Election of Reduced Research Credit Under Section 280C(c)(3), 34523-34524 [E9-16887]

Agencies

• Internal Revenue Service
• DEPARTMENT OF THE TREASURY

[Federal Register Volume 74, Number 135 (Thursday, July 16, 2009)]
[Proposed Rules]
[Pages 34523-34524]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16887]



[[Page 34523]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-130200-08]
RIN 1545-BI09


Election of Reduced Research Credit Under Section 280C(c)(3)

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

-----------------------------------------------------------------------

SUMMARY: This document contains proposed regulations that amend the 
regulations concerning taxpayers who make the election to claim the 
reduced research credit. The proposed regulations simplify how 
taxpayers make the election and affect taxpayers that claim the 
research credit. This document also provides a notice of a public 
hearing on these proposed regulations.

DATES: Written or electronic comments must be received by October 14, 
2009. Outlines of topics to be discussed at the public hearing 
scheduled for November 4, 2009 at 10 a.m. must be received by October 
16, 2009.

ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-130200-08), Room 
5205, Internal Revenue Service, PO Box 7604, Ben Franklin Station, 
Washington, DC 20044. Submissions may be hand delivered Monday through 
Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-
130200-08), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue, NW., Washington, DC, or sent electronically via the Federal 
eRulemaking Portal at https://www.regulations.gov (IRS REG-130200-08). 
The public hearing will be held in Auditorium, Internal Revenue 
Building, 1111 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
David Selig, (202) 622-3040; concerning submission of comments, the 
hearing, and/or to be placed on the building access list to attend the 
hearing, Richard A. Hurst, Richard.A.Hurst@irscounsel.treas.gov, (202) 
622-7180 (not toll-free numbers).

SUPPLEMENTARY INFORMATION: 

Background and Explanation of Provisions

    This document contains proposed amendments to the Income Tax 
Regulations (26 CFR Part 1) relating to the election for claiming the 
reduced research credit under section 280C(c)(3). Section 280C(c)(1) 
provides, in general, that no deduction shall be allowed for that 
portion of the qualified research expenses (as defined in section 
41(b)) or basic research expenses (as defined in section 41(e)(2)) 
otherwise allowable as a deduction for the taxable year which is equal 
to the amount of the credit determined for such taxable year under 
section 41(a).
    Similarly, section 280C(c)(2) provides that if the amount of the 
credit determined for the taxable year under section 41(a)(1) exceeds 
the amount allowable as a deduction for such taxable year for qualified 
research expenses or basic research expenses (determined without regard 
to section 280C(c)(1)), the amount chargeable to capital account for 
the taxable year for such expenses shall be reduced by the amount of 
such excess.
    Section 280C(c)(3)(A) provides, in general, that in the case of any 
taxable year for which an election is made under section 280C(c)(3), 
sections 280C(c)(1) and (c)(2) shall not apply, and the amount of the 
credit under section 41(a) shall be the amount determined under section 
280C(c)(3)(B). Under section 280C(c)(3)(B), the amount of credit for 
any taxable year shall be the amount equal to the excess of the amount 
of credit determined under section 41(a) without regard to section 
280C(c)(3), over the product of the amount of credit determined under 
section 280C(c)(3)(B)(i), and the maximum rate of tax under section 
11(b)(1).
    Section 280C(c)(3)(C) provides that an election under section 
280C(c)(3) for any taxable year shall be made not later than the time 
for filing the return of tax for such year (including extensions), 
shall be made on such return, and shall be made in such manner as the 
Secretary may prescribe. Such an election, once made, shall be 
irrevocable.
    Section 280C(c)(4) provides that section 280C(b)(3) shall apply for 
purposes of section 280C(c). Under section 280C(b)(3), in the case of a 
corporation which is a member of a controlled group of corporations 
(within the meaning of section 41(f)(5)) or a trade or business which 
is treated as being under common control with other trades or 
businesses (within the meaning of section 41(f)(1)(B)), section 280C(b) 
shall be applied under rules prescribed by the Secretary similar to the 
rules applicable under section 41(f)(1)(A) and (B).
    Currently, Sec.  1.280C-4(a) provides that the section 280C(c)(3) 
election to have the provisions of section 280C(c)(1) and (c)(2) not 
apply shall be made by claiming the reduced credit under section 41(a) 
determined by the method provided in section 280C(c)(3)(B) on an 
original return for the taxable year, filed at any time on or before 
the due date (including extensions) for filing the income tax return 
for such year. An election, once made, for any taxable year, is 
irrevocable for that taxable year.
    The proposed regulations simplify the section 280C(c)(3) election 
to have the provisions of section 280C(c)(1) and (c)(2) not apply by 
requiring the election to be made on Form 6765, ``Credit for Increasing 
Research Activities.'' The form must be filed with an original return 
for the taxable year filed on or before the due date (including 
extensions) for filing the income tax return for such year. An 
election, once made for any taxable year, is irrevocable for that 
taxable year.
    The IRS and the Treasury Department have received comments on 
whether all members of a controlled group (as defined in Sec.  1.41-
6(a)(3)(ii)) are bound by an election under section 280C(c)(3), or 
whether each member of a controlled group can make a separate election 
under section 280C(c)(3). If a taxpayer is a member of a controlled 
group, section 280C(c)(4) requires that the election for the reduced 
research credit must be determined under rules similar to rules 
applicable to a controlled group. Section 1.41-6(a)(1) provides that to 
determine the amount of research credit (if any) allowable to a trade 
or business that at the end of its taxable year is a member of a 
controlled group, a taxpayer must: (i) compute the group credit in the 
manner described in Sec.  1.41-6(b), and (ii) allocate the group credit 
among the members of the group in the manner described under Sec.  
1.41-6(c). All members of the controlled group are required to use the 
same computation method, that is, the section 41(a)(1) method, the 
section 41(c)(4) alternative incremental research credit (alternative 
incremental credit) method, or the section 41(c)(5) alternative 
simplified research credit method, in computing the group credit for 
the credit year. Under section 41(h)(2), as amended by section 301(b) 
of the Tax Extenders and Alternative Minimum Tax Relief Act of 2008 
(Div. C of Public Law 110-343, 122 Stat. 3765), a taxpayer cannot elect 
the alternative incremental research credit under section 41(c)(4) for 
taxable years beginning after December 31, 2008.
    The reduced research credit under section 280C(c)(3) is not a 
computational rule under section 41 used for computing the group credit 
for a credit year under Sec. Sec.  1.41-6(b)(1) and

[[Page 34524]]

1.41-6T(b)(1). There is no change to the overall tax effect of the 
research credit if each member of a controlled group, after computing 
and allocating its share of the group credit under Sec. Sec.  1.41-
6(b)(1) and 1.41-6(c) and 1.41-6T(b)(1) and 1.41-6(c)(2), determines 
whether it wants to claim the reduced research credit under section 
280C(c)(3)(B). Accordingly, the proposed regulations provide that each 
member of a controlled group may make the election under section 
280C(c)(3) after the group credit is computed and allocated under 
Sec. Sec.  1.41-6(b)(1) and 1.41-6(c) and 1.41-6T(b)(1) and 1.41-
6T(c)(2).

Proposed Effective Date

    The regulations are proposed to apply to taxable years ending on or 
after the date of publication of the Treasury decision adopting these 
rules as final regulation in the Federal Register.

Special Analyses

    It has been determined that this notice of proposed rulemaking 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.
    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (5 U.S.C. chapter 6), requires the agency to ``prepare 
and make available for public comment an initial regulatory flexibility 
analysis'' that will ``describe the impact of the proposed rule on 
small entities.'' (5 U.S.C. 603(a)). Section 605 of the Regulatory 
Flexibility Act provides an exception to this requirement if the agency 
certifies that the proposed rulemaking will not have a significant 
economic impact on a substantial number of small entities.
    The proposed rule affects individuals and small businesses engaged 
in research activities under section 41. The IRS has determined that 
this proposed rule will have an impact on a substantial number of small 
entities. However, the IRS also has determined that the impact on 
entities affected by the proposed rule will not be significant. This 
determination is based on the fact that the regulations would simplify 
the procedure for making the election for the reduced research credit 
under section 280C(c)(3)(C). Instead of requiring such an election to 
be made ``on an original return,'' the regulations specify that the 
election is made on Form 6765, ``Credit for Increasing Research 
Activities,'' which is attached to the return. This form requires only 
a minimal amount of time to complete and places no greater burden on 
the taxpayer than the current procedure. Accordingly, a Regulatory 
Flexibility Analysis is not required.
    Pursuant to section 7805(f) of the Code, these regulations have 
been submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on their impact on small business.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments (a signed original 
and eight (8) copies) or electronic comments that are submitted timely 
to the IRS. The IRS and the Treasury Department request comments on the 
clarity of the proposed rules and how they can be made easier to 
understand. All comments will be available for public inspection and 
copying.
    A public hearing has been scheduled for November 4, 2009, at 10 
a.m. in Auditorium of the Internal Revenue Building, 1111 Constitution 
Avenue, NW., Washington, DC. Due to building security procedures, 
visitors must enter at the Constitution Avenue entrance. In addition, 
all visitors must present photo identification to enter the building. 
Because of access restrictions, visitors will not be admitted beyond 
the immediate entrance area more than 30 minutes before the hearing 
starts. For information about having your name placed on the building 
access list to attend the hearing, see the FOR FURTHER INFORMATION 
CONTACT section of this preamble.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who 
wish to present oral comments at the hearing must submit electronic or 
written comments and an outline of the topics to be discussed and the 
time to be devoted to each topic (a signed original and eight (8) 
copies) by October 16, 2009. A period of 10 minutes will be allotted to 
each person for making comments. An agenda showing the scheduling of 
the speakers will be prepared after the deadline for receiving outlines 
has passed. Copies of the agenda will be available free of charge at 
the hearing.

Drafting Information

    The principal author of these regulations is David Selig, Office of 
Associate Chief Counsel (Passthroughs and Special Industries). However, 
other personnel from the IRS and the Treasury Department participated 
in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority:  26 U.S.C. 7805 * * *

    Par. 2. Section 1.280C-4 is revised to read as follows:


Sec.  1.280C-4  Credit for increasing research activities.

    (a) In general. An election under section 280C(c)(3) to have the 
provisions of section 280C(c)(1) and (c)(2) not apply and elect the 
reduced research credit under section 280C(c)(3)(B) shall be made on 
Form 6765, ``Credit for Increasing Research Activities,'' (or any 
successor form). In order for the election to be effective, the Form 
6765 must clearly indicate the taxpayer's intent to make the section 
280C(c)(3) election, and must be filed with an original return for the 
taxable year filed on or before the due date (including extensions) for 
filing the income tax return for such year, regardless of whether any 
research credits are claimed on the original return. An election, once 
made for any taxable year, is irrevocable for that taxable year.
    (b) Controlled groups of corporations; trades or businesses under 
common control. A member of a controlled group of corporations (within 
the meaning of section 41(f)(5)), or a trade or business which is 
treated as being under common control with other trades or businesses 
(within the meaning of section 41(f)(1)(B)), may make the election 
under section 280C(c)(3). Such member or trade or business shall make 
the election on Form 6765 and by the time prescribed in paragraph (a) 
of this section.
    (c) Effective/applicability date. This section applies to taxable 
years ending on or after the date of publication of the Treasury 
Decision adopting these rules as final regulations in the Federal 
Register.

Linda E. Stiff,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E9-16887 Filed 7-15-09; 8:45 am]
BILLING CODE 4830-01-P