Application of Section 6404(g) of the Internal Revenue Code Suspension Provisions, 34176-34178 [E7-12081]
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34176
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Federal Register / Vol. 72, No. 119 / Thursday, June 21, 2007 / Rules and Regulations
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Done in Washington, DC this 15th day of
June 2007.
W. Ron DeHaven,
Administrator, Animal and Plant Health
Inspection Service.
[FR Doc. E7–12023 Filed 6–20–07; 8:45 am]
*
PART 319—FOREIGN QUARANTINE
NOTICES
3. The authority citation for part 319
continues to read as follows:
BILLING CODE 3410–34–P
Authority: 7 U.S.C. 450, 7701–7772, and
7781–7786; 21 U.S.C. 136 and 136a; 7 CFR
2.22, 2.80, and 371.3.
DEPARTMENT OF THE TREASURY
I
I 4. A new § 319.56–2uu is added to
read as follows:
Internal Revenue Service
sroberts on PROD1PC70 with RULES
§ 319.56–2uu Administrative instructions:
Conditions governing the entry of certain
fruits from Thailand.
Litchi (Litchi chinensis), longan
(Dimocarpus longan), mango (Mangifera
indica), mangosteen (Garcinia
mangoestana L.), pineapple (Ananas
comosus) and rambutan (Nephelium
lappaceum L.) may be imported into the
United States from Thailand only under
the following conditions:
(a) Growing conditions. Litchi, longan,
mango, mangosteen, pineapple, and
rambutan must be grown in a
production area that is registered with
and monitored by the national plant
protection organization of Thailand.
(b) Treatment. Litchi, longan, mango,
mangosteen, pineapple, and rambutan
must be treated for plant pests of the
class Insecta, except pupae and adults of
the order Lepidoptera, with irradiation
in accordance with § 305.31 of this
chapter. Treatment must be conducted
in Thailand prior to importation of the
fruits into the United States.
(c) Phytosanitary certificates. (1)
Litchi must be accompanied by a
phytosanitary certificate with an
additional declaration stating that the
litchi were treated with irradiation as
described in paragraph (b) of this
section and that the litchi have been
inspected and found to be free of
Peronophythora litchi.
(2) Longan, mango, mangosteen,
pineapple, and rambutan must be
accompanied by a phytosanitary
certificate with an additional
declaration stating that the longan,
mango, mangosteen, pineapple, or
rambutan were treated with irradiation
as described in paragraph (b) of this
section.
(d) Labeling. In addition to meeting
the labeling requirements in § 305.31,
cartons in which litchi and longan are
packed must be stamped ‘‘Not for
importation into or distribution in FL.’’
(Approved by the Office of Management and
Budget under control number 0579–0308)
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26 CFR Part 301
[TD 9333]
RIN 1545-BG64
Application of Section 6404(g) of the
Internal Revenue Code Suspension
Provisions
Internal Revenue Service (IRS),
Treasury.
ACTION: Temporary regulations.
AGENCY:
SUMMARY: This document contains
temporary regulations under section
6404(g)(2)(E) of the Internal Revenue
Code on the suspension of any interest,
penalty, addition to tax, or additional
amount with respect to listed
transactions or undisclosed reportable
transactions. The temporary regulations
reflect changes to the law made by the
Internal Revenue Service Restructuring
and Reform Act of 1998, the American
Jobs Creation Act of 2004, the Gulf
Opportunity Zone Act of 2005, and the
Tax Relief and Health Care Act of 2006.
The temporary regulations provide
guidance to individual taxpayers who
have participated in listed transactions
or undisclosed reportable transactions.
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 in this issue
of the Federal Register.
DATES: Effective Date: These regulations
are effective on June 21, 2007.
Applicability Date: These regulations
apply to interest relating to listed
transactions and undisclosed reportable
transactions accruing before, on, or after
October 3, 2004.
FOR FURTHER INFORMATION CONTACT:
Stuart Spielman, (202) 622–7950 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
Background
This document amends the Procedure
and Administration Regulations (26 CFR
part 301) by adding rules under section
6404(g) relating to the suspension of
interest, penalties, additions to tax, or
additional amounts with respect to
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listed transactions or undisclosed
reportable transactions. Section 3305 of
the Internal Revenue Service
Restructuring and Reform Act of 1998,
Public Law 105–206 (112 Stat. 685, 743)
(RRA 98), added section 6404(g) to the
Code, effective for taxable years ending
after July 22, 1998. Section 6404(g)
generally suspends interest and certain
penalties if the IRS does not contact a
taxpayer regarding possible adjustments
to the taxpayer’s liability within a
specified period of time. Section 903(c)
of the American Jobs Creation Act of
2004, Public Law 108–357 (118 Stat.
1418, 1652) (AJCA), excepted from the
general interest suspension rules any
interest, penalty, addition to tax, or
additional amount with respect to a
listed transaction or an undisclosed
reportable transaction, effective for
interest accruing after October 3, 2004.
Section 303 of the Gulf Opportunity
Zone Act of 2005, Public Law 109–135
(119 Stat. 2577, 2608–09) (GOZA),
modified the effective date of the
exception from the suspension rules for
certain listed and reportable
transactions. Section 426(b) of the Tax
Relief and Health Care Act of 2006,
Public Law 109–432 (120 Stat. 2922,
2975), provided a technical correction
regarding the authority to exercise the
‘‘reasonably and in good faith’’
exception to the effective date rules.
Section 8242 of the Small Business and
Work Opportunity Tax Act of 2007,
Public Law 110–28 (121 Stat. 112, 200),
extended the current eighteen-month
period within which the IRS can,
without suspension of interest, contact
a taxpayer regarding possible
adjustments to the taxpayer’s liability to
thirty-six months, effective for notices
provided after November 25, 2007.
Explanation of Provisions
If an individual taxpayer files a
Federal income tax return on or before
the due date for that return (including
extensions), and if the IRS does not
timely provide a notice to that taxpayer
specifically stating the taxpayer’s
liability and the basis for that liability,
then the IRS must suspend any interest,
penalty, addition to tax, or additional
amount with respect to any failure
relating to the return that is computed
by reference to the period of time the
failure continues and that is properly
allocable to the suspension period. A
notice is timely if provided before the
close of the eighteen-month period
(thirty-six month period, in the case of
notices provided after November 25,
2007) beginning on the later of the date
on which the return is filed or the due
date of the return without regard to
extensions. The suspension period
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Federal Register / Vol. 72, No. 119 / Thursday, June 21, 2007 / Rules and Regulations
begins on the day after the close of the
eighteen-month period (or thirty-six
month period) and ends twenty-one
days after the IRS provides the notice.
This suspension rule applies separately
with respect to each item or adjustment.
If, on or after December 21, 2005, a
taxpayer provides to the IRS an
amended return or other signed written
document showing an additional tax
liability, then the eighteen-month
period (or thirty-six month period) does
not begin to run with respect to the
items that gave rise to the additional tax
liability until that return or other signed
written document is provided to the
IRS.
The general rule for suspension does
not apply to any interest, penalty,
addition to tax, or additional amount
relating to any reportable transaction
with respect to which the requirement
of section 6664(d)(2)(A) is not met or a
listed transaction as defined in section
6707A(c). This exception applies to
interest accruing after October 3, 2004.
With respect to interest relating to listed
transactions or undisclosed reportable
transactions accruing on or before
October 3, 2004, the general rule for
suspension applies only to (1) a
participant in a settlement initiative, (2)
a taxpayer acting reasonably and in
good faith, or (3) a closed transaction. A
participant in a settlement initiative is
a taxpayer who, as of January 23, 2006,
was participating in a settlement
initiative described in IRS
Announcement 2005–80, 2005–2 CB
967 (see § 601.601(d)(2)(ii)(b)); or had
entered into a settlement agreement
under Announcement 2005–80 or any
other prior or contemporaneous
settlement initiative either formally
published or directly communicated to
taxpayers known to have participated in
a tax shelter promotion. A taxpayer
acting reasonably and in good faith is a
taxpayer who the IRS determines has
acted reasonably and in good faith,
taking into account all the facts and
circumstances surrounding a
transaction. A transaction is a ‘‘closed
transaction’’ if, as of December 14, 2005,
the assessment of all federal income
taxes for the taxable year in which the
tax liability to which the interest relates
is prevented by the operation of any law
or rule of law. A transaction is also a
closed transaction if a closing agreement
under section 7121 has been entered
into with respect to the tax liability
arising in connection with the
transaction.
Special Analyses
It has been determined that this
Treasury decision is not a significant
regulatory action as defined in
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Jkt 211001
Executive Order 12866. A regulatory
assessment is therefore not required. It
has also been determined that section
553(b) of the Administrative Procedure
Act (5 U.S.C. chapter 5) does not apply
to these regulations. For applicability of
the Regulatory Flexibility Act (5 U.S.C.
chapter 6), please refer to the crossreference notice of proposed rulemaking
published elsewhere in this issue of the
Federal Register. Pursuant to section
7805(f) of the Internal Revenue Code,
these regulations will be submitted to
the Chief Counsel for Advocacy of the
Small Business Administration for
comment on its impact on small
business.
Drafting Information
The principal author of these
regulations is Stuart Spielman of the
Office of Associate Chief Counsel
(Procedure and Administration).
List of Subjects in 26 CFR Part 301
Employment taxes, Estate taxes,
Excise taxes, Gift taxes, Income taxes,
Penalties, Reporting and recordkeeping
requirements.
Amendments to the Regulations
Accordingly, 26 CFR part 301 is
amended as follows:
I
PART 301—PROCEDURE AND
ADMINISTRATION
Paragraph 1. The authority citation
for part 301 continues to read in part as
follows:
I
Authority: 26 U.S.C. 7805 * * *
I Par. 2. Section 301.6404–0T is added
to read as follows:
§ 301.6404–0T
(temporary).
Table of contents
This section lists the paragraphs
contained in § 301.6404–4T.
§ 301.6404–4T Listed transactions and
undisclosed reportable transactions
(temporary).
(a) [Reserved].
(b)(1) through (b)(4) [Reserved].
(5) Listed transactions and undisclosed
reportable transactions.
(i) In general.
(ii) Effective dates.
(iii) Special rule for certain listed or
undisclosed reportable transactions.
(A) Participant in a settlement initiative.
(1) Participant in a settlement initiative
who as of January 23, 2006, had not reached
agreement with the IRS.
(2) Participant in a settlement initiative
who, as of January 23, 2006, had reached
agreement with the IRS.
(B) Taxpayer acting in good faith.
(1) In general.
(2) Presumption.
(3) Examples.
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34177
(C) Closed transactions.
Par. 3. Section 301.6404–4T is added
to read as follows:
I
§ 301.6404–4T
Listed transactions and
undisclosed reportable transactions
(temporary).
(a) [Reserved].
(b)(1) through (4) [Reserved].
(5) Listed transactions and
undisclosed reportable transactions—(i)
In general. The general rule of
suspension under section 6404(g)(1)
does not apply to any interest, penalty,
addition to tax, or additional amount
with respect to any listed transaction as
defined in section 6707A(c) or any
undisclosed reportable transaction. For
purposes of this section, an undisclosed
reportable transaction is a reportable
transaction described in the regulations
under section 6011 that is not
adequately disclosed under those
regulations and that is not a listed
transaction. Whether a transaction is a
listed transaction or an undisclosed
reportable transaction is determined as
of the date the IRS provides notice to
the taxpayer regarding that transaction
that specifically states the taxpayer’s
liability and the basis for that liability.
(ii) Effective/applicability dates. (A)
These regulations apply to interest
relating to listed transactions and
undisclosed reportable transactions
accruing before, on, or after October 3,
2004.
(B) The applicability of these
regulations expires on or before June 21,
2010.
(iii) Special rule for certain listed or
undisclosed reportable transactions.
With respect to interest relating to listed
transactions and undisclosed reportable
transactions accruing on or before
October 3, 2004, the exception to the
general rule of interest suspension will
not apply to a taxpayer who is a
participant in a settlement initiative
with respect to that transaction, to any
transaction in which the taxpayer has
acted reasonably and in good faith, or to
a closed transaction. For purposes of
this special rule, a ‘‘participant in a
settlement initiative,’’ a ‘‘taxpayer acting
in good faith,’’ and a ‘‘closed
transaction’’ have the following
meanings:
(A) Participant in a settlement
initiative—(1) Participant in a
settlement initiative who, as of January
23, 2006, had not reached agreement
with the IRS. A participant in a
settlement initiative includes a taxpayer
who, as of January 23, 2006, was
participating in a settlement initiative
described in Internal Revenue Service
Announcement 2005–80, 2005–2 CB
967. See § 601.601(d)(2)(ii)(b) of this
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34178
Federal Register / Vol. 72, No. 119 / Thursday, June 21, 2007 / Rules and Regulations
chapter. A taxpayer participates in the
initiative by complying with Section 5
of the Announcement. A taxpayer is not
a participant in a settlement initiative if,
after January 23, 2006, the taxpayer
withdraws from or terminates
participation in the initiative, or the IRS
determines that a settlement agreement
will not be reached under the initiative
within a reasonable period of time.
(2) Participant in a settlement
initiative who, as of January 23, 2006,
had reached agreement with the IRS. A
participant in a settlement initiative is
a taxpayer who, as of January 23, 2006,
had entered into a settlement agreement
under Announcement 2005–80 or any
other prior or contemporaneous
settlement initiative either offered
through published guidance or, if the
initiative was not formally published,
direct contact with taxpayers known to
have participated in a tax shelter
promotion.
(B) Taxpayer acting in good faith—(1)
In general. The IRS may suspend
interest relating to a listed transaction or
an undisclosed reportable transaction
accruing on or before October 3, 2004,
if the taxpayer has acted reasonably and
in good faith. The IRS’ determination of
whether a taxpayer has acted reasonably
and in good faith will take into account
all the facts and circumstances
surrounding the transaction. The facts
and circumstances include, but are not
limited to, whether the taxpayer
disclosed the transaction and the
taxpayer’s course of conduct after being
identified as participating in the
transaction, including the taxpayer’s
response to opportunities afforded to
the taxpayer to settle the transaction,
and whether the taxpayer engaged in
unreasonable delay at any stage of the
matter.
(2) Presumption. If a taxpayer and the
IRS promptly enter into a settlement
agreement with respect to a transaction
on terms proposed by the IRS or, in the
event of atypical facts and
circumstances, on terms more favorable
to the taxpayer, and the taxpayer has
complied with the terms of that
agreement without unreasonable delay,
the taxpayer will be presumed to have
acted reasonably and in good faith
except in rare and unusual
circumstances. Rare and unusual
circumstances must involve specific
actions involving harm to tax
administration. Even if a taxpayer does
not qualify for the presumption
described in this paragraph
(b)(5)(iii)(B)(2), the taxpayer may still be
granted interest suspension under the
general facts and circumstances test set
forth in paragraph (b)(5)(iii)(B)(1) of this
section.
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(3) Examples. The following examples
illustrate the rules the IRS uses in
determining whether a taxpayer has
acted reasonably and in good faith.
Example 1. The taxpayer participated in a
listed transaction. The IRS, in a letter sent
directly to the taxpayer in July 2005,
proposed a settlement of the transaction. The
taxpayer informed the IRS of his interest in
the settlement within the prescribed time
period. The revenue agent assigned to the
taxpayer’s case was not able to calculate the
taxpayer’s liability under the settlement or
tender a closing agreement to the taxpayer
until March 2006. The taxpayer promptly
executed the closing agreement and returned
it to the IRS with a proposal for arrangements
to pay the agreed-upon liability. The IRS
agreed with the proposed arrangements for
full payment. For purposes of the application
of section 6404(g)(2)(E), the taxpayer has
acted reasonably and in good faith. Interest
accruing on or before October 3, 2004,
relating to the transaction in which the
taxpayer participated will be suspended.
Example 2. The facts are the same as in
Example 1, except that the letter was sent by
the IRS in February 2006, and the closing
agreement was tendered to the taxpayer in
April 2006. For purposes of the application
of section 6404(g)(2)(E), the taxpayer has
acted reasonably and in good faith. Interest
accruing on or before October 3, 2004,
relating to the transaction in which the
taxpayer participated will be suspended.
Example 3. The taxpayer participated in a
listed transaction. In response to an offer of
settlement extended by the IRS in August
2005, the taxpayer informed the IRS of her
interest in entering into a closing agreement
on the terms proposed by the IRS. The
revenue agent assigned to the transaction
calculated the taxpayer’s liability under the
settlement and tendered a closing agreement
to the taxpayer in November 2005. The
taxpayer executed the closing agreement but
failed to make any arrangement for payment
of the agreed-upon liability stated in the
closing agreement. Taking into account all
the facts and circumstances surrounding the
transaction, the taxpayer did not act
reasonably and in good faith. Interest
accruing on or before October 3, 2004,
relating to the transaction in which the
taxpayer participated will not be suspended.
Example 4. The taxpayer participated in a
listed transaction. In a letter sent by the IRS
directly to the taxpayer in July 2005, the IRS
extended an offer of settlement. The July
2005 letter informed the taxpayer that, absent
atypical facts and circumstances, the
taxpayer should not expect resolution of the
tax issues on more favorable terms than
proposed in the letter. The taxpayer declined
the proposed settlement terms of the letter
and proceeded to Appeals to present what
the taxpayer claimed were atypical facts and
circumstances. The administrative file did
not contain sufficient information bearing on
atypical facts and circumstances, and the
taxpayer failed to provide additional
information when requested by Appeals to
explain how the transaction originally
proposed to the taxpayer differed in structure
or types of tax benefits claimed, from the
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Fmt 4700
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transaction as implemented by the taxpayer.
Appeals determined that the taxpayer’s facts
and circumstances were not significantly
different from those of other taxpayers who
participated in that listed transaction and
thus, were not atypical. In September 2006,
the taxpayer and Appeals entered into a
closing agreement on terms consistent with
those originally proposed in the July 2005
letter. The taxpayer has complied with the
terms of that closing agreement. For purposes
of the application of section 6404(g)(2)(E),
this taxpayer is not presumed to have acted
reasonably and in good faith; instead, the IRS
will apply the general rule to determine
whether to suspend interest accruing on or
before October 3, 2004, relating to the
transaction in which the taxpayer
participated.
Example 5. The facts are the same as in
Example 4, except that Appeals agrees that
atypical facts were present that warrant
additional concessions by the government. A
settlement is reached on terms more
favorable to the taxpayer than those proposed
in the July 2005 letter. For purposes of the
application of section 6404(g)(2)(E), this
taxpayer is presumed to have acted
reasonably and in good faith, and absent
evidence of rare or unusual circumstances
harmful to tax administration, is eligible for
suspension of interest accruing on or before
October 3, 2004, relating to the transaction in
which the taxpayer participated.
(C) Closed transactions. A transaction
is considered closed for purposes of this
clause if, as of December 14, 2005, the
assessment of all federal income taxes
for the taxable year in which the tax
liability to which the interest relates is
prevented by the operation of any law
or rule of law, or a closing agreement
under section 7121 has been entered
into with respect to the tax liability
arising in connection with the
transaction.
(c) [Reserved].
Kevin M. Brown,
Deputy Commissioner for Services and
Enforcement.
Approved: June 15, 2007.
Eric Solomon,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. E7–12081 Filed 6–20–07; 8:53 am]
BILLING CODE 4830–01–P
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]]>Agencies
[Federal Register Volume 72, Number 119 (Thursday, June 21, 2007)]
[Rules and Regulations]
[Pages 34176-34178]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-12081]
=======================================================================
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 301
[TD 9333]
RIN 1545-BG64
Application of Section 6404(g) of the Internal Revenue Code
Suspension Provisions
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Temporary regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains temporary regulations under section
6404(g)(2)(E) of the Internal Revenue Code on the suspension of any
interest, penalty, addition to tax, or additional amount with respect
to listed transactions or undisclosed reportable transactions. The
temporary regulations reflect changes to the law made by the Internal
Revenue Service Restructuring and Reform Act of 1998, the American Jobs
Creation Act of 2004, the Gulf Opportunity Zone Act of 2005, and the
Tax Relief and Health Care Act of 2006. The temporary regulations
provide guidance to individual taxpayers who have participated in
listed transactions or undisclosed reportable transactions. 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 in this issue of the Federal
Register.
DATES: Effective Date: These regulations are effective on June 21,
2007.
Applicability Date: These regulations apply to interest relating to
listed transactions and undisclosed reportable transactions accruing
before, on, or after October 3, 2004.
FOR FURTHER INFORMATION CONTACT: Stuart Spielman, (202) 622-7950 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
Background
This document amends the Procedure and Administration Regulations
(26 CFR part 301) by adding rules under section 6404(g) relating to the
suspension of interest, penalties, additions to tax, or additional
amounts with respect to listed transactions or undisclosed reportable
transactions. Section 3305 of the Internal Revenue Service
Restructuring and Reform Act of 1998, Public Law 105-206 (112 Stat.
685, 743) (RRA 98), added section 6404(g) to the Code, effective for
taxable years ending after July 22, 1998. Section 6404(g) generally
suspends interest and certain penalties if the IRS does not contact a
taxpayer regarding possible adjustments to the taxpayer's liability
within a specified period of time. Section 903(c) of the American Jobs
Creation Act of 2004, Public Law 108-357 (118 Stat. 1418, 1652) (AJCA),
excepted from the general interest suspension rules any interest,
penalty, addition to tax, or additional amount with respect to a listed
transaction or an undisclosed reportable transaction, effective for
interest accruing after October 3, 2004. Section 303 of the Gulf
Opportunity Zone Act of 2005, Public Law 109-135 (119 Stat. 2577, 2608-
09) (GOZA), modified the effective date of the exception from the
suspension rules for certain listed and reportable transactions.
Section 426(b) of the Tax Relief and Health Care Act of 2006, Public
Law 109-432 (120 Stat. 2922, 2975), provided a technical correction
regarding the authority to exercise the ``reasonably and in good
faith'' exception to the effective date rules. Section 8242 of the
Small Business and Work Opportunity Tax Act of 2007, Public Law 110-28
(121 Stat. 112, 200), extended the current eighteen-month period within
which the IRS can, without suspension of interest, contact a taxpayer
regarding possible adjustments to the taxpayer's liability to thirty-
six months, effective for notices provided after November 25, 2007.
Explanation of Provisions
If an individual taxpayer files a Federal income tax return on or
before the due date for that return (including extensions), and if the
IRS does not timely provide a notice to that taxpayer specifically
stating the taxpayer's liability and the basis for that liability, then
the IRS must suspend any interest, penalty, addition to tax, or
additional amount with respect to any failure relating to the return
that is computed by reference to the period of time the failure
continues and that is properly allocable to the suspension period. A
notice is timely if provided before the close of the eighteen-month
period (thirty-six month period, in the case of notices provided after
November 25, 2007) beginning on the later of the date on which the
return is filed or the due date of the return without regard to
extensions. The suspension period
[[Page 34177]]
begins on the day after the close of the eighteen-month period (or
thirty-six month period) and ends twenty-one days after the IRS
provides the notice. This suspension rule applies separately with
respect to each item or adjustment. If, on or after December 21, 2005,
a taxpayer provides to the IRS an amended return or other signed
written document showing an additional tax liability, then the
eighteen-month period (or thirty-six month period) does not begin to
run with respect to the items that gave rise to the additional tax
liability until that return or other signed written document is
provided to the IRS.
The general rule for suspension does not apply to any interest,
penalty, addition to tax, or additional amount relating to any
reportable transaction with respect to which the requirement of section
6664(d)(2)(A) is not met or a listed transaction as defined in section
6707A(c). This exception applies to interest accruing after October 3,
2004. With respect to interest relating to listed transactions or
undisclosed reportable transactions accruing on or before October 3,
2004, the general rule for suspension applies only to (1) a participant
in a settlement initiative, (2) a taxpayer acting reasonably and in
good faith, or (3) a closed transaction. A participant in a settlement
initiative is a taxpayer who, as of January 23, 2006, was participating
in a settlement initiative described in IRS Announcement 2005-80, 2005-
2 CB 967 (see Sec. 601.601(d)(2)(ii)(b)); or had entered into a
settlement agreement under Announcement 2005-80 or any other prior or
contemporaneous settlement initiative either formally published or
directly communicated to taxpayers known to have participated in a tax
shelter promotion. A taxpayer acting reasonably and in good faith is a
taxpayer who the IRS determines has acted reasonably and in good faith,
taking into account all the facts and circumstances surrounding a
transaction. A transaction is a ``closed transaction'' if, as of
December 14, 2005, the assessment of all federal income taxes for the
taxable year in which the tax liability to which the interest relates
is prevented by the operation of any law or rule of law. A transaction
is also a closed transaction if a closing agreement under section 7121
has been entered into with respect to the tax liability arising in
connection with the transaction.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866. A
regulatory assessment is therefore not required. It has also been
determined that section 553(b) of the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to these regulations. For
applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6),
please 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 Internal Revenue Code, these regulations will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small business.
Drafting Information
The principal author of these regulations is Stuart Spielman of the
Office of Associate Chief Counsel (Procedure and Administration).
List of Subjects in 26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
Amendments to the Regulations
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Accordingly, 26 CFR part 301 is amended as follows:
PART 301--PROCEDURE AND ADMINISTRATION
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Paragraph 1. The authority citation for part 301 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
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Par. 2. Section 301.6404-0T is added to read as follows:
Sec. 301.6404-0T Table of contents (temporary).
This section lists the paragraphs contained in Sec. 301.6404-4T.
Sec. 301.6404-4T Listed transactions and undisclosed reportable
transactions (temporary).
(a) [Reserved].
(b)(1) through (b)(4) [Reserved].
(5) Listed transactions and undisclosed reportable transactions.
(i) In general.
(ii) Effective dates.
(iii) Special rule for certain listed or undisclosed reportable
transactions.
(A) Participant in a settlement initiative.
(1) Participant in a settlement initiative who as of January 23,
2006, had not reached agreement with the IRS.
(2) Participant in a settlement initiative who, as of January
23, 2006, had reached agreement with the IRS.
(B) Taxpayer acting in good faith.
(1) In general.
(2) Presumption.
(3) Examples.
(C) Closed transactions.
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Par. 3. Section 301.6404-4T is added to read as follows:
Sec. 301.6404-4T Listed transactions and undisclosed reportable
transactions (temporary).
(a) [Reserved].
(b)(1) through (4) [Reserved].
(5) Listed transactions and undisclosed reportable transactions--
(i) In general. The general rule of suspension under section 6404(g)(1)
does not apply to any interest, penalty, addition to tax, or additional
amount with respect to any listed transaction as defined in section
6707A(c) or any undisclosed reportable transaction. For purposes of
this section, an undisclosed reportable transaction is a reportable
transaction described in the regulations under section 6011 that is not
adequately disclosed under those regulations and that is not a listed
transaction. Whether a transaction is a listed transaction or an
undisclosed reportable transaction is determined as of the date the IRS
provides notice to the taxpayer regarding that transaction that
specifically states the taxpayer's liability and the basis for that
liability.
(ii) Effective/applicability dates. (A) These regulations apply to
interest relating to listed transactions and undisclosed reportable
transactions accruing before, on, or after October 3, 2004.
(B) The applicability of these regulations expires on or before
June 21, 2010.
(iii) Special rule for certain listed or undisclosed reportable
transactions. With respect to interest relating to listed transactions
and undisclosed reportable transactions accruing on or before October
3, 2004, the exception to the general rule of interest suspension will
not apply to a taxpayer who is a participant in a settlement initiative
with respect to that transaction, to any transaction in which the
taxpayer has acted reasonably and in good faith, or to a closed
transaction. For purposes of this special rule, a ``participant in a
settlement initiative,'' a ``taxpayer acting in good faith,'' and a
``closed transaction'' have the following meanings:
(A) Participant in a settlement initiative--(1) Participant in a
settlement initiative who, as of January 23, 2006, had not reached
agreement with the IRS. A participant in a settlement initiative
includes a taxpayer who, as of January 23, 2006, was participating in a
settlement initiative described in Internal Revenue Service
Announcement 2005-80, 2005-2 CB 967. See Sec. 601.601(d)(2)(ii)(b) of
this
[[Page 34178]]
chapter. A taxpayer participates in the initiative by complying with
Section 5 of the Announcement. A taxpayer is not a participant in a
settlement initiative if, after January 23, 2006, the taxpayer
withdraws from or terminates participation in the initiative, or the
IRS determines that a settlement agreement will not be reached under
the initiative within a reasonable period of time.
(2) Participant in a settlement initiative who, as of January 23,
2006, had reached agreement with the IRS. A participant in a settlement
initiative is a taxpayer who, as of January 23, 2006, had entered into
a settlement agreement under Announcement 2005-80 or any other prior or
contemporaneous settlement initiative either offered through published
guidance or, if the initiative was not formally published, direct
contact with taxpayers known to have participated in a tax shelter
promotion.
(B) Taxpayer acting in good faith--(1) In general. The IRS may
suspend interest relating to a listed transaction or an undisclosed
reportable transaction accruing on or before October 3, 2004, if the
taxpayer has acted reasonably and in good faith. The IRS' determination
of whether a taxpayer has acted reasonably and in good faith will take
into account all the facts and circumstances surrounding the
transaction. The facts and circumstances include, but are not limited
to, whether the taxpayer disclosed the transaction and the taxpayer's
course of conduct after being identified as participating in the
transaction, including the taxpayer's response to opportunities
afforded to the taxpayer to settle the transaction, and whether the
taxpayer engaged in unreasonable delay at any stage of the matter.
(2) Presumption. If a taxpayer and the IRS promptly enter into a
settlement agreement with respect to a transaction on terms proposed by
the IRS or, in the event of atypical facts and circumstances, on terms
more favorable to the taxpayer, and the taxpayer has complied with the
terms of that agreement without unreasonable delay, the taxpayer will
be presumed to have acted reasonably and in good faith except in rare
and unusual circumstances. Rare and unusual circumstances must involve
specific actions involving harm to tax administration. Even if a
taxpayer does not qualify for the presumption described in this
paragraph (b)(5)(iii)(B)(2), the taxpayer may still be granted interest
suspension under the general facts and circumstances test set forth in
paragraph (b)(5)(iii)(B)(1) of this section.
(3) Examples. The following examples illustrate the rules the IRS
uses in determining whether a taxpayer has acted reasonably and in good
faith.
Example 1. The taxpayer participated in a listed transaction.
The IRS, in a letter sent directly to the taxpayer in July 2005,
proposed a settlement of the transaction. The taxpayer informed the
IRS of his interest in the settlement within the prescribed time
period. The revenue agent assigned to the taxpayer's case was not
able to calculate the taxpayer's liability under the settlement or
tender a closing agreement to the taxpayer until March 2006. The
taxpayer promptly executed the closing agreement and returned it to
the IRS with a proposal for arrangements to pay the agreed-upon
liability. The IRS agreed with the proposed arrangements for full
payment. For purposes of the application of section 6404(g)(2)(E),
the taxpayer has acted reasonably and in good faith. Interest
accruing on or before October 3, 2004, relating to the transaction
in which the taxpayer participated will be suspended.
Example 2. The facts are the same as in Example 1, except that
the letter was sent by the IRS in February 2006, and the closing
agreement was tendered to the taxpayer in April 2006. For purposes
of the application of section 6404(g)(2)(E), the taxpayer has acted
reasonably and in good faith. Interest accruing on or before October
3, 2004, relating to the transaction in which the taxpayer
participated will be suspended.
Example 3. The taxpayer participated in a listed transaction. In
response to an offer of settlement extended by the IRS in August
2005, the taxpayer informed the IRS of her interest in entering into
a closing agreement on the terms proposed by the IRS. The revenue
agent assigned to the transaction calculated the taxpayer's
liability under the settlement and tendered a closing agreement to
the taxpayer in November 2005. The taxpayer executed the closing
agreement but failed to make any arrangement for payment of the
agreed-upon liability stated in the closing agreement. Taking into
account all the facts and circumstances surrounding the transaction,
the taxpayer did not act reasonably and in good faith. Interest
accruing on or before October 3, 2004, relating to the transaction
in which the taxpayer participated will not be suspended.
Example 4. The taxpayer participated in a listed transaction. In
a letter sent by the IRS directly to the taxpayer in July 2005, the
IRS extended an offer of settlement. The July 2005 letter informed
the taxpayer that, absent atypical facts and circumstances, the
taxpayer should not expect resolution of the tax issues on more
favorable terms than proposed in the letter. The taxpayer declined
the proposed settlement terms of the letter and proceeded to Appeals
to present what the taxpayer claimed were atypical facts and
circumstances. The administrative file did not contain sufficient
information bearing on atypical facts and circumstances, and the
taxpayer failed to provide additional information when requested by
Appeals to explain how the transaction originally proposed to the
taxpayer differed in structure or types of tax benefits claimed,
from the transaction as implemented by the taxpayer. Appeals
determined that the taxpayer's facts and circumstances were not
significantly different from those of other taxpayers who
participated in that listed transaction and thus, were not atypical.
In September 2006, the taxpayer and Appeals entered into a closing
agreement on terms consistent with those originally proposed in the
July 2005 letter. The taxpayer has complied with the terms of that
closing agreement. For purposes of the application of section
6404(g)(2)(E), this taxpayer is not presumed to have acted
reasonably and in good faith; instead, the IRS will apply the
general rule to determine whether to suspend interest accruing on or
before October 3, 2004, relating to the transaction in which the
taxpayer participated.
Example 5. The facts are the same as in Example 4, except that
Appeals agrees that atypical facts were present that warrant
additional concessions by the government. A settlement is reached on
terms more favorable to the taxpayer than those proposed in the July
2005 letter. For purposes of the application of section
6404(g)(2)(E), this taxpayer is presumed to have acted reasonably
and in good faith, and absent evidence of rare or unusual
circumstances harmful to tax administration, is eligible for
suspension of interest accruing on or before October 3, 2004,
relating to the transaction in which the taxpayer participated.
(C) Closed transactions. A transaction is considered closed for
purposes of this clause if, as of December 14, 2005, the assessment of
all federal income taxes for the taxable year in which the tax
liability to which the interest relates is prevented by the operation
of any law or rule of law, or a closing agreement under section 7121
has been entered into with respect to the tax liability arising in
connection with the transaction.
(c) [Reserved].
Kevin M. Brown,
Deputy Commissioner for Services and Enforcement.
Approved: June 15, 2007.
Eric Solomon,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. E7-12081 Filed 6-20-07; 8:53 am]
BILLING CODE 4830-01-P
