82_FR_7594 82 FR 7582 - Transfers of Certain Property by U.S. Persons to Partnerships With Related Foreign Partners

82 FR 7582 - Transfers of Certain Property by U.S. Persons to Partnerships With Related Foreign Partners

DEPARTMENT OF THE TREASURY
Internal Revenue Service

Federal Register Volume 82, Issue 12 (January 19, 2017)

Page Range7582-7611
FR Document2017-01049

This document contains temporary regulations that address transfers of appreciated property by United States persons (U.S. persons) to partnerships with foreign partners related to the transferor. The regulations override the rules providing for nonrecognition of gain on a contribution of property to a partnership in exchange for an interest in the partnership under section 721(a) of the Internal Revenue Code (Code) pursuant to section 721(c) unless the partnership adopts the remedial method and certain other requirements are satisfied. The document also contains regulations under sections 197, 704, and 6038B that apply to certain transfers described in section 721. The regulations affect U.S. partners in domestic or foreign partnerships. The text of the temporary regulations also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the Federal Register. The final regulations revise and add cross-references to coordinate the application of the temporary regulations.

Federal Register, Volume 82 Issue 12 (Thursday, January 19, 2017)
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 7582-7611]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-01049]



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Vol. 82

Thursday,

No. 12

January 19, 2017

Part XVIII





 Department of the Treasury





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Internal Revenue Service





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26 CFR Part 1





 Transfers of Certain Property by U.S. Persons to Partnerships With 
Related Foreign Partners; Final and Temporary Rules

Federal Register / Vol. 82 , No. 12 / Thursday, January 19, 2017 / 
Rules and Regulations

[[Page 7582]]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 9814]
RIN 1545-BM95


Transfers of Certain Property by U.S. Persons to Partnerships 
With Related Foreign Partners

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final and temporary regulations.

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SUMMARY: This document contains temporary regulations that address 
transfers of appreciated property by United States persons (U.S. 
persons) to partnerships with foreign partners related to the 
transferor. The regulations override the rules providing for 
nonrecognition of gain on a contribution of property to a partnership 
in exchange for an interest in the partnership under section 721(a) of 
the Internal Revenue Code (Code) pursuant to section 721(c) unless the 
partnership adopts the remedial method and certain other requirements 
are satisfied. The document also contains regulations under sections 
197, 704, and 6038B that apply to certain transfers described in 
section 721. The regulations affect U.S. partners in domestic or 
foreign partnerships. The text of the temporary regulations also serves 
as the text of the proposed regulations set forth in the notice of 
proposed rulemaking on this subject in the Proposed Rules section of 
this issue of the Federal Register. The final regulations revise and 
add cross-references to coordinate the application of the temporary 
regulations.

DATES: Effective Date: These regulations are effective on January 18, 
2017.
    Applicability Dates: For dates of applicability, see Sec. Sec.  
1.197-2T(l)(5)(i), 1.704-1T(f), 1.704-3T(g)(1), 1.721(c)-1T(e), 
1.721(c)-2T(e), 1.721(c)-3T(e), 1.721(c)-4T(d), 1.721(c)-5T(g), 
1.721(c)-6T(g), and 1.6038B-2T(j)(4)(i).

FOR FURTHER INFORMATION CONTACT: Concerning the temporary regulations, 
Ryan A. Bowen, (202) 317-6937; concerning submissions of comments or 
requests for a public hearing, Regina Johnson, (202) 317-6901 (not 
toll-free numbers).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collection of information contained in the regulations is 
listed with the Office of Management and Budget under control numbers 
1545-1668 and 1545-0123 in accordance with the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information 
should be sent to the Office of Management and Budget, Attn: Desk 
Officer for the Department of the Treasury, Office of Information and 
Regulatory Affairs, Washington, DC 20503, with copies to the Internal 
Revenue Service, Attn: IRS Reports Clearance Officer, 
SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of 
information should be received February 21, 2017.
    The collections of information are in Sec. Sec.  1.721(c)-6T and 
1.6038B-2T. The collections of information are mandatory. The likely 
respondents are domestic corporations. Burdens associated with these 
requirements will be reflected in the burden for Form 1065, U.S. Return 
of Partnership Income, and Form 8865, Return of U.S. Persons With 
Respect to Certain Foreign Partnerships. Estimates for completing these 
forms can be located in the form instructions.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a valid 
control number.

Background

I. Statutory Background

    Until they were repealed as part of the Taxpayer Relief Act of 1997 
(the 1997 Act), Public Law 105-34 (111 Stat. 788), section 1131, 
sections 1491 through 1494 imposed an excise tax on certain transfers 
of appreciated property by a U.S. person to a foreign partnership, 
which generally was 35 percent of the amount of gain inherent in the 
property. Congress believed that the imposition of enhanced information 
reporting obligations (including sections 6038, 6038B, and 6046A) with 
respect to foreign partnerships would eliminate the need for sections 
1491 through 1494. Staff of the Joint Committee on Taxation, General 
Explanation of Tax Legislation Enacted in 1997, Part Two: Taxpayer 
Relief Act of 1997 (H.R. 2014) (JCS-23-97) (Dec. 17, 1997), at 314-315.
    Notwithstanding these enhanced information reporting requirements, 
the 1997 Act granted the Secretary regulatory authority in section 
721(c) to override the application of the nonrecognition provision of 
section 721(a) to gain realized on the transfer of property to a 
partnership (domestic or foreign) if the gain, when recognized, would 
be includible in the gross income of a person other than a U.S. person. 
In the 1997 Act, Congress also enacted section 367(d)(3), which 
provides the Secretary regulatory authority to apply the rules of 
section 367(d)(2) to transfers of intangible property to partnerships 
in circumstances consistent with the purposes of section 367(d). 
Regulations have never been issued pursuant to section 721(c) or 
section 367(d)(3).
    Congress enacted section 367 (and its predecessor) in order to 
prevent U.S. persons from avoiding U.S. tax by transferring appreciated 
property to foreign corporations using nonrecognition transactions. 
Staff of the Joint Committee on Taxation, General Explanation of the 
Revenue Provisions of the Deficit Reduction Act of 1984 (H.R. 4170, 
98th Congress; Pub. L. 98-369) (JCS-41-84) (Dec. 31, 1984), at 427. The 
outbound transfer of intangible property raises additional issues that 
Congress also sought to address. Specifically, section 367(d) was 
enacted to prevent U.S. persons from transferring intangibles offshore 
in order to achieve deferral of U.S. tax on the profits generated by 
the intangibles. H.R. Rep. No. 98-432, 98th Cong., 2d Sess., at 1311-15 
(1984). Under section 367(d), a U.S. person that transfers intangible 
property (within the meaning of section 936(h)(3)(B)) to a foreign 
corporation in an exchange described in section 351 or section 361 is 
treated as having sold such property in exchange for payments that are 
contingent upon the productivity, use, or disposition of such property, 
and receiving amounts that reasonably reflect the amounts that would 
have been received annually in the form of such payments over the 
useful life of the property, or, in the case of a disposition following 
the transfer (whether direct or indirect), at the time of the 
disposition. Section 367(d)(2)(A). The amounts taken into account must 
be commensurate with the income attributable to the intangible 
property. Id.
    Section 721(a) provides a general rule that no gain or loss is 
recognized to a partnership or to any of its partners in the case of a 
contribution of property to the partnership in exchange for an interest 
in the partnership. Because section 367 applies only to the transfer of 
property to a foreign corporation, absent regulations under section 
721(c) or section 367(d)(3), a U.S. person generally does not recognize 
gain on the contribution of appreciated property to a partnership with 
foreign partners.
    Section 704(c)(1)(A) requires partnerships to allocate income, 
gain, loss, and deduction with respect to property contributed by a 
partner to the partnership so as to take into account any variation 
between the adjusted tax

[[Page 7583]]

basis of the property and its fair market value at the time of 
contribution.

II. Regulatory Background

    Section 1.704-3(a)(1) provides that the purpose of section 704(c) 
is to prevent the shifting of tax consequences among partners with 
respect to pre-contribution gain or loss (forward section 704(c) 
layer). In addition, partnerships may, but are not required to, revalue 
partnership property pursuant to Sec.  1.704-1(b)(2)(iv)(f) or (s) upon 
the occurrence of enumerated events, such as the entry of a new partner 
by contribution, giving rise to a reverse section 704(c) layer. Section 
1.704-3(a)(6)(i) provides that the principles of Sec.  1.704-3 apply to 
allocations with respect to these reverse section 704(c) layers 
(reverse section 704(c) allocations).
    Section 704(c) allocations must be made using any reasonable method 
consistent with the purpose of section 704(c). Section 1.704-3(a)(1). 
Section 1.704-3 describes three methods of making section 704(c) 
allocations that are generally reasonable, including the remedial 
allocation method. Id. Under the remedial allocation method, a 
partnership may eliminate distortions caused by the ceiling rule (as 
described in Sec.  1.704-3(b)(1)) by making remedial allocations of 
income, gain, loss, or deduction to the noncontributing partners equal 
to the full amount of the limitation caused by the ceiling rule, and 
offsetting those allocations with remedial allocations of income, gain, 
loss, or deduction to the contributing partner. See Sec.  1.704-
3(d)(1); see also T.D. 8585 (59 FR 66724). Under Sec.  1.704-3(a)(10), 
an allocation method (or combination of methods) is not reasonable if 
the contribution of property (or event that results in reverse section 
704(c) allocations) and the corresponding allocation of tax items with 
respect to the property are made with a view to shifting the tax 
consequences of built-in gain or loss among the partners in a manner 
that substantially reduces the present value of the partners' aggregate 
tax liability. However, Sec.  1.704-3(d)(5)(ii) provides that, in 
exercising its authority under Sec.  1.704-3(a)(10), the IRS will not 
require a partnership to use the remedial allocation method.

III. Reasons for Exercising Regulatory Authority

    The Treasury Department and the IRS are aware that certain 
taxpayers purport to be able to contribute, consistently with sections 
704(b), 704(c), and 482, property to a partnership that allocates the 
income or gain from the contributed property to related foreign 
partners that are not subject to U.S. tax. Many of these taxpayers 
choose a section 704(c) method other than the remedial method or use 
valuation techniques that are inconsistent with the arm's length 
standard. In 1997, Congress recognized that taxpayers might use a 
partnership to shift gain to a foreign person and consequently enacted 
sections 721(c) and 367(d)(3). Based on the experience of the IRS with 
the taxpayer positions described above, the Treasury Department and the 
IRS have determined that it is appropriate to exercise the regulatory 
authority granted in section 721(c) to override the application of 
section 721(a) to gain realized on the transfer of property to a 
partnership (domestic or foreign) in certain circumstances in which the 
gain, when recognized, ultimately would be includible in the gross 
income of a foreign person. Although Congress also provided specific 
authority in section 367(d)(3) to address transfers of intangible 
property to partnerships, the Treasury Department and the IRS have 
concluded that acting pursuant to section 721(c) is more appropriate 
because the transactions at issue are not limited to transfers of 
intangible property.

IV. Notice 2015-54

    On August 6, 2015, the Department of the Treasury (Treasury 
Department) and the IRS issued Notice 2015-54, 2015-34 I.R.B. 210 (the 
notice), which describes regulations to be issued under section 721(c) 
that would ensure that, when a U.S. person transfers certain property 
to a partnership that has foreign partners related to the U.S. person, 
income or gain attributable to the appreciation in the property at the 
time of the contribution will be taken into account by the transferor 
either immediately or over time. Comments were received on the notice 
and will be included in the administrative record for the notice of 
proposed rulemaking on this subject in the Proposed Rules section of 
this issue of the Federal Register (REG-127203-15). The Treasury 
Department and the IRS have considered all the submitted comments. The 
significant comments are discussed in the Explanation of Provisions 
section of this preamble.
    The notice states that future regulations generally will override 
the application of section 721(a) to gain realized on the transfer of 
property to a partnership (domestic or foreign) in certain 
circumstances in which the gain, when recognized, ultimately would be 
includable in the gross income of a related foreign person. The notice 
further states that future regulations will allow for the continued 
application of section 721(a) to transfers to partnerships with related 
foreign partners when certain requirements intended to protect the U.S. 
tax base are satisfied. The notice described these requirements, in 
addition to others, as the ``gain deferral method.''
    The requirements of the gain deferral method described in the 
notice are that (i) the section 721(c) partnership adopts the remedial 
allocation method for built-in gain with respect to all section 721(c) 
property contributed to the partnership pursuant to the same plan by 
the U.S. transferor and all U.S. transferors that are related persons; 
(ii) the section 721(c) partnership makes consistent allocations of all 
section 704(b) items with respect to an item of section 721(c) property 
(the consistent allocation method); (iii) certain reporting 
requirements are satisfied; (iv) the U.S. transferor recognizes any 
remaining built-in gain with respect to section 721(c) property upon an 
acceleration event; and (v) the gain deferral method is adopted for all 
section 721(c) property subsequently contributed to the section 721(c) 
partnership by the U.S. transferor and all other U.S. transferors that 
are related persons until the earlier of two dates: the date that no 
built-in gain remains with respect to any section 721(c) property to 
which the gain deferral method first applied, or the date that is 60 
months after the date of the initial contribution of section 721(c) 
property to which the gain deferral method first applied (unified 
application requirement). See Part III of the Explanations of 
Provisions section of this preamble for the definitions of ``section 
721(c) partnership,'' ``section 721(c) property,'' ``U.S. transferor'' 
and other commonly used terms.
    The notice generally provides that the regulations will define an 
acceleration event as any transaction that either (i) would reduce the 
amount of remaining built-in gain that a U.S. transferor would 
recognize under the gain deferral method if the transaction had not 
occurred, or (ii) could defer the recognition of the built-in gain. The 
notice also describes several situations that the regulations will not 
treat as acceleration events.
    The notice states that the regulations will apply to transactions 
involving tiered partnerships in a manner that is consistent with the 
purpose of the regulations. As examples, the notice provides that the 
regulations will treat a contribution of section 721(c) property by a 
partnership (in which a U.S. transferor is a direct or indirect 
partner) to a lower-tier partnership, or a

[[Page 7584]]

contribution by a U.S. transferor of an interest in a partnership that 
owns section 721(c) property to an upper-tier partnership, as though 
the U.S. transferor contributed its share of the section 721(c) 
property directly.
    The notice provides that the regulations described therein will 
apply to contributions occurring on or after August 6, 2015, and to 
contributions occurring before August 6, 2015, resulting from an entity 
classification election made under Sec.  301.7701-3 that is filed on or 
after August 6, 2015, and that is effective on or before August 6, 
2015. The notice provides, however, that the reporting requirements 
will not apply to taxable years that end before the date of publication 
of regulations described in the notice.
    The notice also announced the intent to issue regulations under 
sections 482 and 6662 to ensure the appropriate valuation of controlled 
transactions involving partnerships. These regulations are not 
contained in this Treasury decision and will appear in future 
regulations. Section 482 continues to apply to controlled transactions 
(within the meaning of Sec.  1.482-1(i)(8)) that are also subject to 
these regulations. An adjustment pursuant to section 482 does not 
prevent the application of these regulations.

Explanation of Provisions

I. Comments Regarding Statutory Authority for Regulations

    Comments questioned whether the regulations described in the notice 
are within the scope of the grant of authority in section 721(c). 
Specifically, comments asserted that pre-contribution gain could not be 
taxed under section 721(c) until it is recognized in a sale or exchange 
by the partnership. The Treasury Department and the IRS disagree with 
these comments for several reasons.
    First, as explained in the notice, Congress added the broad grant 
of regulatory authority in section 721(c) in the 1997 Act to address 
transactions in which property is contributed to partnerships in order 
to inappropriately shift gain offshore as a replacement for the 
repealed excise tax on transfers to foreign partnerships in sections 
1491 through 1494.
    Second, section 721(c) provides authority to tax the gain when the 
property is contributed if the gain ``will be includible'' in a foreign 
person's income; it is not a rule (like section 704(c)(1)(B)) that 
requires the ``wait-and-see'' approach suggested by the comments. The 
comments fail to acknowledge that neither the traditional method nor 
the traditional method with curative allocations will necessarily 
ensure that a contributing partner will bear all the tax consequences 
of pre-contribution gain. A contributing partner exchanges a share of 
the property it contributes for a share of the property the other 
partners contribute. Economically, a contribution is a current value-
for-value exchange. The purpose of section 704(c) is to prevent the 
shifting of tax consequences among partners with respect to pre-
contribution built-in gain or loss in contributed property. The 
regulations under section 704(c) provide three generally reasonable 
methods under which partnerships may allocate items with respect to 
contributed property so as to take into account the tax consequences of 
pre-contribution gain or loss--the traditional method, the traditional 
method with curative allocations, and the remedial allocation method. 
None of the methods are mandatory, and taxpayers may choose any of them 
(or another reasonable method) on a property-by-property and section 
704(c) layer-by-layer basis. In the case of a contribution of 
depreciable or amortizable property with pre-contribution gain, under 
all three methods, book cost recovery deductions reduce the pre-
contribution gain in the property (the gain that must be allocated back 
to the contributor) over the course of the recovery period for the 
property. Under the traditional method, tax cost recovery deductions 
(which are based on tax basis in the property) are, to the extent 
available, allocated first to the noncontributing partner up to its 
allocated book cost recovery deductions. If the noncontributing 
partner's book cost recovery deductions exceed its tax cost recovery 
deductions, the noncontributing partner will be overtaxed on its 
investment in the partnership property. The traditional method does not 
make up for shortfalls in available tax deductions, and if the 
partnership uses the traditional method with curative allocations, 
those shortfalls are cured only if there are other tax items available 
with which to cure. Because book cost recovery deductions reduce the 
built-in gain in the property regardless of whether the noncontributing 
partner has received all of the tax cost recovery deductions to which 
it is economically entitled or whether the contributing partner has 
received taxable income (or fewer tax deductions) commensurate with the 
pre-contribution gain in its property, neither the traditional method 
nor the traditional method with curative allocations prevents a shift 
of the tax consequences of pre-contribution gain to the noncontributing 
partner when tax basis or other tax items are insufficient to reflect 
the economics of the noncontributing partner. When this shift occurs, 
the contributing partner generally will not bear the tax consequences 
of the pre-contribution gain until, at the earliest, its partnership 
interest is liquidated or sold. In this way, the contribution of 
property to a partnership applying either of these two methods can 
result in a tax-advantaged exchange with respect to the contributing 
partner. When the noncontributing partner is foreign, this situation is 
the appropriate target for the temporary regulations.
    Finally, the regulations under section 704(c) give wide latitude to 
taxpayers regarding how and when partners may choose to recognize pre-
contribution gain. Subject to anti-abuse rules, taxpayers are allowed 
to adopt the traditional method and the traditional method with 
curative allocations despite those methods' inability to prevent a 
shift of the tax consequences of pre-contribution gain in all cases. 
This latitude raises more concern in the case of related partners, one 
or more of whom are foreign, given their likely overall alignment of 
tax interests, which would not necessarily exist among unrelated 
partners. As explained in Part II of the Background section of this 
preamble, the remedial allocation method is the only method that 
reliably and consistently ensures that the tax consequences of pre-
contribution gain from contributed property are properly borne by the 
contributing partner. This feature of the remedial method is 
particularly relevant to the Congressional concerns about the erosion 
of the U.S. tax base that led to the enactment of section 721(c), and 
thus the remedial method is the method that is most appropriate for 
appreciated property that is contributed to a partnership controlled by 
the U.S. transferor and one or more related foreign partners. For these 
reasons, the Treasury Department and the IRS have determined that these 
regulations are within the scope of the grant of authority in section 
721(c).

II. Overview of the Temporary Regulations

    The temporary regulations adopt the rules that were described in 
the notice, with certain modifications, in part, in response to 
comments received.
    Section 1.721(c)-1T provides definitions and rules of general 
application for purposes of all sections of the temporary regulations. 
Section

[[Page 7585]]

1.721(c)-2T provides the general operative rules that override section 
721(a) nonrecognition upon a contribution of section 721(c) property to 
a partnership. Section 1.721(c)-3T describes the gain deferral method, 
which, if adopted, avoids the immediate recognition of gain upon a 
contribution of section 721(c) property. Section 1.721(c)-4T provides 
rules regarding events that accelerate the recognition of gain that 
previously was deferred under the gain deferral method. Section 
1.721(c)-5T identifies exceptions to the acceleration events provided 
in Sec.  1.721(c)-4T, the result of which, generally, is that the gain 
deferral method either ends (termination events) or continues to apply 
without immediate gain recognition (successor events) or continues to 
apply with partial gain recognition (partial acceleration events). 
Section 1.721(c)-6T provides procedural and reporting requirements. 
Section 1.721(c)-7T provides examples illustrating the application of 
the temporary regulations.

III. General Scope of the Temporary Regulations

    The temporary regulations apply on a property-by-property basis. 
Accordingly, as discussed in Paragraph b of Part VI of the Explanations 
of Provisions section of this preamble, the temporary regulations do 
not include the unified application requirement announced in the 
notice.
    The temporary regulations apply to all contributions, actual or 
deemed, of property to a partnership, including, for example, a 
contribution of property that occurs as a result of (i) a partnership 
merger, consolidation, or division in the assets-over form, (ii) a 
change in entity classification that occurs pursuant to Sec.  301.7701-
3, or (iii) a transaction described in Rev. Rul. 99-5, 1999-1 C.B. 434 
(change from a disregarded entity to a partnership). However, in 
response to a comment, the temporary regulations provide that a 
contribution in a technical termination of a partnership described in 
section 708(b)(1)(B) (technical termination) will not, by itself, cause 
a partnership to become a section 721(c) partnership subject to the 
temporary regulations. For further discussion, see Part IV of the 
Explanation of Provisions section of this preamble. However, the 
temporary regulations do apply to a technical termination of a section 
721(c) partnership applying the gain deferral method. In this regard, 
see Part V and Paragraph c of Part VIII of the Explanation of 
Provisions section of this preamble, concerning the general rule of 
gain recognition and successor events, respectively.
    The temporary regulations provide that a mere change in identity, 
form, or place of organization of a partnership or a recapitalization 
of a partnership will not cause the partnership to become a section 
721(c) partnership. See Sec.  1.721(c)-1T(c).
    Finally, as announced in the notice, the temporary regulations 
contain rules for transactions involving tiered partnerships, as well 
as a general anti-abuse rule (see Sec.  1.721(c)-1T(d)) that applies 
for purposes of all sections of the temporary regulations.

IV. Definitions: Section 721(c) Partnership, Section 721(c) Property, 
U.S. Transferor, and Other Terms

    The notice states that future regulations would provide that a 
partnership is a section 721(c) partnership if a U.S. transferor 
contributes section 721(c) property to the partnership, and, after the 
contribution and any transactions related to the contribution, (i) a 
related foreign person is a direct or indirect partner, and (ii) the 
U.S. transferor and related persons own (directly or indirectly) more 
than 50 percent of the interests in partnership capital, profits, 
deductions, or losses.
    A comment requested that the definition of section 721(c) 
partnership be revised to exclude partnerships when the interests held 
by related foreign persons are small and an unrelated third-party with 
a material adverse tax position to the U.S. transferor holds a 
meaningful interest in the partnership. According to the comment, these 
two factors would sufficiently mitigate the potential for the abuse 
that the notice is intended to address. While these factors may reduce 
the ability of a U.S. transferor to shift gain or income outside the 
United States, the Treasury Department and the IRS have concluded that 
these factors alone are insufficient to prevent the erosion of the U.S. 
tax base that section 721(c) was enacted to address. In particular, the 
Treasury Department and the IRS are concerned that even a small 
ownership interest held by a related foreign person may be used for a 
meaningful shift of gain or income outside the United States. 
Furthermore, the Treasury Department and the IRS have determined that 
such a rule would necessitate additional rules to address small 
interests that later become large either in absolute or relative terms. 
In this regard, the Treasury Department and the IRS have determined 
that both a general anti-abuse rule and a more targeted rule that would 
require periodic retesting of the size of a related foreign person's 
interest would be difficult to administer. Accordingly, this comment 
has not been adopted. The Treasury Department and the IRS, however, 
acknowledge that the higher the overall level of related ownership in 
the partnership, the more likely the arrangement among the partners 
will reflect tax considerations. After considering this comment and 
other comments that requested a higher level of related-party ownership 
in the definition of a section 721(c) partnership, the temporary 
regulations increase the threshold from a ``more than 50 percent'' test 
to an ``80 percent or more'' test (ownership requirement). See Sec.  
1.721(c)-1T(b)(14)(i) for the general definition of a section 721(c) 
partnership. The temporary regulations also provide rules that deem 
certain controlled partnerships in a tiered-partnership structure to be 
section 721(c) partnerships in order to apply the gain deferral method. 
See Sec.  1.721(c)-1T(b)(14)(ii).
    The temporary regulations define section 721(c) property as 
property, other than excluded property, with built-in gain that is 
contributed to a partnership by a U.S. transferor. See Sec.  1.721(c)-
1T(b)(15)(i) for the general definition of section 721(c) property. The 
notice incorporated the requirement that a U.S. transferor make the 
contribution in the definition of a section 721(c) partnership rather 
than in the definition of section 721(c) property. This adjustment to 
the definitions is intended to be a non-substantive change. The 
temporary regulations provide that if a U.S. transferor is treated as 
contributing its share of an item of property, the entire item of 
property is section 721(c) property. In addition, the temporary 
regulations provide rules that deem certain property of a tiered 
partnership to be section 721(c) property. See Sec.  1.721(c)-
1T(b)(15)(ii). When an interest in a partnership is contributed, the 
partnership interest, if it is not excluded property, is the section 
721(c) property.
    The temporary regulations define excluded property as (i) a cash 
equivalent; (ii) a security within the meaning of section 475(c)(2), 
without regard to section 475(c)(4); (iii) an item of tangible property 
with built-in gain that does not exceed $20,000 or with an adjusted tax 
basis in excess of book value (built-in loss); and (iv) an interest in 
a partnership that holds (directly, or indirectly through interests in 
one or more partnerships that are not excluded property under this 
clause (iv)) property of which 90 percent or more of the value consists 
of property described in clauses (i) through (iii) (partnership 
interest

[[Page 7586]]

exclusion). See Sec.  1.721(c)-1T(b)(6). The notice announced the first 
three categories of excluded property. However, the temporary 
regulations include tangible property with a built-in loss in the third 
exclusion so that such property is excluded property for purposes of 
the partnership interest exclusion. The Treasury Department and the IRS 
determined that it was appropriate to add the partnership interest 
exclusion so that the temporary regulations do not apply to transfers 
of partnership interests when only a small portion of the partnership's 
property is section 721(c) property. If a partnership interest fails 
the 90-percent threshold test for the partnership interest exclusion 
and does not qualify under the second exclusion for securities, the 
interest is section 721(c) property.
    Comments recommended that property that gives rise to income 
effectively connected with a U.S. trade or business (ECI property) be 
excluded from the definition of section 721(c) property, because the 
income will be subject to U.S. tax even if it is allocated to a related 
foreign person. The Treasury Department and the IRS agree with the 
reasoning behind this comment, and have determined that the temporary 
regulations should also address the situation when the property ceases 
to be ECI property and still has built-in gain. Accordingly, the 
temporary regulations continue to include ECI property in the 
definition of section 721(c) property but modify the application of the 
gain deferral method to ECI property, as discussed in Paragraph c of 
Part VI of the Explanation of Provisions section of this preamble.
    Another comment similarly suggested that the definition of section 
721(c) property exclude property the gain on which would be subject to 
U.S. tax under subpart F of the Code. The Treasury Department and IRS 
have declined to adopt such a rule, which would depend on a ``wait and 
see'' approach and would import the recognition rules of subpart F, 
including an earnings and profits requirement, rather than the more 
direct approach of section 721(c).
    The temporary regulations define built-in gain with respect to an 
item of property contributed to a partnership as the excess of the book 
value of the property over the partnership's adjusted tax basis in the 
property upon the contribution, determined without regard to the 
application of the gain recognition rule of Sec.  1.721(c)-2T(b). See 
Sec.  1.721(c)-1T(b)(2). The temporary regulations clarify the 
definition provided in the notice in two respects. First, the notice 
states that built-in gain would be determined with respect to the 
contributing partner's adjusted tax basis in the property at the time 
of the contribution, whereas the temporary regulations provide that 
built-in gain is determined with respect to the partnership's adjusted 
tax basis in the property. The revision was made in order to more 
precisely describe the amount of gain that may be shifted to a related 
foreign partner. Second, the temporary regulations clarify that built-
in gain is determined without regard to the application of the gain 
recognition rule under Sec.  1.721(c)-2T(b).
    The temporary regulations include a new term, ``remaining built-in 
gain.'' Section 1.721(c)-1T(b)(13)(i) generally defines remaining 
built-in gain, with respect to an item of section 721(c) property that 
is subject to the gain deferral method, as the built-in gain, reduced 
by decreases in the difference between the property's book value and 
adjusted tax basis. However, subsequent increases or decreases to the 
property's book value due to a revaluation other than a revaluation 
required under these temporary regulations for tiered partnerships are 
not taken into account in determining remaining built-in gain. The 
temporary regulations provide rules for determining remaining built-in 
gain in the case of tiered partnerships. See Sec.  1.721(c)-
1T(b)(13)(ii).
    Consistent with the notice, Sec.  1.721(c)-1T(b)(18)(i) of the 
temporary regulations generally defines a U.S. transferor as a U.S. 
person (within the meaning of section 7701(a)(30)) other than a 
domestic partnership. The temporary regulations also provide a rule 
that deems certain tiered partnerships to be a U.S. transferor solely 
for purposes of applying the consistent allocation method. See Sec.  
1.721(c)-1T(b)(18)(ii).
    Finally, the temporary regulations, consistent with the notice, 
define (i) a related person as a person that is related (within the 
meaning of section 267(b) or section 707(b)(1)) to a U.S. transferor; 
(ii) a related foreign person as a person that is a related person 
(other than a partnership) that is not a U.S. person; and (iii) a 
direct or indirect partner as a person (other than a partnership) that 
owns an interest in a partnership directly or indirectly through one or 
more partnerships. See Sec.  1.721(c)-1T(b)(12), (b)(11), and (b)(5), 
respectively.

V. General Rule of Gain Recognition Upon a Contribution of Section 
721(c) Property to a Section 721(c) Partnership

    Section 1.721(c)-2T provides the general operative rules that 
override section 721(a) nonrecognition of gain upon a contribution of 
section 721(c) property to a partnership. Section 1.721(c)-2T(b) 
provides the general rule that nonrecognition under section 721(a) will 
not apply to gain realized upon a contribution of section 721(c) 
property to a section 721(c) partnership. In contrast to the 
regulations described in the notice, Sec.  1.721(c)-2T(b) provides that 
this general rule does not apply--and therefore that nonrecognition 
under section 721(a) continues to apply--to a direct contribution of 
section 721(c) property by an ``unrelated'' U.S. transferor (in other 
words, a U.S. transferor that does not, together with related persons 
with respect to it, satisfy the ownership requirement). The carve-out 
is consistent with the intent of the temporary regulations to address 
the shifting of income among related persons. Because this carve-out 
for an unrelated U.S. transferor is limited to direct contributions of 
section 721(c) property, it does not apply to a contribution that 
occurs pursuant to the partnership look-through rule in Sec.  1.721(c)-
2T(d)(1) (as discussed elsewhere in this Part V).
    Section 1.721(c)-2T(c) provides a de minimis exception to the 
general rule. The temporary regulations modify the de minimis exception 
described in the notice--which focused on contributions made by a U.S. 
transferor (and all related U.S. transferors) during the U.S. 
transferor's taxable year--to focus instead on contributions during the 
partnership's taxable year, in order to align the rule with the 
reporting required under Sec.  1.721(c)-6T. Under the de minimis 
exception in the temporary regulations, contributions of section 721(c) 
property will not be subject to immediate gain recognition if the sum 
of all built-in gain for all section 721(c) property contributed to a 
section 721(c) partnership during the partnership's taxable year does 
not exceed $1 million.
    Section 1.721(c)-2T(d)(1) provides a look-through rule for 
identifying a section 721(c) partnership when an upper-tier partnership 
in which a U.S. transferor is a direct or indirect partner contributes 
property to a lower-tier partnership. For purposes of determining if 
the lower-tier partnership is a section 721(c) partnership, the U.S. 
transferor will be treated as contributing to the lower-tier 
partnership its share of the property actually contributed by the 
upper-tier partnership to the lower-tier partnership. If the lower-tier 
partnership is a section 721(c) partnership, absent application of the 
gain deferral method by the lower-tier partnership to the entire 
property and by the upper-tier partnership to the partnership interest 
in the lower-tier partnership, the upper-tier partnership will 
recognize the entire

[[Page 7587]]

built-in gain in the section 721(c) property under the general gain 
recognition rule, because the entire property will be section 721(c) 
property (see the general definition of section 721(c) property in 
Sec.  1.721(c)-1T(b)(15)(i)).
    Section 1.721(c)-2T(d)(2) provides that the partnership look-
through rule will not apply to a deemed contribution by an ``old'' 
partnership to a ``new'' partnership that occurs as a result of a 
technical termination of the old partnership. Thus, a technical 
termination will not cause a non-section 721(c) partnership, in which a 
U.S. transferor is a direct or indirect partner, to become a section 
721(c) partnership subject to these temporary regulations. If, however, 
a partnership is a section 721(c) partnership subject to the temporary 
regulations immediately before its technical termination, the technical 
termination would be a successor event (rather than an acceleration 
event) only if the new partnership continues the gain deferral method 
with respect to the section 721(c) property that was subject to the 
gain deferral method in the terminated partnership. In this regard, see 
Sec.  1.721(c)-5T(c)(4) (defining a successor event to include certain 
technical terminations).

VI. Gain Deferral Method

a. In General

    Section 1.721(c)-3T describes the gain deferral method, which 
generally must be applied in order to avoid the immediate recognition 
of gain upon a contribution of section 721(c) property to a section 
721(c) partnership. Section 1.721(c)-3T(b) provides the five general 
requirements for applying the gain deferral method to an item of 
section 721(c) property: (i) The section 721(c) partnership adopts the 
remedial allocation method and allocates section 704(b) items of 
income, gain, loss, and deduction with respect to the section 721(c) 
property in a manner that satisfies the consistent allocation method; 
(ii) the U.S. transferor recognizes gain equal to the remaining built-
in gain with respect to the section 721(c) property upon an 
acceleration event, or an amount of gain equal to a portion of the 
remaining built-in gain upon a partial acceleration event or certain 
transfers to foreign corporations described in section 367; (iii) 
procedural and reporting requirements are satisfied; (iv) the U.S. 
transferor extends the period of limitations on assessment of tax (as 
discussed in Part X of the Explanation of Provisions section of this 
preamble); and (v) the rules for tiered partnerships are satisfied if 
either the section 721(c) property is an interest in a partnership or 
the section 721(c) property is described in the partnership look-
through rule in Sec.  1.721(c)-2T(d)(1).

b. Application of the Gain Deferral Method on a Property-by-Property 
Basis

    Comments questioned the necessity for the unified application 
requirement announced in the notice. The unified application 
requirement was intended to prevent taxpayers from disaggregating the 
contribution of separate but related business property and choosing to 
recognize gain upon contribution for some property and to apply the 
gain deferral method for other property, in an attempt to minimize the 
reported cumulative value for all contributed property or to minimize 
the reported value of property for which the gain deferral method was 
not adopted. This concern arises, in part, because the IRS may not be 
able to make an adjustment for the correct amount of gain with respect 
to property that is not subject to the gain deferral method due to the 
expiration of the period of limitations on the assessment of tax. While 
the Treasury Department and the IRS continue to be concerned that 
taxpayers will attempt to disaggregate related business property in 
order to undervalue their contributions, the temporary regulations 
adopt a more targeted approach to address these comments. Accordingly, 
the temporary regulations do not include the unified application 
requirement and instead apply on a property-by-property basis.
    As described in the notice, in order to apply the gain deferral 
method with respect to a contribution of section 721(c) property to a 
section 721(c) partnership, the temporary regulations require the U.S. 
transferor to extend the period of limitations on assessment of tax on 
all items related to the property with respect to which the gain 
deferral method applies through the close of the eighth full taxable 
year following the contribution. To address the concerns that motivated 
the uniform application requirement, the temporary regulations require 
a U.S. transferor to extend the period of limitations on assessment of 
tax on the gain recognized under the general rule with respect to any 
section 721(c) property that is contributed to the partnership for 
which the gain deferral method will not be applied through the close of 
the fifth full taxable year following the contribution of such 
property, if the property is contributed within five full taxable years 
after a gain deferral contribution, defined in Sec.  1.721(c)-1T(b)(7) 
as a contribution of section 721(c) property to a section 721(c) 
partnership with respect to which the gain is deferred under the gain 
deferral method. See Sec. Sec.  1.721(c)-3T(b)(4) and 1.721(c)-
6T(b)(5)(iii), discussed in Part X of the Explanation of Provisions 
section of this preamble. Additionally, it should be noted that Sec.  
1.482-1T(f)(2)(i)(B) provides that separate transactions must be 
aggregated for purposes of determining the arm's length pricing of such 
transactions under section 482, including for purposes of an analysis 
under multiple provisions of the Code or regulations, if the 
transactions are so interrelated that an aggregate analysis provides 
the most reliable measure of the arm's length result.

c. Application of the Gain Deferral Method to ECI Property

    As discussed in Part IV of the Explanation of Provisions section of 
this preamble, the temporary regulations do not adopt the comment 
recommending that ECI property be excluded from the definition of 
section 721(c) property. Instead, the temporary regulations continue to 
provide that a contribution of section 721(c) property that is ECI 
property is subject to immediate gain recognition if the gain deferral 
method is not applied. However, in response to the comment, the 
temporary regulations modify the gain deferral method such that ECI 
property is not subject to the remedial allocation method or the 
consistent allocation method. This special exception for ECI property 
applies for as long as, beginning on the date of the contribution and 
ending when there is no remaining built-in gain with respect to the 
property, all distributive shares of income and gain with respect to 
the property for all direct and indirect partners that are related 
foreign persons will be subject to taxation as effectively connected 
with a trade or business within the United States (under section 871 or 
882), and neither the section 721(c) partnership nor a direct or 
indirect partner that is a related foreign person claims benefits under 
an income tax treaty that would exempt the income or gain from tax or 
reduce the rate of taxation to which the income or gain is subject. See 
Sec.  1.721(c)-3T(b)(1)(ii).
    All the other requirements of the gain deferral method apply with 
respect to ECI property. Thus, a U.S. transferor must recognize gain 
upon an acceleration event with respect to ECI property, including when 
property ceases to be ECI property, and satisfy the procedural and 
reporting requirements with respect to ECI property. See Sec.  
1.721(c)-6T(b)(2)(iii), (b)(3)(vii), and (c)(1).

[[Page 7588]]

    A comment also requested an exclusion for property subject to tax 
under section 897 (relating to U.S. real property interests) from the 
definition of section 721(c) property. The temporary regulations do not 
adopt this comment because the special rules for ECI property 
appropriately address the concerns expressed regarding U.S. real 
property interests.

d. Application of the Gain Deferral Method to Anti-Churning Property

    Comments requested guidance on how the requirement to use the 
remedial allocation method interacts with the section 197 anti-churning 
rules. In general, section 197(f)(9) prohibits the amortization of 
goodwill and going concern value that was nonamortizable before the 
enactment of section 197 (section 197(f)(9) intangible property), and 
that prohibition continues if the property is transferred to a related 
person. Under Sec.  1.197-2(h)(12)(vii)(B), when section 197(f)(9) 
intangible property is contributed to a partnership, a noncontributing 
partner generally may receive remedial allocations of amortization with 
respect to the property. A noncontributing partner that is related to 
the contributing partner, however, may not receive such remedial 
allocations.
    One comment requested that a U.S. transferor not be required to 
include remedial income with respect to section 197(f)(9) intangible 
property when the gain deferral method is being applied. The temporary 
regulations do not adopt this comment. The Treasury Department and the 
IRS are concerned that providing favorable treatment for section 721(c) 
property belonging to a particular class would incentivize taxpayers to 
attribute excessive value to that class of property while 
simultaneously undervaluing related but separate section 721(c) 
property that remains subject to all of the requirements of the gain 
deferral method. This concern is especially pronounced in the case of 
section 197(f)(9) intangible property, which is often difficult to 
value separately from other identifiable intangible property. In this 
regard, see the preamble of the notice of proposed rulemaking (REG-
139483-13) containing proposed regulations under section 367, published 
in the Federal Register on September 16, 2015 (80 FR 55568). See also 
the preamble to T.D. 9803, which finalized those proposed regulations, 
published in the Federal Register on December 16, 2016 (81 FR 91012).
    Another comment recommended that regulations implementing the gain 
deferral method require the partnership to amortize the section 
197(f)(9) intangible and allocate remedial items of amortization to a 
related foreign partner and corresponding remedial items of income to 
the contributing partner. The Treasury Department and the IRS have 
determined that changing Sec.  1.197-2(h)(12)(vii)(B) to permit 
remedial allocations of amortization to related partners, or 
distinguishing between domestic and related foreign partners, would be 
contrary to section 197(f)(9) and therefore do not adopt this comment. 
In lieu of providing that remedial allocations may be made to a related 
partner, the temporary regulations provide a special non-amortizable 
tax basis adjustment to the property. This special adjustment is made 
solely with respect to the related partner. The Treasury Department and 
the IRS have determined that allowing this tax basis adjustment is 
consistent with the policy of the section 197 anti-churning rules.
    More specifically, the temporary regulations revise the remedial 
allocation method in Sec.  1.704-3(d) as to related partners when a 
section 721(c) partnership is applying the gain deferral method with 
respect to section 197(f)(9) intangible property. The revised rule 
requires the partnership to amortize the portion of the partnership's 
book value in the section 197(f)(9) intangible property that exceeds 
its adjusted tax basis in the property. Accordingly, the allocation of 
book amortization to a noncontributing partner will result in a ceiling 
rule limitation to the extent of this allocation of book amortization. 
If a noncontributing partner is a related person with respect to the 
U.S. transferor, the temporary regulations provide that, solely with 
respect to the related noncontributing partner, the partnership must 
increase the adjusted tax basis of the property by the amount of the 
difference between the book allocation of the item to the related 
person and the tax allocation of the same item to the related person 
and allocate remedial income in the same amount to the U.S. transferor. 
See Sec.  1.704-3T(d)(5)(iii)(C).
    The rules governing the tax consequences of the special tax basis 
adjustment are modeled on Sec.  1.743-1 and proposed regulations under 
section 704(c)(1)(C) that are contained in a notice of proposed 
rulemaking (REG-144468-05) published in the Federal Register (79 FR 
3042) on January 16, 2014. The adjustment to the tax basis of section 
197(f)(9) intangible property will be recovered by the related partner 
only upon a sale or exchange of the property by the partnership. 
Generally, a transfer by the noncontributing related partner of all or 
a portion of its interest in the partnership will eliminate the tax 
basis adjustment attributable to the interest such that the transferee 
will not succeed to the tax basis adjustment. However, if the interest 
is transferred in a substituted basis transaction, the transferee will 
succeed to the transferor's tax basis adjustment and the adjustment 
will be taken into account in computing and allocating any adjustment 
to the basis of the section 197(f)(9) intangible property under 
sections 743(b) and 755. These rules must be applied together with the 
general rules under section 197 and subchapter K of the Code. In 
resolving any uncertainty that arises in the implementation of these 
rules, it would be reasonable for taxpayers to apply principles similar 
to those contained in Sec.  1.743-1, the proposed regulations under 
section 704(c)(1)(C), and any Code sections or regulations that 
reference those rules.
    The Treasury Department and the IRS request comments on the 
following issues, and on any other issues relevant to a section 721(c) 
partnership's application of the remedial allocation method to section 
197(f)(9) intangible property: (i) The application of the method to 
members of a consolidated group; (ii) the treatment of a tax basis 
adjustment when the adjusted section 197(f)(9) intangible property is 
transferred (a) in a like-kind exchange described in section 1031, (b) 
to a lower-tier partnership, (c) in a transaction described in section 
351, (d) in a technical termination, or (e) in an installment sale; 
(iii) the treatment of a tax basis adjustment when the section 
197(f)(9) intangible property is distributed to the related person for 
whom the adjustment was made or to another partner in a current or 
liquidating distribution; and (iv) any rules that are necessary to 
ensure that the tax basis adjustment does not become amortizable in 
contravention of the anti-churning rules.

e. Consistent Allocation Method

1. In General
    Section 1.721(c)-3T(c)(1) describes the consistent allocation 
method, which, like the gain deferral method, applies on a property-by-
property basis. The consistent allocation method requires a section 
721(c) partnership to allocate the same percentage of each book item of 
income, gain, deduction, and loss ``with respect to the section 721(c) 
property'' to the U.S. transferor. Comments questioned the necessity of 
the requirement to apply the consistent allocation method. Some 
comments

[[Page 7589]]

asserted that the requirement is unnecessary because the built-in gain 
in section 721(c) property will be preserved in the difference between 
the book and tax capital accounts of a U.S. transferor. The Treasury 
Department and the IRS have determined that remedial allocations alone 
are insufficient to ensure that built-in gain with respect to section 
721(c) property will be subject to U.S. tax. The consistent allocation 
method is intended to prevent a U.S. transferor from rendering the 
remedial allocation method ineffective by, for example, having the 
partnership allocate a higher percentage share of book depreciation to 
the U.S. transferor (which would reduce the U.S. transferor's remedial 
income inclusion) than the U.S. transferor's percentage share of income 
or gain with respect to the property, which would result in shifting 
the gain (and taxable income) to related foreign persons that are 
direct or indirect partners in the partnership. Therefore the temporary 
regulations do not adopt this comment. The temporary regulations 
provide rules (discussed in Paragraph e.2 of this Part VI) to determine 
the amount of income, gain, deduction, and loss that is considered to 
be ``with respect to section 721(c) property'' under the gain deferral 
method.
    According to another comment, the consistent allocation method is 
both over-inclusive, in that situations in which a U.S. transferor is 
allocated greater income than its share of deductions would violate the 
rule, and under-inclusive, because deductions allocated to a U.S. 
transferor that do not arise from section 721(c) property are beyond 
the scope of the rule. This comment proposed an alternative anti-abuse 
rule that would require that a minimum cumulative amount of income be 
allocated to a U.S. transferor. The Treasury Department and the IRS 
have concluded that the rule described in the comment would be 
difficult to administer. However, in response to comments, the 
temporary regulations provide exceptions (discussed in Paragraph e.3 of 
this Part VI) to the consistent allocation method for certain 
regulatory allocations and the allocations of creditable foreign tax 
expenditures.
2. Determining Book Items With Respect to Section 721(c) Property
    The notice did not describe how partnership items are determined to 
be ``with respect to section 721(c) property.'' The temporary 
regulations provide guidance for making this determination based on 
principles that will be familiar to many taxpayers.
i. Book Items of Income and Gain
    Section 1.721(c)-3T(c)(2) provides the rule for determining the 
extent to which partnership items of book income and gain are 
considered to be ``with respect to'' particular section 721(c) property 
for purposes of applying the consistent allocation method on a 
property-by-property basis. This rule provides that a section 721(c) 
partnership must attribute book income and gain to each property in a 
consistent manner using any reasonable method that takes into account 
all the facts and circumstances. The temporary regulations provide that 
all items of book income and gain attributable to each property will 
comprise a single class of gross income for purposes of determining the 
extent to which partnership items of deduction or loss are allocated 
and apportioned with respect to the section 721(c) property.
ii. Book Items of Deduction and Loss
    Section 1.721(c)-3T(c)(3) provides the rules for determining the 
extent to which partnership items of book deduction and loss are 
considered to be ``with respect to'' particular section 721(c) property 
for purposes of applying the consistent allocation method. A section 
721(c) partnership must use the principles of Sec. Sec.  1.861-8 and 
1.861-8T to allocate and apportion all of its items of deduction, 
except for interest expense and research and experimental expenditures 
(R&E), and loss to the class of gross income with respect to each 
section 721(c) property. The section 721(c) partnership may allocate 
and apportion its interest expense and R&E using any reasonable method, 
including, but not limited to, the methods described in Sec. Sec.  
1.861-9 and 1.861-9T (interest expense) and Sec.  1.861-17 (R&E).
3. Exceptions to the Consistent Allocation Method
    In response to comments, the temporary regulations provide 
exceptions from the requirement to apply the consistent allocation 
method with respect to certain book items of a section 721(c) 
partnership.
i. Regulatory Allocations
    The temporary regulations provide that a regulatory allocation (as 
defined in Sec.  1.721(c)-1T(b)(10)) of book income, gain, deduction, 
or loss with respect to section 721(c) property that otherwise would 
fail to satisfy the requirements of the consistent allocation method 
nevertheless will, in certain cases, be deemed to satisfy the 
requirements. Specifically, a regulatory allocation is deemed to 
satisfy the requirements of the consistent allocation method if the 
allocation is (i) an allocation of income or gain to the U.S. 
transferor (or a member of its consolidated group); or (ii) an 
allocation of deduction or loss to a partner other than the U.S. 
transferor (or a member of its consolidated group). In addition, if the 
allocation is not described in clause (i) or (ii) but the U.S. 
transferor receives less income or gain or more deductions or loss with 
respect to the section 721(c) property because of the regulatory 
allocation, the allocation is treated as described in Sec.  1.721(c)-
5T(d)(2) (generally requiring that a portion of remaining built-in gain 
be recognized, as discussed in Paragraph d.2 of Part VIII of the 
Explanation of Provisions section of this preamble). See Sec.  
1.721(c)-3T(c)(4)(i)(C). The Treasury Department and the IRS have 
determined that this special rule for regulatory allocations is 
appropriate because an allocation described in clause (i) or (ii) will 
not reduce the U.S. tax base and an allocation described in clause 
(iii) will result in the U.S. transferor recognizing gain that will 
offset the reduction in the U.S. tax base resulting from the regulatory 
allocation.
    The temporary regulations provide that a regulatory allocation is 
(i) an allocation pursuant to a minimum gain chargeback, as defined in 
Sec.  1.704-2(b)(2), (ii) a partner nonrecourse deduction, as 
determined in Sec.  1.704-2(i)(2), (iii) an allocation pursuant to a 
partner minimum gain chargeback, as described in Sec.  1.704-2(i)(4), 
(iv) an allocation pursuant to a qualified income offset, as defined in 
Sec.  1.704-1(b)(2)(ii)(d), (v) an allocation with respect to the 
exercise of a noncompensatory option described in Sec.  1.704-
1(b)(2)(iv)(s), and (vi) an allocation of partnership level ordinary 
income or loss described in Sec.  1.751-1(a)(3). The Treasury 
Department and the IRS have determined that relief is appropriate for 
these regulatory allocations because, in general, partners do not have 
discretion regarding their application and, when necessary, treating 
them as a partial acceleration event will result in the appropriate 
amount of gain being recognized for purposes of the gain deferral 
method. The Treasury Department and the IRS have determined that relief 
is not appropriate for a nonrecourse deduction, as defined in Sec.  
1.704-2(b)(1), because, unlike the other types of regulatory 
allocations, partners have significant discretion regarding the 
allocation of a nonrecourse deduction.
ii. Creditable Foreign Tax Expenditures
    The temporary regulations provide that allocations of creditable 
foreign tax expenditures (as defined in Sec.  1.704-

[[Page 7590]]

1(b)(4)(viii)(b)) (CFTEs) are not subject to the consistent allocation 
method. See Sec.  1.721(c)-3T(c)(4)(ii). The regulations governing the 
allocation of CFTEs take into account section 704(c) income and gain 
and are not based strictly on the allocation of book items. As a 
result, it would be difficult to apply the consistent allocation method 
with respect to CFTEs.

VII. Acceleration Events

a. Overview

    Section 1.721(c)-4T provides rules regarding acceleration events, 
which, like the gain deferral method, apply on a property-by-property 
basis. When an acceleration event occurs with respect to section 721(c) 
property, remaining built-in gain in the property must be recognized 
and the gain deferral method no longer applies. The temporary 
regulations provide exceptions to acceleration events that are 
discussed in Part VIII of the Explanation of Provisions section of this 
preamble.

b. Definition of an Acceleration Event

1. General Rules
    Subject to the exceptions described in Part VIII of the Explanation 
of Provisions section of this preamble, Sec.  1.721(c)-4T(b)(1) defines 
an acceleration event as any event that would reduce the amount of 
remaining built-in gain that a U.S. transferor would have recognized 
under the gain deferral method if the event had not occurred or that 
could defer the recognition of the remaining built-in gain. The 
temporary regulations clarify that an acceleration event includes the 
transfer of section 721(c) property via a contribution of the property 
itself or through a contribution of a partnership interest.
2. Failure To Comply With a Requirement of the Gain Deferral Method
    The rules described in the notice would have provided that a 
failure to comply with one of the requirements of the gain deferral 
method with respect to any section 721(c) property would cause an 
acceleration event for all section 721(c) property. Comments requested 
that the Treasury Department and the IRS eliminate this provision. 
Because the temporary regulations provide that the gain deferral method 
is applied on a property-by-property basis (in lieu of containing the 
unified application requirement), the temporary regulations adopt this 
comment.
    Under the temporary regulations, an acceleration event with respect 
to section 721(c) property occurs when any party fails to comply with a 
requirement of the gain deferral method with respect to that property. 
See Sec.  1.721(c)-4T(b)(2)(i). For example, if section 721(c) property 
is ECI property, an acceleration event occurs if a distributive share 
of income or gain from the property that is allocated to a direct or 
indirect partner that is a related foreign person is no longer subject 
to taxation as income effectively connected with a trade or business 
within the United States or if the section 721(c) partnership or a 
direct or indirect partner that is a related foreign person claims 
certain benefits under an income tax treaty with respect to the income 
(see Sec.  1.721(c)-3T(b)(1)(ii)).
    An acceleration event will not occur solely as a result of a 
failure to comply with a procedural or reporting requirement of the 
gain deferral method if that failure is not willful and relief is 
sought under the prescribed procedures. See Sec. Sec.  1.721(c)-
4T(b)(2)(ii) and 1.721(c)-6T(f).
3. Special Rule When Section 721(c) Property Is an Interest in a 
Partnership
    When section 721(c) property is an interest in a partnership, the 
temporary regulations provide that an acceleration event will not occur 
because of a reduction in remaining built-in gain in the partnership 
interest as a result of allocations of book items of deduction and loss 
or tax items of income and gain by that partnership. See Sec.  
1.721(c)-4T(b)(3).
4. Deemed Acceleration Event
    Under the temporary regulations, a U.S. transferor may 
affirmatively treat an acceleration event as having occurred with 
respect to section 721(c) property by recognizing the remaining built-
in gain with respect to that property and satisfying the reporting 
required by Sec.  1.721(c)-6T(b)(3)(iv). See Sec.  1.721(c)-4T(b)(4).

c. Consequences of an Acceleration Event

    Section 1.721(c)-4T(c) sets forth the consequences of an 
acceleration event. Specifically, the U.S. transferor must recognize 
gain in an amount equal to the remaining built-in gain that would have 
been allocated to the U.S. transferor if the section 721(c) partnership 
had sold the section 721(c) property immediately before the 
acceleration event for fair market value. Following the acceleration 
event, the section 721(c) property will no longer be subject to the 
gain deferral method.
    The U.S. transferor generally must make correlative adjustments to 
its basis in its partnership interest. See Sec.  1.721(c)-4T(c)(1). In 
addition, the section 721(c) partnership will increase its basis in the 
section 721(c) property by the amount of gain recognized by the U.S. 
transferor. This basis increase is made immediately before the 
acceleration event. See Sec.  1.721(c)-4T(c)(2). If the section 721(c) 
property remains in the partnership after the acceleration event, the 
increase in the basis of the section 721(c) property generally would be 
treated in the same manner as newly purchased property, including for 
purposes of determining the depreciation schedule if the property is 
depreciable property.

VIII. Acceleration Event Exceptions

a. In General

    Section 1.721(c)-5T identifies the following categories of 
exceptions to acceleration events, which, like acceleration events, 
apply on a property-by-property basis: (i) Termination events, in which 
case, the gain deferral method ceases to apply to the section 721(c) 
property; (ii) successor events, in which case, the gain deferral 
method continues to apply to the section 721(c) property but with 
respect to a successor U.S. transferor or a successor section 721(c) 
partnership, as applicable; (iii) partial acceleration events, in which 
case, a U.S. transferor recognizes an amount of gain that is less than 
the full amount of remaining built-in gain in the section 721(c) 
property and the gain deferral method continues to apply; (iv) 
transfers described in section 367 of section 721(c) property to a 
foreign corporation, in which case, the gain deferral method ceases to 
apply and a U.S. transferor recognizes an amount of gain equal to the 
remaining built-in gain attributable to the portion of the section 
721(c) property that is not subject to tax under section 367; and (v) 
fully taxable dispositions of a portion of an interest in a section 
721(c) partnership, in which case, the gain deferral method continues 
to apply for the retained portion of the interest.

b. Termination Events

1. In General
    Section 1.721(c)-5T(b) identifies the events that cause the gain 
deferral method to no longer apply. The Treasury Department and the IRS 
have determined that it is appropriate to terminate the application of 
the gain deferral method with respect to the affected section 721(c) 
property in these cases because the potential to shift gain or income 
to a related foreign person that is a direct or indirect partner in the 
section 721(c) partnership has been eliminated.

[[Page 7591]]

2. Transfers of Section 721(c) Property (Other Than a Partnership 
Interest) to a Domestic Corporation Described in Section 351
    The temporary regulations provide that a termination event occurs 
if a section 721(c) partnership transfers section 721(c) property other 
than a partnership interest to a domestic corporation in a transaction 
to which section 351 applies. See Sec.  1.721(c)-5T(b)(2).
3. Certain Incorporations of a Section 721(c) Partnership
    A comment questioned whether the rules described in the notice 
would exempt from the definition of an acceleration event certain 
transactions after which the partnership ceases to exist, such as those 
described in Rev. Rul. 84-111, 1984-2 C.B. 88 (describing three methods 
for incorporating a partnership). See Sec.  601.601(d)(2)(ii)(b). The 
temporary regulations provide that a termination event occurs upon an 
incorporation of a section 721(c) partnership into a domestic 
corporation by any method of incorporation other than a method 
involving an actual distribution of partnership property to the 
partners, followed by a contribution of that property to a corporation, 
provided that the section 721(c) partnership is liquidated as part of 
the incorporation transaction. See Sec.  1.721(c)-5T(b)(3).
4. Certain Distributions of Section 721(c) Property
    A comment questioned whether an acceleration event should occur as 
a result of a distribution of section 721(c) property to a partner 
other than a U.S. transferor outside of the seven-year period described 
in sections 704(c)(1)(B) and 737 (rules that address certain 
distributions of property within seven years of a contribution). While 
sections 704(c)(1)(B) and 737 also are intended to ensure that gain on 
contributed property is not inappropriately transferred to a partner 
other than the contributor, in the context of contributions to 
partnerships with related foreign partners, the Treasury Department and 
the IRS have determined that concerns about the erosion of the U.S. tax 
base remain as long as there is remaining built-in gain in the section 
721(c) property. Accordingly, the Treasury Department and the IRS have 
determined that it is inappropriate to provide a termination event 
exception for all distributions of section 721(c) property after seven 
years.
    The temporary regulations, however, provide that a termination 
event occurs if a section 721(c) partnership distributes section 721(c) 
property to the U.S. transferor. A termination event will also occur if 
a section 721(c) partnership distributes section 721(c) property to a 
member of a U.S. transferor's consolidated group and the distribution 
occurs more than seven years after the contribution. See Sec.  
1.721(c)-5T(b)(4).
5. Section 721(c) Partnership Ceases to Have a Related Foreign Person 
Partner
    In response to a comment, the temporary regulations generally 
provide that a termination event occurs when a section 721(c) 
partnership ceases to have any direct or indirect partners that are 
related foreign persons, provided there is no plan for a related 
foreign person to subsequently become a direct or indirect partner in 
the partnership (or a successor). See Sec.  1.721(c)-5T(b)(5). The no-
plan requirement applies independently of the general anti-abuse rule 
under Sec.  1.721(c)-1T(d). An acceleration event, however, occurs upon 
a distribution of section 721(c) property in redemption of a related 
foreign person's interest in a section 721(c) partnership.
6. Fully Taxable Dispositions of Section 721(c) Property or of an 
Entire Interest in a Section 721(c) Partnership
    The notice treated a taxable disposition of section 721(c) property 
by a section 721(c) partnership, or an indirect disposition of section 
721(c) property through a taxable disposition of an interest in a 
section 721(c) partnership interest, as an acceleration event. The 
Treasury Department and the IRS have determined that it is appropriate 
instead to treat a fully taxable disposition of section 721(c) property 
or of an entire interest in a section 721(c) partnership as a 
termination event because other sections of the Code require gain to be 
recognized.
    Accordingly, the temporary regulations provide that a termination 
event occurs if a section 721(c) partnership disposes of section 721(c) 
property in a transaction in which all gain or loss, if any, is 
recognized. See Sec.  1.721(c)-5T(b)(6). In addition, a termination 
event occurs if either a U.S. transferor or a partnership in which a 
U.S. transferor is a direct or indirect partner disposes of an entire 
interest in a section 721(c) partnership that owns section 721(c) 
property in a transaction in which all gain or loss, if any, is 
recognized. This rule does not apply if a U.S. transferor is a member 
of a consolidated group and the interest in the section 721(c) 
partnership is transferred to another member in an intercompany 
transaction (as defined in Sec.  1.1502-13(b)(1)). See Sec.  1.721(c)-
5T(b)(7). See, however, Paragraph c.2 of this Part VIII, which 
describes the rule in Sec.  1.721(c)-5T(c)(3) that provides that such a 
transaction may be a successor event.

c. Successor Events

1. In General
    Section 1.721(c)-5T(c) identifies the successor events that allow 
for the continued application of the gain deferral method. In each of 
these cases, it is appropriate to continue application of the gain 
deferral method (rather than accelerate gain recognition), because its 
application can be preserved in the hands of a successor U.S. 
transferor or a successor section 721(c) partnership, as applicable. 
If, however, the successor does not continue the gain deferral method, 
the event is an acceleration event. If only a portion of an interest in 
a partnership is transferred in a successor event, the principles of 
Sec.  1.704-3(a)(7) apply to determine the remaining built-in gain in 
section 721(c) property that is attributable to the portion of the 
interest that is transferred and the portion that is retained. See 
Sec.  1.721(c)-5T(c)(1).
2. A Domestic Corporation Becomes a Successor U.S. Transferor
    The temporary regulations provide that a successor event occurs if 
either a U.S. transferor or a partnership in which a U.S. transferor is 
a direct or indirect partner transfers (directly or indirectly through 
one or more partnerships) an interest in a section 721(c) partnership 
to a domestic corporation in a transaction to which section 351 or 381 
applies, and the gain deferral method is continued by treating the 
transferee domestic corporation as the U.S. transferor. See Sec.  
1.721(c)-5T(c)(2).
    In addition, a successor event occurs if a U.S. transferor that is 
a member of a consolidated group transfers (directly or indirectly 
through one or more partnerships) an interest in a section 721(c) 
partnership to another member in an intercompany transaction (as 
defined in Sec.  1.1502-13(b)(1)), and the gain deferral method is 
continued by treating the transferee member as the U.S. transferor. See 
Sec.  1.721(c)-5T(c)(3).
3. Technical Termination of a Section 721(c) Partnership
    In response to comments, the temporary regulations provide that a 
successor event occurs if there is a technical termination of a section 
721(c) partnership, and the gain deferral method is continued by 
treating the new

[[Page 7592]]

partnership as the section 721(c) partnership. See Sec.  1.721(c)-
5T(c)(4). Although a technical termination will cause the depreciation 
schedule to be reset with respect to any depreciable section 721(c) 
property of the terminated section 721(c) partnership, and thus defer 
the recognition of remaining built-in gain, the Treasury Department and 
the IRS have concluded that this should not cause an acceleration 
event. In this case, however, the general anti-abuse rule under Sec.  
1.721(c)-1T(d) may apply, depending on the facts relating to the 
technical termination.
4. A Partnership Becomes a Successor Section 721(c) Partnership
    The temporary regulations provide two other categories of successor 
events that involve successor section 721(c) partnerships. In each 
case, section 721(c) property is directly or indirectly contributed to 
a successor section 721(c) partnership and the gain deferral method is 
applied down the chain of ownership with the result that the remaining 
built-in gain will continue to be subject to U.S. tax.
    In the first category, a successor event occurs if (i) a section 
721(c) partnership contributes section 721(c) property to a lower-tier 
partnership that is a controlled partnership; (ii) the gain deferral 
method is applied both with respect to the section 721(c) partnership's 
interest in the lower-tier partnership and with respect to the section 
721(c) property in the hands of the lower-tier partnership; and (iii) 
the lower-tier partnership either is a section 721(c) partnership, or 
is a controlled partnership that fails the ownership requirement but is 
treated as a section 721(c) partnership. See Sec.  1.721(c)-
5T(c)(5)(i). In the case in which the lower-tier partnership is a 
controlled partnership but not a section 721(c) partnership, the 
Treasury Department and the IRS have determined that it is appropriate 
to allow the parties to continue to apply the gain deferral method to 
the section 721(c) property, rather than triggering an acceleration 
event, provided the parties treat the lower-tier partnership as a 
section 721(c) partnership for purposes of applying the gain deferral 
method.
    In the second category, a successor event occurs if (i) either a 
U.S. transferor or a partnership in which a U.S. transferor is a direct 
or indirect partner contributes (directly or indirectly through one or 
more partnerships) an interest in a section 721(c) partnership to an 
upper-tier partnership that is a controlled partnership; (ii) the gain 
deferral method is continued with respect to the section 721(c) 
property in the hands of the section 721(c) partnership; (iii) if the 
upper-tier partnership directly owns its interest in the section 721(c) 
partnership, the gain deferral method is applied with respect to the 
upper-tier partnership's interest in the section 721(c) partnership and 
the upper-tier partnership is, or is treated as, a section 721(c) 
partnership; and (iv) if the upper-tier partnership indirectly owns its 
interest in the section 721(c) partnership through one or more 
partnerships, the principles described in clause (iii) are applied with 
respect to the upper-tier partnership and each partnership through 
which the upper-tier partnership indirectly owns an interest in the 
section 721(c) partnership. See Sec.  1.721(c)-5T(c)(5)(ii).
    Both categories of successor events involve tiered partnerships. 
Therefore, pursuant to Sec.  1.721(c)-3T(b)(5), the rules for tiered 
partnerships (described in Sec.  1.721(c)-3T(d)) must be applied in 
order to satisfy the requirements to apply the gain deferral method as 
required under the rules described in the two preceding paragraphs.
    To illustrate, consider the following simplified example: In year 
1, USP, a domestic corporation, and CFC1, a wholly owned foreign 
subsidiary of USP, form PS1, a partnership, as equal partners. USP 
contributes section 721(c) property, asset A, a depreciable asset with 
a $10 million built-in gain (fair market value of $10 million and tax 
basis of zero) (USP contribution). PS1 is a section 721(c) partnership 
as a result of the USP contribution, and the gain deferral method is 
applied with respect to asset A. In year 2, PS1 and CFC1 form PS2, a 
partnership, as equal partners. PS1 contributes asset A to PS2 (PS1 
contribution) when asset A has remaining built-in gain of $8 million 
and a fair market value of $12 million (the tax basis is still zero). 
PS2 is a section 721(c) partnership as a result of the PS1 
contribution. The PS1 contribution will be a successor event with 
respect to asset A if PS2 applies the gain deferral method to asset A 
and PS1 applies the gain deferral method to its interest in PS2 as 
described in Sec.  1.721(c)-5T(c)(5)(i). The remaining built-in gain in 
asset A in the hands of PS2 will be $12 million (excess of book value 
of $12 million over PS2's adjusted tax basis of $0). If PS2 sells the 
property, PS2 will allocate $12 million to PS1, and PS1 will allocate 
$10 million of the gain to USP ($8 million of which would be allocated 
under Sec.  1.704-3(a)(9)).
    On the other hand, the PS1 contribution will be an acceleration 
event (rather than a successor event) with respect to asset A if either 
PS1 or PS2 does not apply the gain deferral method. In this case, USP 
will recognize $8 million of gain, which is the amount of the remaining 
built-in gain that would have been allocated to USP if PS1 had sold 
asset A immediately before the PS1 contribution for fair market value, 
and PS1 will increase its tax basis in asset A from $0 to $8 million. 
See Sec.  1.721(c)-4T(c). Furthermore, the PS1 contribution will be 
subject to the general gain recognition rule under Sec.  1.721(c)-2T(b) 
because PS2 is a section 721(c) partnership and asset A is section 
721(c) property. PS1's realized gain with respect to asset A that will 
not qualify for nonrecognition under section 721(a) is $4 million (fair 
market value of $12 million less adjusted tax basis of $8 million) and 
PS1 will allocate half of that gain to USP.

d. Partial Acceleration Events

1. In General
    Section 1.721(c)-5T(d) identifies the partial acceleration events, 
and, in each case, the amount of gain that a U.S. transferor must 
recognize. The basis adjustments in Sec.  1.721(c)-4T(c) that must be 
made by a U.S. transferor and a section 721(c) partnership upon a 
``full'' acceleration event also apply for a partial acceleration 
event, except in the case of a partial acceleration that occurs as a 
result of an adjustment under section 734 to section 721(c) property, 
as described in Paragraph d.3 of this Part VIII. If there is remaining 
built-in gain in the section 721(c) property immediately after the 
partial acceleration event, the gain deferral method must continue to 
apply following the partial acceleration event.
2. Regulatory Allocations
    Section 1.721(c)-3T(c)(4)(i)(C) provides that a regulatory 
allocation that results in an over-allocation of book deduction or loss 
to a U.S. transferor or an under-allocation of book income or gain to a 
U.S. transferor will nevertheless be treated as satisfying the 
consistent allocation method if gain is recognized. See the discussion 
in Paragraph e.3.i of Part VI of the Explanation of Provisions section 
of this preamble. In order for such a regulatory allocation to be 
deemed to satisfy the consistent allocation method, the U.S. transferor 
must recognize an amount of gain equal to the amount of the allocation 
that, had the regulatory allocation not occurred, would have been 
allocated to the U.S. transferor in the case of income or gain, or 
would not have been allocated to the U.S. transferor in the case of 
deduction or

[[Page 7593]]

loss. See Sec.  1.721(c)-5T(d)(2). However, the amount of gain 
recognized is limited to the amount of the remaining built-in gain that 
would have been allocated to the U.S. transferor upon a hypothetical 
sale by the section 721(c) partnership of that portion of the property 
immediately before the regulatory allocation is made for fair market 
value.
3. Distributions of Other Partnership Property to a Partner That Result 
in an Adjustment Under Section 734
    The temporary regulations provide that a partial acceleration event 
occurs if there is a distribution of other property by a section 721(c) 
partnership that results in a positive basis adjustment to section 
721(c) property under section 734. In these cases, the U.S. transferor 
must recognize an amount of gain equal to the positive basis adjustment 
to the section 721(c) property under section 734. However, the amount 
of gain recognized is limited to the amount of the remaining built-in 
gain that would have been allocated to the U.S. transferor upon a 
hypothetical sale by the section 721(c) partnership of that portion of 
the property immediately before the regulatory allocation is made for 
fair market value. Furthermore, if the property that triggered the 
section 734 adjustment was distributed to the U.S. transferor or a 
member of its consolidated group, the amount described in the preceding 
sentence is reduced (but not below zero) by the amount of gain 
recognized by the U.S. transferor (or the consolidated group member) 
under section 731(a). See Sec.  1.721(c)-5T(d)(3). The amount of gain 
recognized as a result of the acceleration event is not reduced by any 
step-down to distributed property described by section 734(b)(1)(B). 
The partnership will not increase its basis under Sec.  1.721(c)-
4T(c)(2) for the gain recognized by the U.S. transferor.

e. Section 367 Transfers of Section 721(c) Property to a Foreign 
Corporation

    Section 1.721(c)-5T(e) provides rules for certain direct and 
indirect transfers of section 721(c) property to a foreign corporation. 
These rules apply if a section 721(c) partnership transfers section 
721(c) property, or if a U.S. transferor or a partnership in which a 
U.S. transferor is a direct or indirect partner transfers (directly or 
indirectly through one or more partnerships) an interest in a section 
721(c) partnership, to a foreign corporation in a transaction described 
in section 367. In this case, the underlying section 721(c) property 
will no longer be subject to the gain deferral method. The Treasury 
Department and the IRS have determined that this result is appropriate 
because to the extent any U.S. transferor is treated as transferring 
the section 721(c) property to the foreign corporation for purposes of 
section 367, the tax consequences will be determined under section 367. 
In this regard, see Sec. Sec.  1.367(a)-1T(c)(3)(i) and (ii), 1.367(d)-
1T(d)(1), and 1.367(e)-2(b)(1)(iii) (in general, providing an aggregate 
treatment of partnerships for purposes of applying the outbound 
transfer provisions under section 367). Furthermore, for the remaining 
portion of the property (which is the portion attributable to non-U.S. 
persons and therefore not subject to tax under section 367), the U.S. 
transferor must recognize an amount of gain equal to the remaining 
built-in gain that would have been allocated to the U.S. transferor 
upon a hypothetical sale by the section 721(c) partnership of that 
portion of the property immediately before the transfer for fair market 
value. The basis adjustments in Sec.  1.721(c)-4T(c) that must be made 
by a U.S. transferor and a section 721(c) partnership upon a ``full'' 
acceleration event also apply in this case. If stock in the transferee 
foreign corporation is received by a section 721(c) partnership, the 
stock will not be subject to the gain deferral method.

f. Fully Taxable Dispositions of a Portion of an Interest in a Section 
721(c) Partnership

    Section 1.721(c)-5T(f) provides a special rule when there is a 
fully taxable disposition of a portion of an interest in a section 
721(c) partnership. Specifically, if a U.S. transferor or a partnership 
in which a U.S. transferor is a direct or indirect partner disposes of 
(directly or indirectly through one or more partnerships) a portion of 
an interest in a section 721(c) partnership in a transaction in which 
all gain or loss, if any, is recognized, an acceleration event will not 
occur with respect to the portion of the interest transferred. The gain 
deferral method will continue to apply with respect to the section 
721(c) property of the section 721(c) partnership. The principles of 
Sec.  1.704-3(a)(7) will apply to determine the remaining built-in gain 
in section 721(c) property that is attributable to the portion of the 
interest in a section 721(c) partnership that is retained. This rule 
does not apply to an intercompany transaction (as defined in Sec.  
1.1502-13(b)(1)). See Sec.  1.721-5T(c)(3). See also the discussion in 
Paragraph c.2 of this Part VIII.

IX. Tiered Partnerships Rules

a. Overview

    This Part IX discusses the application of the gain deferral method 
to tiered partnerships. The temporary regulations employ two general 
principles in applying the gain deferral method to tiered partnerships. 
First, if the section 721(c) property is an interest in a partnership, 
the contribution of that partnership interest, and not the indirect 
contribution of the underlying property of the lower-tier partnership, 
to a section 721(c) partnership is subject to section 721(c), and the 
gain deferral method applies to the contribution of the interest. 
Second, the gain deferral method must also be adopted at all levels in 
the ownership chain.
    These principles, however, raise various issues in applying the 
gain deferral method to tiered partnerships: (i) Not all partnerships 
in the ownership chain will necessarily be section 721(c) partnerships; 
(ii) when the book value of an interest in a partnership reflects 
appreciation in the property of the lower-tier partnership that has not 
yet been reflected in the book value of the property, there will be a 
discrepancy between the built-in gain in the partnership interest and 
the built-in gain in the underlying property; (iii) an upper-tier 
partnership's allocation of its distributive share of certain lower-
tier partnership items must comply with Sec.  1.704-3(a)(9) (concerning 
the application of section 704(c) to tiered partnerships) and with the 
consistent allocation method; and (iv) a partnership whose interest is 
section 721(c) property that is contributed to a section 721(c) 
partnership may have previously adopted a method other than the 
remedial allocation method with respect to its underlying section 
704(c) property.
    To address these issues, the temporary regulations specify 
requirements that must be satisfied, in addition to all the other 
requirements to apply the gain deferral method, in order for the gain 
deferral method to be applied to tiered partnerships. See Sec.  
1.721(c)-3T(b)(5) (the last requirement to apply the gain deferral 
method).

b. Additional Requirements for Applying the Gain Deferral Method

1. In General
    For purposes of applying the gain deferral method, the temporary 
regulations address the conditions required to be satisfied by upper-
tier partnerships and lower-tier partnerships involved in tiered-
partnership transactions to ensure that the gain

[[Page 7594]]

deferral method is applied at all levels in the ownership chain and the 
allocation of partnership items up the chain correctly traces the 
built-in gain to the U.S. transferor. See Sec.  1.721(c)-3T(d). In the 
base case in which a U.S. transferor directly contributes section 
721(c) property to a section 721(c) partnership, the U.S. transferor 
will recognize gain under the general rule in these temporary 
regulations unless the gain deferral method is applied to the 
contribution. The same principle applies when section 721(c) property 
is indirectly (through an upper-tier partnership) contributed by a U.S. 
transferor to a section 721(c) partnership and the partnership look-
through rule in Sec.  1.721(c)-2T(d)(1) applies, in which case, the 
tiered-partnership rules in Sec.  1.721(c)-3T(d)(2) apply to the 
transferor upper-tier partnership and all controlled partnerships above 
it in the ownership chain. In addition, when the section 721(c) 
property is an interest in a partnership, the tiered-partnership rules 
in Sec.  1.721(c)-3T(d)(1) apply to the partnership whose interest is 
transferred and all controlled partnerships below it in the ownership 
chain. Therefore, when a partnership interest described in the 
preceding sentence is indirectly contributed by a U.S. transferor and 
the partnership look-through rule applies, the rules of both Sec.  
1.721(c)-3T(d)(1) and (2) apply.
2. Indirect Contribution of Section 721(c) Property
    Section 1.721(c)-3T(d)(2) provides the additional requirements for 
applying the gain deferral method if the section 721(c) property is 
indirectly contributed by a U.S. transferor to a section 721(c) 
partnership and the partnership look-through rule applies. In 
particular, this rule applies if an upper-tier partnership in which a 
U.S. transferor is a direct or indirect partner contributes section 
721(c) property to a lower-tier section 721(c) partnership. The upper-
tier partnership need not be a section 721(c) partnership for the 
partnership look-through rule to apply, but, in order for the upper-
tier partnership to avoid immediate gain recognition under the general 
gain recognition rule, the lower-tier section 721(c) partnership must 
apply the gain deferral method to the contributed property. This 
application of the gain deferral method has several additional 
requirements. First, the lower-tier section 721(c) partnership must 
treat the upper-tier partnership (which is not necessarily a section 
721(c) partnership) as the U.S. transferor solely for purposes of 
applying the consistent allocation method. Second, the upper-tier 
partnership, if it is a controlled partnership, must apply the gain 
deferral method to its interest in the lower-tier section 721(c) 
partnership. If the upper-tier partnership is not a section 721(c) 
partnership, it is deemed to be so, and the interest in the lower-tier 
section 721(c) partnership is deemed to be section 721(c) property. See 
Sec.  1.721(c)-1T(b)(14)(ii) and (b)(15)(ii).
    For the upper-tier partnership to apply the gain deferral method to 
the interest in the lower-tier partnership, Sec.  1.704-3T(a)(13)(ii) 
provides that the upper-tier partnership must treat its distributive 
share of lower-tier partnership items of gain, loss, and amortization, 
depreciation, or other cost recovery deductions with respect to a 
lower-tier partnership's section 721(c) property as though they were 
items of gain, loss, and amortization, depreciation, or other cost 
recovery with respect to the upper-tier partnership's interest in the 
lower-tier partnership. Section 1.704-3T(a)(13)(ii) is intended to 
reach the same result as if an aggregate approach governed the 
application of Sec.  1.704-3(a)(9) in the context of the gain deferral 
method. Section 1.704-3(a)(9) provides that if a partnership 
contributes section 704(c) property to a lower-tier partnership, or if 
a partner that receives a partnership interest in exchange for 
contributed property subsequently contributes the partnership interest 
to an upper-tier partnership, the upper-tier partnership must allocate 
its distributive share of lower-tier partnership items with respect to 
that section 704(c) property in a manner that takes into account the 
contributing partner's remaining built-in gain or loss. The Treasury 
Department and the IRS considered comments about aggregate treatment 
that were received on Notice 2009-70, 2009-34 I.R.B. 255, in developing 
the rule in Sec.  1.704-3T(a)(13)(ii). This rule applies only to a 
tiered-partnership structure that has at least one section 721(c) 
partnership and to which the gain deferral method is applied. The 
Treasury Department and the IRS intend no inference regarding the 
application of Sec.  1.704-3(a)(9) to partnerships not applying the 
gain deferral method.
    If the U.S. transferor is an indirect partner in the upper-tier 
partnership through one or more partnerships, these requirements must 
be satisfied by each controlled partnership in the chain of ownership 
between the upper-tier partnership and the U.S. transferor.
3. Contribution of an Interest in a Partnership
    Section 1.721(c)-3T(d)(1) provides the additional requirements for 
applying the gain deferral method if the section 721(c) property that 
is contributed to a section 721(c) partnership is an interest in a 
lower-tier partnership. The lower-tier partnership need not be a 
section 721(c) partnership. First, the lower-tier partnership, if it is 
a controlled partnership with respect to a U.S. transferor, must 
revalue all of its property under Sec.  1.704-1T(b)(2)(iv)(f)(6) if the 
revaluation would result in a new positive reverse section 704(c) layer 
in at least one property that is not excluded property (revaluation 
requirement). If the lower-tier partnership is not a section 721(c) 
partnership, it will be deemed to be so upon the revaluation. See Sec.  
1.721(c)-1T(b)(14)(ii).
    The revaluation requirement ensures, to the greatest extent 
possible, that all appreciation in the underlying property of a lower-
tier partnership that is reflected in the book value of the partnership 
interest in the lower-tier partnership is subject to the temporary 
regulations to the same extent that appreciation would be subject to 
the temporary regulations if the property of the lower-tier partnership 
(rather than the interest in the lower-tier partnership) were 
contributed.
    Second, the lower-tier partnership must apply the gain deferral 
method with respect to each property (other than excluded property) for 
which there is a new positive reverse section 704(c) layer as a result 
of the revaluation. A property with a new positive reverse section 
704(c) layer is deemed to be section 721(c) property, and the remaining 
built-in gain includes the new positive reverse section 704(c) layer. 
See Sec.  1.721(c)-1T(b)(15)(ii) and (b)(13)(ii), respectively. 
Although Sec.  1.721(c)-3T(b)(1)(i)(A) requires the application of the 
remedial allocation method to the remaining built-in gain, a lower-tier 
partnership may apply the gain deferral method by adopting the remedial 
allocation method only for the positive reverse section 704(c) layer if 
the partnership has previously adopted a section 704(c) method other 
than the remedial method for the property. Accordingly, the lower-tier 
partnership may continue to apply a different, historical section 
704(c) method to forward section 704(c) layers or to pre-existing 
reverse section 704(c) layers, as applicable, and still satisfy the 
requirements of the gain deferral method. For further discussion of the 
revaluation requirement and the definition of a controlled partnership, 
see Paragraph c of this Part IX.
    Third, the lower-tier partnership must treat a partner that is a 
partnership in which the U.S. transferor is a direct or

[[Page 7595]]

indirect partner as the U.S. transferor solely for purposes of applying 
the consistent allocation requirement. As a result, the lower-tier 
partnership must allocate its book items to the deemed U.S. transferor 
under the consistent allocation method. Regardless of the number of 
tiers of partnerships in the chain, the tiered-partnership rules are 
intended to cause the U.S. transferor that contributed (directly or 
indirectly) the lower-tier partnership interest to the section 721(c) 
partnership to be the person to recognize gain upon an acceleration 
event.
    If the lower-tier partnership owns (directly or indirectly through 
one or more partnerships) one or more partnerships that are controlled 
partnerships with respect to the U.S. transferor, these three 
requirements must be satisfied by each controlled partnership.

c. Revaluation Requirement

    In recognition of the possibility that a U.S. transferor may not be 
able to cause a lower-tier partnership to revalue its property when a 
partnership interest is contributed to an upper-tier partnership, the 
revaluation requirement is limited to those lower-tier partnerships 
that are controlled partnerships with respect to the U.S. transferor. 
Control is a facts-and-circumstances test, except that the U.S. 
transferor and related persons will be deemed to control a partnership 
in which those persons, in the aggregate, own (directly or indirectly 
through one or more partnerships) more than 50 percent of the interests 
in partnership capital or profits. See Sec.  1.721(c)-1T(b)(4).
    The definition of built-in gain in the notice excluded revaluation 
gain because a reverse section 704(c) layer with respect to property 
does not arise on the contribution of that property. However, a 
partnership that does not create and apply the remedial method to a 
positive reverse section 704(c) layer created on the contribution of a 
lower-tier partnership interest to an upper-tier partnership may shift 
the tax consequences of a portion of the built-in gain to a partner 
that is a related foreign person. The Treasury Department and the IRS 
believe that the description of the tiered-partnership rules contained 
in the notice notified taxpayers of an intention to promulgate a rule 
with the result reached by the temporary regulations.
    The revaluation requirement described in the gain deferral method 
requires an expansion of permissible events for partnership 
revaluations under section 704(b). Accordingly, Sec.  1.704-
1T(b)(2)(iv)(f)(6) allows a partnership to revalue its property if the 
revaluation is a condition for applying the gain deferral method. When 
multiple partnerships revalue their property, the revaluations occur in 
order from the lowest-tier partnership to the highest-tier partnership.
    If a partnership revalues its property, Sec.  1.704-3T(a)(13)(i) 
provides that the principles of Sec.  1.704-3(a)(9) shall apply to any 
reverse section 704(c) allocations made as a result of the revaluation.
    In developing the revaluation requirement and Sec.  1.704-
3T(a)(13)(i), the Treasury Department and the IRS considered comments 
received on revaluation rules in proposed regulations under section 
751(b) that are contained in a notice of proposed rulemaking (REG-
151416-06) published on November 3, 2014, in the Federal Register (79 
FR 65151). See proposed Sec. Sec.  1.704-1(b)(2)(iv)(f) and 1.704-
3(a)(9).

X. Procedural and Reporting Requirements

    To comply with the gain deferral method, the notice described 
regulations that would be issued requiring reporting of a gain deferral 
contribution and annual reporting with respect to the section 721(c) 
property to which the gain deferral method applies. The notice 
requested comments on whether the regulations should provide rules 
similar to those in the regulations under sections 367(a) and 6038B 
regarding failures to file gain recognition agreements or to satisfy 
other reporting obligations, including the standards for relief 
therein. See T.D. 9704 (79 FR 68763) (the 2014 GRA regulations). 
Comments were received expressing support for this approach.

a. Reporting and Procedural Requirements for the Year of the Gain 
Deferral Contribution

    The temporary regulations implement the rules described in the 
notice in a manner consistent with the approach in the 2014 GRA 
regulations. For a U.S. transferor, the reporting requirements include, 
among other information, the information required to be filed under 
section 6038B. The temporary regulations also adopt procedural 
requirements in order to seek relief for a failure to meet the 
reporting requirements of the gain deferral method, which mirror the 
approach in the 2014 GRA regulations, including procedures relating to 
the manner by which a transferor can establish the lack of willfulness 
and that a failure was due to reasonable cause. See Sec. Sec.  
1.721(c)-6T(f) and 1.6038B-2T(h). The temporary regulations adopt these 
procedural requirements for all U.S. persons that have a reporting 
obligation under section 6038B with respect to a transfer of property 
to a foreign partnership and that are seeking relief under the 
reasonable cause exception, not only for U.S. transferors described in 
the section 721(c) regulations. The reasonable cause procedure in the 
temporary regulations applies to all requests for reasonable cause 
relief (regardless of the date on which the contribution or the failure 
to file occurred) filed on or after January 18, 2017.
    In addition to adopting the current requirements of Sec.  1.6038B-
2(c), the temporary regulations require reporting necessary to 
demonstrate compliance with the gain deferral method. In general, the 
temporary regulations require a U.S. transferor to report information 
on a statement included on (or attached to) the Form 8865, Schedule O, 
Transfer of Property to a Foreign Partnership. The Treasury Department 
and the IRS intend that the Schedule O will be revised to include the 
information required by the temporary regulations.
    For purposes of the U.S. transferor's reporting requirements under 
Sec.  1.721(c)-6T with respect to a gain deferral contribution to a 
domestic section 721(c) partnership, a domestic section 721(c) 
partnership will generally be treated as foreign under section 
7701(a)(4) for reporting purposes. See Sec. Sec.  1.721(c)-6T(b)(4) and 
1.6038B-2T(a)(1)(iii). As a result, a U.S. transferor that contributes 
section 721(c) property to a domestic section 721(c) partnership in a 
gain deferral contribution must file a Form 8865, Return of U.S. 
Persons With Respect to Certain Foreign Partnerships (including Form 
8865, Schedule O, Transfer of Property to a Foreign Partnership), with 
its return for the taxable year that includes the date of the gain 
deferral contribution.
    Also as a requirement of the gain deferral method, the temporary 
regulations require that the U.S. transferor agree to extend the period 
of limitations on the assessment of tax for eight full taxable years 
with respect to the gain realized but not recognized on a gain deferral 
contribution, and for six full taxable years with respect to the U.S. 
transferor's distributive share of all items with respect to the 
section 721(c) property for the year of contribution and two subsequent 
years. See Sec.  1.721(c)-6T(b)(5)(i) and (ii). The U.S. transferor 
also must agree to extend the period of limitations on the assessment 
of tax for five full taxable years with respect to the gain recognized 
on the contribution of section 721(c) property for which the gain 
deferral method is not applied if

[[Page 7596]]

the contribution is made within five partnership taxable years 
following a gain deferral contribution. See Sec.  1.721(c)-
6T(b)(5)(iii). All agreements to extend the period of limitations on 
assessment of tax are deemed consented to and signed by the Secretary 
for purposes of section 6501(c)(4). The Treasury Department and the IRS 
intend to issue a designated form for use in extending the period of 
limitations by consent, as described above. Until the time such form is 
issued, the required consent must be submitted as a statement attached 
to the U.S. Transferor's Form 8865, Schedule O. Once such form is 
issued, the U.S. transferor must use the designated form to submit the 
required consent. These agreements must be filed only in connection 
with contributions occurring on or after January 18, 2017.
    If section 721(c) property that is subject to the gain deferral 
method is ECI property, the temporary regulations require the U.S. 
transferor to obtain from the section 721(c) partnership and each 
related foreign person that is a direct or indirect partner in the 
section 721(c) partnership a statement pursuant to which the partner 
and the partnership waive any claim under any income tax convention 
(whether or not currently in force at the time of the contribution) to 
an exemption from U.S. income tax or a reduced rate of U.S. income 
taxation on income derived from the use of the ECI property for the 
period in which there is remaining built-in gain. See Sec.  1.721(c)-
6T(c)(1).
    The temporary regulations require the U.S. transferor also to 
provide information with respect to related foreign partners and 
certain section 721(c) partnerships under section 6038B and the gain 
deferral method. This requirement also applies in the case of a 
partnership in a tiered-partnership structure that applies the gain 
deferral method under Sec.  1.721(c)-3T(d). See Sec.  1.721(c)-
6T(b)(2). The U.S. transferor must attach this information to its 
return.
    If the section 721(c) partnership has a reporting obligation under 
section 6031, it also will be required to report certain information 
under the temporary regulations. See Sec.  1.721(c)-6T(d). Although the 
temporary regulations require the partnership to submit certain 
information to the IRS and comply with other requirements relating to 
the application of the gain deferral method, a failure to do so will 
not constitute an acceleration event to the U.S. transferor. The 
Treasury Department and the IRS intend that the Form 1065, Schedule K-
1, or their accompanying instructions will be revised to describe this 
required information. Failure to include this information may result in 
imposition of a penalty. See sections 6721 and 6722.

b. Annual Reporting Requirements

    The temporary regulations require the U.S. transferor to provide 
certain information on an annual basis with respect to section 721(c) 
property subject to the gain deferral method. See Sec. Sec.  1.721(c)-
6T(b)(3) and 1.6038B-2T(c)(9). This includes information about income 
from the section 721(c) property (book and remedial income) allocated 
to the U.S. transferor in the partnership taxable year that ends with, 
or within, the U.S. transferor's taxable year, a calculation of 
remaining built-in gain, and information about acceleration, 
termination, successor, and partial acceleration events. The U.S. 
transferor must also attach a Schedule K-1 (Form 8865), Partner's Share 
of Income, Deductions, Credits, etc., for all related foreign persons 
that are direct or indirect partners in the section 721(c) partnership 
(if the partnership does not have a filing obligation under section 
6031) for the partnership taxable year that ends with, or within, the 
U.S. transferor's taxable year.
    In the case of ECI property subject to the gain deferral method, 
the U.S. transferor must annually declare that, after exercising 
reasonable diligence, to the best of the U.S. transferor's knowledge 
and belief all the income from the property was income effectively 
connected with the conduct of a trade or business within the United 
States, and no benefits with respect to the ECI property were claimed 
under any income tax convention by related foreign persons that are 
direct or indirect partners in the section 721(c) partnership or by the 
section 721(c) partnership. This requirement eliminates the potential 
need for related foreign persons that are direct or indirect partners 
in the section 721(c) partnership and the partnership to submit to the 
U.S. transferor an annual waiver of treaty benefits.
    The U.S. transferor must describe all acceleration, termination, 
successor, and partial acceleration events that occur with respect to 
the section 721(c) property during the partnership taxable year that 
ends with, or within, the U.S. transferor's taxable year. When there is 
a successor event, the U.S. transferor must identify the new 
partnership, lower-tier partnership, upper-tier partnership, or U.S. 
corporation (as applicable). If the section 721(c) partnership is a 
foreign partnership, the U.S. transferor must include the information 
described in Sec.  1.6038-3(g) (contents of information returns 
required of certain United States persons with respect to controlled 
foreign partnerships), if not already reported elsewhere, without 
regard to whether the section 721(c) partnership is a controlled 
foreign partnership or whether the U.S. transferor controlled the 
section 721(c) partnership. If the U.S. transferor is not a controlling 
fifty-percent partner (as defined in Sec.  1.6038-3(a)), the U.S. 
transferor may comply with this requirement by providing only the 
information described in Sec.  1.6038-3(g)(1). These requirements also 
apply to a U.S. transferor that is a successor, as described in 
Paragraph c.2 of Part VIII of the Explanation of Provisions section of 
this preamble.
    If the section 721(c) partnership has a filing obligation under 
section 6031, the partnership must include the information required 
under Sec.  1.721(c)-6T(b)(2) and (3) on the Schedule K-1 (Form 1065), 
Partner's Share of Income, Deductions, Credits, etc., of the U.S. 
transferor and all related foreign persons that are direct or indirect 
partners in the section 721(c) partnership. See Sec.  1.721(c)-
6T(d)(2).

XI. Effective/Applicability Dates

    The applicability dates of the temporary regulations generally 
relate back to the issuance of the notice. Accordingly, in general, the 
temporary regulations apply to contributions occurring on or after 
August 6, 2015, and to contributions occurring before August 6, 2015, 
resulting from an entity classification election made under Sec.  
301.7701-3 that is filed on or after August 6, 2015 (referred to in 
this preamble as the ``general applicability date''). However, new 
rules, including any substantive changes to the rules described in the 
notice, apply to contributions occurring on or after January 18, 2017, 
or to contributions occurring before January 18, 2017, resulting from 
an entity classification election made under Sec.  301.7701-3 that is 
filed on or after January 18, 2017. Taxpayers may, however, elect to 
apply those new rules and substantive changes to the rules described in 
the notice to a contribution occurring on or after the general 
applicability date. The election is made by reflecting the application 
of the relevant rule on a timely filed or amended return.

Special Analyses

    Certain IRS regulations, including these, 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 is hereby certified that the

[[Page 7597]]

collection of information contained in this regulation will not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis is not required. This 
certification is based on the fact that the temporary regulations 
include a $1,000,000 de minimis exception for certain transfers, and 
tangible property with built-in gain that does not exceed $20,000 is 
excluded from the regulations. In addition, the regulations only apply 
when a U.S. transferor contributes property to a partnership with a 
partner that is a related foreign person, and persons related to the 
U.S. transferor own more than 80 percent of the interests in the 
partnership. Accordingly, the Treasury Department and the IRS expect 
that these regulations primarily will affect large domestic 
corporations. 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 Ryan A. Bowen of the 
Office of the Associate Chief Counsel (International). However, other 
personnel from the Treasury Department and the IRS participated in the 
development of the regulations.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

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 
entries in numerical order to read in part as follows:

    Authority:  26 U.S.C. 7805 * * *.
    Section 1.197-2T also issued under 26 U.S.C. 197(g).
* * * * *
    Section 1.721(c)-1T also issued under 26 U.S.C. 721(c).
    Section 1.721(c)-2T also issued under 26 U.S.C. 721(c).
    Section 1.721(c)-3T also issued under 26 U.S.C. 721(c).
    Section 1.721(c)-4T also issued under 26 U.S.C. 721(c).
    Section 1.721(c)-5T also issued under 26 U.S.C. 721(c).
    Section 1.721(c)-6T also issued under 26 U.S.C. 721(c).
    Section 1.721(c)-7T also issued under 26 U.S.C. 721(c).
* * * * *
    Section 1.6038B-2T also issued under 26 U.S.C. 6038B.
* * * * *

0
Par. 2. Section 1.197-2 is amended by adding paragraphs (h)(12)(vii)(C) 
and (l)(5) to read as follows:


Sec.  1.197-2  Amortization of goodwill and certain other intangibles.

* * * * *
    (h) * * *
    (12) * * *
    (vii) * * *
    (C) [Reserved]. For further guidance, see Sec.  1.197-
2T(h)(12)(vii)(C).
* * * * *
    (l) * * *
    (5) [Reserved]. For further guidance, see Sec.  1.197-2T(l)(5).

0
Par 3. Section 1.197-2T is added to read as follows:


Sec.  1.197-2T   Amortization of goodwill and certain other 
intangibles.

    (a) through (h)(12)(vii)(B) [Reserved]. For further guidance, see 
Sec.  1.197-2(a) through (h)(12)(vii)(B).
    (C) Rules for section 721(c) partnerships. See Sec.  1.704-
3T(d)(5)(iii) if there is a contribution of a section 197(f)(9) 
intangible to a section 721(c) partnership (as defined in Sec.  
1.721(c)-1T(b)(14)).
    (viii) through (l)(4)(iii) [Reserved]. For further guidance, see 
Sec.  1.197-2(h)(12)(viii) through (l)(4)(iii).
    (5) Rules for section 721(c) partnerships--(i) Applicability 
dates--(A) In general. Except as provided in paragraph (l)(5)(i)(B) of 
this section, paragraph (h)(12)(vii)(C) of this section applies with 
respect to contributions occurring on or after January 18, 2017, and 
with respect to contributions occurring before January 18, 2017, 
resulting from an entity classification election made under Sec.  
301.7701-3 of this chapter that is filed on or after January 18, 2017.
    (B) Election to apply the provisions described in paragraph 
(l)(5)(i)(A) of this section retroactively. Paragraph (h)(12)(vii)(C) 
of this section may, by election, be applied with respect to a 
contribution occurring on or after August 6, 2015, and to a 
contribution occurring before August 6, 2015, resulting from an entity 
classification election made under Sec.  301.7701-3 of this chapter 
that is filed on or after August 6, 2015. The election is made by 
applying paragraph (h)(12)(vii)(C) of this section on a timely filed 
original return (including extensions) or an amended return filed no 
later than six months after January 18, 2017.
    (ii) Expiration date. Paragraph (h)(12)(vii)(C) of this section 
expires on January 17, 2020.

0
Par. 4. Section 1.704-1 is amended by adding paragraph (b)(2)(iv)(f)(6) 
following the undesignated paragraph at the end of paragraph 
(b)(2)(iv)(f)(5) and adding paragraph (f) to read as follows:


Sec.  1.704-1   Partner's distributive share.

* * * * *
    (b) * * *
    (2) * * *
    (iv) * * *
    (f) * * *
    (6) [Reserved]. For further guidance, see Sec.  1.704-
1T(b)(2)(iv)(f)(6).
* * * * *
    (f) [Reserved]. For further guidance, see Sec.  1.704-1T(f).

0
Par. 5. Section 1.704-1T is amended by:
0
1. Revising paragraphs (b)(1)(iii) through (b)(2)(iv)(f)(5).
0
2. Adding paragraph (b)(2)(iv)(f)(6).
0
3. Revising paragraphs (b)(2)(iv)(g) through (b)(4)(viii)(a) 
introductory text.
0
4. Redesignating paragraph (f) as paragraph (g).
0
5. Adding a new paragraph (f).
0
6. Revising newly redesignated paragraph (g).
    The additions and revisions read as follows:


Sec.  1.704-1T   Partner's distributive share (temporary).

* * * * *
    (b)(1)(iii) through (b)(2)(iv)(f)(5) [Reserved]. For further 
guidance, see Sec.  1.704-1(b)(1)(iii) through (b)(2)(iv)(f)(5).
    (6) Notwithstanding paragraph (b)(2)(iv)(f)(5) of this section, the 
revaluation is required under Sec.  1.721(c)-3T(d)(1) as a condition of 
the application of the gain deferral method (as described in Sec.  
1.721(c)-3T(b)) and is pursuant to an event described in this paragraph 
(b)(2)(iv)(f)(6). If an interest in a partnership is contributed to a 
section 721(c) partnership (as defined in Sec.  1.721(c)-1T(b)(14)), 
the partnership whose interest is contributed may revalue its property 
in accordance with this section. In this case, the revaluation by the 
partnership whose interest was contributed must occur immediately 
before the contribution. If a partnership that revalues its property 
pursuant to this paragraph owns an interest in another partnership, the 
partnership in which it owns an interest may also revalue its property 
in accordance with this section. When multiple partnerships revalue 
under this paragraph (b)(2)(iv)(f)(6), the revaluations occur in order 
from the lowest-tier partnership to the highest-tier partnership.

[[Page 7598]]

    (b)(2)(iv)(g) through (b)(4)(viii)(a) introductory text [Reserved]. 
For further guidance, see Sec.  1.704-1(b)(2)(iv)(g) through 
(b)(4)(viii)(a) introductory text.
* * * * *
    (f) Dates--(1) Applicability dates--(i) In general. Except as 
provided in paragraph (f)(1)(ii) of this section, paragraph 
(b)(2)(iv)(f)(6) of this section applies with respect to contributions 
occurring on or after January 18, 2017, and with respect to 
contributions occurring before January 18, 2017, resulting from an 
entity classification election made under Sec.  301.7701-3 of this 
chapter that is filed on or after January 18, 2017.
    (ii) Election to apply the provisions described in paragraph 
(f)(1)(i) of this section retroactively. Paragraph (b)(2)(iv)(f)(6) of 
this section may, by election, be applied with respect to a 
contribution occurring on or after August 6, 2015, but before January 
18, 2017, and with respect to a contribution occurring before August 6, 
2015, resulting from an entity classification election made under Sec.  
301.7701-3 of this chapter that is filed on or after August 6, 2015. 
The election is made by applying paragraph (b)(2)(iv)(f)(6) of this 
section on a timely filed original return (including extensions) or an 
amended return filed no later than six months after January 18, 2017.
    (2) Expiration date. Paragraph (b)(2)(iv)(f)(6) of this section 
expires on January 17, 2020.
    (g) Expiration date. The applicability of this section (other than 
paragraphs (b)(2)(iv)(f)(6) and (f) of this section) expires on 
February 4, 2019.

0
Par. 6. Section 1.704-3 is amended by adding paragraphs (a)(13), 
(d)(5)(iii), and (g) to read as follows:


Sec.  1.704-3   Contributed property.

    (a) * * *
    (13) [Reserved]. For further guidance, see Sec.  1.704-3T(a)(13).
* * * * *
    (d) * * *
    (5) * * *
    (iii) [Reserved]. For further guidance, see Sec.  1.704-
3T(d)(5)(iii).
* * * * *
    (g) [Reserved]. For further guidance, see Sec.  1.704-3T(g).

0
Par. 7. Section 1.704-3T is added to read as follows:


Sec.  1.704-3T   Contributed property (temporary).

    (a)(1) through (12) [Reserved]. For further guidance, see Sec.  
1.704-3(a)(1) through (12).
    (13) Rules for tiered section 721(c) partnerships--(i) 
Revaluations. If a partnership revalues its property pursuant to Sec.  
1.704-1T(b)(2)(iv)(f)(6) immediately before an interest in the 
partnership is contributed to another partnership, or if an upper-tier 
partnership owns an interest in a lower-tier partnership, and both the 
upper-tier partnership and the lower-tier partnership revalue 
partnership property pursuant to Sec.  1.704-1T(b)(2)(iv)(f)(6), the 
principles of Sec.  1.704-3(a)(9) will apply to any reverse section 
704(c) allocations made as a result of the revaluation.
    (ii) Basis-derivative items. If a lower-tier partnership that is a 
section 721(c) partnership applies the gain deferral method, then, for 
purposes of applying this section, the upper-tier partnership must 
treat its distributive share of lower-tier partnership items of gain, 
loss, amortization, depreciation, or other cost recovery with respect 
to the lower-tier partnership's section 721(c) property as though they 
were items of gain, loss, amortization, depreciation, or other cost 
recovery with respect to the upper-tier partnership's interest in the 
lower-tier partnership. For purposes of this paragraph (a)(13)(ii), 
gain deferral method is defined in Sec.  1.721(c)-1T(b)(8), section 
721(c) partnership is defined in Sec.  1.721(c)-1T(b)(14), and section 
721(c) property is defined in Sec.  1.721(c)-1T(b)(15).
    (b) through (d)(5)(ii) [Reserved]. For further guidance, see Sec.  
1.704-3(b) through (d)(5)(ii).
    (iii) Special rules for a section 721(c) partnership and anti-
churning property--(A) In general. Solely in the case of a gain 
deferral contribution of section 721(c) property that is a section 
197(f)(9) intangible that was not an amortizable section 197 intangible 
in the hands of the contributor, the remedial allocation method is 
modified with respect to allocations to a related person to the U.S. 
transferor pursuant to paragraphs (d)(5)(iii)(B) through (F) of this 
section. For purposes of this paragraph (d)(5)(iii), gain deferral 
contribution is defined in Sec.  1.721(c)-1T(b)(7), related person is 
defined in Sec.  1.721(c)-1T(b)(12), section 721(c) partnership is 
defined in Sec.  1.721(c)-1T(b)(14), section 721(c) property is defined 
in Sec.  1.721(c)-1T(b)(15), and U.S. transferor is defined in Sec.  
1.721(c)-1T(b)(18). For an example applying the rules of this paragraph 
(d)(5)(iii), see Sec.  1.721(c)-7T, Example 6.
    (B) Book basis recovery. The section 721(c) partnership must 
amortize the portion of the partnership's book value in the section 
197(f)(9) intangible that exceeds the adjusted basis in the property 
upon contribution using any recovery period and amortization method 
available to the partnership as if the property had been newly 
purchased by the partnership from an unrelated party.
    (C) Effect of ceiling rule limitations. If the ceiling rule causes 
the book allocation of the item of amortization of a section 197(f)(9) 
intangible under paragraph (d)(5)(iii)(B) of this section by a section 
721(c) partnership to a related person with respect to the U.S. 
transferor to differ from the tax allocation of the same item to the 
related person (a ceiling rule limited related person), the partnership 
must not create a remedial item of deduction to allocate to the related 
person but instead must increase the adjusted basis of the section 
197(f)(9) intangible by an amount equal to the difference solely with 
respect to that related person. The partnership simultaneously must 
create an offsetting remedial item in an amount identical to the 
increase in adjusted tax basis of the section 197(f)(9) intangible and 
allocate it to the contributing partner.
    (D) Effect of basis adjustment--(1) In general. The basis 
adjustment described in paragraph (d)(5)(iii)(C) of this section 
constitutes an adjustment to the adjusted basis of a section 197(f)(9) 
intangible with respect to the ceiling rule limited related person 
only. No adjustment is made to the common basis of partnership 
property. Thus, for purposes of calculating gain and loss, the ceiling 
rule limited related person will have a special basis for that section 
197(f)(9) intangible. The adjustment to the basis of partnership 
property under this section has no effect on the partnership's 
computation of any item under section 703.
    (2) Computation of a partner's distributive share of partnership 
items. The partnership first computes its items of gain or loss at the 
partnership level under section 703. The partnership then allocates the 
partnership items among the partners, including the ceiling rule 
limited related person, in accordance with section 704, and adjusts the 
partners' capital accounts accordingly. The partnership then adjusts 
the ceiling rule limited related person's distributive share of the 
items of partnership gain or loss, in accordance with paragraph 
(d)(5)(iii)(D)(3) of this section, to reflect the effects of that 
person's basis adjustment under this section. These adjustments to that 
person's distributive shares must be reflected on Schedules K and K-1 
of the partnership's return (Form 1065) (when otherwise required to be 
completed) and do not affect that person's capital account.
    (3) Effect of basis adjustment in determining items of income, 
gain, or

[[Page 7599]]

loss. The amount of a ceiling rule limited related person's gain or 
loss from the sale or exchange of a section 197(f)(9) intangible in 
which that person has a tax basis adjustment is equal to that person's 
share of the partnership's gain or loss from the sale of the asset 
(including any remedial allocations under this paragraph (d) and Sec.  
1.704-3(d)), minus the amount of that person's tax basis adjustment for 
the section 197(f)(9) intangible.
    (E) Subsequent transfers--(1) In general. Except as provided in 
paragraph (d)(5)(iii)(E)(2) of this section, if a ceiling rule limited 
related person transfers all or part of its partnership interest, the 
portion of the basis adjustment for a section 197(f)(9) intangible 
attributable to the interest transferred is eliminated. The transferor 
of the partnership interest remains the ceiling rule limited related 
person with respect to any remaining basis adjustment for the section 
197(f)(9) intangible.
    (2) Special rules for substituted basis transactions. Paragraph 
(d)(5)(iii)(E)(1) of this section does not apply to the extent a 
ceiling rule limited related person transfers its partnership interest 
in a transaction in which the transferee's basis in the partnership 
interest is determined in whole or in part by reference to the ceiling 
rule limited related person's basis in that interest. Instead, in such 
a case, the transferee succeeds to that portion of the transferor's 
basis adjustment for a section 197(f)(9) intangible attributable to the 
interest transferred. In such a case, the basis adjustment in a section 
197(f)(9) intangible to which the transferee succeeds is taken into 
account for purposes of determining the transferee's share of the 
adjusted basis to the partnership of the partnership's property for 
purposes of Sec. Sec.  1.743-1(b) and 1.755-1(b)(5). To the extent a 
transferee would be required to decrease the adjusted basis of a 
section 197(f)(9) intangible pursuant to Sec. Sec.  1.743-1(b)(2) and 
1.755-1(b)(5), the decrease first reduces the special basis adjustment 
described in paragraph (d)(5)(iii)(C) of this section, if any, to which 
the transferee succeeds.
    (F) Non-amortization of basis adjustment. Neither the increase to 
the adjusted basis of a section 197(f)(9) intangible with respect to a 
ceiling rule limited related person nor the portion of the basis of any 
property that was determined by reference to such increase is subject 
to amortization, depreciation, or other cost recovery.
    (d)(6) through (f) [Reserved]. For further guidance, see Sec.  
1.704-3(d)(6) through (f).
    (g) Certain rules for section 721(c) partnerships--(1) 
Applicability dates--(i) In general. Notwithstanding Sec.  1.704-3(f), 
except as provided in paragraph (g)(1)(ii) of this section, paragraphs 
(a)(13) and (d)(5)(iii) of this section apply with respect to 
contributions occurring on or after January 18, 2017, and with respect 
to contributions occurring before January 18, 2017, resulting from an 
entity classification election made under Sec.  301.7701-3 of this 
chapter that is filed on or after January 18, 2017.
    (ii) Election to apply the provisions described in paragraph 
(g)(1)(i) of this section retroactively. Paragraphs (a)(13) and 
(d)(5)(iii) of this section may, by election, be applied with respect 
to a contribution occurring on or after August 6, 2015, but before 
January 18, 2017, and with respect to a contribution occurring before 
August 6, 2015, resulting from an entity classification election made 
under Sec.  301.7701-3 of this chapter that is filed on or after August 
6, 2015. The election is made by applying paragraph (a)(13) or 
paragraph (d)(5)(iii) of this section, as applicable, on a timely filed 
original return (including extensions) or an amended return filed no 
later than six months after January 18, 2017.
    (2) Expiration date. The applicability of paragraphs (a)(13) and 
(d)(5)(iii) of this section expires on January 17, 2020.

0
Par. 8. Section 1.721(c)-1T is added to read as follows:


Sec.  1.721(c)-1T   Overview, definitions, and rules of general 
application (temporary).

    (a) Overview--(1) In general. This section and Sec. Sec.  1.721(c)-
2T through 1.721(c)-7T (collectively, the section 721(c) regulations) 
provide rules under section 721(c). This section provides definitions 
and rules of general application for purposes of the section 721(c) 
regulations. Section 1.721(c)-2T provides the general operative rules 
that override section 721(a) nonrecognition of gain upon a contribution 
of section 721(c) property to a section 721(c) partnership. Section 
1.721(c)-3T describes the gain deferral method, which may be applied in 
order to avoid the immediate recognition of gain upon a contribution of 
section 721(c) property to a section 721(c) partnership. Section 
1.721(c)-4T provides rules regarding acceleration events for purposes 
of applying the gain deferral method. Section 1.721(c)-5T identifies 
exceptions to the rules regarding acceleration events provided in Sec.  
1.721(c)-4T(b). Section 1.721(c)-6T provides procedural and reporting 
requirements. Section 1.721(c)-7T provides examples illustrating the 
application of the section 721(c) regulations.
    (2) Scope. Paragraph (b) of this section provides definitions. 
Paragraph (c) of this section describes the treatment of a change in 
form of a partnership. Paragraph (d) of this section provides an anti-
abuse rule. Paragraph (e) of this section provides the dates of 
applicability, and paragraph (f) of this section provides the date of 
expiration.
    (b) Definitions. The following definitions apply for purposes of 
the section 721(c) regulations. Unless otherwise indicated, the 
definitions apply on a property-by-property basis, as applicable.
    (1) Acceleration event. An acceleration event has the meaning 
provided in Sec.  1.721(c)-4T(b).
    (2) Built-in gain. Built-in gain is, with respect to property 
contributed to a partnership, the excess of the book value of the 
property over the partnership's adjusted tax basis in the property upon 
the contribution, determined without regard to the application of Sec.  
1.721(c)-2T(b).
    (3) Consistent allocation method. The consistent allocation method 
is the method described in Sec.  1.721(c)-3T(c).
    (4) Controlled partnership. A partnership is a controlled 
partnership with respect to a U.S. transferor if the U.S. transferor 
and related persons control the partnership. For this purpose, control 
is determined based on all the facts and circumstances, except that a 
partnership will be deemed to be controlled by a U.S. transferor and 
related persons if those persons, in the aggregate, own (directly or 
indirectly through one or more partnerships) more than 50 percent of 
the interests in the partnership capital or profits.
    (5) Direct or indirect partner. A direct or indirect partner is a 
person (other than a partnership) that owns an interest in a 
partnership directly or indirectly through one or more partnerships.
    (6) Excluded property. Excluded property is--
    (i) A cash equivalent;
    (ii) A security within the meaning of section 475(c)(2), without 
regard to section 475(c)(4);
    (iii) Tangible property with a book value exceeding adjusted tax 
basis by no more than $20,000 or with an adjusted tax basis in excess 
of book value; and
    (iv) An interest in a partnership in which 90 percent or more of 
the property (as measured by value) held by the partnership (directly 
or indirectly through interests in one or more partnerships that are 
not excluded property) consists of property described in paragraphs 
(b)(6)(i) through (iii) of this section.

[[Page 7600]]

    (7) Gain deferral contribution. A gain deferral contribution is a 
contribution of section 721(c) property to a section 721(c) partnership 
with respect to which the recognition of gain is deferred under the 
gain deferral method.
    (8) Gain deferral method. The gain deferral method is the method 
described in Sec.  1.721(c)-3T(b).
    (9) Partial acceleration event. A partial acceleration event is an 
event described in Sec.  1.721(c)-5T(d)(2) or (3).
    (10) Regulatory allocation. A regulatory allocation is--
    (i) An allocation pursuant to a minimum gain chargeback, as defined 
in Sec.  1.704-2(b)(2);
    (ii) A partner nonrecourse deduction, as determined in Sec.  1.704-
2(i)(2);
    (iii) An allocation pursuant to a partner minimum gain chargeback, 
as described in Sec.  1.704-2(i)(4);
    (iv) An allocation pursuant to a qualified income offset, as 
defined in Sec.  1.704-1(b)(2)(ii)(d);
    (v) An allocation with respect to the exercise of a noncompensatory 
option described in Sec.  1.704-1(b)(2)(iv)(s); and
    (vi) An allocation of partnership level ordinary income or loss 
described in Sec.  1.751-1(a)(3).
    (11) Related foreign person. A related foreign person is, with 
respect to a U.S. transferor, a related person (other than a 
partnership) that is not a U.S. person.
    (12) Related person. A related person is, with respect to a U.S. 
transferor, a person that is related (within the meaning of section 
267(b) or 707(b)(1)) to the U.S. transferor.
    (13) Remaining built-in gain--(i) In general. Remaining built-in 
gain is, with respect to section 721(c) property subject to the gain 
deferral method, the built-in gain reduced by decreases in the 
difference between the property's book value and adjusted tax basis, 
but, for this purpose, without taking into account increases or 
decreases to the property's book value pursuant to Sec.  1.704-
1(b)(2)(iv)(f) or (s).
    (ii) Special rule for tiered partnerships. If section 721(c) 
property is described in Sec.  1.721(c)-3T(d)(1)(ii), the remaining 
built-in gain includes the new positive reverse section 704(c) layer 
described in Sec.  1.721(c)-3T(d)(1)(ii), reduced by decreases in the 
difference between the property's book value and adjusted tax basis, 
but, for this purpose, without taking into account increases or 
decreases to the property's book value pursuant to Sec.  1.704-
1(b)(2)(iv)(f) or (s) that are unrelated to the revaluation described 
in Sec.  1.721(c)-3T(d)(1)(i).
    (14) Section 721(c) partnership--(i) In general. A partnership 
(domestic or foreign) is a section 721(c) partnership if there is a 
contribution of section 721(c) property to the partnership and, after 
the contribution and all transactions related to the contribution--
    (A) A related foreign person with respect to the U.S. transferor is 
a direct or indirect partner in the partnership; and
    (B) The U.S. transferor and related persons own 80 percent or more 
of the interests in partnership capital, profits, deductions, or 
losses.
    (ii) Special rule for tiered partnerships. A partnership described 
in Sec.  1.721(c)-3T(d)(1) or (2) is deemed to be a section 721(c) 
partnership for purposes of the gain deferral method.
    (15) Section 721(c) property--(i) In general. Section 721(c) 
property is property, other than excluded property, with built-in gain 
that is contributed to a partnership by a U.S. transferor, including 
pursuant to a contribution described in Sec.  1.721(c)-2T(d) 
(partnership look-through rule). If the U.S. transferor is treated as 
contributing its share of property to a partnership pursuant to Sec.  
1.721(c)-2T(d), the entire property will be section 721(c) property.
    (ii) Special rule for tiered partnerships. Property described in 
Sec.  1.721(c)-3T(d)(1)(ii) and an interest in a partnership described 
in Sec.  1.721(c)-3T(d)(2)(ii) is deemed to be section 721(c) property.
    (16) Successor event. A successor event is an event described in 
Sec.  1.721(c)-5T(c)(2), (3), (4), or (5).
    (17) Termination event. A termination event is an event described 
in Sec.  1.721(c)-5T(b)(2), (3), (4), (5), (6), or (7).
    (18) U.S. transferor--(i) In general. A U.S. transferor is a United 
States person within the meaning of section 7701(a)(30) (a U.S. 
person), other than a domestic partnership.
    (ii) Special rule for tiered partnerships. Solely for purposes of 
applying the consistent allocation method, a U.S. transferor includes a 
partnership that is treated as a U.S. transferor under Sec.  1.721(c)-
3T(d)(1)(iii) or (d)(2)(i).
    (c) Change in form of a partnership. A mere change in identity, 
form, or place of organization of a partnership or a recapitalization 
of a partnership will not cause the partnership to become a section 
721(c) partnership.
    (d) Anti-abuse rule. If a U.S. transferor engages in a transaction 
(or series of transactions) or an arrangement with a principal purpose 
of avoiding the application of the section 721(c) regulations, the 
transaction (or series of transactions) or the arrangement may be 
recharacterized (including by aggregating or disregarding steps or 
disregarding an intermediate entity) in accordance with its substance.
    (e) Applicability dates--(1) In general. Except as provided in 
paragraphs (e)(2) and (3) of this section, this section applies to 
contributions occurring on or after August 6, 2015, and to 
contributions occurring before August 6, 2015, resulting from an entity 
classification election made under Sec.  301.7701-3 of this chapter 
that is filed on or after August 6, 2015.
    (2) Certain provisions. Except as provided in paragraph (e)(3) of 
this section, paragraphs (b)(6)(iv) and (c) of this section apply to 
contributions occurring on or after January 18, 2017, and to 
contributions occurring before January 18, 2017, resulting from an 
entity classification election made under Sec.  301.7701-3 of this 
chapter that is filed on or after January 18, 2017. Except as provided 
in paragraph (e)(3) of this section, paragraph (b)(14)(i)(B) of this 
section applies by replacing ``80 percent or more'' with ``greater than 
50 percent'' with respect to contributions occurring on or after August 
6, 2015, but before January 18, 2017, and with respect to contributions 
occurring before August 6, 2015, resulting from an entity 
classification election made under Sec.  301.7701-3 of this chapter 
that is filed on or after August 6, 2015, but before January 18, 2017.
    (3) Election to apply the provisions described in paragraph (e)(2) 
of this section retroactively. Paragraphs (b)(6)(iv), (b)(14)(i)(B), 
and (c) of this section, without the modification described in 
paragraph (e)(2) of this section, may, by election, be applied to a 
contribution occurring on or after August 6, 2015, but before January 
18, 2017, and to a contribution occurring before August 6, 2015, 
resulting from an entity classification election made under Sec.  
301.7701-3 of this chapter that is filed on or after August 6, 2015. 
The election is made by applying paragraph (b)(6)(iv) or (c) as 
described in paragraph (b)(14)(i)(B) or (e)(2) of this section, without 
the modification described in paragraph (e)(2) of this section, as 
applicable, to the contribution on a timely filed original return 
(including extensions) or an amended return filed no later than six 
months after January 18, 2017.
    (f) Expiration date. The applicability of this section expires on 
January 17, 2020.

0
Par. 9. Section 1.721(c)-2T is added to read as follows:

[[Page 7601]]

Sec.  1.721(c)-2T  Recognition of gain on certain contributions of 
property to partnerships with related foreign partners (temporary).

    (a) Scope. This section provides the general operative rules that 
override section 721(a) nonrecognition of gain upon a contribution of 
section 721(c) property to a section 721(c) partnership. Paragraph (b) 
of this section provides the general rule that nonrecognition of gain 
under section 721(a) does not apply to a contribution of section 721(c) 
property to a section 721(c) partnership. Paragraph (c) of this section 
provides a de minimis exception to the application of the general rule 
in paragraph (b) of this section. Paragraph (d) of this section 
provides rules for identifying a section 721(c) partnership when a 
partnership in which a U.S. transferor is a direct or indirect partner 
contributes property to another partnership. Paragraph (e) of this 
section provides the dates of applicability, and paragraph (f) of this 
section provides the date of expiration. For definitions that apply for 
purposes of this section, see Sec.  1.721(c)-1T(b).
    (b) General rule for contributions of section 721(c) property. 
Except as provided in this paragraph (b), paragraph (c) of this 
section, and Sec.  1.721(c)-3T (describing the gain deferral method), 
nonrecognition under section 721(a) will not apply to gain realized by 
the contributing partner upon a contribution of section 721(c) property 
to a section 721(c) partnership. This paragraph (b) does not apply to a 
direct contribution by a U.S. transferor if the U.S. transferor and 
related persons with respect to the U.S. transferor do not own 80 
percent or more of the interests in partnership capital, profits, 
deductions, or losses.
    (c) De minimis exception. Paragraph (b) of this section will not 
apply with respect to contributions to a section 721(c) partnership 
during a taxable year of the section 721(c) partnership for which the 
sum of the built-in gain with respect to all section 721(c) property 
contributed in that taxable year does not exceed $1 million. If, 
pursuant to the last sentence of paragraph (b) of this section, a 
direct contribution of property to the section 721(c) partnership by a 
U.S. transferor is not subject to paragraph (b) of this section, then 
such contribution is not taken into account for purposes of this 
paragraph (c).
    (d) Rules for identifying a section 721(c) partnership when a 
partnership contributes property to another partnership--(1) 
Partnership look-through rule. If a U.S. transferor is a direct or 
indirect partner in a partnership (upper-tier partnership) and the 
upper-tier partnership contributes all or a portion of its property to 
another partnership (lower-tier partnership), then, for purposes of 
determining if the lower-tier partnership is a section 721(c) 
partnership, the U.S. transferor is treated as contributing to the 
lower-tier partnership its share of the property actually contributed 
by the upper-tier partnership to the lower-tier partnership.
    (2) Exception for a technical termination of a partnership. 
Paragraph (d)(1) of this section will not apply to a deemed 
contribution that occurs as a result of a termination of a partnership 
described in section 708(b)(1)(B) (technical termination). If a 
partnership is a section 721(c) partnership immediately before a 
technical termination, see Sec.  1.721(c)-5T(c)(4) (which treats 
technical terminations as successor events in certain circumstances).
    (e) Applicability dates--(1) In general. Except as provided in 
paragraphs (e)(2) and (3) of this section, this section applies to 
contributions occurring on or after August 6, 2015, and to 
contributions occurring before August 6, 2015, resulting from an entity 
classification election made under Sec.  301.7701-3 of this chapter 
that is filed on or after August 6, 2015.
    (2) Certain provisions. Except as provided in paragraph (e)(3) of 
this section, the final sentence of paragraph (b) of this section, the 
final sentence of paragraph (c) of this section, and paragraph (d)(2) 
of this section apply to contributions occurring on or after January 
18, 2017, and to contributions occurring before January 18, 2017, 
resulting from an entity classification election made under Sec.  
301.7701-3 of this chapter that is filed on or after January 18, 2017.
    (3) Election to apply the provisions described in paragraph (e)(2) 
of this section retroactively. The final sentence of paragraph (b) of 
this section, the final sentence of paragraph (c) of this section, and 
paragraph (d)(2) of this section may, by election, be applied to a 
contribution occurring on or after August 6, 2015, but before January 
18, 2017, and to a contribution occurring before August 6, 2015, 
resulting from an entity classification election made under Sec.  
301.7701-3 of this chapter that is filed on or after August 6, 2015. 
The election is made by applying the final sentence of paragraph (b) of 
this section, the final sentence of paragraph (c) of this section, or 
paragraph (d)(2) of this section, as applicable, to the contribution on 
a timely filed original return (including extensions) or an amended 
return filed no later than six months after January 18, 2017.
    (f) Expiration date. The applicability of this section expires on 
January 17, 2020.

0
Par. 10. Section 1.721(c)-3T is added to read as follows:


Sec.  1.721(c)-3T   Gain deferral method (temporary).

    (a) Scope. This section describes the gain deferral method to avoid 
the immediate recognition of gain upon a contribution of section 721(c) 
property to a section 721(c) partnership. Paragraph (b) of this section 
provides the requirements of the gain deferral method, including the 
requirement to apply the consistent allocation method. Paragraph (c) of 
this section describes the consistent allocation method. Paragraph (d) 
of this section provides rules for tiered partnerships. Paragraph (e) 
of this section provides the dates of applicability, and paragraph (f) 
of this section provides the date of expiration. For definitions that 
apply for purposes of this section, see Sec.  1.721(c)-1T(b).
    (b) Requirements of the gain deferral method. A contribution of 
section 721(c) property to a section 721(c) partnership that would be 
subject to Sec.  1.721(c)-2T(b) will not be subject to Sec.  1.721(c)-
2T(b) if the conditions in paragraphs (b)(1) through (5) of this 
section are satisfied with respect to that property.
    (1) Either--
    (i) Both--
    (A) The section 721(c) partnership adopts the remedial allocation 
method described in Sec.  1.704-3(d) with respect to the section 721(c) 
property; and
    (B) The section 721(c) partnership applies the consistent 
allocation method provided in paragraph (c) of this section; or
    (ii) For the period beginning on the date of the contribution of 
the section 721(c) property and ending on the date on which there is no 
remaining built-in gain with respect to that property, all distributive 
shares of income and gain with respect to the section 721(c) property 
for all direct and indirect partners that are related foreign persons 
with respect to the U.S. transferor will be subject to taxation as 
income effectively connected with a trade or business within the United 
States (under either section 871 or 882), and neither the section 
721(c) partnership nor a related foreign person that is a direct or 
indirect partner in the section 721(c) partnership claims benefits 
under an income tax convention that would exempt the income or gain 
from tax or reduce the rate of taxation to which the income or gain is 
subject.

[[Page 7602]]

    (2) Upon an acceleration event, the U.S. transferor recognizes an 
amount of gain equal to the remaining built-in gain with respect to the 
section 721(c) property or an amount of gain required to be recognized 
under Sec.  1.721(c)-5T(d) or (e), as applicable.
    (3) The procedural and reporting requirements provided in Sec.  
1.721(c)-6T(b) are satisfied.
    (4) The U.S. transferor consents to extend the period of 
limitations on assessment of tax as required by Sec.  1.721(c)-
6T(b)(5).
    (5) If the section 721(c) property is a partnership interest or 
property described in the partnership look-through rule provided in 
Sec.  1.721(c)-2T(d), the applicable tiered-partnership rules provided 
in paragraph (d) of this section are applied.
    (c) Consistent allocation method--(1) In general. For each taxable 
year of a section 721(c) partnership in which there is remaining built-
in gain in the section 721(c) property, the section 721(c) partnership 
must allocate each book item of income, gain, deduction, and loss with 
respect to the section 721(c) property to the U.S. transferor in the 
same percentage. For exceptions to this general rule, see paragraph 
(c)(4) of this section.
    (2) Determining income or gain with respect to section 721(c) 
property. For purposes of applying paragraph (c)(1) of this section, a 
section 721(c) partnership must attribute book income and gain to each 
item of section 721(c) property in a consistent manner using any 
reasonable method taking into account all the facts and circumstances. 
All items of book income and gain attributable to an item of section 
721(c) property will comprise a single class of gross income for 
purposes of applying paragraph (c)(3) of this section.
    (3) Determining deduction or loss with respect to section 721(c) 
property. For purposes of applying paragraph (c)(1) of this section, a 
section 721(c) partnership must use the principles of Sec. Sec.  1.861-
8 and 1.861-8T to allocate and apportion its items of deduction, except 
for interest expense and research and experimental expenditures, and 
loss to the class of gross income with respect to each item of section 
721(c) property as determined in paragraph (c)(2) of this section. 
Accordingly, a deduction or loss will be considered to be definitely 
related and therefore allocable to a class of gross income with respect 
to particular section 721(c) property whether or not there is any item 
of gross income in that class that is received or accrued during the 
taxable year and whether or not the amount of deduction or loss exceeds 
the amount of gross income in that class during the taxable year. If a 
deduction or loss is definitely related and therefore allocable to 
gross income attributable to more than one class of gross income of the 
section 721(c) partnership or if a deduction or loss is not definitely 
related to any class of gross income of the section 721(c) partnership, 
the section 721(c) partnership must apportion that deduction or loss 
among its classes of gross income using a reasonable method that 
reflects to a reasonably close extent the factual relationship between 
the deduction or loss and the classes of gross income. The section 
721(c) partnership may allocate and apportion its interest expense and 
research and experimental expenditures under any reasonable method, 
including, but not limited to, the methods prescribed in Sec. Sec.  
1.861-9 and 1.861-9T (interest expense) and Sec.  1.861-17 (research 
and experimental expenditures). For this purpose, the section 721(c) 
partnership must allocate and apportion its deductions and losses 
without regard to the partners' percentage interests in the 
partnership.
    (4) Exceptions to the consistent allocation method--(i) Regulatory 
allocations. A regulatory allocation (as defined in Sec.  1.721(c)-
1T(b)(10)) of book income, gain, deduction, or loss with respect to 
section 721(c) property that otherwise would fail to satisfy paragraph 
(c)(1) of this section is nevertheless deemed to satisfy that paragraph 
if the allocation is--
    (A) An allocation of income or gain to the U.S. transferor (or a 
member of its consolidated group as defined in Sec.  1.1502-1(h));
    (B) An allocation of deduction or loss to a partner other than the 
U.S. transferor (or a member of its consolidated group); or
    (C) Treated as a partial acceleration event pursuant to Sec.  
1.721(c)-5T(d)(2).
    (ii) Allocation of creditable foreign tax expenditures. An 
allocation of a creditable foreign tax expenditure (as defined in Sec.  
1.704-1(b)(4)(viii)(b)) is not subject to the consistent allocation 
method.
    (d) Tiered partnership rules. This paragraph (d) provides the 
tiered partnership rules referred to in paragraph (b)(5) of this 
section.
    (1) Section 721(c) property is a partnership interest. If the 
section 721(c) property that is contributed to a section 721(c) 
partnership is an interest in a partnership (lower-tier partnership), 
then the lower-tier partnership, if it is a controlled partnership with 
respect to the U.S. transferor, and each partnership in which an 
interest is owned (directly or indirectly through one or more 
partnerships) by the lower-tier partnership and that is a controlled 
partnership with respect to the U.S. transferor, must satisfy the 
requirements of paragraphs (d)(1)(i), (ii), and (iii) of this section.
    (i) The partnership must revalue all its property under Sec.  
1.704-1(b)(2)(iv)(f)(6) if the revaluation would result in a separate 
positive difference between book value and adjusted tax basis in at 
least one property that is not excluded property.
    (ii) The partnership must apply the gain deferral method for each 
property (other than excluded property) for which there is a separate 
positive difference between book value and adjusted tax basis resulting 
from the revaluation described in paragraph (d)(1) of this section (new 
positive reverse section 704(c) layer). If the partnership has 
previously adopted a section 704(c) method other than the remedial 
allocation method for the property, the partnership satisfies the 
requirement of paragraph (b)(1)(i)(A) of this section by adopting the 
remedial allocation method for the new positive reverse section 704(c) 
layer.
    (iii) The partnership must treat a partner that is a partnership in 
which the U.S. transferor is a direct or indirect partner as if it were 
the U.S. transferor with respect to the section 721(c) property solely 
for purposes of applying the consistent allocation method.
    (2) Section 721(c) property is indirectly contributed by a U.S. 
transferor under the partnership look-through rule. If the U.S. 
transferor is a direct or indirect partner in the upper-tier 
partnership described in Sec.  1.721(c)-2T(d)(1), and under Sec.  
1.721(c)-2T(d)(1), the U.S. transferor is treated as contributing the 
section 721(c) property (including an interest in a partnership 
described in paragraph (d)(1) of this section) to a section 721(c) 
partnership, then the requirements of paragraphs (d)(2)(i), (ii), and 
(iii) of this section must be satisfied.
    (i) The section 721(c) partnership must treat the upper-tier 
partnership as the U.S. transferor of the section 721(c) property 
solely for purposes of applying the consistent allocation method;
    (ii) The upper-tier partnership, if it is a controlled partnership 
with respect to the U.S. transferor, must apply the gain deferral 
method to its interest in the section 721(c) partnership; and
    (iii) If the U.S. transferor is an indirect partner in the upper-
tier partnership through one or more partnerships, the principles of 
paragraphs (d)(2)(i) and (ii) of this section must be applied with 
respect to those partnerships that are

[[Page 7603]]

controlled partnerships with respect to the U.S. transferor.
    (e) Applicability dates--(1) In general. Except as provided in 
paragraphs (e)(2) and (3) of this section, this section applies to 
contributions occurring on or after August 6, 2015, and to 
contributions occurring before August 6, 2015, resulting from an entity 
classification election made under Sec.  301.7701-3 of this chapter 
that is filed on or after August 6, 2015.
    (2) Certain provisions. Except as provided in paragraph (e)(3) of 
this section, paragraphs (b)(1)(ii), (c)(2) and (3), (c)(4)(i) and 
(ii), and (d)(1) and (2) of this section apply to contributions 
occurring on or after January 18, 2017, and to contributions occurring 
before January 18, 2017, resulting from an entity classification 
election made under Sec.  301.7701-3 of this chapter that is filed on 
or after January 18, 2017.
    (3) Election to apply the provisions described in paragraph (e)(2) 
of this section retroactively. Paragraphs (b)(1)(ii), (c)(2) and (3), 
(c)(4)(i) and (ii), and (d)(1) and (2) of this section may, by 
election, be applied to a contribution occurring on or after August 6, 
2015, but before January 18, 2017, and to a contribution occurring 
before August 6, 2015, resulting from an entity classification election 
made under Sec.  301.7701-3 of this chapter that is filed on or after 
August 6, 2015. The election is made by applying paragraph (b)(1)(ii), 
(c)(2) and (3), (c)(4)(i) and (ii), and (d)(1) or (2) of this section, 
as applicable, to the contribution on a timely filed original return 
(including extensions) or an amended return filed no later than six 
months after January 18, 2017. In order to elect to apply paragraph 
(c)(2) or (3) of this section to a contribution described in this 
paragraph (e)(3), an election must also be made to apply paragraph 
(c)(3) or (2) of this section, respectively, to the contribution.
    (4) Transitional rules. If a contribution is described in paragraph 
(e)(2) of this section and no election described in paragraph (e)(3) of 
this section is made to apply one or more of paragraphs (c)(2) and (3) 
and (c)(4)(i) and (ii) of this section, as applicable, to the 
contribution, then, for purposes of paragraph (c)(1) of this section, 
the section 721(c) partnership must attribute book income, gain, loss, 
and deduction to the section 721(c) property in a consistent manner 
under any reasonable method taking into account all the facts and 
circumstances. If a contribution is described in paragraph (e)(2) of 
this section and no election described in paragraph (e)(3) of this 
section is made to apply paragraph (d)(1) or (2) of this section, as 
applicable, to the contribution, then, this section must be applied in 
a manner consistent with the purpose of the section 721(c) regulations. 
Thus, for example, if a U.S. transferor is a direct or indirect partner 
in a partnership and that partnership contributes section 721(c) 
property to a lower-tier partnership, or, if a U.S. transferor 
contributes an interest in a partnership that owns section 721(c) 
property to a lower-tier partnership, then paragraph (b) of this 
section applies as though the U.S. transferor contributed its share of 
the section 721(c) property directly.
    (f) Expiration date. The applicability of this section expires on 
January 17, 2020.

0
Par. 11. Section 1.721(c)-4T is added to read as follows:


Sec.  1.721(c)-4T  Acceleration events (temporary).

    (a) Scope. This section provides rules regarding acceleration 
events for purposes of applying the gain deferral method. Paragraph (b) 
of this section defines an acceleration event. Paragraph (c) of this 
section provides the consequences of an acceleration event. Paragraph 
(d) of this section provides the dates of applicability, and paragraph 
(e) of this section provides the date of expiration. For definitions 
that apply for purposes of this section, see Sec.  1.721(c)-1T(b).
    (b) Definition of an acceleration event--(1) General rules. Except 
as provided in this paragraph (b) and Sec.  1.721(c)-5T (acceleration 
event exceptions), an acceleration event with respect to section 721(c) 
property is any event that either would reduce the amount of remaining 
built-in gain that a U.S. transferor would recognize under the gain 
deferral method if the event had not occurred or could defer the 
recognition of the remaining built-in gain. An acceleration event 
includes a contribution of section 721(c) property to another 
partnership by a section 721(c) partnership and a contribution of an 
interest in a section 721(c) partnership to another partnership. This 
paragraph (b) applies on a property-by-property basis.
    (2) Failure to comply with a requirement of the gain deferral 
method--(i) General rule. An acceleration event with respect to section 
721(c) property occurs when any party fails to comply with a condition 
of the gain deferral method with respect to the section 721(c) 
property.
    (ii) Certain failures to comply with procedural and reporting 
requirements. Notwithstanding paragraph (b)(2)(i) of this section, an 
acceleration event will not occur solely as a result of a failure to 
comply with a requirement of Sec.  1.721(c)-3T(b)(3) that is not 
willful. See Sec. Sec.  1.721(c)-6T(f) and 1.6038B-2T(h)(3).
    (3) Lower-tier partnership allocations. Notwithstanding paragraph 
(b)(1) of this section, an acceleration event will not occur because of 
a reduction in remaining built-in gain in an interest in a partnership 
that is section 721(c) property that occurs as a result of allocations 
of book items of deduction and loss, or tax items of income and gain.
    (4) Deemed acceleration event. A U.S. transferor may treat an 
acceleration event as having occurred with respect to section 721(c) 
property by both recognizing gain in an amount equal to the remaining 
built-in gain that would have been allocated to the U.S. transferor if 
the section 721(c) partnership had sold the section 721(c) property 
immediately before the deemed acceleration event for fair market value 
and satisfying the reporting required by Sec.  1.721(c)-6T(b)(3)(iv). 
In this case, see paragraph (c) of this section regarding basis 
adjustments.
    (c) Consequences of an acceleration event. Paragraphs (c)(1) and 
(2) of this section provide the consequences of an acceleration event 
with respect to section 721(c) property, a partial acceleration event 
with respect to section 721(c) property to the extent provided in Sec.  
1.721(c)-5T(d)(1), and a transfer described in section 367 of section 
721(c) property to the extent provided in Sec.  1.721(c)-5T(e).
    (1) U.S. transferor. The U.S. transferor must recognize gain in an 
amount equal to the remaining built-in gain that would have been 
allocated to the U.S. transferor if the section 721(c) partnership had 
sold the section 721(c) property immediately before the acceleration 
event for fair market value. The U.S. transferor will increase its 
basis in its partnership interest by the amount of gain recognized. If 
the U.S. transferor is an indirect partner in the section 721(c) 
partnership through one or more tiered partnerships, appropriate basis 
adjustments will be made to the interests in the tiered partnerships.
    (2) Section 721(c) partnership. The section 721(c) partnership will 
increase its basis in the section 721(c) property by the amount of 
built-in gain recognized by the U.S. transferor under paragraph (c)(1) 
of this section. Any tax consequences of the acceleration event will be 
determined taking into account the increase in the partnership's 
adjusted tax basis in the section 721(c) property. If the section 
721(c) property remains in the partnership after the

[[Page 7604]]

acceleration event, the increase in basis of the section 721(c) 
property may be recovered using any applicable recovery period and 
depreciation (or other cost recovery) method (including first-year 
conventions) available to the partnership for newly purchased property 
of the same type placed in service on the date of the acceleration 
event. The section 721(c) property will no longer be subject to the 
gain deferral method.
    (d) Applicability dates. This section applies to contributions 
occurring on or after August 6, 2015, and to contributions occurring 
before August 6, 2015, resulting from an entity classification election 
made under Sec.  301.7701-3 of this chapter that is filed on or after 
August 6, 2015.
    (e) Expiration date. The applicability of this section expires on 
January 17, 2020.

0
Par. 12. Section 1.721(c)-5T is added to read as follows:


Sec.  1.721(c)-5T  Acceleration event exceptions (temporary).

    (a) Scope. This section identifies exceptions to the acceleration 
events, which, like the rules regarding acceleration events provided in 
Sec.  1.721(c)-4T(b), apply on a property-by-property basis. Paragraph 
(b) of this section identifies the events that terminate the 
requirement to apply the gain deferral method. Paragraph (c) of this 
section identifies the successor events that allow for the continued 
application of the gain deferral method. Paragraph (d) of this section 
identifies the partial acceleration events. Paragraph (e) of this 
section provides special rules for transfers of section 721(c) property 
to a foreign corporation described in section 367. Paragraph (f) of 
this section allows for the continued application of the gain deferral 
method if there is a fully taxable disposition of a portion of an 
interest in a partnership. Paragraph (g) of this section provides the 
dates of applicability, and paragraph (h) of this section provides the 
date of expiration. For definitions that apply for purposes of this 
section, see Sec.  1.721(c)-1T(b).
    (b) Termination events--(1) In general. Notwithstanding Sec.  
1.721(c)-4T(b)(1), a termination event with respect to section 721(c) 
property will not constitute an acceleration event. In these cases, the 
section 721(c) property will no longer be subject to the gain deferral 
method.
    (2) Transfers of section 721(c) property (other than a partnership 
interest) to a domestic corporation described in section 351. A 
termination event occurs if a section 721(c) partnership transfers 
section 721(c) property (other than an interest in a partnership) to a 
domestic corporation in a transaction to which section 351 applies.
    (3) Certain incorporations of a section 721(c) partnership. A 
termination event occurs upon an incorporation of a section 721(c) 
partnership into a domestic corporation by any method of incorporation 
(other than a method involving an actual distribution of partnership 
property to the partners, followed by a contribution of that property 
to a corporation), provided that the section 721(c) partnership is 
liquidated as part of the incorporation transaction.
    (4) Certain distributions of section 721(c) property. A termination 
event occurs if a section 721(c) partnership distributes section 721(c) 
property either to the U.S. transferor or, if the U.S. transferor is a 
member of a consolidated group (as defined in Sec.  1.1502-1(h)) at the 
time of the distribution and the distribution occurs outside the seven-
year period described in section 704(c)(1)(B), to a member of the 
consolidated group.
    (5) Partnership ceases to have a partner that is a related foreign 
person. A termination event occurs when a section 721(c) partnership 
ceases to have any direct or indirect partners that are related foreign 
persons with respect to the U.S. transferor, provided there is no plan 
for a related foreign person to subsequently become a direct or 
indirect partner in the partnership (or a successor). This paragraph 
(b)(5) does not apply to a distribution of section 721(c) property in 
redemption of a related foreign person's interest in a section 721(c) 
partnership.
    (6) Fully taxable dispositions of section 721(c) property. A 
termination event occurs if a section 721(c) partnership disposes of 
section 721(c) property in a transaction in which all gain or loss, if 
any, is recognized.
    (7) Fully taxable dispositions of an entire interest in a section 
721(c) partnership. A termination event occurs if a U.S. transferor or 
a partnership in which a U.S. transferor is a direct or indirect 
partner disposes of its entire interest in a section 721(c) partnership 
that owns the section 721(c) property in a transaction in which all 
gain or loss, if any, is recognized. This paragraph (b)(7) does not 
apply if a U.S. transferor is a member of a consolidated group (as 
defined in Sec.  1.1502-1(h)) and the interest in the section 721(c) 
partnership is transferred in an intercompany transaction (as defined 
in Sec.  1.1502-13(b)(1)).
    (c) Successor events--(1) In general. Notwithstanding Sec.  
1.721(c)-4T(b)(1), a successor event with respect to section 721(c) 
property will not constitute an acceleration event. If only a portion 
of an interest in a partnership is transferred in a successor event 
described in this paragraph (c), the principles of Sec.  1.704-3(a)(7) 
apply to determine the remaining built-in gain in section 721(c) 
property that is attributable to the portion of the interest that is 
transferred and the portion of the interest that is retained.
    (2) Transfers of an interest in a section 721(c) partnership by a 
U.S. transferor or upper-tier partnership to a domestic corporation in 
certain nonrecognition transactions. A successor event occurs if a U.S. 
transferor or a partnership in which a U.S. transferor is a direct or 
indirect partner transfers (directly or indirectly through one or more 
partnerships) an interest in a section 721(c) partnership to a domestic 
corporation in a transaction to which section 351 or 381 applies, and 
the gain deferral method is continued by treating the transferee 
domestic corporation as the U.S. transferor for purposes of the section 
721(c) regulations. If the transfer described in this paragraph (c)(2) 
also results in a termination under section 708(b)(1)(B) of the section 
721(c) partnership, see paragraph (c)(4) of this section.
    (3) Transfers of an interest in a section 721(c) partnership in an 
intercompany transaction. A successor event occurs if a U.S. transferor 
that is a member of a consolidated group (as defined in Sec.  1.1502-
1(h)) transfers (directly or indirectly through one or more 
partnerships) an interest in a section 721(c) partnership in an 
intercompany transaction (as defined in Sec.  1.1502-13(b)(1)), and the 
gain deferral method is continued by treating the transferee member as 
the U.S. transferor for purposes of the section 721(c) regulations. If 
the transfer described in this paragraph (c)(3) also results in a 
termination under section 708(b)(1)(B) of the section 721(c) 
partnership, see paragraph (c)(4) of this section.
    (4) Termination under section 708(b)(1)(B) of a section 721(c) 
partnership. A successor event occurs if there is a termination under 
section 708(b)(1)(B) of a section 721(c) partnership, and the gain 
deferral method is continued by treating the new partnership as the 
section 721(c) partnership for purposes of the section 721(c) 
regulations.
    (5) Transactions involving tiered partnerships--(i) Contributions 
of section 721(c) property to a lower-tier

[[Page 7605]]

partnership. A successor event occurs if a section 721(c) partnership 
contributes the section 721(c) property to a partnership that is a 
controlled partnership with respect to the U.S. transferor (lower-tier 
section 721(c) partnership) and the requirements of paragraphs 
(c)(5)(i)(A), (B), and (C) of this section are satisfied.
    (A) The lower-tier section 721(c) partnership is a section 721(c) 
partnership or is treated as a section 721(c) partnership.
    (B) The gain deferral method is applied with respect to the section 
721(c) property in the hands of the lower-tier section 721(c) 
partnership.
    (C) The gain deferral method is applied with respect to the section 
721(c) partnership's interest in the lower-tier section 721(c) 
partnership. See Sec. Sec.  1.721(c)-3T(b)(5) and (d)(2).
    (ii) Contributions of an interest in a section 721(c) partnership 
to an upper-tier partnership. A successor event occurs if a U.S. 
transferor or a partnership in which a U.S. transferor is a direct or 
indirect partner contributes (directly or indirectly through one or 
more partnerships) an interest in a section 721(c) partnership to a 
partnership that is a controlled partnership with respect to the U.S. 
transferor (upper-tier section 721(c) partnership) and the requirements 
of paragraphs (c)(5)(ii)(A), (B), (C), and (D) of this section are 
satisfied.
    (A) The gain deferral method is continued with respect to the 
section 721(c) property in the hands of the section 721(c) partnership.
    (B) The upper-tier section 721(c) partnership is, or is treated as, 
a section 721(c) partnership.
    (C) If the upper-tier section 721(c) partnership directly owns its 
interest in the section 721(c) partnership, the gain deferral method is 
applied with respect to the upper-tier section 721(c) partnership's 
interest in the section 721(c) partnership. See Sec.  1.721(c)-3T(b)(5) 
and (d)(1).
    (D) If the upper-tier section 721(c) partnership indirectly owns 
its interest in the section 721(c) partnership through one or more 
partnerships, the principles of paragraphs (c)(5)(ii)(B) and (C) of 
this section are applied with respect to each partnership through which 
the upper-tier section 721(c) partnership indirectly owns an interest 
in the section 721(c) partnership.
    (d) Partial acceleration events--(1) In general. Notwithstanding 
Sec.  1.721(c)-4T, a partial acceleration event with respect to section 
721(c) property does not constitute an acceleration event. In these 
cases, except as provided in paragraph (d)(3) of this section, the 
rules in Sec.  1.721(c)-4T(c) (concerning the consequences of an 
acceleration event) for making basis adjustments apply to the extent 
that the U.S. transferor is required to recognize gain under paragraph 
(d)(2) or (3) of this section. Furthermore, if there is remaining 
built-in gain with respect to the section 721(c) property after the 
application of this paragraph (d), the application of the gain deferral 
method with respect to the section 721(c) property must be continued in 
the same manner.
    (2) Regulatory allocations. If a regulatory allocation is described 
in Sec.  1.721(c)-3T(c)(4)(i) but not in Sec.  1.721(c)-3T(c)(4)(i)(A) 
or (B), a partial acceleration event occurs with respect to section 
721(c) property if the U.S. transferor recognizes an amount of gain 
(but not in excess of remaining built-in gain) equal to the amount of 
the allocation that, under the consistent allocation method, had the 
regulatory allocation not occurred, would have been allocated to the 
U.S. transferor in the case of income or gain, or would not have been 
allocated to the U.S. transferor in the case of deduction or loss.
    (3) Certain distributions of other partnership property to a 
partner that result in an adjustment under section 734. A partial 
acceleration event occurs with respect to section 721(c) property if 
there is a distribution of other property by the section 721(c) 
partnership that results in a positive basis adjustment to the section 
721(c) property under section 734. In these cases, the U.S. transferor 
must recognize an amount of gain (but not in excess of the remaining 
built-in gain) equal to the positive basis adjustment to the section 
721(c) property under section 734, reduced (but not below zero) by the 
amount of gain recognized by the U.S. transferor (or a member of its 
consolidated group (as defined in Sec.  1.1502-1(h))) under section 
731(a). In these cases, the partnership will not increase its basis 
under Sec.  1.721(c)-4T(c)(2) by the amount of gain recognized by the 
U.S. transferor.
    (e) Transfers described in section 367 of section 721(c) property 
to a foreign corporation. If a section 721(c) partnership transfers 
section 721(c) property, or a U.S. transferor or a partnership in which 
a U.S. transferor is a direct or indirect partner transfers (directly 
or indirectly through one or more partnerships) all or a portion of an 
interest in a section 721(c) partnership that owns section 721(c) 
property, to a foreign corporation in a transaction described in 
section 367, then, the property will no longer be subject to the gain 
deferral method. To the extent any U.S. transferor is treated as 
transferring the section 721(c) property to the foreign corporation for 
purposes of section 367, the tax consequences will be determined under 
section 367. In this regard, see Sec. Sec.  1.367(a)-1T(c)(3)(i) and 
(ii), 1.367(d)-1T(d)(1), and 1.367(e)-2(b)(1)(iii) (providing for the 
aggregate treatment of partnerships). However, for the remaining 
portion of the property (if any), the U.S. transferor must recognize an 
amount of gain equal to the remaining built-in gain that would have 
been allocated to the U.S. transferor if the section 721(c) partnership 
had sold that portion of the section 721(c) property immediately before 
the transfer for fair market value. The stock in the transferee foreign 
corporation received will not be subject to the gain deferral method. 
The rules in Sec.  1.721(c)-4T(c) (concerning the consequences of an 
acceleration event) for making basis adjustments will apply to the 
extent that the U.S. transferor recognizes gain under this paragraph 
(e).
    (f) Fully taxable dispositions of a portion of an interest in a 
partnership. If a U.S. transferor or a partnership in which a U.S. 
transferor is a direct or indirect partner disposes of (directly or 
indirectly through one or more partnerships) a portion of an interest 
in a section 721(c) partnership in a transaction in which all gain or 
loss, if any, is recognized, an acceleration event will not occur with 
respect to the portion of the interest transferred. The gain deferral 
method will continue to apply with respect to the section 721(c) 
property of the section 721(c) partnership. The principles of Sec.  
1.704-3(a)(7) will apply to determine the remaining built-in gain in 
section 721(c) property that is attributable to the portion of the 
interest in a section 721(c) partnership that is retained. This 
paragraph (f) will not apply to an intercompany transaction (as defined 
in Sec.  1.1502-13(b)(1)).
    (g) Applicability dates--(1) In general. Except as provided in 
paragraph (g)(2) of this section, this section applies to contributions 
occurring on or after January 18, 2017, and to contributions occurring 
before January 18, 2017, resulting from an entity classification 
election made under Sec.  301.7701-3 of this chapter that is filed on 
or after January 18, 2017.
    (2) Election to apply this section retroactively. This section may, 
by election, be applied to a contribution occurring on or after August 
6, 2015, but before January 18, 2017, and to a contribution occurring 
before August 6, 2015, resulting from an entity classification election 
made under Sec.  301.7701-3 of this chapter that is filed

[[Page 7606]]

on or after August 6, 2015. The election is made by applying this 
section to the contribution on a timely filed original return 
(including extensions) or an amended return filed no later than six 
months after January 18, 2017.
    (h) Expiration date. The applicability of this section expires on 
January 17, 2020.

0
Par. 13. Section 1.721(c)-6T is added to read as follows:


Sec.  1.721(c)-6T   Procedural and reporting requirements (temporary).

    (a) Scope. This section provides procedural and reporting 
requirements that must be satisfied under Sec.  1.721(c)-3T(b)(3) of 
the gain deferral method. Paragraph (b) of this section describes the 
procedural and reporting requirements of a U.S. transferor. Paragraph 
(c) of this section describes information required to be reported with 
respect to related foreign persons and partnerships. Paragraph (d) of 
this section describes the procedural and reporting requirements of a 
section 721(c) partnership with a section 6031 filing obligation. 
Paragraph (e) of this section provides the proper signatory for the 
information provided under this section. Paragraph (f) of this section 
provides relief for certain failures to comply that are not willful. 
Paragraph (g) of this section provides the dates of applicability, and 
paragraph (h) of this section provides the date of expiration. For 
definitions that apply for purposes of this section, see Sec.  
1.721(c)-1T(b).
    (b) Procedural and reporting requirements of a U.S. transferor--(1) 
In general. This paragraph (b) describes the procedural and reporting 
requirements that a U.S. transferor (as defined Sec.  1.721(c)-
1T(b)(18)(i)) must satisfy in applying the gain deferral method. The 
information required under this paragraph (b) must be included with the 
U.S. transferor's timely filed return on (or attached to) the 
appropriate forms (including Form 8865, Schedule O, Transfer of 
Property to a Foreign Partnership), and must be submitted in the form 
and manner and to the extent prescribed by the form (and its 
accompanying instructions).
    (2) Reporting of a gain deferral contribution. A U.S. transferor 
must report the following information with respect to a gain deferral 
contribution:
    (i) A statement, titled ``Statement of Application of the Gain 
Deferral Method under Section 721(c),'' that contains the following 
information with respect to the section 721(c) property--
    (A) A description of the property and recovery period (or periods) 
for the property;
    (B) Whether the property is an intangible described in section 
197(f)(9);
    (C) A calculation of the built-in gain, the basis, and fair market 
value on the date of the contribution, including the amount of gain 
recognized by the U.S. transferor, if any, on the gain deferral 
contribution;
    (D) The name, U.S. taxpayer identification number (if any), 
address, and country of organization (if any) of each direct or 
indirect partner in the section 721(c) partnership that is a related 
person with respect to the U.S. transferor, and a description of each 
partner's interest in capital and profits immediately after the gain 
deferral contribution; and
    (E) When the section 721(c) property is a partnership interest, the 
information described in paragraphs (b)(2)(i)(A) through (D) of this 
section with respect to each property of a lower-tier partnership to 
which the gain deferral method is applied under Sec.  1.721(c)-
3T(d)(1);
    (ii) A statement, titled ``Consent to Extend the Time to Assess Tax 
Pursuant to the Gain Deferral Method under Section 721(c),'' completed 
and executed in the manner prescribed in forms and instructions, 
extending the period of limitations on the assessment of tax as 
described in paragraph (b)(5) of this section;
    (iii) A copy of the waiver of treaty benefits described in 
paragraphs (c)(1) of this section (if any);
    (iv) Information relating to the section 721(c) partnership 
described in paragraph (c)(2) of this section (if any);
    (v) With respect to any foreign partnership (or partnership treated 
as foreign under paragraph (b)(4) of this section) the information 
required under Sec.  1.6038B-2(c)(1) through (7); and
    (vi) The information required under paragraph (b)(3) of this 
section.
    (3) Annual reporting relating to gain deferral method. A U.S. 
transferor must file an annual statement, titled ``Annual Statement of 
Application of the Gain Deferral Method under Section 721(c),'' for 
each gain deferral contribution. The information in the statement must 
be with respect to the partnership taxable year that ends with, or 
within, the taxable year of the U.S. transferor, beginning with the 
partnership's taxable year that includes the date of the gain deferral 
contribution and ending with the last taxable year in which the gain 
deferral method is applied to the section 721(c) property. The 
statement must contain the following information:
    (i) The amount of book income, gain, deduction, and loss and tax 
items allocated to the U.S. transferor with respect to the section 
721(c) property, including a description of any regulatory allocations;
    (ii) The proportion (expressed as a percentage) in which the book 
income, gain, deduction, and loss with respect to the section 721(c) 
property was allocated among the U.S. transferor and related persons 
that are partners in the section 721(c) partnership under the 
consistent allocation method;
    (iii) The amount of remaining built-in gain at the beginning of the 
taxable year, the remedial income allocated to the U.S. transferor 
under the remedial allocation method, the amount of built-in gain taken 
into account by reason of an acceleration event or partial acceleration 
event (if any), the partnership's adjustment to its tax basis in the 
section 721(c) property, and the remaining built-in gain at the end of 
the taxable year;
    (iv) A declaration stating whether an acceleration event or partial 
acceleration event occurred during the taxable year, the date of the 
event, and a description of the event (including a citation to the 
relevant paragraph of Sec.  1.721(c)-5T(d) in the case of a partial 
acceleration event, and whether the acceleration event is described in 
Sec.  1.721(c)-4T(b)(4));
    (v) A description of a termination event or any successor event 
that occurred during the taxable year with a citation to the relevant 
paragraph of Sec.  1.721(c)-5T(b) or (c), the date of the event, and, 
in the case of a successor event, the name, address, and U.S. taxpayer 
identification number (if any) of any successor partnership, lower-tier 
partnership, upper-tier partnership, or U.S. corporation (as 
applicable);
    (vi) A description of all transfers of 721(c) property to a foreign 
corporation described in Sec.  1.721-5T(e) that occurred during the 
taxable year, and for each transfer, the date of the transfer, the 
section 721(c) property transferred, and the name, address, and U.S. 
taxpayer identification number (if any) of the foreign transferee 
corporation;
    (vii) With respect to section 721(c) property for which a waiver of 
treaty benefits was filed under paragraph (b)(2)(iii) of this section, 
a declaration that, after exercising reasonable diligence, to the best 
of the U.S. transferor's knowledge and belief, all income from the 
section 721(c) property allocated to the partners during the taxable 
year remained subject to taxation as income effectively connected with 
the conduct of a trade or business within the United States (under 
either section 871 or 882) for all direct or indirect partners that are 
related foreign persons with respect to the U.S. transferor (regardless 
of whether any

[[Page 7607]]

such partner was a partner at the time of the gain deferral 
contribution), and, that neither the partnership nor any such partner 
has made any claim under any income tax convention to an exemption from 
U.S. income tax or a reduced rate of U.S. income taxation on income 
derived from the use of the section 721(c) property;
    (viii) A statement, titled ``Consent to Extend the Time To Assess 
Tax Pursuant to the Gain Deferral Method under Section 721(c),'' 
completed and executed as prescribed in forms and instructions, 
extending the period of limitations on the assessment of tax, in the 
case of a gain deferral contribution, as described in paragraph 
(b)(5)(ii) of this section, and, in the case of certain contributions 
on which gain is recognized, as described in paragraph (b)(5)(iii) of 
this section;
    (ix) If the section 721(c) partnership is a partnership that does 
not have a filing obligation under section 6031, the information 
described in Sec.  1.6038-3(g) (contents of information returns 
required of certain United States persons with respect to controlled 
foreign partnerships), if not already reported elsewhere, without 
regard to whether the section 721(c) partnership is a controlled 
foreign partnership within the meaning of section 6038. If the U.S. 
transferor is not a controlling fifty-percent partner (as defined in 
Sec.  1.6038-3(a)), the U.S. transferor complies with the requirement 
of this paragraph (b)(3)(ix) by providing only the information 
described in Sec.  1.6038-3(g)(1);
    (x) A description of all section 721(c) property contributed by the 
U.S. transferor to the section 721(c) partnership (including pursuant 
to a contribution described in Sec.  1.721(c)-2T(d)(1)) during the 
taxable year to which the gain deferral method is not applied; and
    (xi) The information required in paragraphs (c)(2) and (3) of this 
section for related foreign persons that are direct or indirect 
partners in the section 721(c) partnership and the section 721(c) 
partnership itself (if any).
    (4) Domestic partnerships treated as foreign. Solely for purposes 
of this section, a U.S. transferor must treat a domestic section 721(c) 
partnership as a foreign partnership if the partnership was formed on 
or after January 18, 2017. If the section 721(c) partnership has an 
information return filing obligation under section 6031, that 
requirement is not affected by the requirement of this paragraph (b)(4) 
that the U.S. transferor treat the partnership as a foreign 
partnership.
    (5) Extension of period of limitations on assessment of tax. In 
order to comply with the gain deferral method, a U.S. transferor must 
extend the period of limitations on the assessment of tax:
    (i) With respect to the gain realized but not recognized on a gain 
deferral contribution, through the close of the eighth full taxable 
year following the U.S. transferor's taxable year that includes the 
date of the gain deferral contribution;
    (ii) With respect to all book and tax items with respect to the 
section 721(c) property allocated to the U.S. transferor in the 
partnership's taxable year that includes the date of the gain deferral 
contribution and the subsequent two years, through the close of the 
sixth full taxable year following such taxable year with which, or 
within which, the partnership's taxable year ends; and
    (iii) With respect to the gain recognized on a contribution of 
section 721(c) property to a section 721(c) partnership for which the 
gain deferral method is not applied, if the contribution occurs within 
five partnership taxable years following a partnership taxable year 
that includes the date of a gain deferral contribution, through the 
close of the fifth full taxable year following the U.S. transferor's 
taxable year that includes the date of the contribution on which gain 
is recognized.
    (c) Information with respect to section 721(c) partnerships and 
related foreign persons--(1) Effectively connected income. If the gain 
deferral method is applied with respect to a contribution of section 
721(c) property that satisfies the condition in Sec.  1.721(c)-
3T(b)(1)(ii), the U.S. transferor must obtain a statement from the 
section 721(c) partnership and from each related foreign person that is 
a direct or indirect partner in the section 721(c) partnership, titled 
``Statement of Waiver of Treaty Benefits under Sec.  1.721(c)-6T,'' 
pursuant to which the partner and the partnership waive any claim under 
any income tax convention (whether or not currently in force at the 
time of the contribution) to an exemption from U.S. income tax or a 
reduced rate of U.S. income taxation on income derived from the use of 
the section 721(c) property for the period during which the section 
721(c) property is subject to the gain deferral method.
    (2) Partnerships in tiered-partnership structures applying the gain 
deferral method. If the gain deferral method is applied as a result of 
a transaction described in Sec.  1.721(c)-3T(d), the U.S. transferor 
must supply all information that a section 721(c) partnership would be 
required to report under paragraph (b) of this section if the section 
721(c) partnership were a U.S. transferor.
    (3) Schedules K-1 for related foreign partners. If a section 721(c) 
partnership does not have a filing obligation under section 6031, the 
U.S. transferor must obtain a Schedule K-1 (Form 8865), Partner's Share 
of Income, Deduction, Credits, etc., for all related foreign persons 
that are direct or indirect partners in the section 721(c) partnership.
    (d) Reporting and procedural requirements of a section 721(c) 
partnership with a section 6031 filing obligation--(1) Waiver of treaty 
benefits. A section 721(c) partnership with a return filing obligation 
under section 6031 must include its waiver of treaty benefits described 
in paragraph (c)(1) of this section with its tax return for the taxable 
year that includes the date of the gain deferral contribution.
    (2) Information on Schedule K-1. A section 721(c) partnership with 
a return filing obligation under section 6031 must provide the relevant 
information necessary for the U.S. transferor to comply with the 
requirements in paragraphs (b)(2) and (3) of this section with the U.S. 
transferor's Schedule K-1 (Form 1065), Partner's Share of Income, 
Deductions, Credits, etc. The partnership must also attach to its Form 
1065 a Schedule K-1 (Form 1065) for each partner that is a related 
foreign person with respect to the U.S. transferor.
    (e) Signatory. The statements required in this section must be 
signed under penalties of perjury by an agent of the U.S. transferor, 
the related foreign person that is a direct or indirect partner in the 
section 721(c) partnership, or the section 721(c) partnership, as 
applicable, that is authorized to sign under a general or specific 
power of attorney, or by an appropriate party. For the U.S. transferor, 
an appropriate party is a person described in Sec.  1.367(a)-8(e)(1). 
For a partnership with a section 6031 filing obligation, an appropriate 
party is any party authorized to sign Form 1065.
    (f) Relief for certain failures to file or failures to comply that 
are not willful--(1) In general. This paragraph (f)(1) provides relief 
from the failure to comply with the procedural and reporting 
requirements of the gain deferral method prescribed by Sec.  1.721(c)-
3T(b)(3) and provided in paragraph (b) of this section if there is a 
failure to file or to include information required by this section 
(failure to comply). A failure to comply will be deemed not to have 
occurred for purposes of Sec.  1.721(c)-3T(b)(3) if the U.S. transferor 
demonstrates that the

[[Page 7608]]

failure was not willful using the procedure provided in this paragraph 
(f). For this purpose, willful is to be interpreted consistent with the 
meaning of that term in the context of other civil penalties, which 
would include a failure due to gross negligence, reckless disregard, or 
willful neglect. Whether a failure to comply was willful will be 
determined by the Director of Field Operations, Cross Border Activities 
Practice Area of Large Business & International (or any successor to 
the roles and responsibilities of such position, as appropriate) 
(Director) based on all the facts and circumstances. The U.S. 
transferor must submit a request for relief and an explanation as 
provided in paragraph (f)(2) of this section. A U.S. transferor whose 
failure to comply is determined not to be willful under this paragraph 
will be subject to a penalty under section 6038B if it fails to satisfy 
the applicable reporting requirements under that section and does not 
demonstrate that the failure was due to reasonable cause and not 
willful neglect. See Sec.  1.6038B-2(h). The determination of whether 
the failure to comply was willful under this section has no effect on 
any request for relief made under Sec.  1.6038B-2(h).
    (2) Procedures for establishing that a failure to comply was not 
willful--(i) Time and manner of submission. A U.S. transferor's 
statement that a failure to comply was not willful will be considered 
only if, promptly after the U.S. transferor becomes aware of the 
failure, an amended return is filed for the taxable year to which the 
failure relates that includes the information that should have been 
included with the original return for such taxable year or that 
otherwise complies with the rules of this section as well as a written 
statement explaining the reasons for the failure to comply. The U.S. 
transferor also must file, with the amended return, a Form 8865, 
Schedule O, and a statement (as described in paragraph (b)(5) of this 
section), completed and executed as prescribed in forms and 
instructions, consenting to extend the period of limitations on 
assessment of tax with respect to the gain realized but not recognized 
on the gain deferral contribution to the later of the close of the 
eighth full taxable year following the taxable year during which the 
contribution occurred (date one), or the close of the third full 
taxable year ending after the date on which the required information is 
provided to the Director (date two). However, the U.S. transferor is 
not required to file a Form 8865, Schedule O, with the amended return 
if both date one is later than date two and a consent to extend the 
period of limitations on assessment of tax with respect to the gain 
realized but not recognized on the gain deferral contribution for the 
U.S. transferor's taxable year that includes the date of the 
contribution was previously submitted with a Form 8865, Schedule O. The 
amended return and either a Form 8865, Schedule O, or a copy of the 
previously filed Form 8865, Schedule O, as the case may be, must be 
filed with the Internal Revenue Service at the location where the U.S. 
transferor filed its original return. The U.S. transferor may submit a 
request for relief from the penalty under section 6038B as part of the 
same submission. See Sec.  1.6038B-2T(h)(3).
    (ii) Notice requirement. In addition to the requirements of 
paragraph (f)(2)(i) of this section, the U.S. transferor must comply 
with the notice requirements of this paragraph (f)(2)(ii). If any 
taxable year of the U.S. transferor is under examination when the 
amended return is filed, a copy of the amended return must be delivered 
to the Internal Revenue Service personnel conducting the examination. 
If no taxable year of the U.S. transferor is under examination when the 
amended return is filed, a copy of the amended return must be delivered 
to the Director.
    (g) Applicability dates--(1) In general. Except as provided in 
paragraphs (g)(2) and (3) of this section, this section applies with 
respect to contributions occurring on or after January 18, 2017, and 
with respect to contributions occurring before January 18, 2017, 
resulting from an entity classification election made under Sec.  
301.7701-3 of this chapter that is filed on or after January 18, 2017.
    (2) Reporting relating to effectively connected income. Paragraphs 
(b)(2)(iii), (b)(3)(vii), and (d)(1) of this section apply to a 
contribution occurring on or after August 6, 2015, and to a 
contribution occurring before August 6, 2015, resulting from an entity 
classification election made under Sec.  301.7701-3 of this chapter 
that is filed on or after August 6, 2015, and, in either case, provided 
Sec.  1.721(c)-3T(b)(1)(ii) applies to the contribution. To the extent 
that a previously filed return did not comply with paragraph 
(b)(2)(iii), (b)(3)(vii), or (d)(1) of this section, an amended return 
complying with such paragraphs must be filed no later than six months 
after January 18, 2017.
    (3) Transition rules. For transfers occurring on or after August 6, 
2015, and for transfers occurring before August 6, 2015, resulting from 
an entity classification election made under Sec.  301.7701-3 of this 
chapter that is filed on or after August 6, a U.S. transferor (or a 
domestic partnership in which a U.S. transferor is a direct or indirect 
partner) must fulfill any reporting requirements imposed under sections 
6038, 6038B, and 6046A and the regulations thereunder with respect to 
the contribution of the section 721(c) property to the section 721(c) 
partnership.
    (h) Expiration date. The applicability of this section expires on 
January 17, 2020.

0
Par. 14. Section 1.721(c)-7T is added to read as follows:


Sec.  1.721(c)-7T  Examples (temporary).

    (a) Presumed facts. For purposes of the examples in paragraph (b) 
of this section, assume that there are no other transactions that are 
related to the transactions described in the examples and that all 
partnership allocations have substantial economic effect under section 
704(b). For definitions that apply for purposes of this section, see 
Sec.  1.721(c)-1T(b). Except where otherwise indicated, the following 
facts are presumed--
    (1) USP and USX are domestic corporations that each use a calendar 
taxable year. USX is not a related person with respect to USP.
    (2) CFC1, CFC2, FX, and FY are foreign corporations.
    (3) USP wholly owns CFC1 and CFC2. Neither FX nor FY is a related 
person with respect to USP or with respect to each other.
    (4) PRS1, PRS2, and PRS3 are foreign entities classified as 
partnerships for U.S. tax purposes. A partnership interest in PRS1, 
PRS2, and PRS3 is not described in section 475(c)(2).
    (5) A taxable year is referred to, for example, as year 1.
    (6) A partner in a partnership has the same percentage interest in 
income, gain, loss, deduction, and capital of the partnership.
    (7) No property is described in section 197(f)(9) in the hands of a 
contributing partner.
    (8) No partnership is a controlled partnership solely under the 
facts and circumstances test in Sec.  1.721(c)-1T(b)(4).
    (b) Examples. The application of the rules stated in Sec. Sec.  
1.721(c)-1T through 1.721(c)-6T may be illustrated by the following 
examples:

    Example 1.  Determining if a partnership is a section 721(c) 
partnership. (i) Facts. In year 1, USP and CFC1 form PRS1 as equal 
partners. CFC1 contributes cash of $1.5 million to PRS1, and USP 
contributes three properties to PRS1: A patent with a book value of 
$1.2 million and an adjusted tax basis of zero, a security (within 
the meaning

[[Page 7609]]

of section 475(c)(2)) with a book value of $100,000 and an adjusted 
tax basis of $20,000, and a machine with a book value of $200,000 
and an adjusted tax basis of $600,000.
    (ii) Results. (A) Under Sec.  1.721(c)-1T(b)(18)(i), USP is a 
U.S. transferor because USP is a U.S. person and not a domestic 
partnership. Under Sec.  1.721(c)-1T(b)(2), the patent has built-in 
gain of $1.2 million. The patent is not excluded property under 
Sec.  1.721(c)-1T(b)(6). Therefore, under Sec.  1.721(c)-
1T(b)(15)(i), the patent is section 721(c) property because it is 
property, other than excluded property, with built-in gain that is 
contributed by a U.S. transferor, USP.
    (B) Under Sec.  1.721(c)-1T(b)(2), the security has built-in 
gain of $80,000. Under Sec.  1.721(c)-1T(b)(6)(ii), the security is 
excluded property because it is described in section 475(c)(2). 
Therefore, the security is not section 721(c) property.
    (C) The tax basis of the machine exceeds its book value. Under 
Sec.  1.721(c)-1T(b)(6)(iii), the machine is excluded property and 
therefore is not section 721(c) property.
    (D) Under Sec.  1.721(c)-1T(b)(12), CFC1 is a related person 
with respect to USP, and under Sec.  1.721(c)-1T(b)(11), CFC1 is a 
related foreign person. Because USP and CFC1 collectively own at 
least 80 percent of the interests in the capital, profits, 
deductions, or losses of PRS1, under Sec.  1.721(c)-1T(b)(14)(i), 
PRS1 is a section 721(c) partnership upon the contribution by USP of 
the patent.
    (E) The de minimis exception described in Sec.  1.721(c)-2T(c) 
does not apply to the contribution because during PRS1's year 1 the 
sum of the built-in gain with respect to all section 721(c) property 
contributed in year 1 to PRS1 is $1.2 million, which exceeds the de 
minimis threshold of $1 million. As a result, under Sec.  1.721(c)-
2T(b), section 721(a) does not apply to USP's contribution of the 
patent to PRS1, unless the requirements of the gain deferral method 
are satisfied.
    Example 2.  Determining if partnership interest is section 
721(c) property. (i) Facts. In year 1, USP and FX form PRS2. USP 
contributes a security (within the meaning of section 475(c)(2)) 
with a book value of $100,000 and an adjusted tax basis of $20,000 
and a building located in country X with a book value of $30,000 and 
an adjusted tax basis of $8,000 in exchange for a 40-percent 
interest. FX contributes a machine with a book value of $195,000 and 
an adjusted tax basis of $250,000 in exchange for a 60-percent 
interest.
    (ii) Results. PRS2 is not a section 721(c) partnership because 
FX is not a related person with respect to USP, USP's contributions 
to PRS2 are not subject to Sec.  1.721(c)-2T(b).
    (iii) Alternative facts and results. (A) Assume the same facts 
as in paragraph (i) of this Example 2. In addition, USP and CFC1 
form PRS1 as equal partners. CFC1 contributes cash of $130,000 to 
PRS1, and USP contributes its 40-percent interest in PRS2.
    (B) PRS2's property consists of a security and a machine that 
are excluded property, and a building with built-in gain in excess 
of $20,000. Under Sec.  1.721(c)-1T(b)(6)(iv), because more than 90 
percent of the value of the property of PRS2 consists of excluded 
property described in Sec.  1.721(c)-1T(b)(6)(i) through (iii) (the 
security and the machine), any interest in PRS2 is excluded 
property. Therefore, the 40-percent interest in PRS2 contributed by 
USP to PRS1 is not section 721(c) property. Accordingly, USP's 
contribution of its interest in PRS2 to PRS1 is not subject to Sec.  
1.721(c)-2T(b).
    Example 3.  Assets-over tiered partnerships. (i) Facts. In year 
1, USP and CFC1 form PRS1 as equal partners. USP contributes a 
patent with a book value of $300 million and an adjusted tax basis 
of $30 million (USP contribution). CFC1 contributes cash of $300 
million. Immediately thereafter, PRS1 contributes the patent to PRS2 
in exchange for a two-thirds interest (PRS1 contribution), and CFC2 
contributes cash of $150 million in exchange for a one-third 
interest. The patent has a remaining recovery period of 5 years out 
of a total of 15 years. With respect to all contributions described 
in Sec.  1.721(c)-2T(b), the de minimis exception does not apply, 
and the gain deferral method is applied. Thus, the partnership 
agreements of PRS1 and PRS2 provide that the partnership will make 
allocations under section 704(c) using the remedial allocation 
method under Sec.  1.704-3(d).
    (ii) Results: USP contribution. PRS1 is a section 721(c) 
partnership as a result of the USP contribution.
    (iii) Results: PRS1 contribution. (A) For purposes of 
determining whether PRS2 is a section 721(c) partnership as a result 
of the PRS1 contribution, under Sec.  1.721(c)-2T(d)(1), USP is 
treated as contributing to PRS2 its share of the patent that PRS1 
actually contributes to PRS2. USP and CFC1 are each one-third 
indirect partners in PRS2. Taking into account the one-third 
interest in PRS2 directly owned by CFC2, USP, CFC1, and CFC2 
collectively own at least 80 percent of the interests in PRS2. Thus, 
PRS2 is a section 721(c) partnership as a result of the PRS1 
contribution.
    (B) Under Sec.  1.721(c)-2T(b), section 721(a) does not apply to 
PRS1's contribution of the patent to PRS2, unless the requirements 
of the gain deferral method are satisfied. Under Sec.  1.721(c)-
3T(b), the gain deferral method must be applied with respect to the 
patent. In addition, under Sec.  1.721(c)-3T(d)(2), because PRS1 is 
a controlled partnership with respect to USP, the gain deferral 
method must be applied with respect to PRS1's interest in PRS2, and, 
solely for purposes of applying the consistent allocation method, 
PRS2 must treat PRS1 as the U.S. transferor. As stated in paragraph 
(i) of this Example 3, the gain deferral method is applied. PRS2 is 
a controlled partnership with respect to USP. Under Sec.  1.721(c)-
5T(c)(5)(i), the PRS1 contribution is a successor event with respect 
to the USP contribution.
    (iv) Results: Application of remedial allocation method. (A) 
Under Sec.  1.704-3(d)(2), in year 1, PRS2 has $24 million of book 
amortization with respect to the patent ($6 million ($30 million of 
book value equal to adjusted tax basis divided by the 5-year 
remaining recovery period) plus $18 million ($270 million excess of 
book value over tax basis divided by the new 15-year recovery 
period)). PRS2 has $6 million of tax amortization. Under the PRS2 
partnership agreement, PRS2 allocates $8 million of book 
amortization to CFC2 and $16 million of book amortization to PRS1. 
Because of the application of the ceiling rule, PRS2 allocates $6 
million of tax amortization to CFC2 and $0 of tax amortization to 
PRS1. Because the ceiling rule would cause a disparity of $2 million 
between CFC2's book and tax amortization, PRS2 must make a remedial 
allocation of $2 million of tax amortization to CFC2 and an 
offsetting remedial allocation of $2 million of taxable income to 
PRS1.
    (B) PRS1's distributive share of each of PRS2's items with 
respect to the patent is $16 million of book amortization, $0 of tax 
amortization, and $2 million of taxable income from the remedial 
allocation from PRS1. Under Sec.  1.704-3(a)(9), PRS1 must allocate 
its distributive share of each of PRS2's items with respect to the 
patent in a manner that takes into account USP's remaining built-in 
gain in the patent. Therefore, PRS1 allocates $2 million of taxable 
income to USP. Under Sec.  1.704-3T(a)(13)(ii), PRS1 treats its 
distributive share of each of PRS2's items of amortization with 
respect to PRS2's patent as items of amortization with respect to 
PRS1's interest in PRS2. Under the PRS1 partnership agreement, PRS1 
allocates $8 million of book amortization and $0 of tax amortization 
to CFC1, and $8 million of book amortization and $0 of tax 
amortization to USP. Because the ceiling rule would cause a 
disparity of $8 million between CFC1's book and tax amortization, 
PRS1 must make a remedial allocation of $8 million of tax 
amortization to CFC1. PRS1 must also make an offsetting remedial 
allocation of $8 million of taxable income to USP. USP reports $10 
million of taxable income ($2 million of remedial income from PRS2 
and $8 million of remedial income from PRS1).
    Example 4.  Section 721(c) partnership ceases to have a related 
foreign person as a partner. (i) Facts. In year 1, USP and CFC1 form 
PRS1. USP contributes a trademark with a built-in gain of $5 million 
in exchange for a 60-percent interest, and CFC1 contributes other 
property in exchange for the remaining 40-percent interest. With 
respect to all contributions described in Sec.  1.721(c)-2T(b), the 
de minimis exception does not apply, and the gain deferral method is 
applied. On day 1 of year 4, CFC1 sells its entire interest in PRS1 
to FX. There is no plan for a related foreign person with respect to 
USP to subsequently become a partner in PRS1 (or a successor).
    (ii) Results. (A) PRS1 is a section 721(c) partnership.
    (B) With respect to year 4, under Sec.  1.721(c)-5T(b)(5), the 
sale is a termination event because, as a result of CFC1's sale of 
its interest, PRS1 will no longer have a partner that is a related 
foreign person, and there is no plan for a related foreign person to 
subsequently become a partner in PRS1 (or a successor). Thus, under 
Sec.  1.721(c)-5T(b)(1), the trademark is no longer subject to the 
gain deferral method.
    Example 5.  Transfer described in section 367 of section 721(c) 
property to a foreign corporation. (i) Facts. In year 1, USP, CFC1,

[[Page 7610]]

and USX form PRS1. USP contributes a patent with a built-in gain of 
$5 million in exchange for a 60-percent interest, CFC1 contributes 
other property in exchange for a 30-percent interest, and USX 
contributes cash in exchange for a 10-percent interest. With respect 
to all contributions described in Sec.  1.721(c)-2T(b), the de 
minimis exception does not apply, and the gain deferral method is 
applied. In year 3, when the patent has remaining built-in gain, 
PRS1 transfers the patent to FX in a transaction described in 
section 351.
    (ii) Results. (A) PRS1 is a section 721(c) partnership.
    (B) With respect to year 3, the transfer of the patent to FX is 
a transaction described in section 367(d). Therefore, under Sec.  
1.721(c)-5T(e), the patent is no longer subject to the gain deferral 
method. Under Sec. Sec.  1.367(d)-1T(d)(1) and 1.367(a)-1T(c)(3)(i), 
for purposes of section 367(d), USP and USX are treated as 
transferring their proportionate share of the patent actually 
transferred by PRS1 to FX. Under Sec.  1.721(c)-5T(e), to the extent 
USP and USX are treated as transferring the patent to FX, the tax 
consequences are determined under section 367(d) and the regulations 
thereunder. With respect to the remaining portion of the patent, 
which is attributable to CFC1, USP must recognize an amount of gain 
equal to the remaining built-in gain that would have been allocated 
to USP if PRS1 had sold that portion of the patent immediately 
before the transfer for fair market value. Under Sec.  1.721(c)-
4T(c)(1), USP must increase the basis in its partnership interest in 
PRS1 by the amount of gain recognized by USP and under Sec.  
1.721(c)-4T(c)(2), immediately before the transfer, PRS1 must 
increase its basis in the patent by the same amount. The stock in FX 
received by PRS1 is not subject to the gain deferral method.
    Example 6.  Limited remedial allocation method for anti-churning 
property with respect to related partners. (i) Facts. USP, CFC1, and 
FX form PRS1. On January 1 of year 1, USP contributes intellectual 
property (IP) with a book value of $600 million and an adjusted tax 
basis of $0 in exchange for a 60-percent interest. The IP is a 
section 197(f)(9) intangible (within the meaning of Sec.  1.197-
2(h)(1)(i)) that was not an amortizable section 197 intangible in 
USP's hands. CFC1 contributes cash of $300 million in exchange for a 
30-percent interest, and FX contributes cash of $100 million in 
exchange for a 10-percent interest. The IP is section 721(c) 
property, and PRS1 is a section 721(c) partnership. The gain 
deferral method is applied. The partnership agreement provides that 
PRS1 will make allocations under section 704(c) with respect to the 
IP using the remedial allocation method under Sec.  1.704-
3T(d)(5)(iii). All of PRS1's allocations with respect to the IP 
satisfy the requirements of the gain deferral method. On January 1 
of year 16, PRS1 sells the IP for cash of $900 million to a person 
that is not a related person. During years 1 through 16, PRS1 earns 
no income other than gain from the sale of the IP in year 16, has no 
expenses or deductions other than from amortization of the IP, and 
makes no distributions.
    (ii) Results: Year 1. Under Sec.  1.704-3T(d)(5)(iii)(B), PRS1 
must recover the excess of the book value of the IP over its 
adjusted tax basis at the time of the contribution ($600 million) 
using any recovery period and amortization method that would have 
been available to PRS1 if the property had been newly purchased 
property from an unrelated party. Thus, under section 197(a), PRS1 
must amortize $600 million of the IP's book value ratably over 15 
years for book purposes, and PRS1 will have $40 million of book 
amortization per year without any tax amortization. Under the 
partnership agreement, in year 1, PRS1 allocates book amortization 
of $24 million to USP, $12 million to CFC1, and $4 million to FX. 
Because in year 1 the ceiling rule would cause a disparity between 
FX's allocations of book and tax amortization, PRS1 makes a remedial 
allocation of tax amortization of $4 million to FX and an offsetting 
remedial allocation of $4 million of taxable income to USP. In year 
1, the ceiling rule would also cause a disparity between CFC1's 
allocations of book and tax amortization. However, Sec.  1.197-
2(h)(12)(vii)(B) precludes PRS1 from making a remedial allocation of 
tax amortization to CFC1. Instead, pursuant to Sec.  1.704-
3T(d)(5)(iii)(C), PRS1 increases the adjusted tax basis in the IP by 
$12 million, and pursuant to Sec.  1.704-3T(d)(5)(iii)(D), that 
basis adjustment is solely with respect to CFC1. Pursuant to Sec.  
1.704-3T(d)(5)(iii)(C), PRS1 also makes an offsetting remedial 
allocation of $12 million of taxable income to USP.
    (iii) Results: Years 2-15. At the end of year 15, PRS1 has book 
basis and adjusted tax basis of $0 in the IP. PRS1 has amortized 
$600 million for book purposes by allocating total book amortization 
deductions of $360 million to USP, $180 million to CFC1, and $60 
million to FX. For U.S. tax purposes, by the end of year 15, PRS1 
has made remedial allocations of $60 million of tax amortization to 
FX and increased the adjusted tax basis in the IP by $180 million 
solely with respect to CFC1. PRS1 has also made total remedial 
allocations of $240 million of taxable income to USP (attributable 
to $60 million of remedial tax amortization to FX and $180 million 
of tax basis adjustments with respect to CFC1). With respect to 
their partnership interests in PRS1, USP has a capital account and 
an adjusted tax basis of $240 million, CFC1 has a capital account of 
$120 million and an adjusted tax basis of $300 million, and FX has a 
capital account and an adjusted tax basis of $40 million.
    (iv) Results: Sale of property in year 16. PRS1's sale of the IP 
for cash of $900 million on January 1 of year 16 results in $900 
million of book and tax gain ($900 million-$0). PRS1 allocates the 
book and tax gain 60 percent to USP ($540 million), 10 percent to FX 
($90 million), and 30 percent to CFC1 ($270 million). However, under 
Sec.  1.704-3T(d)(5)(iii)(D)(3), CFC1's tax gain is $90 million, 
equal to its share of PRS1's gain ($270 million), minus the amount 
of the tax basis adjustment ($180 million). After the sale, PRS1's 
only property is cash of $1.3 billion. With respect to their 
partnership interests in PRS1, USP has a capital account and an 
adjusted tax basis of $780 million, CFC1 has a capital account and 
an adjusted tax basis of $390 million, and FX has a capital account 
and an adjusted tax basis of $130 million.


0
Par. 15. Section 1.6038B-2 is amended by:
0
1. Revising paragraphs (a)(1)(i) and (ii), (a)(3), (c)(6) and 
(c)(7)(v).
0
2. Adding paragraphs (a)(1)(iii) and (c)(8) and (9).
0
3. Revising paragraphs (h)(1) introductory text and (h)(3).
0
4. Adding paragraphs (j)(4) and (5).
    The revisions and additions read as follows.


Sec.  1.6038B-2  Reporting of certain transfers to foreign 
partnerships.

    (a) * * *
    (1) * * *
    (i) Immediately after the transfer, the United States person owns, 
directly, indirectly, or by attribution, at least a 10-percent interest 
in the partnership, as defined in section 6038(e)(3)(C) and the 
regulations thereunder;
    (ii) The value of the property transferred, when added to the value 
of any other property transferred in a section 721 contribution by such 
person (or any related person) to the partnership during the 12-month 
period ending on the date of the transfer, exceeds $100,000; or
    (iii) [Reserved]. For further guidance, see Sec.  1.6038B-
2T(a)(1)(iii).
* * * * *
    (3) [Reserved]. For further guidance see Sec.  1.6038B-2T(a)(3).
* * * * *
    (c) * * *
    (6) A separate description of each item of contributed property 
that is appreciated property subject to the allocation rules of section 
704(c) (except to the extent that the property is permitted to be 
aggregated in making allocations under section 704(c)), or is 
intangible property, including its estimated fair market value and 
adjusted basis;
    (7) * * *
    (v) Other property;
    (8) [Reserved]. For further guidance, see Sec.  1.6038B-2T(c)(8); 
and
    (9) [Reserved]. For further guidance, see Sec.  1.6038B-2T(c)(9).
* * * * *
    (h) * * *
    (1) Consequences of a failure. If a United States person is 
required to file a return under paragraph (a) of this section and fails 
to comply with the reporting requirements of section 6038B and this 
section, or Sec.  1.721(c)-6T, then that person is subject to the 
following penalties:
* * * * *
    (3) [Reserved]. For further guidance see Sec.  1.6038B-2T(h)(3).
* * * * *

[[Page 7611]]

    (j) * * *
    (4) through (5) [Reserved]. For further guidance, see Sec.  
1.6038B-2T(j)(4) through (5).

0
Par. 16. Section 1.6038B-2T is added to read as follows:


Sec.  1.6038B-2T   Reporting of certain transfers to foreign 
partnerships (temporary).

    (a) introductory text through (a)(1)(ii) [Reserved]. For further 
guidance, see Sec.  1.6038B-2(a) introductory text through (a)(1)(ii).
    (iii) The United States person is a U.S. transferor (as defined in 
Sec.  1.721(c)-1T(b)(18)) that makes a gain deferral contribution and 
is required to report under Sec.  1.721(c)-6T(b)(2). The reporting 
required under this paragraph (a) includes the annual reporting 
required by Sec.  1.721(c)-6T(b)(3). For purposes of applying this 
paragraph (a)(1)(iii) to partnerships formed on or after January 18, 
2017, a domestic partnership is treated as a foreign partnership 
pursuant to section 7701(a)(4).
    (a)(2) [Reserved]. For further guidance, see Sec.  1.6038B-2(a)(2).
    (3) Indirect transfer through a foreign partnership. Solely for 
purposes of this section, if a foreign partnership transfers section 
721(c) property (as defined in Sec.  1.721(c)-1T(b)(15)) to another 
foreign partnership in a transfer described in Sec.  1.721(c)-3T(d) 
(tiered-partnership rules), then the transferor foreign partnership's 
partners will be considered to have transferred a proportionate share 
of the property to the foreign partnership.
    (a)(4) through (c)(7) [Reserved]. For further guidance, see Sec.  
1.6038B-2(a)(4) through (c)(7).
    (8) With respect to reporting required under Sec.  1.721(c)-
6T(b)(2) and paragraph (a)(1)(iii) of this section with regard to a 
gain deferral contribution, the information required by Sec.  1.721(c)-
6T(b)(2); and
    (9) With respect to section 721(c) property for which a statement 
is required to be filed under Sec.  1.721(c)-6T(b)(3) and paragraph 
(a)(1)(iii) of this section, the information required by Sec.  
1.721(c)-6T(b)(3).
    (d) through (h)(2) [Reserved]. For further guidance, see Sec.  
1.6038B-2(d) through (h)(2).
    (3) Reasonable cause exception. Under section 6038B(c)(2) and this 
section, the provisions of paragraph (h)(1) of this section will not 
apply if the United States person shows, in a timely manner, that a 
failure to comply was due to reasonable cause and not willful neglect. 
A United States person's statement that the failure to comply was due 
to reasonable cause and not willful neglect will be considered timely 
only if, promptly after the United States person becomes aware of the 
failure, an amended return is filed for the taxable year to which the 
failure relates that includes the information that should have been 
included with the original return for such taxable year or that 
otherwise complies with the rules of this section, and that includes a 
written statement explaining the reasons for the failure to comply. If 
any taxable year of the United States person is under examination when 
the amended return is filed, a copy of the amended return must be 
delivered to the Internal Revenue Service personnel conducting the 
examination when the amended return is filed. If no taxable year of the 
United States person is under examination when the amended return is 
filed, a copy of the amended return must be delivered to the Director 
of Field Operations, Cross Border Activities Practice Area of Large 
Business & International (or any successor to the roles and 
responsibilities of such position, as appropriate) (Director). Whether 
a failure to comply was due to reasonable cause and not willful neglect 
will be determined by the Director under all the facts and 
circumstances.
    (i) through (j)(3) [Reserved]. For further guidance, see Sec.  
1.6038B-2(i) through (j)(3).
    (4) Transfers of section 721(c) property--(i) Applicability dates. 
Paragraph (c)(8) of this section applies to transfers occurring on or 
after August 6, 2015, and to transfers occurring before August 6, 2015, 
resulting from an entity classification election made under Sec.  
301.7701-3 of this chapter that is filed on or after August 6, 2015. 
Paragraphs (a)(1)(iii), (a)(3), and (c)(9) of this section apply to 
transfers occurring on or after January 18, 2017, and to transfers 
occurring before January 18, 2017, resulting from entity classification 
elections made under Sec.  301.7701-3 of this chapter that are filed on 
or after January 18, 2017.
    (ii) Expiration date. The applicability of paragraphs (a)(1)(iii), 
(a)(3), and (c)(8) and (9) of this section expires on January 17, 2020.
    (5) Reasonable cause exception--(i) Applicability date. Paragraph 
(h)(3) of this section applies to all requests for relief for transfers 
of property to partnerships filed on or after February 21, 2017.
    (ii) Expiration date. The applicability of paragraph (h)(3) of this 
section expires on January 17, 2020.

 John Dalrymple,
Deputy Commissioner for Services and Enforcement.
    Approved: January 10, 2017.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2017-01049 Filed 1-18-17; 8:45 am]
 BILLING CODE 4830-01-P



                                                  7582             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  DEPARTMENT OF THE TREASURY                              1668 and 1545–0123 in accordance with                  section 367(d)(3), which provides the
                                                                                                          the Paperwork Reduction Act of 1995                    Secretary regulatory authority to apply
                                                  Internal Revenue Service                                (44 U.S.C. 3507(d)). Comments on the                   the rules of section 367(d)(2) to transfers
                                                                                                          collection of information should be sent               of intangible property to partnerships in
                                                  26 CFR Part 1                                           to the Office of Management and                        circumstances consistent with the
                                                  [TD 9814]                                               Budget, Attn: Desk Officer for the                     purposes of section 367(d). Regulations
                                                                                                          Department of the Treasury, Office of                  have never been issued pursuant to
                                                  RIN 1545–BM95                                           Information and Regulatory Affairs,                    section 721(c) or section 367(d)(3).
                                                                                                          Washington, DC 20503, with copies to                      Congress enacted section 367 (and its
                                                  Transfers of Certain Property by U.S.                   the Internal Revenue Service, Attn: IRS                predecessor) in order to prevent U.S.
                                                  Persons to Partnerships With Related                    Reports Clearance Officer,                             persons from avoiding U.S. tax by
                                                  Foreign Partners                                        SE:W:CAR:MP:T:T:SP, Washington, DC                     transferring appreciated property to
                                                  AGENCY:  Internal Revenue Service (IRS),                20224. Comments on the collection of                   foreign corporations using
                                                  Treasury.                                               information should be received                         nonrecognition transactions. Staff of the
                                                  ACTION: Final and temporary                             February 21, 2017.                                     Joint Committee on Taxation, General
                                                  regulations.                                              The collections of information are in                Explanation of the Revenue Provisions
                                                                                                          §§ 1.721(c)–6T and 1.6038B–2T. The                     of the Deficit Reduction Act of 1984
                                                  SUMMARY:   This document contains                       collections of information are                         (H.R. 4170, 98th Congress; Pub. L. 98–
                                                  temporary regulations that address                      mandatory. The likely respondents are                  369) (JCS–41–84) (Dec. 31, 1984), at 427.
                                                  transfers of appreciated property by                    domestic corporations. Burdens                         The outbound transfer of intangible
                                                  United States persons (U.S. persons) to                 associated with these requirements will                property raises additional issues that
                                                  partnerships with foreign partners                      be reflected in the burden for Form                    Congress also sought to address.
                                                  related to the transferor. The regulations              1065, U.S. Return of Partnership                       Specifically, section 367(d) was enacted
                                                  override the rules providing for                        Income, and Form 8865, Return of U.S.                  to prevent U.S. persons from
                                                  nonrecognition of gain on a contribution                Persons With Respect to Certain Foreign                transferring intangibles offshore in order
                                                  of property to a partnership in exchange                Partnerships. Estimates for completing                 to achieve deferral of U.S. tax on the
                                                  for an interest in the partnership under                these forms can be located in the form                 profits generated by the intangibles.
                                                  section 721(a) of the Internal Revenue                  instructions.                                          H.R. Rep. No. 98–432, 98th Cong., 2d
                                                  Code (Code) pursuant to section 721(c)                    An agency may not conduct or                         Sess., at 1311–15 (1984). Under section
                                                  unless the partnership adopts the                       sponsor, and a person is not required to               367(d), a U.S. person that transfers
                                                  remedial method and certain other                       respond to, a collection of information                intangible property (within the meaning
                                                  requirements are satisfied. The                         unless it displays a valid control                     of section 936(h)(3)(B)) to a foreign
                                                  document also contains regulations                      number.                                                corporation in an exchange described in
                                                  under sections 197, 704, and 6038B that                                                                        section 351 or section 361 is treated as
                                                  apply to certain transfers described in                 Background
                                                                                                                                                                 having sold such property in exchange
                                                  section 721. The regulations affect U.S.                I. Statutory Background                                for payments that are contingent upon
                                                  partners in domestic or foreign                            Until they were repealed as part of the             the productivity, use, or disposition of
                                                  partnerships. The text of the temporary                 Taxpayer Relief Act of 1997 (the 1997                  such property, and receiving amounts
                                                  regulations also serves as the text of the              Act), Public Law 105–34 (111 Stat. 788),               that reasonably reflect the amounts that
                                                  proposed regulations set forth in the                   section 1131, sections 1491 through                    would have been received annually in
                                                  notice of proposed rulemaking on this                   1494 imposed an excise tax on certain                  the form of such payments over the
                                                  subject in the Proposed Rules section of                transfers of appreciated property by a                 useful life of the property, or, in the case
                                                  this issue of the Federal Register. The                 U.S. person to a foreign partnership,                  of a disposition following the transfer
                                                  final regulations revise and add cross-                 which generally was 35 percent of the                  (whether direct or indirect), at the time
                                                  references to coordinate the application                amount of gain inherent in the property.               of the disposition. Section 367(d)(2)(A).
                                                  of the temporary regulations.                           Congress believed that the imposition of               The amounts taken into account must be
                                                  DATES: Effective Date: These regulations                enhanced information reporting                         commensurate with the income
                                                  are effective on January 18, 2017.                      obligations (including sections 6038,                  attributable to the intangible property.
                                                     Applicability Dates: For dates of                    6038B, and 6046A) with respect to                      Id.
                                                  applicability, see §§ 1.197–2T(l)(5)(i),                foreign partnerships would eliminate                      Section 721(a) provides a general rule
                                                  1.704–1T(f), 1.704–3T(g)(1), 1.721(c)–                  the need for sections 1491 through 1494.               that no gain or loss is recognized to a
                                                  1T(e), 1.721(c)–2T(e), 1.721(c)–3T(e),                  Staff of the Joint Committee on                        partnership or to any of its partners in
                                                  1.721(c)–4T(d), 1.721(c)–5T(g), 1.721(c)–               Taxation, General Explanation of Tax                   the case of a contribution of property to
                                                  6T(g), and 1.6038B–2T(j)(4)(i).                         Legislation Enacted in 1997, Part Two:                 the partnership in exchange for an
                                                  FOR FURTHER INFORMATION CONTACT:                        Taxpayer Relief Act of 1997 (H.R. 2014)                interest in the partnership. Because
                                                  Concerning the temporary regulations,                   (JCS–23–97) (Dec. 17, 1997), at 314–315.               section 367 applies only to the transfer
                                                  Ryan A. Bowen, (202) 317–6937;                             Notwithstanding these enhanced                      of property to a foreign corporation,
                                                  concerning submissions of comments or                   information reporting requirements, the                absent regulations under section 721(c)
                                                  requests for a public hearing, Regina                   1997 Act granted the Secretary                         or section 367(d)(3), a U.S. person
                                                  Johnson, (202) 317–6901 (not toll-free                  regulatory authority in section 721(c) to              generally does not recognize gain on the
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  numbers).                                               override the application of the                        contribution of appreciated property to
                                                  SUPPLEMENTARY INFORMATION:                              nonrecognition provision of section                    a partnership with foreign partners.
                                                                                                          721(a) to gain realized on the transfer of                Section 704(c)(1)(A) requires
                                                  Paperwork Reduction Act                                 property to a partnership (domestic or                 partnerships to allocate income, gain,
                                                    The collection of information                         foreign) if the gain, when recognized,                 loss, and deduction with respect to
                                                  contained in the regulations is listed                  would be includible in the gross income                property contributed by a partner to the
                                                  with the Office of Management and                       of a person other than a U.S. person. In               partnership so as to take into account
                                                  Budget under control numbers 1545–                      the 1997 Act, Congress also enacted                    any variation between the adjusted tax


                                             VerDate Sep<11>2014   01:22 Jan 19, 2017   Jkt 241001   PO 00000   Frm 00002   Fmt 4701   Sfmt 4700   E:\FR\FM\19JAR9.SGM   19JAR9


                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           7583

                                                  basis of the property and its fair market               property to related foreign partners that              allow for the continued application of
                                                  value at the time of contribution.                      are not subject to U.S. tax. Many of                   section 721(a) to transfers to
                                                                                                          these taxpayers choose a section 704(c)                partnerships with related foreign
                                                  II. Regulatory Background
                                                                                                          method other than the remedial method                  partners when certain requirements
                                                     Section 1.704–3(a)(1) provides that                  or use valuation techniques that are                   intended to protect the U.S. tax base are
                                                  the purpose of section 704(c) is to                     inconsistent with the arm’s length                     satisfied. The notice described these
                                                  prevent the shifting of tax consequences                standard. In 1997, Congress recognized                 requirements, in addition to others, as
                                                  among partners with respect to pre-                     that taxpayers might use a partnership                 the ‘‘gain deferral method.’’
                                                  contribution gain or loss (forward                      to shift gain to a foreign person and                     The requirements of the gain deferral
                                                  section 704(c) layer). In addition,                     consequently enacted sections 721(c)                   method described in the notice are that
                                                  partnerships may, but are not required                  and 367(d)(3). Based on the experience                 (i) the section 721(c) partnership adopts
                                                  to, revalue partnership property                        of the IRS with the taxpayer positions                 the remedial allocation method for
                                                  pursuant to § 1.704–1(b)(2)(iv)(f) or (s)               described above, the Treasury                          built-in gain with respect to all section
                                                  upon the occurrence of enumerated                       Department and the IRS have                            721(c) property contributed to the
                                                  events, such as the entry of a new                      determined that it is appropriate to                   partnership pursuant to the same plan
                                                  partner by contribution, giving rise to a               exercise the regulatory authority granted              by the U.S. transferor and all U.S.
                                                  reverse section 704(c) layer. Section                   in section 721(c) to override the                      transferors that are related persons; (ii)
                                                  1.704–3(a)(6)(i) provides that the                      application of section 721(a) to gain                  the section 721(c) partnership makes
                                                  principles of § 1.704–3 apply to                        realized on the transfer of property to a              consistent allocations of all section
                                                  allocations with respect to these reverse               partnership (domestic or foreign) in                   704(b) items with respect to an item of
                                                  section 704(c) layers (reverse section                  certain circumstances in which the gain,               section 721(c) property (the consistent
                                                  704(c) allocations).                                    when recognized, ultimately would be                   allocation method); (iii) certain
                                                     Section 704(c) allocations must be                   includible in the gross income of a                    reporting requirements are satisfied; (iv)
                                                  made using any reasonable method                        foreign person. Although Congress also                 the U.S. transferor recognizes any
                                                  consistent with the purpose of section                  provided specific authority in section                 remaining built-in gain with respect to
                                                  704(c). Section 1.704–3(a)(1). Section                  367(d)(3) to address transfers of                      section 721(c) property upon an
                                                  1.704–3 describes three methods of                      intangible property to partnerships, the               acceleration event; and (v) the gain
                                                  making section 704(c) allocations that                  Treasury Department and the IRS have                   deferral method is adopted for all
                                                  are generally reasonable, including the                 concluded that acting pursuant to                      section 721(c) property subsequently
                                                  remedial allocation method. Id. Under                   section 721(c) is more appropriate                     contributed to the section 721(c)
                                                  the remedial allocation method, a                       because the transactions at issue are not              partnership by the U.S. transferor and
                                                  partnership may eliminate distortions                   limited to transfers of intangible                     all other U.S. transferors that are related
                                                  caused by the ceiling rule (as described                property.                                              persons until the earlier of two dates:
                                                  in § 1.704–3(b)(1)) by making remedial                                                                         the date that no built-in gain remains
                                                  allocations of income, gain, loss, or                   IV. Notice 2015–54                                     with respect to any section 721(c)
                                                  deduction to the noncontributing                           On August 6, 2015, the Department of                property to which the gain deferral
                                                  partners equal to the full amount of the                the Treasury (Treasury Department) and                 method first applied, or the date that is
                                                  limitation caused by the ceiling rule,                  the IRS issued Notice 2015–54, 2015–34                 60 months after the date of the initial
                                                  and offsetting those allocations with                   I.R.B. 210 (the notice), which describes               contribution of section 721(c) property
                                                  remedial allocations of income, gain,                   regulations to be issued under section                 to which the gain deferral method first
                                                  loss, or deduction to the contributing                  721(c) that would ensure that, when a                  applied (unified application
                                                  partner. See § 1.704–3(d)(1); see also                  U.S. person transfers certain property to              requirement). See Part III of the
                                                  T.D. 8585 (59 FR 66724). Under § 1.704–                 a partnership that has foreign partners                Explanations of Provisions section of
                                                  3(a)(10), an allocation method (or                      related to the U.S. person, income or                  this preamble for the definitions of
                                                  combination of methods) is not                          gain attributable to the appreciation in               ‘‘section 721(c) partnership,’’ ‘‘section
                                                  reasonable if the contribution of                       the property at the time of the                        721(c) property,’’ ‘‘U.S. transferor’’ and
                                                  property (or event that results in reverse              contribution will be taken into account                other commonly used terms.
                                                  section 704(c) allocations) and the                     by the transferor either immediately or                   The notice generally provides that the
                                                  corresponding allocation of tax items                   over time. Comments were received on                   regulations will define an acceleration
                                                  with respect to the property are made                   the notice and will be included in the                 event as any transaction that either (i)
                                                  with a view to shifting the tax                         administrative record for the notice of                would reduce the amount of remaining
                                                  consequences of built-in gain or loss                   proposed rulemaking on this subject in                 built-in gain that a U.S. transferor would
                                                  among the partners in a manner that                     the Proposed Rules section of this issue               recognize under the gain deferral
                                                  substantially reduces the present value                 of the Federal Register (REG–127203–                   method if the transaction had not
                                                  of the partners’ aggregate tax liability.               15). The Treasury Department and the                   occurred, or (ii) could defer the
                                                  However, § 1.704–3(d)(5)(ii) provides                   IRS have considered all the submitted                  recognition of the built-in gain. The
                                                  that, in exercising its authority under                 comments. The significant comments                     notice also describes several situations
                                                  § 1.704–3(a)(10), the IRS will not require              are discussed in the Explanation of                    that the regulations will not treat as
                                                  a partnership to use the remedial                       Provisions section of this preamble.                   acceleration events.
                                                  allocation method.                                         The notice states that future                          The notice states that the regulations
                                                                                                          regulations generally will override the                will apply to transactions involving
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                                                  III. Reasons for Exercising Regulatory                  application of section 721(a) to gain                  tiered partnerships in a manner that is
                                                  Authority                                               realized on the transfer of property to a              consistent with the purpose of the
                                                     The Treasury Department and the IRS                  partnership (domestic or foreign) in                   regulations. As examples, the notice
                                                  are aware that certain taxpayers purport                certain circumstances in which the gain,               provides that the regulations will treat
                                                  to be able to contribute, consistently                  when recognized, ultimately would be                   a contribution of section 721(c) property
                                                  with sections 704(b), 704(c), and 482,                  includable in the gross income of a                    by a partnership (in which a U.S.
                                                  property to a partnership that allocates                related foreign person. The notice                     transferor is a direct or indirect partner)
                                                  the income or gain from the contributed                 further states that future regulations will            to a lower-tier partnership, or a


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                                                  7584             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  contribution by a U.S. transferor of an                 acknowledge that neither the traditional               allocations prevents a shift of the tax
                                                  interest in a partnership that owns                     method nor the traditional method with                 consequences of pre-contribution gain
                                                  section 721(c) property to an upper-tier                curative allocations will necessarily                  to the noncontributing partner when tax
                                                  partnership, as though the U.S.                         ensure that a contributing partner will                basis or other tax items are insufficient
                                                  transferor contributed its share of the                 bear all the tax consequences of pre-                  to reflect the economics of the
                                                  section 721(c) property directly.                       contribution gain. A contributing                      noncontributing partner. When this shift
                                                     The notice provides that the                         partner exchanges a share of the                       occurs, the contributing partner
                                                  regulations described therein will apply                property it contributes for a share of the             generally will not bear the tax
                                                  to contributions occurring on or after                  property the other partners contribute.                consequences of the pre-contribution
                                                  August 6, 2015, and to contributions                    Economically, a contribution is a                      gain until, at the earliest, its partnership
                                                  occurring before August 6, 2015,                        current value-for-value exchange. The                  interest is liquidated or sold. In this
                                                  resulting from an entity classification                 purpose of section 704(c) is to prevent                way, the contribution of property to a
                                                  election made under § 301.7701–3 that                   the shifting of tax consequences among                 partnership applying either of these two
                                                  is filed on or after August 6, 2015, and                partners with respect to pre-                          methods can result in a tax-advantaged
                                                  that is effective on or before August 6,                contribution built-in gain or loss in                  exchange with respect to the
                                                  2015. The notice provides, however,                     contributed property. The regulations                  contributing partner. When the
                                                  that the reporting requirements will not                under section 704(c) provide three                     noncontributing partner is foreign, this
                                                  apply to taxable years that end before                  generally reasonable methods under                     situation is the appropriate target for the
                                                  the date of publication of regulations                  which partnerships may allocate items                  temporary regulations.
                                                  described in the notice.                                                                                          Finally, the regulations under section
                                                                                                          with respect to contributed property so
                                                     The notice also announced the intent                                                                        704(c) give wide latitude to taxpayers
                                                                                                          as to take into account the tax
                                                  to issue regulations under sections 482                                                                        regarding how and when partners may
                                                                                                          consequences of pre-contribution gain
                                                  and 6662 to ensure the appropriate                                                                             choose to recognize pre-contribution
                                                                                                          or loss—the traditional method, the
                                                  valuation of controlled transactions                                                                           gain. Subject to anti-abuse rules,
                                                                                                          traditional method with curative
                                                  involving partnerships. These                                                                                  taxpayers are allowed to adopt the
                                                                                                          allocations, and the remedial allocation
                                                  regulations are not contained in this                                                                          traditional method and the traditional
                                                                                                          method. None of the methods are
                                                  Treasury decision and will appear in                                                                           method with curative allocations
                                                                                                          mandatory, and taxpayers may choose
                                                  future regulations. Section 482                                                                                despite those methods’ inability to
                                                                                                          any of them (or another reasonable                     prevent a shift of the tax consequences
                                                  continues to apply to controlled                        method) on a property-by-property and
                                                  transactions (within the meaning of                                                                            of pre-contribution gain in all cases.
                                                                                                          section 704(c) layer-by-layer basis. In                This latitude raises more concern in the
                                                  § 1.482–1(i)(8)) that are also subject to               the case of a contribution of depreciable
                                                  these regulations. An adjustment                                                                               case of related partners, one or more of
                                                                                                          or amortizable property with pre-                      whom are foreign, given their likely
                                                  pursuant to section 482 does not                        contribution gain, under all three
                                                  prevent the application of these                                                                               overall alignment of tax interests, which
                                                                                                          methods, book cost recovery deductions                 would not necessarily exist among
                                                  regulations.                                            reduce the pre-contribution gain in the                unrelated partners. As explained in Part
                                                  Explanation of Provisions                               property (the gain that must be allocated              II of the Background section of this
                                                                                                          back to the contributor) over the course               preamble, the remedial allocation
                                                  I. Comments Regarding Statutory                         of the recovery period for the property.
                                                  Authority for Regulations                                                                                      method is the only method that reliably
                                                                                                          Under the traditional method, tax cost                 and consistently ensures that the tax
                                                    Comments questioned whether the                       recovery deductions (which are based                   consequences of pre-contribution gain
                                                  regulations described in the notice are                 on tax basis in the property) are, to the              from contributed property are properly
                                                  within the scope of the grant of                        extent available, allocated first to the               borne by the contributing partner. This
                                                  authority in section 721(c). Specifically,              noncontributing partner up to its                      feature of the remedial method is
                                                  comments asserted that pre-contribution                 allocated book cost recovery deductions.               particularly relevant to the
                                                  gain could not be taxed under section                   If the noncontributing partner’s book                  Congressional concerns about the
                                                  721(c) until it is recognized in a sale or              cost recovery deductions exceed its tax                erosion of the U.S. tax base that led to
                                                  exchange by the partnership. The                        cost recovery deductions, the                          the enactment of section 721(c), and
                                                  Treasury Department and the IRS                         noncontributing partner will be                        thus the remedial method is the method
                                                  disagree with these comments for                        overtaxed on its investment in the                     that is most appropriate for appreciated
                                                  several reasons.                                        partnership property. The traditional                  property that is contributed to a
                                                    First, as explained in the notice,                    method does not make up for shortfalls                 partnership controlled by the U.S.
                                                  Congress added the broad grant of                       in available tax deductions, and if the                transferor and one or more related
                                                  regulatory authority in section 721(c) in               partnership uses the traditional method                foreign partners. For these reasons, the
                                                  the 1997 Act to address transactions in                 with curative allocations, those                       Treasury Department and the IRS have
                                                  which property is contributed to                        shortfalls are cured only if there are                 determined that these regulations are
                                                  partnerships in order to inappropriately                other tax items available with which to                within the scope of the grant of
                                                  shift gain offshore as a replacement for                cure. Because book cost recovery                       authority in section 721(c).
                                                  the repealed excise tax on transfers to                 deductions reduce the built-in gain in
                                                  foreign partnerships in sections 1491                   the property regardless of whether the                 II. Overview of the Temporary
                                                  through 1494.                                           noncontributing partner has received all               Regulations
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                                                    Second, section 721(c) provides                       of the tax cost recovery deductions to                    The temporary regulations adopt the
                                                  authority to tax the gain when the                      which it is economically entitled or                   rules that were described in the notice,
                                                  property is contributed if the gain ‘‘will              whether the contributing partner has                   with certain modifications, in part, in
                                                  be includible’’ in a foreign person’s                   received taxable income (or fewer tax                  response to comments received.
                                                  income; it is not a rule (like section                  deductions) commensurate with the pre-                    Section 1.721(c)–1T provides
                                                  704(c)(1)(B)) that requires the ‘‘wait-                 contribution gain in its property, neither             definitions and rules of general
                                                  and-see’’ approach suggested by the                     the traditional method nor the                         application for purposes of all sections
                                                  comments. The comments fail to                          traditional method with curative                       of the temporary regulations. Section


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           7585

                                                  1.721(c)–2T provides the general                        gain recognition and successor events,                 size of a related foreign person’s interest
                                                  operative rules that override section                   respectively.                                          would be difficult to administer.
                                                  721(a) nonrecognition upon a                               The temporary regulations provide                   Accordingly, this comment has not been
                                                  contribution of section 721(c) property                 that a mere change in identity, form, or               adopted. The Treasury Department and
                                                  to a partnership. Section 1.721(c)–3T                   place of organization of a partnership or              the IRS, however, acknowledge that the
                                                  describes the gain deferral method,                     a recapitalization of a partnership will               higher the overall level of related
                                                  which, if adopted, avoids the immediate                 not cause the partnership to become a                  ownership in the partnership, the more
                                                  recognition of gain upon a contribution                 section 721(c) partnership. See                        likely the arrangement among the
                                                  of section 721(c) property. Section                     § 1.721(c)–1T(c).                                      partners will reflect tax considerations.
                                                  1.721(c)–4T provides rules regarding                       Finally, as announced in the notice,                After considering this comment and
                                                  events that accelerate the recognition of               the temporary regulations contain rules                other comments that requested a higher
                                                  gain that previously was deferred under                 for transactions involving tiered                      level of related-party ownership in the
                                                  the gain deferral method. Section                       partnerships, as well as a general anti-               definition of a section 721(c)
                                                  1.721(c)–5T identifies exceptions to the                abuse rule (see § 1.721(c)–1T(d)) that                 partnership, the temporary regulations
                                                  acceleration events provided in                         applies for purposes of all sections of                increase the threshold from a ‘‘more
                                                  § 1.721(c)–4T, the result of which,                     the temporary regulations.                             than 50 percent’’ test to an ‘‘80 percent
                                                  generally, is that the gain deferral                    IV. Definitions: Section 721(c)                        or more’’ test (ownership requirement).
                                                  method either ends (termination events)                 Partnership, Section 721(c) Property,                  See § 1.721(c)–1T(b)(14)(i) for the
                                                  or continues to apply without                           U.S. Transferor, and Other Terms                       general definition of a section 721(c)
                                                  immediate gain recognition (successor                                                                          partnership. The temporary regulations
                                                  events) or continues to apply with                         The notice states that future                       also provide rules that deem certain
                                                  partial gain recognition (partial                       regulations would provide that a                       controlled partnerships in a tiered-
                                                  acceleration events). Section 1.721(c)–                 partnership is a section 721(c)                        partnership structure to be section
                                                  6T provides procedural and reporting                    partnership if a U.S. transferor                       721(c) partnerships in order to apply the
                                                  requirements. Section 1.721(c)–7T                       contributes section 721(c) property to                 gain deferral method. See § 1.721(c)–
                                                  provides examples illustrating the                      the partnership, and, after the                        1T(b)(14)(ii).
                                                  application of the temporary                            contribution and any transactions                         The temporary regulations define
                                                  regulations.                                            related to the contribution, (i) a related             section 721(c) property as property,
                                                                                                          foreign person is a direct or indirect                 other than excluded property, with
                                                  III. General Scope of the Temporary                     partner, and (ii) the U.S. transferor and              built-in gain that is contributed to a
                                                  Regulations                                             related persons own (directly or                       partnership by a U.S. transferor. See
                                                     The temporary regulations apply on a                 indirectly) more than 50 percent of the                § 1.721(c)–1T(b)(15)(i) for the general
                                                  property-by-property basis.                             interests in partnership capital, profits,             definition of section 721(c) property.
                                                  Accordingly, as discussed in Paragraph                  deductions, or losses.                                 The notice incorporated the requirement
                                                  b of Part VI of the Explanations of                        A comment requested that the                        that a U.S. transferor make the
                                                  Provisions section of this preamble, the                definition of section 721(c) partnership               contribution in the definition of a
                                                  temporary regulations do not include                    be revised to exclude partnerships when                section 721(c) partnership rather than in
                                                  the unified application requirement                     the interests held by related foreign                  the definition of section 721(c) property.
                                                  announced in the notice.                                persons are small and an unrelated                     This adjustment to the definitions is
                                                     The temporary regulations apply to all               third-party with a material adverse tax                intended to be a non-substantive
                                                  contributions, actual or deemed, of                     position to the U.S. transferor holds a                change. The temporary regulations
                                                  property to a partnership, including, for               meaningful interest in the partnership.                provide that if a U.S. transferor is
                                                  example, a contribution of property that                According to the comment, these two                    treated as contributing its share of an
                                                  occurs as a result of (i) a partnership                 factors would sufficiently mitigate the                item of property, the entire item of
                                                  merger, consolidation, or division in the               potential for the abuse that the notice is             property is section 721(c) property. In
                                                  assets-over form, (ii) a change in entity               intended to address. While these factors               addition, the temporary regulations
                                                  classification that occurs pursuant to                  may reduce the ability of a U.S.                       provide rules that deem certain property
                                                  § 301.7701–3, or (iii) a transaction                    transferor to shift gain or income                     of a tiered partnership to be section
                                                  described in Rev. Rul. 99–5, 1999–1 C.B.                outside the United States, the Treasury                721(c) property. See § 1.721(c)–
                                                  434 (change from a disregarded entity to                Department and the IRS have concluded                  1T(b)(15)(ii). When an interest in a
                                                  a partnership). However, in response to                 that these factors alone are insufficient              partnership is contributed, the
                                                  a comment, the temporary regulations                    to prevent the erosion of the U.S. tax                 partnership interest, if it is not excluded
                                                  provide that a contribution in a                        base that section 721(c) was enacted to                property, is the section 721(c) property.
                                                  technical termination of a partnership                  address. In particular, the Treasury                      The temporary regulations define
                                                  described in section 708(b)(1)(B)                       Department and the IRS are concerned                   excluded property as (i) a cash
                                                  (technical termination) will not, by                    that even a small ownership interest                   equivalent; (ii) a security within the
                                                  itself, cause a partnership to become a                 held by a related foreign person may be                meaning of section 475(c)(2), without
                                                  section 721(c) partnership subject to the               used for a meaningful shift of gain or                 regard to section 475(c)(4); (iii) an item
                                                  temporary regulations. For further                      income outside the United States.                      of tangible property with built-in gain
                                                  discussion, see Part IV of the                          Furthermore, the Treasury Department                   that does not exceed $20,000 or with an
                                                  Explanation of Provisions section of this               and the IRS have determined that such                  adjusted tax basis in excess of book
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                                                  preamble. However, the temporary                        a rule would necessitate additional rules              value (built-in loss); and (iv) an interest
                                                  regulations do apply to a technical                     to address small interests that later                  in a partnership that holds (directly, or
                                                  termination of a section 721(c)                         become large either in absolute or                     indirectly through interests in one or
                                                  partnership applying the gain deferral                  relative terms. In this regard, the                    more partnerships that are not excluded
                                                  method. In this regard, see Part V and                  Treasury Department and the IRS have                   property under this clause (iv)) property
                                                  Paragraph c of Part VIII of the                         determined that both a general anti-                   of which 90 percent or more of the value
                                                  Explanation of Provisions section of this               abuse rule and a more targeted rule that               consists of property described in clauses
                                                  preamble, concerning the general rule of                would require periodic retesting of the                (i) through (iii) (partnership interest


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                                                  7586             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  exclusion). See § 1.721(c)–1T(b)(6). The                would be determined with respect to the                property to a partnership. Section
                                                  notice announced the first three                        contributing partner’s adjusted tax basis              1.721(c)–2T(b) provides the general rule
                                                  categories of excluded property.                        in the property at the time of the                     that nonrecognition under section
                                                  However, the temporary regulations                      contribution, whereas the temporary                    721(a) will not apply to gain realized
                                                  include tangible property with a built-                 regulations provide that built-in gain is              upon a contribution of section 721(c)
                                                  in loss in the third exclusion so that                  determined with respect to the                         property to a section 721(c) partnership.
                                                  such property is excluded property for                  partnership’s adjusted tax basis in the                In contrast to the regulations described
                                                  purposes of the partnership interest                    property. The revision was made in                     in the notice, § 1.721(c)–2T(b) provides
                                                  exclusion. The Treasury Department                      order to more precisely describe the                   that this general rule does not apply—
                                                  and the IRS determined that it was                      amount of gain that may be shifted to a                and therefore that nonrecognition under
                                                  appropriate to add the partnership                      related foreign partner. Second, the                   section 721(a) continues to apply—to a
                                                  interest exclusion so that the temporary                temporary regulations clarify that built-              direct contribution of section 721(c)
                                                  regulations do not apply to transfers of                in gain is determined without regard to                property by an ‘‘unrelated’’ U.S.
                                                  partnership interests when only a small                 the application of the gain recognition                transferor (in other words, a U.S.
                                                  portion of the partnership’s property is                rule under § 1.721(c)–2T(b).                           transferor that does not, together with
                                                  section 721(c) property. If a partnership                  The temporary regulations include a                 related persons with respect to it, satisfy
                                                  interest fails the 90-percent threshold                 new term, ‘‘remaining built-in gain.’’                 the ownership requirement). The carve-
                                                  test for the partnership interest                       Section 1.721(c)–1T(b)(13)(i) generally                out is consistent with the intent of the
                                                  exclusion and does not qualify under                    defines remaining built-in gain, with                  temporary regulations to address the
                                                  the second exclusion for securities, the                respect to an item of section 721(c)                   shifting of income among related
                                                  interest is section 721(c) property.                    property that is subject to the gain                   persons. Because this carve-out for an
                                                     Comments recommended that                            deferral method, as the built-in gain,                 unrelated U.S. transferor is limited to
                                                  property that gives rise to income                      reduced by decreases in the difference                 direct contributions of section 721(c)
                                                  effectively connected with a U.S. trade                 between the property’s book value and                  property, it does not apply to a
                                                  or business (ECI property) be excluded                  adjusted tax basis. However, subsequent                contribution that occurs pursuant to the
                                                  from the definition of section 721(c)                   increases or decreases to the property’s               partnership look-through rule in
                                                  property, because the income will be                    book value due to a revaluation other                  § 1.721(c)–2T(d)(1) (as discussed
                                                  subject to U.S. tax even if it is allocated             than a revaluation required under these                elsewhere in this Part V).
                                                  to a related foreign person. The Treasury               temporary regulations for tiered                          Section 1.721(c)–2T(c) provides a de
                                                  Department and the IRS agree with the                   partnerships are not taken into account                minimis exception to the general rule.
                                                  reasoning behind this comment, and                      in determining remaining built-in gain.                The temporary regulations modify the
                                                  have determined that the temporary                      The temporary regulations provide rules                de minimis exception described in the
                                                  regulations should also address the                     for determining remaining built-in gain                notice—which focused on contributions
                                                  situation when the property ceases to be                in the case of tiered partnerships. See                made by a U.S. transferor (and all
                                                  ECI property and still has built-in gain.               § 1.721(c)–1T(b)(13)(ii).                              related U.S. transferors) during the U.S.
                                                  Accordingly, the temporary regulations                     Consistent with the notice, § 1.721(c)–             transferor’s taxable year—to focus
                                                  continue to include ECI property in the                 1T(b)(18)(i) of the temporary regulations              instead on contributions during the
                                                  definition of section 721(c) property but               generally defines a U.S. transferor as a               partnership’s taxable year, in order to
                                                  modify the application of the gain                      U.S. person (within the meaning of                     align the rule with the reporting
                                                  deferral method to ECI property, as                     section 7701(a)(30)) other than a                      required under § 1.721(c)–6T. Under the
                                                  discussed in Paragraph c of Part VI of                  domestic partnership. The temporary                    de minimis exception in the temporary
                                                  the Explanation of Provisions section of                regulations also provide a rule that                   regulations, contributions of section
                                                  this preamble.                                          deems certain tiered partnerships to be                721(c) property will not be subject to
                                                     Another comment similarly suggested                  a U.S. transferor solely for purposes of               immediate gain recognition if the sum of
                                                  that the definition of section 721(c)                   applying the consistent allocation                     all built-in gain for all section 721(c)
                                                  property exclude property the gain on                   method. See § 1.721(c)–1T(b)(18)(ii).                  property contributed to a section 721(c)
                                                  which would be subject to U.S. tax                         Finally, the temporary regulations,                 partnership during the partnership’s
                                                  under subpart F of the Code. The                        consistent with the notice, define (i) a               taxable year does not exceed $1 million.
                                                  Treasury Department and IRS have                        related person as a person that is related                Section 1.721(c)–2T(d)(1) provides a
                                                  declined to adopt such a rule, which                    (within the meaning of section 267(b) or               look-through rule for identifying a
                                                  would depend on a ‘‘wait and see’’                      section 707(b)(1)) to a U.S. transferor;               section 721(c) partnership when an
                                                  approach and would import the                           (ii) a related foreign person as a person              upper-tier partnership in which a U.S.
                                                  recognition rules of subpart F, including               that is a related person (other than a                 transferor is a direct or indirect partner
                                                  an earnings and profits requirement,                    partnership) that is not a U.S. person;                contributes property to a lower-tier
                                                  rather than the more direct approach of                 and (iii) a direct or indirect partner as              partnership. For purposes of
                                                  section 721(c).                                         a person (other than a partnership) that               determining if the lower-tier partnership
                                                     The temporary regulations define                     owns an interest in a partnership                      is a section 721(c) partnership, the U.S.
                                                  built-in gain with respect to an item of                directly or indirectly through one or                  transferor will be treated as contributing
                                                  property contributed to a partnership as                more partnerships. See § 1.721(c)–                     to the lower-tier partnership its share of
                                                  the excess of the book value of the                     1T(b)(12), (b)(11), and (b)(5),                        the property actually contributed by the
                                                  property over the partnership’s adjusted                respectively.                                          upper-tier partnership to the lower-tier
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                                                  tax basis in the property upon the                                                                             partnership. If the lower-tier partnership
                                                  contribution, determined without regard                 V. General Rule of Gain Recognition                    is a section 721(c) partnership, absent
                                                  to the application of the gain                          Upon a Contribution of Section 721(c)                  application of the gain deferral method
                                                  recognition rule of § 1.721(c)–2T(b). See               Property to a Section 721(c) Partnership               by the lower-tier partnership to the
                                                  § 1.721(c)–1T(b)(2). The temporary                        Section 1.721(c)–2T provides the                     entire property and by the upper-tier
                                                  regulations clarify the definition                      general operative rules that override                  partnership to the partnership interest
                                                  provided in the notice in two respects.                 section 721(a) nonrecognition of gain                  in the lower-tier partnership, the upper-
                                                  First, the notice states that built-in gain             upon a contribution of section 721(c)                  tier partnership will recognize the entire


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           7587

                                                  built-in gain in the section 721(c)                     partnerships are satisfied if either the               721(c) partnership with respect to
                                                  property under the general gain                         section 721(c) property is an interest in              which the gain is deferred under the
                                                  recognition rule, because the entire                    a partnership or the section 721(c)                    gain deferral method. See §§ 1.721(c)–
                                                  property will be section 721(c) property                property is described in the partnership               3T(b)(4) and 1.721(c)–6T(b)(5)(iii),
                                                  (see the general definition of section                  look-through rule in § 1.721(c)–2T(d)(1).              discussed in Part X of the Explanation
                                                  721(c) property in § 1.721(c)–                                                                                 of Provisions section of this preamble.
                                                                                                          b. Application of the Gain Deferral
                                                  1T(b)(15)(i)).                                                                                                 Additionally, it should be noted that
                                                                                                          Method on a Property-by-Property Basis
                                                     Section 1.721(c)–2T(d)(2) provides                                                                          § 1.482–1T(f)(2)(i)(B) provides that
                                                  that the partnership look-through rule                     Comments questioned the necessity                   separate transactions must be aggregated
                                                  will not apply to a deemed contribution                 for the unified application requirement                for purposes of determining the arm’s
                                                  by an ‘‘old’’ partnership to a ‘‘new’’                  announced in the notice. The unified                   length pricing of such transactions
                                                  partnership that occurs as a result of a                application requirement was intended                   under section 482, including for
                                                  technical termination of the old                        to prevent taxpayers from disaggregating               purposes of an analysis under multiple
                                                  partnership. Thus, a technical                          the contribution of separate but related               provisions of the Code or regulations, if
                                                  termination will not cause a non-section                business property and choosing to                      the transactions are so interrelated that
                                                  721(c) partnership, in which a U.S.                     recognize gain upon contribution for                   an aggregate analysis provides the most
                                                  transferor is a direct or indirect partner,             some property and to apply the gain                    reliable measure of the arm’s length
                                                  to become a section 721(c) partnership                  deferral method for other property, in an              result.
                                                  subject to these temporary regulations.                 attempt to minimize the reported
                                                                                                          cumulative value for all contributed                   c. Application of the Gain Deferral
                                                  If, however, a partnership is a section                                                                        Method to ECI Property
                                                  721(c) partnership subject to the                       property or to minimize the reported
                                                  temporary regulations immediately                       value of property for which the gain                      As discussed in Part IV of the
                                                  before its technical termination, the                   deferral method was not adopted. This                  Explanation of Provisions section of this
                                                  technical termination would be a                        concern arises, in part, because the IRS               preamble, the temporary regulations do
                                                  successor event (rather than an                         may not be able to make an adjustment                  not adopt the comment recommending
                                                  acceleration event) only if the new                     for the correct amount of gain with                    that ECI property be excluded from the
                                                  partnership continues the gain deferral                 respect to property that is not subject to             definition of section 721(c) property.
                                                  method with respect to the section                      the gain deferral method due to the                    Instead, the temporary regulations
                                                  721(c) property that was subject to the                 expiration of the period of limitations                continue to provide that a contribution
                                                  gain deferral method in the terminated                  on the assessment of tax. While the                    of section 721(c) property that is ECI
                                                  partnership. In this regard, see                        Treasury Department and the IRS                        property is subject to immediate gain
                                                  § 1.721(c)–5T(c)(4) (defining a successor               continue to be concerned that taxpayers                recognition if the gain deferral method
                                                  event to include certain technical                      will attempt to disaggregate related                   is not applied. However, in response to
                                                  terminations).                                          business property in order to                          the comment, the temporary regulations
                                                                                                          undervalue their contributions, the                    modify the gain deferral method such
                                                  VI. Gain Deferral Method                                temporary regulations adopt a more                     that ECI property is not subject to the
                                                  a. In General                                           targeted approach to address these                     remedial allocation method or the
                                                                                                          comments. Accordingly, the temporary                   consistent allocation method. This
                                                     Section 1.721(c)–3T describes the gain               regulations do not include the unified                 special exception for ECI property
                                                  deferral method, which generally must                   application requirement and instead                    applies for as long as, beginning on the
                                                  be applied in order to avoid the                        apply on a property-by-property basis.                 date of the contribution and ending
                                                  immediate recognition of gain upon a                       As described in the notice, in order to             when there is no remaining built-in gain
                                                  contribution of section 721(c) property                 apply the gain deferral method with                    with respect to the property, all
                                                  to a section 721(c) partnership. Section                respect to a contribution of section                   distributive shares of income and gain
                                                  1.721(c)–3T(b) provides the five general                721(c) property to a section 721(c)                    with respect to the property for all
                                                  requirements for applying the gain                      partnership, the temporary regulations                 direct and indirect partners that are
                                                  deferral method to an item of section                   require the U.S. transferor to extend the              related foreign persons will be subject to
                                                  721(c) property: (i) The section 721(c)                 period of limitations on assessment of                 taxation as effectively connected with a
                                                  partnership adopts the remedial                         tax on all items related to the property               trade or business within the United
                                                  allocation method and allocates section                 with respect to which the gain deferral                States (under section 871 or 882), and
                                                  704(b) items of income, gain, loss, and                 method applies through the close of the                neither the section 721(c) partnership
                                                  deduction with respect to the section                   eighth full taxable year following the                 nor a direct or indirect partner that is a
                                                  721(c) property in a manner that                        contribution. To address the concerns                  related foreign person claims benefits
                                                  satisfies the consistent allocation                     that motivated the uniform application                 under an income tax treaty that would
                                                  method; (ii) the U.S. transferor                        requirement, the temporary regulations                 exempt the income or gain from tax or
                                                  recognizes gain equal to the remaining                  require a U.S. transferor to extend the                reduce the rate of taxation to which the
                                                  built-in gain with respect to the section               period of limitations on assessment of                 income or gain is subject. See
                                                  721(c) property upon an acceleration                    tax on the gain recognized under the                   § 1.721(c)–3T(b)(1)(ii).
                                                  event, or an amount of gain equal to a                  general rule with respect to any section                  All the other requirements of the gain
                                                  portion of the remaining built-in gain                  721(c) property that is contributed to the             deferral method apply with respect to
                                                  upon a partial acceleration event or                    partnership for which the gain deferral                ECI property. Thus, a U.S. transferor
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                                                  certain transfers to foreign corporations               method will not be applied through the                 must recognize gain upon an
                                                  described in section 367; (iii) procedural              close of the fifth full taxable year                   acceleration event with respect to ECI
                                                  and reporting requirements are satisfied;               following the contribution of such                     property, including when property
                                                  (iv) the U.S. transferor extends the                    property, if the property is contributed               ceases to be ECI property, and satisfy
                                                  period of limitations on assessment of                  within five full taxable years after a gain            the procedural and reporting
                                                  tax (as discussed in Part X of the                      deferral contribution, defined in                      requirements with respect to ECI
                                                  Explanation of Provisions section of this               § 1.721(c)–1T(b)(7) as a contribution of               property. See § 1.721(c)–6T(b)(2)(iii),
                                                  preamble); and (v) the rules for tiered                 section 721(c) property to a section                   (b)(3)(vii), and (c)(1).


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                                                  7588             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                    A comment also requested an                           to amortize the section 197(f)(9)                      of all or a portion of its interest in the
                                                  exclusion for property subject to tax                   intangible and allocate remedial items                 partnership will eliminate the tax basis
                                                  under section 897 (relating to U.S. real                of amortization to a related foreign                   adjustment attributable to the interest
                                                  property interests) from the definition of              partner and corresponding remedial                     such that the transferee will not succeed
                                                  section 721(c) property. The temporary                  items of income to the contributing                    to the tax basis adjustment. However, if
                                                  regulations do not adopt this comment                   partner. The Treasury Department and                   the interest is transferred in a
                                                  because the special rules for ECI                       the IRS have determined that changing                  substituted basis transaction, the
                                                  property appropriately address the                      § 1.197–2(h)(12)(vii)(B) to permit                     transferee will succeed to the
                                                  concerns expressed regarding U.S. real                  remedial allocations of amortization to                transferor’s tax basis adjustment and the
                                                  property interests.                                     related partners, or distinguishing                    adjustment will be taken into account in
                                                                                                          between domestic and related foreign                   computing and allocating any
                                                  d. Application of the Gain Deferral
                                                                                                          partners, would be contrary to section                 adjustment to the basis of the section
                                                  Method to Anti-Churning Property
                                                                                                          197(f)(9) and therefore do not adopt this              197(f)(9) intangible property under
                                                     Comments requested guidance on                       comment. In lieu of providing that                     sections 743(b) and 755. These rules
                                                  how the requirement to use the remedial                 remedial allocations may be made to a                  must be applied together with the
                                                  allocation method interacts with the                    related partner, the temporary                         general rules under section 197 and
                                                  section 197 anti-churning rules. In                     regulations provide a special non-                     subchapter K of the Code. In resolving
                                                  general, section 197(f)(9) prohibits the                amortizable tax basis adjustment to the                any uncertainty that arises in the
                                                  amortization of goodwill and going                      property. This special adjustment is                   implementation of these rules, it would
                                                  concern value that was nonamortizable                   made solely with respect to the related                be reasonable for taxpayers to apply
                                                  before the enactment of section 197                     partner. The Treasury Department and                   principles similar to those contained in
                                                  (section 197(f)(9) intangible property),                the IRS have determined that allowing                  § 1.743–1, the proposed regulations
                                                  and that prohibition continues if the                   this tax basis adjustment is consistent                under section 704(c)(1)(C), and any
                                                  property is transferred to a related                    with the policy of the section 197 anti-               Code sections or regulations that
                                                  person. Under § 1.197–2(h)(12)(vii)(B),                 churning rules.                                        reference those rules.
                                                  when section 197(f)(9) intangible                          More specifically, the temporary                       The Treasury Department and the IRS
                                                  property is contributed to a partnership,               regulations revise the remedial                        request comments on the following
                                                  a noncontributing partner generally may                 allocation method in § 1.704–3(d) as to                issues, and on any other issues relevant
                                                  receive remedial allocations of                         related partners when a section 721(c)                 to a section 721(c) partnership’s
                                                  amortization with respect to the                        partnership is applying the gain deferral              application of the remedial allocation
                                                  property. A noncontributing partner that                method with respect to section 197(f)(9)               method to section 197(f)(9) intangible
                                                  is related to the contributing partner,                 intangible property. The revised rule                  property: (i) The application of the
                                                  however, may not receive such remedial                  requires the partnership to amortize the               method to members of a consolidated
                                                  allocations.                                            portion of the partnership’s book value                group; (ii) the treatment of a tax basis
                                                     One comment requested that a U.S.                    in the section 197(f)(9) intangible                    adjustment when the adjusted section
                                                  transferor not be required to include                   property that exceeds its adjusted tax                 197(f)(9) intangible property is
                                                  remedial income with respect to section                 basis in the property. Accordingly, the                transferred (a) in a like-kind exchange
                                                  197(f)(9) intangible property when the                  allocation of book amortization to a                   described in section 1031, (b) to a lower-
                                                  gain deferral method is being applied.                  noncontributing partner will result in a               tier partnership, (c) in a transaction
                                                  The temporary regulations do not adopt                  ceiling rule limitation to the extent of
                                                  this comment. The Treasury Department                                                                          described in section 351, (d) in a
                                                                                                          this allocation of book amortization. If a             technical termination, or (e) in an
                                                  and the IRS are concerned that                          noncontributing partner is a related
                                                  providing favorable treatment for                                                                              installment sale; (iii) the treatment of a
                                                                                                          person with respect to the U.S.                        tax basis adjustment when the section
                                                  section 721(c) property belonging to a                  transferor, the temporary regulations
                                                  particular class would incentivize                                                                             197(f)(9) intangible property is
                                                                                                          provide that, solely with respect to the               distributed to the related person for
                                                  taxpayers to attribute excessive value to               related noncontributing partner, the
                                                  that class of property while                                                                                   whom the adjustment was made or to
                                                                                                          partnership must increase the adjusted                 another partner in a current or
                                                  simultaneously undervaluing related                     tax basis of the property by the amount
                                                  but separate section 721(c) property that                                                                      liquidating distribution; and (iv) any
                                                                                                          of the difference between the book
                                                  remains subject to all of the                                                                                  rules that are necessary to ensure that
                                                                                                          allocation of the item to the related
                                                  requirements of the gain deferral                                                                              the tax basis adjustment does not
                                                                                                          person and the tax allocation of the
                                                  method. This concern is especially                                                                             become amortizable in contravention of
                                                                                                          same item to the related person and
                                                  pronounced in the case of section                                                                              the anti-churning rules.
                                                                                                          allocate remedial income in the same
                                                  197(f)(9) intangible property, which is                 amount to the U.S. transferor. See                     e. Consistent Allocation Method
                                                  often difficult to value separately from                § 1.704–3T(d)(5)(iii)(C).
                                                  other identifiable intangible property. In                 The rules governing the tax                         1. In General
                                                  this regard, see the preamble of the                    consequences of the special tax basis                     Section 1.721(c)–3T(c)(1) describes
                                                  notice of proposed rulemaking (REG–                     adjustment are modeled on § 1.743–1                    the consistent allocation method,
                                                  139483–13) containing proposed                          and proposed regulations under section                 which, like the gain deferral method,
                                                  regulations under section 367,                          704(c)(1)(C) that are contained in a                   applies on a property-by-property basis.
                                                  published in the Federal Register on                    notice of proposed rulemaking (REG–                    The consistent allocation method
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                                                  September 16, 2015 (80 FR 55568). See                   144468–05) published in the Federal                    requires a section 721(c) partnership to
                                                  also the preamble to T.D. 9803, which                   Register (79 FR 3042) on January 16,                   allocate the same percentage of each
                                                  finalized those proposed regulations,                   2014. The adjustment to the tax basis of               book item of income, gain, deduction,
                                                  published in the Federal Register on                    section 197(f)(9) intangible property will             and loss ‘‘with respect to the section
                                                  December 16, 2016 (81 FR 91012).                        be recovered by the related partner only               721(c) property’’ to the U.S. transferor.
                                                     Another comment recommended that                     upon a sale or exchange of the property                Comments questioned the necessity of
                                                  regulations implementing the gain                       by the partnership. Generally, a transfer              the requirement to apply the consistent
                                                  deferral method require the partnership                 by the noncontributing related partner                 allocation method. Some comments


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                            7589

                                                  asserted that the requirement is                        i. Book Items of Income and Gain                       allocation is (i) an allocation of income
                                                  unnecessary because the built-in gain in                   Section 1.721(c)–3T(c)(2) provides the              or gain to the U.S. transferor (or a
                                                  section 721(c) property will be                         rule for determining the extent to which               member of its consolidated group); or
                                                  preserved in the difference between the                 partnership items of book income and                   (ii) an allocation of deduction or loss to
                                                  book and tax capital accounts of a U.S.                 gain are considered to be ‘‘with respect               a partner other than the U.S. transferor
                                                  transferor. The Treasury Department                     to’’ particular section 721(c) property for            (or a member of its consolidated group).
                                                  and the IRS have determined that                        purposes of applying the consistent                    In addition, if the allocation is not
                                                  remedial allocations alone are                          allocation method on a property-by-                    described in clause (i) or (ii) but the U.S.
                                                  insufficient to ensure that built-in gain               property basis. This rule provides that a              transferor receives less income or gain
                                                  with respect to section 721(c) property                 section 721(c) partnership must                        or more deductions or loss with respect
                                                  will be subject to U.S. tax. The                        attribute book income and gain to each                 to the section 721(c) property because of
                                                  consistent allocation method is                         property in a consistent manner using                  the regulatory allocation, the allocation
                                                  intended to prevent a U.S. transferor                   any reasonable method that takes into                  is treated as described in § 1.721(c)–
                                                  from rendering the remedial allocation                  account all the facts and circumstances.               5T(d)(2) (generally requiring that a
                                                  method ineffective by, for example,                     The temporary regulations provide that                 portion of remaining built-in gain be
                                                  having the partnership allocate a higher                all items of book income and gain                      recognized, as discussed in Paragraph
                                                  percentage share of book depreciation to                attributable to each property will                     d.2 of Part VIII of the Explanation of
                                                  the U.S. transferor (which would reduce                 comprise a single class of gross income                Provisions section of this preamble). See
                                                  the U.S. transferor’s remedial income                   for purposes of determining the extent                 § 1.721(c)–3T(c)(4)(i)(C). The Treasury
                                                  inclusion) than the U.S. transferor’s                   to which partnership items of deduction                Department and the IRS have
                                                  percentage share of income or gain with                 or loss are allocated and apportioned                  determined that this special rule for
                                                  respect to the property, which would                    with respect to the section 721(c)                     regulatory allocations is appropriate
                                                  result in shifting the gain (and taxable                property.                                              because an allocation described in
                                                  income) to related foreign persons that                                                                        clause (i) or (ii) will not reduce the U.S.
                                                  are direct or indirect partners in the                  ii. Book Items of Deduction and Loss                   tax base and an allocation described in
                                                  partnership. Therefore the temporary                       Section 1.721(c)–3T(c)(3) provides the              clause (iii) will result in the U.S.
                                                  regulations do not adopt this comment.                  rules for determining the extent to                    transferor recognizing gain that will
                                                  The temporary regulations provide rules                 which partnership items of book                        offset the reduction in the U.S. tax base
                                                  (discussed in Paragraph e.2 of this Part                deduction and loss are considered to be                resulting from the regulatory allocation.
                                                  VI) to determine the amount of income,                  ‘‘with respect to’’ particular section                    The temporary regulations provide
                                                  gain, deduction, and loss that is                       721(c) property for purposes of applying               that a regulatory allocation is (i) an
                                                  considered to be ‘‘with respect to                      the consistent allocation method. A                    allocation pursuant to a minimum gain
                                                  section 721(c) property’’ under the gain                section 721(c) partnership must use the                chargeback, as defined in § 1.704–
                                                  deferral method.                                        principles of §§ 1.861–8 and 1.861–8T                  2(b)(2), (ii) a partner nonrecourse
                                                     According to another comment, the                    to allocate and apportion all of its items             deduction, as determined in § 1.704–
                                                  consistent allocation method is both                    of deduction, except for interest expense              2(i)(2), (iii) an allocation pursuant to a
                                                  over-inclusive, in that situations in                   and research and experimental                          partner minimum gain chargeback, as
                                                  which a U.S. transferor is allocated                    expenditures (R&E), and loss to the class              described in § 1.704–2(i)(4), (iv) an
                                                  greater income than its share of                        of gross income with respect to each                   allocation pursuant to a qualified
                                                  deductions would violate the rule, and                  section 721(c) property. The section                   income offset, as defined in § 1.704–
                                                  under-inclusive, because deductions                     721(c) partnership may allocate and                    1(b)(2)(ii)(d), (v) an allocation with
                                                  allocated to a U.S. transferor that do not              apportion its interest expense and R&E                 respect to the exercise of a
                                                  arise from section 721(c) property are                  using any reasonable method, including,                noncompensatory option described in
                                                  beyond the scope of the rule. This                      but not limited to, the methods                        § 1.704–1(b)(2)(iv)(s), and (vi) an
                                                  comment proposed an alternative anti-                   described in §§ 1.861–9 and 1.861–9T                   allocation of partnership level ordinary
                                                  abuse rule that would require that a                    (interest expense) and § 1.861–17 (R&E).               income or loss described in § 1.751–
                                                  minimum cumulative amount of income                                                                            1(a)(3). The Treasury Department and
                                                  be allocated to a U.S. transferor. The                  3. Exceptions to the Consistent                        the IRS have determined that relief is
                                                  Treasury Department and the IRS have                    Allocation Method                                      appropriate for these regulatory
                                                  concluded that the rule described in the                   In response to comments, the                        allocations because, in general, partners
                                                  comment would be difficult to                           temporary regulations provide                          do not have discretion regarding their
                                                  administer. However, in response to                     exceptions from the requirement to                     application and, when necessary,
                                                  comments, the temporary regulations                     apply the consistent allocation method                 treating them as a partial acceleration
                                                  provide exceptions (discussed in                        with respect to certain book items of a                event will result in the appropriate
                                                  Paragraph e.3 of this Part VI) to the                   section 721(c) partnership.                            amount of gain being recognized for
                                                  consistent allocation method for certain                                                                       purposes of the gain deferral method.
                                                                                                          i. Regulatory Allocations
                                                  regulatory allocations and the                                                                                 The Treasury Department and the IRS
                                                  allocations of creditable foreign tax                      The temporary regulations provide                   have determined that relief is not
                                                  expenditures.                                           that a regulatory allocation (as defined               appropriate for a nonrecourse
                                                                                                          in § 1.721(c)–1T(b)(10)) of book income,               deduction, as defined in § 1.704–2(b)(1),
                                                  2. Determining Book Items With Respect                  gain, deduction, or loss with respect to               because, unlike the other types of
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                                                  to Section 721(c) Property                              section 721(c) property that otherwise                 regulatory allocations, partners have
                                                     The notice did not describe how                      would fail to satisfy the requirements of              significant discretion regarding the
                                                  partnership items are determined to be                  the consistent allocation method                       allocation of a nonrecourse deduction.
                                                  ‘‘with respect to section 721(c)                        nevertheless will, in certain cases, be
                                                  property.’’ The temporary regulations                   deemed to satisfy the requirements.                    ii. Creditable Foreign Tax Expenditures
                                                  provide guidance for making this                        Specifically, a regulatory allocation is                  The temporary regulations provide
                                                  determination based on principles that                  deemed to satisfy the requirements of                  that allocations of creditable foreign tax
                                                  will be familiar to many taxpayers.                     the consistent allocation method if the                expenditures (as defined in § 1.704–


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                                                  7590             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  1(b)(4)(viii)(b)) (CFTEs) are not subject               of the gain deferral method with respect               section 721(c) partnership will increase
                                                  to the consistent allocation method. See                to that property. See § 1.721(c)–                      its basis in the section 721(c) property
                                                  § 1.721(c)–3T(c)(4)(ii). The regulations                4T(b)(2)(i). For example, if section                   by the amount of gain recognized by the
                                                  governing the allocation of CFTEs take                  721(c) property is ECI property, an                    U.S. transferor. This basis increase is
                                                  into account section 704(c) income and                  acceleration event occurs if a                         made immediately before the
                                                  gain and are not based strictly on the                  distributive share of income or gain                   acceleration event. See § 1.721(c)–
                                                  allocation of book items. As a result, it               from the property that is allocated to a               4T(c)(2). If the section 721(c) property
                                                  would be difficult to apply the                         direct or indirect partner that is a                   remains in the partnership after the
                                                  consistent allocation method with                       related foreign person is no longer                    acceleration event, the increase in the
                                                  respect to CFTEs.                                       subject to taxation as income effectively              basis of the section 721(c) property
                                                  VII. Acceleration Events                                connected with a trade or business                     generally would be treated in the same
                                                                                                          within the United States or if the section             manner as newly purchased property,
                                                  a. Overview                                             721(c) partnership or a direct or indirect             including for purposes of determining
                                                     Section 1.721(c)–4T provides rules                   partner that is a related foreign person               the depreciation schedule if the
                                                  regarding acceleration events, which,                   claims certain benefits under an income                property is depreciable property.
                                                  like the gain deferral method, apply on                 tax treaty with respect to the income
                                                                                                                                                                 VIII. Acceleration Event Exceptions
                                                  a property-by-property basis. When an                   (see § 1.721(c)–3T(b)(1)(ii)).
                                                  acceleration event occurs with respect                     An acceleration event will not occur                a. In General
                                                  to section 721(c) property, remaining                   solely as a result of a failure to comply
                                                                                                          with a procedural or reporting                            Section 1.721(c)–5T identifies the
                                                  built-in gain in the property must be                                                                          following categories of exceptions to
                                                  recognized and the gain deferral method                 requirement of the gain deferral method
                                                                                                          if that failure is not willful and relief is           acceleration events, which, like
                                                  no longer applies. The temporary                                                                               acceleration events, apply on a
                                                  regulations provide exceptions to                       sought under the prescribed procedures.
                                                                                                          See §§ 1.721(c)–4T(b)(2)(ii) and                       property-by-property basis: (i)
                                                  acceleration events that are discussed in                                                                      Termination events, in which case, the
                                                  Part VIII of the Explanation of                         1.721(c)–6T(f).
                                                                                                                                                                 gain deferral method ceases to apply to
                                                  Provisions section of this preamble.                    3. Special Rule When Section 721(c)                    the section 721(c) property; (ii)
                                                  b. Definition of an Acceleration Event                  Property Is an Interest in a Partnership               successor events, in which case, the
                                                                                                             When section 721(c) property is an                  gain deferral method continues to apply
                                                  1. General Rules                                                                                               to the section 721(c) property but with
                                                                                                          interest in a partnership, the temporary
                                                     Subject to the exceptions described in               regulations provide that an acceleration               respect to a successor U.S. transferor or
                                                  Part VIII of the Explanation of                         event will not occur because of a                      a successor section 721(c) partnership,
                                                  Provisions section of this preamble,                    reduction in remaining built-in gain in                as applicable; (iii) partial acceleration
                                                  § 1.721(c)–4T(b)(1) defines an                          the partnership interest as a result of                events, in which case, a U.S. transferor
                                                  acceleration event as any event that                    allocations of book items of deduction                 recognizes an amount of gain that is less
                                                  would reduce the amount of remaining                    and loss or tax items of income and gain               than the full amount of remaining built-
                                                  built-in gain that a U.S. transferor would              by that partnership. See § 1.721(c)–                   in gain in the section 721(c) property
                                                  have recognized under the gain deferral                 4T(b)(3).                                              and the gain deferral method continues
                                                  method if the event had not occurred or                                                                        to apply; (iv) transfers described in
                                                  that could defer the recognition of the                 4. Deemed Acceleration Event                           section 367 of section 721(c) property to
                                                  remaining built-in gain. The temporary                     Under the temporary regulations, a                  a foreign corporation, in which case, the
                                                  regulations clarify that an acceleration                U.S. transferor may affirmatively treat                gain deferral method ceases to apply
                                                  event includes the transfer of section                  an acceleration event as having occurred               and a U.S. transferor recognizes an
                                                  721(c) property via a contribution of the               with respect to section 721(c) property                amount of gain equal to the remaining
                                                  property itself or through a contribution               by recognizing the remaining built-in                  built-in gain attributable to the portion
                                                  of a partnership interest.                              gain with respect to that property and                 of the section 721(c) property that is not
                                                                                                          satisfying the reporting required by                   subject to tax under section 367; and (v)
                                                  2. Failure To Comply With a
                                                                                                          § 1.721(c)–6T(b)(3)(iv). See § 1.721(c)–               fully taxable dispositions of a portion of
                                                  Requirement of the Gain Deferral
                                                                                                          4T(b)(4).                                              an interest in a section 721(c)
                                                  Method
                                                                                                          c. Consequences of an Acceleration                     partnership, in which case, the gain
                                                     The rules described in the notice                                                                           deferral method continues to apply for
                                                  would have provided that a failure to                   Event
                                                                                                                                                                 the retained portion of the interest.
                                                  comply with one of the requirements of                     Section 1.721(c)–4T(c) sets forth the
                                                  the gain deferral method with respect to                consequences of an acceleration event.                 b. Termination Events
                                                  any section 721(c) property would cause                 Specifically, the U.S. transferor must                 1. In General
                                                  an acceleration event for all section                   recognize gain in an amount equal to the
                                                  721(c) property. Comments requested                     remaining built-in gain that would have                   Section 1.721(c)–5T(b) identifies the
                                                  that the Treasury Department and the                    been allocated to the U.S. transferor if               events that cause the gain deferral
                                                  IRS eliminate this provision. Because                   the section 721(c) partnership had sold                method to no longer apply. The
                                                  the temporary regulations provide that                  the section 721(c) property immediately                Treasury Department and the IRS have
                                                  the gain deferral method is applied on                  before the acceleration event for fair                 determined that it is appropriate to
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                                                  a property-by-property basis (in lieu of                market value. Following the                            terminate the application of the gain
                                                  containing the unified application                      acceleration event, the section 721(c)                 deferral method with respect to the
                                                  requirement), the temporary regulations                 property will no longer be subject to the              affected section 721(c) property in these
                                                  adopt this comment.                                     gain deferral method.                                  cases because the potential to shift gain
                                                     Under the temporary regulations, an                     The U.S. transferor generally must                  or income to a related foreign person
                                                  acceleration event with respect to                      make correlative adjustments to its basis              that is a direct or indirect partner in the
                                                  section 721(c) property occurs when any                 in its partnership interest. See                       section 721(c) partnership has been
                                                  party fails to comply with a requirement                § 1.721(c)–4T(c)(1). In addition, the                  eliminated.


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                            7591

                                                  2. Transfers of Section 721(c) Property                 if a section 721(c) partnership                        intercompany transaction (as defined in
                                                  (Other Than a Partnership Interest) to a                distributes section 721(c) property to the             § 1.1502–13(b)(1)). See § 1.721(c)–
                                                  Domestic Corporation Described in                       U.S. transferor. A termination event will              5T(b)(7). See, however, Paragraph c.2 of
                                                  Section 351                                             also occur if a section 721(c) partnership             this Part VIII, which describes the rule
                                                    The temporary regulations provide                     distributes section 721(c) property to a               in § 1.721(c)–5T(c)(3) that provides that
                                                                                                          member of a U.S. transferor’s                          such a transaction may be a successor
                                                  that a termination event occurs if a
                                                                                                          consolidated group and the distribution                event.
                                                  section 721(c) partnership transfers
                                                                                                          occurs more than seven years after the
                                                  section 721(c) property other than a                                                                           c. Successor Events
                                                                                                          contribution. See § 1.721(c)–5T(b)(4).
                                                  partnership interest to a domestic
                                                  corporation in a transaction to which                   5. Section 721(c) Partnership Ceases to                1. In General
                                                  section 351 applies. See § 1.721(c)–                    Have a Related Foreign Person Partner                     Section 1.721(c)–5T(c) identifies the
                                                  5T(b)(2).                                                  In response to a comment, the                       successor events that allow for the
                                                                                                          temporary regulations generally provide                continued application of the gain
                                                  3. Certain Incorporations of a Section
                                                                                                          that a termination event occurs when a                 deferral method. In each of these cases,
                                                  721(c) Partnership
                                                                                                          section 721(c) partnership ceases to                   it is appropriate to continue application
                                                     A comment questioned whether the                     have any direct or indirect partners that              of the gain deferral method (rather than
                                                  rules described in the notice would                     are related foreign persons, provided                  accelerate gain recognition), because its
                                                  exempt from the definition of an                        there is no plan for a related foreign                 application can be preserved in the
                                                  acceleration event certain transactions                 person to subsequently become a direct                 hands of a successor U.S. transferor or
                                                  after which the partnership ceases to                   or indirect partner in the partnership (or             a successor section 721(c) partnership,
                                                  exist, such as those described in Rev.                  a successor). See § 1.721(c)–5T(b)(5).                 as applicable. If, however, the successor
                                                  Rul. 84–111, 1984–2 C.B. 88 (describing                 The no-plan requirement applies                        does not continue the gain deferral
                                                  three methods for incorporating a                       independently of the general anti-abuse                method, the event is an acceleration
                                                  partnership). See § 601.601(d)(2)(ii)(b).               rule under § 1.721(c)–1T(d). An                        event. If only a portion of an interest in
                                                  The temporary regulations provide that                  acceleration event, however, occurs                    a partnership is transferred in a
                                                  a termination event occurs upon an                      upon a distribution of section 721(c)                  successor event, the principles of
                                                  incorporation of a section 721(c)                       property in redemption of a related                    § 1.704–3(a)(7) apply to determine the
                                                  partnership into a domestic corporation                 foreign person’s interest in a section                 remaining built-in gain in section 721(c)
                                                  by any method of incorporation other                    721(c) partnership.                                    property that is attributable to the
                                                  than a method involving an actual                                                                              portion of the interest that is transferred
                                                  distribution of partnership property to                 6. Fully Taxable Dispositions of Section               and the portion that is retained. See
                                                  the partners, followed by a contribution                721(c) Property or of an Entire Interest               § 1.721(c)–5T(c)(1).
                                                  of that property to a corporation,                      in a Section 721(c) Partnership
                                                  provided that the section 721(c)                           The notice treated a taxable                        2. A Domestic Corporation Becomes a
                                                  partnership is liquidated as part of the                disposition of section 721(c) property by              Successor U.S. Transferor
                                                  incorporation transaction. See                          a section 721(c) partnership, or an                       The temporary regulations provide
                                                  § 1.721(c)–5T(b)(3).                                    indirect disposition of section 721(c)                 that a successor event occurs if either a
                                                                                                          property through a taxable disposition                 U.S. transferor or a partnership in which
                                                  4. Certain Distributions of Section
                                                                                                          of an interest in a section 721(c)                     a U.S. transferor is a direct or indirect
                                                  721(c) Property
                                                                                                          partnership interest, as an acceleration               partner transfers (directly or indirectly
                                                     A comment questioned whether an                      event. The Treasury Department and the                 through one or more partnerships) an
                                                  acceleration event should occur as a                    IRS have determined that it is                         interest in a section 721(c) partnership
                                                  result of a distribution of section 721(c)              appropriate instead to treat a fully                   to a domestic corporation in a
                                                  property to a partner other than a U.S.                 taxable disposition of section 721(c)                  transaction to which section 351 or 381
                                                  transferor outside of the seven-year                    property or of an entire interest in a                 applies, and the gain deferral method is
                                                  period described in sections 704(c)(1)(B)               section 721(c) partnership as a                        continued by treating the transferee
                                                  and 737 (rules that address certain                     termination event because other                        domestic corporation as the U.S.
                                                  distributions of property within seven                  sections of the Code require gain to be                transferor. See § 1.721(c)–5T(c)(2).
                                                  years of a contribution). While sections                recognized.                                               In addition, a successor event occurs
                                                  704(c)(1)(B) and 737 also are intended to                  Accordingly, the temporary                          if a U.S. transferor that is a member of
                                                  ensure that gain on contributed property                regulations provide that a termination                 a consolidated group transfers (directly
                                                  is not inappropriately transferred to a                 event occurs if a section 721(c)                       or indirectly through one or more
                                                  partner other than the contributor, in                  partnership disposes of section 721(c)                 partnerships) an interest in a section
                                                  the context of contributions to                         property in a transaction in which all                 721(c) partnership to another member in
                                                  partnerships with related foreign                       gain or loss, if any, is recognized. See               an intercompany transaction (as defined
                                                  partners, the Treasury Department and                   § 1.721(c)–5T(b)(6). In addition, a                    in § 1.1502–13(b)(1)), and the gain
                                                  the IRS have determined that concerns                   termination event occurs if either a U.S.              deferral method is continued by treating
                                                  about the erosion of the U.S. tax base                  transferor or a partnership in which a                 the transferee member as the U.S.
                                                  remain as long as there is remaining                    U.S. transferor is a direct or indirect                transferor. See § 1.721(c)–5T(c)(3).
                                                  built-in gain in the section 721(c)                     partner disposes of an entire interest in
                                                                                                                                                                 3. Technical Termination of a Section
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                                                  property. Accordingly, the Treasury                     a section 721(c) partnership that owns
                                                  Department and the IRS have                             section 721(c) property in a transaction               721(c) Partnership
                                                  determined that it is inappropriate to                  in which all gain or loss, if any, is                    In response to comments, the
                                                  provide a termination event exception                   recognized. This rule does not apply if                temporary regulations provide that a
                                                  for all distributions of section 721(c)                 a U.S. transferor is a member of a                     successor event occurs if there is a
                                                  property after seven years.                             consolidated group and the interest in                 technical termination of a section 721(c)
                                                     The temporary regulations, however,                  the section 721(c) partnership is                      partnership, and the gain deferral
                                                  provide that a termination event occurs                 transferred to another member in an                    method is continued by treating the new


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                                                  7592             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  partnership as the section 721(c)                       respect to the section 721(c) property in              PS2 does not apply the gain deferral
                                                  partnership. See § 1.721(c)–5T(c)(4).                   the hands of the section 721(c)                        method. In this case, USP will recognize
                                                  Although a technical termination will                   partnership; (iii) if the upper-tier                   $8 million of gain, which is the amount
                                                  cause the depreciation schedule to be                   partnership directly owns its interest in              of the remaining built-in gain that
                                                  reset with respect to any depreciable                   the section 721(c) partnership, the gain               would have been allocated to USP if
                                                  section 721(c) property of the                          deferral method is applied with respect                PS1 had sold asset A immediately
                                                  terminated section 721(c) partnership,                  to the upper-tier partnership’s interest               before the PS1 contribution for fair
                                                  and thus defer the recognition of                       in the section 721(c) partnership and the              market value, and PS1 will increase its
                                                  remaining built-in gain, the Treasury                   upper-tier partnership is, or is treated               tax basis in asset A from $0 to $8
                                                  Department and the IRS have concluded                   as, a section 721(c) partnership; and (iv)             million. See § 1.721(c)–4T(c).
                                                  that this should not cause an                           if the upper-tier partnership indirectly               Furthermore, the PS1 contribution will
                                                  acceleration event. In this case,                       owns its interest in the section 721(c)                be subject to the general gain
                                                  however, the general anti-abuse rule                    partnership through one or more                        recognition rule under § 1.721(c)–2T(b)
                                                  under § 1.721(c)–1T(d) may apply,                       partnerships, the principles described in              because PS2 is a section 721(c)
                                                  depending on the facts relating to the                  clause (iii) are applied with respect to               partnership and asset A is section 721(c)
                                                  technical termination.                                  the upper-tier partnership and each                    property. PS1’s realized gain with
                                                                                                          partnership through which the upper-                   respect to asset A that will not qualify
                                                  4. A Partnership Becomes a Successor
                                                                                                          tier partnership indirectly owns an                    for nonrecognition under section 721(a)
                                                  Section 721(c) Partnership
                                                                                                          interest in the section 721(c)                         is $4 million (fair market value of $12
                                                     The temporary regulations provide                    partnership. See § 1.721(c)–5T(c)(5)(ii).              million less adjusted tax basis of $8
                                                  two other categories of successor events                   Both categories of successor events                 million) and PS1 will allocate half of
                                                  that involve successor section 721(c)                   involve tiered partnerships. Therefore,                that gain to USP.
                                                  partnerships. In each case, section                     pursuant to § 1.721(c)–3T(b)(5), the
                                                  721(c) property is directly or indirectly               rules for tiered partnerships (described               d. Partial Acceleration Events
                                                  contributed to a successor section 721(c)               in § 1.721(c)–3T(d)) must be applied in                1. In General
                                                  partnership and the gain deferral                       order to satisfy the requirements to
                                                  method is applied down the chain of                     apply the gain deferral method as                         Section 1.721(c)–5T(d) identifies the
                                                  ownership with the result that the                      required under the rules described in                  partial acceleration events, and, in each
                                                  remaining built-in gain will continue to                the two preceding paragraphs.                          case, the amount of gain that a U.S.
                                                  be subject to U.S. tax.                                    To illustrate, consider the following               transferor must recognize. The basis
                                                     In the first category, a successor event             simplified example: In year 1, USP, a                  adjustments in § 1.721(c)–4T(c) that
                                                  occurs if (i) a section 721(c) partnership              domestic corporation, and CFC1, a                      must be made by a U.S. transferor and
                                                  contributes section 721(c) property to a                wholly owned foreign subsidiary of                     a section 721(c) partnership upon a
                                                  lower-tier partnership that is a                        USP, form PS1, a partnership, as equal                 ‘‘full’’ acceleration event also apply for
                                                  controlled partnership; (ii) the gain                   partners. USP contributes section 721(c)               a partial acceleration event, except in
                                                  deferral method is applied both with                    property, asset A, a depreciable asset                 the case of a partial acceleration that
                                                  respect to the section 721(c)                           with a $10 million built-in gain (fair                 occurs as a result of an adjustment
                                                  partnership’s interest in the lower-tier                market value of $10 million and tax                    under section 734 to section 721(c)
                                                  partnership and with respect to the                     basis of zero) (USP contribution). PS1 is              property, as described in Paragraph d.3
                                                  section 721(c) property in the hands of                 a section 721(c) partnership as a result               of this Part VIII. If there is remaining
                                                  the lower-tier partnership; and (iii) the               of the USP contribution, and the gain                  built-in gain in the section 721(c)
                                                  lower-tier partnership either is a section              deferral method is applied with respect                property immediately after the partial
                                                  721(c) partnership, or is a controlled                  to asset A. In year 2, PS1 and CFC1 form               acceleration event, the gain deferral
                                                  partnership that fails the ownership                    PS2, a partnership, as equal partners.                 method must continue to apply
                                                  requirement but is treated as a section                 PS1 contributes asset A to PS2 (PS1                    following the partial acceleration event.
                                                  721(c) partnership. See § 1.721(c)–                     contribution) when asset A has                         2. Regulatory Allocations
                                                  5T(c)(5)(i). In the case in which the                   remaining built-in gain of $8 million
                                                  lower-tier partnership is a controlled                  and a fair market value of $12 million                    Section 1.721(c)–3T(c)(4)(i)(C)
                                                  partnership but not a section 721(c)                    (the tax basis is still zero). PS2 is a                provides that a regulatory allocation that
                                                  partnership, the Treasury Department                    section 721(c) partnership as a result of              results in an over-allocation of book
                                                  and the IRS have determined that it is                  the PS1 contribution. The PS1                          deduction or loss to a U.S. transferor or
                                                  appropriate to allow the parties to                     contribution will be a successor event                 an under-allocation of book income or
                                                  continue to apply the gain deferral                     with respect to asset A if PS2 applies                 gain to a U.S. transferor will
                                                  method to the section 721(c) property,                  the gain deferral method to asset A and                nevertheless be treated as satisfying the
                                                  rather than triggering an acceleration                  PS1 applies the gain deferral method to                consistent allocation method if gain is
                                                  event, provided the parties treat the                   its interest in PS2 as described in                    recognized. See the discussion in
                                                  lower-tier partnership as a section                     § 1.721(c)–5T(c)(5)(i). The remaining                  Paragraph e.3.i of Part VI of the
                                                  721(c) partnership for purposes of                      built-in gain in asset A in the hands of               Explanation of Provisions section of this
                                                  applying the gain deferral method.                      PS2 will be $12 million (excess of book                preamble. In order for such a regulatory
                                                     In the second category, a successor                  value of $12 million over PS2’s adjusted               allocation to be deemed to satisfy the
                                                  event occurs if (i) either a U.S. transferor            tax basis of $0). If PS2 sells the property,           consistent allocation method, the U.S.
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                                                  or a partnership in which a U.S.                        PS2 will allocate $12 million to PS1,                  transferor must recognize an amount of
                                                  transferor is a direct or indirect partner              and PS1 will allocate $10 million of the               gain equal to the amount of the
                                                  contributes (directly or indirectly                     gain to USP ($8 million of which would                 allocation that, had the regulatory
                                                  through one or more partnerships) an                    be allocated under § 1.704–3(a)(9)).                   allocation not occurred, would have
                                                  interest in a section 721(c) partnership                   On the other hand, the PS1                          been allocated to the U.S. transferor in
                                                  to an upper-tier partnership that is a                  contribution will be an acceleration                   the case of income or gain, or would not
                                                  controlled partnership; (ii) the gain                   event (rather than a successor event)                  have been allocated to the U.S.
                                                  deferral method is continued with                       with respect to asset A if either PS1 or               transferor in the case of deduction or


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                          7593

                                                  loss. See § 1.721(c)–5T(d)(2). However,                 determined that this result is                         IX. Tiered Partnerships Rules
                                                  the amount of gain recognized is limited                appropriate because to the extent any                  a. Overview
                                                  to the amount of the remaining built-in                 U.S. transferor is treated as transferring
                                                  gain that would have been allocated to                  the section 721(c) property to the                        This Part IX discusses the application
                                                  the U.S. transferor upon a hypothetical                 foreign corporation for purposes of                    of the gain deferral method to tiered
                                                  sale by the section 721(c) partnership of               section 367, the tax consequences will                 partnerships. The temporary regulations
                                                  that portion of the property immediately                be determined under section 367. In this               employ two general principles in
                                                  before the regulatory allocation is made                regard, see §§ 1.367(a)–1T(c)(3)(i) and                applying the gain deferral method to
                                                  for fair market value.                                  (ii), 1.367(d)–1T(d)(1), and 1.367(e)–                 tiered partnerships. First, if the section
                                                                                                                                                                 721(c) property is an interest in a
                                                  3. Distributions of Other Partnership                   2(b)(1)(iii) (in general, providing an
                                                                                                                                                                 partnership, the contribution of that
                                                  Property to a Partner That Result in an                 aggregate treatment of partnerships for
                                                                                                                                                                 partnership interest, and not the
                                                  Adjustment Under Section 734                            purposes of applying the outbound
                                                                                                                                                                 indirect contribution of the underlying
                                                     The temporary regulations provide                    transfer provisions under section 367).                property of the lower-tier partnership, to
                                                  that a partial acceleration event occurs                Furthermore, for the remaining portion                 a section 721(c) partnership is subject to
                                                  if there is a distribution of other                     of the property (which is the portion                  section 721(c), and the gain deferral
                                                  property by a section 721(c) partnership                attributable to non-U.S. persons and                   method applies to the contribution of
                                                  that results in a positive basis                        therefore not subject to tax under                     the interest. Second, the gain deferral
                                                  adjustment to section 721(c) property                   section 367), the U.S. transferor must                 method must also be adopted at all
                                                  under section 734. In these cases, the                  recognize an amount of gain equal to the               levels in the ownership chain.
                                                  U.S. transferor must recognize an                       remaining built-in gain that would have                   These principles, however, raise
                                                  amount of gain equal to the positive                    been allocated to the U.S. transferor                  various issues in applying the gain
                                                  basis adjustment to the section 721(c)                  upon a hypothetical sale by the section                deferral method to tiered partnerships:
                                                  property under section 734. However,                    721(c) partnership of that portion of the              (i) Not all partnerships in the ownership
                                                  the amount of gain recognized is limited                property immediately before the transfer               chain will necessarily be section 721(c)
                                                  to the amount of the remaining built-in                 for fair market value. The basis                       partnerships; (ii) when the book value of
                                                  gain that would have been allocated to                  adjustments in § 1.721(c)–4T(c) that                   an interest in a partnership reflects
                                                  the U.S. transferor upon a hypothetical                 must be made by a U.S. transferor and                  appreciation in the property of the
                                                  sale by the section 721(c) partnership of               a section 721(c) partnership upon a                    lower-tier partnership that has not yet
                                                  that portion of the property immediately                ‘‘full’’ acceleration event also apply in              been reflected in the book value of the
                                                  before the regulatory allocation is made                this case. If stock in the transferee                  property, there will be a discrepancy
                                                  for fair market value. Furthermore, if the              foreign corporation is received by a                   between the built-in gain in the
                                                  property that triggered the section 734                 section 721(c) partnership, the stock                  partnership interest and the built-in
                                                  adjustment was distributed to the U.S.                                                                         gain in the underlying property; (iii) an
                                                                                                          will not be subject to the gain deferral
                                                  transferor or a member of its                                                                                  upper-tier partnership’s allocation of its
                                                                                                          method.
                                                  consolidated group, the amount                                                                                 distributive share of certain lower-tier
                                                  described in the preceding sentence is                  f. Fully Taxable Dispositions of a                     partnership items must comply with
                                                  reduced (but not below zero) by the                     Portion of an Interest in a Section 721(c)             § 1.704–3(a)(9) (concerning the
                                                  amount of gain recognized by the U.S.                   Partnership                                            application of section 704(c) to tiered
                                                  transferor (or the consolidated group                                                                          partnerships) and with the consistent
                                                  member) under section 731(a). See                          Section 1.721(c)–5T(f) provides a                   allocation method; and (iv) a
                                                  § 1.721(c)–5T(d)(3). The amount of gain                 special rule when there is a fully taxable             partnership whose interest is section
                                                  recognized as a result of the acceleration              disposition of a portion of an interest in             721(c) property that is contributed to a
                                                  event is not reduced by any step-down                   a section 721(c) partnership.                          section 721(c) partnership may have
                                                  to distributed property described by                    Specifically, if a U.S. transferor or a                previously adopted a method other than
                                                  section 734(b)(1)(B). The partnership                   partnership in which a U.S. transferor is              the remedial allocation method with
                                                  will not increase its basis under                       a direct or indirect partner disposes of               respect to its underlying section 704(c)
                                                  § 1.721(c)–4T(c)(2) for the gain                        (directly or indirectly through one or                 property.
                                                  recognized by the U.S. transferor.                      more partnerships) a portion of an                        To address these issues, the
                                                  e. Section 367 Transfers of Section                     interest in a section 721(c) partnership               temporary regulations specify
                                                  721(c) Property to a Foreign Corporation                in a transaction in which all gain or                  requirements that must be satisfied, in
                                                                                                          loss, if any, is recognized, an                        addition to all the other requirements to
                                                     Section 1.721(c)–5T(e) provides rules
                                                                                                          acceleration event will not occur with                 apply the gain deferral method, in order
                                                  for certain direct and indirect transfers
                                                  of section 721(c) property to a foreign                 respect to the portion of the interest                 for the gain deferral method to be
                                                  corporation. These rules apply if a                     transferred. The gain deferral method                  applied to tiered partnerships. See
                                                  section 721(c) partnership transfers                    will continue to apply with respect to                 § 1.721(c)–3T(b)(5) (the last requirement
                                                  section 721(c) property, or if a U.S.                   the section 721(c) property of the                     to apply the gain deferral method).
                                                  transferor or a partnership in which a                  section 721(c) partnership. The                        b. Additional Requirements for
                                                  U.S. transferor is a direct or indirect                 principles of § 1.704–3(a)(7) will apply               Applying the Gain Deferral Method
                                                  partner transfers (directly or indirectly               to determine the remaining built-in gain
                                                                                                                                                                 1. In General
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                                                  through one or more partnerships) an                    in section 721(c) property that is
                                                  interest in a section 721(c) partnership,               attributable to the portion of the interest               For purposes of applying the gain
                                                  to a foreign corporation in a transaction               in a section 721(c) partnership that is                deferral method, the temporary
                                                  described in section 367. In this case,                 retained. This rule does not apply to an               regulations address the conditions
                                                  the underlying section 721(c) property                  intercompany transaction (as defined in                required to be satisfied by upper-tier
                                                  will no longer be subject to the gain                   § 1.1502–13(b)(1)). See § 1.721–5T(c)(3).              partnerships and lower-tier partnerships
                                                  deferral method. The Treasury                           See also the discussion in Paragraph c.2               involved in tiered-partnership
                                                  Department and the IRS have                             of this Part VIII.                                     transactions to ensure that the gain


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                                                  7594             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  deferral method is applied at all levels                controlled partnership, must apply the                 gain deferral method if the section
                                                  in the ownership chain and the                          gain deferral method to its interest in                721(c) property that is contributed to a
                                                  allocation of partnership items up the                  the lower-tier section 721(c)                          section 721(c) partnership is an interest
                                                  chain correctly traces the built-in gain to             partnership. If the upper-tier                         in a lower-tier partnership. The lower-
                                                  the U.S. transferor. See § 1.721(c)–3T(d).              partnership is not a section 721(c)                    tier partnership need not be a section
                                                  In the base case in which a U.S.                        partnership, it is deemed to be so, and                721(c) partnership. First, the lower-tier
                                                  transferor directly contributes section                 the interest in the lower-tier section                 partnership, if it is a controlled
                                                  721(c) property to a section 721(c)                     721(c) partnership is deemed to be                     partnership with respect to a U.S.
                                                  partnership, the U.S. transferor will                   section 721(c) property. See § 1.721(c)–               transferor, must revalue all of its
                                                  recognize gain under the general rule in                1T(b)(14)(ii) and (b)(15)(ii).                         property under § 1.704–1T(b)(2)(iv)(f)(6)
                                                  these temporary regulations unless the                     For the upper-tier partnership to                   if the revaluation would result in a new
                                                  gain deferral method is applied to the                  apply the gain deferral method to the                  positive reverse section 704(c) layer in
                                                  contribution. The same principle                        interest in the lower-tier partnership,                at least one property that is not
                                                  applies when section 721(c) property is                 § 1.704–3T(a)(13)(ii) provides that the                excluded property (revaluation
                                                  indirectly (through an upper-tier                       upper-tier partnership must treat its                  requirement). If the lower-tier
                                                  partnership) contributed by a U.S.                      distributive share of lower-tier                       partnership is not a section 721(c)
                                                  transferor to a section 721(c) partnership              partnership items of gain, loss, and                   partnership, it will be deemed to be so
                                                  and the partnership look-through rule in                amortization, depreciation, or other cost              upon the revaluation. See § 1.721(c)–
                                                  § 1.721(c)–2T(d)(1) applies, in which                   recovery deductions with respect to a                  1T(b)(14)(ii).
                                                  case, the tiered-partnership rules in                   lower-tier partnership’s section 721(c)                   The revaluation requirement ensures,
                                                  § 1.721(c)–3T(d)(2) apply to the                        property as though they were items of                  to the greatest extent possible, that all
                                                  transferor upper-tier partnership and all               gain, loss, and amortization,                          appreciation in the underlying property
                                                  controlled partnerships above it in the                 depreciation, or other cost recovery with              of a lower-tier partnership that is
                                                  ownership chain. In addition, when the                  respect to the upper-tier partnership’s                reflected in the book value of the
                                                  section 721(c) property is an interest in               interest in the lower-tier partnership.                partnership interest in the lower-tier
                                                  a partnership, the tiered-partnership                   Section 1.704–3T(a)(13)(ii) is intended                partnership is subject to the temporary
                                                  rules in § 1.721(c)–3T(d)(1) apply to the               to reach the same result as if an                      regulations to the same extent that
                                                  partnership whose interest is transferred               aggregate approach governed the                        appreciation would be subject to the
                                                  and all controlled partnerships below it                application of § 1.704–3(a)(9) in the                  temporary regulations if the property of
                                                  in the ownership chain. Therefore,                      context of the gain deferral method.                   the lower-tier partnership (rather than
                                                  when a partnership interest described in                Section 1.704–3(a)(9) provides that if a               the interest in the lower-tier
                                                  the preceding sentence is indirectly                    partnership contributes section 704(c)                 partnership) were contributed.
                                                  contributed by a U.S. transferor and the                property to a lower-tier partnership, or                  Second, the lower-tier partnership
                                                  partnership look-through rule applies,                  if a partner that receives a partnership               must apply the gain deferral method
                                                  the rules of both § 1.721(c)–3T(d)(1) and               interest in exchange for contributed                   with respect to each property (other
                                                  (2) apply.                                              property subsequently contributes the                  than excluded property) for which there
                                                                                                          partnership interest to an upper-tier                  is a new positive reverse section 704(c)
                                                  2. Indirect Contribution of Section                     partnership, the upper-tier partnership                layer as a result of the revaluation. A
                                                  721(c) Property                                         must allocate its distributive share of                property with a new positive reverse
                                                     Section 1.721(c)–3T(d)(2) provides the               lower-tier partnership items with                      section 704(c) layer is deemed to be
                                                  additional requirements for applying the                respect to that section 704(c) property in             section 721(c) property, and the
                                                  gain deferral method if the section                     a manner that takes into account the                   remaining built-in gain includes the
                                                  721(c) property is indirectly contributed               contributing partner’s remaining built-in              new positive reverse section 704(c)
                                                  by a U.S. transferor to a section 721(c)                gain or loss. The Treasury Department                  layer. See § 1.721(c)–1T(b)(15)(ii) and
                                                  partnership and the partnership look-                   and the IRS considered comments about                  (b)(13)(ii), respectively. Although
                                                  through rule applies. In particular, this               aggregate treatment that were received                 § 1.721(c)–3T(b)(1)(i)(A) requires the
                                                  rule applies if an upper-tier partnership               on Notice 2009–70, 2009–34 I.R.B. 255,                 application of the remedial allocation
                                                  in which a U.S. transferor is a direct or               in developing the rule in § 1.704–                     method to the remaining built-in gain, a
                                                  indirect partner contributes section                    3T(a)(13)(ii). This rule applies only to a             lower-tier partnership may apply the
                                                  721(c) property to a lower-tier section                 tiered-partnership structure that has at               gain deferral method by adopting the
                                                  721(c) partnership. The upper-tier                      least one section 721(c) partnership and               remedial allocation method only for the
                                                  partnership need not be a section 721(c)                to which the gain deferral method is                   positive reverse section 704(c) layer if
                                                  partnership for the partnership look-                   applied. The Treasury Department and                   the partnership has previously adopted
                                                  through rule to apply, but, in order for                the IRS intend no inference regarding                  a section 704(c) method other than the
                                                  the upper-tier partnership to avoid                     the application of § 1.704–3(a)(9) to                  remedial method for the property.
                                                  immediate gain recognition under the                    partnerships not applying the gain                     Accordingly, the lower-tier partnership
                                                  general gain recognition rule, the lower-               deferral method.                                       may continue to apply a different,
                                                  tier section 721(c) partnership must                       If the U.S. transferor is an indirect               historical section 704(c) method to
                                                  apply the gain deferral method to the                   partner in the upper-tier partnership                  forward section 704(c) layers or to pre-
                                                  contributed property. This application                  through one or more partnerships, these                existing reverse section 704(c) layers, as
                                                  of the gain deferral method has several                 requirements must be satisfied by each                 applicable, and still satisfy the
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                                                  additional requirements. First, the                     controlled partnership in the chain of                 requirements of the gain deferral
                                                  lower-tier section 721(c) partnership                   ownership between the upper-tier                       method. For further discussion of the
                                                  must treat the upper-tier partnership                   partnership and the U.S. transferor.                   revaluation requirement and the
                                                  (which is not necessarily a section                                                                            definition of a controlled partnership,
                                                  721(c) partnership) as the U.S. transferor              3. Contribution of an Interest in a                    see Paragraph c of this Part IX.
                                                  solely for purposes of applying the                     Partnership                                               Third, the lower-tier partnership must
                                                  consistent allocation method. Second,                      Section 1.721(c)–3T(d)(1) provides the              treat a partner that is a partnership in
                                                  the upper-tier partnership, if it is a                  additional requirements for applying the               which the U.S. transferor is a direct or


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           7595

                                                  indirect partner as the U.S. transferor                 partnership to revalue its property if the             have a reporting obligation under
                                                  solely for purposes of applying the                     revaluation is a condition for applying                section 6038B with respect to a transfer
                                                  consistent allocation requirement. As a                 the gain deferral method. When                         of property to a foreign partnership and
                                                  result, the lower-tier partnership must                 multiple partnerships revalue their                    that are seeking relief under the
                                                  allocate its book items to the deemed                   property, the revaluations occur in order              reasonable cause exception, not only for
                                                  U.S. transferor under the consistent                    from the lowest-tier partnership to the                U.S. transferors described in the section
                                                  allocation method. Regardless of the                    highest-tier partnership.                              721(c) regulations. The reasonable cause
                                                  number of tiers of partnerships in the                    If a partnership revalues its property,              procedure in the temporary regulations
                                                  chain, the tiered-partnership rules are                 § 1.704–3T(a)(13)(i) provides that the                 applies to all requests for reasonable
                                                  intended to cause the U.S. transferor                   principles of § 1.704–3(a)(9) shall apply              cause relief (regardless of the date on
                                                  that contributed (directly or indirectly)               to any reverse section 704(c) allocations              which the contribution or the failure to
                                                  the lower-tier partnership interest to the              made as a result of the revaluation.                   file occurred) filed on or after January
                                                  section 721(c) partnership to be the                      In developing the revaluation                        18, 2017.
                                                  person to recognize gain upon an                        requirement and § 1.704–3T(a)(13)(i),                     In addition to adopting the current
                                                  acceleration event.                                     the Treasury Department and the IRS                    requirements of § 1.6038B–2(c), the
                                                     If the lower-tier partnership owns                   considered comments received on                        temporary regulations require reporting
                                                  (directly or indirectly through one or                  revaluation rules in proposed                          necessary to demonstrate compliance
                                                  more partnerships) one or more                          regulations under section 751(b) that are              with the gain deferral method. In
                                                  partnerships that are controlled                        contained in a notice of proposed                      general, the temporary regulations
                                                  partnerships with respect to the U.S.                   rulemaking (REG–151416–06) published                   require a U.S. transferor to report
                                                  transferor, these three requirements                    on November 3, 2014, in the Federal                    information on a statement included on
                                                  must be satisfied by each controlled                    Register (79 FR 65151). See proposed                   (or attached to) the Form 8865,
                                                  partnership.                                            §§ 1.704–1(b)(2)(iv)(f) and 1.704–3(a)(9).             Schedule O, Transfer of Property to a
                                                                                                          X. Procedural and Reporting                            Foreign Partnership. The Treasury
                                                  c. Revaluation Requirement
                                                                                                          Requirements                                           Department and the IRS intend that the
                                                     In recognition of the possibility that a                                                                    Schedule O will be revised to include
                                                  U.S. transferor may not be able to cause                  To comply with the gain deferral                     the information required by the
                                                  a lower-tier partnership to revalue its                 method, the notice described                           temporary regulations.
                                                  property when a partnership interest is                 regulations that would be issued                          For purposes of the U.S. transferor’s
                                                  contributed to an upper-tier partnership,               requiring reporting of a gain deferral                 reporting requirements under
                                                  the revaluation requirement is limited to               contribution and annual reporting with                 § 1.721(c)–6T with respect to a gain
                                                  those lower-tier partnerships that are                  respect to the section 721(c) property to              deferral contribution to a domestic
                                                  controlled partnerships with respect to                 which the gain deferral method applies.                section 721(c) partnership, a domestic
                                                  the U.S. transferor. Control is a facts-                The notice requested comments on                       section 721(c) partnership will generally
                                                  and-circumstances test, except that the                 whether the regulations should provide                 be treated as foreign under section
                                                  U.S. transferor and related persons will                rules similar to those in the regulations              7701(a)(4) for reporting purposes. See
                                                  be deemed to control a partnership in                   under sections 367(a) and 6038B                        §§ 1.721(c)–6T(b)(4) and 1.6038B–
                                                  which those persons, in the aggregate,                  regarding failures to file gain                        2T(a)(1)(iii). As a result, a U.S.
                                                  own (directly or indirectly through one                 recognition agreements or to satisfy                   transferor that contributes section 721(c)
                                                  or more partnerships) more than 50                      other reporting obligations, including                 property to a domestic section 721(c)
                                                  percent of the interests in partnership                 the standards for relief therein. See T.D.             partnership in a gain deferral
                                                  capital or profits. See § 1.721(c)–                     9704 (79 FR 68763) (the 2014 GRA                       contribution must file a Form 8865,
                                                  1T(b)(4).                                               regulations). Comments were received                   Return of U.S. Persons With Respect to
                                                     The definition of built-in gain in the               expressing support for this approach.                  Certain Foreign Partnerships (including
                                                  notice excluded revaluation gain                                                                               Form 8865, Schedule O, Transfer of
                                                  because a reverse section 704(c) layer                  a. Reporting and Procedural
                                                                                                                                                                 Property to a Foreign Partnership), with
                                                  with respect to property does not arise                 Requirements for the Year of the Gain
                                                                                                                                                                 its return for the taxable year that
                                                  on the contribution of that property.                   Deferral Contribution
                                                                                                                                                                 includes the date of the gain deferral
                                                  However, a partnership that does not                       The temporary regulations implement                 contribution.
                                                  create and apply the remedial method to                 the rules described in the notice in a                    Also as a requirement of the gain
                                                  a positive reverse section 704(c) layer                 manner consistent with the approach in                 deferral method, the temporary
                                                  created on the contribution of a lower-                 the 2014 GRA regulations. For a U.S.                   regulations require that the U.S.
                                                  tier partnership interest to an upper-tier              transferor, the reporting requirements                 transferor agree to extend the period of
                                                  partnership may shift the tax                           include, among other information, the                  limitations on the assessment of tax for
                                                  consequences of a portion of the built-                 information required to be filed under                 eight full taxable years with respect to
                                                  in gain to a partner that is a related                  section 6038B. The temporary                           the gain realized but not recognized on
                                                  foreign person. The Treasury                            regulations also adopt procedural                      a gain deferral contribution, and for six
                                                  Department and the IRS believe that the                 requirements in order to seek relief for               full taxable years with respect to the
                                                  description of the tiered-partnership                   a failure to meet the reporting                        U.S. transferor’s distributive share of all
                                                  rules contained in the notice notified                  requirements of the gain deferral                      items with respect to the section 721(c)
                                                  taxpayers of an intention to promulgate                 method, which mirror the approach in                   property for the year of contribution and
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                                                  a rule with the result reached by the                   the 2014 GRA regulations, including                    two subsequent years. See § 1.721(c)–
                                                  temporary regulations.                                  procedures relating to the manner by                   6T(b)(5)(i) and (ii). The U.S. transferor
                                                     The revaluation requirement                          which a transferor can establish the lack              also must agree to extend the period of
                                                  described in the gain deferral method                   of willfulness and that a failure was due              limitations on the assessment of tax for
                                                  requires an expansion of permissible                    to reasonable cause. See §§ 1.721(c)–                  five full taxable years with respect to the
                                                  events for partnership revaluations                     6T(f) and 1.6038B–2T(h). The temporary                 gain recognized on the contribution of
                                                  under section 704(b). Accordingly,                      regulations adopt these procedural                     section 721(c) property for which the
                                                  § 1.704–1T(b)(2)(iv)(f)(6) allows a                     requirements for all U.S. persons that                 gain deferral method is not applied if


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                                                  7596             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  the contribution is made within five                    information. Failure to include this                   required of certain United States
                                                  partnership taxable years following a                   information may result in imposition of                persons with respect to controlled
                                                  gain deferral contribution. See                         a penalty. See sections 6721 and 6722.                 foreign partnerships), if not already
                                                  § 1.721(c)–6T(b)(5)(iii). All agreements                                                                       reported elsewhere, without regard to
                                                                                                          b. Annual Reporting Requirements
                                                  to extend the period of limitations on                                                                         whether the section 721(c) partnership
                                                  assessment of tax are deemed consented                     The temporary regulations require the               is a controlled foreign partnership or
                                                  to and signed by the Secretary for                      U.S. transferor to provide certain                     whether the U.S. transferor controlled
                                                  purposes of section 6501(c)(4). The                     information on an annual basis with                    the section 721(c) partnership. If the
                                                  Treasury Department and the IRS intend                  respect to section 721(c) property                     U.S. transferor is not a controlling fifty-
                                                  to issue a designated form for use in                   subject to the gain deferral method. See               percent partner (as defined in § 1.6038–
                                                  extending the period of limitations by                  §§ 1.721(c)–6T(b)(3) and 1.6038B–                      3(a)), the U.S. transferor may comply
                                                  consent, as described above. Until the                  2T(c)(9). This includes information                    with this requirement by providing only
                                                  time such form is issued, the required                  about income from the section 721(c)                   the information described in § 1.6038–
                                                  consent must be submitted as a                          property (book and remedial income)                    3(g)(1). These requirements also apply
                                                  statement attached to the U.S.                          allocated to the U.S. transferor in the                to a U.S. transferor that is a successor,
                                                  Transferor’s Form 8865, Schedule O.                     partnership taxable year that ends with,               as described in Paragraph c.2 of Part VIII
                                                  Once such form is issued, the U.S.                      or within, the U.S. transferor’s taxable               of the Explanation of Provisions section
                                                  transferor must use the designated form                 year, a calculation of remaining built-in              of this preamble.
                                                  to submit the required consent. These                   gain, and information about                               If the section 721(c) partnership has a
                                                  agreements must be filed only in                        acceleration, termination, successor,                  filing obligation under section 6031, the
                                                  connection with contributions occurring                 and partial acceleration events. The U.S.              partnership must include the
                                                  on or after January 18, 2017.                           transferor must also attach a Schedule                 information required under § 1.721(c)–
                                                     If section 721(c) property that is                   K–1 (Form 8865), Partner’s Share of                    6T(b)(2) and (3) on the Schedule K–1
                                                  subject to the gain deferral method is                  Income, Deductions, Credits, etc., for all             (Form 1065), Partner’s Share of Income,
                                                  ECI property, the temporary regulations                 related foreign persons that are direct or             Deductions, Credits, etc., of the U.S.
                                                  require the U.S. transferor to obtain                   indirect partners in the section 721(c)                transferor and all related foreign persons
                                                  from the section 721(c) partnership and                 partnership (if the partnership does not               that are direct or indirect partners in the
                                                  each related foreign person that is a                   have a filing obligation under section                 section 721(c) partnership. See
                                                  direct or indirect partner in the section               6031) for the partnership taxable year                 § 1.721(c)–6T(d)(2).
                                                  721(c) partnership a statement pursuant                 that ends with, or within, the U.S.
                                                                                                          transferor’s taxable year.                             XI. Effective/Applicability Dates
                                                  to which the partner and the
                                                  partnership waive any claim under any                      In the case of ECI property subject to                 The applicability dates of the
                                                  income tax convention (whether or not                   the gain deferral method, the U.S.                     temporary regulations generally relate
                                                  currently in force at the time of the                   transferor must annually declare that,                 back to the issuance of the notice.
                                                  contribution) to an exemption from U.S.                 after exercising reasonable diligence, to              Accordingly, in general, the temporary
                                                  income tax or a reduced rate of U.S.                    the best of the U.S. transferor’s                      regulations apply to contributions
                                                  income taxation on income derived                       knowledge and belief all the income                    occurring on or after August 6, 2015,
                                                  from the use of the ECI property for the                from the property was income                           and to contributions occurring before
                                                  period in which there is remaining                      effectively connected with the conduct                 August 6, 2015, resulting from an entity
                                                  built-in gain. See § 1.721(c)–6T(c)(1).                 of a trade or business within the United               classification election made under
                                                     The temporary regulations require the                States, and no benefits with respect to                § 301.7701–3 that is filed on or after
                                                  U.S. transferor also to provide                         the ECI property were claimed under                    August 6, 2015 (referred to in this
                                                  information with respect to related                     any income tax convention by related                   preamble as the ‘‘general applicability
                                                  foreign partners and certain section                    foreign persons that are direct or                     date’’). However, new rules, including
                                                  721(c) partnerships under section 6038B                 indirect partners in the section 721(c)                any substantive changes to the rules
                                                  and the gain deferral method. This                      partnership or by the section 721(c)                   described in the notice, apply to
                                                  requirement also applies in the case of                 partnership. This requirement                          contributions occurring on or after
                                                  a partnership in a tiered-partnership                   eliminates the potential need for related              January 18, 2017, or to contributions
                                                  structure that applies the gain deferral                foreign persons that are direct or                     occurring before January 18, 2017,
                                                  method under § 1.721(c)–3T(d). See                      indirect partners in the section 721(c)                resulting from an entity classification
                                                  § 1.721(c)–6T(b)(2). The U.S. transferor                partnership and the partnership to                     election made under § 301.7701–3 that
                                                  must attach this information to its                     submit to the U.S. transferor an annual                is filed on or after January 18, 2017.
                                                  return.                                                 waiver of treaty benefits.                             Taxpayers may, however, elect to apply
                                                     If the section 721(c) partnership has a                 The U.S. transferor must describe all               those new rules and substantive changes
                                                  reporting obligation under section 6031,                acceleration, termination, successor,                  to the rules described in the notice to a
                                                  it also will be required to report certain              and partial acceleration events that                   contribution occurring on or after the
                                                  information under the temporary                         occur with respect to the section 721(c)               general applicability date. The election
                                                  regulations. See § 1.721(c)–6T(d).                      property during the partnership taxable                is made by reflecting the application of
                                                  Although the temporary regulations                      year that ends with, or within, the U.S.               the relevant rule on a timely filed or
                                                  require the partnership to submit certain               transferor’s taxable year. When there is               amended return.
                                                  information to the IRS and comply with                  a successor event, the U.S. transferor
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                                                  other requirements relating to the                      must identify the new partnership,                     Special Analyses
                                                  application of the gain deferral method,                lower-tier partnership, upper-tier                       Certain IRS regulations, including
                                                  a failure to do so will not constitute an               partnership, or U.S. corporation (as                   these, are exempt from the requirements
                                                  acceleration event to the U.S. transferor.              applicable). If the section 721(c)                     of Executive Order 12866, as
                                                  The Treasury Department and the IRS                     partnership is a foreign partnership, the              supplemented and reaffirmed by
                                                  intend that the Form 1065, Schedule K–                  U.S. transferor must include the                       Executive Order 13563. Therefore, a
                                                  1, or their accompanying instructions                   information described in § 1.6038–3(g)                 regulatory impact assessment is not
                                                  will be revised to describe this required               (contents of information returns                       required. It is hereby certified that the


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                              7597

                                                  collection of information contained in                    Section 1.721(c)–7T also issued under 26               (ii) Expiration date. Paragraph
                                                  this regulation will not have a                         U.S.C. 721(c).                                         (h)(12)(vii)(C) of this section expires on
                                                  significant economic impact on a                        *      *      *       *      *                         January 17, 2020.
                                                  substantial number of small entities.                     Section 1.6038B–2T also issued under 26              ■ Par. 4. Section 1.704–1 is amended by
                                                  Accordingly, a regulatory flexibility                   U.S.C. 6038B.                                          adding paragraph (b)(2)(iv)(f)(6)
                                                  analysis is not required. This                          *      *     *     *    *                              following the undesignated paragraph at
                                                  certification is based on the fact that the             ■  Par. 2. Section 1.197–2 is amended by               the end of paragraph (b)(2)(iv)(f)(5) and
                                                  temporary regulations include a                         adding paragraphs (h)(12)(vii)(C) and                  adding paragraph (f) to read as follows:
                                                  $1,000,000 de minimis exception for                     (l)(5) to read as follows:
                                                  certain transfers, and tangible property                                                                       § 1.704–1   Partner’s distributive share.
                                                  with built-in gain that does not exceed                 § 1.197–2 Amortization of goodwill and                 *      *    *     *     *
                                                  $20,000 is excluded from the                            certain other intangibles.                               (b) * * *
                                                  regulations. In addition, the regulations               *     *     *    *     *                                 (2) * * *
                                                  only apply when a U.S. transferor                         (h) * * *                                              (iv) * * *
                                                                                                            (12) * * *                                             (f) * * *
                                                  contributes property to a partnership                                                                            (6) [Reserved]. For further guidance,
                                                  with a partner that is a related foreign                  (vii) * * *
                                                                                                            (C) [Reserved]. For further guidance,                see § 1.704–1T(b)(2)(iv)(f)(6).
                                                  person, and persons related to the U.S.
                                                  transferor own more than 80 percent of                  see § 1.197–2T(h)(12)(vii)(C).                         *      *    *     *     *
                                                                                                          *     *     *    *     *                                 (f) [Reserved]. For further guidance,
                                                  the interests in the partnership.
                                                                                                            (l) * * *                                            see § 1.704–1T(f).
                                                  Accordingly, the Treasury Department
                                                                                                            (5) [Reserved]. For further guidance,                ■ Par. 5. Section 1.704–1T is amended
                                                  and the IRS expect that these
                                                  regulations primarily will affect large                 see § 1.197–2T(l)(5).                                  by:
                                                                                                          ■ Par 3. Section 1.197–2T is added to                  ■ 1. Revising paragraphs (b)(1)(iii)
                                                  domestic corporations. Pursuant to
                                                                                                          read as follows:                                       through (b)(2)(iv)(f)(5).
                                                  section 7805(f) of the Code, these                                                                             ■ 2. Adding paragraph (b)(2)(iv)(f)(6).
                                                  regulations have been submitted to the                  § 1.197–2T Amortization of goodwill and                ■ 3. Revising paragraphs (b)(2)(iv)(g)
                                                  Chief Counsel for Advocacy of the Small                 certain other intangibles.                             through (b)(4)(viii)(a) introductory text.
                                                  Business Administration for comment                        (a) through (h)(12)(vii)(B) [Reserved].             ■ 4. Redesignating paragraph (f) as
                                                  on their impact on small business.                      For further guidance, see § 1.197–2(a)                 paragraph (g).
                                                  Drafting Information                                    through (h)(12)(vii)(B).                               ■ 5. Adding a new paragraph (f).
                                                                                                             (C) Rules for section 721(c)                        ■ 6. Revising newly redesignated
                                                     The principal author of these                        partnerships. See § 1.704–3T(d)(5)(iii) if             paragraph (g).
                                                  regulations is Ryan A. Bowen of the                     there is a contribution of a section                     The additions and revisions read as
                                                  Office of the Associate Chief Counsel                   197(f)(9) intangible to a section 721(c)               follows:
                                                  (International). However, other                         partnership (as defined in § 1.721(c)–                 § 1.704–1T Partner’s distributive share
                                                  personnel from the Treasury                             1T(b)(14)).                                            (temporary).
                                                  Department and the IRS participated in                     (viii) through (l)(4)(iii) [Reserved]. For          *      *      *     *     *
                                                  the development of the regulations.                     further guidance, see § 1.197–                            (b)(1)(iii) through (b)(2)(iv)(f)(5)
                                                                                                          2(h)(12)(viii) through (l)(4)(iii).                    [Reserved]. For further guidance, see
                                                  List of Subjects in 26 CFR Part 1
                                                                                                             (5) Rules for section 721(c)                        § 1.704–1(b)(1)(iii) through
                                                    Income taxes, Reporting and                           partnerships—(i) Applicability dates—                  (b)(2)(iv)(f)(5).
                                                  recordkeeping requirements.                             (A) In general. Except as provided in                     (6) Notwithstanding paragraph
                                                                                                          paragraph (l)(5)(i)(B) of this section,                (b)(2)(iv)(f)(5) of this section, the
                                                  Amendments to the Regulations                           paragraph (h)(12)(vii)(C) of this section              revaluation is required under § 1.721(c)–
                                                                                                          applies with respect to contributions                  3T(d)(1) as a condition of the
                                                    Accordingly, 26 CFR part 1 is
                                                                                                          occurring on or after January 18, 2017,                application of the gain deferral method
                                                  amended as follows:
                                                                                                          and with respect to contributions                      (as described in § 1.721(c)–3T(b)) and is
                                                  PART 1—INCOME TAXES                                     occurring before January 18, 2017,                     pursuant to an event described in this
                                                                                                          resulting from an entity classification                paragraph (b)(2)(iv)(f)(6). If an interest in
                                                  ■ Paragraph 1. The authority citation                   election made under § 301.7701–3 of                    a partnership is contributed to a section
                                                  for part 1 is amended by adding entries                 this chapter that is filed on or after                 721(c) partnership (as defined in
                                                  in numerical order to read in part as                   January 18, 2017.                                      § 1.721(c)–1T(b)(14)), the partnership
                                                                                                             (B) Election to apply the provisions                whose interest is contributed may
                                                  follows:
                                                                                                          described in paragraph (l)(5)(i)(A) of                 revalue its property in accordance with
                                                    Authority: 26 U.S.C. 7805 * * *.                      this section retroactively. Paragraph                  this section. In this case, the revaluation
                                                    Section 1.197–2T also issued under 26                 (h)(12)(vii)(C) of this section may, by                by the partnership whose interest was
                                                  U.S.C. 197(g).                                          election, be applied with respect to a                 contributed must occur immediately
                                                  *      *     *       *      *                           contribution occurring on or after                     before the contribution. If a partnership
                                                    Section 1.721(c)–1T also issued under 26              August 6, 2015, and to a contribution                  that revalues its property pursuant to
                                                  U.S.C. 721(c).                                          occurring before August 6, 2015,                       this paragraph owns an interest in
                                                    Section 1.721(c)–2T also issued under 26              resulting from an entity classification                another partnership, the partnership in
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                                                  U.S.C. 721(c).                                          election made under § 301.7701–3 of                    which it owns an interest may also
                                                    Section 1.721(c)–3T also issued under 26
                                                                                                          this chapter that is filed on or after                 revalue its property in accordance with
                                                  U.S.C. 721(c).
                                                    Section 1.721(c)–4T also issued under 26
                                                                                                          August 6, 2015. The election is made by                this section. When multiple
                                                  U.S.C. 721(c).                                          applying paragraph (h)(12)(vii)(C) of this             partnerships revalue under this
                                                    Section 1.721(c)–5T also issued under 26              section on a timely filed original return              paragraph (b)(2)(iv)(f)(6), the
                                                  U.S.C. 721(c).                                          (including extensions) or an amended                   revaluations occur in order from the
                                                    Section 1.721(c)–6T also issued under 26              return filed no later than six months                  lowest-tier partnership to the highest-
                                                  U.S.C. 721(c).                                          after January 18, 2017.                                tier partnership.


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                                                  7598             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                     (b)(2)(iv)(g) through (b)(4)(viii)(a)                partnership revalues its property                      method available to the partnership as
                                                  introductory text [Reserved]. For further               pursuant to § 1.704–1T(b)(2)(iv)(f)(6)                 if the property had been newly
                                                  guidance, see § 1.704–1(b)(2)(iv)(g)                    immediately before an interest in the                  purchased by the partnership from an
                                                  through (b)(4)(viii)(a) introductory text.              partnership is contributed to another                  unrelated party.
                                                  *       *     *     *     *                             partnership, or if an upper-tier                          (C) Effect of ceiling rule limitations. If
                                                     (f) Dates—(1) Applicability dates—(i)                partnership owns an interest in a lower-               the ceiling rule causes the book
                                                  In general. Except as provided in                       tier partnership, and both the upper-tier              allocation of the item of amortization of
                                                  paragraph (f)(1)(ii) of this section,                   partnership and the lower-tier                         a section 197(f)(9) intangible under
                                                  paragraph (b)(2)(iv)(f)(6) of this section              partnership revalue partnership                        paragraph (d)(5)(iii)(B) of this section by
                                                  applies with respect to contributions                   property pursuant to § 1.704–                          a section 721(c) partnership to a related
                                                  occurring on or after January 18, 2017,                 1T(b)(2)(iv)(f)(6), the principles of                  person with respect to the U.S.
                                                  and with respect to contributions                       § 1.704–3(a)(9) will apply to any reverse              transferor to differ from the tax
                                                  occurring before January 18, 2017,                      section 704(c) allocations made as a                   allocation of the same item to the
                                                  resulting from an entity classification                 result of the revaluation.                             related person (a ceiling rule limited
                                                  election made under § 301.7701–3 of                        (ii) Basis-derivative items. If a lower-            related person), the partnership must
                                                  this chapter that is filed on or after                  tier partnership that is a section 721(c)              not create a remedial item of deduction
                                                  January 18, 2017.                                       partnership applies the gain deferral                  to allocate to the related person but
                                                     (ii) Election to apply the provisions                method, then, for purposes of applying                 instead must increase the adjusted basis
                                                  described in paragraph (f)(1)(i) of this                this section, the upper-tier partnership               of the section 197(f)(9) intangible by an
                                                  section retroactively. Paragraph                        must treat its distributive share of                   amount equal to the difference solely
                                                  (b)(2)(iv)(f)(6) of this section may, by                lower-tier partnership items of gain,                  with respect to that related person. The
                                                  election, be applied with respect to a                  loss, amortization, depreciation, or other             partnership simultaneously must create
                                                  contribution occurring on or after                      cost recovery with respect to the lower-               an offsetting remedial item in an
                                                  August 6, 2015, but before January 18,                  tier partnership’s section 721(c)                      amount identical to the increase in
                                                                                                          property as though they were items of                  adjusted tax basis of the section
                                                  2017, and with respect to a contribution
                                                                                                          gain, loss, amortization, depreciation, or             197(f)(9) intangible and allocate it to the
                                                  occurring before August 6, 2015,
                                                                                                          other cost recovery with respect to the                contributing partner.
                                                  resulting from an entity classification                                                                           (D) Effect of basis adjustment—(1) In
                                                                                                          upper-tier partnership’s interest in the
                                                  election made under § 301.7701–3 of                                                                            general. The basis adjustment described
                                                                                                          lower-tier partnership. For purposes of
                                                  this chapter that is filed on or after                                                                         in paragraph (d)(5)(iii)(C) of this section
                                                                                                          this paragraph (a)(13)(ii), gain deferral
                                                  August 6, 2015. The election is made by                                                                        constitutes an adjustment to the
                                                                                                          method is defined in § 1.721(c)–
                                                  applying paragraph (b)(2)(iv)(f)(6) of this                                                                    adjusted basis of a section 197(f)(9)
                                                                                                          1T(b)(8), section 721(c) partnership is
                                                  section on a timely filed original return                                                                      intangible with respect to the ceiling
                                                                                                          defined in § 1.721(c)–1T(b)(14), and
                                                  (including extensions) or an amended                                                                           rule limited related person only. No
                                                                                                          section 721(c) property is defined in
                                                  return filed no later than six months                                                                          adjustment is made to the common basis
                                                                                                          § 1.721(c)–1T(b)(15).
                                                  after January 18, 2017.                                    (b) through (d)(5)(ii) [Reserved]. For              of partnership property. Thus, for
                                                     (2) Expiration date. Paragraph                       further guidance, see § 1.704–3(b)                     purposes of calculating gain and loss,
                                                  (b)(2)(iv)(f)(6) of this section expires on             through (d)(5)(ii).                                    the ceiling rule limited related person
                                                  January 17, 2020.                                          (iii) Special rules for a section 721(c)            will have a special basis for that section
                                                     (g) Expiration date. The applicability               partnership and anti-churning                          197(f)(9) intangible. The adjustment to
                                                  of this section (other than paragraphs                  property—(A) In general. Solely in the                 the basis of partnership property under
                                                  (b)(2)(iv)(f)(6) and (f) of this section)               case of a gain deferral contribution of                this section has no effect on the
                                                  expires on February 4, 2019.                            section 721(c) property that is a section              partnership’s computation of any item
                                                  ■ Par. 6. Section 1.704–3 is amended by                 197(f)(9) intangible that was not an                   under section 703.
                                                  adding paragraphs (a)(13), (d)(5)(iii),                 amortizable section 197 intangible in                     (2) Computation of a partner’s
                                                  and (g) to read as follows:                             the hands of the contributor, the                      distributive share of partnership items.
                                                                                                          remedial allocation method is modified                 The partnership first computes its items
                                                  § 1.704–3   Contributed property.
                                                                                                          with respect to allocations to a related               of gain or loss at the partnership level
                                                    (a) * * *                                             person to the U.S. transferor pursuant to              under section 703. The partnership then
                                                    (13) [Reserved]. For further guidance,                paragraphs (d)(5)(iii)(B) through (F) of               allocates the partnership items among
                                                  see § 1.704–3T(a)(13).                                  this section. For purposes of this                     the partners, including the ceiling rule
                                                  *      *    *     *     *                               paragraph (d)(5)(iii), gain deferral                   limited related person, in accordance
                                                    (d) * * *                                             contribution is defined in § 1.721(c)–                 with section 704, and adjusts the
                                                    (5) * * *                                             1T(b)(7), related person is defined in                 partners’ capital accounts accordingly.
                                                    (iii) [Reserved]. For further guidance,               § 1.721(c)–1T(b)(12), section 721(c)                   The partnership then adjusts the ceiling
                                                  see § 1.704–3T(d)(5)(iii).                              partnership is defined in § 1.721(c)–                  rule limited related person’s distributive
                                                  *      *    *     *     *                               1T(b)(14), section 721(c) property is                  share of the items of partnership gain or
                                                    (g) [Reserved]. For further guidance,                 defined in § 1.721(c)–1T(b)(15), and U.S.              loss, in accordance with paragraph
                                                  see § 1.704–3T(g).                                      transferor is defined in § 1.721(c)–                   (d)(5)(iii)(D)(3) of this section, to reflect
                                                  ■ Par. 7. Section 1.704–3T is added to                  1T(b)(18). For an example applying the                 the effects of that person’s basis
                                                  read as follows:                                        rules of this paragraph (d)(5)(iii), see               adjustment under this section. These
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                                                                                                          § 1.721(c)–7T, Example 6.                              adjustments to that person’s distributive
                                                  § 1.704–3T Contributed property                            (B) Book basis recovery. The section                shares must be reflected on Schedules K
                                                  (temporary).                                            721(c) partnership must amortize the                   and K–1 of the partnership’s return
                                                    (a)(1) through (12) [Reserved]. For                   portion of the partnership’s book value                (Form 1065) (when otherwise required
                                                  further guidance, see § 1.704–3(a)(1)                   in the section 197(f)(9) intangible that               to be completed) and do not affect that
                                                  through (12).                                           exceeds the adjusted basis in the                      person’s capital account.
                                                    (13) Rules for tiered section 721(c)                  property upon contribution using any                      (3) Effect of basis adjustment in
                                                  partnerships—(i) Revaluations. If a                     recovery period and amortization                       determining items of income, gain, or


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                            7599

                                                  loss. The amount of a ceiling rule                         (g) Certain rules for section 721(c)                application of the section 721(c)
                                                  limited related person’s gain or loss                   partnerships—(1) Applicability dates—                  regulations.
                                                  from the sale or exchange of a section                  (i) In general. Notwithstanding § 1.704–                 (2) Scope. Paragraph (b) of this section
                                                  197(f)(9) intangible in which that person               3(f), except as provided in paragraph                  provides definitions. Paragraph (c) of
                                                  has a tax basis adjustment is equal to                  (g)(1)(ii) of this section, paragraphs                 this section describes the treatment of a
                                                  that person’s share of the partnership’s                (a)(13) and (d)(5)(iii) of this section                change in form of a partnership.
                                                  gain or loss from the sale of the asset                 apply with respect to contributions                    Paragraph (d) of this section provides an
                                                  (including any remedial allocations                     occurring on or after January 18, 2017,                anti-abuse rule. Paragraph (e) of this
                                                  under this paragraph (d) and § 1.704–                   and with respect to contributions                      section provides the dates of
                                                  3(d)), minus the amount of that person’s                occurring before January 18, 2017,                     applicability, and paragraph (f) of this
                                                  tax basis adjustment for the section                    resulting from an entity classification                section provides the date of expiration.
                                                  197(f)(9) intangible.                                   election made under § 301.7701–3 of                      (b) Definitions. The following
                                                     (E) Subsequent transfers—(1) In                      this chapter that is filed on or after                 definitions apply for purposes of the
                                                  general. Except as provided in                          January 18, 2017.                                      section 721(c) regulations. Unless
                                                  paragraph (d)(5)(iii)(E)(2) of this section,               (ii) Election to apply the provisions               otherwise indicated, the definitions
                                                  if a ceiling rule limited related person                described in paragraph (g)(1)(i) of this               apply on a property-by-property basis,
                                                  transfers all or part of its partnership                section retroactively. Paragraphs (a)(13)              as applicable.
                                                  interest, the portion of the basis                      and (d)(5)(iii) of this section may, by                   (1) Acceleration event. An
                                                  adjustment for a section 197(f)(9)                      election, be applied with respect to a                 acceleration event has the meaning
                                                  intangible attributable to the interest                 contribution occurring on or after                     provided in § 1.721(c)–4T(b).
                                                  transferred is eliminated. The transferor               August 6, 2015, but before January 18,                    (2) Built-in gain. Built-in gain is, with
                                                  of the partnership interest remains the                 2017, and with respect to a contribution               respect to property contributed to a
                                                  ceiling rule limited related person with                occurring before August 6, 2015,                       partnership, the excess of the book
                                                  respect to any remaining basis                          resulting from an entity classification                value of the property over the
                                                  adjustment for the section 197(f)(9)                    election made under § 301.7701–3 of                    partnership’s adjusted tax basis in the
                                                  intangible.                                             this chapter that is filed on or after                 property upon the contribution,
                                                     (2) Special rules for substituted basis              August 6, 2015. The election is made by                determined without regard to the
                                                  transactions. Paragraph (d)(5)(iii)(E)(1)               applying paragraph (a)(13) or paragraph                application of § 1.721(c)–2T(b).
                                                  of this section does not apply to the                   (d)(5)(iii) of this section, as applicable,               (3) Consistent allocation method. The
                                                  extent a ceiling rule limited related                   on a timely filed original return                      consistent allocation method is the
                                                  person transfers its partnership interest               (including extensions) or an amended                   method described in § 1.721(c)–3T(c).
                                                  in a transaction in which the                           return filed no later than six months                     (4) Controlled partnership. A
                                                  transferee’s basis in the partnership                   after January 18, 2017.                                partnership is a controlled partnership
                                                  interest is determined in whole or in                      (2) Expiration date. The applicability              with respect to a U.S. transferor if the
                                                  part by reference to the ceiling rule                   of paragraphs (a)(13) and (d)(5)(iii) of               U.S. transferor and related persons
                                                  limited related person’s basis in that                  this section expires on January 17, 2020.              control the partnership. For this
                                                  interest. Instead, in such a case, the                  ■ Par. 8. Section 1.721(c)–1T is added                 purpose, control is determined based on
                                                  transferee succeeds to that portion of the              to read as follows:                                    all the facts and circumstances, except
                                                  transferor’s basis adjustment for a                                                                            that a partnership will be deemed to be
                                                  section 197(f)(9) intangible attributable               § 1.721(c)–1T Overview, definitions, and               controlled by a U.S. transferor and
                                                  to the interest transferred. In such a                  rules of general application (temporary).
                                                                                                                                                                 related persons if those persons, in the
                                                  case, the basis adjustment in a section                   (a) Overview—(1) In general. This                    aggregate, own (directly or indirectly
                                                  197(f)(9) intangible to which the                       section and §§ 1.721(c)–2T through                     through one or more partnerships) more
                                                  transferee succeeds is taken into                       1.721(c)–7T (collectively, the section                 than 50 percent of the interests in the
                                                  account for purposes of determining the                 721(c) regulations) provide rules under                partnership capital or profits.
                                                  transferee’s share of the adjusted basis                section 721(c). This section provides                     (5) Direct or indirect partner. A direct
                                                  to the partnership of the partnership’s                 definitions and rules of general                       or indirect partner is a person (other
                                                  property for purposes of §§ 1.743–1(b)                  application for purposes of the section                than a partnership) that owns an interest
                                                  and 1.755–1(b)(5). To the extent a                      721(c) regulations. Section 1.721(c)–2T                in a partnership directly or indirectly
                                                  transferee would be required to decrease                provides the general operative rules that              through one or more partnerships.
                                                  the adjusted basis of a section 197(f)(9)               override section 721(a) nonrecognition                    (6) Excluded property. Excluded
                                                  intangible pursuant to §§ 1.743–1(b)(2)                 of gain upon a contribution of section                 property is—
                                                  and 1.755–1(b)(5), the decrease first                   721(c) property to a section 721(c)                       (i) A cash equivalent;
                                                  reduces the special basis adjustment                    partnership. Section 1.721(c)–3T                          (ii) A security within the meaning of
                                                  described in paragraph (d)(5)(iii)(C) of                describes the gain deferral method,                    section 475(c)(2), without regard to
                                                  this section, if any, to which the                      which may be applied in order to avoid                 section 475(c)(4);
                                                  transferee succeeds.                                    the immediate recognition of gain upon                    (iii) Tangible property with a book
                                                     (F) Non-amortization of basis                        a contribution of section 721(c) property              value exceeding adjusted tax basis by no
                                                  adjustment. Neither the increase to the                 to a section 721(c) partnership. Section               more than $20,000 or with an adjusted
                                                  adjusted basis of a section 197(f)(9)                   1.721(c)–4T provides rules regarding                   tax basis in excess of book value; and
                                                  intangible with respect to a ceiling rule               acceleration events for purposes of                       (iv) An interest in a partnership in
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                                                  limited related person nor the portion of               applying the gain deferral method.                     which 90 percent or more of the
                                                  the basis of any property that was                      Section 1.721(c)–5T identifies                         property (as measured by value) held by
                                                  determined by reference to such                         exceptions to the rules regarding                      the partnership (directly or indirectly
                                                  increase is subject to amortization,                    acceleration events provided in                        through interests in one or more
                                                  depreciation, or other cost recovery.                   § 1.721(c)–4T(b). Section 1.721(c)–6T                  partnerships that are not excluded
                                                     (d)(6) through (f) [Reserved]. For                   provides procedural and reporting                      property) consists of property described
                                                  further guidance, see § 1.704–3(d)(6)                   requirements. Section 1.721(c)–7T                      in paragraphs (b)(6)(i) through (iii) of
                                                  through (f).                                            provides examples illustrating the                     this section.


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                                                  7600             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                     (7) Gain deferral contribution. A gain               721(c) property to the partnership and,                disregarding an intermediate entity) in
                                                  deferral contribution is a contribution of              after the contribution and all                         accordance with its substance.
                                                  section 721(c) property to a section                    transactions related to the                               (e) Applicability dates—(1) In general.
                                                  721(c) partnership with respect to                      contribution—                                          Except as provided in paragraphs (e)(2)
                                                  which the recognition of gain is deferred                  (A) A related foreign person with
                                                                                                                                                                 and (3) of this section, this section
                                                  under the gain deferral method.                         respect to the U.S. transferor is a direct
                                                                                                          or indirect partner in the partnership;                applies to contributions occurring on or
                                                     (8) Gain deferral method. The gain
                                                  deferral method is the method described                 and                                                    after August 6, 2015, and to
                                                  in § 1.721(c)–3T(b).                                       (B) The U.S. transferor and related                 contributions occurring before August 6,
                                                     (9) Partial acceleration event. A                    persons own 80 percent or more of the                  2015, resulting from an entity
                                                  partial acceleration event is an event                  interests in partnership capital, profits,             classification election made under
                                                  described in § 1.721(c)–5T(d)(2) or (3).                deductions, or losses.                                 § 301.7701–3 of this chapter that is filed
                                                     (10) Regulatory allocation. A                           (ii) Special rule for tiered                        on or after August 6, 2015.
                                                  regulatory allocation is—                               partnerships. A partnership described                     (2) Certain provisions. Except as
                                                     (i) An allocation pursuant to a                      in § 1.721(c)–3T(d)(1) or (2) is deemed                provided in paragraph (e)(3) of this
                                                  minimum gain chargeback, as defined in                  to be a section 721(c) partnership for                 section, paragraphs (b)(6)(iv) and (c) of
                                                  § 1.704–2(b)(2);                                        purposes of the gain deferral method.                  this section apply to contributions
                                                     (ii) A partner nonrecourse deduction,                   (15) Section 721(c) property—(i) In
                                                                                                                                                                 occurring on or after January 18, 2017,
                                                  as determined in § 1.704–2(i)(2);                       general. Section 721(c) property is
                                                     (iii) An allocation pursuant to a                    property, other than excluded property,                and to contributions occurring before
                                                  partner minimum gain chargeback, as                     with built-in gain that is contributed to              January 18, 2017, resulting from an
                                                  described in § 1.704–2(i)(4);                           a partnership by a U.S. transferor,                    entity classification election made
                                                     (iv) An allocation pursuant to a                     including pursuant to a contribution                   under § 301.7701–3 of this chapter that
                                                  qualified income offset, as defined in                  described in § 1.721(c)–2T(d)                          is filed on or after January 18, 2017.
                                                  § 1.704–1(b)(2)(ii)(d);                                 (partnership look-through rule). If the                Except as provided in paragraph (e)(3)
                                                     (v) An allocation with respect to the                U.S. transferor is treated as contributing             of this section, paragraph (b)(14)(i)(B) of
                                                  exercise of a noncompensatory option                    its share of property to a partnership                 this section applies by replacing ‘‘80
                                                  described in § 1.704–1(b)(2)(iv)(s); and                pursuant to § 1.721(c)–2T(d), the entire               percent or more’’ with ‘‘greater than 50
                                                     (vi) An allocation of partnership level              property will be section 721(c) property.              percent’’ with respect to contributions
                                                  ordinary income or loss described in                       (ii) Special rule for tiered                        occurring on or after August 6, 2015, but
                                                  § 1.751–1(a)(3).                                        partnerships. Property described in                    before January 18, 2017, and with
                                                     (11) Related foreign person. A related               § 1.721(c)–3T(d)(1)(ii) and an interest in             respect to contributions occurring before
                                                  foreign person is, with respect to a U.S.               a partnership described in § 1.721(c)–                 August 6, 2015, resulting from an entity
                                                  transferor, a related person (other than                3T(d)(2)(ii) is deemed to be section                   classification election made under
                                                  a partnership) that is not a U.S. person.               721(c) property.                                       § 301.7701–3 of this chapter that is filed
                                                     (12) Related person. A related person                   (16) Successor event. A successor                   on or after August 6, 2015, but before
                                                  is, with respect to a U.S. transferor, a                event is an event described in
                                                  person that is related (within the                                                                             January 18, 2017.
                                                                                                          § 1.721(c)–5T(c)(2), (3), (4), or (5).
                                                  meaning of section 267(b) or 707(b)(1))                    (17) Termination event. A termination                  (3) Election to apply the provisions
                                                  to the U.S. transferor.                                 event is an event described in                         described in paragraph (e)(2) of this
                                                     (13) Remaining built-in gain—(i) In                  § 1.721(c)–5T(b)(2), (3), (4), (5), (6), or            section retroactively. Paragraphs
                                                  general. Remaining built-in gain is, with               (7).                                                   (b)(6)(iv), (b)(14)(i)(B), and (c) of this
                                                  respect to section 721(c) property                         (18) U.S. transferor—(i) In general. A              section, without the modification
                                                  subject to the gain deferral method, the                U.S. transferor is a United States person              described in paragraph (e)(2) of this
                                                  built-in gain reduced by decreases in the               within the meaning of section                          section, may, by election, be applied to
                                                  difference between the property’s book                  7701(a)(30) (a U.S. person), other than a              a contribution occurring on or after
                                                  value and adjusted tax basis, but, for                  domestic partnership.                                  August 6, 2015, but before January 18,
                                                  this purpose, without taking into                          (ii) Special rule for tiered                        2017, and to a contribution occurring
                                                  account increases or decreases to the                   partnerships. Solely for purposes of                   before August 6, 2015, resulting from an
                                                  property’s book value pursuant to                       applying the consistent allocation                     entity classification election made
                                                  § 1.704–1(b)(2)(iv)(f) or (s).                          method, a U.S. transferor includes a                   under § 301.7701–3 of this chapter that
                                                     (ii) Special rule for tiered                         partnership that is treated as a U.S.                  is filed on or after August 6, 2015. The
                                                  partnerships. If section 721(c) property                transferor under § 1.721(c)–3T(d)(1)(iii)
                                                                                                                                                                 election is made by applying paragraph
                                                  is described in § 1.721(c)–3T(d)(1)(ii),                or (d)(2)(i).
                                                  the remaining built-in gain includes the                   (c) Change in form of a partnership.                (b)(6)(iv) or (c) as described in
                                                  new positive reverse section 704(c) layer               A mere change in identity, form, or                    paragraph (b)(14)(i)(B) or (e)(2) of this
                                                  described in § 1.721(c)–3T(d)(1)(ii),                   place of organization of a partnership or              section, without the modification
                                                  reduced by decreases in the difference                  a recapitalization of a partnership will               described in paragraph (e)(2) of this
                                                  between the property’s book value and                   not cause the partnership to become a                  section, as applicable, to the
                                                  adjusted tax basis, but, for this purpose,              section 721(c) partnership.                            contribution on a timely filed original
                                                  without taking into account increases or                   (d) Anti-abuse rule. If a U.S. transferor           return (including extensions) or an
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                                                  decreases to the property’s book value                  engages in a transaction (or series of                 amended return filed no later than six
                                                  pursuant to § 1.704–1(b)(2)(iv)(f) or (s)               transactions) or an arrangement with a                 months after January 18, 2017.
                                                  that are unrelated to the revaluation                   principal purpose of avoiding the                         (f) Expiration date. The applicability
                                                  described in § 1.721(c)–3T(d)(1)(i).                    application of the section 721(c)                      of this section expires on January 17,
                                                     (14) Section 721(c) partnership—(i) In               regulations, the transaction (or series of             2020.
                                                  general. A partnership (domestic or                     transactions) or the arrangement may be
                                                  foreign) is a section 721(c) partnership                recharacterized (including by                          ■ Par. 9. Section 1.721(c)–2T is added
                                                  if there is a contribution of section                   aggregating or disregarding steps or                   to read as follows:


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                               7601

                                                  § 1.721(c)–2T Recognition of gain on                    the upper-tier partnership contributes                 no later than six months after January
                                                  certain contributions of property to                    all or a portion of its property to another            18, 2017.
                                                  partnerships with related foreign partners              partnership (lower-tier partnership),                    (f) Expiration date. The applicability
                                                  (temporary).
                                                                                                          then, for purposes of determining if the               of this section expires on January 17,
                                                     (a) Scope. This section provides the                 lower-tier partnership is a section 721(c)             2020.
                                                  general operative rules that override                   partnership, the U.S. transferor is                    ■ Par. 10. Section 1.721(c)–3T is added
                                                  section 721(a) nonrecognition of gain                   treated as contributing to the lower-tier
                                                  upon a contribution of section 721(c)                                                                          to read as follows:
                                                                                                          partnership its share of the property
                                                  property to a section 721(c) partnership.               actually contributed by the upper-tier                 § 1.721(c)–3T    Gain deferral method
                                                  Paragraph (b) of this section provides                  partnership to the lower-tier                          (temporary).
                                                  the general rule that nonrecognition of                 partnership.                                             (a) Scope. This section describes the
                                                  gain under section 721(a) does not apply                   (2) Exception for a technical                       gain deferral method to avoid the
                                                  to a contribution of section 721(c)                     termination of a partnership. Paragraph                immediate recognition of gain upon a
                                                  property to a section 721(c) partnership.               (d)(1) of this section will not apply to a             contribution of section 721(c) property
                                                  Paragraph (c) of this section provides a                                                                       to a section 721(c) partnership.
                                                                                                          deemed contribution that occurs as a
                                                  de minimis exception to the application                                                                        Paragraph (b) of this section provides
                                                                                                          result of a termination of a partnership
                                                  of the general rule in paragraph (b) of                                                                        the requirements of the gain deferral
                                                                                                          described in section 708(b)(1)(B)
                                                  this section. Paragraph (d) of this
                                                                                                          (technical termination). If a partnership              method, including the requirement to
                                                  section provides rules for identifying a
                                                                                                          is a section 721(c) partnership                        apply the consistent allocation method.
                                                  section 721(c) partnership when a
                                                                                                          immediately before a technical                         Paragraph (c) of this section describes
                                                  partnership in which a U.S. transferor is
                                                                                                          termination, see § 1.721(c)–5T(c)(4)                   the consistent allocation method.
                                                  a direct or indirect partner contributes
                                                                                                          (which treats technical terminations as                Paragraph (d) of this section provides
                                                  property to another partnership.
                                                                                                          successor events in certain                            rules for tiered partnerships. Paragraph
                                                  Paragraph (e) of this section provides
                                                                                                          circumstances).                                        (e) of this section provides the dates of
                                                  the dates of applicability, and paragraph
                                                                                                             (e) Applicability dates—(1) In general.             applicability, and paragraph (f) of this
                                                  (f) of this section provides the date of
                                                                                                          Except as provided in paragraphs (e)(2)                section provides the date of expiration.
                                                  expiration. For definitions that apply for
                                                  purposes of this section, see § 1.721(c)–               and (3) of this section, this section                  For definitions that apply for purposes
                                                  1T(b).                                                  applies to contributions occurring on or               of this section, see § 1.721(c)–1T(b).
                                                     (b) General rule for contributions of                after August 6, 2015, and to                              (b) Requirements of the gain deferral
                                                  section 721(c) property. Except as                      contributions occurring before August 6,               method. A contribution of section 721(c)
                                                  provided in this paragraph (b),                         2015, resulting from an entity                         property to a section 721(c) partnership
                                                  paragraph (c) of this section, and                      classification election made under                     that would be subject to § 1.721(c)–2T(b)
                                                  § 1.721(c)–3T (describing the gain                      § 301.7701–3 of this chapter that is filed             will not be subject to § 1.721(c)–2T(b) if
                                                  deferral method), nonrecognition under                  on or after August 6, 2015.                            the conditions in paragraphs (b)(1)
                                                  section 721(a) will not apply to gain                      (2) Certain provisions. Except as                   through (5) of this section are satisfied
                                                  realized by the contributing partner                    provided in paragraph (e)(3) of this                   with respect to that property.
                                                  upon a contribution of section 721(c)                   section, the final sentence of paragraph                  (1) Either—
                                                  property to a section 721(c) partnership.               (b) of this section, the final sentence of                (i) Both—
                                                  This paragraph (b) does not apply to a                  paragraph (c) of this section, and                        (A) The section 721(c) partnership
                                                  direct contribution by a U.S. transferor                paragraph (d)(2) of this section apply to              adopts the remedial allocation method
                                                  if the U.S. transferor and related persons              contributions occurring on or after                    described in § 1.704–3(d) with respect to
                                                  with respect to the U.S. transferor do                  January 18, 2017, and to contributions                 the section 721(c) property; and
                                                  not own 80 percent or more of the                       occurring before January 18, 2017,                        (B) The section 721(c) partnership
                                                  interests in partnership capital, profits,              resulting from an entity classification                applies the consistent allocation method
                                                  deductions, or losses.                                  election made under § 301.7701–3 of                    provided in paragraph (c) of this
                                                     (c) De minimis exception. Paragraph                  this chapter that is filed on or after                 section; or
                                                  (b) of this section will not apply with                 January 18, 2017.                                         (ii) For the period beginning on the
                                                  respect to contributions to a section                      (3) Election to apply the provisions                date of the contribution of the section
                                                  721(c) partnership during a taxable year                described in paragraph (e)(2) of this                  721(c) property and ending on the date
                                                  of the section 721(c) partnership for                   section retroactively. The final sentence              on which there is no remaining built-in
                                                  which the sum of the built-in gain with                 of paragraph (b) of this section, the final            gain with respect to that property, all
                                                  respect to all section 721(c) property                  sentence of paragraph (c) of this section,             distributive shares of income and gain
                                                  contributed in that taxable year does not               and paragraph (d)(2) of this section may,              with respect to the section 721(c)
                                                  exceed $1 million. If, pursuant to the                  by election, be applied to a contribution              property for all direct and indirect
                                                  last sentence of paragraph (b) of this                  occurring on or after August 6, 2015, but              partners that are related foreign persons
                                                  section, a direct contribution of property              before January 18, 2017, and to a                      with respect to the U.S. transferor will
                                                  to the section 721(c) partnership by a                  contribution occurring before August 6,                be subject to taxation as income
                                                  U.S. transferor is not subject to                       2015, resulting from an entity                         effectively connected with a trade or
                                                  paragraph (b) of this section, then such                classification election made under                     business within the United States
                                                  contribution is not taken into account                  § 301.7701–3 of this chapter that is filed             (under either section 871 or 882), and
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                                                  for purposes of this paragraph (c).                     on or after August 6, 2015. The election               neither the section 721(c) partnership
                                                     (d) Rules for identifying a section                  is made by applying the final sentence                 nor a related foreign person that is a
                                                  721(c) partnership when a partnership                   of paragraph (b) of this section, the final            direct or indirect partner in the section
                                                  contributes property to another                         sentence of paragraph (c) of this section,             721(c) partnership claims benefits under
                                                  partnership—(1) Partnership look-                       or paragraph (d)(2) of this section, as                an income tax convention that would
                                                  through rule. If a U.S. transferor is a                 applicable, to the contribution on a                   exempt the income or gain from tax or
                                                  direct or indirect partner in a                         timely filed original return (including                reduce the rate of taxation to which the
                                                  partnership (upper-tier partnership) and                extensions) or an amended return filed                 income or gain is subject.


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                                                  7602             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                     (2) Upon an acceleration event, the                  income in that class during the taxable                partnerships) by the lower-tier
                                                  U.S. transferor recognizes an amount of                 year. If a deduction or loss is definitely             partnership and that is a controlled
                                                  gain equal to the remaining built-in gain               related and therefore allocable to gross               partnership with respect to the U.S.
                                                  with respect to the section 721(c)                      income attributable to more than one                   transferor, must satisfy the requirements
                                                  property or an amount of gain required                  class of gross income of the section                   of paragraphs (d)(1)(i), (ii), and (iii) of
                                                  to be recognized under § 1.721(c)–5T(d)                 721(c) partnership or if a deduction or                this section.
                                                  or (e), as applicable.                                  loss is not definitely related to any class               (i) The partnership must revalue all
                                                     (3) The procedural and reporting                     of gross income of the section 721(c)                  its property under § 1.704–
                                                  requirements provided in § 1.721(c)–                    partnership, the section 721(c)                        1(b)(2)(iv)(f)(6) if the revaluation would
                                                  6T(b) are satisfied.                                    partnership must apportion that                        result in a separate positive difference
                                                     (4) The U.S. transferor consents to                  deduction or loss among its classes of                 between book value and adjusted tax
                                                  extend the period of limitations on                     gross income using a reasonable method                 basis in at least one property that is not
                                                  assessment of tax as required by                        that reflects to a reasonably close extent             excluded property.
                                                  § 1.721(c)–6T(b)(5).                                    the factual relationship between the                      (ii) The partnership must apply the
                                                     (5) If the section 721(c) property is a              deduction or loss and the classes of                   gain deferral method for each property
                                                  partnership interest or property                        gross income. The section 721(c)                       (other than excluded property) for
                                                  described in the partnership look-                      partnership may allocate and apportion                 which there is a separate positive
                                                  through rule provided in § 1.721(c)–                    its interest expense and research and                  difference between book value and
                                                  2T(d), the applicable tiered-partnership                experimental expenditures under any                    adjusted tax basis resulting from the
                                                  rules provided in paragraph (d) of this                 reasonable method, including, but not                  revaluation described in paragraph
                                                  section are applied.                                    limited to, the methods prescribed in                  (d)(1) of this section (new positive
                                                     (c) Consistent allocation method—(1)                 §§ 1.861–9 and 1.861–9T (interest                      reverse section 704(c) layer). If the
                                                  In general. For each taxable year of a                  expense) and § 1.861–17 (research and
                                                  section 721(c) partnership in which                                                                            partnership has previously adopted a
                                                                                                          experimental expenditures). For this                   section 704(c) method other than the
                                                  there is remaining built-in gain in the                 purpose, the section 721(c) partnership
                                                  section 721(c) property, the section                                                                           remedial allocation method for the
                                                                                                          must allocate and apportion its                        property, the partnership satisfies the
                                                  721(c) partnership must allocate each                   deductions and losses without regard to
                                                  book item of income, gain, deduction,                                                                          requirement of paragraph (b)(1)(i)(A) of
                                                                                                          the partners’ percentage interests in the              this section by adopting the remedial
                                                  and loss with respect to the section                    partnership.
                                                  721(c) property to the U.S. transferor in                                                                      allocation method for the new positive
                                                                                                             (4) Exceptions to the consistent                    reverse section 704(c) layer.
                                                  the same percentage. For exceptions to                  allocation method—(i) Regulatory
                                                  this general rule, see paragraph (c)(4) of                                                                        (iii) The partnership must treat a
                                                                                                          allocations. A regulatory allocation (as               partner that is a partnership in which
                                                  this section.                                           defined in § 1.721(c)–1T(b)(10)) of book
                                                     (2) Determining income or gain with                                                                         the U.S. transferor is a direct or indirect
                                                                                                          income, gain, deduction, or loss with                  partner as if it were the U.S. transferor
                                                  respect to section 721(c) property. For                 respect to section 721(c) property that
                                                  purposes of applying paragraph (c)(1) of                                                                       with respect to the section 721(c)
                                                                                                          otherwise would fail to satisfy                        property solely for purposes of applying
                                                  this section, a section 721(c) partnership              paragraph (c)(1) of this section is
                                                  must attribute book income and gain to                                                                         the consistent allocation method.
                                                                                                          nevertheless deemed to satisfy that                       (2) Section 721(c) property is
                                                  each item of section 721(c) property in                 paragraph if the allocation is—
                                                  a consistent manner using any                                                                                  indirectly contributed by a U.S.
                                                                                                             (A) An allocation of income or gain to
                                                  reasonable method taking into account                                                                          transferor under the partnership look-
                                                                                                          the U.S. transferor (or a member of its
                                                  all the facts and circumstances. All                                                                           through rule. If the U.S. transferor is a
                                                                                                          consolidated group as defined in
                                                  items of book income and gain                                                                                  direct or indirect partner in the upper-
                                                                                                          § 1.1502–1(h));
                                                  attributable to an item of section 721(c)                  (B) An allocation of deduction or loss              tier partnership described in § 1.721(c)–
                                                  property will comprise a single class of                to a partner other than the U.S.                       2T(d)(1), and under § 1.721(c)–2T(d)(1),
                                                  gross income for purposes of applying                   transferor (or a member of its                         the U.S. transferor is treated as
                                                  paragraph (c)(3) of this section.                       consolidated group); or                                contributing the section 721(c) property
                                                     (3) Determining deduction or loss with                  (C) Treated as a partial acceleration               (including an interest in a partnership
                                                  respect to section 721(c) property. For                 event pursuant to § 1.721(c)–5T(d)(2).                 described in paragraph (d)(1) of this
                                                  purposes of applying paragraph (c)(1) of                   (ii) Allocation of creditable foreign tax           section) to a section 721(c) partnership,
                                                  this section, a section 721(c) partnership              expenditures. An allocation of a                       then the requirements of paragraphs
                                                  must use the principles of §§ 1.861–8                   creditable foreign tax expenditure (as                 (d)(2)(i), (ii), and (iii) of this section
                                                  and 1.861–8T to allocate and apportion                  defined in § 1.704–1(b)(4)(viii)(b)) is not            must be satisfied.
                                                  its items of deduction, except for                      subject to the consistent allocation                      (i) The section 721(c) partnership
                                                  interest expense and research and                       method.                                                must treat the upper-tier partnership as
                                                  experimental expenditures, and loss to                     (d) Tiered partnership rules. This                  the U.S. transferor of the section 721(c)
                                                  the class of gross income with respect to               paragraph (d) provides the tiered                      property solely for purposes of applying
                                                  each item of section 721(c) property as                 partnership rules referred to in                       the consistent allocation method;
                                                  determined in paragraph (c)(2) of this                  paragraph (b)(5) of this section.                         (ii) The upper-tier partnership, if it is
                                                  section. Accordingly, a deduction or                       (1) Section 721(c) property is a                    a controlled partnership with respect to
                                                  loss will be considered to be definitely                partnership interest. If the section 721(c)            the U.S. transferor, must apply the gain
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                                                  related and therefore allocable to a class              property that is contributed to a section              deferral method to its interest in the
                                                  of gross income with respect to                         721(c) partnership is an interest in a                 section 721(c) partnership; and
                                                  particular section 721(c) property                      partnership (lower-tier partnership),                     (iii) If the U.S. transferor is an indirect
                                                  whether or not there is any item of gross               then the lower-tier partnership, if it is a            partner in the upper-tier partnership
                                                  income in that class that is received or                controlled partnership with respect to                 through one or more partnerships, the
                                                  accrued during the taxable year and                     the U.S. transferor, and each partnership              principles of paragraphs (d)(2)(i) and (ii)
                                                  whether or not the amount of deduction                  in which an interest is owned (directly                of this section must be applied with
                                                  or loss exceeds the amount of gross                     or indirectly through one or more                      respect to those partnerships that are


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                            7603

                                                  controlled partnerships with respect to                 applicable, to the contribution, then,                 to comply with a requirement of
                                                  the U.S. transferor.                                    this section must be applied in a                      § 1.721(c)–3T(b)(3) that is not willful.
                                                     (e) Applicability dates—(1) In general.              manner consistent with the purpose of                  See §§ 1.721(c)–6T(f) and 1.6038B–
                                                  Except as provided in paragraphs (e)(2)                 the section 721(c) regulations. Thus, for              2T(h)(3).
                                                  and (3) of this section, this section                   example, if a U.S. transferor is a direct                 (3) Lower-tier partnership allocations.
                                                  applies to contributions occurring on or                or indirect partner in a partnership and               Notwithstanding paragraph (b)(1) of this
                                                  after August 6, 2015, and to                            that partnership contributes section                   section, an acceleration event will not
                                                  contributions occurring before August 6,                721(c) property to a lower-tier                        occur because of a reduction in
                                                  2015, resulting from an entity                          partnership, or, if a U.S. transferor                  remaining built-in gain in an interest in
                                                  classification election made under                      contributes an interest in a partnership               a partnership that is section 721(c)
                                                  § 301.7701–3 of this chapter that is filed              that owns section 721(c) property to a                 property that occurs as a result of
                                                  on or after August 6, 2015.                             lower-tier partnership, then paragraph                 allocations of book items of deduction
                                                     (2) Certain provisions. Except as                    (b) of this section applies as though the              and loss, or tax items of income and
                                                  provided in paragraph (e)(3) of this                    U.S. transferor contributed its share of               gain.
                                                  section, paragraphs (b)(1)(ii), (c)(2) and              the section 721(c) property directly.                     (4) Deemed acceleration event. A U.S.
                                                  (3), (c)(4)(i) and (ii), and (d)(1) and (2)               (f) Expiration date. The applicability               transferor may treat an acceleration
                                                  of this section apply to contributions                  of this section expires on January 17,                 event as having occurred with respect to
                                                  occurring on or after January 18, 2017,                 2020.                                                  section 721(c) property by both
                                                  and to contributions occurring before                   ■ Par. 11. Section 1.721(c)–4T is added                recognizing gain in an amount equal to
                                                  January 18, 2017, resulting from an                     to read as follows:                                    the remaining built-in gain that would
                                                  entity classification election made                                                                            have been allocated to the U.S.
                                                  under § 301.7701–3 of this chapter that                 § 1.721(c)–4T     Acceleration events                  transferor if the section 721(c)
                                                  is filed on or after January 18, 2017.                  (temporary).                                           partnership had sold the section 721(c)
                                                     (3) Election to apply the provisions                   (a) Scope. This section provides rules               property immediately before the
                                                  described in paragraph (e)(2) of this                   regarding acceleration events for                      deemed acceleration event for fair
                                                  section retroactively. Paragraphs                       purposes of applying the gain deferral                 market value and satisfying the
                                                  (b)(1)(ii), (c)(2) and (3), (c)(4)(i) and (ii),         method. Paragraph (b) of this section                  reporting required by § 1.721(c)–
                                                  and (d)(1) and (2) of this section may,                 defines an acceleration event. Paragraph               6T(b)(3)(iv). In this case, see paragraph
                                                  by election, be applied to a contribution               (c) of this section provides the                       (c) of this section regarding basis
                                                  occurring on or after August 6, 2015, but               consequences of an acceleration event.                 adjustments.
                                                  before January 18, 2017, and to a                       Paragraph (d) of this section provides                    (c) Consequences of an acceleration
                                                  contribution occurring before August 6,                 the dates of applicability, and paragraph              event. Paragraphs (c)(1) and (2) of this
                                                  2015, resulting from an entity                          (e) of this section provides the date of               section provide the consequences of an
                                                  classification election made under                      expiration. For definitions that apply for             acceleration event with respect to
                                                  § 301.7701–3 of this chapter that is filed              purposes of this section, see § 1.721(c)–              section 721(c) property, a partial
                                                  on or after August 6, 2015. The election                1T(b).                                                 acceleration event with respect to
                                                  is made by applying paragraph (b)(1)(ii),                  (b) Definition of an acceleration                   section 721(c) property to the extent
                                                  (c)(2) and (3), (c)(4)(i) and (ii), and (d)(1)          event—(1) General rules. Except as                     provided in § 1.721(c)–5T(d)(1), and a
                                                  or (2) of this section, as applicable, to               provided in this paragraph (b) and                     transfer described in section 367 of
                                                  the contribution on a timely filed                      § 1.721(c)–5T (acceleration event                      section 721(c) property to the extent
                                                  original return (including extensions) or               exceptions), an acceleration event with                provided in § 1.721(c)–5T(e).
                                                  an amended return filed no later than                   respect to section 721(c) property is any                 (1) U.S. transferor. The U.S. transferor
                                                  six months after January 18, 2017. In                   event that either would reduce the                     must recognize gain in an amount equal
                                                  order to elect to apply paragraph (c)(2)                amount of remaining built-in gain that                 to the remaining built-in gain that
                                                  or (3) of this section to a contribution                a U.S. transferor would recognize under                would have been allocated to the U.S.
                                                  described in this paragraph (e)(3), an                  the gain deferral method if the event                  transferor if the section 721(c)
                                                  election must also be made to apply                     had not occurred or could defer the                    partnership had sold the section 721(c)
                                                  paragraph (c)(3) or (2) of this section,                recognition of the remaining built-in                  property immediately before the
                                                  respectively, to the contribution.                      gain. An acceleration event includes a                 acceleration event for fair market value.
                                                     (4) Transitional rules. If a                         contribution of section 721(c) property                The U.S. transferor will increase its
                                                  contribution is described in paragraph                  to another partnership by a section                    basis in its partnership interest by the
                                                  (e)(2) of this section and no election                  721(c) partnership and a contribution of               amount of gain recognized. If the U.S.
                                                  described in paragraph (e)(3) of this                   an interest in a section 721(c)                        transferor is an indirect partner in the
                                                  section is made to apply one or more of                 partnership to another partnership. This               section 721(c) partnership through one
                                                  paragraphs (c)(2) and (3) and (c)(4)(i)                 paragraph (b) applies on a property-by-                or more tiered partnerships, appropriate
                                                  and (ii) of this section, as applicable, to             property basis.                                        basis adjustments will be made to the
                                                  the contribution, then, for purposes of                    (2) Failure to comply with a                        interests in the tiered partnerships.
                                                  paragraph (c)(1) of this section, the                   requirement of the gain deferral                          (2) Section 721(c) partnership. The
                                                  section 721(c) partnership must                         method—(i) General rule. An                            section 721(c) partnership will increase
                                                  attribute book income, gain, loss, and                  acceleration event with respect to                     its basis in the section 721(c) property
                                                  deduction to the section 721(c) property                section 721(c) property occurs when any                by the amount of built-in gain
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                                                  in a consistent manner under any                        party fails to comply with a condition                 recognized by the U.S. transferor under
                                                  reasonable method taking into account                   of the gain deferral method with respect               paragraph (c)(1) of this section. Any tax
                                                  all the facts and circumstances. If a                   to the section 721(c) property.                        consequences of the acceleration event
                                                  contribution is described in paragraph                     (ii) Certain failures to comply with                will be determined taking into account
                                                  (e)(2) of this section and no election                  procedural and reporting requirements.                 the increase in the partnership’s
                                                  described in paragraph (e)(3) of this                   Notwithstanding paragraph (b)(2)(i) of                 adjusted tax basis in the section 721(c)
                                                  section is made to apply paragraph                      this section, an acceleration event will               property. If the section 721(c) property
                                                  (d)(1) or (2) of this section, as                       not occur solely as a result of a failure              remains in the partnership after the


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                                                  7604             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  acceleration event, the increase in basis               partnership transfers section 721(c)                      (c) Successor events—(1) In general.
                                                  of the section 721(c) property may be                   property (other than an interest in a                  Notwithstanding § 1.721(c)–4T(b)(1), a
                                                  recovered using any applicable recovery                 partnership) to a domestic corporation                 successor event with respect to section
                                                  period and depreciation (or other cost                  in a transaction to which section 351                  721(c) property will not constitute an
                                                  recovery) method (including first-year                  applies.                                               acceleration event. If only a portion of
                                                  conventions) available to the                              (3) Certain incorporations of a section             an interest in a partnership is
                                                  partnership for newly purchased                         721(c) partnership. A termination event                transferred in a successor event
                                                  property of the same type placed in                     occurs upon an incorporation of a                      described in this paragraph (c), the
                                                  service on the date of the acceleration                 section 721(c) partnership into a                      principles of § 1.704–3(a)(7) apply to
                                                  event. The section 721(c) property will                 domestic corporation by any method of                  determine the remaining built-in gain in
                                                  no longer be subject to the gain deferral               incorporation (other than a method                     section 721(c) property that is
                                                  method.                                                 involving an actual distribution of                    attributable to the portion of the interest
                                                     (d) Applicability dates. This section                partnership property to the partners,                  that is transferred and the portion of the
                                                  applies to contributions occurring on or                followed by a contribution of that                     interest that is retained.
                                                  after August 6, 2015, and to                            property to a corporation), provided that                 (2) Transfers of an interest in a
                                                  contributions occurring before August 6,                the section 721(c) partnership is                      section 721(c) partnership by a U.S.
                                                  2015, resulting from an entity                          liquidated as part of the incorporation                transferor or upper-tier partnership to a
                                                  classification election made under                      transaction.                                           domestic corporation in certain
                                                  § 301.7701–3 of this chapter that is filed                 (4) Certain distributions of section                nonrecognition transactions. A
                                                  on or after August 6, 2015.                             721(c) property. A termination event                   successor event occurs if a U.S.
                                                     (e) Expiration date. The applicability               occurs if a section 721(c) partnership                 transferor or a partnership in which a
                                                  of this section expires on January 17,                  distributes section 721(c) property                    U.S. transferor is a direct or indirect
                                                  2020.                                                   either to the U.S. transferor or, if the               partner transfers (directly or indirectly
                                                  ■ Par. 12. Section 1.721(c)–5T is added                 U.S. transferor is a member of a                       through one or more partnerships) an
                                                  to read as follows:                                     consolidated group (as defined in                      interest in a section 721(c) partnership
                                                                                                          § 1.1502–1(h)) at the time of the                      to a domestic corporation in a
                                                  § 1.721(c)–5T Acceleration event                                                                               transaction to which section 351 or 381
                                                  exceptions (temporary).                                 distribution and the distribution occurs
                                                                                                          outside the seven-year period described                applies, and the gain deferral method is
                                                     (a) Scope. This section identifies                                                                          continued by treating the transferee
                                                  exceptions to the acceleration events,                  in section 704(c)(1)(B), to a member of
                                                                                                          the consolidated group.                                domestic corporation as the U.S.
                                                  which, like the rules regarding                                                                                transferor for purposes of the section
                                                  acceleration events provided in                            (5) Partnership ceases to have a
                                                                                                                                                                 721(c) regulations. If the transfer
                                                  § 1.721(c)–4T(b), apply on a property-                  partner that is a related foreign person.
                                                                                                                                                                 described in this paragraph (c)(2) also
                                                  by-property basis. Paragraph (b) of this                A termination event occurs when a
                                                                                                                                                                 results in a termination under section
                                                  section identifies the events that                      section 721(c) partnership ceases to
                                                                                                                                                                 708(b)(1)(B) of the section 721(c)
                                                  terminate the requirement to apply the                  have any direct or indirect partners that
                                                                                                                                                                 partnership, see paragraph (c)(4) of this
                                                  gain deferral method. Paragraph (c) of                  are related foreign persons with respect               section.
                                                  this section identifies the successor                   to the U.S. transferor, provided there is                 (3) Transfers of an interest in a
                                                  events that allow for the continued                     no plan for a related foreign person to                section 721(c) partnership in an
                                                  application of the gain deferral method.                subsequently become a direct or indirect               intercompany transaction. A successor
                                                  Paragraph (d) of this section identifies                partner in the partnership (or a                       event occurs if a U.S. transferor that is
                                                  the partial acceleration events.                        successor). This paragraph (b)(5) does                 a member of a consolidated group (as
                                                  Paragraph (e) of this section provides                  not apply to a distribution of section                 defined in § 1.1502–1(h)) transfers
                                                  special rules for transfers of section                  721(c) property in redemption of a                     (directly or indirectly through one or
                                                  721(c) property to a foreign corporation                related foreign person’s interest in a                 more partnerships) an interest in a
                                                  described in section 367. Paragraph (f)                 section 721(c) partnership.                            section 721(c) partnership in an
                                                  of this section allows for the continued                   (6) Fully taxable dispositions of                   intercompany transaction (as defined in
                                                  application of the gain deferral method                 section 721(c) property. A termination                 § 1.1502–13(b)(1)), and the gain deferral
                                                  if there is a fully taxable disposition of              event occurs if a section 721(c)                       method is continued by treating the
                                                  a portion of an interest in a partnership.              partnership disposes of section 721(c)                 transferee member as the U.S. transferor
                                                  Paragraph (g) of this section provides                  property in a transaction in which all                 for purposes of the section 721(c)
                                                  the dates of applicability, and paragraph               gain or loss, if any, is recognized.                   regulations. If the transfer described in
                                                  (h) of this section provides the date of                   (7) Fully taxable dispositions of an                this paragraph (c)(3) also results in a
                                                  expiration. For definitions that apply for              entire interest in a section 721(c)                    termination under section 708(b)(1)(B)
                                                  purposes of this section, see § 1.721(c)–               partnership. A termination event occurs                of the section 721(c) partnership, see
                                                  1T(b).                                                  if a U.S. transferor or a partnership in               paragraph (c)(4) of this section.
                                                     (b) Termination events—(1) In                        which a U.S. transferor is a direct or                    (4) Termination under section
                                                  general. Notwithstanding § 1.721(c)–                    indirect partner disposes of its entire                708(b)(1)(B) of a section 721(c)
                                                  4T(b)(1), a termination event with                      interest in a section 721(c) partnership               partnership. A successor event occurs if
                                                  respect to section 721(c) property will                 that owns the section 721(c) property in               there is a termination under section
                                                  not constitute an acceleration event. In                a transaction in which all gain or loss,               708(b)(1)(B) of a section 721(c)
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                                                  these cases, the section 721(c) property                if any, is recognized. This paragraph                  partnership, and the gain deferral
                                                  will no longer be subject to the gain                   (b)(7) does not apply if a U.S. transferor             method is continued by treating the new
                                                  deferral method.                                        is a member of a consolidated group (as                partnership as the section 721(c)
                                                     (2) Transfers of section 721(c)                      defined in § 1.1502–1(h)) and the                      partnership for purposes of the section
                                                  property (other than a partnership                      interest in the section 721(c) partnership             721(c) regulations.
                                                  interest) to a domestic corporation                     is transferred in an intercompany                         (5) Transactions involving tiered
                                                  described in section 351. A termination                 transaction (as defined in § 1.1502–                   partnerships—(i) Contributions of
                                                  event occurs if a section 721(c)                        13(b)(1)).                                             section 721(c) property to a lower-tier


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                           7605

                                                  partnership. A successor event occurs if                in § 1.721(c)–4T(c) (concerning the                    U.S. transferor is treated as transferring
                                                  a section 721(c) partnership contributes                consequences of an acceleration event)                 the section 721(c) property to the
                                                  the section 721(c) property to a                        for making basis adjustments apply to                  foreign corporation for purposes of
                                                  partnership that is a controlled                        the extent that the U.S. transferor is                 section 367, the tax consequences will
                                                  partnership with respect to the U.S.                    required to recognize gain under                       be determined under section 367. In this
                                                  transferor (lower-tier section 721(c)                   paragraph (d)(2) or (3) of this section.               regard, see §§ 1.367(a)–1T(c)(3)(i) and
                                                  partnership) and the requirements of                    Furthermore, if there is remaining built-              (ii), 1.367(d)–1T(d)(1), and 1.367(e)–
                                                  paragraphs (c)(5)(i)(A), (B), and (C) of                in gain with respect to the section 721(c)             2(b)(1)(iii) (providing for the aggregate
                                                  this section are satisfied.                             property after the application of this                 treatment of partnerships). However, for
                                                     (A) The lower-tier section 721(c)                    paragraph (d), the application of the                  the remaining portion of the property (if
                                                  partnership is a section 721(c)                         gain deferral method with respect to the               any), the U.S. transferor must recognize
                                                  partnership or is treated as a section                  section 721(c) property must be                        an amount of gain equal to the
                                                  721(c) partnership.                                     continued in the same manner.                          remaining built-in gain that would have
                                                     (B) The gain deferral method is                         (2) Regulatory allocations. If a                    been allocated to the U.S. transferor if
                                                  applied with respect to the section                     regulatory allocation is described in                  the section 721(c) partnership had sold
                                                  721(c) property in the hands of the                     § 1.721(c)–3T(c)(4)(i) but not in                      that portion of the section 721(c)
                                                  lower-tier section 721(c) partnership.                  § 1.721(c)–3T(c)(4)(i)(A) or (B), a partial            property immediately before the transfer
                                                     (C) The gain deferral method is                      acceleration event occurs with respect                 for fair market value. The stock in the
                                                  applied with respect to the section                     to section 721(c) property if the U.S.                 transferee foreign corporation received
                                                  721(c) partnership’s interest in the                    transferor recognizes an amount of gain                will not be subject to the gain deferral
                                                  lower-tier section 721(c) partnership.                  (but not in excess of remaining built-in               method. The rules in § 1.721(c)–4T(c)
                                                  See §§ 1.721(c)–3T(b)(5) and (d)(2).                    gain) equal to the amount of the                       (concerning the consequences of an
                                                     (ii) Contributions of an interest in a               allocation that, under the consistent                  acceleration event) for making basis
                                                  section 721(c) partnership to an upper-                 allocation method, had the regulatory                  adjustments will apply to the extent that
                                                  tier partnership. A successor event                     allocation not occurred, would have                    the U.S. transferor recognizes gain
                                                  occurs if a U.S. transferor or a                        been allocated to the U.S. transferor in               under this paragraph (e).
                                                  partnership in which a U.S. transferor is               the case of income or gain, or would not                  (f) Fully taxable dispositions of a
                                                  a direct or indirect partner contributes                have been allocated to the U.S.                        portion of an interest in a partnership.
                                                  (directly or indirectly through one or                  transferor in the case of deduction or                 If a U.S. transferor or a partnership in
                                                  more partnerships) an interest in a                     loss.                                                  which a U.S. transferor is a direct or
                                                  section 721(c) partnership to a                            (3) Certain distributions of other                  indirect partner disposes of (directly or
                                                  partnership that is a controlled                        partnership property to a partner that                 indirectly through one or more
                                                  partnership with respect to the U.S.                    result in an adjustment under section                  partnerships) a portion of an interest in
                                                  transferor (upper-tier section 721(c)                   734. A partial acceleration event occurs               a section 721(c) partnership in a
                                                  partnership) and the requirements of                    with respect to section 721(c) property                transaction in which all gain or loss, if
                                                  paragraphs (c)(5)(ii)(A), (B), (C), and (D)             if there is a distribution of other                    any, is recognized, an acceleration event
                                                  of this section are satisfied.                          property by the section 721(c)                         will not occur with respect to the
                                                     (A) The gain deferral method is                      partnership that results in a positive                 portion of the interest transferred. The
                                                  continued with respect to the section                   basis adjustment to the section 721(c)                 gain deferral method will continue to
                                                  721(c) property in the hands of the                     property under section 734. In these                   apply with respect to the section 721(c)
                                                  section 721(c) partnership.                             cases, the U.S. transferor must recognize              property of the section 721(c)
                                                     (B) The upper-tier section 721(c)                    an amount of gain (but not in excess of                partnership. The principles of § 1.704–
                                                  partnership is, or is treated as, a section             the remaining built-in gain) equal to the              3(a)(7) will apply to determine the
                                                  721(c) partnership.                                     positive basis adjustment to the section               remaining built-in gain in section 721(c)
                                                     (C) If the upper-tier section 721(c)                 721(c) property under section 734,                     property that is attributable to the
                                                  partnership directly owns its interest in               reduced (but not below zero) by the                    portion of the interest in a section 721(c)
                                                  the section 721(c) partnership, the gain                amount of gain recognized by the U.S.                  partnership that is retained. This
                                                  deferral method is applied with respect                 transferor (or a member of its                         paragraph (f) will not apply to an
                                                  to the upper-tier section 721(c)                        consolidated group (as defined in                      intercompany transaction (as defined in
                                                  partnership’s interest in the section                   § 1.1502–1(h))) under section 731(a). In               § 1.1502–13(b)(1)).
                                                  721(c) partnership. See § 1.721(c)–                     these cases, the partnership will not                     (g) Applicability dates—(1) In general.
                                                  3T(b)(5) and (d)(1).                                    increase its basis under § 1.721(c)–                   Except as provided in paragraph (g)(2)
                                                     (D) If the upper-tier section 721(c)                 4T(c)(2) by the amount of gain                         of this section, this section applies to
                                                  partnership indirectly owns its interest                recognized by the U.S. transferor.                     contributions occurring on or after
                                                  in the section 721(c) partnership                          (e) Transfers described in section 367              January 18, 2017, and to contributions
                                                  through one or more partnerships, the                   of section 721(c) property to a foreign                occurring before January 18, 2017,
                                                  principles of paragraphs (c)(5)(ii)(B) and              corporation. If a section 721(c)                       resulting from an entity classification
                                                  (C) of this section are applied with                    partnership transfers section 721(c)                   election made under § 301.7701–3 of
                                                  respect to each partnership through                     property, or a U.S. transferor or a                    this chapter that is filed on or after
                                                  which the upper-tier section 721(c)                     partnership in which a U.S. transferor is              January 18, 2017.
                                                  partnership indirectly owns an interest                 a direct or indirect partner transfers                    (2) Election to apply this section
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                                                  in the section 721(c) partnership.                      (directly or indirectly through one or                 retroactively. This section may, by
                                                     (d) Partial acceleration events—(1) In               more partnerships) all or a portion of an              election, be applied to a contribution
                                                  general. Notwithstanding § 1.721(c)–4T,                 interest in a section 721(c) partnership               occurring on or after August 6, 2015, but
                                                  a partial acceleration event with respect               that owns section 721(c) property, to a                before January 18, 2017, and to a
                                                  to section 721(c) property does not                     foreign corporation in a transaction                   contribution occurring before August 6,
                                                  constitute an acceleration event. In                    described in section 367, then, the                    2015, resulting from an entity
                                                  these cases, except as provided in                      property will no longer be subject to the              classification election made under
                                                  paragraph (d)(3) of this section, the rules             gain deferral method. To the extent any                § 301.7701–3 of this chapter that is filed


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                                                  7606             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  on or after August 6, 2015. The election                   (B) Whether the property is an                      including a description of any
                                                  is made by applying this section to the                 intangible described in section 197(f)(9);             regulatory allocations;
                                                  contribution on a timely filed original                    (C) A calculation of the built-in gain,                (ii) The proportion (expressed as a
                                                  return (including extensions) or an                     the basis, and fair market value on the                percentage) in which the book income,
                                                  amended return filed no later than six                  date of the contribution, including the                gain, deduction, and loss with respect to
                                                  months after January 18, 2017.                          amount of gain recognized by the U.S.                  the section 721(c) property was
                                                     (h) Expiration date. The applicability               transferor, if any, on the gain deferral               allocated among the U.S. transferor and
                                                  of this section expires on January 17,                  contribution;                                          related persons that are partners in the
                                                  2020.                                                      (D) The name, U.S. taxpayer                         section 721(c) partnership under the
                                                                                                          identification number (if any), address,               consistent allocation method;
                                                  ■ Par. 13. Section 1.721(c)–6T is added
                                                                                                          and country of organization (if any) of                   (iii) The amount of remaining built-in
                                                  to read as follows:                                                                                            gain at the beginning of the taxable year,
                                                                                                          each direct or indirect partner in the
                                                  § 1.721(c)–6T Procedural and reporting                  section 721(c) partnership that is a                   the remedial income allocated to the
                                                  requirements (temporary).                               related person with respect to the U.S.                U.S. transferor under the remedial
                                                     (a) Scope. This section provides                     transferor, and a description of each                  allocation method, the amount of built-
                                                  procedural and reporting requirements                   partner’s interest in capital and profits              in gain taken into account by reason of
                                                  that must be satisfied under § 1.721(c)–                immediately after the gain deferral                    an acceleration event or partial
                                                  3T(b)(3) of the gain deferral method.                   contribution; and                                      acceleration event (if any), the
                                                  Paragraph (b) of this section describes                    (E) When the section 721(c) property                partnership’s adjustment to its tax basis
                                                  the procedural and reporting                            is a partnership interest, the information             in the section 721(c) property, and the
                                                  requirements of a U.S. transferor.                      described in paragraphs (b)(2)(i)(A)                   remaining built-in gain at the end of the
                                                  Paragraph (c) of this section describes                 through (D) of this section with respect               taxable year;
                                                                                                          to each property of a lower-tier                          (iv) A declaration stating whether an
                                                  information required to be reported with
                                                                                                          partnership to which the gain deferral                 acceleration event or partial acceleration
                                                  respect to related foreign persons and
                                                                                                          method is applied under § 1.721(c)–                    event occurred during the taxable year,
                                                  partnerships. Paragraph (d) of this
                                                                                                          3T(d)(1);                                              the date of the event, and a description
                                                  section describes the procedural and
                                                                                                             (ii) A statement, titled ‘‘Consent to               of the event (including a citation to the
                                                  reporting requirements of a section
                                                                                                          Extend the Time to Assess Tax Pursuant                 relevant paragraph of § 1.721(c)–5T(d)
                                                  721(c) partnership with a section 6031
                                                                                                          to the Gain Deferral Method under                      in the case of a partial acceleration
                                                  filing obligation. Paragraph (e) of this                                                                       event, and whether the acceleration
                                                  section provides the proper signatory for               Section 721(c),’’ completed and
                                                                                                          executed in the manner prescribed in                   event is described in § 1.721(c)–
                                                  the information provided under this                                                                            4T(b)(4));
                                                  section. Paragraph (f) of this section                  forms and instructions, extending the
                                                                                                          period of limitations on the assessment                   (v) A description of a termination
                                                  provides relief for certain failures to                                                                        event or any successor event that
                                                  comply that are not willful. Paragraph                  of tax as described in paragraph (b)(5) of
                                                                                                          this section;                                          occurred during the taxable year with a
                                                  (g) of this section provides the dates of                                                                      citation to the relevant paragraph of
                                                  applicability, and paragraph (h) of this                   (iii) A copy of the waiver of treaty
                                                                                                          benefits described in paragraphs (c)(1)                § 1.721(c)–5T(b) or (c), the date of the
                                                  section provides the date of expiration.                                                                       event, and, in the case of a successor
                                                  For definitions that apply for purposes                 of this section (if any);
                                                                                                             (iv) Information relating to the section            event, the name, address, and U.S.
                                                  of this section, see § 1.721(c)–1T(b).                                                                         taxpayer identification number (if any)
                                                                                                          721(c) partnership described in
                                                     (b) Procedural and reporting                         paragraph (c)(2) of this section (if any);             of any successor partnership, lower-tier
                                                  requirements of a U.S. transferor—(1) In                   (v) With respect to any foreign                     partnership, upper-tier partnership, or
                                                  general. This paragraph (b) describes the               partnership (or partnership treated as                 U.S. corporation (as applicable);
                                                  procedural and reporting requirements                   foreign under paragraph (b)(4) of this                    (vi) A description of all transfers of
                                                  that a U.S. transferor (as defined                      section) the information required under                721(c) property to a foreign corporation
                                                  § 1.721(c)–1T(b)(18)(i)) must satisfy in                § 1.6038B–2(c)(1) through (7); and                     described in § 1.721–5T(e) that occurred
                                                  applying the gain deferral method. The                     (vi) The information required under                 during the taxable year, and for each
                                                  information required under this                         paragraph (b)(3) of this section.                      transfer, the date of the transfer, the
                                                  paragraph (b) must be included with the                    (3) Annual reporting relating to gain               section 721(c) property transferred, and
                                                  U.S. transferor’s timely filed return on                deferral method. A U.S. transferor must                the name, address, and U.S. taxpayer
                                                  (or attached to) the appropriate forms                  file an annual statement, titled ‘‘Annual              identification number (if any) of the
                                                  (including Form 8865, Schedule O,                       Statement of Application of the Gain                   foreign transferee corporation;
                                                  Transfer of Property to a Foreign                       Deferral Method under Section 721(c),’’                   (vii) With respect to section 721(c)
                                                  Partnership), and must be submitted in                  for each gain deferral contribution. The               property for which a waiver of treaty
                                                  the form and manner and to the extent                   information in the statement must be                   benefits was filed under paragraph
                                                  prescribed by the form (and its                         with respect to the partnership taxable                (b)(2)(iii) of this section, a declaration
                                                  accompanying instructions).                             year that ends with, or within, the                    that, after exercising reasonable
                                                     (2) Reporting of a gain deferral                     taxable year of the U.S. transferor,                   diligence, to the best of the U.S.
                                                  contribution. A U.S. transferor must                    beginning with the partnership’s taxable               transferor’s knowledge and belief, all
                                                  report the following information with                   year that includes the date of the gain                income from the section 721(c) property
                                                  respect to a gain deferral contribution:                deferral contribution and ending with                  allocated to the partners during the
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                                                     (i) A statement, titled ‘‘Statement of               the last taxable year in which the gain                taxable year remained subject to
                                                  Application of the Gain Deferral Method                 deferral method is applied to the section              taxation as income effectively connected
                                                  under Section 721(c),’’ that contains the               721(c) property. The statement must                    with the conduct of a trade or business
                                                  following information with respect to                   contain the following information:                     within the United States (under either
                                                  the section 721(c) property—                               (i) The amount of book income, gain,                section 871 or 882) for all direct or
                                                     (A) A description of the property and                deduction, and loss and tax items                      indirect partners that are related foreign
                                                  recovery period (or periods) for the                    allocated to the U.S. transferor with                  persons with respect to the U.S.
                                                  property;                                               respect to the section 721(c) property,                transferor (regardless of whether any


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                             7607

                                                  such partner was a partner at the time                     (5) Extension of period of limitations              (b) of this section if the section 721(c)
                                                  of the gain deferral contribution), and,                on assessment of tax. In order to comply               partnership were a U.S. transferor.
                                                  that neither the partnership nor any                    with the gain deferral method, a U.S.                     (3) Schedules K–1 for related foreign
                                                  such partner has made any claim under                   transferor must extend the period of                   partners. If a section 721(c) partnership
                                                  any income tax convention to an                         limitations on the assessment of tax:                  does not have a filing obligation under
                                                  exemption from U.S. income tax or a                        (i) With respect to the gain realized               section 6031, the U.S. transferor must
                                                  reduced rate of U.S. income taxation on                 but not recognized on a gain deferral                  obtain a Schedule K–1 (Form 8865),
                                                  income derived from the use of the                      contribution, through the close of the                 Partner’s Share of Income, Deduction,
                                                  section 721(c) property;                                eighth full taxable year following the                 Credits, etc., for all related foreign
                                                     (viii) A statement, titled ‘‘Consent to              U.S. transferor’s taxable year that                    persons that are direct or indirect
                                                  Extend the Time To Assess Tax                           includes the date of the gain deferral                 partners in the section 721(c)
                                                  Pursuant to the Gain Deferral Method                    contribution;                                          partnership.
                                                  under Section 721(c),’’ completed and                      (ii) With respect to all book and tax                  (d) Reporting and procedural
                                                  executed as prescribed in forms and                     items with respect to the section 721(c)               requirements of a section 721(c)
                                                  instructions, extending the period of                   property allocated to the U.S. transferor              partnership with a section 6031 filing
                                                  limitations on the assessment of tax, in                in the partnership’s taxable year that                 obligation—(1) Waiver of treaty benefits.
                                                  the case of a gain deferral contribution,               includes the date of the gain deferral                 A section 721(c) partnership with a
                                                  as described in paragraph (b)(5)(ii) of                 contribution and the subsequent two                    return filing obligation under section
                                                  this section, and, in the case of certain               years, through the close of the sixth full             6031 must include its waiver of treaty
                                                  contributions on which gain is                          taxable year following such taxable year               benefits described in paragraph (c)(1) of
                                                  recognized, as described in paragraph                   with which, or within which, the                       this section with its tax return for the
                                                  (b)(5)(iii) of this section;                            partnership’s taxable year ends; and                   taxable year that includes the date of the
                                                                                                             (iii) With respect to the gain                      gain deferral contribution.
                                                     (ix) If the section 721(c) partnership is
                                                                                                          recognized on a contribution of section                   (2) Information on Schedule K–1. A
                                                  a partnership that does not have a filing
                                                                                                          721(c) property to a section 721(c)                    section 721(c) partnership with a return
                                                  obligation under section 6031, the
                                                                                                          partnership for which the gain deferral                filing obligation under section 6031
                                                  information described in § 1.6038–3(g)                  method is not applied, if the                          must provide the relevant information
                                                  (contents of information returns                        contribution occurs within five                        necessary for the U.S. transferor to
                                                  required of certain United States                       partnership taxable years following a                  comply with the requirements in
                                                  persons with respect to controlled                      partnership taxable year that includes                 paragraphs (b)(2) and (3) of this section
                                                  foreign partnerships), if not already                   the date of a gain deferral contribution,              with the U.S. transferor’s Schedule K–
                                                  reported elsewhere, without regard to                   through the close of the fifth full taxable            1 (Form 1065), Partner’s Share of
                                                  whether the section 721(c) partnership                  year following the U.S. transferor’s                   Income, Deductions, Credits, etc. The
                                                  is a controlled foreign partnership                     taxable year that includes the date of the             partnership must also attach to its Form
                                                  within the meaning of section 6038. If                  contribution on which gain is                          1065 a Schedule K–1 (Form 1065) for
                                                  the U.S. transferor is not a controlling                recognized.                                            each partner that is a related foreign
                                                  fifty-percent partner (as defined in                       (c) Information with respect to section             person with respect to the U.S.
                                                  § 1.6038–3(a)), the U.S. transferor                     721(c) partnerships and related foreign                transferor.
                                                  complies with the requirement of this                   persons—(1) Effectively connected                         (e) Signatory. The statements required
                                                  paragraph (b)(3)(ix) by providing only                  income. If the gain deferral method is                 in this section must be signed under
                                                  the information described in § 1.6038–                  applied with respect to a contribution of              penalties of perjury by an agent of the
                                                  3(g)(1);                                                section 721(c) property that satisfies the             U.S. transferor, the related foreign
                                                     (x) A description of all section 721(c)              condition in § 1.721(c)–3T(b)(1)(ii), the              person that is a direct or indirect partner
                                                  property contributed by the U.S.                        U.S. transferor must obtain a statement                in the section 721(c) partnership, or the
                                                  transferor to the section 721(c)                        from the section 721(c) partnership and                section 721(c) partnership, as
                                                  partnership (including pursuant to a                    from each related foreign person that is               applicable, that is authorized to sign
                                                  contribution described in § 1.721(c)–                   a direct or indirect partner in the section            under a general or specific power of
                                                  2T(d)(1)) during the taxable year to                    721(c) partnership, titled ‘‘Statement of              attorney, or by an appropriate party. For
                                                  which the gain deferral method is not                   Waiver of Treaty Benefits under                        the U.S. transferor, an appropriate party
                                                  applied; and                                            § 1.721(c)–6T,’’ pursuant to which the                 is a person described in § 1.367(a)–
                                                     (xi) The information required in                     partner and the partnership waive any                  8(e)(1). For a partnership with a section
                                                  paragraphs (c)(2) and (3) of this section               claim under any income tax convention                  6031 filing obligation, an appropriate
                                                  for related foreign persons that are                    (whether or not currently in force at the              party is any party authorized to sign
                                                  direct or indirect partners in the section              time of the contribution) to an                        Form 1065.
                                                  721(c) partnership and the section                      exemption from U.S. income tax or a                       (f) Relief for certain failures to file or
                                                  721(c) partnership itself (if any).                     reduced rate of U.S. income taxation on                failures to comply that are not willful—
                                                     (4) Domestic partnerships treated as                 income derived from the use of the                     (1) In general. This paragraph (f)(1)
                                                  foreign. Solely for purposes of this                    section 721(c) property for the period                 provides relief from the failure to
                                                  section, a U.S. transferor must treat a                 during which the section 721(c)                        comply with the procedural and
                                                  domestic section 721(c) partnership as a                property is subject to the gain deferral               reporting requirements of the gain
                                                  foreign partnership if the partnership                  method.                                                deferral method prescribed by
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                                                  was formed on or after January 18, 2017.                   (2) Partnerships in tiered-partnership              § 1.721(c)–3T(b)(3) and provided in
                                                  If the section 721(c) partnership has an                structures applying the gain deferral                  paragraph (b) of this section if there is
                                                  information return filing obligation                    method. If the gain deferral method is                 a failure to file or to include information
                                                  under section 6031, that requirement is                 applied as a result of a transaction                   required by this section (failure to
                                                  not affected by the requirement of this                 described in § 1.721(c)–3T(d), the U.S.                comply). A failure to comply will be
                                                  paragraph (b)(4) that the U.S. transferor               transferor must supply all information                 deemed not to have occurred for
                                                  treat the partnership as a foreign                      that a section 721(c) partnership would                purposes of § 1.721(c)–3T(b)(3) if the
                                                  partnership.                                            be required to report under paragraph                  U.S. transferor demonstrates that the


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                                                  7608             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  failure was not willful using the                       return if both date one is later than date             on or after August 6, a U.S. transferor (or
                                                  procedure provided in this paragraph                    two and a consent to extend the period                 a domestic partnership in which a U.S.
                                                  (f). For this purpose, willful is to be                 of limitations on assessment of tax with               transferor is a direct or indirect partner)
                                                  interpreted consistent with the meaning                 respect to the gain realized but not                   must fulfill any reporting requirements
                                                  of that term in the context of other civil              recognized on the gain deferral                        imposed under sections 6038, 6038B,
                                                  penalties, which would include a failure                contribution for the U.S. transferor’s                 and 6046A and the regulations
                                                  due to gross negligence, reckless                       taxable year that includes the date of the             thereunder with respect to the
                                                  disregard, or willful neglect. Whether a                contribution was previously submitted                  contribution of the section 721(c)
                                                  failure to comply was willful will be                   with a Form 8865, Schedule O. The                      property to the section 721(c)
                                                  determined by the Director of Field                     amended return and either a Form 8865,                 partnership.
                                                  Operations, Cross Border Activities                     Schedule O, or a copy of the previously                   (h) Expiration date. The applicability
                                                  Practice Area of Large Business &                       filed Form 8865, Schedule O, as the case               of this section expires on January 17,
                                                  International (or any successor to the                  may be, must be filed with the Internal                2020.
                                                  roles and responsibilities of such                      Revenue Service at the location where                  ■ Par. 14. Section 1.721(c)–7T is added
                                                  position, as appropriate) (Director)                    the U.S. transferor filed its original                 to read as follows:
                                                  based on all the facts and                              return. The U.S. transferor may submit
                                                  circumstances. The U.S. transferor must                 a request for relief from the penalty                  § 1.721(c)–7T    Examples (temporary).
                                                  submit a request for relief and an                      under section 6038B as part of the same                   (a) Presumed facts. For purposes of
                                                  explanation as provided in paragraph                    submission. See § 1.6038B–2T(h)(3).                    the examples in paragraph (b) of this
                                                  (f)(2) of this section. A U.S. transferor                  (ii) Notice requirement. In addition to             section, assume that there are no other
                                                  whose failure to comply is determined                   the requirements of paragraph (f)(2)(i) of             transactions that are related to the
                                                  not to be willful under this paragraph                  this section, the U.S. transferor must                 transactions described in the examples
                                                  will be subject to a penalty under                      comply with the notice requirements of                 and that all partnership allocations have
                                                  section 6038B if it fails to satisfy the                this paragraph (f)(2)(ii). If any taxable              substantial economic effect under
                                                  applicable reporting requirements under                 year of the U.S. transferor is under                   section 704(b). For definitions that
                                                  that section and does not demonstrate                   examination when the amended return                    apply for purposes of this section, see
                                                  that the failure was due to reasonable                  is filed, a copy of the amended return                 § 1.721(c)–1T(b). Except where
                                                  cause and not willful neglect. See                      must be delivered to the Internal                      otherwise indicated, the following facts
                                                  § 1.6038B–2(h). The determination of                    Revenue Service personnel conducting                   are presumed—
                                                  whether the failure to comply was                       the examination. If no taxable year of                    (1) USP and USX are domestic
                                                  willful under this section has no effect                the U.S. transferor is under examination               corporations that each use a calendar
                                                  on any request for relief made under                    when the amended return is filed, a                    taxable year. USX is not a related person
                                                  § 1.6038B–2(h).                                         copy of the amended return must be                     with respect to USP.
                                                                                                          delivered to the Director.                                (2) CFC1, CFC2, FX, and FY are
                                                     (2) Procedures for establishing that a                  (g) Applicability dates—(1) In general.
                                                  failure to comply was not willful—(i)                                                                          foreign corporations.
                                                                                                          Except as provided in paragraphs (g)(2)                   (3) USP wholly owns CFC1 and CFC2.
                                                  Time and manner of submission. A U.S.                   and (3) of this section, this section
                                                  transferor’s statement that a failure to                                                                       Neither FX nor FY is a related person
                                                                                                          applies with respect to contributions                  with respect to USP or with respect to
                                                  comply was not willful will be                          occurring on or after January 18, 2017,
                                                  considered only if, promptly after the                                                                         each other.
                                                                                                          and with respect to contributions                         (4) PRS1, PRS2, and PRS3 are foreign
                                                  U.S. transferor becomes aware of the                    occurring before January 18, 2017,
                                                  failure, an amended return is filed for                                                                        entities classified as partnerships for
                                                                                                          resulting from an entity classification                U.S. tax purposes. A partnership
                                                  the taxable year to which the failure                   election made under § 301.7701–3 of
                                                  relates that includes the information                                                                          interest in PRS1, PRS2, and PRS3 is not
                                                                                                          this chapter that is filed on or after                 described in section 475(c)(2).
                                                  that should have been included with the                 January 18, 2017.                                         (5) A taxable year is referred to, for
                                                  original return for such taxable year or                   (2) Reporting relating to effectively               example, as year 1.
                                                  that otherwise complies with the rules                  connected income. Paragraphs (b)(2)(iii),                 (6) A partner in a partnership has the
                                                  of this section as well as a written                    (b)(3)(vii), and (d)(1) of this section                same percentage interest in income,
                                                  statement explaining the reasons for the                apply to a contribution occurring on or                gain, loss, deduction, and capital of the
                                                  failure to comply. The U.S. transferor                  after August 6, 2015, and to a                         partnership.
                                                  also must file, with the amended return,                contribution occurring before August 6,                   (7) No property is described in section
                                                  a Form 8865, Schedule O, and a                          2015, resulting from an entity                         197(f)(9) in the hands of a contributing
                                                  statement (as described in paragraph                    classification election made under                     partner.
                                                  (b)(5) of this section), completed and                  § 301.7701–3 of this chapter that is filed                (8) No partnership is a controlled
                                                  executed as prescribed in forms and                     on or after August 6, 2015, and, in either             partnership solely under the facts and
                                                  instructions, consenting to extend the                  case, provided § 1.721(c)–3T(b)(1)(ii)                 circumstances test in § 1.721(c)–
                                                  period of limitations on assessment of                  applies to the contribution. To the                    1T(b)(4).
                                                  tax with respect to the gain realized but               extent that a previously filed return did                 (b) Examples. The application of the
                                                  not recognized on the gain deferral                     not comply with paragraph (b)(2)(iii),                 rules stated in §§ 1.721(c)–1T through
                                                  contribution to the later of the close of               (b)(3)(vii), or (d)(1) of this section, an             1.721(c)–6T may be illustrated by the
                                                  the eighth full taxable year following the              amended return complying with such                     following examples:
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                                                  taxable year during which the                           paragraphs must be filed no later than
                                                  contribution occurred (date one), or the                six months after January 18, 2017.                        Example 1. Determining if a partnership is
                                                  close of the third full taxable year                       (3) Transition rules. For transfers                 a section 721(c) partnership. (i) Facts. In year
                                                                                                                                                                 1, USP and CFC1 form PRS1 as equal
                                                  ending after the date on which the                      occurring on or after August 6, 2015,                  partners. CFC1 contributes cash of $1.5
                                                  required information is provided to the                 and for transfers occurring before                     million to PRS1, and USP contributes three
                                                  Director (date two). However, the U.S.                  August 6, 2015, resulting from an entity               properties to PRS1: A patent with a book
                                                  transferor is not required to file a Form               classification election made under                     value of $1.2 million and an adjusted tax
                                                  8865, Schedule O, with the amended                      § 301.7701–3 of this chapter that is filed             basis of zero, a security (within the meaning



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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                                7609

                                                  of section 475(c)(2)) with a book value of              because more than 90 percent of the value of           period)). PRS2 has $6 million of tax
                                                  $100,000 and an adjusted tax basis of                   the property of PRS2 consists of excluded              amortization. Under the PRS2 partnership
                                                  $20,000, and a machine with a book value of             property described in § 1.721(c)–1T(b)(6)(i)           agreement, PRS2 allocates $8 million of book
                                                  $200,000 and an adjusted tax basis of                   through (iii) (the security and the machine),          amortization to CFC2 and $16 million of
                                                  $600,000.                                               any interest in PRS2 is excluded property.             book amortization to PRS1. Because of the
                                                     (ii) Results. (A) Under § 1.721(c)–                  Therefore, the 40-percent interest in PRS2             application of the ceiling rule, PRS2 allocates
                                                  1T(b)(18)(i), USP is a U.S. transferor because          contributed by USP to PRS1 is not section              $6 million of tax amortization to CFC2 and
                                                  USP is a U.S. person and not a domestic                 721(c) property. Accordingly, USP’s                    $0 of tax amortization to PRS1. Because the
                                                  partnership. Under § 1.721(c)–1T(b)(2), the             contribution of its interest in PRS2 to PRS1           ceiling rule would cause a disparity of $2
                                                  patent has built-in gain of $1.2 million. The           is not subject to § 1.721(c)–2T(b).                    million between CFC2’s book and tax
                                                  patent is not excluded property under                      Example 3. Assets-over tiered partnerships.         amortization, PRS2 must make a remedial
                                                  § 1.721(c)–1T(b)(6). Therefore, under                   (i) Facts. In year 1, USP and CFC1 form PRS1           allocation of $2 million of tax amortization
                                                  § 1.721(c)–1T(b)(15)(i), the patent is section          as equal partners. USP contributes a patent            to CFC2 and an offsetting remedial allocation
                                                  721(c) property because it is property, other           with a book value of $300 million and an               of $2 million of taxable income to PRS1.
                                                  than excluded property, with built-in gain              adjusted tax basis of $30 million (USP                    (B) PRS1’s distributive share of each of
                                                  that is contributed by a U.S. transferor, USP.          contribution). CFC1 contributes cash of $300           PRS2’s items with respect to the patent is $16
                                                     (B) Under § 1.721(c)–1T(b)(2), the security          million. Immediately thereafter, PRS1                  million of book amortization, $0 of tax
                                                  has built-in gain of $80,000. Under                     contributes the patent to PRS2 in exchange             amortization, and $2 million of taxable
                                                  § 1.721(c)–1T(b)(6)(ii), the security is                for a two-thirds interest (PRS1 contribution),         income from the remedial allocation from
                                                  excluded property because it is described in            and CFC2 contributes cash of $150 million in           PRS1. Under § 1.704–3(a)(9), PRS1 must
                                                  section 475(c)(2). Therefore, the security is           exchange for a one-third interest. The patent          allocate its distributive share of each of
                                                  not section 721(c) property.                            has a remaining recovery period of 5 years             PRS2’s items with respect to the patent in a
                                                     (C) The tax basis of the machine exceeds             out of a total of 15 years. With respect to all        manner that takes into account USP’s
                                                  its book value. Under § 1.721(c)–1T(b)(6)(iii),         contributions described in § 1.721(c)–2T(b),           remaining built-in gain in the patent.
                                                  the machine is excluded property and                    the de minimis exception does not apply,               Therefore, PRS1 allocates $2 million of
                                                  therefore is not section 721(c) property.               and the gain deferral method is applied.               taxable income to USP. Under § 1.704–
                                                     (D) Under § 1.721(c)–1T(b)(12), CFC1 is a            Thus, the partnership agreements of PRS1               3T(a)(13)(ii), PRS1 treats its distributive share
                                                  related person with respect to USP, and                 and PRS2 provide that the partnership will             of each of PRS2’s items of amortization with
                                                  under § 1.721(c)–1T(b)(11), CFC1 is a related           make allocations under section 704(c) using            respect to PRS2’s patent as items of
                                                  foreign person. Because USP and CFC1                    the remedial allocation method under                   amortization with respect to PRS1’s interest
                                                  collectively own at least 80 percent of the             § 1.704–3(d).                                          in PRS2. Under the PRS1 partnership
                                                  interests in the capital, profits, deductions, or          (ii) Results: USP contribution. PRS1 is a           agreement, PRS1 allocates $8 million of book
                                                  losses of PRS1, under § 1.721(c)–1T(b)(14)(i),          section 721(c) partnership as a result of the          amortization and $0 of tax amortization to
                                                  PRS1 is a section 721(c) partnership upon the           USP contribution.                                      CFC1, and $8 million of book amortization
                                                  contribution by USP of the patent.                         (iii) Results: PRS1 contribution. (A) For           and $0 of tax amortization to USP. Because
                                                     (E) The de minimis exception described in            purposes of determining whether PRS2 is a              the ceiling rule would cause a disparity of $8
                                                  § 1.721(c)–2T(c) does not apply to the                  section 721(c) partnership as a result of the          million between CFC1’s book and tax
                                                  contribution because during PRS1’s year 1               PRS1 contribution, under § 1.721(c)–2T(d)(1),          amortization, PRS1 must make a remedial
                                                  the sum of the built-in gain with respect to            USP is treated as contributing to PRS2 its             allocation of $8 million of tax amortization
                                                  all section 721(c) property contributed in              share of the patent that PRS1 actually                 to CFC1. PRS1 must also make an offsetting
                                                  year 1 to PRS1 is $1.2 million, which exceeds           contributes to PRS2. USP and CFC1 are each             remedial allocation of $8 million of taxable
                                                  the de minimis threshold of $1 million. As              one-third indirect partners in PRS2. Taking            income to USP. USP reports $10 million of
                                                  a result, under § 1.721(c)–2T(b), section               into account the one-third interest in PRS2            taxable income ($2 million of remedial
                                                  721(a) does not apply to USP’s contribution             directly owned by CFC2, USP, CFC1, and                 income from PRS2 and $8 million of
                                                  of the patent to PRS1, unless the                       CFC2 collectively own at least 80 percent of           remedial income from PRS1).
                                                  requirements of the gain deferral method are            the interests in PRS2. Thus, PRS2 is a section            Example 4. Section 721(c) partnership
                                                  satisfied.                                              721(c) partnership as a result of the PRS1             ceases to have a related foreign person as a
                                                     Example 2. Determining if partnership                contribution.                                          partner. (i) Facts. In year 1, USP and CFC1
                                                  interest is section 721(c) property. (i) Facts.            (B) Under § 1.721(c)–2T(b), section 721(a)          form PRS1. USP contributes a trademark with
                                                  In year 1, USP and FX form PRS2. USP                    does not apply to PRS1’s contribution of the           a built-in gain of $5 million in exchange for
                                                  contributes a security (within the meaning of           patent to PRS2, unless the requirements of             a 60-percent interest, and CFC1 contributes
                                                  section 475(c)(2)) with a book value of                 the gain deferral method are satisfied. Under          other property in exchange for the remaining
                                                  $100,000 and an adjusted tax basis of $20,000           § 1.721(c)–3T(b), the gain deferral method             40-percent interest. With respect to all
                                                  and a building located in country X with a              must be applied with respect to the patent.            contributions described in § 1.721(c)–2T(b),
                                                  book value of $30,000 and an adjusted tax               In addition, under § 1.721(c)–3T(d)(2),                the de minimis exception does not apply,
                                                  basis of $8,000 in exchange for a 40-percent            because PRS1 is a controlled partnership               and the gain deferral method is applied. On
                                                  interest. FX contributes a machine with a               with respect to USP, the gain deferral method          day 1 of year 4, CFC1 sells its entire interest
                                                  book value of $195,000 and an adjusted tax              must be applied with respect to PRS1’s                 in PRS1 to FX. There is no plan for a related
                                                  basis of $250,000 in exchange for a 60-                 interest in PRS2, and, solely for purposes of          foreign person with respect to USP to
                                                  percent interest.                                       applying the consistent allocation method,             subsequently become a partner in PRS1 (or
                                                     (ii) Results. PRS2 is not a section 721(c)           PRS2 must treat PRS1 as the U.S. transferor.           a successor).
                                                  partnership because FX is not a related                 As stated in paragraph (i) of this Example 3,             (ii) Results. (A) PRS1 is a section 721(c)
                                                  person with respect to USP, USP’s                       the gain deferral method is applied. PRS2 is           partnership.
                                                  contributions to PRS2 are not subject to                a controlled partnership with respect to USP.             (B) With respect to year 4, under
                                                  § 1.721(c)–2T(b).                                       Under § 1.721(c)–5T(c)(5)(i), the PRS1                 § 1.721(c)–5T(b)(5), the sale is a termination
                                                     (iii) Alternative facts and results. (A)             contribution is a successor event with respect         event because, as a result of CFC1’s sale of
                                                  Assume the same facts as in paragraph (i) of            to the USP contribution.                               its interest, PRS1 will no longer have a
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                                                  this Example 2. In addition, USP and CFC1                  (iv) Results: Application of remedial               partner that is a related foreign person, and
                                                  form PRS1 as equal partners. CFC1                       allocation method. (A) Under § 1.704–3(d)(2),          there is no plan for a related foreign person
                                                  contributes cash of $130,000 to PRS1, and               in year 1, PRS2 has $24 million of book                to subsequently become a partner in PRS1 (or
                                                  USP contributes its 40-percent interest in              amortization with respect to the patent ($6            a successor). Thus, under § 1.721(c)–5T(b)(1),
                                                  PRS2.                                                   million ($30 million of book value equal to            the trademark is no longer subject to the gain
                                                     (B) PRS2’s property consists of a security           adjusted tax basis divided by the 5-year               deferral method.
                                                  and a machine that are excluded property,               remaining recovery period) plus $18 million               Example 5. Transfer described in section
                                                  and a building with built-in gain in excess of          ($270 million excess of book value over tax            367 of section 721(c) property to a foreign
                                                  $20,000. Under § 1.721(c)–1T(b)(6)(iv),                 basis divided by the new 15-year recovery              corporation. (i) Facts. In year 1, USP, CFC1,



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                                                  7610             Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations

                                                  and USX form PRS1. USP contributes a                    of the book value of the IP over its adjusted          capital account and an adjusted tax basis of
                                                  patent with a built-in gain of $5 million in            tax basis at the time of the contribution ($600        $130 million.
                                                  exchange for a 60-percent interest, CFC1                million) using any recovery period and
                                                  contributes other property in exchange for a            amortization method that would have been               ■  Par. 15. Section 1.6038B–2 is
                                                  30-percent interest, and USX contributes                available to PRS1 if the property had been             amended by:
                                                  cash in exchange for a 10-percent interest.             newly purchased property from an unrelated             ■ 1. Revising paragraphs (a)(1)(i) and
                                                  With respect to all contributions described in          party. Thus, under section 197(a), PRS1 must           (ii), (a)(3), (c)(6) and (c)(7)(v).
                                                  § 1.721(c)–2T(b), the de minimis exception              amortize $600 million of the IP’s book value           ■ 2. Adding paragraphs (a)(1)(iii) and
                                                  does not apply, and the gain deferral method            ratably over 15 years for book purposes, and           (c)(8) and (9).
                                                  is applied. In year 3, when the patent has              PRS1 will have $40 million of book                     ■ 3. Revising paragraphs (h)(1)
                                                  remaining built-in gain, PRS1 transfers the             amortization per year without any tax                  introductory text and (h)(3).
                                                  patent to FX in a transaction described in              amortization. Under the partnership                    ■ 4. Adding paragraphs (j)(4) and (5).
                                                  section 351.                                            agreement, in year 1, PRS1 allocates book                 The revisions and additions read as
                                                     (ii) Results. (A) PRS1 is a section 721(c)           amortization of $24 million to USP, $12
                                                  partnership.                                                                                                   follows.
                                                                                                          million to CFC1, and $4 million to FX.
                                                     (B) With respect to year 3, the transfer of          Because in year 1 the ceiling rule would               § 1.6038B–2 Reporting of certain transfers
                                                  the patent to FX is a transaction described in          cause a disparity between FX’s allocations of          to foreign partnerships.
                                                  section 367(d). Therefore, under § 1.721(c)–            book and tax amortization, PRS1 makes a
                                                  5T(e), the patent is no longer subject to the                                                                     (a) * * *
                                                                                                          remedial allocation of tax amortization of $4
                                                  gain deferral method. Under §§ 1.367(d)–                million to FX and an offsetting remedial
                                                                                                                                                                    (1) * * *
                                                  1T(d)(1) and 1.367(a)–1T(c)(3)(i), for                  allocation of $4 million of taxable income to             (i) Immediately after the transfer, the
                                                  purposes of section 367(d), USP and USX are             USP. In year 1, the ceiling rule would also            United States person owns, directly,
                                                  treated as transferring their proportionate             cause a disparity between CFC1’s allocations           indirectly, or by attribution, at least a
                                                  share of the patent actually transferred by             of book and tax amortization. However,                 10-percent interest in the partnership, as
                                                  PRS1 to FX. Under § 1.721(c)–5T(e), to the              § 1.197–2(h)(12)(vii)(B) precludes PRS1 from           defined in section 6038(e)(3)(C) and the
                                                  extent USP and USX are treated as                       making a remedial allocation of tax                    regulations thereunder;
                                                  transferring the patent to FX, the tax                  amortization to CFC1. Instead, pursuant to                (ii) The value of the property
                                                  consequences are determined under section               § 1.704–3T(d)(5)(iii)(C), PRS1 increases the
                                                  367(d) and the regulations thereunder. With                                                                    transferred, when added to the value of
                                                                                                          adjusted tax basis in the IP by $12 million,           any other property transferred in a
                                                  respect to the remaining portion of the                 and pursuant to § 1.704–3T(d)(5)(iii)(D), that
                                                  patent, which is attributable to CFC1, USP                                                                     section 721 contribution by such person
                                                                                                          basis adjustment is solely with respect to
                                                  must recognize an amount of gain equal to               CFC1. Pursuant to § 1.704–3T(d)(5)(iii)(C),            (or any related person) to the
                                                  the remaining built-in gain that would have                                                                    partnership during the 12-month period
                                                                                                          PRS1 also makes an offsetting remedial
                                                  been allocated to USP if PRS1 had sold that                                                                    ending on the date of the transfer,
                                                                                                          allocation of $12 million of taxable income
                                                  portion of the patent immediately before the                                                                   exceeds $100,000; or
                                                                                                          to USP.
                                                  transfer for fair market value. Under                                                                             (iii) [Reserved]. For further guidance,
                                                                                                             (iii) Results: Years 2–15. At the end of year
                                                  § 1.721(c)–4T(c)(1), USP must increase the
                                                  basis in its partnership interest in PRS1 by
                                                                                                          15, PRS1 has book basis and adjusted tax               see § 1.6038B–2T(a)(1)(iii).
                                                                                                          basis of $0 in the IP. PRS1 has amortized              *       *    *     *     *
                                                  the amount of gain recognized by USP and
                                                  under § 1.721(c)–4T(c)(2), immediately before           $600 million for book purposes by allocating              (3) [Reserved]. For further guidance
                                                                                                          total book amortization deductions of $360
                                                  the transfer, PRS1 must increase its basis in                                                                  see § 1.6038B–2T(a)(3).
                                                  the patent by the same amount. The stock in             million to USP, $180 million to CFC1, and
                                                                                                          $60 million to FX. For U.S. tax purposes, by           *       *    *     *     *
                                                  FX received by PRS1 is not subject to the                                                                         (c) * * *
                                                  gain deferral method.                                   the end of year 15, PRS1 has made remedial
                                                                                                          allocations of $60 million of tax amortization            (6) A separate description of each
                                                     Example 6. Limited remedial allocation
                                                  method for anti-churning property with                  to FX and increased the adjusted tax basis in          item of contributed property that is
                                                  respect to related partners. (i) Facts. USP,            the IP by $180 million solely with respect to          appreciated property subject to the
                                                  CFC1, and FX form PRS1. On January 1 of                 CFC1. PRS1 has also made total remedial                allocation rules of section 704(c) (except
                                                  year 1, USP contributes intellectual property           allocations of $240 million of taxable income          to the extent that the property is
                                                  (IP) with a book value of $600 million and              to USP (attributable to $60 million of                 permitted to be aggregated in making
                                                  an adjusted tax basis of $0 in exchange for             remedial tax amortization to FX and $180
                                                                                                                                                                 allocations under section 704(c)), or is
                                                  a 60-percent interest. The IP is a section              million of tax basis adjustments with respect
                                                                                                          to CFC1). With respect to their partnership            intangible property, including its
                                                  197(f)(9) intangible (within the meaning of                                                                    estimated fair market value and adjusted
                                                  § 1.197–2(h)(1)(i)) that was not an                     interests in PRS1, USP has a capital account
                                                  amortizable section 197 intangible in USP’s             and an adjusted tax basis of $240 million,             basis;
                                                  hands. CFC1 contributes cash of $300 million            CFC1 has a capital account of $120 million                (7) * * *
                                                  in exchange for a 30-percent interest, and FX           and an adjusted tax basis of $300 million,                (v) Other property;
                                                  contributes cash of $100 million in exchange            and FX has a capital account and an adjusted              (8) [Reserved]. For further guidance,
                                                  for a 10-percent interest. The IP is section            tax basis of $40 million.                              see § 1.6038B–2T(c)(8); and
                                                  721(c) property, and PRS1 is a section 721(c)              (iv) Results: Sale of property in year 16.             (9) [Reserved]. For further guidance,
                                                  partnership. The gain deferral method is                PRS1’s sale of the IP for cash of $900 million         see § 1.6038B–2T(c)(9).
                                                  applied. The partnership agreement provides             on January 1 of year 16 results in $900                *       *    *     *     *
                                                  that PRS1 will make allocations under                   million of book and tax gain ($900 million–
                                                                                                                                                                    (h) * * *
                                                  section 704(c) with respect to the IP using the         $0). PRS1 allocates the book and tax gain 60
                                                                                                                                                                    (1) Consequences of a failure. If a
                                                  remedial allocation method under § 1.704–               percent to USP ($540 million), 10 percent to
                                                                                                          FX ($90 million), and 30 percent to CFC1               United States person is required to file
                                                  3T(d)(5)(iii). All of PRS1’s allocations with
                                                  respect to the IP satisfy the requirements of           ($270 million). However, under § 1.704–                a return under paragraph (a) of this
                                                  the gain deferral method. On January 1 of               3T(d)(5)(iii)(D)(3), CFC1’s tax gain is $90            section and fails to comply with the
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                                                  year 16, PRS1 sells the IP for cash of $900             million, equal to its share of PRS1’s gain             reporting requirements of section 6038B
                                                  million to a person that is not a related               ($270 million), minus the amount of the tax            and this section, or § 1.721(c)–6T, then
                                                  person. During years 1 through 16, PRS1                 basis adjustment ($180 million). After the             that person is subject to the following
                                                  earns no income other than gain from the sale           sale, PRS1’s only property is cash of $1.3             penalties:
                                                  of the IP in year 16, has no expenses or                billion. With respect to their partnership
                                                  deductions other than from amortization of              interests in PRS1, USP has a capital account           *       *    *     *     *
                                                  the IP, and makes no distributions.                     and an adjusted tax basis of $780 million,                (3) [Reserved]. For further guidance
                                                     (ii) Results: Year 1. Under § 1.704–                 CFC1 has a capital account and an adjusted             see § 1.6038B–2T(h)(3).
                                                  3T(d)(5)(iii)(B), PRS1 must recover the excess          tax basis of $390 million, and FX has a                *       *    *     *     *


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                                                                   Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations                                                7611

                                                    (j) * * *                                             information required by § 1.721(c)–                    appropriate) (Director). Whether a
                                                    (4) through (5) [Reserved]. For further               6T(b)(2); and                                          failure to comply was due to reasonable
                                                  guidance, see § 1.6038B–2T(j)(4)                           (9) With respect to section 721(c)                  cause and not willful neglect will be
                                                  through (5).                                            property for which a statement is                      determined by the Director under all the
                                                                                                          required to be filed under § 1.721(c)–                 facts and circumstances.
                                                  ■ Par. 16. Section 1.6038B–2T is added
                                                                                                          6T(b)(3) and paragraph (a)(1)(iii) of this                (i) through (j)(3) [Reserved]. For
                                                  to read as follows:
                                                                                                          section, the information required by                   further guidance, see § 1.6038B–2(i)
                                                  § 1.6038B–2T Reporting of certain                       § 1.721(c)–6T(b)(3).                                   through (j)(3).
                                                  transfers to foreign partnerships                          (d) through (h)(2) [Reserved]. For                     (4) Transfers of section 721(c)
                                                  (temporary).                                            further guidance, see § 1.6038B–2(d)                   property—(i) Applicability dates.
                                                     (a) introductory text through (a)(1)(ii)             through (h)(2).                                        Paragraph (c)(8) of this section applies
                                                  [Reserved]. For further guidance, see                      (3) Reasonable cause exception.
                                                                                                                                                                 to transfers occurring on or after August
                                                  § 1.6038B–2(a) introductory text through                Under section 6038B(c)(2) and this
                                                                                                                                                                 6, 2015, and to transfers occurring
                                                  (a)(1)(ii).                                             section, the provisions of paragraph
                                                                                                                                                                 before August 6, 2015, resulting from an
                                                                                                          (h)(1) of this section will not apply if the
                                                     (iii) The United States person is a U.S.                                                                    entity classification election made
                                                                                                          United States person shows, in a timely
                                                  transferor (as defined in § 1.721(c)–                                                                          under § 301.7701–3 of this chapter that
                                                                                                          manner, that a failure to comply was
                                                  1T(b)(18)) that makes a gain deferral                                                                          is filed on or after August 6, 2015.
                                                                                                          due to reasonable cause and not willful
                                                  contribution and is required to report                                                                         Paragraphs (a)(1)(iii), (a)(3), and (c)(9) of
                                                                                                          neglect. A United States person’s
                                                  under § 1.721(c)–6T(b)(2). The reporting                                                                       this section apply to transfers occurring
                                                                                                          statement that the failure to comply was
                                                  required under this paragraph (a)                                                                              on or after January 18, 2017, and to
                                                                                                          due to reasonable cause and not willful
                                                  includes the annual reporting required                                                                         transfers occurring before January 18,
                                                                                                          neglect will be considered timely only
                                                  by § 1.721(c)–6T(b)(3). For purposes of                                                                        2017, resulting from entity classification
                                                                                                          if, promptly after the United States
                                                  applying this paragraph (a)(1)(iii) to                                                                         elections made under § 301.7701–3 of
                                                                                                          person becomes aware of the failure, an
                                                  partnerships formed on or after January                 amended return is filed for the taxable                this chapter that are filed on or after
                                                  18, 2017, a domestic partnership is                     year to which the failure relates that                 January 18, 2017.
                                                  treated as a foreign partnership pursuant               includes the information that should                      (ii) Expiration date. The applicability
                                                  to section 7701(a)(4).                                  have been included with the original                   of paragraphs (a)(1)(iii), (a)(3), and (c)(8)
                                                     (a)(2) [Reserved]. For further                       return for such taxable year or that                   and (9) of this section expires on
                                                  guidance, see § 1.6038B–2(a)(2).                        otherwise complies with the rules of                   January 17, 2020.
                                                     (3) Indirect transfer through a foreign              this section, and that includes a written                 (5) Reasonable cause exception—(i)
                                                  partnership. Solely for purposes of this                statement explaining the reasons for the               Applicability date. Paragraph (h)(3) of
                                                  section, if a foreign partnership transfers             failure to comply. If any taxable year of              this section applies to all requests for
                                                  section 721(c) property (as defined in                  the United States person is under                      relief for transfers of property to
                                                  § 1.721(c)–1T(b)(15)) to another foreign                examination when the amended return                    partnerships filed on or after February
                                                  partnership in a transfer described in                  is filed, a copy of the amended return                 21, 2017.
                                                  § 1.721(c)–3T(d) (tiered-partnership                    must be delivered to the Internal                         (ii) Expiration date. The applicability
                                                  rules), then the transferor foreign                     Revenue Service personnel conducting                   of paragraph (h)(3) of this section
                                                  partnership’s partners will be                          the examination when the amended                       expires on January 17, 2020.
                                                  considered to have transferred a                        return is filed. If no taxable year of the
                                                  proportionate share of the property to                                                                         John Dalrymple,
                                                                                                          United States person is under
                                                  the foreign partnership.                                examination when the amended return                    Deputy Commissioner for Services and
                                                     (a)(4) through (c)(7) [Reserved]. For                is filed, a copy of the amended return                 Enforcement.
                                                  further guidance, see § 1.6038B–2(a)(4)                 must be delivered to the Director of                     Approved: January 10, 2017.
                                                  through (c)(7).                                         Field Operations, Cross Border                         Mark J. Mazur,
                                                     (8) With respect to reporting required               Activities Practice Area of Large                      Assistant Secretary of the Treasury (Tax
                                                  under § 1.721(c)–6T(b)(2) and paragraph                 Business & International (or any                       Policy).
                                                  (a)(1)(iii) of this section with regard to              successor to the roles and                             [FR Doc. 2017–01049 Filed 1–18–17; 8:45 am]
                                                  a gain deferral contribution, the                       responsibilities of such position, as                  BILLING CODE 4830–01–P
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Document Created: 2018-02-01 15:16:10
Document Modified: 2018-02-01 15:16:10
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 and temporary regulations.
DatesEffective Date: These regulations are effective on January 18, 2017.
ContactConcerning the temporary regulations, Ryan A. Bowen, (202) 317-6937; concerning submissions of comments or requests for a public hearing, Regina Johnson, (202) 317-6901 (not toll-free numbers).
FR Citation82 FR 7582 
RIN Number1545-BM95
CFR AssociatedIncome Taxes and Reporting and Recordkeeping Requirements

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