80 FR 55243 - Controlled Group Regulation Examples
DEPARTMENT OF THE TREASURY
Internal Revenue Service Federal Register Volume 80, Issue 178 (September 15, 2015)
Internal Revenue Service
Federal Register Volume 80, Issue 178 (September 15, 2015)
| Page Range | 55243-55246 | |
| FR Document | 2015-23137 |
[Federal Register Volume 80, Number 178 (Tuesday, September 15, 2015)] [Rules and Regulations] [Pages 55243-55246] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-23137] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9737] RIN 1545-BK96 Controlled Group Regulation Examples AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. ----------------------------------------------------------------------- SUMMARY: This document contains final rules with revisions to examples that illustrate the controlled group rules applicable to regulated investment companies (RICs). The revised examples illustrate how the controlled group rules affect the RIC asset diversification tests. DATES: Effective Date: These regulations are effective on September 15, 2015. Applicability Dates: For dates of applicability, see Sec. Sec. 1.851-3(b), 1.851-5(b). FOR FURTHER INFORMATION CONTACT: Julanne Allen or Susan Baker of the Office of Associate Chief Counsel (Financial Institutions and Products) at (202) 317-6945 (Julanne Allen) or (202) 317-7053 (Susan Baker) (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background This document contains amendments to the Income Tax Regulations (26 CFR, part 1) relating to the application of the controlled group rules under section 851(c) to RICs. To qualify as a RIC, a taxpayer must meet asset diversification tests pursuant to which, at the close of each quarter of the RIC's taxable year, not more than 25 percent of the value of the taxpayer's total assets may be invested in (i) the securities (other than Government securities or the securities of other RICs) of any one issuer; (ii) the securities (other than the securities of other RICs) of two or more issuers that the taxpayer controls and that are determined, under regulations prescribed by the Secretary, to be engaged in the same or similar trades or businesses or related trades or businesses; or (iii) the securities of one or more qualified publicly traded partnerships (as defined in section 851(h)) (the 25 percent tests). See section 851(b)(3)(B). Section 851(c) provides special rules applicable to the asset diversification requirements of section 851(b)(3), including the 25 percent tests. The controlled group rules in section 851(c)(1) provide that, when ascertaining the value of a taxpayer's investment in the securities of an issuer for purposes of determining whether the 25 percent tests have been met, the taxpayer's proper proportion of any investment in the securities of such issuer that are held by a member of the taxpayer's ``controlled group'' must be aggregated with the taxpayer's investment in such issuer, as determined under regulations. Section 851(c)(3) defines a controlled group as one or more chains of corporations connected through stock ownership with the taxpayer if (i) 20 percent or more of the total combined voting power of all classes of stock entitled to vote of each of the corporations (except the taxpayer) is owned directly by one or more of the other corporations, and (ii) the taxpayer owns directly at least 20 percent or more of the total combined voting power of all classes of stock entitled to vote of at least one of the other corporations. On August 2, 2013, the Treasury Department and the IRS published in the Federal Register a notice of proposed rulemaking (REG-114122-12 at 78 FR 46851) (NPRM). The proposed regulations would revise certain examples in Sec. 1.851-5 to clarify that a RIC and its controlled subsidiary are a controlled group even if the group consists of only that RIC and its subsidiary. No public hearing was requested or held. Written comments responding to the NPRM were received. The written comments are available for public inspection at http://www.regulations.gov or upon request. After consideration of all the comments, these final regulations adopt the provisions of the proposed regulations with certain clarifications. The comments and clarifications are discussed in this preamble. Summary of Comments and Explanation of Revisions Comments received in response to the NPRM's request for comments addressed three general categories of issues: (1) application of the proposed changes to a parent RIC investing in the stock of subsidiary RICs (a Fund of Funds structure); (2) application of the proposed changes to a RIC's indirect investment in qualified publicly traded partnerships, as defined in section 851(h) (QPTPs); and (3) clarification of existing regulatory language implementing the controlled group rules of section 851(c). 1. Fund of Funds Commenters recognized that the changes to the examples in Sec. 1.851-5 apply to structures in which the investments of a RIC (Upper RIC) include stock of one or more subsidiary RICs (Lower RICs). Commenters noted that there may be uncertainty in determining whether an Upper RIC satisfies its 25 percent tests when what might otherwise be a quarter-end violation by the Lower RIC is saved from being a violation by one or both of the relief provisions in section 851(d)(1) (sometimes called the ``market value exception'' and the ``30-day cure provision'') or when the Upper RIC and a Lower RIC have different quarter end testing dates. To resolve this uncertainty, commenters urged the Treasury Department and the IRS either to provide a safe harbor for Fund of Funds structures or to exempt these structures from the controlled group rules. Commenters noted that securities of RICs are listed as qualifying assets for purposes of the ``good asset'' 50 percent test of section 851(b)(3)(A) and are correspondingly excluded from the categories of assets listed in the 25 percent tests set forth in sections 851(b)(3)(B)(i) and (ii). In response to these requests, the Treasury Department and the IRS are issuing Revenue Procedure 2015-45 (2015-39 IRB dated September 28, 2015), which describes conditions under which the IRS will treat an Upper RIC that invests in one or more Lower RICs as satisfying the 25 percent tests and provides procedures to lessen the burden of demonstrating compliance with the 25 percent tests, applying the market value exception and the 30-day cure provision, and dealing with different quarter-end testing dates. 2. QPTPs Comments were received both on the revised language in Example 1 and on proposed Example 7. Example 7 illustrates the application of the controlled group rules to a RIC's indirect investment in securities of QPTPs. In 2004, Congress enacted section 851(b)(2)(B), which facilitated [[Page 55244]] investment by RICs in equity interests of QPTPs by providing that net income from an interest in a QPTP would be treated as qualifying income under the RIC income test set forth in section 851(b)(2) without regard to the character of the income earned by the QPTP. Congress provided for this new ability of RICs to invest in QPTPs to improve QPTP access to U.S. capital markets.\1\ --------------------------------------------------------------------------- \1\ ``The Congress understood that . . .[p]ublicly traded partnerships with specified types of income are not treated as corporations, however, for the reason that if the income is from sources that are commonly considered to be passive investments, then there is less reason to treat the publicly traded partnership as a corporation. The Congress understood that these types of publicly traded partnerships may have improved access to capital markets if their interests were permitted investments of mutual funds. Therefore, the Act treats publicly traded partnership interests as permitted investments for mutual funds (`RICs').'' Joint Committee on Taxation, General Explanation of Tax Legislation Enacted in the 108th Congress at 249 (JCS-5-05), May 2005 (footnote omitted). --------------------------------------------------------------------------- At the same time, however, Congress enacted section 851(b)(3)(B)(iii), which limits a RIC's investment in securities of one or more QPTPs to not more than 25 percent of the value of the RIC's assets. The Ways and Means Committee report explained the rationale for this limitation by stating: [T]he Committee bill requires that present-law limitations on ownership and composition of assets of mutual funds apply to any investment in a publicly traded partnership by a mutual fund. The Committee believes that these limitations will serve to limit the use of mutual funds as conduits for avoidance of unrelated business income tax or withholding rules [for effectively connected income] that would otherwise apply with respect to publicly traded partnership income. H.R. Rep. No. 108-548, pt. 1 at 152 (2004). Commenters relied on this legislative history in support of their position that the section 851(b)(3)(B)(iii) QPTP test (which focuses on a RIC's holdings of securities of a category of issuers) is fundamentally different from the section 851(b)(3)(B)(i) and (ii) tests (which focus on a RIC's holdings of securities of particular issuers). These commenters contended that an interest in a QPTP should not be subject to the clarified controlled group rules in the NPRM when the interest in the QPTP is held by a corporation that is not a RIC. The Treasury Department and the IRS do not find this argument sufficiently persuasive to overcome the plain language of section 851(c) regarding the application of the controlled group rules. Pursuant to its introductory language, section 851(c) applies generally ``[f]or purposes of subsection 851(b)(3),'' and pursuant to section 851(c)(1), the look-through rule for controlled group members applies specifically ``for purposes of subparagraph (B)'' of section 851(b)(3), in each case without distinguishing between the various 25 percent tests. Moreover, the Treasury Department and the IRS note that Congress, in the same legislation in which it enacted section 851(b)(3)(B)(iii), had the opportunity to amend these rules in the manner urged by the commenters. In that legislation, Congress made other changes to conform section 851(c) to the changes relating to QPTPs by redesignating former section 851(c)(5) as section 851(c)(6) and adding a new section 851(c)(5), which defines the term ``outstanding voting securities of such issuer'' to include equity securities of QPTPs. Congress made no changes, however, to limit the application of the section 851(c) controlled group rules to solely the 25 percent tests under section 851(b)(3)(i) and (ii). Thus, the Treasury Department and the IRS believe, consistent with the statutory language, that the controlled group rules should apply to section 851(b)(3)(B)(iii) because (1) Congress specifically provided that a RIC's investment in QPTP securities should be limited to 25 percent of the RIC's total asset value; (2) the controlled group rules of section 851(c) by their terms apply to all of section 851(b)(3), including section 851(b)(3)(B)(iii); and (3) Congress did not carve out section 851(b)(3)(B)(iii) when it updated section 851(c). 3. Clarifying regulatory language Some practitioners have interpreted section 851(c)(3) to require the presence of at least two levels of controlled entities for a controlled group to exist and have relied on certain of the examples in the existing regulations to support this interpretation. These final regulations clarify, through revisions to the existing examples, that as few as two corporations are enough to constitute a controlled group if the ownership requirements of section 851(c)(3) are met. The Treasury Department and the IRS believe that the interpretation of the controlled group rules reflected in these final regulations is consistent with both the statutory language of section 851(c)(3) and the well-established interpretation of analogous Code provisions. For example, for purposes of the consolidated return rules, the IRS has consistently treated a parent and its directly owned subsidiary as ``affiliated'' within the meaning of section 1504(a)(1). Similarly, in limiting certain tax benefits for affiliated corporations, the IRS treats a parent and its subsidiary as a ``controlled group'' under section 1563, which uses language similar to section 1504(a). See section 1563(a)(1) and Sec. 1.1563-1(a)(2)(ii), Example 1. The interpretation reflected in these final regulations is also consistent with the purpose of section 851(c)(3), which is to aggregate the investments of a RIC's related corporations for purposes of determining whether the RIC satisfies its 25 percent tests. As stated in the preamble to the NPRM, the Treasury Department and the IRS believe that the language in the examples in the existing regulations was intended merely to simplify the description of certain fact patterns and not to articulate a legal interpretation that is inconsistent with the statutory language of section 851(c) and the construction of substantially similar language elsewhere in the Code. Commenters noted that Sec. 1.851-3 states that ``[i]n determining the value of the taxpayer's investment in the securities of any one issuer, for the purposes of subparagraph (B) of section 851(b)[(3)], there shall be included its proper proportion of the investment of any other corporation, a member of a controlled group, in the securities of such issuer'' (emphasis added). Commenters cited the phrase ``any one issuer'' in support of the proposition that the controlled group rules should not be applied for purposes of section 851(b)(3)(B)(iii), which addresses not the value of a RIC's direct and indirect holdings of securities of any single issuer but rather a RIC's aggregate direct and indirect holdings of securities of a category of issuers (that is, QPTPs). While the Treasury Department and the IRS do not believe that the use of ``any one issuer'' in Sec. 1.851-3 bears the weight these commenters attribute to it, in order to respond to the comment and more closely align Sec. 1.851-3 with the statutory language of section 851(c)(1), these final regulations update the language of Sec. 1.851-3 by changing ``any one issuer'' to ``an issuer.'' Commenters similarly maintained that because section 851(c)(1) refers to use of the controlled group rules ``in ascertaining the value of the taxpayer's investment in the securities of an issuer'' (emphasis added), the rules should not apply for purposes of a limitation that applies to holdings of securities in a category of issuers, such as the section 851(b)(3)(B)(iii) limitation on investment in QPTPs. The Treasury Department and the IRS do not agree with this reading of the statute. As noted above, the controlled group rules expressly apply for purposes of section 851(b)(3)(B) without qualification. The [[Page 55245]] Treasury Department and the IRS believe that the more natural reading of the statutory language is that, in assessing compliance with section 851(b)(3), a RIC applies the controlled group rules to determine its indirect holdings in each individual issuer (including each QPTP), and the RIC then aggregates its direct and indirect holdings in each individual issuer for purposes of applying the test in section 851(b)(3)(B)(i); aggregates its direct and indirect holdings of securities of issuers engaged in the same or similar trades or businesses or related trades or businesses for purposes of applying the test in section 851(b)(3)(ii); and aggregates its direct and indirect holdings of securities of issuers that are QPTPs for purposes of applying the test in section 851(b)(3)(iii). Finally, commenters suggested that operative rules should be set forth in substantive rules in addition to being demonstrated in the examples. They urged the Treasury Department and the IRS to provide regulatory text setting forth general rules, with the examples in Sec. 1.851-5 demonstrating the application of those rules. The Treasury Department and the IRS believe that the revised examples are intended to, and do, make sufficiently clear how the statutory rules are to be interpreted and applied, and accordingly no changes are being made in response to this comment. Applicability Date The final regulations apply to quarters that begin on or after December 14, 2015. Under section 851(d)(1), whether a taxpayer loses status as a RIC in one quarter may depend on whether the taxpayer satisfied section 851(b)(3) and (c) at the close of one or more prior quarters. For purposes of applying the first sentence of section 851(d)(1) to a quarter that begins on or after March 14, 2016, these final regulations apply in determining whether the taxpayer met the requirements of section 851(b)(3) and (c) at the close of prior quarters. Special Analyses Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the proposed regulations preceding these final regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses. No comments were received. Drafting Information The principal author of these regulations is Julanne Allen, Office of Associate Chief Counsel (Financial Institutions and Products). However, other personnel from the Treasury Department and the IRS 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 is amended by adding an entry in numerical order to read in part as follows: Authority: 26 U.S.C. 7805 * * * Sections 1.851-3 and 1.851-5 are also issued under 26 U.S.C. 851(c). * * * * * 0 Par. 2. Section 1.851-3 is revised to read as follows: Sec. 1.851-3 Rules applicable to section 851(b)(3). (a) In general. In determining the value of the taxpayer's investment in the securities of an issuer, for purposes of subparagraph (B) of section 851(b)(3), there shall be included its proper proportion of the investment of any other corporation, a member of a controlled group, in the securities of such issuer. See Example 4 in Sec. 1.851- 5. For purposes of Sec. Sec. 1.851-2, 1.851-4, 1.851-5, and 1.851-6, the terms ``controls,'' ``controlled group,'' and ``value'' have the meaning assigned to them by section 851(c). All other terms used in these sections have the same meaning as when used in the Investment Company Act of 1940 (15 U.S.C., chapter 2D), as amended. (b) Effective/applicability dates. The rules of this section apply to quarters that begin on or after December 14, 2015. For purposes of applying the first sentence of section 851(d)(1) to a quarter that begins on or after March 14, 2016, the rules of this section apply in determining whether the taxpayer met the requirements of section 851(b)(3) and (c) at the close of prior quarters. 0 Par. 3. Section 1.851-5 is revised to read as follows: Sec. 1.851-5 Examples. (a) Examples. The provisions of section 851 may be illustrated by the following examples: Example 1. (i) Investment Company W at the close of its first quarter of its taxable year has its assets invested as follows: ------------------------------------------------------------------------ Percent ------------------------------------------------------------------------ Cash......................................................... 5 Government securities........................................ 10 Securities of regulated investment companies................. 20 Securities of Corporation A.................................. 10 Securities of Corporation B.................................. 15 Securities of Corporation C.................................. 20 Securities of various corporations (not exceeding 5 percent 20 of its assets in any one company)........................... ---------- Total...................................................... 100 ------------------------------------------------------------------------ (ii) Investment Company W owns all of the voting stock of Corporations A and B, 15 percent of the voting stock of Corporation C, and less than 10 percent of the voting stock of regulated investment companies and various other corporations. Neither Corporation A nor Corporation B owns: (A) 20 percent or more of the voting stock of any other corporation; (B) Securities issued by Corporation C; or (C) Securities issued by any of the regulated investment companies or various corporations whose securities are owned by Investment Company W. Except for Corporation A and Corporation B, none of the corporations (including the regulated investment companies) is a member of a controlled group with Investment Company W. (iii) Investment Company W meets the requirements under section 851(b)(3) at the end of its first quarter. It complies with subparagraph (A) of section 851(b)(3) because it has 55 percent of its assets invested as provided in that subparagraph. It complies with subparagraph (B) of section 851(b)(3) because it does not have more than 25 percent of its assets invested in the securities of any one issuer, of two or more issuers that it controls, or of one or more qualified publicly traded partnerships (as defined in section 851(h)). Example 2. (i) Investment Company V at the close of a particular quarter of the taxable year has its assets invested as follows: ------------------------------------------------------------------------ Percent ------------------------------------------------------------------------ Cash......................................................... 10 Government securities........................................ 35 Securities of Corporation A.................................. 7 Securities of Corporation B.................................. 12 Securities of Corporation C.................................. 15 Securities of Corporation D.................................. 21 ---------- Total...................................................... 100 ------------------------------------------------------------------------ (ii) Investment Company V fails to meet the requirements of subparagraph (A) of section [[Page 55246]] 851(b)(3) since its assets invested in Corporations A, B, C, and D exceed in each case 5 percent of the value of the total assets of the company at the close of the particular quarter. Example 3. (i) Investment Company X at the close of a particular quarter of the taxable year has its assets invested as follows: ------------------------------------------------------------------------ Percent ------------------------------------------------------------------------ Cash and Government securities............................... 20 Securities of Corporation A.................................. 5 Securities of Corporation B.................................. 10 Securities of Corporation C.................................. 25 Securities of various corporations (not exceeding 5 percent 40 of its assets in any one company)........................... ---------- Total...................................................... 100 ------------------------------------------------------------------------ (ii) Investment Company X owns more than 20 percent of the voting power of Corporations B and C and less than 10 percent of the voting power of all of the other corporations. Corporation B manufactures radios and Corporation C acts as its distributor and also distributes radios for other companies. Investment Company X fails to meet the requirements of subparagraph (B) of section 851(b)(3) since it has 35 percent of its assets invested in the securities of two issuers which it controls and which are engaged in related trades or businesses. Example 4. (i) Investment Company Y at the close of a particular quarter of its taxable year has its assets invested as follows: ------------------------------------------------------------------------ Percent ------------------------------------------------------------------------ Cash and Government securities............................... 15 Securities of Corporation K (a regulated investment company). 30 Securities of Corporation A.................................. 10 Securities of Corporation B.................................. 20 Securities of various corporations (not exceeding 5 percent 25 of its assets in any one company)........................... ---------- Total...................................................... 100 ------------------------------------------------------------------------ (ii) Corporation K has 20 percent of its assets invested in Corporation L, and Corporation L has 40 percent of its assets invested in Corporation B. Corporation A also has 30 percent of its assets invested in Corporation B. Investment Company Y owns more than 20 percent of the voting power of Corporations A and K. Corporation K owns more than 20 percent of the voting power of Corporation L. (iii) At the end of that quarter, Investment Company Y is disqualified under subparagraph (B)(i) of section 851(b)(3) because, after applying section 851(c)(1), more than 25 percent of the value of Investment Company Y's total assets is invested in the securities of Corporation B. This result is shown by the following calculation: ------------------------------------------------------------------------ Percent ------------------------------------------------------------------------ Percentage of assets invested directly in Corporation B...... 20.0 Percentage invested indirectly through K and L (30% x 20% x 2.4 40%)........................................................ Percentage invested indirectly through A (10% x 30%)......... 3.0 ---------- Total percentage of assets of Investment Company Y invested 25.4 in Corporation B.......................................... ------------------------------------------------------------------------ Example 5. Investment Company Z, which keeps its books and makes its returns on the basis of the calendar year, at the close of the first quarter of 2016 meets the requirements of section 851(b)(3) and has 20 percent of its assets invested in Corporation A. Later during the taxable year it makes distributions to its shareholders and because of such distributions, it finds at the close of the taxable year that it has more than 25 percent of its remaining assets invested in Corporation A. Investment Company Z does not lose its status as a regulated investment company for the taxable year 2016 because of such distributions, nor will it lose its status as a regulated investment company for any subsequent year solely as a result of such distributions. See section 851(d)(1). Example 6. Investment Company Q, which keeps its books and makes its returns on the basis of the calendar year, at the close of the first quarter of 2016 meets the requirements of section 851(b)(3) and has 20 percent of its assets invested in Corporation P. At the close of the taxable year 2016, it finds that it has more than 25 percent of its assets invested in Corporation P. This situation results entirely from fluctuations in the market values of the securities in Investment Company Q's portfolio and is not due in whole or in part to the acquisition of any security or other property. Investment Company Q does not lose its status as a regulated investment company for the taxable year 2016 because of such fluctuations in the market values of the securities in its portfolio, nor will it lose its status as a regulated investment company for any subsequent year solely as a result of such market value fluctuations. See section 851(d)(1). Example 7. (i) Investment Company T at the close of a particular quarter of its taxable year has its assets invested as follows: ------------------------------------------------------------------------ Percent ------------------------------------------------------------------------ Cash and Government securities............................... 40 Securities of Corporation A.................................. 20 Securities of various qualified publicly traded partnerships 15 (within the meaning of sections 851(b)(3) and 851(h))....... Securities of various corporations (not exceeding 5 percent 25 of its assets in any one company)........................... ---------- Total...................................................... 100 ------------------------------------------------------------------------ (ii) Investment Company T owns more than 20 percent of the voting power of Corporation A and less than 10 percent of the voting power of all of the other corporations. Corporation A has 80 percent of its assets invested in qualified publicly traded partnerships. (iii) Investment Company T is disqualified under subparagraph (B)(iii) of section 851(b)(3), because, after applying section 851(c)(1), more than 25 percent of the value of Investment Company T's total assets is invested in the securities of one or more qualified publicly traded partnerships. This result is shown by the following calculation: ------------------------------------------------------------------------ Percent ------------------------------------------------------------------------ Percentage of assets invested directly in qualified publicly 15.0 traded partnerships......................................... Percentage invested in qualified publicly traded partnerships 16.0 indirectly through A (20% x 80%)............................ ---------- Total percentage of assets of Investment Company T invested 31.0 in qualified publicly traded partnerships................. ------------------------------------------------------------------------ (b) Effective/applicability dates. The rules of this section apply to quarters that begin on or after December 14, 2015. For purposes of applying the first sentence of section 851(d)(1) to a quarter that begins on or after March 14, 2016, the rules of this section apply in determining whether the taxpayer met the requirements of section 851(b)(3) and (c) at the close of prior quarters. John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: September 2, 2015. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. 2015-23137 Filed 9-14-15; 8:45 am] BILLING CODE 4830-01-P
![Federal Register / Vol. 80, No. 178 / Tuesday, September 15, 2015 / Rules and Regulations 55243
2. On page 53709, in the third to be engaged in the same or similar changes to a parent RIC investing in the
column, amendatory instruction 2a is trades or businesses or related trades or stock of subsidiary RICs (a Fund of
corrected to read: businesses; or (iii) the securities of one Funds structure); (2) application of the
‘‘a. Revising Items 2.(a), (b), and (g), or more qualified publicly traded proposed changes to a RIC’s indirect
effective September 26, 2015; and’’ partnerships (as defined in section investment in qualified publicly traded
Dated: September 9, 2015. 851(h)) (the 25 percent tests). See partnerships, as defined in section
David T. Donahue,
section 851(b)(3)(B). 851(h) (QPTPs); and (3) clarification of
Section 851(c) provides special rules existing regulatory language
Acting Assistant Secretary of State for applicable to the asset diversification
Consular Affairs, U.S. Department of State.
implementing the controlled group rules
requirements of section 851(b)(3), of section 851(c).
[FR Doc. 2015–23140 Filed 9–14–15; 8:45 am]
including the 25 percent tests. The
BILLING CODE 4710–06–P controlled group rules in section 1. Fund of Funds
851(c)(1) provide that, when Commenters recognized that the
ascertaining the value of a taxpayer’s changes to the examples in § 1.851–5
DEPARTMENT OF THE TREASURY investment in the securities of an issuer apply to structures in which the
for purposes of determining whether the investments of a RIC (Upper RIC)
Internal Revenue Service 25 percent tests have been met, the include stock of one or more subsidiary
taxpayer’s proper proportion of any RICs (Lower RICs). Commenters noted
26 CFR Part 1 investment in the securities of such that there may be uncertainty in
[TD 9737] issuer that are held by a member of the determining whether an Upper RIC
taxpayer’s ‘‘controlled group’’ must be satisfies its 25 percent tests when what
RIN 1545–BK96 aggregated with the taxpayer’s might otherwise be a quarter-end
investment in such issuer, as violation by the Lower RIC is saved
Controlled Group Regulation Examples
determined under regulations. from being a violation by one or both of
AGENCY: Internal Revenue Service (IRS), Section 851(c)(3) defines a controlled the relief provisions in section 851(d)(1)
Treasury. group as one or more chains of (sometimes called the ‘‘market value
ACTION: Final regulations. corporations connected through stock exception’’ and the ‘‘30-day cure
ownership with the taxpayer if (i) 20 provision’’) or when the Upper RIC and
SUMMARY: This document contains final percent or more of the total combined a Lower RIC have different quarter end
rules with revisions to examples that voting power of all classes of stock testing dates.
illustrate the controlled group rules entitled to vote of each of the To resolve this uncertainty,
applicable to regulated investment corporations (except the taxpayer) is commenters urged the Treasury
companies (RICs). The revised examples owned directly by one or more of the Department and the IRS either to
illustrate how the controlled group rules other corporations, and (ii) the taxpayer provide a safe harbor for Fund of Funds
affect the RIC asset diversification tests. owns directly at least 20 percent or structures or to exempt these structures
DATES: Effective Date: These regulations more of the total combined voting from the controlled group rules.
are effective on September 15, 2015. power of all classes of stock entitled to Commenters noted that securities of
Applicability Dates: For dates of vote of at least one of the other RICs are listed as qualifying assets for
applicability, see §§ 1.851–3(b), 1.851– corporations. purposes of the ‘‘good asset’’ 50 percent
5(b). On August 2, 2013, the Treasury test of section 851(b)(3)(A) and are
Department and the IRS published in correspondingly excluded from the
FOR FURTHER INFORMATION CONTACT:
the Federal Register a notice of categories of assets listed in the 25
Julanne Allen or Susan Baker of the
proposed rulemaking (REG–114122–12 percent tests set forth in sections
Office of Associate Chief Counsel
at 78 FR 46851) (NPRM). The proposed 851(b)(3)(B)(i) and (ii). In response to
(Financial Institutions and Products) at
regulations would revise certain these requests, the Treasury Department
(202) 317–6945 (Julanne Allen) or (202)
examples in § 1.851–5 to clarify that a and the IRS are issuing Revenue
317–7053 (Susan Baker) (not toll-free
RIC and its controlled subsidiary are a Procedure 2015–45 (2015–39 IRB dated
numbers).
controlled group even if the group September 28, 2015), which describes
SUPPLEMENTARY INFORMATION: consists of only that RIC and its conditions under which the IRS will
Background subsidiary. treat an Upper RIC that invests in one
No public hearing was requested or or more Lower RICs as satisfying the 25
This document contains amendments held. Written comments responding to percent tests and provides procedures to
to the Income Tax Regulations (26 CFR, the NPRM were received. The written lessen the burden of demonstrating
part 1) relating to the application of the comments are available for public compliance with the 25 percent tests,
controlled group rules under section inspection at http:// applying the market value exception
851(c) to RICs. www.regulations.gov or upon request. and the 30-day cure provision, and
To qualify as a RIC, a taxpayer must After consideration of all the comments, dealing with different quarter-end
meet asset diversification tests pursuant these final regulations adopt the testing dates.
to which, at the close of each quarter of provisions of the proposed regulations
the RIC’s taxable year, not more than 25 with certain clarifications. The 2. QPTPs
percent of the value of the taxpayer’s comments and clarifications are Comments were received both on the
total assets may be invested in (i) the discussed in this preamble. revised language in Example 1 and on
mstockstill on DSK4VPTVN1PROD with RULES
securities (other than Government proposed Example 7. Example 7
securities or the securities of other RICs) Summary of Comments and illustrates the application of the
of any one issuer; (ii) the securities Explanation of Revisions controlled group rules to a RIC’s
(other than the securities of other RICs) Comments received in response to the indirect investment in securities of
of two or more issuers that the taxpayer NPRM’s request for comments QPTPs.
controls and that are determined, under addressed three general categories of In 2004, Congress enacted section
regulations prescribed by the Secretary, issues: (1) application of the proposed 851(b)(2)(B), which facilitated
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investment by RICs in equity interests of controlled group members applies its subsidiary as a ‘‘controlled group’’
QPTPs by providing that net income specifically ‘‘for purposes of under section 1563, which uses
from an interest in a QPTP would be subparagraph (B)’’ of section 851(b)(3), language similar to section 1504(a). See
treated as qualifying income under the in each case without distinguishing section 1563(a)(1) and § 1.1563–
RIC income test set forth in section between the various 25 percent tests. 1(a)(2)(ii),
851(b)(2) without regard to the character Moreover, the Treasury Department and Example 1. The interpretation reflected in
of the income earned by the QPTP. the IRS note that Congress, in the same these final regulations is also consistent with
Congress provided for this new ability legislation in which it enacted section the purpose of section 851(c)(3), which is to
of RICs to invest in QPTPs to improve 851(b)(3)(B)(iii), had the opportunity to aggregate the investments of a RIC’s related
QPTP access to U.S. capital markets.1 amend these rules in the manner urged corporations for purposes of determining
At the same time, however, Congress by the commenters. In that legislation, whether the RIC satisfies its 25 percent tests.
enacted section 851(b)(3)(B)(iii), which Congress made other changes to As stated in the preamble to the
limits a RIC’s investment in securities of conform section 851(c) to the changes NPRM, the Treasury Department and
one or more QPTPs to not more than 25 relating to QPTPs by redesignating the IRS believe that the language in the
percent of the value of the RIC’s assets. former section 851(c)(5) as section examples in the existing regulations was
The Ways and Means Committee report 851(c)(6) and adding a new section intended merely to simplify the
explained the rationale for this 851(c)(5), which defines the term description of certain fact patterns and
limitation by stating: ‘‘outstanding voting securities of such not to articulate a legal interpretation
[T]he Committee bill requires that present- issuer’’ to include equity securities of that is inconsistent with the statutory
law limitations on ownership and QPTPs. Congress made no changes, language of section 851(c) and the
composition of assets of mutual funds apply however, to limit the application of the construction of substantially similar
to any investment in a publicly traded section 851(c) controlled group rules to language elsewhere in the Code.
partnership by a mutual fund. The solely the 25 percent tests under section Commenters noted that § 1.851–3
Committee believes that these limitations 851(b)(3)(i) and (ii).
will serve to limit the use of mutual funds states that ‘‘[i]n determining the value of
Thus, the Treasury Department and
as conduits for avoidance of unrelated the taxpayer’s investment in the
the IRS believe, consistent with the
business income tax or withholding rules [for securities of any one issuer, for the
statutory language, that the controlled
effectively connected income] that would purposes of subparagraph (B) of section
otherwise apply with respect to publicly
group rules should apply to section
851(b)(3)(B)(iii) because (1) Congress 851(b)[(3)], there shall be included its
traded partnership income. proper proportion of the investment of
specifically provided that a RIC’s
H.R. Rep. No. 108–548, pt. 1 at 152 investment in QPTP securities should any other corporation, a member of a
(2004). Commenters relied on this be limited to 25 percent of the RIC’s controlled group, in the securities of
legislative history in support of their total asset value; (2) the controlled such issuer’’ (emphasis added).
position that the section 851(b)(3)(B)(iii) group rules of section 851(c) by their Commenters cited the phrase ‘‘any one
QPTP test (which focuses on a RIC’s terms apply to all of section 851(b)(3), issuer’’ in support of the proposition
holdings of securities of a category of including section 851(b)(3)(B)(iii); and that the controlled group rules should
issuers) is fundamentally different from (3) Congress did not carve out section not be applied for purposes of section
the section 851(b)(3)(B)(i) and (ii) tests 851(b)(3)(B)(iii) when it updated section 851(b)(3)(B)(iii), which addresses not
(which focus on a RIC’s holdings of 851(c). the value of a RIC’s direct and indirect
securities of particular issuers). These holdings of securities of any single
commenters contended that an interest 3. Clarifying regulatory language issuer but rather a RIC’s aggregate direct
in a QPTP should not be subject to the Some practitioners have interpreted and indirect holdings of securities of a
clarified controlled group rules in the section 851(c)(3) to require the presence category of issuers (that is, QPTPs).
NPRM when the interest in the QPTP is of at least two levels of controlled While the Treasury Department and the
held by a corporation that is not a RIC. entities for a controlled group to exist IRS do not believe that the use of ‘‘any
The Treasury Department and the IRS and have relied on certain of the one issuer’’ in § 1.851–3 bears the
do not find this argument sufficiently examples in the existing regulations to weight these commenters attribute to it,
persuasive to overcome the plain support this interpretation. These final in order to respond to the comment and
language of section 851(c) regarding the regulations clarify, through revisions to more closely align § 1.851–3 with the
application of the controlled group the existing examples, that as few as two statutory language of section 851(c)(1),
rules. Pursuant to its introductory corporations are enough to constitute a these final regulations update the
language, section 851(c) applies controlled group if the ownership language of § 1.851–3 by changing ‘‘any
generally ‘‘[f]or purposes of subsection requirements of section 851(c)(3) are one issuer’’ to ‘‘an issuer.’’
851(b)(3),’’ and pursuant to section met. Commenters similarly maintained
851(c)(1), the look-through rule for The Treasury Department and the IRS that because section 851(c)(1) refers to
believe that the interpretation of the use of the controlled group rules ‘‘in
1 ‘‘The Congress understood that . . .[p]ublicly controlled group rules reflected in these ascertaining the value of the taxpayer’s
traded partnerships with specified types of income final regulations is consistent with both investment in the securities of an
are not treated as corporations, however, for the
reason that if the income is from sources that are
the statutory language of section issuer’’ (emphasis added), the rules
commonly considered to be passive investments, 851(c)(3) and the well-established should not apply for purposes of a
then there is less reason to treat the publicly traded interpretation of analogous Code limitation that applies to holdings of
partnership as a corporation. The Congress provisions. For example, for purposes of securities in a category of issuers, such
mstockstill on DSK4VPTVN1PROD with RULES
understood that these types of publicly traded
partnerships may have improved access to capital
the consolidated return rules, the IRS as the section 851(b)(3)(B)(iii) limitation
markets if their interests were permitted has consistently treated a parent and its on investment in QPTPs. The Treasury
investments of mutual funds. Therefore, the Act directly owned subsidiary as Department and the IRS do not agree
treats publicly traded partnership interests as ‘‘affiliated’’ within the meaning of with this reading of the statute. As
permitted investments for mutual funds (‘RICs’).’’
Joint Committee on Taxation, General Explanation
section 1504(a)(1). Similarly, in limiting noted above, the controlled group rules
of Tax Legislation Enacted in the 108th Congress at certain tax benefits for affiliated expressly apply for purposes of section
249 (JCS–5–05), May 2005 (footnote omitted). corporations, the IRS treats a parent and 851(b)(3)(B) without qualification. The
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![55246 Federal Register / Vol. 80, No. 178 / Tuesday, September 15, 2015 / Rules and Regulations
851(b)(3) since its assets invested in Percent invested in qualified publicly traded
Corporations A, B, C, and D exceed in each partnerships.
case 5 percent of the value of the total assets Percentage invested indirectly (iii) Investment Company T is disqualified
of the company at the close of the particular through K and L (30% × 20% × under subparagraph (B)(iii) of section
quarter. 40%) .......................................... 2.4 851(b)(3), because, after applying section
Example 3. (i) Investment Company X at Percentage invested indirectly 851(c)(1), more than 25 percent of the value
the close of a particular quarter of the taxable through A (10% × 30%) ............ 3.0 of Investment Company T’s total assets is
year has its assets invested as follows: invested in the securities of one or more
Total percentage of assets of qualified publicly traded partnerships. This
Percent Investment Company Y in- result is shown by the following calculation:
vested in Corporation B ........ 25.4
Cash and Government securities 20 Percent
Securities of Corporation A .......... 5 Example 5. Investment Company Z, which
Securities of Corporation B .......... 10 keeps its books and makes its returns on the Percentage of assets invested di-
Securities of Corporation C .......... 25 basis of the calendar year, at the close of the rectly in qualified publicly traded
Securities of various corporations first quarter of 2016 meets the requirements partnerships .............................. 15.0
(not exceeding 5 percent of its of section 851(b)(3) and has 20 percent of its Percentage invested in qualified
assets in any one company) ..... 40 assets invested in Corporation A. Later publicly traded partnerships in-
during the taxable year it makes distributions directly through A (20% × 80%) 16.0
Total .......................................... 100
to its shareholders and because of such
distributions, it finds at the close of the Total percentage of assets of
(ii) Investment Company X owns more Investment Company T in-
taxable year that it has more than 25 percent
than 20 percent of the voting power of vested in qualified publicly
of its remaining assets invested in
Corporations B and C and less than 10 traded partnerships ............... 31.0
percent of the voting power of all of the other Corporation A. Investment Company Z does
corporations. Corporation B manufactures not lose its status as a regulated investment
company for the taxable year 2016 because of (b) Effective/applicability dates. The
radios and Corporation C acts as its rules of this section apply to quarters
distributor and also distributes radios for such distributions, nor will it lose its status
other companies. Investment Company X as a regulated investment company for any that begin on or after December 14,
fails to meet the requirements of subsequent year solely as a result of such 2015. For purposes of applying the first
subparagraph (B) of section 851(b)(3) since it distributions. See section 851(d)(1). sentence of section 851(d)(1) to a quarter
has 35 percent of its assets invested in the Example 6. Investment Company Q, which that begins on or after March 14, 2016,
securities of two issuers which it controls keeps its books and makes its returns on the the rules of this section apply in
and which are engaged in related trades or basis of the calendar year, at the close of the determining whether the taxpayer met
businesses. first quarter of 2016 meets the requirements
the requirements of section 851(b)(3)
Example 4. (i) Investment Company Y at of section 851(b)(3) and has 20 percent of its
assets invested in Corporation P. At the close and (c) at the close of prior quarters.
the close of a particular quarter of its taxable
year has its assets invested as follows: of the taxable year 2016, it finds that it has John Dalrymple,
more than 25 percent of its assets invested in
Deputy Commissioner for Services and
Percent Corporation P. This situation results entirely Enforcement.
from fluctuations in the market values of the
securities in Investment Company Q’s Approved: September 2, 2015.
Cash and Government securities 15
Securities of Corporation K (a portfolio and is not due in whole or in part Mark J. Mazur,
regulated investment company) 30 to the acquisition of any security or other Assistant Secretary of the Treasury (Tax
Securities of Corporation A .......... 10 property. Investment Company Q does not Policy).
Securities of Corporation B .......... 20 lose its status as a regulated investment [FR Doc. 2015–23137 Filed 9–14–15; 8:45 am]
Securities of various corporations company for the taxable year 2016 because of
BILLING CODE 4830–01–P
(not exceeding 5 percent of its such fluctuations in the market values of the
assets in any one company) ..... 25 securities in its portfolio, nor will it lose its
status as a regulated investment company for
Total .......................................... 100 any subsequent year solely as a result of such DEPARTMENT OF THE TREASURY
market value fluctuations. See section
(ii) Corporation K has 20 percent of its 851(d)(1). Alcohol and Tobacco Tax and Trade
assets invested in Corporation L, and Example 7. (i) Investment Company T at Bureau
Corporation L has 40 percent of its assets the close of a particular quarter of its taxable
invested in Corporation B. Corporation A year has its assets invested as follows: 27 CFR Parts 24 and 70
also has 30 percent of its assets invested in
Corporation B. Investment Company Y owns [Docket No. TTB–2015–0013; T.D. TTB–130]
Percent
more than 20 percent of the voting power of RIN 1513–AB92
Corporations A and K. Corporation K owns Cash and Government securities 40
more than 20 percent of the voting power of Securities of Corporation A .......... 20 Return of Wine to Bonded Premises
Corporation L. Securities of various qualified
(iii) At the end of that quarter, Investment publicly traded partnerships Alcohol and Tobacco Tax and
AGENCY:
Company Y is disqualified under (within the meaning of sections Trade Bureau, Treasury.
subparagraph (B)(i) of section 851(b)(3) 851(b)(3) and 851(h)) ............... 15 ACTION: Final rule; Treasury decision.
because, after applying section 851(c)(1), Securities of various corporations
more than 25 percent of the value of (not exceeding 5 percent of its SUMMARY: The Alcohol and Tobacco Tax
Investment Company Y’s total assets is assets in any one company) ..... 25 and Trade Bureau is revising the wine
mstockstill on DSK4VPTVN1PROD with RULES
invested in the securities of Corporation B.
regulations governing the return of wine
This result is shown by the following Total .......................................... 100
calculation: to bonded wine premises in response to
(ii) Investment Company T owns more than two statutory changes. First, to
Percent 20 percent of the voting power of Corporation incorporate a provision contained in the
A and less than 10 percent of the voting Taxpayer Relief Act of 1997, TTB is
Percentage of assets invested di- power of all of the other corporations. removing a regulatory requirement that
rectly in Corporation B .............. 20.0 Corporation A has 80 percent of its assets wine returned to bond must be
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Document Created: 2015-12-15 10:09:23
Document Modified: 2015-12-15 10:09:23
| 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 regulations. | |
| Contact | Julanne Allen or Susan Baker of the Office of Associate Chief Counsel (Financial Institutions and Products) at (202) 317-6945 (Julanne Allen) or (202) 317-7053 (Susan Baker) (not toll-free numbers). | |
| FR Citation | 80 FR 55243 | |
| RIN Number | 1545-BK96 | |
| CFR Associated | Income Taxes and Reporting and Recordkeeping Requirements |
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