene amplification information in 21 CFR part 820 have See § 866.1(e) for information on
assay is a prescription device. Section been approved under OMB control obtaining this document.
510(m) of the FD&C Act provides that number 0910–0073; and the collections Dated: August 21, 2015.
FDA may exempt a class II device from of information in 21 CFR parts 801 and Leslie Kux,
the premarket notification requirements 809 have been approved under OMB
Associate Commissioner for Policy.
under section 510(k) if FDA determines control number 0910–0485.
that premarket notification is not [FR Doc. 2015–21237 Filed 8–26–15; 8:45 am]
necessary to provide reasonable List of Subjects in 21 CFR Part 866 BILLING CODE 4164–01–P
assurance of the safety and effectiveness Biologics, Laboratories, Medical
of the device. For this type of device, devices.
FDA has determined that premarket DEPARTMENT OF THE TREASURY
Therefore, under the Federal Food,
notification is necessary to provide
Drug, and Cosmetic Act and under Internal Revenue Service
reasonable assurance of the safety and
authority delegated to the Commissioner
effectiveness of the device. Therefore,
of Food and Drugs, 21 CFR part 866 is 26 CFR Part 1
this type of device is not exempt from
amended as follows:
premarket notification requirements. [TD 9731]
Persons who intend to market this type PART 866—IMMUNOLOGY AND RIN 1545–BM11
of device must submit to FDA a MICROBIOLOGY DEVICES
premarket notification, prior to Allocation of W–2 Wages in a Short
marketing the device, which contains ■ 1. The authority citation for 21 CFR Taxable Year and in an Acquisition or
information about the C. difficile toxin part 866 continues to read as follows: Disposition
gene amplification assay they intend to
Authority: 21 U.S.C. 351, 360, 360c, 360e, AGENCY: Internal Revenue Service (IRS),
market. 360j, 371.
Treasury.
II. Environmental Impact ■ 2. Add § 866.3130 to subpart D to read ACTION: Final and temporary
The Agency has determined under 21 as follows: regulations.
CFR 25.34(b) that this action is of type
that does not individually or § 866.3130 Clostridium difficile toxin gene SUMMARY: This document contains final
amplification assay. and temporary regulations relating to
cumulatively have a significant effect on
the human environment. Therefore, (a) Identification. A Clostridium the allocation of W–2 wages for
neither an environmental assessment difficile toxin gene amplification assay purposes of the W–2 wage limitation on
nor an environmental impact statement is a device that consists of reagents for the amount of a taxpayer’s deduction
is required. the amplification and detection of target related to domestic production
sequences in Clostridium difficile toxin activities. Specifically, the temporary
III. Paperwork Reduction Act of 1995 genes in fecal specimens from patients regulations provide guidance on: the
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This final administrative order suspected of having Clostridium difficile allocation of W–2 wages paid by two or
establishes special controls that refer to infection (CDI). The detection of more taxpayers that are employers of the
previously approved collections of clostridial toxin genes, in conjunction same employees during a calendar year;
information found in other FDA with other laboratory tests, aids in the and the determination of W–2 wages if
regulations. These collections of clinical laboratory diagnosis of CDI the taxpayer has a short taxable year.
information are subject to review by the caused by Clostridium difficile. The text of the temporary regulations
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![Federal Register / Vol. 80, No. 166 / Thursday, August 27, 2015 / Rules and Regulations 51941
based on these temporary regulations § 1.199–0 Table of contents. are treated as W–2 wages for such short
cannot be treated as W–2 wages of * * * * * taxable year for purposes of § 1.199–
another taxpayer. 2(a)(1) (if the wages would otherwise
The temporary regulations are § 1.199–2 Wage limitation. meet the requirements to be W–2 wages
applicable for taxable years beginning * * * * * under § 1.199–2 but for the requirement
on or after August 27, 2015 and expire (c) Acquisitions, dispositions, and that a calendar year must end during the
on August 24, 2018. A taxpayer may short taxable years. short taxable year).
apply § 1.199–2T(c) to taxable years for (1) Allocation of wages between more (3) Operating rules—(i) Acquisition or
which the limitations for assessment of than one taxpayer. disposition. For purposes of this
tax has not expired beginning before (2) Short taxable years.
paragraph (c), the term acquisition or
August 27, 2015. (3) Operating rules.
(i) Acquisition or disposition. disposition includes an incorporation, a
Special Analyses (ii) Trade or business. formation, a liquidation, a
reorganization, or a purchase or sale of
Certain IRS regulations, including this * * * * * assets.
one, are exempt from the requirements
of Executive Order 12866 of, as § 1.199–8 Other rules. (ii) Trade or business. For purposes of
supplemented and reaffirmed by * * * * * this paragraph (c), the term trade or
Executive Order 13563. Therefore, a (i) * * * business includes a trade or business,
regulatory assessment is not required. It (10) Acquisitions, dispositions, and the major portion of a trade or business,
also has been determined that section short taxable years. or the major portion of a separate unit
533(b) of the Administrative Procedure * * * * * of a trade or business.
Act (5 U.S.C. chapter 5) does not apply Par. 3. Section 1.199–2 is amended by (iii) Application to section 199 only.
to these regulations. For the revising paragraph (c) to read as follows: The provisions of this section apply
applicability of the Regulatory solely for purposes of section 199 of the
§ 1.199–2 Wage limitation.
Flexibility Act (5 U.S.C. chapter 6) refer Internal Revenue Code.
to the Special Analyses section of the * * * * *
(d) through (e) [Reserved]. For further
preamble to the cross-reference notice of (c) [Reserved]. For further guidance
guidance, see § 1.199–2(d) through (e).
proposed rulemaking published in the see § 1.199–2T(c).
Par. 5. Section 1.199–8 is amended by
Proposed Rules section in this issue of * * * * *
Par. 4. Section 1.199–2T is added to adding paragraph (i)(10) to read as
the Federal Register. Pursuant to follows:
section 7805(f) of the Code, these read as follows:
regulations have been submitted to the § 1.199–2T Wage limitation (temporary).
§ 1.199–8 Other rules.
Chief Counsel for Advocacy of the Small * * * * *
Business Administration for comment (a) through (b) [Reserved]. For further
guidance, see § 1.199–2(a) through (b). (i) * * *
on their impact on small business.
(c) Acquisitions, dispositions, and (10) Acquisitions, dispositions, and
Drafting Information short taxable years—(1) Allocation of short taxable years. [Reserved]. For
The principal author of these wages between more than one taxpayer. further guidance, see § 1.199–8T(i)(10).
regulations is James A. Holmes, Office For purposes of computing the section Par. 6. Section 1.199–8T is added to
of Associate Chief Counsel 199 deduction of a taxpayer, in the case read as follows:
(Passthroughs and Special Industries). of an acquisition or disposition (as
However, other personnel from the IRS defined in paragraph (c)(3)(i) of this § 1.199–8T Other rules (temporary).
and Treasury Department participated section) of a trade or business (as (a) through (h) [Reserved]. For further
in their development. defined in paragraph (c)(3)(ii) of this guidance, see § 1.199–8(a) through (h).
section) that causes more than one
List of Subjects in 26 CFR Part 1 taxpayer to be an employer of the (i) Effective/applicability dates. (1)
employees of the acquired or disposed through (9) [Reserved]. For further
Income taxes, Reporting and
of trade or business during the calendar guidance, see § 1.199–8(i)(1) through (9).
recordkeeping requirements.
year, the W–2 wages of the taxpayer for (10) Acquisitions, dispositions, and
Adoption of Amendment to the the calendar year of the acquisition or short taxable years. Section 1.199–2T(c)
Regulations disposition are allocated between each is applicable for taxable years beginning
Accordingly, 26 CFR part 1 is taxpayer based on the period during on or after August 27, 2015. A taxpayer
amended as follows: which the employees of the acquired or may apply § 1.199–2T(c) to taxable years
disposed of trade or business were for which the limitations for assessment
PART 1—INCOME TAXES employed by the taxpayer, regardless of of tax has not expired beginning before
which permissible method is used for August 27, 2015.
Paragraph 1. The authority citation
for part 1 is amended by adding entries reporting W–2 wages on Form W–2, (11) Expiration date. The applicability
in numerical order to read in part as ‘‘Wage and Tax Statement.’’ For this of § 1.199–2T(c) expires on August 24,
follows: purpose, the period of employment is 2018.
determined consistently with the
Authority: 26 U.S.C. 7805 * * * John M. Dalrymple,
principles for determining whether an
Section 1.199–2T also issued under 26 individual is an employee described in Deputy Commissioner for Services and
U.S.C. 199(b)(3). Enforcement.
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§ 1.199–2(a)(1).
* * * * * (2) Short taxable years. If a taxpayer Approved: May 29, 2015.
Par. 2. Section 1.199–0 is amended by has a short taxable year that does not Mark J. Mazur,
revising the entry for § 1.199–2(c) and contain a calendar year ending during Assistant Secretary of the Treasury (Tax
adding entries for §§ 1.199–2(c)(1), such short taxable year, wages paid to Policy).
(c)(2), and (c)(3), and 1.199–8(i)(10) to employees for employment by such [FR Doc. 2015–20770 Filed 8–26–15; 8:45 am]
read as follows: taxpayer during the short taxable year BILLING CODE 4830–01–P
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Document Created: 2015-12-15 10:52:57
Document Modified: 2015-12-15 10:52:57
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final and temporary regulations. | |
| Contact | James A. Holmes 202-317-4137 (not a toll free call). | |
| FR Citation | 80 FR 51939 | |
| RIN Number | 1545-BM11 | |
| CFR Associated | Income Taxes and Reporting and Recordkeeping Requirements |
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