Computer Software Under Section 199(c)(5)(B), 31074-31077 [06-4828]
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31074
Federal Register / Vol. 71, No. 105 / Thursday, June 1, 2006 / Rules and Regulations
I
FOR FURTHER INFORMATION CONTACT:
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and tylosin to make four-way
combination drug Type C medicated
feeds for heifers fed in confinement for
slaughter.
DATES: This rule is effective June 1,
2006.
PART 558—NEW ANIMAL DRUGS FOR
USE IN ANIMAL FEEDS
Daniel A. Benz, Center for Veterinary
Medicine (HFV–104), Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301–827–0223, email: daniel.benz@fda.hhs.gov.
SUPPLEMENTARY INFORMATION: Ivy
Laboratories, Division of Ivy Animal
Health, Inc., 8857 Bond St., Overland
Park, KS 66214, filed ANADA 200–424
for use of HEIFERMAX 500
(melengestrol acetate) Liquid Premix,
OPTAFLEXX (ractopamine
hydrochloride), RUMENSIN (monensin
sodium), and TYLAN (tylosin
phosphate) single-ingredient Type A
medicated article to make dry and
liquid, four-way combination drug Type
C medicated feeds for heifers fed in
confinement for slaughter. Ivy
Laboratories’ ANADA 200–424 is
approved as a generic copy of Elanco
Animal Health’s NADA 141–233 for
combination feed use of MGA
(melengestrol acetate), OPTAFLEXX,
RUMENSIN, and TYLAN. The
application is approved as of April 27,
2006, and the regulations are amended
in 21 CFR 558.500 to reflect the
approval. The basis of approval is
discussed in the freedom of information
summary.
In accordance with the freedom of
information provisions of 21 CFR part
20 and 21 CFR 514.11(e)(2)(ii), a
summary of safety and effectiveness
data and information submitted to
support approval of this application
may be seen in the Division of Dockets
Management (HFA–305), Food and Drug
Administration, 5630 Fishers Lane, rm.
1061, Rockville, MD 20852, between 9
a.m. and 4 p.m., Monday through
Friday.
The agency has determined under 21
CFR 25.33(a)(2) that this action is of a
type that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
List of Subjects in 21 CFR Part 558
Animal drugs, Animal feeds.
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Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Center for Veterinary Medicine, 21
CFR part 558 is amended as follows:
1. The authority citation for 21 CFR
part 558 continues to read as follows:
I
Authority: 21 U.S.C. 360b, 371.
§ 558.500
[Amended]
2. In the table in paragraph (e)(2)(x) of
§ 558.500, in the ‘‘Limitations’’ column
remove ‘‘No. 000009’’ and add in its
place ‘‘Nos. 000009 and 021641’’, and in
the ‘‘Sponsor’’ column add in numerical
sequence ‘‘021641’’.
I
Dated: May 23. 2006.
Stephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. E6–8420 Filed 5–31–06; 8:45 am]
BILLING CODE 4160–01–S
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9262]
RIN 1545–BF57
Computer Software Under Section
199(c)(5)(B)
Internal Revenue Service (IRS),
Treasury.
ACTION: Temporary regulations.
AGENCY:
SUMMARY: This document contains
temporary regulations concerning the
application of section 199 of the Internal
Revenue Code, which provides a
deduction for income attributable to
domestic production activities, to
certain transactions involving computer
software. The regulations will affect
taxpayers engaged in certain domestic
production activities involving
computer software. The text of these
temporary regulations also serves as the
text of the proposed regulations set forth
in the notice of proposed rulemaking on
this subject in the Proposed Rules
section in this issue of the Federal
Register.
Effective Date: These regulations
are effective June 1, 2006.
Applicability Date: For date of
applicability, see § 1.199–8T(i)(4).
FOR FURTHER INFORMATION CONTACT: Paul
Handleman or Lauren Ross Taylor, (202)
622–3040 (not a toll-free number).
DATES:
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SUPPLEMENTARY INFORMATION:
Background
This document amends 26 CFR part 1
to provide rules relating to the
deduction for income attributable to
domestic production activities under
section 199 of the Internal Revenue
Code (Code). Section 199 was added to
the Code by section 102 of the American
Jobs Creation Act of 2004 (Pub. L. 108–
357, 118 Stat. 1418), and amended by
section 403(a) of the Gulf Opportunity
Zone Act of 2005 (Pub. L. 109–135, 119
Stat. 25) and section 514 of the Tax
Increase Prevention and Reconciliation
Act of 2005 (Pub. L. 109–222, 120 Stat.
345). On January 19, 2005, the IRS and
Treasury Department issued Notice
2005–14 (2005–7 I.R.B. 498) providing
interim guidance on section 199. On
November 4, 2005, the IRS and Treasury
Department published in the Federal
Register proposed regulations under
section 199 (70 FR 67220). On January
11, 2006, the IRS and Treasury
Department held a public hearing on the
proposed regulations. Written and
electronic comments responding to the
proposed regulations were received.
Contemporaneous with the publication
of these temporary regulations, final
regulations have been published under
section 199.
General Overview
Section 199(a)(1) allows a deduction
equal to 9 percent (3 percent in the case
of taxable years beginning in 2005 or
2006, and 6 percent in the case of
taxable years beginning in 2007, 2008,
or 2009) of the lesser of (A) the qualified
production activities income (QPAI) of
the taxpayer for the taxable year, or (B)
taxable income (determined without
regard to section 199) for the taxable
year (or, in the case of an individual,
adjusted gross income (AGI)).
Qualified Production Activities Income
Section 199(c)(1) defines QPAI for any
taxable year as an amount equal to the
excess (if any) of (A) the taxpayer’s
domestic production gross receipts
(DPGR) for such taxable year, over (B)
the sum of (i) the cost of goods sold
(CGS) that are allocable to such receipts;
and (ii) other expenses, losses, or
deductions (other than the deduction
under section 199) that are properly
allocable to such receipts.
Section 199(c)(4)(A)(i) defines DPGR,
in part, to mean the taxpayer’s gross
receipts that are derived from any lease,
rental, license, sale, exchange, or other
disposition of qualifying production
property (QPP) that was manufactured,
produced, grown, or extracted (MPGE)
by the taxpayer in whole or in
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significant part within the United
States. Section 199(c)(5) defines QPP to
mean: (A) Tangible personal property;
(B) any computer software; and (C) any
property described in section 168(f)(4)
(certain sound recordings).
Computer Software
Section 4.04(7)(d) of Notice 2005–14
provides that gross receipts derived
from computer software do not include
gross receipts derived from Internet
access services, online services,
customer support, telephone services,
games played through a Web site,
provider-controlled software online
access services, and other services that
do not constitute the lease, rental,
license, sale, exchange, or other
disposition of computer software that
was developed by the taxpayer.
Consistent with Notice 2005–14, the
proposed regulations in § 1.199–
3(h)(6)(i) state that the provision of
online computer software does not rise
to the level of a lease, rental, license,
sale, exchange, or other disposition as
required under section 199, but is
instead a service.
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Congressional Letter
On July 21, 2005, the Chairman and
Ranking Member of the Senate Finance
Committee and the Chairman of the
House Ways and Means Committee sent
a letter to the Treasury Department
suggesting that the Treasury Department
consider further the treatment of online
access to computer software and, in
particular, whether such treatment
should be similar to the treatment of
computer software distributed by other
means, such as by physical delivery or
delivery via Internet download. The
letter notes that gross receipts from the
provision of services are not treated as
DPGR, regardless of the fact that
computer software may be used to
facilitate such service transactions.
Summary of Comments
Numerous commentators have
suggested that the provision of
computer software for online use should
qualify under section 199. Some
commentators proposed that gross
receipts derived from providing online
access to computer software should
qualify under section 199 if the
substance of the transaction that gives
rise to the gross receipts is the
distribution of the computer software’s
functionality to end users. These
commentators suggested that factors to
be considered in determining the
substance of the transaction should
include: (1) Whether an agreement
exists, regardless of its form, between
the computer software producer and the
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customer that gives the customer
permission to use the computer
software; (2) whether the use of
computer software is merely incidental
to the provision of a separate service or
transaction; (3) whether the end user
has made a payment to the computer
software producer directly for the right
to access and use the computer
software’s functionality, as opposed to a
payment for a separate service or good
in which the use of the underlying
computer software is only incidental to
the separate service or transaction; (4)
whether the computer software
producer holds itself out to the public
as being in the computer software
business; (5) whether the computer
software producer uses alternate
channels for distributing its computer
software product or functionality other
than through online access; and (6)
whether a competitive marketplace
exists for the same or similar computer
software functionality that provides
customers with alternative distribution
choices in addition to online access.
The commentators explained that this
proposed list of factors is not exhaustive
and there may be other relevant factors.
The commentators suggested that no
single factor should control and that
failure to satisfy one or more factors
should not necessarily result in gross
receipts derived from online access to
computer software being non-DPGR.
Other commentators suggested that a
customer’s use of computer software is
tantamount to a license of the computer
software. In addition, several
commentators asserted that the phrase
‘‘other disposition’’ in section
199(c)(4)(A) is broad enough to include
the provision of computer software for
online use.
Explanation of Provisions
The temporary regulations do not
adopt these comments. However, as a
matter of administrative convenience,
the temporary regulations provide two
exceptions under which gross receipts
derived by a taxpayer from providing
computer software to customers for the
customers’ direct use while connected
to the Internet will be treated as being
derived from the lease, rental, license,
sale, exchange, or other disposition of
such computer software. Such gross
receipts will be treated as DPGR if all
the other requirements of section 199
are met (for example, the taxpayer
MPGE computer software in whole or in
significant part within the United
States).
The first exception applies to a
taxpayer that derives gross receipts from
providing computer software to
customers for the customers’ direct use
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31075
while connected to the Internet (online
software) and also derives gross receipts
from the lease, rental, license, sale,
exchange, or other disposition to
customers that are unrelated persons of
computer software that has been
provided to such customers affixed to a
tangible medium or by allowing them to
download the computer software from
the Internet. The second exception
applies if a taxpayer that derives gross
receipts from providing online software
and an unrelated person derives on a
regular and ongoing basis in the
unrelated person’s business gross
receipts from the lease, rental, license,
sale, exchange, or other disposition of
substantially identical software to its
customers affixed to a tangible medium
or by allowing its customers to
download the substantially identical
computer software from the Internet.
The temporary regulations define
substantially identical software as
computer software that, from a
customer’s perspective, has the same
functional result as the online software
and has a significant overlap of features
or purpose with the online software. To
avoid controversy between taxpayers
and the IRS, the temporary regulations
provide a safe harbor under which all
computer software games are deemed to
be substantially identical software.
If a taxpayer’s provision of computer
software for online use meets the
requirements set forth in the temporary
regulations, then an allocation of gross
receipts between DPGR and non-DPGR
will be necessary if, as part of the same
transaction, the taxpayer derives gross
receipts other than from providing
computer software to a customer for the
customer’s direct use while connected
to the Internet. For example, if in
connection with providing computer
software to a customer for the
customer’s direct use while connected
to the Internet, a taxpayer also provides
a service such as storing its customers’
data or providing telephone support,
then the taxpayer must allocate its gross
receipts between DPGR and non-DPGR
using any reasonable method.
These rules are specifically limited to
the deduction under section 199 and no
inference can be drawn with respect to
any other provision of the Code (such as
the tax treatment of these transactions
under those provisions regarding
character, timing, or source).
Effective Date
Section 199 applies to taxable years
beginning after December 31, 2004.
These temporary regulations are
applicable for taxable years beginning
on or after June 1, 2006. A taxpayer may
apply these temporary regulations to
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taxable years beginning after December
31, 2004, and before June 1, 2006. The
applicability of these temporary
regulations expires on or before May 25,
2009. Section 1.199–8(i)(1) of the final
regulations issued contemporaneous
with these temporary regulations
provides that, in certain circumstances,
a taxpayer may rely on the guidance in
Notice 2005–14 (2005–7 I.R.B. 498), the
proposed regulations under section 199
that were published in the Federal
Register on November 4, 2005 (70 FR
67220), or the final regulations.
Regardless of which guidance a taxpayer
applies, the taxpayer may apply these
temporary regulations.
Special Analyses
It has been determined that this
Treasury decision is not a significant
regulatory action as defined in
Executive Order 12866. Therefore, a
regulatory assessment is not required. It
also has been determined that section
553(b) of the Administrative Procedure
Act (5 U.S.C. chapter 5) does not apply
to these regulations. For applicability of
the Regulatory Flexibility Act (5 U.S.C.
601 et seq.), refer to the cross-reference
notice of proposed rulemaking
published elsewhere in this issue of the
Federal Register. Pursuant to section
7805(f) of the Code, these temporary
regulations will be submitted to the
Chief Counsel for Advocacy of the Small
Business Administration for comment
on their impact on small business.
Drafting Information
The principal authors of these
regulations are Paul Handleman and
Lauren Ross Taylor, Office of the
Associate Chief Counsel (Passthroughs
and Special Industries), IRS. However,
other personnel from the IRS and
Treasury Department participated in
their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and
recordkeeping requirements.
Amendments to the Regulations
Accordingly, 26 CFR part 1 is
amended as follows:
I
PART 1—INCOME TAXES
Paragraph 1. The authority citation
for part 1 is amended by adding entries
in numerical order to read, in part, as
follows:
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I
Authority: 26 U.S.C. 7805 * * *
Section 1.199–3T also issued under 26
U.S.C. 199(d). * * *
Section 1.199–8T also issued under 26
U.S.C. 199(d). * * *
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I Par. 2. Section 1.199–3T is added to
read as follows:
1.199–3T Domestic production gross
receipts (temporary).
(a) through (h) [Reserved]. For further
guidance, see § 1.199–3(a) through (h).
(i) Derived from the lease, rental,
license, sale, exchange, or other
disposition.
(1) through (5) [Reserved]. For further
guidance, see § 1.199–3(i)(1) through (5).
(6) Computer software—(i) [Reserved].
For further guidance, see § 1.199–
3(i)(6)(i).
(ii) Gross receipts derived from
services. Gross receipts (as defined in
§ 1.199–3(c)) derived from customer and
technical support, telephone and other
telecommunication services, online
services (such as Internet access
services, online banking services,
providing access to online electronic
books, newspapers, and journals), and
other similar services do not constitute
gross receipts derived from a lease,
rental, license, sale, exchange, or other
disposition of computer software (as
defined in § 1.199–3(j)(3)).
(iii) Exceptions. Notwithstanding
paragraph (i)(6)(ii) of this section, if a
taxpayer derives gross receipts from
providing to customers computer
software MPGE in whole or in
significant by the taxpayer within the
United States for the customers’ direct
use while connected to the Internet
(online software), then such gross
receipts will be treated as being derived
from the lease, rental, license, sale,
exchange, or other disposition of
computer software only if—
(A) The taxpayer also derives, on a
regular and ongoing basis in the
taxpayer’s business, gross receipts from
the lease, rental, license, sale, exchange,
or other disposition to customers that
are unrelated persons (as defined in
§ 1.199–3(b)(1)) of computer software
that—
(1) Has only minor or immaterial
differences from the online software;
(2) Has been MPGE (as defined in
§ 1.199–3(e)) by the taxpayer (as defined
in § 1.199–3(f)) in whole or in
significant part (as defined in § 1.199–
3(g)) within the United States (as
defined in § 1.199–3(h)); and
(3) Has been provided to such
customers either affixed to a tangible
medium (for example, a disk or DVD) or
by allowing them to download the
computer software from the Internet; or
(B) An unrelated person derives, on a
regular and ongoing basis in the
unrelated person’s business, gross
receipts from the lease, rental, license,
sale, exchange, or other disposition of
substantially identical software (as
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described in paragraph (i)(6)(iv)(A) of
this section) (as compared to the
taxpayer’s online software) to its
customers pursuant to an activity
described in paragraph (i)(6)(iii)(A)(3) of
this section.
(iv) Definitions and special rules—(A)
Substantially identical software. For
purposes of paragraph (i)(6)(iii)(B) of
this section, substantially identical
software is computer software that—
(1) From a customer’s perspective, has
the same functional result as the online
software described in paragraph
(i)(6)(iii) of this section; and
(2) Has a significant overlap of
features or purpose with the online
software described in paragraph
(i)(6)(iii) of this section.
(B) Safe harbor for computer software
games. For purposes of paragraph
(i)(6)(iv)(A) of this section, all computer
software games are deemed to be
substantially identical software. For
example, computer software sports
games are deemed to be substantially
identical to computer software card
games.
(C) Regular and ongoing basis. For
purposes of paragraph (i)(6)(iii) of this
section, in the case of a newly-formed
trade or business or a taxpayer in its
first taxable year, the taxpayer is
considered to be engaged in an activity
described in paragraph (i)(6)(iii) of this
section on a regular and ongoing basis
if the taxpayer reasonably expects that
it will engage in the activity on a regular
and ongoing basis.
(D) Attribution. For purposes of
paragraph (i)(6)(iii)(A) of this section—
(1) All members of an expanded
affiliated group (as defined in § 1.199–
7(a)(1)) are treated as a single taxpayer;
and
(2) In the case of an EAG partnership
(as defined in § 1.199–9(j)), the EAG
partnership and all members of the EAG
to which the EAG partnership’s partners
belong are treated as a single taxpayer.
(E) Qualified computer software
maintenance agreements. Section
1.199–3(i)(4)(i)(B)(5) does not apply if
the computer software is online
software under paragraph (i)(6)(ii) of
this section.
(v) Examples. The following examples
illustrate the application of this
paragraph (i)(6):
Example 1. L is a bank and produces
computer software within the United States
that enables its customers to receive online
banking services for a fee. Under paragraph
(i)(6)(ii) of this section, gross receipts derived
from online banking services are attributable
to a service and do not constitute a lease,
rental, license, sale, exchange, or other
disposition of computer software. Therefore,
L’s gross receipts derived from the online
banking services are non-DPGR.
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Example 2. M is an Internet auction
company that produces computer software
within the United States that enables its
customers to participate in Internet auctions
for a fee. Under paragraph (i)(6)(ii) of this
section, gross receipts derived from online
services are attributable to a service and do
not constitute a lease, rental, license, sale,
exchange, or other disposition of computer
software. M’s activities constitute the
provision of online services. Therefore, M’s
gross receipts derived from the Internet
auction services are non-DPGR.
Example 3. N provides telephone services,
voicemail services, and e-mail services. N
produces computer software within the
United States that runs all of these services.
Under paragraph (i)(6)(ii) of this section,
gross receipts derived from telephone and
related telecommunication services are
attributable to a service and do not constitute
a lease, rental, license, sale, exchange, or
other disposition of computer software.
Therefore, N’s gross receipts derived from the
telephone and other telecommunication
services are non-DPGR.
Example 4. O produces tax preparation
computer software within the United States.
O derives, on a regular and ongoing basis in
its business, gross receipts from both the sale
to customers that are unrelated persons of O’s
computer software that has been affixed to a
compact disc as well as from the sale to
customers of O’s computer software that
customers have downloaded from the
Internet. O also derives gross receipts from
customers from providing the computer
software to its customers for the customers’
direct use while connected to the Internet.
Assume that the computer software sold on
compact disc or by download has only minor
or immaterial differences from the computer
software provided over the Internet, and O
does not provide any services in connection
with the computer software provided over
the Internet. Under paragraph (i)(6)(iii)(A) of
this section, O’s gross receipts derived from
providing its computer software to customers
over the Internet will be treated as derived
from the lease, rental, license, sale, exchange,
or other disposition of computer software
and are domestic production gross receipts
(DPGR) (as defined in § 1.199–3) (assuming
all the other requirements of § 1.199–3 are
met).
Example 5. The facts are the same as in
Example 4, except that O does not sell the
tax preparation computer software to
customers affixed to a compact disc and O’s
only method of providing the tax preparation
computer software to customers is over the
Internet. P, an unrelated person, derives, on
a regular and ongoing basis in its business,
gross receipts from the sale to customers of
P’s substantially identical tax preparation
computer software that has been affixed to a
compact disc as well as from the sale to
customers of P’s substantially identical tax
preparation computer software that
customers have downloaded from the
Internet. Under paragraph (i)(6)(iii)(B) of this
section, O’s gross receipts derived from
providing its tax preparation computer
software to customers over the Internet will
be treated as derived from the lease, rental,
license, sale, exchange, or other disposition
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of computer software and are DPGR
(assuming all the other requirements of
§ 1.199–3 are met).
Example 6. P produces payroll
management computer software within the
United States. For a fee, P provides the
payroll management computer software to
customers for the customers’ direct use while
connected to the Internet. This is P’s sole
method of providing its payroll management
computer software to customers. In
conjunction with the payroll management
computer software, P provides storage of
customers’ data and telephone support. Q, an
unrelated person, derives, on a regular and
ongoing basis in its business, gross receipts
from the sale to customers of Q’s
substantially identical payroll management
software that has been affixed to a compact
disc as well as from the sale to customers of
Q’s substantially identical payroll
management software that customers have
downloaded from the Internet. Under
paragraph (i)(6)(iii)(B) of this section, P’s
gross receipts derived from providing its
payroll management computer software to
customers over the Internet will be treated as
derived from the lease, rental, license, sale,
exchange, or other disposition of computer
software and are DPGR (assuming all the
other requirements of § 1.199–3 are met).
However, P’s gross receipts derived from the
fees it receives that are properly allocable to
the storage of customers’ data and telephone
support are non-DPGR.
Par. 3. Section 1.199–8T is added to
read as follows:
§ 1.199–8T
Other rules (temporary).
(a) through (h) [Reserved]. For further
guidance, see § 1.199–8(a) through (h).
(i) Effective dates. (1) through (3)
[Reserved]. For further guidance, see
§ 1.199–8(i)(1) through (3).
(4) Computer software. Section 1.199–
3T(i)(6)(ii) through (v) are applicable for
taxable years beginning on or after June
1, 2006. Taxpayers may apply these
temporary regulations to taxable years
beginning after December 31, 2004, and
before June 1, 2006. The applicability of
§ 1.199–3T(i)(6)(ii) through (v) expires
on or before May 25, 2009.
Mark E. Mathews,
Deputy Commissioner for Services and
Enforcement.
Approved: May 2, 2006.
Eric Solomon,
Acting Deputy Assistant Secretary of the
Treasury.
[FR Doc. 06–4828 Filed 5–24–06; 11:47 am]
BILLING CODE 4830–01–P
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31077
PENSION BENEFIT GUARANTY
CORPORATION
29 CFR Parts 4000, 4006, and 4007
RIN 1212–AB02
Electronic Premium Filing
Pension Benefit Guaranty
Corporation.
ACTION: Final rule.
AGENCY:
SUMMARY: The PBGC is changing its
regulations to require that premium
declarations be filed electronically. The
requirement becomes effective for plans
with 500 or more participants for the
prior plan year starting with filings for
plan years beginning in 2006 that are
made on or after July 1, 2006, and for
smaller plans starting with filings for
plan years beginning after 2006. Plans
may apply for exemptions on a case-bycase basis. Filings may be submitted
through the PBGC’s on-line e-filing
application (‘‘My Plan Administration
Account,’’ or ‘‘My PAAA’’). My PAA
has data entry and editing screens that
can be used to create and submit a
filing, and can also accept uploaded
files containing filing information that
has been prepared and formatted using
private-sector software in accordance
with the PBGC’s published standards.
DATES: Effective date: July 1, 2006. For
a discussion of applicability of these
amendments, see the Applicability
section in SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: John
H. Hanley, Director, or Deborah C.
Murphy, Attorney, Legislative and
Regulatory Department, Pension Benefit
Guaranty Corporation, 1200 K Street,
NW., Washington, DC 20005–4026, 202–
326–4024. (For TTY/TTD users, call the
Federal relay service toll-free at 1–800–
877–8339 and ask to be connected to
202–326–4024.)
SUPPLEMENTARY INFORMATION: This final
rule is part of an ongoing
implementation of the Government
Paperwork Elimination Act by the
Pension Benefit Guaranty Corporation
(‘‘PBGC’’) and is consistent with the
Office of Management and Budget’s
directive to remove regulatory
impediments to electronic transactions.
The rule addresses electronic
submission of premium filings that are
required under the regulation on
Payment of Premiums (29 CFR part
4007) and builds in the flexibility
needed to allow updating of the
electronic filing process as technology
advances.
The PBGC administers the pension
insurance programs under Title IV of
the Employee Retirement Income
E:\FR\FM\01JNR1.SGM
01JNR1
]]>Agencies
[Federal Register Volume 71, Number 105 (Thursday, June 1, 2006)]
[Rules and Regulations]
[Pages 31074-31077]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-4828]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9262]
RIN 1545-BF57
Computer Software Under Section 199(c)(5)(B)
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Temporary regulations.
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SUMMARY: This document contains temporary regulations concerning the
application of section 199 of the Internal Revenue Code, which provides
a deduction for income attributable to domestic production activities,
to certain transactions involving computer software. The regulations
will affect taxpayers engaged in certain domestic production activities
involving computer software. The text of these temporary regulations
also serves as the text of the proposed regulations set forth in the
notice of proposed rulemaking on this subject in the Proposed Rules
section in this issue of the Federal Register.
DATES: Effective Date: These regulations are effective June 1, 2006.
Applicability Date: For date of applicability, see Sec. 1.199-
8T(i)(4).
FOR FURTHER INFORMATION CONTACT: Paul Handleman or Lauren Ross Taylor,
(202) 622-3040 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document amends 26 CFR part 1 to provide rules relating to the
deduction for income attributable to domestic production activities
under section 199 of the Internal Revenue Code (Code). Section 199 was
added to the Code by section 102 of the American Jobs Creation Act of
2004 (Pub. L. 108-357, 118 Stat. 1418), and amended by section 403(a)
of the Gulf Opportunity Zone Act of 2005 (Pub. L. 109-135, 119 Stat.
25) and section 514 of the Tax Increase Prevention and Reconciliation
Act of 2005 (Pub. L. 109-222, 120 Stat. 345). On January 19, 2005, the
IRS and Treasury Department issued Notice 2005-14 (2005-7 I.R.B. 498)
providing interim guidance on section 199. On November 4, 2005, the IRS
and Treasury Department published in the Federal Register proposed
regulations under section 199 (70 FR 67220). On January 11, 2006, the
IRS and Treasury Department held a public hearing on the proposed
regulations. Written and electronic comments responding to the proposed
regulations were received. Contemporaneous with the publication of
these temporary regulations, final regulations have been published
under section 199.
General Overview
Section 199(a)(1) allows a deduction equal to 9 percent (3 percent
in the case of taxable years beginning in 2005 or 2006, and 6 percent
in the case of taxable years beginning in 2007, 2008, or 2009) of the
lesser of (A) the qualified production activities income (QPAI) of the
taxpayer for the taxable year, or (B) taxable income (determined
without regard to section 199) for the taxable year (or, in the case of
an individual, adjusted gross income (AGI)).
Qualified Production Activities Income
Section 199(c)(1) defines QPAI for any taxable year as an amount
equal to the excess (if any) of (A) the taxpayer's domestic production
gross receipts (DPGR) for such taxable year, over (B) the sum of (i)
the cost of goods sold (CGS) that are allocable to such receipts; and
(ii) other expenses, losses, or deductions (other than the deduction
under section 199) that are properly allocable to such receipts.
Section 199(c)(4)(A)(i) defines DPGR, in part, to mean the
taxpayer's gross receipts that are derived from any lease, rental,
license, sale, exchange, or other disposition of qualifying production
property (QPP) that was manufactured, produced, grown, or extracted
(MPGE) by the taxpayer in whole or in
[[Page 31075]]
significant part within the United States. Section 199(c)(5) defines
QPP to mean: (A) Tangible personal property; (B) any computer software;
and (C) any property described in section 168(f)(4) (certain sound
recordings).
Computer Software
Section 4.04(7)(d) of Notice 2005-14 provides that gross receipts
derived from computer software do not include gross receipts derived
from Internet access services, online services, customer support,
telephone services, games played through a Web site, provider-
controlled software online access services, and other services that do
not constitute the lease, rental, license, sale, exchange, or other
disposition of computer software that was developed by the taxpayer.
Consistent with Notice 2005-14, the proposed regulations in Sec.
1.199-3(h)(6)(i) state that the provision of online computer software
does not rise to the level of a lease, rental, license, sale, exchange,
or other disposition as required under section 199, but is instead a
service.
Congressional Letter
On July 21, 2005, the Chairman and Ranking Member of the Senate
Finance Committee and the Chairman of the House Ways and Means
Committee sent a letter to the Treasury Department suggesting that the
Treasury Department consider further the treatment of online access to
computer software and, in particular, whether such treatment should be
similar to the treatment of computer software distributed by other
means, such as by physical delivery or delivery via Internet download.
The letter notes that gross receipts from the provision of services are
not treated as DPGR, regardless of the fact that computer software may
be used to facilitate such service transactions.
Summary of Comments
Numerous commentators have suggested that the provision of computer
software for online use should qualify under section 199. Some
commentators proposed that gross receipts derived from providing online
access to computer software should qualify under section 199 if the
substance of the transaction that gives rise to the gross receipts is
the distribution of the computer software's functionality to end users.
These commentators suggested that factors to be considered in
determining the substance of the transaction should include: (1)
Whether an agreement exists, regardless of its form, between the
computer software producer and the customer that gives the customer
permission to use the computer software; (2) whether the use of
computer software is merely incidental to the provision of a separate
service or transaction; (3) whether the end user has made a payment to
the computer software producer directly for the right to access and use
the computer software's functionality, as opposed to a payment for a
separate service or good in which the use of the underlying computer
software is only incidental to the separate service or transaction; (4)
whether the computer software producer holds itself out to the public
as being in the computer software business; (5) whether the computer
software producer uses alternate channels for distributing its computer
software product or functionality other than through online access; and
(6) whether a competitive marketplace exists for the same or similar
computer software functionality that provides customers with
alternative distribution choices in addition to online access. The
commentators explained that this proposed list of factors is not
exhaustive and there may be other relevant factors. The commentators
suggested that no single factor should control and that failure to
satisfy one or more factors should not necessarily result in gross
receipts derived from online access to computer software being non-
DPGR.
Other commentators suggested that a customer's use of computer
software is tantamount to a license of the computer software. In
addition, several commentators asserted that the phrase ``other
disposition'' in section 199(c)(4)(A) is broad enough to include the
provision of computer software for online use.
Explanation of Provisions
The temporary regulations do not adopt these comments. However, as
a matter of administrative convenience, the temporary regulations
provide two exceptions under which gross receipts derived by a taxpayer
from providing computer software to customers for the customers' direct
use while connected to the Internet will be treated as being derived
from the lease, rental, license, sale, exchange, or other disposition
of such computer software. Such gross receipts will be treated as DPGR
if all the other requirements of section 199 are met (for example, the
taxpayer MPGE computer software in whole or in significant part within
the United States).
The first exception applies to a taxpayer that derives gross
receipts from providing computer software to customers for the
customers' direct use while connected to the Internet (online software)
and also derives gross receipts from the lease, rental, license, sale,
exchange, or other disposition to customers that are unrelated persons
of computer software that has been provided to such customers affixed
to a tangible medium or by allowing them to download the computer
software from the Internet. The second exception applies if a taxpayer
that derives gross receipts from providing online software and an
unrelated person derives on a regular and ongoing basis in the
unrelated person's business gross receipts from the lease, rental,
license, sale, exchange, or other disposition of substantially
identical software to its customers affixed to a tangible medium or by
allowing its customers to download the substantially identical computer
software from the Internet.
The temporary regulations define substantially identical software
as computer software that, from a customer's perspective, has the same
functional result as the online software and has a significant overlap
of features or purpose with the online software. To avoid controversy
between taxpayers and the IRS, the temporary regulations provide a safe
harbor under which all computer software games are deemed to be
substantially identical software.
If a taxpayer's provision of computer software for online use meets
the requirements set forth in the temporary regulations, then an
allocation of gross receipts between DPGR and non-DPGR will be
necessary if, as part of the same transaction, the taxpayer derives
gross receipts other than from providing computer software to a
customer for the customer's direct use while connected to the Internet.
For example, if in connection with providing computer software to a
customer for the customer's direct use while connected to the Internet,
a taxpayer also provides a service such as storing its customers' data
or providing telephone support, then the taxpayer must allocate its
gross receipts between DPGR and non-DPGR using any reasonable method.
These rules are specifically limited to the deduction under section
199 and no inference can be drawn with respect to any other provision
of the Code (such as the tax treatment of these transactions under
those provisions regarding character, timing, or source).
Effective Date
Section 199 applies to taxable years beginning after December 31,
2004. These temporary regulations are applicable for taxable years
beginning on or after June 1, 2006. A taxpayer may apply these
temporary regulations to
[[Page 31076]]
taxable years beginning after December 31, 2004, and before June 1,
2006. The applicability of these temporary regulations expires on or
before May 25, 2009. Section 1.199-8(i)(1) of the final regulations
issued contemporaneous with these temporary regulations provides that,
in certain circumstances, a taxpayer may rely on the guidance in Notice
2005-14 (2005-7 I.R.B. 498), the proposed regulations under section 199
that were published in the Federal Register on November 4, 2005 (70 FR
67220), or the final regulations. Regardless of which guidance a
taxpayer applies, the taxpayer may apply these temporary regulations.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866.
Therefore, a regulatory assessment is not required. It also has been
determined that section 553(b) of the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to these regulations. For
applicability of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
refer to the cross-reference notice of proposed rulemaking published
elsewhere in this issue of the Federal Register. Pursuant to section
7805(f) of the Code, these temporary regulations will be submitted to
the Chief Counsel for Advocacy of the Small Business Administration for
comment on their impact on small business.
Drafting Information
The principal authors of these regulations are Paul Handleman and
Lauren Ross Taylor, Office of the Associate Chief Counsel (Passthroughs
and Special Industries), IRS. However, other personnel from the IRS and
Treasury Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Amendments to the Regulations
0
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 1.199-3T also issued under 26 U.S.C. 199(d). * * *
Section 1.199-8T also issued under 26 U.S.C. 199(d). * * *
0
Par. 2. Section 1.199-3T is added to read as follows:
1.199-3T Domestic production gross receipts (temporary).
(a) through (h) [Reserved]. For further guidance, see Sec. 1.199-
3(a) through (h).
(i) Derived from the lease, rental, license, sale, exchange, or
other disposition.
(1) through (5) [Reserved]. For further guidance, see Sec. 1.199-
3(i)(1) through (5).
(6) Computer software--(i) [Reserved]. For further guidance, see
Sec. 1.199-3(i)(6)(i).
(ii) Gross receipts derived from services. Gross receipts (as
defined in Sec. 1.199-3(c)) derived from customer and technical
support, telephone and other telecommunication services, online
services (such as Internet access services, online banking services,
providing access to online electronic books, newspapers, and journals),
and other similar services do not constitute gross receipts derived
from a lease, rental, license, sale, exchange, or other disposition of
computer software (as defined in Sec. 1.199-3(j)(3)).
(iii) Exceptions. Notwithstanding paragraph (i)(6)(ii) of this
section, if a taxpayer derives gross receipts from providing to
customers computer software MPGE in whole or in significant by the
taxpayer within the United States for the customers' direct use while
connected to the Internet (online software), then such gross receipts
will be treated as being derived from the lease, rental, license, sale,
exchange, or other disposition of computer software only if--
(A) The taxpayer also derives, on a regular and ongoing basis in
the taxpayer's business, gross receipts from the lease, rental,
license, sale, exchange, or other disposition to customers that are
unrelated persons (as defined in Sec. 1.199-3(b)(1)) of computer
software that--
(1) Has only minor or immaterial differences from the online
software;
(2) Has been MPGE (as defined in Sec. 1.199-3(e)) by the taxpayer
(as defined in Sec. 1.199-3(f)) in whole or in significant part (as
defined in Sec. 1.199-3(g)) within the United States (as defined in
Sec. 1.199-3(h)); and
(3) Has been provided to such customers either affixed to a
tangible medium (for example, a disk or DVD) or by allowing them to
download the computer software from the Internet; or
(B) An unrelated person derives, on a regular and ongoing basis in
the unrelated person's business, gross receipts from the lease, rental,
license, sale, exchange, or other disposition of substantially
identical software (as described in paragraph (i)(6)(iv)(A) of this
section) (as compared to the taxpayer's online software) to its
customers pursuant to an activity described in paragraph
(i)(6)(iii)(A)(3) of this section.
(iv) Definitions and special rules--(A) Substantially identical
software. For purposes of paragraph (i)(6)(iii)(B) of this section,
substantially identical software is computer software that--
(1) From a customer's perspective, has the same functional result
as the online software described in paragraph (i)(6)(iii) of this
section; and
(2) Has a significant overlap of features or purpose with the
online software described in paragraph (i)(6)(iii) of this section.
(B) Safe harbor for computer software games. For purposes of
paragraph (i)(6)(iv)(A) of this section, all computer software games
are deemed to be substantially identical software. For example,
computer software sports games are deemed to be substantially identical
to computer software card games.
(C) Regular and ongoing basis. For purposes of paragraph
(i)(6)(iii) of this section, in the case of a newly-formed trade or
business or a taxpayer in its first taxable year, the taxpayer is
considered to be engaged in an activity described in paragraph
(i)(6)(iii) of this section on a regular and ongoing basis if the
taxpayer reasonably expects that it will engage in the activity on a
regular and ongoing basis.
(D) Attribution. For purposes of paragraph (i)(6)(iii)(A) of this
section--
(1) All members of an expanded affiliated group (as defined in
Sec. 1.199-7(a)(1)) are treated as a single taxpayer; and
(2) In the case of an EAG partnership (as defined in Sec. 1.199-
9(j)), the EAG partnership and all members of the EAG to which the EAG
partnership's partners belong are treated as a single taxpayer.
(E) Qualified computer software maintenance agreements. Section
1.199-3(i)(4)(i)(B)(5) does not apply if the computer software is
online software under paragraph (i)(6)(ii) of this section.
(v) Examples. The following examples illustrate the application of
this paragraph (i)(6):
Example 1. L is a bank and produces computer software within the
United States that enables its customers to receive online banking
services for a fee. Under paragraph (i)(6)(ii) of this section,
gross receipts derived from online banking services are attributable
to a service and do not constitute a lease, rental, license, sale,
exchange, or other disposition of computer software. Therefore, L's
gross receipts derived from the online banking services are non-
DPGR.
[[Page 31077]]
Example 2. M is an Internet auction company that produces
computer software within the United States that enables its
customers to participate in Internet auctions for a fee. Under
paragraph (i)(6)(ii) of this section, gross receipts derived from
online services are attributable to a service and do not constitute
a lease, rental, license, sale, exchange, or other disposition of
computer software. M's activities constitute the provision of online
services. Therefore, M's gross receipts derived from the Internet
auction services are non-DPGR.
Example 3. N provides telephone services, voicemail services,
and e-mail services. N produces computer software within the United
States that runs all of these services. Under paragraph (i)(6)(ii)
of this section, gross receipts derived from telephone and related
telecommunication services are attributable to a service and do not
constitute a lease, rental, license, sale, exchange, or other
disposition of computer software. Therefore, N's gross receipts
derived from the telephone and other telecommunication services are
non-DPGR.
Example 4. O produces tax preparation computer software within
the United States. O derives, on a regular and ongoing basis in its
business, gross receipts from both the sale to customers that are
unrelated persons of O's computer software that has been affixed to
a compact disc as well as from the sale to customers of O's computer
software that customers have downloaded from the Internet. O also
derives gross receipts from customers from providing the computer
software to its customers for the customers' direct use while
connected to the Internet. Assume that the computer software sold on
compact disc or by download has only minor or immaterial differences
from the computer software provided over the Internet, and O does
not provide any services in connection with the computer software
provided over the Internet. Under paragraph (i)(6)(iii)(A) of this
section, O's gross receipts derived from providing its computer
software to customers over the Internet will be treated as derived
from the lease, rental, license, sale, exchange, or other
disposition of computer software and are domestic production gross
receipts (DPGR) (as defined in Sec. 1.199-3) (assuming all the
other requirements of Sec. 1.199-3 are met).
Example 5. The facts are the same as in Example 4, except that O
does not sell the tax preparation computer software to customers
affixed to a compact disc and O's only method of providing the tax
preparation computer software to customers is over the Internet. P,
an unrelated person, derives, on a regular and ongoing basis in its
business, gross receipts from the sale to customers of P's
substantially identical tax preparation computer software that has
been affixed to a compact disc as well as from the sale to customers
of P's substantially identical tax preparation computer software
that customers have downloaded from the Internet. Under paragraph
(i)(6)(iii)(B) of this section, O's gross receipts derived from
providing its tax preparation computer software to customers over
the Internet will be treated as derived from the lease, rental,
license, sale, exchange, or other disposition of computer software
and are DPGR (assuming all the other requirements of Sec. 1.199-3
are met).
Example 6. P produces payroll management computer software
within the United States. For a fee, P provides the payroll
management computer software to customers for the customers' direct
use while connected to the Internet. This is P's sole method of
providing its payroll management computer software to customers. In
conjunction with the payroll management computer software, P
provides storage of customers' data and telephone support. Q, an
unrelated person, derives, on a regular and ongoing basis in its
business, gross receipts from the sale to customers of Q's
substantially identical payroll management software that has been
affixed to a compact disc as well as from the sale to customers of
Q's substantially identical payroll management software that
customers have downloaded from the Internet. Under paragraph
(i)(6)(iii)(B) of this section, P's gross receipts derived from
providing its payroll management computer software to customers over
the Internet will be treated as derived from the lease, rental,
license, sale, exchange, or other disposition of computer software
and are DPGR (assuming all the other requirements of Sec. 1.199-3
are met). However, P's gross receipts derived from the fees it
receives that are properly allocable to the storage of customers'
data and telephone support are non-DPGR.
Par. 3. Section 1.199-8T is added to read as follows:
Sec. 1.199-8T Other rules (temporary).
(a) through (h) [Reserved]. For further guidance, see Sec. 1.199-
8(a) through (h).
(i) Effective dates. (1) through (3) [Reserved]. For further
guidance, see Sec. 1.199-8(i)(1) through (3).
(4) Computer software. Section 1.199-3T(i)(6)(ii) through (v) are
applicable for taxable years beginning on or after June 1, 2006.
Taxpayers may apply these temporary regulations to taxable years
beginning after December 31, 2004, and before June 1, 2006. The
applicability of Sec. 1.199-3T(i)(6)(ii) through (v) expires on or
before May 25, 2009.
Mark E. Mathews,
Deputy Commissioner for Services and Enforcement.
Approved: May 2, 2006.
Eric Solomon,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 06-4828 Filed 5-24-06; 11:47 am]
BILLING CODE 4830-01-P
